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2010 DIGILAW 987 (PNJ)

Harish Kumar v. State Of Haryana

2010-02-24

PERMOD KOHLI

body2010
Judgment Permod Kohli, J. 1 With the consent of learned counsel for the parties, these petitions are disposed of at the motion stage itself. 2 This order will dispose of CWP Nos. 6239 and 6241 of 2009 as common question of law and facts are involved in both the writ petitions. For the sake of brevity, the facts are being taken from CWP No. 6239 of 2009. 3 Respondent No. 2 issued an advertisement in various newspapers being Advertisement No. 6/2006 dated 20.7.2006 inviting applications from the eligible candidates for appointment to various posts in the Education Department of the State of Haryana. As many as 1056 posts of Science Master in General and other reserved categories were advertised. The minimum qualification prescribed in the aforesaid advertisement was as under :- "E.Q. i) B.Sc. With B.Ed. from a recognized University with any of the two subjects in B.Sc. :- 1. Physics, 2. Chemistry, 3. Botany, 4., Zoology OR B.Sc. Education (4-Year Course) from a recognized University with any of the two subjects out of the following : i. Physics, 2. Chemistry, 3. Botany, 4., Zoology. ii) Knowledge of Hindi upto Matric standard." 4 The petitioner who claims to be eligible under the advertisement, applied for his consideration for selection. His application was considered and he was allowed to appear in the written test which he has automatically qualified. The petitioner was thereafter summoned for interview vide letter dated 7.7.2008. The petitioner appeared in the interview held on 20.7.2008. On completion of the process of selection, the list of selected candidates was published in various newspaper on 10.10.2008. The petitioners were selected for the post of Science Master. The name of the petitioner in CWP No. 6241 figures at Sr. No. 218 of the merit list which fact is not disputed by the respondents. 5 Despite selection, the petitioners have not been issued any appointment letter. It is specifically alleged that the candidates who are lower in merit than the petitioners have been appointed. It is alleged that on enquiry, the petitioner came to know that their B.Ed. degrees are sought to be doubted. The petitioners have accordingly filed these petitions seeking direction for his appointment on the basis of selection vide select list dated 10.10.2008 with all consequential benefits. It is alleged that on enquiry, the petitioner came to know that their B.Ed. degrees are sought to be doubted. The petitioners have accordingly filed these petitions seeking direction for his appointment on the basis of selection vide select list dated 10.10.2008 with all consequential benefits. 6 In the reply filed by respondents, particularly respondents No. 1 and 3, the selection of the petitioners for the post in question has been admitted. It is, however, stated that on the basis of the instructions dated 2.11.1999 of the Education Department, the degrees/diplomas/certificates /examination recognized by Universities of Haryana would stand recognized in the State of Haryana for admission and recruitment purpose. It is further stated of Haryana for the purpose of admissions/recruitment, the opinion of the State Universities, School Education Board or the Technical Education Board, as the case may be, would be sought. The respondents accordingly sought information from the Kurukshetra University in response to the query of the respondents, vide letter dated 10.11.2009 has informed the Education Department that the B.Ed. (Correspondence Course) of SRI University, Raipur, Chattisgarh has not been recognizes and the name of the University is not included in the list of AIU/UGC. Based upon the aforesaid communication, the Joint Director Administration O/o Commissioner & Director General School Education, Haryana has passed an order dated 11.12.2009 holding the petitioners ineligible for appointment to the post of Science Master. 7 I have learned counsel for the parties. The only issue involved in the writ petition is whether the B.Ed. degree acquired by the petitioners from Shri Rawatpura Sarkar International University, Chhatisgarh is recognized qualification for the purpose of recruitment/appointment in the State of Haryana. The petitioner has placed on record a notification dated 7.9.2002 (Annexure P-14). Vide this notification, the Government of Chhatisgarh, Department of Higher Education Technical Education, Manpower & Science and Technology established Shri Rawatpura Sarkar International University, Raipur in exercise of the power vested in the Government under Sub-Section (1) of Section 5 of the Chhatisgarh Niji Kshetra Vishwavidayalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 (No. 2 of 2002). It appears that the University was thus established under the State Act. It appears that the University was thus established under the State Act. The Ministry of Human Resource Development vide its communication dated 19.1.2004 also communicated to the Registrar of the said University that the University being established under the State Act (Chhatisgarh) notified by the Gazette Notification, degree/diploma/certificate issued by Shri Rawatpura Sarkar International University Raipur (Chhattisgarh) stands automatically recognized for the purpose of the employment under Central/State Government and for higher studies in India/abroad. The Government of Chhattisgarh has also issued a communication dated 6.2.2006 to the petitioner that the mark sheets/degree awarded by the University prior to the judgment of Honble Supreme Court on 11.2.2005 should be treated valid for all purposes, including government service. 8 Though the respondents have not placed on record any material for not recognizing the degrees possessed by the petitioners, however, the reliance is placed upon a judgment of the Honble Supreme Court in the case of Prof. Yashpal and others v. State of Chhattisgarh and others, 2005(1) S.C.T. 808 : (2005) 5 Supreme Court Cases 420. In the aforesaid judgment, the validity of the Act, namely, Chhattisgarh Niji Kshetra Viswavidhalaya (Sthapan-a Aur Viniyaman) Adhiniyam, 2002 was challenged before the Honble Supreme Court. The Honble Supreme Court declared the said legislation as invalid. However, while dealing with the question of the students who were studying in those institutions, the Honble Suprme Court made following observations :- "64. As a consequence of the discussion made and the findings recorded that the provisions of Sections 5 and 6 of the Act are ultra vires and the Gazette Notifications notifying the Universities are liable to be quashed, all such Universities shall case to exist. Shri Amarendra Sharan, learned Additional Solicitor General has submitted that the UGC had conducted an inquiry and it was found that most of the Universities were non-existent, but the report was not placed before the Court as the complete exercise had not been done. Learned counsel for the Universities have seriously disputed this fact and have submitted that the Universities are functioning. We have not gone into this question as it is purely factual. In order to protect the interests of the students who may be actually studying in the institutions established by such private Universities, it is directed that the State Government may take appropriate measures to have such institutions affiliated to the already existing State Universities in Chhattisgarh. We have not gone into this question as it is purely factual. In order to protect the interests of the students who may be actually studying in the institutions established by such private Universities, it is directed that the State Government may take appropriate measures to have such institutions affiliated to the already existing State Universities in Chhattisgarh. We are issuing this direction keeping in mind the interest of the students and also Sections 33 and 34 of the Act, which contemplate dissolution of the sponsoring body and liquidation of a University whereunder responsibility has to be assumed by the State Government. It is, however, made clear that the benefit of affiliation of an institution shall be extended only if it fulfills the requisite norms and standards laid down for such purpose and not to every kind of institution. Regarding technical, medical or dental colleges, etc. affiliation may be accorded if they have been established after fulfilling the prescribed criteria laid down by the All India Council of India or any other statutory authority and with their approval or sanction as prescribed by law." 9 This judgment was delivered on 11.2.2005. It is settled law that the judgment can operate only prospectively. It does not nullify the degrees which were granted prior to the judgment by the University. The degree granted by the University otherwise also cannot be said to be invalid applying the "de facto" Doctrine. While dealing with the "de facto" doctrine in the case of Gokaraju Rangaraju v. State of Andhra Pradesh, AIR 1981 SC 1473, the Honble Supreme Court has observed as under :- "We are unable to agree with the submissions of the learned counsel for the appellants. The doctrine is now well established that "the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure" (Pulin Behari v. King Emperor). As one of us had occasion to point out earlier "the doctrine is founded on good sense, sound policy and practical expedience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. As one of us had occasion to point out earlier "the doctrine is founded on good sense, sound policy and practical expedience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine" (vide Immedisetti Ramkriashnaiah Sons v. State of Andhra Pradesh, AIR 1976 Andh Pradesh 193)" In view of the aforesaid observations of the Honble Supreme Court, the action of the University cannot be said to be invalid merely on the ground that the Act under which the University was established has been quashed by the Honble Supreme Court. 10 The communication relied upon by the respondents from the Kurukshetra University also cannot be said to be final word on the issue. This communication is admittedly post Supreme Court judgment. There is nothing on record to indicate that the degree acquired by the petitioner prior to the judgment is not recognized or cannot be recognized. This is particularly so in view of the communication dated 19.1.2004 issued from the Ministry of Human Resource Development. In view of the above circumstances, both the writ petitions are allowed. The respondents are directed to appoint the petitioners on the basis of their merit in the selection within a period of two months. The petitioners shall be entitled to the seniority on the basis of his merit in the selection, though the petitioners shall not be entitled to any monetary benefits. However, their salary shall be fixed giving them the notional benefits of increments or any other benefits, as may be allowed to other similarly situated candidates. A copy of this order be placed on record on each concerned file.