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2015 DIGILAW 144 (UTT)

DEEPAK KUMAR SHARMA v. UNION OF INDIA

2015-03-17

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT : K.M. Joseph, C.J. (Oral) Since common questions arise in this batch of writ petitions, we are disposing of the same by a common judgment. 2. Petitioners were appointed by the Ordinance Factory Board in various posts, which can be described broadly as semi-skilled. The post of Charge-man is to be filled up through three sources of recruitment, namely, by promotion based on seniority from amongst persons serving in the feeding cadre, i.e. Master Craftsman and Highly skilled. Secondly, it can also be filled up by direct recruitment to the extent of 25 per cent and balance 25 per cent by Limited Department Comparative Examination (hereinafter referred to as LDCE). Any person, who has served as semi-skilled for two years, can participate in LDCE provided he possesses the qualification of Diploma in Engineering. According to the petitioners, they sought permission of the competent Authority to pursue Diploma course through Distant Mode from IASE Deemed University. They took admission in Diploma course and they completed the course and obtained the Diploma. However, by proceedings of the employer, they were not permitted to take the examination on the score that the Diploma, which they have obtained through Distant learning, falls short of the requirement under the Rules and the advertisement. It is feeling aggrieved that they approached the Tribunal. The Tribunal, however, rejected their contentions and dismissed the petitions. Hence, it is that they are before us. 3. We have heard Mr. Manoj Tiwari & Mr. V.B.S. Negi, learned Senior counsel for the petitioners as also Mr. Rakesh Thapliyal, Assistant Solicitor General for Union of India. 4. The Applications of the petitioners stand rejected for the reason that the Certificate in Mechanical Engineering possessed by the petitioners was not issued by an authorized Institution, which means an Institution, which was having affiliation from the AICTE. The Tribunal has noted that the order, which was impugned before it declaring the petitioners as ineligible to appear in LDCE for the year 2011-12 was in accordance with the provisions in the Statutory Recruitment Orders framed by the Department and, therefore, there is no infirmity with the impugned orders. The Tribunal further notes that the SROs, based upon which the advertisement for the examination has been issued, was not challenged in the original applications and, as long as they continue to exist in the present form, the respondents will have to follow its provisions. The Tribunal further notes that the SROs, based upon which the advertisement for the examination has been issued, was not challenged in the original applications and, as long as they continue to exist in the present form, the respondents will have to follow its provisions. The action of the respondent was found to be in conformity with the provisions of the SR Rules and in term of the relevant advertisement, and there was no ground found to interfere with the impugned order. 5. Mr. Manoj Tiwari, learned Senior counsel for the petitioners in most of these cases would contend that the Tribunal has not considered the effect of the Hon’ble Apex Court in its judgment in Bharathidasan University & another v. AICTE reported in AIR 2001 SC 2861 . 6. According to him, the decision of the Hon’ble Apex Court in Bharathidasan University establishes the principle that AICTE is not intended to be an authority, which can control the Universities and, therefore, it is his contention that insofar as the degrees, which have been obtained by the petitioners are concerned, same being issued by the Universities in terms of the judgment of the Hon’ble Apex Court in Bharathidasan University case, they do not require affiliation with the AICTE and consequently, the Tribunal ought to have found that the qualification obtained by the petitioners through the Distant Mode Education was sufficient to render them eligible. 7. The Tribunal took note of the judgment of the Hon’ble Apex Court in Bedanga Talukdar Vs. Saifudaullah Khan reported in 2011 (12) SCC 85 , wherein the Court, inter alia, held as follows: “…It is a settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and / or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement…” 8. The Tribunal also notes that there is no mention made of any power of relaxation. The Tribunal also makes reference to the judgment of the Single Bench of the High Court of Punjab and Haryana, wherein similar Diploma was held to be valid. The Division Bench, however, interfered with the judgment of the Single Judge. The matter is, however, pending before the Hon’ble Apex Court in a Special Leave Petition. The Tribunal also makes reference to the judgment of the Single Bench of the High Court of Punjab and Haryana, wherein similar Diploma was held to be valid. The Division Bench, however, interfered with the judgment of the Single Judge. The matter is, however, pending before the Hon’ble Apex Court in a Special Leave Petition. The Tribunal refers to the stay order passed by the Hon’ble Apex Court in the SLP. The Tribunal also has rejected the plea for equal treatment with one Sri D.K. Malvia, who had also obtained Diploma in Engineering through Distant Education Mode on the basis that an erroneous decision can not be permitted to be perpetuated further and it has in our view rightly relied on the judgments of the Hon’ble Apex Court in State of Bihar Vs. Upendra Narayan Singh & Ors. reported in 2009 (5) SCC 65 and in Hospital and Health Care (P) Ltd. Vs. U.O.I. & Ors reported in 1997 (1) SCC 759 . It is also relevant to note that the Tribunal has noted that the SLP pending in the Hon’ble Supreme Court deals with the larger issue that is whether the technical diploma obtained through Distant Education Mode would render persons eligible for employment in different organizations of the Government. 9. Learned Senior counsel would point out that orders have been issued by the Central Government rendering the qualifications possessed by the petitioners, namely, Diploma in Mechanical Engineering through Distant Mode as sufficient for the purpose of employment in the Government Institutions and therefore, the petitioners should succeed. We are not impressed by this argument. We are of the view that this is a case, where the petitioners are governed by statutory rules prescribing qualifications for the purpose of rendering them eligible to participate in the examination for promotion to 25 per cent quota for the post of Charge-man. According to the qualifications fixed, they should have diploma in the concerned Branch from an Institution, which stands affiliated through AICTE. In this case, in the teeth of the qualification, which has been expressed by the employer through statutory rules and which has been repeated and reiterated in the advertisement as found by the Tribunal, the author of the impugned order has acted in strict compliance with the dictate of the Rules and the advertisement. In this case, in the teeth of the qualification, which has been expressed by the employer through statutory rules and which has been repeated and reiterated in the advertisement as found by the Tribunal, the author of the impugned order has acted in strict compliance with the dictate of the Rules and the advertisement. What is of significance in disposing of these matters is that the petitioners have not chosen it fit to impugn the statutory rules and the advertisement as noted by the Tribunal. Having failed to challenge the Rules, any action, which has been taken in terms of the Rules, cannot be allowed to be challenged by only impugning the action taken under the Rules, which action, in turn, is in strict conformity with the Rules. 10. Learned Senior counsel for the petitioners would submit that the statutory rules predicates for affiliation by AICTE and, under the AICTE Act, there is no provision for affiliation and it only provides for approval. We are not called up to decide this issue. We think that we need not consider this issue in the absence of any challenge to the Rules. 11. Learned Senior counsel would then make an attempt to persuade us to set aside the order and to remit the matter back for the purpose of amending the Original Applications. We are not persuaded to accept the request in this proceeding under Article 226 of the Constitution of India to remit the matter back for the purpose of amending the Original Applications. Resultant position is, we find that no illegality has been committed by the Tribunal and all the writ petitions will stand dismissed. There will be no order as to costs.