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2015 DIGILAW 2092 (RAJ)

Ashish Kumar Singh v. State of Rajasthan

2015-12-16

VEERENDR SINGH SIRADHANA

body2015
JUDGMENT 1. - Aggrieved of the denial of appointment to the post of Junior Engineer Civil in spite of having secured 55.11% marks while according appointment to candidates far below than the petitioner with lower percentage of marks; the petitioner has instituted the present writ petition, praying for the following relief(s): "(i) direct the respondents to give appointment to the petitioner on the post of Junior Engineer (Civil) with all consequential benefits. (ii) declare the action of the respondents granting appointment to the lesser meritorious persons bad in law. (iii) Any other appropriate order which may be found just and proper in the facts and circumstances of the case be passed in favour of the petitioner." 2. Briefly, the skeletal material facts necessary for appreciation of the controversy are that the petitioner submitted his application for consideration of his candidature for appointment to the post of Junior Engineer Civil against 148 posts. It is pleaded case of the petitioner that in the list of successful candidates drawn by the State-respondents, his name found place at serial No. 155 with 55.11% marks. Name of respondent No.3 (Siddharth Jandu) was indicated at serial No.161 with 54.93% marks in the OBC 'Male Category'. 3. Learned counsel, Mr. Manish Kumar Sharma, appearing on behalf of the petitioner, reiterating the pleaded facts and grounds of the writ application further submits that in the order dated 23rd September, 2013, appointment has been accorded to respondent No.3 (Siddharth Jandu), who is a candidate of OBC category, treating him in 'General Male' in the final merit whereas the petitioner has been declined appointment. 4. According to the learned counsel, denial of appointment to the petitioner ostensibly on the ground that he is not in possession of the required educational qualification for he has passed the Civil Engineering from Dr. Bhimrao Ambedkar University, Agra, which is not affiliated/recognised from All India Council for Technical Education, (for short, 'AICTE'), New Delhi, is absolutely illegal, arbitrary and contrary to the law declared by the Hon'ble Supreme Court in the case of Bharathidasan University and Another v. All India Council for Technical Education and Others: (2001) 8 SCC 676 , wherein the Hon'ble Supreme Court held that a University is not required to obtain prior approval of AICTE for starting a department or unit as an adjunct to the University itself to conduct technical education courses of its choice. 5. 5. In response to the notice of the writ application, the State-respondents have filed their counter affidavit, reiterating the stand that the petitioner is not in possession of a valid educational qualification for appointment to the post of Junior Engineer (Civil/Mechanical/Electrical) owing to the fact that the Degree of Civil Engineering from Dr. Bhimrao Ambedkar University, Agra, is not a recognised qualification for want of its affiliation/recognition from AICTE, New Delhi. 6. Learned counsel, appearing on behalf of the State-respondents, Mr. B.L. Awasthi, Addl. G.C., asserted that while it may not be necessary to obtain prior approval of the AICTE to start a department or commence a new course or programme in technical education but the Universities are obliged to conform to the standards and norms laid down by the AICTE for the purpose of ensuring coordinated and integrated development of technical education and maintenance of standards, as has been observed by the Hon'ble Supreme Court in the case of Bharathidasan University and Another (supra). 7. Mr. Vineet Mehta, appearing for respondent No.3- Siddharth Jandu, submits that respondent No.3 submitted his application under the OBC category, while he has been indicated in the category of 'General Male' in the final merit indicating selection Category, as would be reflected from the order dated 23rd September, 2013. 8. It is further urged that there are many other candidates of OBC Category with less merit and marks than the respondent No.3, namely Dhirendra Gurjar, whose name appears at serial No.69, who obtained 54.19% marks. Similarly, Atul Parihar and Ankit Kumar, whose names appear at serial No.72 and 74, are also candidates of OBC category, having secured 53.75% marks and 53.74% marks. Therefore, it was necessary for the petitioner to implead a candidate of 'General Category' to the writ proceedings rather than the respondent No. 3. 9. While filing rejoinder to the reply, the learned counsel for the petitioner has heavily placed reliance on the opinion of the Hon'ble Supreme Court in the case of Bharathidasan University and Another (supra). 10. Therefore, it was necessary for the petitioner to implead a candidate of 'General Category' to the writ proceedings rather than the respondent No. 3. 9. While filing rejoinder to the reply, the learned counsel for the petitioner has heavily placed reliance on the opinion of the Hon'ble Supreme Court in the case of Bharathidasan University and Another (supra). 10. It is further contended that the somewhat similar controversy also fell for consideration before a Division Bench of this Court in a Public Interest Litigation; D.B. Civil Writ Petition (PIL) No.10037/2012 (Indrajeet Kathuria v. The State of Rajasthan & Ors.), decided on 13th August, 2012 , wherein the similar controversy was adjudicated upon disposing off the writ application, relying upon the opinion of the Hon'ble Supreme Court in the case of Bharathidasan University and Another (supra), observing that no prior approval from the AICTE is necessary under the Regulations of 2012 and admissions given by respondent No.5-Jaipur Engineering College and Research Centre (JECRC), could not be said to be illegal in any manner on that count. 11. I have heard the learned counsel for the parties and carefully perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 12. The factual matrix to the larger extent on the core issue is not in dispute. The petitioner successfully participated in the recruitment process in pursuance to the advertisement dated 2nd April, 2013, against 148 vacant posts of Junior Engineer Civil and found place in the merit list at serial No.155 with 55.11% marks. 13. It is also not in dispute that the petitioner has been denied appointment only for the reason that the Degree of Civil Engineering acquired by the petitioner from Dr. Bhimrao Ambedkar University, Agra, is not recognised by AICTE, New Delhi. The reason pleaded and argued while declining appointment to the petitioner for the Degree obtained from Dr. Bhimrao Ambedkar University, Agra, is not a recognised Institute by AICTE, New Delhi, cannot be sustained for what has been held by the Hon'ble Apex Court of the land in the case of Bharathidasan University (supra), wherein the Hon'ble Supreme Court held thus: 10. Bhimrao Ambedkar University, Agra, is not a recognised Institute by AICTE, New Delhi, cannot be sustained for what has been held by the Hon'ble Apex Court of the land in the case of Bharathidasan University (supra), wherein the Hon'ble Supreme Court held thus: 10. Since it is intended to be other than a University, the Act defines in Section 2(1) 'University' to mean a University defined under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and also to be inclusive of an institution deemed to be a University under Section 3 of the said Act. Section 10 of the Act enumerates the various powers and functions of the AICTE as also its duties and obligations to take steps towards fulfilment of the same. One such as envisaged in Section 10(1)(k) is to "grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. Section 23, which empowers the Council to make Regulations in the manner ordained therein emphatically and specifically, mandates the making of such Regulations only "not inconsistent with the provisions of this Act and the rules". The Act, for all purposes and throughout maintain the distinct Identity and existence of 'technical institutions' and 'universities' and It is in keeping tune with the said dichotomy that wherever the University or the activities of the University is also to be supervised or regulated and guided by the AICTE, specific mention has been made of the University along side the technical institutions and wherever the University is to be left out and not to be roped in merely refers to the technical institution only in Sections 10, 11 and 22(2)(b). It is necessary and would be useful to advert to Section 10(1)(c), (g), (o) which would go to show that Universities are mentioned along side the 'technical institutions' and Clauses (k), (m), (p), (q), (s) and (u) wherein there is conspicuous omission of reference to Universities and reference being made to technical institutions alone. It is equally important to see that when the AICTE is empowered to inspect or cause to inspect any technical institutions in Clause (p) of Sub-section (1) of Section 10 without any reservation whatsoever, when it comes to the question of universities it is confined and limited to ascertaining the financial needs or its standards of teaching, examination and research. It is equally important to see that when the AICTE is empowered to inspect or cause to inspect any technical institutions in Clause (p) of Sub-section (1) of Section 10 without any reservation whatsoever, when it comes to the question of universities it is confined and limited to ascertaining the financial needs or its standards of teaching, examination and research. The inspection may be made or cause to be made of any department or departments only and that too, in such manner as may be prescribed as envisaged In Section 11 of the Act. Clause (t) of Subsection (1) of Section 10 envisages the AICTE to only advice the UGC for declaring any institution imparting technical education as a deemed University and not do any such, thing by itself. Likewise, Clause (u) of the same provision which envisage the setting up of a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it to make recommendation to it, or to the Council, or to the Commission or to other bodies, regarding recognition or de-recognition of the institution or the programme. All these vitally important aspects go to show that the AICTE created under the Act is not intended to be an Authority either superior to or supervise and control the Universities and thereby super impose itself upon such Universities merely for the reason that it is imparting teaching in technical education or programmes in any of its Departments or Units. A careful scanning through of the provisions of the AICTE Act and the provisions of the UGC Act in juxtaposition, will show that the role of AICTE vis-a-vis the Universities is only advisory, recommendatory and a guiding factor and thereby subserve the cause of maintaining appropriate standards and qualitative norms and not as an authority empowered to Issue and enforce any sanctions by itself, except submitting a Report to the UGC for appropriate action. The conscious and deliberate omission to enact any such provision in the AICTE Act in respect of Universities is not only a positive indicator but should be also one of the determining factors in adjudging the status, role and activities of AICTE vis-a-vis Universities and the activities and functioning of its departments and units. The conscious and deliberate omission to enact any such provision in the AICTE Act in respect of Universities is not only a positive indicator but should be also one of the determining factors in adjudging the status, role and activities of AICTE vis-a-vis Universities and the activities and functioning of its departments and units. All these vitally important facets with so much glaring significance of the scheme underlying the Act and the language of the various provisions seem to have escaped the notice of the learned Judges, their otherwise well-merited attention and consideration in their proper and correct perspective. The ultra activist view articulated in M. Sambasiva Rao's case (1997 (1) Andh LT 629) (supra) on the basis of supposed intention and imagined purpose of the AICTE or the Act constituting it. is uncalled for and ought to have been avoided, all the more so when such an interpretation is not only bound to do violence to the language of the various provisions but also inevitably render other statutory authorities like UGC and Universities irrelevant or even as nonentities by making the AICTE a super power with a devastating role undermining the status, authority and autonomous functioning of those institutions in areas and spheres assigned to them under the respective legislations constituting and governing them. 11. In Unni Krishnan's case (1993 AIR SCW 863 : AIR 1993 SC 2178 ) (supra), this Court was not concerned with issues of the nature now sought to be raised and the observations made therein in the context of disputes pertaining to the powers, rights and extent to which the State Legislature or Government could interfere, regulate or prohibit the rights to establish and run professional colleges cannot be taken out of their context and purpose to be pressed into service in this case. As a matter of fact, even this Court, which formulated a scheme to prevent evils of capitation fees etc., specifically excluded from its purview colleges run by the Government and the Universities. Equally, the consideration in Adhiyaman Engineering College case (supra), the question was as to the relative scope and extent of control of a professional engineering college by the State Government in the teeth of the AICTE Act and the powers exercisable by the AICTE under the provisions of the said Act, Rules and Regulations made there under. Equally, the consideration in Adhiyaman Engineering College case (supra), the question was as to the relative scope and extent of control of a professional engineering college by the State Government in the teeth of the AICTE Act and the powers exercisable by the AICTE under the provisions of the said Act, Rules and Regulations made there under. The decisions, the correctness of which are under our consideration in this case, have not kept into consideration before the nature and character of the issues raised in the two decisions of this Court noticed above before relying upon the observations contained therein in dealing with the rights of an university constituted under a State enactment, which; apart from the enactment constituting it, is governed by the provisions of the UGC Act, also made by the Parliament. The decision of the Andhra Pradesh High Court in M. Sambasiva Rao's case (1997 (1) Andh Pra 629) (supra) has unduly oversimplified and underscored the status, position, as well as the importance of the UGC by sating that the UGC was concerned only with the object of providing grants and financial assistance to educational institutions and serving as a recommendatory and regulatory body completely loosing sight of its superior, vital and exclusive role ordained to it by the Parliament itself as an expert body in regard to "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions", and the standards of teaching and examination in Universities, even in the absence of the UGC and that too without a proper and comparative consideration of the relative scope and effect of the respective role of the UGC as well as the AICTE. 12. 12. It is by now well-settled that Parliament has enacted the University Grants Commission Act, 1956 as well as the AICTE Act, 1987 in the purported exercise of the powers envisaged in Entry 66 of List-I of the VIIth Schedule to the Constitution of India, when reads as "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions." It was permissible for the Parliament to enact a law with the object and aim of co-ordination and determination of standards among a particular class or category of institutions, which may deal with different kinds of education and research as also scientific and technical institutions of different disciplines and specialised branches of even such disciplines. The Parliament, while enacting the AICTE Act, was fully alive to the existence, in full force and effect the provisions of the UGC Act, 1956, which specifically dealt with the coordination and determination of standards at university level of institutions as well as institutions for higher studies of the category or class other than but deemed to be universities and yet roped into the definition of "technical institution" only institutions not being a University as defined in Section 2(i). Apart from so defining technical institutions so as to be exclusive of University even in empowering the AICTE to do certain things, special care seems to have been conspicuously and deliberately taken to make specific mention of universities, wherever and whenever alone the AICTE was expected to interact with Universities and University Departments as well as its constituent institutions. In the statement of objects to the AICTE Act, the evil sought to be curbed was stated to be the coming up indiscriminately of number of private engineering colleges and polytechnics in complete disregard of the guidelines resulting in diluted standards, unplanned growth, inadequate facilities and lack of infrastructure facilities in them and not of any anomalies arising out of any university bodies of UGC to even think of either sidelining or subjugating them by constituting AICTE. The guarded language employed for the said purpose and deliberate omission to refer to the universities in Section 10(1)(k) of the AICTE Act while empowering AICTE to accord approval for starting new technical institutions and introduction of new programmes or courses by or in such institutions cannot be ignored to be of any insignificance. The guarded language employed for the said purpose and deliberate omission to refer to the universities in Section 10(1)(k) of the AICTE Act while empowering AICTE to accord approval for starting new technical institutions and introduction of new programmes or courses by or in such institutions cannot be ignored to be of any insignificance. A careful analysis of the various provisions contained in Sections 10,11 and 22 will further go to show that the role of interaction conferred upon AICTE vis-a-vis Universities is limited to the purpose of ensuring the proper maintenance of norms and standards in the technical education system so as to conform to the standards laid down by it, with no further or direct control over such universities or scope for any direct action except bringing it to the notice of the UGC or other authorities only, of any lapses in carrying out any directions of the AICTE in this regard, for appropriate action. While stating that autonomy of universities should not mean a permission for authoritarian functioning, the High Courts by the construction placed by them have virtually allowed such authoritarianism to the AICTE to such an extent as to belittle the importance and elegant role assigned to the universities in the Educational system of the country and rendered virtually subordinate to the AICTE. In our view, that does not seem to be the object of creating AICTE or passing of the AICTE Act. Such construction as has been placed by the Court in M. Sambasiva Rao's case (1997 (1) Andh LT 629) (supra) which found favour of acceptance of the Court in the present case ought to have been avoided and the same could neither be said to have been intended or was ever in the contemplation of the Parliament nor should the UGC and the universities been relegated to a role subordinate to the AICTE. The UGC and universities have always had and have an accepted and well-merited role of Primacy to play in shaping as well as stepping up a coordinate development and improvement in the standards of education and research in the sphere of education. When it is only institutions other than universities which are to seek affiliation, it was not correct to state in the decisions under challenge that an University, which cannot grant affiliation to a technical institution, cannot grant the same to itself. When it is only institutions other than universities which are to seek affiliation, it was not correct to state in the decisions under challenge that an University, which cannot grant affiliation to a technical institution, cannot grant the same to itself. Consequently, the conclusions rendered based on the principles for classifying enactments into 'general law' and 'special law' to keep them within their respective limits or area of operation are not warranted and wholly uncalled for and do not merit our approval or acceptance. 14. For the reasons and discussions aforesaid as well as in view of law declared by the Hon'ble Supreme Court in the case of Bharathidasan University (supra), this Court has no hesitation to hold that a University is not required to obtain prior approval of AICTE for starting a department or unit as an adjunct to the university itself to conduct technical education courses of its choice. 15. The Regulations framed under the All India Council for Education Act, 1987, to that extent have been held void and unenforceable by the Hon'ble Supreme Court in the case of Bharathidasan University (supra). No doubt that the University is obliged and is under duty to conform to the standards and norms laid down by the AICTE for the purpose of ensuring coordinated and integrated development of technical education and maintenance of standards. 16. Consequently, the writ application succeed and is hereby allowed. 17. In the result, the respondents are directed to consider the case of the petitioner for appointment if he is otherwise found suitable. 18. It is made clear that all the benefits shall be admissible to the petitioner on notional basis. 19. The State-respondents are directed to ensure compliance of this order within two months from the date of receipt of a certified copy of this order. 20. No costs.Writ petition dismissed. *******