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2016 DIGILAW 553 (JK)

Narjees Nawab v. State of J&K

2016-10-21

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

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JUDGMENT : Tashi Rabstan, J. 1. J&K State Public Service Commission-Respondent No. 4, issued Notification No. 03-PSC of 2010 dated 28th May 2010, inviting applications for filling up the posts of Assistant Legal Remembrancers and Public Law Officer. The qualification prescribed for the said posts was Bachelor's Degree in Law from a recognised University with two years actual practice at Bar. Appellant responded thereto. Posts of Assistant Legal Remembrancers, Public Law Officer and Assistant Draftsmen (Translation), advertised vide Notification No. 03-PSC of 2010 dated 28th May 2010 by respondent No. 4, came to be amalgamated and made part of J&K Legal (Gazetted) Service vide Government Order No. 1884-LD(Estt) of 2010 dated 26th August 2010 and as a consequence thereof Notification No. 03-PSC of 2010 dated 28th May 2010, issued by respondent No. 4 was withdrawn ab initio. This was followed by issuance of fresh Notification bearing No. 14-PSC of 2010 dated 24th September 2010, inviting applications for filling up the said posts. However, it was made clear that those candidates who had already applied in response to earlier notification bearing No. 03-PSC of 2010 dated 28th May 2010, need not apply again. The notification also provides essential qualification as Bachelor's Degree in Law from a recognized University with two years actual practice at Bar. Besides, the candidates, who claim to possess any additional qualification, were advised to furnish the certificate to that extent along with the application form. 2. Appellant, possessing Master's in Law (LLM) from Directorate of Distance Education Kurukshetra University, Kurukshetra Haryana, intimated respondent No. 4, accordingly. 3. Respondent No. 4 vide Notice dated 11th November, 2010 notified that Screening Test for the aforesaid posts would be conducted on 19th December 2010 and 9th January 2011 and that the candidates possessing qualification higher than one prescribed, could seek exemption from screening test whenever the respondent Commission conduct such test for shortlisting and such candidates would be over and above the shortlisted candidates on the basis of screening test. However, the said Notice contains a Note (4) that "Degree/Higher Degrees through distance mode shall not be entertained/considered except those obtained through IGNOU/DOEACC/Jammu University/Kashmir University". However, the said Notice contains a Note (4) that "Degree/Higher Degrees through distance mode shall not be entertained/considered except those obtained through IGNOU/DOEACC/Jammu University/Kashmir University". Dissatisfied with the said Note appended to the Notice dated 11th November 2010, appellant filed writ petition (SWP No. 173/2010), seeking following relief: "a) Writ of Certiorari, quashing impugned note in the impugned notification dated 11.1.2010 issued by respondent No. 4 inasmuch as it excludes LLM Degree of petitioner from seeking exemption from screening test for the posts of Assistant Remembrancer/Public Law Officer; (b) Writ of Mandamus, commanding respondents to treat degree of LLM obtained by petitioner from Directorate of Distance Education, Kurukshetra University, Haryana, as valid and at par with the degrees of IGNOU, DOEACC, University of Kashmir and University of Jammu and consequently allow the petitioner to compete for the posts of Assistant Remembrancer/Public Law Officer." 4. When writ petition came up for consideration before the Writ Court on 20th December 2010, respondents were directed to exempt the petitioner from screening test with rider that same shall be at own risk and responsibility and subject to outcome of CMP. Petitioner, in view of the said direction, appeared in interview conducted by respondent No. 4. 5. Learned Writ Court vide judgement and order dated 24th September 2013 dismissed the writ petition. 6. Writ Court judgment is called in question in Letters Patent Appeal on hand on the grounds urged in the memo of Appeal. 7. We have gone through writ court judgment, grounds set out in the memo as also the writ record. We have heard learned counsel for parties. 8. Learned counsel for appellant while dilating the arguments invites attention of this Court to Notification No. F. 18-15/93-TD.V.TS.ID dated 1st March 1995, issued by Ministry of Human Resources Development (Department of Education), notifying that on the recommendation of the Board of Assessment for Educational Qualifications, the Government of India has decided that all qualifications awarded through Distance Education by the Universities established by an Act of Parliament or State Legislature, Institutions Deemed to be Universities under Section 3 of the UGC Act, 1956, and Institutions of National Importance declared under an Act of Parliament stand automatically recognized for the purpose of employment to posts and services under the Central Government, provided it has been approved by Distance Education Council, IGNOU. Learned counsel, in continuation thereto, seeks glance of Status List of Approved Autonomous Colleges as on 30.05.2013 (Annexure K to Appeal), in which the University, wherefrom appellant has qualified LLM viz. Kurukshetra University, Haryana figures at Serial No. 6. He also exhorts a glimpse of Recognition accorded by the Distance Education Council to the Universities/Institutions for offering Programmes through Distance Mode (Annexure L to Appeal). In the said List, Kurukshetra University, Haryana, figures at Serial No. 52. Amongst other programmes/courses, LLM course is also mentioned as against Kurukshetra University, Haryana. Learned counsel states that issuance of 1Govt. Order No. 252-HE of 2012 dated 30th May 2012 is clarification and recognition to the degrees obtained through distance mode and approved by respondents 2 & 3, for the purpose of employment within the State. To further strengthen appellant's case, learned counsel takes us to letter bearing F. No. DEC/KU/KUK/HAR/2009/5000 dated 29th December 2009 as also letter dated 4th August 2010 of Indira Gandhi National Open University, addressed to the Registrar of Kurukshetra University, Haryana, intimating therein that based on the recommendation of the Standing Committee of DEC that evaluated the application of the university, the Distance Education Council has accorded Ex-Post-Facto approval to the University for programmes offered through distance mode with effect from 1995 and the certificates issued by the University stand automatically recognised and also recognition for a period of three years w.e.f. academic year 2010-11 to academic year 2012-13 for offering various programmes, including LLM, through distance education mode. To again reinforce appellant's case, learned counsel refers to order dated 23rd August 2013 passed by learned Writ Court, in which it is clear that learned appearing counsel for respondent University Grands Commission stated that Kurukshetra University, Haryana, is a recognised university. Further contention of learned counsel for appellant is that Jammu University has granted authorisation for recognising the correspondence courses of the Universities, recognised by University Grants Commission (UGC) on reciprocal basis and that the LLM Degree earned by appellant through distance mode, therefore, stands already recognised by University of Jammu. The respondents, according to him, are obliged to recognise the same for purpose of employment in the State of Jammu and Kashmir. 9. Learned counsel for respondents state that [2012 (16) JK Statutes JK-30 : JKS Soft JKS/8422]Govt. The respondents, according to him, are obliged to recognise the same for purpose of employment in the State of Jammu and Kashmir. 9. Learned counsel for respondents state that [2012 (16) JK Statutes JK-30 : JKS Soft JKS/8422]Govt. Order No. 252-HE of 2012 dated 30th May 2012 does not recognise LLM Degrees obtained through correspondence from Kurukshetra University or such other universities for the purpose of appointment to any post under the J&K Legal Gazetted Services Rules, 1980, and that the Government has not recognised LLM Degrees obtained through distance mode from any outside University including Kurukshetra University for purposes of selection to the said post. They further aver that the courses offered by the Kashmir/Jammu Universities in their respective areas of jurisdiction and the courses of study offered with affiliation of IGNOU/DOEAC are the only recognised courses. 10. Govt. Order No. 252-HE of 2012 dated 30th May 2012 provides that the degrees, obtained through distance education mode, which have been approved by the Distance Education Council and awarded from their headquarters, established by an Act of State Legislature, shall be recognized for the purpose of employment. Respondents' stand in opposition to appellant's case is that only those degrees, obtained through distance mode from Kashmir/Jammu Universities and the courses of study offered with affiliation of IGNOU/DOEAC are to be considered for employment in the J&K State. 11. A glance of Notification No. F.18-15/93-TD.V.TS.ID dated 1st March 1995, issued by Ministry of Human Resources Development (Department of Education), reveals that on the recommendation of the Board of Assessment for Educational Qualifications, the Government of India has decided that all qualifications awarded through Distance Education by the Universities established by an Act of Parliament or State Legislature, Institutions Deemed to be Universities under Section 3 of the UGC Act, 1956, and Institutions of National Importance declared under an Act of Parliament stand automatically recognized for the purpose of employment to posts and services under the Central Government, provided it has been approved by Distance Education Council, IGNOU. This takes us to the University (Kurukshetra University), wherefrom appellant claims to have earned LLM Degree. 12. A bare reading of the Status List of Approved Autonomous Colleges as on 30.05.2013 (Annexure K to Appeal), issued by University of Grants Commission (UGC) discloses the names of States and names of Universities, approved by University Grants Commission. Appellant has earned LLM Degree from the Kurukshetra University. 12. A bare reading of the Status List of Approved Autonomous Colleges as on 30.05.2013 (Annexure K to Appeal), issued by University of Grants Commission (UGC) discloses the names of States and names of Universities, approved by University Grants Commission. Appellant has earned LLM Degree from the Kurukshetra University. It figures at serial No. 6 against the State of Haryana and the only University falling in the Haryana State, which has been recognised by the UGC. Germane to be seen is State of Jammu & Kashmir. It figures at serial No. 8 and it has two Universities, viz. University of Jammu and University of Kashmir. In that view of matter, the University wherefrom the appellant has earned LLM Degree is a recognised University with UGC. 13. Another List worth to be seen on the Appeal record is the "Recognition accorded by the Distance Education Council to the Universities/Institutions for offering programmes through Distance Mode" - Annexure L to writ petition. In the said List, Kurukshetra University figures at Serial No. 52 as against the State of Haryana and it appears that the said University has recognition from the year 1995 for various courses including LLM. The University of Jammu and University of Kashmir in the said List figure at Serial Nos. 59 and 60 respectively, as against the State of Jammu and Kashmir. Their recognition is shown from 2007-2008. Therefore, the Kurukshetra University is a recognised University with Distance Education Council (DEC) and so is the degree(s), including appellant's. 14. Letters bearing F. No. DEC/Univ/State/07/5555 dated 31st August 2007, F. No. DEC/KUK/Har/08/16377 dated 17th November 2008, F. No. DEC/KU/KUK/HAR/2009/5000 dated 29th December 2009 and F. No. DEC/Recog/2010/229 dated 4th August 2010 of Indira Gandhi National Open University, addressed to Kurukshetra University, intimating therein that based on the recommendation of the Standing Committee of DEC that evaluated the application of the university, the Distance Education Council has accorded Ex-Post-Facto approval to the University for programmes offered through distance mode with effect from 1995 and the certificates issued by the University stand automatically recognised for offering various programmes, including LLM, through distance education mode. Thus, the recognition of Kurukshetra University, wherefrom appellant has earned LLM Degree, is proved. 15. Notification dated 19th July 2007, issued by Jammu University, is again another aspect of the matter that needs to be looked into. Thus, the recognition of Kurukshetra University, wherefrom appellant has earned LLM Degree, is proved. 15. Notification dated 19th July 2007, issued by Jammu University, is again another aspect of the matter that needs to be looked into. In the said Notification, the Jammu University has notified that based on the recommendations of the Standing Committee of the Academic Council at its meeting held on 10th May 2006 and in anticipation of the approval of the Competent Authority, the Vice-Chancellor authorises grant of recognition to the courses of those Universities only which are recognized by the University of Grants Commission (UGC) and are the members of the Association of Indian Universities, New Delhi as equivalent to the corresponding courses of this University on reciprocal basis. 16. A contention during course of argumentation has been taken that appellant tries to lend support to her claim on the edifice of Government Order No. 252-HE of 2012 dated 30th May 2012, providing degrees obtained through distance mode, approved by Distance Education Council, shall be recognised for the purposes of employment and that the said order had been sought to be pressed into service and benefit sought to be derived therefrom after conclusion of the selection process i.e. conclusion of the interview in April 2011 and that the aforesaid Government order has been passed after conclusion of interview to the post in question without there being any provision/stipulation in the said Government order for its retrospective effect. In this regard it is pertinent to point out here that a person/student is called or declared a 'Degree Holder' only from the date he/she qualifies and/or receives the 'Degree Certificate' and not anterior or posterior thereto. In simple words, the validity or utility of a degree or diploma certificate, issued by any University cannot be curtailed or restricted from the date of issuance of Government Order or a Certificate by the Equivalence Committee prospectively for the purpose of recruitment to a particular post. In simple words, the validity or utility of a degree or diploma certificate, issued by any University cannot be curtailed or restricted from the date of issuance of Government Order or a Certificate by the Equivalence Committee prospectively for the purpose of recruitment to a particular post. Moreover, in the present case, Government order No. 252-HE of 2012 dated 30th May 2012 does not confine validity of the degrees obtained by candidates to operate prospectively, therefore, the vested rights are created from the date of acquisition of degree(s) of Government Order No. 252-HE of 2012 dated 30th May 2012, providing degrees obtained through distance mode, approved by Distance Education Council, shall be recognised for the purposes of employment and that the said order had been sought to be pressed into service and benefit sought to be derived therefrom after conclusion of the selection process i.e. conclusion of the interview in April and that the aforesaid Government order has been passed after conclusion of interview to the post in question without there being any provision/stipulation in the said Government order for its retrospective effect. In this regard it is pertinent to point out here that a person/student is called or declared a 'Degree Holder' only from the date he/she qualifies and/or receives the 'Degree Certificate' and not anterior or posterior thereto. In simple words, the validity or utility of a degree or diploma certificate, issued by any University cannot be curtailed or restricted from the date of issuance of Government Order or a Certificate by the Equivalence Committee prospectively for the purpose of recruitment to a particular post. Moreover, in the present case, Government order No. 252-HE of 2012 dated 30th May 2012 does not confine validity of the degrees obtained by candidates to operate prospectively, therefore, the vested rights are created from the date of acquisition of degrees. The respondents cannot take a stand that the degree obtained by appellant will only have prospective effect from the date of issuance of Government order. When the Government order does not consistently mention the effect of the validity of the degree, it is not proper to hold prospective by any one, more so, by the Court. Regard being had from the Full Bench judgement dated 29th November 2013, of Madurai Bench of Madras High Court in Nadar Thanga Shubha Laxman, A. v. The State of Tamil Nadu & Anr. Regard being had from the Full Bench judgement dated 29th November 2013, of Madurai Bench of Madras High Court in Nadar Thanga Shubha Laxman, A. v. The State of Tamil Nadu & Anr. reported in 2014 (3) CTC 433. 17. During pendency of the Appeal on hand, vide order dated 08.10.2013, one post of Assistant Legal Remembrancer/Public Law Officer was directed not to be filled up. This Court by order dated 08.06.2016, granted time to learned counsel for respondent Commission to submit the Merit List to find out as to whether appellant is placed at Serial No. 1 in the Merit List after interview. 18. The merit/result of the appellant has been furnished by learned counsel for respondent Commission, in a sealed cover, which has been unsealed in the Open Court and kept on record. Perusal thereof reveals that appellant has secured 60.16 points. This takes us to Notification No. 34-PSC(DR-S) of 2013 dated 5th September 2013, (Annexure H to Appeal), whereby Select List for the posts of Assistant Legal Remembrancer/Public Law Officer, Law and Parliamentary Affairs Department, has been issued by respondent Commission. A glimpse whereof divulges that 15 posts of Assistant Legal Remembrancer/Public Law Officer under different categories were referred to respondent Commission, which were advertised by respondent Commission. The notification mentions that there was no restraint for finalisation of selection process. However, respondent Commission kept on hold selection against one post till outcome of writ petition (SWP No. 1773/2010) filed by present appellant. On the basis of performance in the interview coupled with the weightage in respect of academic merit, experience and other parameters, select list of 14 candidates was released against available posts of Assistant Legal Remembrancer/Public Law Officer. The Select List depicts that the meritorious candidate figuring at serial No. 1 has secured 60.19 points whereas the candidate figuring at serial No. 2 secured 56.99. The present appellant has secured 60.16. Therefore, she takes second slot amongst the meritorious/selected candidates and is to be considered, as such. 19. For all what has been discussed above, the Appeal succeeds and is hereby allowed. Writ Court judgement and order dated 24th September 2013 is set-aside. As a corollary, writ petition succeeds and is, accordingly, allowed. Note (4) viz. Therefore, she takes second slot amongst the meritorious/selected candidates and is to be considered, as such. 19. For all what has been discussed above, the Appeal succeeds and is hereby allowed. Writ Court judgement and order dated 24th September 2013 is set-aside. As a corollary, writ petition succeeds and is, accordingly, allowed. Note (4) viz. "Degree/Higher Degrees through distance mode shall not be entertained/considered except those obtained through IGNOU/DOEACC/Jammu University/Kashmir University" in the Notice dated 11th November 2010, issued by J&K Public Service Commission, by writ of Certiorari, is quashed. As the relief clause (B) of writ petition has been, herein above, decided in affirmative and appellant having already competed in selection process for post of Assistant Legal Remembrancer/Public Law Officer, and she having earned grade at slot No. 2 in Select List, respondents to consider and offer appointment to appellant against the post of Assistant Legal Remembrancer/Public Law Officer, which has remained vacant in terms of this Court order dated 08.10.2013. Disposed of.