Jyoti Gautam vs State of Himachal Pradesh and Others

Rajiv Sharma, J.—Petitioner sought admission in the course of Bachelor of Physiotherapy affiliated to Allahabad Agricultural Institute (Deemed University). She has passed examination of 1st semester in the month of August, 2005, 2nd semester in the month of April, 2006, 3rd semester in the month of September, 2006, 4th semester in the month of April, 2007, 5th and 6th semesters in the month of February, 2008, 7th semester in the month of August, 2008 and 8th semester in the month of March, 2009. The respondent-State issued an advertisement on 3.6.2011 whereby applications were invited for filling up the posts of Physiotherapist on contract basis through Rogi Kalyan Samiti on or before 6.7.2011. The minimum qualification prescribed for filling up the post of Physiotherapist was 10+2 with Medical Science or its equivalent from a recognized University/Board and the candidate should have also passed diploma in Physiotherapy from a recognized institution duly recognized by the Central/State Government.

The petitioner submitted an application. She participated in the selection process. She was called for interview on 12.4.2012. The result was declared on 17.4.2012. However, the petitioner could not be offered appointment since the credential and genuineness of the certificates obtained by the petitioner was to be gone into.

Mr. Ashwani Sharma has vehemently argued that the petitioner possesses essential qualification, as prescribed in the advertisement vide Annexure P-4. He then argued that the action of the respondents of not offering appointment to the petitioner is illegal, arbitrary and thus violative of Articles 14 and 16 of the Constitution of India.

Mr. Pramod Thakur, learned Additional Advocate General has strenuously argued that the petitioner did not possess essential qualification prescribed vide Annexure P-11.

I have heard the learned counsel for the parties and have perused the pleadings carefully.

The minimum qualification required for the post of Physiotherapist is diploma in Physiotherapy from a recognized institution duly recognized by the State/Central Government. There is no material placed on record by the petitioner that the diploma obtained by her from Allahabad Agricultural Institute (Deemed University) has been recognized by the State of Himachal Pradesh or Central Government.

The respondent-State has constituted a Committee in order to verify the credential and genuineness of the certificates of all the candidates whose names were recommended and sponsored for their appointment to the post of Physiotherapist. The State Government has offered appointment to all the candidates except the petitioner, who has obtained diploma of Physiotherapist from Allahabad Agricultural Institute (Deemed University). The Director Health Services has sent a communication to the Director, Distance Education Council on 26.5.2012 (Annexure P-14) regarding verification of the recognition of Allahabad Agriculture Institute (Deemed University). In sequel to Annexure P-14, the Director of the Indira Gandhi National Open University has sent a communication Annexure R-15 to the effect that the Allahabad Agriculture Institute (Deemed University) has been granted one-time post-facto approval as per the decision taken by the third Joint Committee of UGC, AICTE and DEC for the programmes approved by the statutory bodies of the University till 2005. Thereafter, the University has been accorded provisional recognition for one academic year, i.e. 2007-08 till the visit of the expert committee and submission of its recognition with certain conditions. It is further stated that the provisional recognition granted in the year 2007-08 continued till the University was granted regular programme wise recognition in the year 2009. In the last line of the communication, it is stated that Physiotherapy course through Distance Education mode was banned by UGC in May, 2010. Similar information was also sought by the petitioner from the Indira Gandhi National Open University.

What emerges from the reading of Annexure P-15 is that the Allahabad Agriculture Institute (Deemed University) has been granted one time post-facto approval only upto 2005. Thereafter, the University has been granted provisional recognition for one academic year, i.e. 2007-08. The petitioner sat in the examination in the academic sessions 2005-2006 and 2006-2007. There was no recognition for the years 2005-2006 and 2006-2007 by the Indira Gandhi National Open University. Petitioner''s two academic sessions were under cloud. The State Government had again sought the clarification from the Indira Gandhi National Open University to clarify its position whether Allahabad Agriculture Institute (Deemed University) was recognized for the sessions 2005-2006 and 2006-2007, but no information was supplied to it.

The matter is required to be considered from another angle. The Physiotherapist course is a paramedical course. The term "paramedical" has been explained by the Himachal Pradesh Paramedical Council Act, 2003 as under:

"Paramedical" means any person qualified in paramedical subject and who helps in teaching or practice of-

(i) medicine with in the meaning of clause (f) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956); or

(ii) medicine in Homoeopathy with in the meaning of clause (4) of section 2 of the Himachal Pradesh Homoeopathic Parishioners Act, 1979 (3 of 1980); or

(iii) medicine in Ayurvedic System and Unani System with in the meaning of clause (e) and (h) respectively of section 2 of the Himachal Pradesh Ayurvedic and Unani Practitioners Act, 1968 (2) of 1968).

The definition suggests that it is a technical course. The paramedical courses, nursing courses and engineering courses cannot be imparted through distance education. The candidates undertaking these courses have to attend the regular classes. The question whether the technical courses can be run by the distance education has been gone into by this Court in CWP No. 1771 of 2012-H decided on 31.12.2012. The Court has held as under:

Mr. Bhuvnesh Sharma has also argued that the degree awarded by the Indira Gandhi National Open University is valid for the purpose of employment in the State of Himachal Pradesh. Now, the Court will advert to the question of great public importance whether the Indira Gandhi National Open University can award degrees in technical courses like B.Sc. Nursing, diploma/degree in Engineering and other technical courses. The Board of Management of the Indira Gandhi National Open University has resolved on 19.7.1991 to insert Statute 28 in the Statutes of the University. According to Statute 28, Distance Education Council, has been constituted to take all such steps as it may deem fit for the promotion of the Open University and distance education systems in the educational pattern of the country and for the coordination and determination of standards of teaching, evaluation and research in such systems and in pursuance of the objects of the University to encourage greater flexibility, diversity, accessibility, mobility and innovation in education at the university level by making full use of the latest scientific knowledge and new educational technology. The functions of the distance education council have already been quoted hereinabove. The powers and functions of the Distance Education Council are to develop a network of open universalities/distance education institutions in the country in consultation with the State Governments and other concerned agencies, to identify priority areas in which distance education programmes should be organized and to provide such support as may be considered necessary for organizing such programmes and also to identify the specific client groups and the types of programmes to be organized for them, and to promote and encourage the organization of such programmes through the network of open universities/distance education institutions and also to promote an innovative system of University level education, flexible and open, in regard to methods and pace of learning, combination of courses, eligibility for enrolment, age of entry, conduct of examination and organize various courses and programmes and also to promote the organization of programmes of human-resource development for the open university/distance education system and to initiate and organize measures for joint development of courses and programmes and research in distance education technology and practices. The Distance Education Council has also issued guidelines in the year 2006 for regulating the establishment and operation of Open and Distance Learning Institutions in India. The Institutions are required to give undertaking that the provisions of Distance Education Council shall be observed. The parent institution which intends to start or which has already started Distance Education Institutions should have a provision in its Act/MoA for running Distance Education Programme. The parent institution cannot establish its Study Centres/Regional Centres outside its jurisdiction as specified in the parent institution Act/MoA. The parent institution is required to monitor the academic standard and quality of Distance Education within the parent institution.

What emerges from the combined reading of Statute 28 of the Indira Gandhi National Open University Statutes and the powers and functions of the Distance Education Council is that there is no provision for providing technical education by way of distance education. The courses of B.Sc. Nursing and M.Sc. Nursing are very technical in nature. The candidates besides possessing theoretical knowledge are also required to obtain practical knowledge. The candidates admitted in regular courses of B.Sc., M.Sc./B.E. in Engineering and other technical courses in recognized institution have to attend the minimum number of lectures in theory as well as in practical examination. The knowledge acquired by the candidates through regular courses cannot be compared with technical qualification obtained by way of distance education. The Regulations framed by the Indian Nursing Council are very comprehensive vis-�-vis the Regulations framed by the Indira Gandhi National Open University for awarding B.Sc. Nursing degree. The recognized/valid institutions are required to comply with all the academic regulations framed by the Indian Nursing Council with regard to the syllabus, curriculum, appointments of teachers, eligibility criteria, staffing patter, including building etc. The major difference which has already been taken note of is that the duration of B.Sc. nursing course is four years as per the academic regulations framed by the Indian National Council and 3-5 years in case of Indira Gandhi National Open University. In the instant case, petitioner was admitted only for two years for the academic sessions 2007-2008 and 2008-2009.

Their Lordships of the Hon''ble Supreme Court in Annamalai University represented by Annamalai University rep. by Registrar Vs. Secy. to Govt. Infn. and Toursm Dept. and Others, have held that the distinction between a formal system and an informal system is in the mode and manner in which education is imparted. Their Lordships have held as under:

UGC Act was enacted by the Parliament in exercise of its power under Entry 66 of List I of the Seventh Schedule to the Constitution of India whereas Open University Act was enacted by the Parliament in exercise of its power under Entry 25 of List III thereof. The question of repugnancy of the provisions of the said two Acts, therefore, does not arise. It is true that the statement of objects and reasons of Open University Act shows that the formal system of education had not been able to provide an effective means to equalize educational opportunities. The system is rigid inter alia in respect of attendance in classrooms. Combinations of subjects are also inflexible.

Was the alternative system envisaged under the Open University Act was in substitution of the formal system is the question. In our opinion, in the matter of ensuring the standard of education, it is not. The distinction between a formal system and informal system is in the mode and manner in which education is imparted. UGC Act was enacted for effectuating coordination and determination of standards in Universities. The purport and object for which it was enacted must be given full effect.

What emerges from the analysis made hereinabove is that for two academic years, i.e. 2005-06 and 2006-07, there was no recognition by the Indira Gandhi National Open University. Moreover, the technical courses like Physiotherapy cannot be undertaken by way of distance education. In view of this, there is no illegality or arbitrariness in the action of the respondents in denying the appointment to the petitioner to the post of Physiotherapist. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.