N. Prithavi Raj Singh vs Bharat Dynamic Ltd.

Dama Seshadri Naidu, J.—The present Writ Petition is filed seeking to set aside the respondent''s Office Order with Ref. No. BDL/GM/(P&A)/Corpt./2010, dated 08.09.2010, whereby and whereunder the promotion given to the petitioner with effect from 01.09.2007 as Junior Manager (Grade-I) was withdrawn. The petitioner has also sought a consequential direction to the respondent to extend all the benefits attached to the said post. The facts in brief are that, having passed Diploma in Mechanical Engineering in the year 1988, the petitioner joined the service of the respondent on 10.02.1992 as Junior Technical Assistant. As he was in service, with an intention to improve his education qualifications, he joined the Institute of Mechanical Engineers (India), Navi Mumbai (in short "Institute") for acquiring the qualification of AMIME (I) course offered by the said institute, since the said qualification is equivalent to Graduation in Engineering. Having registered with the said institute on 27.01.2000 as Technician Member vide Membership No. 72878, the petitioner completed Section A and B in June, 2004 and obtained final Pass Certificate on 05.12.2006.

Since his promotional post, i.e., Junior Manager Grade-I requires Graduation in Engineering, the petitioner, having possessed the Graduation in Mechanical Engineering, as was awarded by the institute, applied for the promotional post. Subsequently, he was subjected to written examination and interview on 27.04.2008 and 30.05.2008 respectively and was eventually promoted to the post of Junior Manager (Grade-I) through Promotion Order dated 12.07.2008. In fact, the said promotion order was given with effect from 01.09.2007 notionally for the purpose of seniority, though the financial benefits were extended with effect from 12.06.2008.

It is the grievance of the petitioner that despite the completion of his probation period, he was not issued with the orders of confirmation and no incremental benefits were extended to him. As a result, he made a representation to the respondent authorities, who, instead of considering his request, called up the petitioner to produce his degree certificate for verification, apart from asking him to answer certain quarries with regard to his qualifications. Later, when the petitioner complied with the directive of the respondent, on 10.08.2010, he was issued a show cause notice by the respondent stating that the qualification that had been acquired by the Petitioner was not equivalent to the Bachelor''s Degree in Engineering. Having received the said show cause notice, the petitioner submitted a detailed explanation dated 16.08.2010. The petitioner has specifically stated that the degree he has obtained has the requisite recognition and has all along been treated for all practical purposes as equivalent to Degree in Engineering issued by any other university. The respondent, however, having not (been) satisfied with the explanation submitted by the petitioner, issued proceedings, dated 08.04.2010, withdrawing the promotion granted earlier to the petitioner as Junior Manager (Grade-I) and directed for re-fixing of his pay, as was drawn in earlier post i.e., in the non-executive cadre.

Aggrieved by the reversion as was effected by the respondent employer, the petitioner filed the present writ petition, contending that the qualification he has acquired is equivalent to Graduation in Engineering and that it has been recognised by all the Governmental agencies concerned and that the reversion is absolutely unwarranted.

On the part of the respondent employer, it has filed Counter Affidavit contending that several complaints were received from the employees, who are possessing valid Degree Certificates to the effect that the certificate produced by the petitioner from AMIME (I) does not have recognition, that based on the said complaint, a detailed enquiry has been conducted, that the respondent has come to know that IME (I) was initially derecognised by AICTE with effect from 10.06.2002. Though the recognition was restored with effect from 16.10.2006, since the petitioner has acquired the qualification in the interregnum, in the year 2004, when the de-recognition was in force, his qualification cannot be recognised for the purpose of promoting the petitioner to the next level. That apart, the respondent has also taken various pleas with regard to the manner of recognition, its withdrawal and the impermissibility on the part of the Institute to ignore the de-recognition and issue certificates knowing fully well that they do not have any validity.

The learned counsel for the petitioner has strenuously contended that when the petitioner joined IME(I) for acquiring the qualification of AMIME (I) course in January, 2000, the institute had the necessary recognition, and as such, his entry into the course is legal. After obtaining the necessary qualification, the petitioner was subjected to written examination and interview, and was eventually promoted to the post of Junior Manager (Grade-I). He has contended that there was no justification for the respondent not to issue the orders of confirmation despite the petitioner''s completing the probation.

The learned counsel for the petitioner has further contended that the petitioner completed Section A and B of the Course in June, 2004 and obtained final Pass Certificate on 05.12.2006. Whatever derecognition that took place in 2002 would not affect the petitioner, who got admission way back in 2000. He has further stated that those who have got admission prior to 10.06.2002 were allowed to complete their degree based on the pre-revised syllabus. As such, the petitioner passed the course and obtained the certificate. Merely because the petitioner obtained his certificate during the subsistence of derecognition it would not make any difference to his acquiring qualification. The learned counsel has submitted that the derecognition for a period was an eclipse, which briefly interrupted the continued recognition of the course, and once recognition was restored based on the same syllabus, the recognition dated back to the initial period, thus removing the defect retroactively. In support of his contentions the learned counsel for the petitioner has placed reliance on the judgment of the Hon''ble Supreme Court in Suresh Pal and Others Vs. State of Haryana and Others,

Per contra, the learned counsel for the respondent employer has vehemently contended that had the petitioner acquired his qualification, if at all it were to be treated as equivalent to Graduation in Engineering, only during the subsistence of recognition of the IME (India), it could have carried weight. Since, there was no recognition in 2004, when the petitioner passed out the course, the certificate was rightly rejected as not equivalent qualification. Only as a necessary corollary, the petitioner was reverted. It is the specific case of the respondent that merely because the course had the recognition when the petitioner secured admission would not cure the subsequent derecognition, which rendered the very course non-existing as far as the respondent or any other governmental authority is concerned. In other words, in the interregnum when de-recognition subsisted, whatever the certificates that were issued, and in fact whatever the examinations that were conducted by the Institute are non est. Thus, essentially those courses and the certificates issued therefor could not have any value much less recognition. The learned standing counsel has placed reliance on the judgments of the Hon''ble Supreme Court in L. Muthukumar and Another Vs. The State of Tamil Nadu and Others, and also Minor Sunil Oraon Tr. Guardian and Others Vs. C.B.S.E. and Others,

The learned counsel for the respondent has finally contended that if the petitioner had passed the test even under the old syllabus after restoration of recognition, the certificate would have been valid, but not otherwise.

Heard the learned counsel for the petitioner and the respondent, apart from perusing the record.

The issue in controversy runs in a narrow compass. The issue is whether the qualification acquired by the petitioner is to be treated on a par with Graduation in Engineering, despite the derecognition of the said qualification by AICTE for a particular period, when the petitioner acquired the qualification. It is indubitable that initially the said qualification that had come to be acquired by the petitioner had due recognition. However, it has come on record that the Ministry of Human Resources Development, Department of Higher Education, Government of India, issued Notification dated 10.06.2002 withdrawing the recognition granted earlier to the Institute of IME (India) on the ground that the said Institute was lagging behind in keeping up the educational standards on a par with other universities and that it was required to remove all the deficiencies, as pointed out by AICTE.

As a matter of chronology, it may have to be observed that withdrawing of recognition took place on 10.06.2002, whereas the petitioner joined the course on 09.03.2000. Apparently having no knowledge of the de-recognition, the petitioner pursued his course and obtained his certificate in June 2004. As a matter of subsequent development, it has come to light that IME (India), Navi Mumbai, approached, after initial failed attempt before the High Court of Bombay, the Hon''ble Supreme Court, which was pleased to pass the following order dated 27.01.2005 in SLP No. 9387 of 2004:

Mr. Parasaran, learned Additional Solicitor General, states that the application made by the petitioner to the Government will be considered within six weeks from today. He states that whilst so considering the representation the Government will also consider, whether the students who had joined prior to the withdrawal of the recognition, be allowed to graduate. In view of this statement, learned Senior Counsel appearing for the petitioner applies for withdrawal of the Special Leave Petition. The SLP is allowed to be withdrawn.

It appears that in the light of the undertaking given before the Hon''ble Supreme Court in the said SLP the Government of India issued a Notification dated 24.11.2006 deciding as follows:

(i) The recognition of the courses run by IME, Mumbai may be restored with effect from 16.10.2006. With this recognition, IME Will run the courses based on new syllabus approved by All India Council for Technical Education (AICTE). As per the approval, the Technician Engineers courses Part I and II (Diploma Level) will have 22 papers in place of existing 14 papers and Degree level course of Section A and B of Associate Membership will include 24 papers in place of 11 papers at present. In addition to this, there will be nine elective subjects. After completing theory papers, students will have to undergo at least three months mandatory apprenticeship/practical training/project report at an All India Council for Technical Education approved Polytechnic for Part I and II of Technician Engineers Course for award of certificate equivalent to Diploma in Mechanical Engineering and the Apprenticeship/Practical training of the same duration in AICTE approved Degree Colleges for award of Certificate equivalent to Bachelors Degree in Mechanical Engineering for Section A & B of Associate Membership Course.

(ii) The students who were registered prior to 10.06.2002 for Part I and II of Technician Engineers (Diploma Level) and Section A and B of Associate Membership course (Degree level) will be allowed to complete the courses with pre-revised syllabus till the next scheduled examination, to be held in December 2006. Their Degree/Diploma will be recognized for employment in Central Government. Those who do not complete their courses by that time (December, 2006) will have to follow the revised syllabus.

(emphasis added)

It is interesting to note that as per the said Notification dated 24.11.2006, the students who got registered prior to 10.06.2002 for Part I and II of Technician Engineers (Diploma Level) and Section A and B of Associate Membership Course (Degree Level) would be allowed to complete the course with pre-revised syllabus till the next scheduled examination to be held in December, 2006. It has also further been mandated that those who could not complete their courses by December, 2006 will have to follow the revised syllabus. In fact, para (ii) of the Notification dated 24.11.2006 issued by the Government of India has generated a lot of controversy, and both the petitioner and the respondent employer have chosen to interpret it in their own way.

In the light of submissions made by both counsel for petitioner as well as respondent, the issue basically turns upon the question whether the acquisition of the certificate by the petitioner when the derecognition was in force would vitiate the qualification, and consequently it would disentitle the petitioner to any promotional post on the said qualification. Without further expatiation on the issue, this Court can focus on the legality of the institute in conducting the examination when the derecognition was subsisting, albeit for those students who secured their admission or enrolment prior to the said de-recognition.

Para (ii) of Notification dated 24.11.2006 referred to above holds the key to the present issue. The crucial aspect that is to be examined is that the revised syllabus was applied to those students who could not complete their courses by December, 2006. All those students who got enrolled prior to de-recognition were allowed to write the examination based on the syllabus that was existing then, i.e., pre-revised syllabus. If it is a matter of restoring educational standards or raising the bar of standard in engineering education, the Government could have insisted that all the students, notwithstanding the date of their enrolment or writing of examination, should pass the examinations only as per the revised syllabus. In other words, the Central Government or AICET could have insisted on the students'' completing the course only as per the revised syllabus consequent to the restoration of the recognition. However, the Government has expressly allowed the candidates to write the examination based on the pre-revised syllabus until December, 2006.

Now the issue boils down to whether writing examination during the period of de-recognition and after restoration of the recognition would make any difference, when in both instances the examination was conducted in pre-revised syllabus. In my considered view, it would not make any difference. In the present instance, the petitioner secured his admission prior to de-recognition, having not been aware of what were to follow. Subsequently he completed his course based on old syllabus, which in fact was the syllabus to be followed even after restoration of recognition, albeit until a particular period.

Admittedly the de-recognition for a particular period was on the ground that the institute had failed to update its syllabus to keep up with the changing standards in engineering discipline. The institute was de-recognised on 10.06.2002; later the recognition was restored on 16.10.2006; the revised syllabus was given effect to from January, 2007. It means those students who wrote their examinations from October 2006 to December 2006 under the same old pre-revised syllabus have their qualifications recognised. Ipso facto, it would not in my considered view, make any difference if a person wrote his examinations in 2004 under the same syllabus, having secured his admission when no cloud was cast on the institute. Refusing to recognise a person''s certificate on a simple premise that he wrote the examination during the subsistence of the de-recognition would be nothing but hoisting the said person with a technical petard. Especially when we accept the fact that it would be proper to write the examination after restoration of recognition but with the same syllabus, the inequity is writ large.

Keeping aside as to when the students wrote their examinations, I believe the bottom line of the issue is that one has to acquire a qualification based on the standards set by the Institute as was recognized by AICTE or any other competent academic body. The expert body in its wisdom has decided to allow the students for a particular period to pass the examination under the same old syllabus, the standard of which was the raison d''etre for the whole controversy. Thus, when the expert body has decided to defer the application of the new and revised syllabus for a particular period, and has further decided that the students would be allowed to write examinations under the old syllabus only, up to a particular period though, the benefit ought to be given across the board to all the students who write the examinations under the old syllabus till the application of the new syllabus. What matters is the standard sought to be maintained rather than the ritualistic adherence to the concept of recognition, the ultimate purpose of which is only the maintenance of high academic standards.

The ameliorating factor is that the petitioner secured his admission prior to de-recognition and completed examination in the syllabus that was recognised then. It would not make any difference as to when he wrote the examination. It is relevant to refer to the ratio laid down by the Hon''ble Supreme Court in Suresh Pal and others referred (1) supra, wherein their Lordships have held in Para No. 3:

We are of the view that since at the time when the petitioners joined the course, it was recognised by the Government of Haryana and it was on the basis of this recognition that the petitioners joined the course, it would be unjust to tell the petitioners now that though at the time of their joining the course it was recognized, yet they cannot be given the benefit of such recognition and the certificates obtained by them would be futile, because during the pendency of the course, it was, derecognized by the State Government on 9th January, 1985. We would, therefore, allow the appeal and direct the State Government to recognize the certificates obtained by the petitioners and other similarly situate as a result of completing the certificate course in Shri Hanuman Vayayam Prasarak Mandal, Amravati for the purpose of appointment as Physical Training Instructor in Government schools in Haryana. Of course, if any person has joined the certificate courts after January 9, 1985 he would not be entitled to the benefit of this order and any certificate obtained by him from the said Institute would be of no avail.

Insofar as the ratio laid down in Minor Sunil Oraon Tr. cited.(3) supra is concerned, it has been observed in Para 22 of the said Judgment:

The Court had deprecated the practice of educational institution admitting the students without requisite recognition or affiliation. In all such cases the usual plea is the career of innocent children who have fallen in the hands of the mischievous designated school authorities. As a factual scenario delineated against goes to show the school has shown scant regards to the requirements for affiliation and as rightly highlighted by learned counsel for the CBSE, the infraction was of very serious nature. Though the ultimate victims are innocent students that cannot be a ground for granting relief to the appellant. Even after filing the undertakings the School nonchalantly continued the violations.

The above ratio may not have any relevance to the case on hand, since the issue in the said judgment revolves around the question of granting admissions when there was no recognition to the said educational institutions. It goes without saying that in the present instance, the petitioner did secure his admission when the institute had recognition.

L. Muthukumar and another cited (2) supra is a case involving educational standards and proper training. In fact, it was observed in Para No. 11 that in relation to Teaching Training Course, mere passing of public examination is not enough and that it must be coupled with proper training in a recognised institute in order to get meaningful and purposeful results. Once there has been any deficiency in standards, it could not be cured unless the standards are improved by taking a mere plea that the innocent students have been made victims in such educational institutions. In that context, the Hon''ble Supreme Court has laid down that it must be the qualification based on standards and proper training. Evidently in the present case, the students who got their admission prior to de-recognition were allowed to write examination based on the same syllabus, i.e., pre-revised syllabus. The Government, in its wisdom, has thought it fit to allow the students to pass the examination in the pre-revised syllabus, perhaps owing to the fact that those students who got their admission, unwittingly though, prior to the unanticipated de-recognition, could not be deprived of the fruits of the labour. In any event, it may have to be reiterated that writing an examination based on the same standard only after the restoration of recognition is perhaps a hyper-technicality without having any impact on the merits of the issue.

Recalling the contention of the learned counsel for the respondent that if the petitioner had passed the examination even under old syllabus after restoration of the recognition, the certificate would have been valid, it is to be observed that the learned counsel has laid much stress on the form rather than on substance. This submission cannot be accepted, especially given the fact that the admission took place when the recognition was in force. Coupled with it, the petitioner took the examination under the old syllabus, which was accepted by the expert body, albeit for a limited period. Once the admission and syllabus are held to be proper, the date of passing the examination could not vitiate the certificate or admission.

A substantial benefit of educational qualification having far reaching consequences on a person''s career could not be denied to a student owing to institutional vicissitudes, in which the very student has no role. It will subserve the interest of justice if such a qualification as was acquired by the petitioner is taken as an equivalent qualification. It is all the more relevant to state that the expert academic agency concerned has recognised the pre-revised syllabus for a particular period even after holding that it required revision, as such, the acquisition of qualification based on the old syllabus cannot be disturbed.

The Government of India Notification dated 24-11-2006 provided that the students who were registered prior to 10-6-2002 for Part I and II of Technician Engineers (Diploma Level) and Section A and B of Associate Membership course (Degree level) would be allowed to complete the courses with pre-revised syllabus till the next scheduled examination, to be held in December 2006. To subserve the substantial ends justice, it is, if required, to be read down to mean that passing examinations, under the old syllabus before December 2006, during any period anterior to the said December, 2006, would have nothing to do with the recognition, the deprivation of which was only for a short period, when the focus was on the syllabus.

Having regard to the facts and circumstances of the case, it is in the interest of justice to allow the Writ Petition by setting aside the Office Order dated 08.09.2010 issued by the respondent, apart from giving the consequential direction to the respondent to extend the benefits to the petitioner in the cadre of Junior Manager (Grade-I) with effect from 01.09.2007 with all consequential benefits including Monetary Benefits. Accordingly, the writ petition is allowed. No order as to costs. The miscellaneous petition, if any, pending in this Writ Petition shall stand closed.