Om Parkash Sharma & Ors. vs Union of India & Anr.

Hon'ble Dr. Sumeet Jerath, Member (A) :

The instant OA has been filed by the applicants under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

The factual matrix of the case as per the counsel for the applicants is that the applicants are employees of the Central Public Works Department who were serving in different capacities prior to their promotion as Junior Engineers. They had acquired Diploma qualifications in Engineering through distance mode with the permission of the respondents. In the year 2011, the respondents issued notification dated 27.10.2011 for filling up the posts of Junior Engineer (Civil and Electrical) from amongst serving departmental employees. The applicants, possessing the requisite Diploma qualification, participated in the Limited Departmental Competitive Examination (LDCE) conducted pursuant to the said notification. Before the result could be declared, litigation (OA No. 4221/2011) arose concerning the said examination. The applicants became parties to the proceedings and also instituted proceedings seeking declaration of the result of the LDCE and their promotion to the post of Junior Engineer on the basis of their inter-se merit. The aforesaid proceedings, including O.A. Nos. 1125/2013, 4221/2011, 385/2013 and 1116/2013 filed by some of the applicants, were disposed of by this Tribunal vide order dated 10.02.2014 whereby the respondents were directed to declare the result of the LDCE held on 05.02.2012 pursuant to the notification dated 27.10.2011 and to grant promotion to the eligible applicants with all consequential benefits according to their merit. The respondents thereafter declared the result of the examination. The applicants were declared qualified and after their eligibility and suitability had been examined in accordance with the applicable Recruitment Rules, they were appointed as Junior Engineers (Civil/Electrical) by separate orders. The applicants thereafter joined the post of Junior Engineer and discharged their duties. Their services were subsequently confirmed. According to the applicants, the conditions which had initially been incorporated in their appointment orders by reference to the pending proceedings concerning Engineering degrees were also removed. Thus, the applicants had not obtained their promotion merely on the basis of an unverified qualification; rather, they had participated in the departmental competitive examination, were declared successful, their eligibility was examined by the competent authority, they were appointed as Junior Engineers and thereafter continued in service and were confirmed. The controversy arose after the judgment in Orissa Lift Irrigation Corp. Ltd., vs. Rabi Sankar Patro & Ors. – Civil Appeal Nos. 17869-17870/2017 dated 03.11.2017 of the Hon’ble Supreme Court in the case concerning Engineering degrees obtained through distance education from certain Deemed to be Universities. The applicants contended that the judgment dealt with the validity of Engineering degrees and the consequences flowing from such degrees and did not declare Diploma in Engineering obtained through distance mode by the applicants to be invalid. According to them, the judgment also did not direct Diploma holders to appear in any test conducted by the AICTE. Pursuant to the aforesaid judgment, the Directorate General, CPWD issued Office Memoranda dated 17.11.2017 and 06.12.2017 for taking necessary action in respect of the Engineering qualifications of concerned employees. The applicants stated that the original instructions were directed towards implementation of the judgment concerning Engineering degrees. However, subsequently, by corrigendum dated 15.12.2017, the respondents directed re-examination of Diploma/PG Diploma/Degree acquired by Junior Engineers and Assistant Engineers in Civil and Electrical disciplines. The said corrigendum also referred to the AICTE Public Notice dated 02.12.2017 concerning registration for a test. The relevant portion of the corrigendum required re-examination of Diploma/PG Diploma/Degree qualifications. Aggrieved by the said action, the applicants submitted a representation dated 16.12.2017. They contended that their Diploma qualifications had never been declared invalid by the Hon’ble Supreme Court and that the judgment dated 03.11.2017 could not be extended to them merely because they had acquired Diploma qualifications through distance mode. According to the applicants, after receipt of their representation, Respondent No.2 had directed the concerned authority to take corrective action since the case of the applicants had wrongly been tagged with cases concerning Engineering degrees. However, the corrigendum dated 15.12.2017 was not withdrawn, resulting in filing of the present O.A. Learned counsel for the applicants submitted that the entire foundation of the impugned action was misconceived and that the judgment of the Hon’ble Supreme Court dated 03.11.2017 was rendered in the context of Engineering degrees obtained through distance education from the specified Deemed to be Universities and that there was no direction therein requiring Diploma holders to undergo any test or re-examination of their Diplomas. The applicants relied upon the judgment itself as well as the communication of the UGC dated 22.11.2017 placed on record as Annexure A-8. He further submitted that the applicants had acquired their Diplomas with due permission of the respondents and the said qualification was accepted by the competent authority when they were permitted to participate in the LDCE. The applicants were subsequently declared successful, their eligibility was examined under the Recruitment Rules and they were appointed as Junior Engineers pursuant to the order of this Tribunal dated 10.02.2014. They had thereafter served for several years and had also been confirmed. It was therefore contended that the respondents could not, after the applicants had successfully undergone the prescribed selection process and had been confirmed, seek to reopen their promotion on the basis of a judgment which did not concern their Diploma qualification. The relevant averment of the applicants is that their Diploma was accepted and made the basis for determining their eligibility for the LDCE without any objection from the respondents. It was also submitted that the respondents could not derive authority for such action merely from the AICTE Public Notice dated 02.12.2017. According to the applicants, the respondents were required to implement the judgment of the Hon’ble Supreme Court as it stood and could not enlarge its scope by treating a direction concerning degrees as applicable to Diplomas. The applicants accordingly sought quashing of the corrigendum dated 15.12.2017 to the extent it required registration for the test and review/re-examination of their Diploma qualifications. The applicants also pointed out that the original order of this Tribunal dated 10.02.2014 had resulted in a completed selection process. The Tribunal had directed declaration of the result of the LDCE and promotion of the applicants with consequential benefits according to merit. The respondents thereafter acted upon the said order and appointed the applicants as Junior Engineers. Thus, the promotion was not provisional or merely consequential to an untested claim; it followed a departmental competitive examination and scrutiny of eligibility.

The counsel for the applicants argued assiduously on the following grounds :-

Per contra, the counsel for the respondents vehemently opposed the above grounds and argued assiduously stating that the Hon’ble Supreme Court, in its judgment dated 03.11.2017, dealt with Engineering degrees awarded through distance education by the four concerned Deemed to be Universities and directed that the relevant degrees and benefits secured on their basis be dealt with in accordance with the judgment. The respondents stated that in view of the said judgment, the Directorate decided to re-examine the Engineering qualifications of departmental employees who had been appointed or promoted to various posts on the basis of such qualifications. The respondents further stated that AICTE issued a Public Notice dated 02.12.2017 concerning Diploma/PG Diploma/Degree/M.E./M.Tech. qualifications of students enrolled during the relevant academic period in the four Deemed to be Universities. On the basis of the said Public Notice, the CPWD issued the corrigendum dated 15.12.2017 and sought re-examination of Diploma/PG Diploma/Degree qualifications of Junior Engineers and Assistant Engineers. The respondents were acting in compliance with the judgment of the Hon’ble Supreme Court and the guidelines issued by the concerned authorities and they did not take any arbitrary or discriminatory action against the employees. The respondents have specifically stated that, so far as Diploma holders were concerned, no action had actually been taken against them pursuant to the AICTE Public Notice and that the present O.A. was therefore premature and devoid of merit. The respondents have also contended that if a qualification on the basis of which an employee secured appointment or promotion is subsequently found invalid, the employer has the right to take consequential action. Reliance has been placed upon the directions contained in the judgment dated 03.11.2017, according to which benefits obtained on the basis of the Engineering degrees covered by that judgment were liable to be recalled.

The applicants in their written note submitted that their case is fully covered by the clarificatory order of the Hon'ble Supreme Court of India in Orissa Lift Irrigation Corporation Ltd. vs. Rabi Sankar Patro & Ors. - (2018) 2 SCC 298. He added that following the main Supreme Court judgment dated 03.11.2017, diploma holders filed an Interlocutory Application seeking clarification, whereupon the Hon'ble Apex Court explicitly held on 22.01.2018 that the validity of courses leading to diplomas in Engineering was not the subject matter of the main judgment, as the controversy pertained strictly to degrees acquired through distance education mode. The Supreme Court specifically observed in Para 21 of the clarificatory order that AICTE was not justified in extending the scope of its notice to diploma courses. The said para 21 of the order dated 03.11.2017 reads as under :

The background of the matter indicated that the respondents issued a notification on 27.10.2011 to conduct a Limited Departmental Competitive Examination (LDCE) for promotion to the post of Junior Engineer (Civil & Electrical). Pursuant to the orders of this Tribunal in connected applications (OA No. 4221/2011, OA No. 1125/2013, OA No. 385/2013, and OA No. 1116/2013), the examination results were declared, leading to the appointment of the applicants as JEs vide orders dated 10.09.2014, and their subsequent confirmation vide order dated 07.04.2017. However, based on a misinterpretation of the Apex Court's 03.11.2017 judgment, the respondents issued an impugned corrigendum on 15.12.2017 directing a re-examination of the applicants' diploma qualifications through a test to be conducted by AICTE in 2018. In their legal contentions, the applicants argued that the impugned corrigendum dated 15.12.2017 was issued solely to implement the judgment dated 03.11.2017 without any independent administrative order. Once the Supreme Court clarified that the original judgment applied exclusively to degrees, the impugned corrigendum lost its legal foundation and became a nullity. Furthermore, because this Tribunal granted an interim stay on the corrigendum, the applicants were not required to appear for the 2018 examination and no subsequent tests were ever conducted following the Supreme Court's clarification. Consequently, the respondents abandoned further implementation of the corrigendum, Applicant No. 1 has since retired and other applicants have received further service benefits. Hence, the applicants prayed that the OA be allowed the impugned corrigendum dated 15.12.2017 be set aside as violative of the Supreme Court’s clarificatory order in the interest of justice.

We have given our thoughtful consideration to the rival submissions; examined the documents on record and perused the judicial pronouncements cited by both sides. The controversy in the present case is narrow. The question is whether the respondents were justified in extending to the applicants, who possess Diploma in Engineering, the consequences of the judgment dated 03.11.2017 concerning Engineering degrees obtained through distance education and in consequently directing re-examination of their Diploma qualifications and reviewing their promotion as Junior Engineers. From the material placed before us, it is evident that the applicants had obtained Diploma qualifications and that those qualifications were accepted by the respondents for the purpose of their participation in the departmental selection process. The applicants were permitted to participate in the LDCE pursuant to the notification dated 27.10.2011. Their result was thereafter directed to be declared by this Tribunal vide order dated 10.02.2014, with a further direction to grant promotion according to merit with consequential benefits. The respondents complied with the said order. The applicants were declared successful, their eligibility and suitability were examined and they were appointed as Junior Engineers. They thereafter joined and served in the post and were subsequently confirmed. It is equally significant that the applicants' case, as pleaded and supported by the documents, is that the judgment dated 03.11.2017 dealt with the validity of Engineering degrees obtained through distance education and not with the Diploma qualifications possessed by the applicants. The respondents themselves, in their counter affidavit, have reproduced the substance of the judgment and stated that it concerned Engineering degrees from the four specified Deemed to be Universities. The impugned corrigendum dated 15.12.2017, however, expressly proceeded to direct re-examination of “Diploma/PG Diploma/Degree” acquired by Junior Engineers and Assistant Engineers. The language of the corrigendum is therefore materially wider than the subject matter of the judgment relied upon by the respondents. In our considered view, the respondents could not enlarge the scope of the judgment of the Hon’ble Supreme Court by administrative instructions. An administrative authority implementing a judicial decision is required to act within the four corners of the decision and cannot introduce an additional requirement against a category of employees which was not covered by the judgment. The respondents have not placed before us any independent order of the Hon’ble Supreme Court declaring the Diplomas possessed by the applicants invalid or directing Diploma holders similarly situated to undergo the test contemplated for the Engineering degrees covered by the judgment. The reliance placed by the respondents upon the AICTE Public Notice also does not cure the fundamental difficulty in their case. The respondents' own corrigendum records that the requirement of re-examination of Diploma/PG Diploma/Degree was introduced in view of the AICTE Public Notice. However, an administrative/public notice issued by another authority cannot, by itself, be treated as enlarging the scope of a judgment of the Hon’ble Supreme Court, particularly when the respondents seek to use it for reopening a promotion which had already been granted after completion of a departmental selection process. We are also unable to accept the contention of the respondents that the O.A. is premature merely because, no adverse action had actually been taken against the applicants. The corrigendum dated 15.12.2017 itself directed re-examination of Diploma/PG Diploma/Degree qualifications, and the applicants had a direct and immediate apprehension that their promotion as Junior Engineers, which had already been granted and followed by confirmation, would be reviewed on that basis. The impugned administrative action therefore had a direct bearing upon their service status and was amenable to challenge. The subsequent conduct of the respondents also assumes significance. The applicants have pleaded that upon receipt of their representation dated 16.12.2017, Respondent No.2 directed the concerned ADG (S&P) to take corrective measures as the applicants' cases had been wrongly tagged with cases concerning Engineering degrees. The applicants further pleaded that despite such direction, the corrigendum was not withdrawn. Though the respondents have not accepted the applicants' interpretation in their counter affidavit, the circumstance demonstrates that even within the department there was a concern regarding the manner in which the applicants' cases had been brought within the ambit of the corrigendum. The respondents' argument that an employer may cancel an appointment where the qualification on the basis of which appointment was secured is subsequently found invalid is undoubtedly unexceptionable as a general proposition. However, that principle can have application only where the foundational qualification is in fact found invalid or where the competent judicial/ statutory authority has rendered it so. In the present case, the respondents have not demonstrated that the applicants' Diploma qualifications were declared invalid by the judgment dated 03.11.2017. The very premise necessary for reopening the applicants' promotion is therefore absent. There is another important aspect that the applicants' promotion was not based solely upon their Diploma qualification. Their Diploma was one of the eligibility requirements for appearing in the LDCE, but their promotion followed their participation in the departmental competitive examination, declaration of their result, consideration of their eligibility and suitability and the subsequent order of this Tribunal dated 10.02.2014. The respondents thereafter appointed them as Junior Engineers and continued them in service. Thus, reopening their promotion after several years merely by importing a requirement applicable to a different category of qualification would unsettle a completed selection process without a demonstrated legal basis. We are conscious that the respondents were required to comply with the judgment of the Hon’ble Supreme Court and that verification of qualifications falling within the scope of that judgment could legitimately be undertaken. There can be no dispute with that proposition. However, the respondents cannot, under the guise of implementing the judgment, extend its operation to qualifications which were not the subject matter of the judicial determination. The distinction between an Engineering degree and a Diploma in Engineering is material in the facts of the present case and cannot be obliterated merely because both are described as Engineering qualifications. The applicants have thus succeeded in establishing that the impugned action, insofar as it seeks to subject their Diploma qualifications to re-examination and consequently to review their promotion as Junior Engineers on the basis of the judgment dated 03.11.2017, cannot be sustained.

In view of the foregoing analysis, we are of the considered view that the corrigendum dated 15.12.2017 is liable to be set aside to that extent. Accordingly, the O.A. is allowed. The corrigendum dated 15.12.2017 issued by the respondents is quashed and set aside to the extent it directs registration for the test and/or review/re-examination of the Diploma in Engineering qualifications of the applicants by relying upon the judgment dated 03.11.2017 of the Hon’ble Supreme Court in Civil Appeal Nos. 17902-17905/2017 and connected matters. The respondents are directed not to review or disturb the promotion of the applicants as Junior Engineers (Civil/Electrical) on the aforesaid basis. In the facts and circumstances of the case, there shall be no order as to costs. The O.A. stands disposed of in the above terms. Pending M.A(s), if any, also stand disposed of accordingly.