Ashok Kumar vs Depinder Singh Dhesi

Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 1

REPORTABLE IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION CONTEMPT PETITION (C) NOS.408-409 OF 2019 IN CIVIL APPEAL NOS.17869-17870 OF 2017

ASHOK KUMAR AND ORS. …Petitioners

VERSUS

DEPINDER SINGH DHESI AND ORS. …Contemnors/ Respondents

JUDGMENT

Uday Umesh Lalit, J.

1. These Contempt Petitions filed by nine Petitioners submit inter

alia that the alleged Contemnors have wilfully and deliberately violated

the Judgment dated 03.11.20171 passed by this Court in Civil Appeal

Nos.17869-17870 of 2017 and other connected matters (“the Judgment”,

for short) and clarificatory Order dated 22.01.2018 2 passed by this Court in Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.08.13 17:03:39 IST 1 (2018) 1 SCC 468 – Orissa Lift Irrigation Corporation Limited vs. Rabi Sankar Patro Reason: and others 2 (2018) 2 SCC 298 – Orissa Lift Irrigation Corporation Limited vs. Rabi Sankar Patro and others Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 2

Miscellaneous Application Nos.1795-1796 of 2017 arising from aforesaid

Civil Appeals (“the Order”, for short). In the submission of the Contempt

Petitioners the following directions issued by this Court in the Judgment

stand violated:-

“58. AICTE is directed to devise within one month from the date of this judgment modalities to conduct appropriate test(s) both in written examination as well as in practicals for the students concerned admitted during the academic sessions 2001-2005 covering all the subjects concerned. It is entirely left to the discretion of AICTE to come out with such modalities as it may think appropriate and the tests in that behalf shall be conducted in the National Institutes of Technology in the respective States wherever the students are located. The choice may be given to the students to appear at the examination which ideally should be conducted during May-June 2018 or on such dates as AICTE may determine. Not more than two chances be given to the students concerned and if they do not pass the test(s) their degrees shall stand recalled and cancelled. If a particular student does not wish to appear in the test(s), the entire money deposited by such student towards tuition and other charges shall be refunded to that student by the deemed to be university concerned within a month of the exercise of such option. The students be given time till 15-1-2018 to exercise such option. The entire expenditure for conducting the test(s) in respect of students who wish to undergo test(s) shall be recovered from the deemed to be universities concerned by 31-3-2018. If they clear the test(s) within the stipulated time, all the advantages or benefits shall be restored to the candidates concerned. We make it clear at the cost of repetition that if the candidates concerned do not clear the test(s) within the time stipulated or choose not to appear at the test(s), their degrees in Engineering through distance education shall stand recalled and cancelled. It goes Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 3

without saying that any promotion or advancement in career on the basis of such degree shall also stand withdrawn, however, any monetary benefits or advantages in that behalf shall not be recovered from them.

66.6. If the students clear the test(s) within the stipulated time, all the advantages/benefits shall be restored to them and their degrees will stand revived fully.”

It is also submitted that the directions issued above were reiterated

in following terms in the Order:-

“A] All such candidates, who wish to appear at the forthcoming test to be conducted by AICTE in May- June 2018 and who exercise option to appear at the test in terms of the judgment, can retain the degrees in question and all the advantages flowing therefrom till one month after the declaration of the result of such test or till 31.07.2018 whichever is earlier.

B] This facility is given as one-time exception so that those who have the ability and can pass the test in the first attempt itself, should not be put to inconvenience. If the candidates pass in such first attempt, they would be entitled to retain all the advantages. … …”

2. According to the Contempt Petitioners:-

(i) They had enrolled themselves in courses leading to Degrees in

Engineering through Distance Education Mode during the period

2001-2005.

Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 4

(ii) In terms of the Judgment, the Petitioners appeared in the test held

by AICTE3 on 03.06.2018 and qualified in the first attempt.

(iii) The Petitioners are presently posted as Junior Engineers in Public

Health Engineering Department, Haryana.

(iv) Soon after clearing the examination, representations were made by

the Petitioners that they were entitled to all the benefits arising

from their Degrees in terms of the Judgment and the Order.

(v) The representations so preferred were more or less identical in

terms and by way of sample one of the submissions made therein

was:-

“Therefore, it is requested to add my higher qualification i.e. B.Tech (Civil) and due benefit for promotion may please be given to me.”

3. Alleging that no action was taken in respect of representations

preferred by the Petitioners, it is submitted in the Contempt Petition:-

“6. That the above said representation has not been replied to till date nor any action has been taken on the same. Rather the ACRs of the candidates who are junior to the Petitioners have been called for and their files have been forwarded to the Additional Chief Secretary for issuing orders of promotion. It is pertinent to mention that the above mentioned junior candidates had obtained their B.Tech degree through regular mode and the Petitioners herein had obtained their B.Tech Degrees from the Deemed Universities through the ODL Mode. However, after the Petitioners have cleared the June 2018 AICTE exam their degrees have become valid and hence they are to

3 All India Council for Technical Education Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 5

be treated at par with those Junior Engineers who have obtained their Degrees through the Regular Mode. The fact that the Petitioners have been ignored and the ACRs of the Junior Candidates have been called for shows that the Contemnors / Respondents have deliberately and wilfully violated the directions of this Hon’ble Court passed in Judgment dated 03.11.2017 and 22.01.2018.”

4. In the affidavit-in-reply filed on behalf of the alleged

Contemnors/Respondents, it was submitted that opinion of the Advocate

General was sought inter alia, on the following issue:-

“ii) Whether the Judgment of Hon’ble Supreme Court in SLP No.17869-17870 of 2017 titled as Orissa Lift Corporation Ltd. vs. Rabi Sankar Patro and others in the matter is applicable to the candidates to whom no benefit of acquisition of higher qualification has been granted till date and the said Judgment is applicable only to those officer/officials to whom benefit of such degrees had already been given in the matter of recruitment / promotion etc.”

The opinion given by the Deputy Advocate General was to the

following effect:-

“The very intent of the aforesaid direction is to restore the degrees of such candidates (enrolled during academic sessions 2001-2005) from the date of issuance itself, so that the benefits granted to them on the basis of such degrees are not withdrawn and further, that they become eligible for consideration for various benefits denied to them owing to lack of validity of such degrees. However, the said directions cannot be construed in a manner, so as to include any advantage/benefit not granted to a Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 6

candidate/employee viz. initial entry into service, promotion, increment etc. because of lack of validity of such degree at that particular point of time. Moreover, such an interpretation of the directions of the Hon’ble Court would lead to administrative chaos especially in the matters of selection and promotions.”

5. An additional affidavit has also been filed on behalf alleged

Contemnor No.3 placing reliance on letter No.3712-2CS-II-72/21209 dated

18.07.1972 in terms of which an employee could be permitted to join

academic courses/appear in examinations after appropriate permissions.

The letter stated inter alia:-

“It has been noticed that Government employees who are permitted to join academic instructions/appear in examinations proceed on leave on one pretext or the other, for a major part of the year in order to make preparations. As this tendency is undesirable and affects Government work adversely, it has been decided to place certain restrictions on permission accorded to Government employees in this respect, as under:-

(i) Ad hoc employees should not be permitted to join courses or appear in examination.

(ii) Only those regular employees who have completed 5 years of service should be accorded such permission. In reckoning the 5 years period service rendered by the employee in any other Office/Department of Government should also be considered.

Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 7

2. However, those regular employees who have already been permitted to join a particular course of study, or who were studying for a particular course at the time they joined Government service, should be allowed to complete that course, without the necessity to having to obtain any permission.”

6. We heard Mr. Siddharth Dave, learned Senior Advocate for the

Petitioners and Mr. Maninder Singh, learned Senior Advocate for the

alleged Contemnors.

7. At the outset, the reasons for issuing directions which are relied

upon by the Petitioners as evident from the Judgment and the Order are

required to be stated and taken into account. Two kinds of students were

before the Court (i) those who were enrolled during the academic sessions

2001-2005 and (ii) those who were enrolled after the academic sessions

2001-2005. It was noted in para 23.6 that UGC 4 had issued “2004 UGC

Guidelines” in terms of which concept of ex-post facto approval in respect

of deemed to be Universities which had started courses in Distance

Education without any approval from the concerned authorities was

introduced. In accordance with these “2004 UGC Guidelines” some of the

deemed to be Universities applied for ex-post facto approval and were

granted such approval, as a result of which the students enrolled during

4 University Grants Commission Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 8

academic sessions 2001-2005 stood on a different footing as against those

who were enrolled after the academic sessions 2001-2005.

Though the Judgment did not approve of the entire exercise

undertaken by the concerned authorities, including the grant of ex-post

facto approvals, a concession was given to the students who were enrolled

during the academic sessions 2001-2005 and the matter in that behalf was

dealt with in paragraph 57 as under:-

“57. Having found the entire exercise of grant of ex post facto approval to be incorrect and illegal, the logical course in normal circumstances would have been not only to set aside such ex post facto approvals but also to pass consequential directions to recall all the degrees granted in pursuance thereof in respect of courses leading to award of degrees in Engineering. However, since the 2004 UGC Guidelines themselves had given liberty to the deemed to be universities concerned to apply for ex post facto approval, the matter is required to be considered with some sympathy so that interest of those students who were enrolled during the academic sessions 2001-2005 is protected. Though we cannot wish away the fact that the deemed to be universities concerned flagrantly violated and entered into areas where they had no experience and started conducting courses through distance education system illegally, the overbearing interest of the students concerned persuades us not to resort to recall of all the degrees in Engineering granted in pursuance of the said ex post facto approval. However, the fact remains that the facilities available at the study centres concerned were never checked nor any inspections were conducted. It is not possible at this length of time to order any inspection. But there must be confidence and assurance about the worthiness of the students concerned. We, therefore, deem it appropriate to grant some chance to the students concerned to have their ability tested by Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 9

authorities competent in that behalf. We, therefore, direct that all the degrees in Engineering granted to students who were enrolled during the academic years 2001 to 2005 shall stand suspended till they pass such examination under the joint supervision of AICTE- UGC in the manner indicated hereinafter. Further, every single advantage on the basis of that degree shall also stand suspended.”

8. In spite of the conclusion that (a) courses leading to Degrees in

Engineering could not be taught through Distance Education Mode without

there being express guidelines issued by AICTE3 permitting such mode;

and (b) the deemed to be Universities in question were not entitled to start

courses in Engineering through Distance Education Mode without prior

approval under the AICTE3, the facility of benefit as detailed in paragraphs

57 and 58 of the Judgment was extended to the students. Though the

Degrees obtained through Distance Education Mode were prima facie not

in accordance with law, the students enrolled during the academic sessions

2001-2005 were given two chances to prove their worth and it was directed

that if they clear the test, they would continue to derive advantages flowing

from such Degrees.

It may be mentioned here that there could possibly be variety of

advantages derived by the candidates on the basis of such Degrees awarded

at least 10 years before the Judgment was pronounced. During this period Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 10

some of the candidates might have progressed in career on the basis of

such Degree, while some could possibly have acquired Post-Graduate

qualifications such as M.Tech and M.B.A. on the strength of such Degrees.

It was in this light, that the Court ruled that though from the date of the

Judgment all the advantages and benefits flowing or arising from such

Degrees would stand suspended, the benefits or advantages would get

revived after the candidates had cleared the examination, spoken of in said

paragraphs 57 and 58. If any candidate either failed to clear the

examination in two attempts or if he chose not to appear in the

examination, the Degree would stand annulled completely disentitling the

candidate to all the benefits and advantages flowing from such degrees.

9. Some candidates approached this Court submitting that if in terms

of the Judgment the benefits or advantages were to be withdrawn and

could be regranted or restored only after the candidates had cleared the

examination, it may entail some prejudice to the candidates. Some of the

candidates who had obtained Post-Graduate Degrees and were employed

on the strength of such Degrees would be required to surrender such

benefits; and even if they were to pass the examination in the first attempt,

it may still require restoration of the benefits leading to situations of

inconvenience and prejudice. The directions in the Judgment were Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 11

therefore modified to a certain extent in the Order. It was, therefore, laid

down by way of further concession in the Order that all the candidates who

desired to appear in the upcoming examination could retain all the

advantages and benefits till one month after declaration of the result of test

or till 31.07.2018 whichever was later. The benefit of retaining the

advantages was thus extended only till the first attempt. Those who could

not clear the examination in first attempt or chose not to appear in the

examination conducted in May/June, 2018 were not entitled to the

concessions extended by the Order.

10. It was, therefore, clear that the candidates who, on the strength of

such Degrees awarded through Distance Education Mode, had attained a

particular level in their career or were enjoying certain benefits as on the

date of the Judgment and if they pass the examination, those benefits

would stand restored. If the candidates could clear the examination in the

first attempt itself, there would not even be any break in continuous

enjoyment of those benefits or facilities. The idea was, candidates should

not stand deprived of the status that they were enjoying as on the day of the

Judgment provided the candidates could prove their worth and ability.

But if, the concerned candidates had not attained any particular

status, as on the date when the Judgment was passed, the width of the Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 12

directions was not to confer any additional advantage which was not even

enjoyed as on the date. It was not the idea to hold the candidates to be

entitled to certain additional benefits which the candidates were, as a

matter of fact, not even enjoying on the date of the judgment. If the

degrees stood restored in terms of the directions in the Judgment and the

Order, the candidates would certainly be eligible to such entitlements as

are available in accordance with law, but “restoration” would only be of

those benefits, which they were enjoying as on the date of the Judgment.

In short, the intent was to restore status quo ante and not to confer any

additional advantage by the Judgment and the Order.

11. In the present case serious objection has been raised on behalf of

Department that the concerned candidates had enrolled themselves in

courses leading to Degrees in Engineering through Distance Education

Mode without express permission of the Department and/or the

Department did not recognise the Degrees in Engineering awarded through

Distance Education Mode or that the concerned candidates were not

granted any study leave to pursue such courses. If the Degrees were so

obtained in violation of the norms and parameters laid down by the

concerned Department, the matter assumes completely different

complexion. The directions issued by this Court in the Judgment and the Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 13

Order never directed to confer such advantages which the candidates were

otherwise not enjoying on the date when the Judgment and clarificatory

Order were passed. If there was serious infirmity in the Degrees so

obtained by the candidates, the matter ought to be sorted out either through

representation or through properly instituted challenge in that behalf. If

the promotion was not granted and was not being enjoyed as on the day

when the judgment was passed, there was no violation of any direction

issued by this Court. As is evident, the representations made by the

Contempt Petitioner claimed conferral of certain status and benefits which

they were not enjoying earlier. If there be any grievance on that front, the

entitlement needs to be established in proceedings other than a Contempt

Petition.

12. Mr. Maninder Singh, learned Senior Advocate, was, therefore

completely justified in relying upon the following observations passed by

this Court in J.S. Parihar vs. Ganpat Duggar and others5 :-

“6. The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr S.K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the 5 (1996) 6 SCC 291 Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 14

learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7-

1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench.”

13. We, therefore, do not find any violation on part of the alleged

Contemnors.

Contempt Petition (Civil) Nos.408-409 of 2019 in Civil Appeal Nos.17869-17870 of 2017 Ashok Kumar and Others vs. Depinder Singh Dhesi and Others 15

14. These Contempt Petitions are dismissed. Each of the petitioners

shall deposit Rs.5000/- by way of costs in the concerned Department

within four weeks, failing which the Department shall recover the same in

accordance with law.

……………………………..J. [Uday Umesh Lalit]

……………………………..J. [Vineet Saran] New Delhi;

August 13, 2019.