ASHOK KUMAR AND ORS. versus DEPINDER SINGH DHESI AND ORS. on 13 August 2019

[2019] 10 S.C.R. 581

ASHOK KUMAR AND ORS.

v.

DEPINDER SINGH DHESI AND ORS.

(Contempt Petition (C) Nos. 408-409 of 2019)

In

(Civil Appeal Nos. 17869-17870 of 2017)

AUGUST 13, 2019

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Contempt of Court – When not – Judgment dtd. 03.11.17passed in Civil Appeal Nos.17869-17870/2017 and ClarificatoryOrder dtd. 22.01.18 passed in miscellaneous applications arisingfrom the aforesaid Civil Appeals – Contempt Petitions filed by thecandidates (enrolled in academic sessions 2001-05 and attainedDegrees in Engineering through Distance Education Mode)presently posted as Junior Engineers in Public Health EngineeringDepartment, alleging that the respondents-contemnors violated theaforesaid judgment and order– As per the petitioners, in terms ofthe judgment they appeared in the test held by AICTE and qualifiedin the first attempt, however, they were denied benefits arising fromtheir Degrees which became valid after clearing the examination –It was also alleged that their representations for adding their higherqualification, B.Tech (Civil) and due benefit for promotion at parwith junior candidates who obtained their B.Tech Degrees throughregular mode, were not considered– Held: Though the Degreesobtained through Distance Education Mode were prima facie not inaccordance with law, the students enrolled in the academic sessions2001-05 were given two chances to prove their worth and it wasdirected that if they clear the test, they would continue to deriveadvantages flowing from such Degrees– If the candidates couldclear the examination in the first attempt itself, there would not evenbe any break in continuous enjoyment of those benefits– Idea was,candidates should not stand deprived of the status they wereenjoying on the day of the Judgment, provided the candidates provetheir worth– Directions did not confer any additional advantagewhich was not even enjoyed as on the date– In the present case,

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Aserious objection were raised by Department that the concernedcandidates enrolled in courses in Engineering through DistanceEducation Mode without express permission of the Department and/or the Department did not recognise Degrees awarded through saidmode or that the concerned candidates were not granted any studyleave to pursue such courses– If there was serious infirmity in theBDegrees obtained by the candidates, the matter ought to be sortedout either through representation or through properly institutedchallenge in that behalf – Representations made claimed conferralof certain status/benefits which they were not enjoying earlier –Such entitlement needs to be established in proceedings other thanCContempt Petition –If the promotion was not granted and was notbeing enjoyed as on the day when the judgment was passed, therewas no violation on part of the alleged Contemnors, of any directionissued by Supreme Court – Cost of Rs.5000/- imposed on thepetitioners to be deposited in the concerned Department within four weeks, failing which the Department to recover the same inDaccordance with law – Guidelines/Norms/Directions – 2004University Grants Commission Guidelines.

Dismissing the contempt petitions, the Court

Conclusion

HELD : 1.1 Two kinds of students were before the CourtE(i) those who were enrolled during the academic sessions 2001-2005 and (ii) those who were enrolled after the academic sessions2001-2005. It was noted in para 23.6 that UGC had issued “2004UGC Guidelines” in terms of which concept of ex-post factoapproval in respect of deemed to be Universities which had startedcourses in Distance Education without any approval from theFconcerned authorities was introduced. In accordance with these“2004 UGC Guidelines” some of the deemed to be Universitiesapplied for ex-post facto approval and were granted such approval,as a result of which the students enrolled during academicsessions 2001-2005 stood on a different footing as against thoseGwho were enrolled after the academic sessions 2001-2005. Thoughthe Judgment did not approve of the entire exercise undertakenby the concerned authorities, including the grant of ex-post factoapprovals, a concession was given to the students who wereenrolled during the academic sessions 2001-2005. Though the H

Degrees obtained through Distance Education Mode were primafacie not in accordance with law, the students enrolled during theacademic sessions 2001-2005 were given two chances to provetheir worth and it was directed that if they clear the test, theywould continue to derive advantages flowing from such Degrees.If any candidate either failed to clear the examination in twoattempts or if he chose not to appear in the examination, theDegree would stand annulled completely disentitling the candidateto all the benefits and advantages flowing from such degrees.[Paras 7, 8] [589-D-G; 590-H; 591-A]

1.2 The candidates who, on the strength of such Degreesawarded through Distance Education Mode, had attained aparticular level in their career or were enjoying certain benefitsas on the date of the Judgment and if they pass the examination,those benefits would stand restored. If the candidates could clearthe examination in the first attempt itself, there would not evenbe any break in continuous enjoyment of those benefits orfacilities. The idea was, candidates should not stand deprived ofthe status that they were enjoying as on the day of the Judgmentprovided the candidates could prove their worth and ability. Butif, the concerned candidates had not attained any particular status,as on the date when the Judgment was passed, the width of thedirections was not to confer any additional advantage which wasnot even enjoyed as on the date. If the degrees stood restored interms of the directions in the Judgment and the Order, thecandidates would certainly be eligible to such entitlements asare available in accordance with law, but “restoration” would onlybe of those benefits, which they were enjoying as on the date ofthe Judgment. In short, the intent was to restore status quo anteand not to confer any additional advantage by the Judgment andthe Order. In the present case serious objection has been raisedon behalf of Department that the concerned candidates hadenrolled themselves in courses leading to Degrees in Engineeringthrough Distance Education Mode without express permissionof the Department and/or the Department did not recognise theDegrees in Engineering awarded through Distance EducationMode or that the concerned candidates were not granted any AB

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Astudy leave to pursue such courses. If the Degrees were soobtained in violation of the norms and parameters laid down bythe concerned Department, the matter assumes completelydifferent complexion. If there was serious infirmity in the Degreesso obtained by the candidates, the matter ought to be sorted outeither through representation or through properly institutedBchallenge in that behalf. If the promotion was not granted andwas not being enjoyed as on the day when the judgment waspassed, there was no violation of any direction issued by thisCourt. The representations made by the Contempt Petitionerclaimed conferral of certain status and benefits which they wereCnot enjoying earlier. If there be any grievance on that front, theentitlement needs to be established in proceedings other than aContempt Petition. There is no violation on part of the allegedContemnors. Contempt Petitions are dismissed. Each of thepetitioners shall deposit Rs.5000/- by way of costs in theconcerned Department within four weeks, failing which theDDepartment shall recover the same in accordance with law.[Paras 10, 11, 13 and 14] [592-G-H; 593-A; 594-C]

Orissa Lift Irrigation Corporation Limited v. RabiSankar Patro and others (2018) 1 SCC 468 : [2017]13 SCR 921 ; Orissa Lift Irrigation Corporation LimitedEv. Rabi Sankar Patro and others (2018) 2 SCC 298 :[2018] 1 SCR 839 – referred to.

J.S. Parihar v. Ganpat Duggar and others (1996) 6SCC 291 : [1996] 6 Suppl. SCR 110 – relied on.

Contempt Petition filed against the Judgment dated 03.11.2017 ofthe Hon’ble Supreme Court in Civil Appeal Nos.17869-17870 of 2017.

Siddharth Dave, Sr. Adv., Tahir Ashraf Siddiqui, Ms. MadhusmitaBora, Advs. for the Petitioners.

Maninder Singh, Sr. Adv., Shekhar Raj Sharma, Ms. Shruti Goyal,Ms. Aastha Mehta, Prabhas Bajaj, Ms. Monika Gussain, Sanjay KumarVisen, Ms. Shruti Dag, Advs. for the alleged Contemnors.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. These Contempt Petitions filed by nine Petitioners submit interalia that the alleged Contemnors have wilfully and deliberately violatedthe Judgment dated 03.11.2017[1] passed by this Court in Civil AppealNos.17869-17870 of 2017 and other connected matters (“the Judgment”,for short) and clarificatory Order dated 22.01.2018[2] passed by this Courtin Miscellaneous Application Nos.1795-1796 of 2017 arising fromaforesaid Civil Appeals (“the Order”, for short). In the submission ofthe Contempt Petitioners the following directions issued by this Court inthe Judgment stand violated:- “58. AICTE is directed to devise within one month from the dateof this judgment modalities to conduct appropriate test(s) both inwritten examination as well as in practicals for the studentsconcerned admitted during the academic sessions 2001-2005covering all the subjects concerned. It is entirely left to thediscretion of AICTE to come out with such modalities as it maythink appropriate and the tests in that behalf shall be conducted inthe National Institutes of Technology in the respective Stateswherever the students are located. The choice may be given tothe students to appear at the examination which ideally should beconducted during May-June 2018 or on such dates as AICTEmay determine. Not more than two chances be given to the studentsconcerned and if they do not pass the test(s) their degrees shallstand recalled and cancelled. If a particular student does not wishto appear in the test(s), the entire money deposited by such studenttowards tuition and other charges shall be refunded to that studentby the deemed to be university concerned within a month of the 1 (2018) 1 SCC 468 – Orissa Lift Irrigation Corporation Limited vs. Rabi Sankar Patroand others 2 (2018) 2 SCC 298 – Orissa Lift Irrigation Corporation Limited vs. Rabi Sankar Patroand others A

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Aexercise of such option. The students be given time till 15-1-2018to exercise such option. The entire expenditure for conductingthe test(s) in respect of students who wish to undergo test(s) shallbe recovered from the deemed to be universities concerned by31-3-2018. If they clear the test(s) within the stipulated time, allthe advantages or benefits shall be restored to the candidatesBconcerned. We make it clear at the cost of repetition that if thecandidates concerned do not clear the test(s) within the timestipulated or choose not to appear at the test(s), their degrees inEngineering through distance education shall stand recalled andcancelled. It goes without saying that any promotion orCadvancement in career on the basis of such degree shall alsostand withdrawn, however, any monetary benefits or advantagesin that behalf shall not be recovered from them.

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

It is also submitted that the directions issued above were reiteratedin following terms in the Order:- “A] All such candidates, who wish to appear at the forthcomingtest to be conducted by AICTE in May-June 2018 and whoEexercise option to appear at the test in terms of the judgment, canretain the degrees in question and all the advantages flowingtherefrom till one month after the declaration of the result of suchtest or till 31.07.2018 whichever is earlier.

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

2. According to the Contempt Petitioners:-G

(i) They had enrolled themselves in courses leading toDegrees in Engineering through Distance EducationMode during the period 2001-2005.

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(ii) In terms of the Judgment, the Petitioners appeared inAthe test held by AICTE[3] on 03.06.2018 and qualified inthe first attempt.

(iii) The Petitioners are presently posted as Junior Engineersin Public Health Engineering Department, Haryana.

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(iv) Soon after clearing the examination, representationswere made by the Petitioners that they were entitled toall the benefits arising from their Degrees in terms ofthe Judgment and the Order.

(v) The representations so preferred were more or lessidentical in terms and by way of sample one of thesubmissions made therein was:- C

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

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3. Alleging that no action was taken in respect of representationspreferred by the Petitioners, it is submitted in the Contempt Petition:-

“6. That the above said representation has not been replied to tilldate nor any action has been taken on the same. Rather theACRs of the candidates who are junior to the Petitioners haveEbeen called for and their files have been forwarded to the AdditionalChief Secretary for issuing orders of promotion. It is pertinent tomention that the above mentioned junior candidates had obtainedtheir B.Tech degree through regular mode and the Petitionersherein had obtained their B.Tech Degrees from the DeemedUniversities through the ODL Mode. However, after theFPetitioners have cleared the June 2018 AICTE exam their degreeshave become valid and hence they are to be treated at par withthose Junior Engineers who have obtained their Degrees throughthe Regular Mode. The fact that the Petitioners have been ignoredand the ACRs of the Junior Candidates have been called for showsGthat the Contemnors / Respondents have deliberately and wilfullyviolated the directions of this Hon’ble Court passed in Judgmentdated 03.11.2017 and 22.01.2018.”

3 All India Council for Technical Education A4. In the affidavit-in-reply filed on behalf of the allegedContemnors/Respondents, it was submitted that opinion of the AdvocateGeneral was sought inter alia, on the following issue:- “ii) Whether the Judgment of Hon’ble Supreme Court in SLPNo.17869-17870 of 2017 titled as Orissa Lift Corporation Ltd.Bvs. Rabi Sankar Patro and others in the matter is applicable to thecandidates to whom no benefit of acquisition of higher qualificationhas been granted till date and the said Judgment is applicable onlyto those officer/officials to whom benefit of such degrees hadalready been given in the matter of recruitment / promotion etc.”

CThe opinion given by the Deputy Advocate General was to thefollowing effect:- “The very intent of the aforesaid direction is to restore the degreesof such candidates (enrolled during academic sessions 2001-2005)from the date of issuance itself, so that the benefits granted toDthem on the basis of such degrees are not withdrawn and further,that they become eligible for consideration for various benefitsdenied to them owing to lack of validity of such degrees. However,the said directions cannot be construed in a manner, so as to includeany advantage/benefit not granted to a candidate/employee viz.initial entry into service, promotion, increment etc. because ofElack of validity of such degree at that particular point of time.Moreover, such an interpretation of the directions of the Hon’bleCourt would lead to administrative chaos especially in the mattersof selection and promotions.”

5. An additional affidavit has also been filed on behalf allegedFContemnor No.3 placing reliance on letter No.3712-2CS-II-72/21209dated 18.07.1972 in terms of which an employee could be permitted tojoin academic courses/appear in examinations after appropriatepermissions. The letter stated inter alia:- “It has been noticed that Government employees who areGpermitted to join academic instructions/appear in examinationsproceed on leave on one pretext or the other, for a major part ofthe year in order to make preparations. As this tendency isundesirable and affects Government work adversely, it has beendecided to place certain restrictions on permission accorded toGovernment employees in this respect, as under:-H

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

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

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

6. We heard Mr. Siddharth Dave, learned Senior Advocate forthe Petitioners and Mr. Maninder Singh, learned Senior Advocate forthe alleged Contemnors.

7. At the outset, the reasons for issuing directions which are reliedupon by the Petitioners as evident from the Judgment and the Order arerequired to be stated and taken into account. Two kinds of studentswere before the Court (i) those who were enrolled during the academicsessions 2001-2005 and (ii) those who were enrolled after the academicsessions 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 factoapproval in respect of deemed to be Universities which had startedcourses in Distance Education without any approval from the concernedauthorities was introduced. In accordance with these “2004 UGCGuidelines” some of the deemed to be Universities applied for ex-postfacto approval and were granted such approval, as a result of which thestudents enrolled during academic sessions 2001-2005 stood on a differentfooting as against those who were enrolled after the academic sessions2001-2005.

Though the Judgment did not approve of the entire exerciseundertaken by the concerned authorities, including the grant of ex-postfacto approvals, a concession was given to the students who were enrolledduring the academic sessions 2001-2005 and the matter in that behalfwas dealt with in paragraph 57 as under:- 4 University Grants Commission AB

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A“57. Having found the entire exercise of grant of ex post factoapproval to be incorrect and illegal, the logical course in normalcircumstances would have been not only to set aside such ex postfacto approvals but also to pass consequential directions to recallall the degrees granted in pursuance thereof in respect of coursesleading to award of degrees in Engineering. However, since theB2004 UGC Guidelines themselves had given liberty to the deemedto be universities concerned to apply for ex post facto approval,the matter is required to be considered with some sympathy sothat interest of those students who were enrolled during theacademic sessions 2001-2005 is protected. Though we cannotCwish away the fact that the deemed to be universities concernedflagrantly violated and entered into areas where they had noexperience and started conducting courses through distanceeducation system illegally, the overbearing interest of the studentsconcerned persuades us not to resort to recall of all the degrees inEngineering granted in pursuance of the said ex post factoDapproval. However, the fact remains that the facilities availableat the study centres concerned were never checked nor anyinspections were conducted. It is not possible at this length oftime to order any inspection. But there must be confidence andassurance about the worthiness of the students concerned. We,Etherefore, deem it appropriate to grant some chance to the studentsconcerned to have their ability tested by authorities competent inthat behalf. We, therefore, direct that all the degrees in Engineeringgranted to students who were enrolled during the academic years2001 to 2005 shall stand suspended till they pass such examinationunder the joint supervision of AICTE-UGC in the manner indicatedFhereinafter. Further, every single advantage on the basis of thatdegree shall also stand suspended.”

8. In spite of the conclusion that (a) courses leading to Degrees inEngineering could not be taught through Distance Education Mode withoutthere being express guidelines issued by AICTE[3] permitting such mode;and (b) the deemed to be Universities in question were not entitled tostart courses in Engineering through Distance Education Mode withoutprior approval under the AICTE[3], the facility of benefit as detailed inparagraphs 57 and 58 of the Judgment was extended to the students.Though the Degrees obtained through Distance Education Mode were G

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prima facie not in accordance with law, the students enrolled during theacademic sessions 2001-2005 were given two chances to prove theirworth and it was directed that if they clear the test, they would continueto derive advantages flowing from such Degrees.

It may be mentioned here that there could possibly be variety ofadvantages derived by the candidates on the basis of such Degreesawarded at least 10 years before the Judgment was pronounced. Duringthis period some of the candidates might have progressed in career onthe basis of such Degree, while some could possibly have acquired Post-Graduate qualifications such as M.Tech and M.B.A. on the strength ofsuch Degrees. It was in this light, that the Court ruled that though fromthe date of the Judgment all the advantages and benefits flowing orarising from such Degrees would stand suspended, the benefits oradvantages would get revived after the candidates had cleared theexamination, spoken of in said paragraphs 57 and 58. If any candidateeither failed to clear the examination in two attempts or if he chose notto appear in the examination, the Degree would stand annulled completelydisentitling the candidate to all the benefits and advantages flowing fromsuch degrees.

9. Some candidates approached this Court submitting that if interms of the Judgment the benefits or advantages were to be withdrawnand could be regranted or restored only after the candidates had clearedthe examination, it may entail some prejudice to the candidates. Someof the candidates who had obtained Post-Graduate Degrees and wereemployed on the strength of such Degrees would be required to surrendersuch benefits; and even if they were to pass the examination in the firstattempt, it may still require restoration of the benefits leading to situationsof inconvenience and prejudice. The directions in the Judgment weretherefore modified to a certain extent in the Order. It was, therefore,laid down by way of further concession in the Order that all the candidateswho desired to appear in the upcoming examination could retain all theadvantages and benefits till one month after declaration of the result oftest or till 31.07.2018 whichever was later. The benefit of retaining theadvantages was thus extended only till the first attempt. Those whocould not clear the examination in first attempt or chose not to appear inthe examination conducted in May/June, 2018 were not entitled to theconcessions extended by the Order.

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A10. It was, therefore, clear that the candidates who, on the strengthof such Degrees awarded through Distance Education Mode, had attaineda particular level in their career or were enjoying certain benefits as onthe date of the Judgment and if they pass the examination, those benefitswould stand restored. If the candidates could clear the examination inthe first attempt itself, there would not even be any break in continuousBenjoyment of those benefits or facilities. The idea was, candidates shouldnot stand deprived of the status that they were enjoying as on the day ofthe Judgment provided the candidates could prove their worth and ability.

But if, the concerned candidates had not attained any particularstatus, as on the date when the Judgment was passed, the width of theCdirections was not to confer any additional advantage which was noteven enjoyed as on the date. It was not the idea to hold the candidatesto 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 thedegrees stood restored in terms of the directions in the Judgment andDthe Order, the candidates would certainly be eligible to such entitlementsas are available in accordance with law, but “restoration” would only beof 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 anyadditional advantage by the Judgment and the Order.

E11. In the present case serious objection has been raised on behalfof Department that the concerned candidates had enrolled themselvesin courses leading to Degrees in Engineering through Distance EducationMode without express permission of the Department and/or theDepartment did not recognise the Degrees in Engineering awardedthrough Distance Education Mode or that the concerned candidates wereFnot granted any study leave to pursue such courses. If the Degreeswere so obtained in violation of the norms and parameters laid down bythe concerned Department, the matter assumes completely differentcomplexion. The directions issued by this Court in the Judgment and theOrder never directed to confer such advantages which the candidatesGwere otherwise not enjoying on the date when the Judgment andclarificatory Order were passed. If there was serious infirmity in theDegrees so obtained by the candidates, the matter ought to be sorted outeither through representation or through properly instituted challenge inthat behalf. If the promotion was not granted and was not being enjoyedas on the day when the judgment was passed, there was no violation ofH

any direction issued by this Court. As is evident, the representationsmade by the Contempt Petitioner claimed conferral of certain status andbenefits which they were not enjoying earlier. If there be any grievanceon that front, the entitlement needs to be established in proceedings otherthan a Contempt Petition.

12. Mr. Maninder Singh, learned Senior Advocate, was, thereforecompletely justified in relying upon the following observations passed bythis Court in J.S. Parihar vs. Ganpat Duggar and others[5] :-

“6. The question then is whether the Division Bench was right insetting aside the direction issued by the learned Single Judge toredraw the seniority list. It is contended by Mr S.K. Jain, thelearned counsel appearing for the appellant, that unless the learnedJudge goes into the correctness of the decision taken by theGovernment in preparation of the seniority list in the light of thelaw laid down by three Benches, the learned Judge cannot cometo a conclusion whether or not the respondent had wilfully ordeliberately disobeyed the orders of the Court as defined underSection 2(b) of the Act. Therefore, the learned Single Judge ofthe 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 iswhether seniority list is open to review in the contempt proceedingsto find out whether it is in conformity with the directions issued bythe earlier Benches. It is seen that once there is an order passedby the Government on the basis of the directions issued by thecourt, there arises a fresh cause of action to seek redressal in anappropriate forum. The preparation of the seniority list may bewrong or may be right or may or may not be in conformity withthe directions. But that would be a fresh cause of action for theaggrieved party to avail of the opportunity of judicial review. Butthat cannot be considered to be the wilful violation of the order.After re-exercising the judicial review in contempt proceedings, afresh direction by the learned Single Judge cannot be given toredraw the seniority list. In other words, the learned Judge wasexercising the jurisdiction to consider the matter on merits in the A

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Acontempt proceedings. It would not be permissible under Section12 of the Act. Therefore, the Division Bench has exercised thepower under Section 18 of the Rajasthan High Court Ordinancebeing a judgment or order of the Single Judge; the Division Benchcorrected the mistake committed by the learned Single Judge.Therefore, it may not be necessary for the State to file an appealBin this Court against the judgment of the learned Single Judgewhen the matter was already seized of the Division Bench.”

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

C14. These Contempt Petitions are dismissed. Each of the petitionersshall deposit Rs.5000/- by way of costs in the concerned Departmentwithin four weeks, failing which the Department shall recover the samein accordance with law.

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Contempt petitions dismissed.

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