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

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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

J U D G M E N T

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 22.01.20182 passed by this Court in

1 (2018) 1 SCC 468 – Orissa Lift Irrigation Corporation Limited vs. Rabi Sankar Patro  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

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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

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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

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(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

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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

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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

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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 UGC4 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

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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

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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

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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

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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

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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

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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

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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.

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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.