Calcutta High Court (Appellete Side)
Federation) & Ors vs The State Of West Bengal & Ors on 24 July, 2023
Author: Debangsu Basak
Bench: Debangsu Basak
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 238 of 2014
IA NO: CAN/2/2016(Old No:CAN/6557/2016)
CAN/4/2019(Old No:CAN/2592/2019)
CAN/5/2019(Old No:CAN/6775/2019)
CAN/6/2020(Old No:CAN/2046/2020)
CAN/7/2020
West Bengal (Government and Sponsored) Polytechnic Teachers'
Association (Formerly West Bengal Polytechnic Teachers'
Federation) & ors.
VS.
The State of West Bengal & ors.
For the Writ Petitioners/
Appellants : Mr. Samim Ahammed,
Ms. Gulsanwara Pervin,
Ms. Ambiya Khatun
Advocates
For the State : Mr. Tapan Kumar Mukherjee,
Sr. Advocate & A.G.P.
Mr. Pranab Halder,
Ms. Tuli Sinha
Advocates
Hearing concluded on : 24.07.2023
Judgement on : 24.07.2023
DEBANGSU BASAK, J.:-
1.The writ petitioners assail an order dated April 4, 2014 passed by the West Bengal Administrative Tribunal in O.A.322 of 2012.
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2. By the impugned order, the Tribunal was pleased to negate the claim for modified career advancement scheme as prayed for by the writ petitioners.
3. The claim was negated by the Tribunal on the ground that, the condition of participation in a refresher course was introduced by the All India Council for the Technical Education (AICTE) and was incorporated in Government Order dated October 24, 2007 as well as in Government Order dated September 13, 2010. The Tribunal noted the Government Order dated November 28, 2011 which spoke of grant of benefit of selection grade notionally with effect from the date of entitlement even without participation in the training programme as laid down in the Government Order dated September 13, 2010. The Tribunal agreed with the contention that it was not mandatory for the State Government to accept all recommendations of AICTE in regard to pay scale or other conditions of service in their entirety in respect of Polytechnic Institutions under the control of the State Government.
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4. Learned advocate appearing for the petitioners submits that, any regulation issued by the AICTE is binding upon the State Government. He submits that, AICTE Regulations are issued under the provisions of All India Council for Technical Education Act, 1987. He relies upon (1995) 4 Supreme Court Cases 104 (State of Tamil Nadu & another vs. Adhiyaman Educational & Research Institute and ors.), (2013) 3 Supreme Court Cases 385 (Parshvanath Charitable Trust and others vs. All India Council for Technical Education and others), (2020) 4 Supreme Court Cases 484 (Gelus Ram Sahu and others vs. Dr. Surendra Kumar Singh and others), order dated March 31, 2016 passed by WP 30843(W) of 2014 (Tarun Kumar Khanra & ors. vs. The State of West Bengal & ors.), judgment and order dated July 20, 2018 passed in FMA 2801 of 2016 (The Director, Directorate of Technical Education and Training, Government of West Bengal) v. Tarun Kumar Khanra & ors. and the order dated April 19, 2022 in Special Leave to Appeal (C) No(s).14606- 14607/2019 (The Director, Directorate of Technical Education and Training Govt. of West Bengal & ors. vs. Tarun Kumar 4 Khanra & ors.) in support of his contention that regulations of AICTE are binding upon the State.
5. Learned advocate appearing for the petitioners draws the attention of the Court to the Regulation issued by the AICTE dated March 5, 2010. He submits that such Regulation was accepted by the State on September 13, 2010. He refers to a Circular issued by the State dated June 8, 2011 as well as the notification dated June 10, 2016. He contends that, State accepted all Regulations of AICTE. Therefore, there was no question of the State not granting the modified career advancement scheme to the petitioners.
6. Learned Senior Advocate for the State submits that, the so-called acceptance dated June 8, 2021, was issued by the Directorate of Technical Education & Training, Government of West Bengal, who was not authorised to issue such circular. Such circular does not bind the State. He contends that, all Regulations of AICTE are not binding on the State. State is required to look after the financial aspect. State can formulate its own Rule. In support of his contention he draws the 5 attention of the Court to the observations made by the Hon'ble Supreme Court in Gelus Ram Sahu and others (supra).
7. The first petitioner is the Association of teaching staff employed in Polytechnic Colleges within the State of West Bengal both Government and sponsored. The other petitioners are persons who hold offices of the first petitioner.
8. The petitioners approached the Tribunal by way of the Original Application being O.A.322 of 2012 complaining that the State was not acting in terms of the recommendations/clarifications of the expert committee of AICTE. The State Government did not remove the anomalies pertaining to pay scales and service conditions of teachers of degrees/diploma level technical institutions. The petitioners sought quashing of Memo dated November 28, 2011 of the State which according to the petitioners were not in conformity with the recommendations/clarifications of the Expert Committee of AICTE granting benefits of Career Advancement Scheme (CAS) due and admissible to them.
9. By a notification dated November 28, 2011, State Government took a decision with regard to award of CAS 6 benefit of selection grade scale (second CAS) in favour of lecturers of Government/Government Sponsored Polytechnic. One of the clauses was that, such lecturers shall be paid actual benefits strictly with effect from the date of completion of all other criteria including the training programme as provided in Government Order dated September 13, 2010.
10. By the Government Order dated September 13, 2010, State accorded sanction to revised Pay structures with corresponding Academic Grade Pay, notionally with effect from January 1, 2006. It inter alia prescribed that all advancements to higher grade pay in various cadres will be effected subject to completion of two AICTE approved refresher programmes of not less than two weeks duration each and two one week each Technical Education Quality Improvement Programme (TEQIP) sponsored programmes.
11. AICTE issued a notification dated March 5, 2010 framing regulations named as "All India Council for Technical Education Pay Scale, Service Conditions, Qualifications for the Teachers and other Academic Staff in Technical Institutions (Diploma) Regulations, 2010".
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12. The Regulations of 2010, introduced by the notification dated March 5, 2010 by the AICTE required inter alia the following qualifications:-
"(xvi) All advancements to higher grade pays in various cadres will be effected subject to completion of two AICTE approved refresher programs of not less than two weeks duration each and two one week each TEQIP sponsored programs."
13. By a notification dated November 28, 2011 State sought to prescribe that, CAS benefit of selection grade scale (2nd CAS) shall be paid strictly with effect from the date of completion of all other criteria including the training programme as provided by the Government Order dated September 13, 2010.
14. AICTE subsequently, clarified the regulation of 2010 on June 10, 2016 by prescribing the following:
59 Consideration of relax Two courses/programs two one week each of one week duration TEQIP sponsored each approved or programs for CAS. conducted by AICTE/UGC/MHRD/D ST/Central/State Govt.
Universities/Institutes may also be considered as alternative to TEQIP programs.
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15. By the notification of November 28, 2011 State claimed that CAS benefit can be extended to only those persons who undertook two one week each TEQIP sponsored programmes and none less.
16. Petitioners claim that the alternative provided by AICTE on June 10, 2016 is binding on the State as much as the regulation of 2010.
17. State contends that, AICTE Regulations are not mandatory on the State and that other criteria can be laid down by the State. Petitioners contend that AICTE Regulations are binding.
18. In Adhiyaman Educational and Research Institute & Ors. (supra), the Supreme Court considered the issue as to whether after coming into force of the All India Council for Technical Education Act, 1987 the State Government retained the power to grant or withdraw permission to start a technical education as defined in the Central Act or not. In dealing with such issue, the Supreme Court observed that where the provisions of the Central statute on the one hand and of the 9 State statute on the other, are inconsistent and repugnant to each other, the Central statute will prevail. It observed that, the derecognition or disaffiliation on the grounds which are inconsistent with those enumerated in the Central statute will be inoperative.
19. Adhiyaman Educational and Research Institute and ors. (supra) was considered in Parshvanath Charitable Trust and ors (supra). It was held there that:
"24. The consistent view of this Court has been that where both Parliament and the State Legislature have the power to legislate, the Central Act shall take precedence in the matters which are covered by such legislation and the State enactments shall pave way for such legislations to the extent they are in conflict or repugnant. As per the established canons of law, primacy of the Central Act is indisputable which necessarily implies primacy of AICTE in the field of technical education. Statutes like the present one as well 10 as the National Council for Teacher Education Act, 1993, the Indian Medical Council Act, 1956, etc. fall within the ambit of this canon of law. AICTE is the authority constituted under the Central Act with the responsibility of maintaining operational standards and judging the infrastructure and facilities available for imparting professional education. It shall take precedence over the opinion of the State as well as that of the University. The department concerned of the State and the affiliating university have a role to play, but it is limited in its application. They cannot lay down any guidelines or policies in conflict with the Central statute or the standards laid down by the Central body. The State can frame its policies, but such policy again has to be in conformity with the direction issued by the Central body. Though there is no such apparent conflict in the present case, yet it needs to be 11 clarified that grant of approval by the State and affiliation by the University for increased intake of seats or commencement of new college should not be repugnant to the conditions of approval/recommendation granted by AICTE. These authorities have to work in tandem as all of them have the common object to ensure maintenance of proper standards of education, examination and proper infrastructure for betterment of technical educational system."
20. In paragraph 25, Parshvanath Charitable Trust & ors (supra) held that, Regulations framed by the Central authorities such as AICTE have the force of law and are binding on all concerned.
21. On the strength of Parshvanath Charitable Trust & ors (supra) it can be said that, regulations framed by AICTE have the force of law. State cannot lay down a policy or a guideline in conflict with any regulation of AICTE. Policy of the State needs to be in conformity with the regulation or direction of AICTE.
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22. Gelus Ram Sahu and ors. (supra) considered the issue of cancellation of an appointment of persons since it was alleged that it violated the provisions of AICTE Regulation of 2010. In the facts of that case, the Supreme Court found that, the appellant satisfied the eligibility criteria prescribed under the AICTE Regulation of 2010 and therefore, his appointment should remain untouched.
23. The Single Bench in Tarun Kumar Khanra & ors. (supra) considered the prescription of a pay scale for lecturers by the AICTE Regulation of 2010. The decision was upheld by the Division Bench. The Special Leave Petition preferred against the same was dismissed. The Division Bench observed as follows:-
"21. Since under the provisions of the West Bengal State Council of Technical Education Act, 1995, the power to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations, is uniform, under 13 Section 15(1)(viii), there cannot be two separate staff patterns for Government polytechnics and non-
Government polytechnics, for the same purpose, especially when the State of West Bengal has accepted the recommendations of the expert body by making the said Rules of 2009 as amended by the transitory provisions for junior lecturers already in service and for direct recruitment by the Rules of 2012, where also there is no scope for having junior lecturers, but only lecturers as the lowest teaching post. The State has made the rules for carrying out the purposes of the Act of 1995, under Section 32 thereof, and no distinction has been made between Government polytechnics and private polytechnics so long as they are affiliated to the Council established by the said statute and it is nobody's case that the Ramakrishna Mission Shilpapith at Belgharia is not affiliated to the Council and/or courses of study 14 therein do not lead to a diploma of the Council. Therefore, of necessity, it must be held that if a polytechnic is affiliated to the Council and a course of instruction therein leads to a diploma of the Council, then they are to be guided and controlled by the Rules made by the State of West Bengal, particularly in the matter of the lowest level of teaching post, being the former demonstrators, re-
designated junior lecturers and upgraded by the transitory provisions to lecturers. In other words, under its power to make Regulations, the Council, whose regulations in terms of section15(1)(viii) as to the staff pattern and qualifications would have been binding on both the Government and non-Government polytechnics, could not make any regulations making any qualitative changes, different from the staff pattern made by the State of West Bengal through such rules. These regulations are itself valid and 15 effective only if they are approved by the same State of West Bengal, which could not, under Article 14 of the Constitution of India, approve one staff pattern for Government polytechnics and another staff pattern for non-Government polytechnics, when the diploma awarded by the Council in both cases under the same course of study/instructions, would be the same. This is a conclusion which becomes irresistible if the ratio in the case of Adhiyaman Educational and Research Institute [supra] is considered in its context. Thus, on the consequential issue as stated in paragraph 19, I hold that the rules made by the State of West Bengal under the provisions of the 1995 Act, for its purposes, so far as they are in consonance with the intention of the Union Legislature and that which has been accepted by the Union Government for the purposes of technical education including in 16 respect of staff pattern, uniformly for all polytechnics, throughout the country, would apply with equal force to both Government polytechnics and non-Government, private or Government sponsored polytechnics."
24. In the facts of the present case, therefore, the claim of the members of the petitioner no.1 for benefits under the AICTE Regulation of 2010 as clarified by the notification dated June 10, 2016 are required to be individually assessed and granted from the date from which an individual becomes entitled thereto.
25. In such circumstances, we direct the authorities to undertake such exercise and to grant benefits of the Regulation of 2010 to individual members of the first petitioner as may be entitled to, within a period of four weeks from date.
26. With the aforesaid observations the WP.ST 238 of 2014 along with all connected applications are disposed of without any order as to costs.
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27. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Debangsu Basak, J.)
28. I agree.
(Md. Shabbar Rashidi, J.) CHC