Gauhati High Court
Bhabesh Goswami & 3 Ors vs The State Of Assam & 3 Ors on 22 March, 2016
Author: A. K. Goswami
Bench: A. K. Goswami
1
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
Writ Petition No. 578/2013
1. Sri Bhabesh Goswami,
S/o M. D. Goswami,
R/o Jatia, P.S. Dispur,
Guwahati, in the District of Kamrup (M),
Assam, PIN-781006.
2. Md. Sayeedul Islam,
S/o Sahidul Islam,
R/o Mangaldoi, Ward No. 2,
in the District of Darrang, Assam.
3. Smti Plabita Borbora,
W/o Sri Anup Kumar Phukan,
R/o Quarter No. 3, A.E.I. Girls' Hostel Campus, Chadmari,
Guwahati-781003, in the District of Kamrup (M), Assam.
4. Smti Dipika Haloi,
W/o Sri Mukunda Deka,
R/o Maligaon, Guwahati-781011,
in the District of Kamrup (M), Assam.
- Petitioners
-Versus-
1. The State of Assam
Represented by the Secretary to the Government of Assam,
Department of Higher and Technical Education,
Dispur, Guwahati-781006, Assam.
2. The Secretary to the Government of Assam,
Department of Finance, Dispur, Guwahati-781006, Assam.
3. The Director, Technical Education, Assam,
Kahilipara, Guwahati-781019, Assam.
,,
4. All India Council For Technical Education (AICTE),
A statutory body having its office at I.G. Sports Complex,
I.P. Estate, New Delhi-110002.
- Respondents
Writ Petition No. 1393/2013
1. Smti Manashi Das Queah, W/o Sri B.M. Queah, R/o 5 B. Subansiri Apartments, Near Govt. Press, Bamunimaidam, Guwahati, in the District of Kamrup (M), Assam.
2. Md. Pirbaksh Ali, S/o Late Hazarat Ali, Resident of A.E.I. Quarter No. 16, Chandmari, Guwahati-781003, in the District of Kamrup (M), Assam.
W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 2
3. Sri Bimal Ch. Das, S/o Late Praneswar Das, R/o Gandhinagar, Ward No. 15, P.O. and District - Barpeta, Assam.
- Petitioners
-Versus-
1. The State of Assam Represented by the Secretary to the Government of Assam, Department of Higher and Technical Education, Dispur, Guwahati-781006, Assam.
2. The Secretary to the Government of Assam, Department of Finance, Dispur, Guwahati-781006, Assam.
3. The Director, Technical Education, Assam, Kahilipara, Guwahati-781019, Assam.
,
4. All India Council For Technical Education (AICTE), A statutory body having its office at I.G. Sports Complex, I.P. Estate, New Delhi-110002.
- Respondents Writ Petition No. 2879/2013 Sri Bipul Kumar Ghosh, S/o Late Rabindra Chandra Ghosh, Resident of Quarter No. 21, A.E.I. Campus, Chandmari, Guwahati-781003, in the District of Kamrup (M), Assam.
- Petitioners
-Versus-
1. The State of Assam Represented by the Secretary to the Government of Assam, Department of Higher and Technical Education, Dispur, Guwahati-781006, Assam.
2. The Secretary to the Government of Assam, Department of Finance, Dispur, Guwahati-781006, Assam.
3. The Director, Technical Education, Assam, Kahilipara, Guwahati-781019, Assam.
4. All India Council For Technical Education (AICTE), A statutory body having its office at I.G. Sports Complex, I.P. Estate, New Delhi-110002.
- Respondents
BEFORE
HON'BLE MR. JUSTICE A. K. GOSWAMI
For the petitioners : Mr. K. N. Choudhury,
Senior Advocate,
W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 3 Mr. A. Dhar, Advocate, For respondent Nos. 1 and 3 : Mr. M.K. Mishra, SC, Education (Higher) Department, Government of Assam, For respondent Nos. 2 and 4 : None appears Dates of hearing : 28.01.2016, 09.02.2016 and 04.03.2016 Date of judgement :
JUDGMENT AND ORDER At the very outset, the relevant facts for the purpose of disposal of the writ petitions, as pleaded in the writ petitions, may be noticed:
WP(C) 578/2013 The writ petitioners, four in number, are presently working as Lecturers (Senior Scale) in the Assam Engineering Institute (for short, 'AEI'), Guwahati. The petitioner No. 1 joined the post of Lecturer in AEI on 08.12.1994, pursuant to the appointment order dated 07.12.1994, in terms of a selection process conducted by the Assam Public Service Commission (for short, 'APSC'). After completion of six years of service, he was given the benefit of the grade of Lecturer (Senior Scale) with retrospective effect from 08.12.2000 as per Career Advancement Scheme (for short, 'CAS'), in terms of the Indian Council for Technical Education (for short, 'AICTE') norms, vide notification dated 14.11.2007. At the time of his appointment as Lecturer, the petitioner No. 1 possessed the degree of B.E. (Mechanical). At the time of filing the writ petition, petitioner No. 1 was pursuing M.S. (Manufacturing Management) under the Birla Instutute of Technology and Science (BITS), Pilani. Petitioner No. 2 joined the post of Lecturer in the Dibrugarh Polytechnic, Lahowal, with effect from 17.05.1995 pursuant to the appointment order dated 12.05.1995 in terms of a selection process conducted by the APSC. After completion of six years of service, he was given the benefit of the grade of Lecturer (Senior Scale) with retrospective effect from 17.05.2001 as per CAS in terms of the AICTE norms vide notification dated 31.03.2007. At the time of his selection, petitioner No. 2 possessed the degree of B.E. (Mechanical) from the Assam Engineering College, Jorhat. He completed M. Tech (Mechanical) Degree in May, 2010 from the Assam Engineering College, Guwahati. Petitioner No. 3 joined the post of Lecturer in the Assam Engineering Institute, Guwahati, with effect from 12.01.1995 pursuant to the appointment order dated
05.01.1995 in terms of a selection process conducted by the APSC. After completion of six years of service, she was given the benefit of the grade of Lecturer (Senior Scale) with W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 4 retrospective effect from 12.01.2001 by issuing notification dated 31.03.2007. At the time of her selection, petitioner No. 3 possessed the degree of B.E. (Computer Science) from the Jorhat Engineering College, Jorhat. She completed M.S. (Software Systems) in January, 2013, from the Birla Institute of Technology and Science (BITS), Pilani. Petitioner No. 4 joined the post of Lecturer in the Dibrugarh Polytechnic, Lahowal, with effect from 21.06.1995 pursuant to the appointment order dated 16.06.1995 in terms of a selection process conducted by the APSC. After completion of six years of service, she was given the benefit of the grade of Lecturer (Senior Scale) with retrospective effect from 21.06.2001 by a notification dated 14.11.2007. At the time of her selection, petitioner No. 4 possessed the degree of B.E. (Electrical) from the Assam Engineering College, Guwahati. At the time of filing the writ petition, she had completed her theoretical part of M. Tech (Electrical) from Assam Engineering College and was expecting Master Degree. The petitioners are aggrieved by non-consideration of their cases for grant of Lecturer (Selection Grade) Pay Scale with Academic Grade Pay (AGP) benefits under the CAS as recommended by the AICTE.
WP(C) 1393/2013
2. The writ petitioners, three in number, are working as Lecturers in different polytechnics. Petitioner No. 1 joined the post of Senior Instructor in the Girls' Polytechnic, Guwahati, with effect from 01.04.1981. Initially, the petitioner No. 1 was promoted to the post of Lecturer in the subject of Arts and Drawing under Regulation 4(d) of the Assam Public Service Commission Regulation, 1951 (for short, 'APSC Regulation, 1951') and, accordingly, she had joined the post of Lecturer with effect from 29.05.2004. Subsequently, vide a notification dated 28.08.2007, the promotion of the petitioner No. 1 to the post of Lecturer was regularized with effect from her date of joining. She possesses the degree of Bachelor of Fine Arts from M.S.U., Baroda. Petitioner No. 2 joined the post of Senior Instructor at the Assam Engineering Institute on 01.06.1990. Thereafter, by a notification dated 27.05.2004, he was promoted to the post of Lecturer at Silchar Polytechnic under Regulation 4(d) of the APSC Regulation, 1951, and he joined the post of Lecturer on 31.05.2004. Subsequently, by a notification dated 28.08.2007, the promotion of the petitioner No. 2 to the post of Lecturer in Electronics and Tele Communication Department was regularized with effect from his date of joining. He possesses a degree of B. Tech (Electronics and Tele Communication). Petitioner No. 3 obtained degree of B.E. (Electrical). He joined the post of Senior Instructor at Dibrugarh Polytechnic on 19.06.1992. Thereafter, by a notification dated 27.05.2004, he was promoted to the post of Lecturer under Regulation 4(d) of the APSC Regulation, 1951, W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 5 and he joined the post of Lecturer on 31.05.2004 in the Electrical Engineering Department of the same Polytechnic. Subsequently, vide notification dated 28.08.2007, the promotion of the petitioner No. 3 was regularized with effect from 31.05.2004. All the three petitioners are drawing revised pay scale of Lecturer with Academic Grade Pay of Rs. 5,400/- with effect from 01.01.2006. The petitioners' grievance is that as per the existing guidelines issued by the respondent No. 4, i.e., AICTE, after completion of six years of service in the scale of Lecturer, they are required to be placed in the pay scale of Lecturer (Senior Scale) with AGP of Rs. 7,000/-, which has not been done by the respondent authorities.
WP(C) 2879/2013
3. The petitioner in this writ petition is a Diploma holder and he was appointed as Senior Instructor vide an order dated 12.05.1987 and posted at the Silchar Polytechnic wherein he joined on 22.05.1987. He acquired the Degree from AMIE in the year 1993 and, thereafter, he was promoted to the post of Lecturer vide a notification dated 30.10.1999 under Regulation 4(d) of the APSC Regulation, 1951, and he joined the post on 04.11.1999. Subsequently, vide a notification dated 07.11.2007, his promotion to the post of Lecturer, Polytechnic, was regularized with effect from his date of joining. After completion of six years of service in the scale of Lecturer, by a notification dated 31.03.2007, he was placed in the pay scale of Lecturer (Senior Scale) with retrospective effect from 04.11.2005. The petitioner is aggrieved by non-consideration of his case under CAS to the post of Lecturer (Selection Grade) with Academic Grade Pay benefits as recommended by the respondent No. 4, i.e., AICTE.
4. It is pleaded in all the three writ petitions that the respondent No. 4 had issued a notification dated 30.12.1999 making recommendations in connection with revision of pay scales and service conditions of teachers of Technical Institutions (Diploma), based on the recommendations of the 5th Central Pay Commission, which was forwarded to the Secretaries of all the State Governments, dealing with technical education, for necessary action. The claim of the petitioners in WP(C) 578/2013 and WP(C) 2879/2013 for Lecturer (Selection Grade) and the claim of the petitioners in WP(C) 1393/2013 for Lecturer (Senior Grade) pay scale is rooted in the said notification dated 30.12.1999. It is pleaded that the recommendations made by the respondent No. 4, vide notification dated 30.12.1999, was adopted by the respondent No. 1 by issuing a Memorandum dated 20.05.2004. However, while issuing the said notification dated 20.05.2004, a Clause, namely, Clause (b), was inserted in the said notification, which is inconsistent and is in W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 6 conflict with the AICTE guidelines. In this connection, it is also pleaded that respondent No. 4 had issued a clarification by a letter dated 10.09.2003, a copy of which was also made available to the respondent No. 1 clarifying, under Item No. 10, that the teachers who had been recruited prior to 01.01.1996, should be governed by the existing recruitment rules for considering them for CAS in the grade of Lecturers.
5. In all the three cases, affidavit had been filed by the Director of Technical Education. The stand taken in the affidavits is that as per Clause 5.2(ii) of AICTE Notification dated 30.12.1999, the relaxation in terms of qualification and experience will be available only for five years from the date of issue of the said notification, i.e., up to 30.12.2004 and, thereafter, the internal candidates must possess the qualification and experience prescribed in the notification mentioned above. In WP(C) 578/2013, the stand taken by the Director of Technical Education is that the clarificatory letter dated 10.09.2003 cannot supersede the AICTE Notification dated 30.12.1999.
6. Mr. K. N. Choudhury, learned Senior counsel, appearing for the petitioners has submitted that while issuing the notification dated 20.05.2004, the State respondents had misconstrued the notification dated 30.12.1999 issued by the AICTE. It is submitted that at the time of their appointment, the petitioners had the qualifications required for the posts in question and, as the petitioners were in service prior to 01.01.1996, they are exempted from the requirement of "First Class" for the Bachelor Degree or the Master's Degree as appearing in Appendix-B of notification dated 30.12.1999 prescribing qualification and experience for technical posts in diploma level technical institutions. He lays emphasis on Clause (v) of the notification dated 30.12.1999 to contend that the prescribed higher qualification for the purpose of conferment of the benefit of revised pay scale and/or CAS shall be required only for fresh appointees and the same shall not be insisted upon in case of existing incumbents working in various positions. The stand taken by the respondents that the clarification issued vide letter dated 10.09.2003 cannot supersede the notification dated 30.12.1999 is misconceived as it was only clarificatory in nature and, at any rate, the State Government could not have taken a view contrary to the notification and the clarificatory notification issued by the AICTE. Accordingly, he submits, that the petitioners have been denied the benefit due to them on the untenable ground that they do not possess the revised qualification norms upon completion of five years in the existing scale. He has submitted with reference to paragraph 20 of the writ petition, namely, WP(C) 578/2013, that Lecturers junior to the petitioners in service had been granted higher pay scale only because they possess a Master Degree in their W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 7 discipline. It is also contended by him that the petitioners are discharging exactly the same duties, functions and responsibilities as those having higher qualification of Master Degree. In order to buttress his submission, he has placed reliance on the following judgements of the Apex Court:
(i) State of T.N. and Another v. Adhiyam an Educational & Research Institute and Others , reported in (1995) 4 SCC 104 .
(ii) Com m issioner of Incom e Tax , Bom bay and Others v. Podar Cem ent Pvt. Ltd. and Others , reported in (1997) 5 SCC 482.
(iii) Parshvanath Charitable Trust and Others v. All India Council for Technical Education and Others , reported in (2013) 3 SCC 385 .
7. Mr. Mishra, learned Standing counsel, Higher Education Department, in tune with the stand taken in the affidavit(s), has submitted that in terms of the notification dated 30.12.1999 of the AICTE, relaxation in terms of qualification and experience will be available only for five years from the date of issue of the notification, i.e., up to 30.12.2004, and as, admittedly, the petitioners have not possessed the qualification and experience prescribed in the notification, the claim of the petitioners is not tenable in law and their cases are not considered as they do not fulfill the necessary conditions as prescribed in the notification dated 30.12.1999. He has submitted that no case is made out by the petitioners to grant relief as prayed for by them.
8. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
9. Consequent upon revision of pay scales of Central Government employees on the recommendation of the Fifth Central Pay Commission, in terms of directions issued by the Government of India, Ministry of Human Resource Development, Department of Education, AICTE had revised, by the notification dated 30.12.1999, the pay scales and associated service conditions of teachers, librarians and physical educational personnel in diploma level technical institutions, with the concurrence of the Ministry of Human Resource Development. In order to appreciate the contentions of the learned counsel for the parties, it will be appropriate, at this stage, to extract the relevant provisions of the Notification dated 30.12.1999 below:
"3. 0 Cadre Structure:
For each Diploma Level Institutions there shall be one post of Director/Principal. In addition each Department shall have one post of Head of Department. The other Cadres shall be as given in the Table 3.1.
W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 8 Table 3.1 CADRE STRUCTURE OF DIPLOMA LEVEL INSTITUTIONS Level Cadre I Lecturer II Senior Lecturer ________________________________________________________________ The ratio of Senior Lecturers to Lecturers shall be 1:3 The required total strength of teachers in the institutions including Heads of Departments will be determined by the Staff/Student ratio as per AICTE norms. In condition to the Cadre Structure given in Table 3:1, the Career Advancement Scheme shall be provided for the following teaching positions but within the overall sanctioned strength of each Department.
i) Lecturer (Senior Scale)
ii) Lecturer (Selection Grade)
4.0 PAY SCALES
The revised pay-scales for teachers of diploma level technical institutions are given in Tables (Appendix A-1 and 2) 5.0 QUALIFICATIONS
1. The prescribed minimum qualifications and experience requirements for various teaching posts in diploma level technical institutions are given (Appendix-B)
2. Where qualifications and experience prescribed for a post in this pay revision are higher than the qualifications and experience prescribed by AICTE for that post prior to this revision.
(i) The revised qualifications and experience will be required only for fresh appointees to that post and will not be insisted on for existing incumbents working on those positions.
(ii) For open selection to a higher cadre position through advertisement internal candidates presently working in a lower position will be exempted from the prescribed higher qualification and experience to the extent that they will be required to possess only the qualifications and experience prescribed by AICTE prior to this pay revision. This relaxation will be available only for a period of 5 years from the date of issue of this notification. Thereafter, internal W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 9 candidates must also possess the qualifications and experience prescribed in this notification.
3. Teachers already in service prior to January 1, 1996 and who at the time of their recruitment possessed only a second class in their degree at Bachelor's or Master's level (but met all the qualification requirements prescribed by AICTE at the time of their recruitment) shall be exempted from the requirement of First Class for the Degree they had at the time of their recruitment.
6.0 RECRUITMENT Recruitment to all cadre posts shall be strictly based on merit by open selection through open advertisement at national level.
8.0 CAREER ADVANCEMENT
8.1 General
(a) Career Advancement provided for movement of
(i) Lecturer to Lecturer (Senior Scale)
(ii) Senior Lecturer/ Lecturer (Senior Scale) to Lecturer (Selection
Grade)
(b) For promotion under Career Advancement Scheme
(i) The candidate must have consistently satisfactory performance
appraisal reports.
(ii) Assessment and selection would be made by a selection committee,
as required for normal selection by respective institution.
(iii) The prescribed teaching/contact hours of a teacher selected/promoted under the Career Advancement Scheme shall remain the same as that of the substantive post he/she is occupying.
AICTE would, in due course, specify the guidelines for the selection process and the composition of the Selection Committee for promotion under Career Advancement Scheme. Until the AICTE scheme is announced Selection Committees same as prescribed for direct recruitments to the corresponding posts may be used for such promotions.
8.2 Lecturer (Senior Scale) A Lecturer will be eligible for placement as Lecturer (Senior Scale) through a process of selection if he/she has:
W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 10
(i) Completed 6 years of service after regular appointment as a Lecturer with relaxation of 2 years for those with Ph.D. and one year for those with M. Phil/M.E./M.Tech.,
(ii) Participated in the orientation course/induction training and one refresher course or industrial training of aggregate duration of 8 weeks, or has undertaken other appropriate continuing education or training programmes of comparable quality and duration as may be specified or approved by AICTE. Those with Ph.D. degree would be exempted from these course/training requirements.
8.3 Lecturer (Selection Grade) A Senior Lecturer/Lecturer (Senior Scale) who has a Master's Degree and 5 years experience as Senior Lecturer or Lecturer (Senior Scale) and has consistently satisfactory performance appraisal reports will be eligible to be placed as Lecturer (Selection Grade), subject to the recommendation of the Selection Committee.
*** *** ***
APPENDIX-B
QUALIFICATIONS & EXPERIENCE FOR THE TECHNICAL POSTS IN DIPLOMA LEVEL TECHNICAL INSTITUTIONS (ENGINEERING/TECHNOLOGY PROGRAMMES) Sl. No. Cadre Qualification Experience 1 Lecturer First class Bachelor's No requirement Degree in appropriate Branch of Engineering/ Technology OR, First Class Master's degree in appropriate branch for teaching posts in Huma-
nities and sciences.
2 Senior First class Bachelor's 5 years experience
Lecturer degree in appropriate in teaching/industry
Branch of Engineering/ research at the
Technology level of Lecturer
OR, or equivalent
First class Master's
Degree in appropriate
Branch of Humanities
and Sciences.
3. *** *** ***
10. It is not in dispute that the institutions of the petitioners are diploma level institutions. An analysis of the clauses extracted hereinabove will go to show that a W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 11 diploma level institution will have one post of Director/Principal and each of the departments shall have one post of Head of the Department. Each of the departments will have cadres of Senior Lecturer and Lecturer at 1:3 ratio. In addition, CAS for Lecturer is envisaged as Lecturer (Senior scale) and Lecturer (Selection Grade) within the overall sanctioned strength of each department. Clause 5.0 deals with qualifications and Clause 5.0.1 prescribes that minimum qualification and experience required for various teaching posts in diploma level institutions will be as per Appendix-B.
11. Clause 5.0.2(i) makes it very clear that the revised qualifications and experience will be required only for fresh appointees to the post and will not be insisted upon the existing incumbents working on those positions. Clause 5.0.2(ii) provides that there will be exemption from the prescribed higher qualification and experience to internal candidates working in a lower position to the extent that they would be required to possess only the qualifications and experience prescribed by AICTE prior to the pay revision in case of open selection to a higher cadre position through advertisement making it also very clear that the relaxation as aforesaid would be available for a period of five years from the date of issue of the notification and, after five years, internal candidates must possess qualifications and experience prescribed in the notification dated 30.12.1999. It also made clear in explicit terms in Clause 5.0.3 that the teachers who were already in service prior to January 1, 1996 and who, at the time of their recruitment, possessed only a Second Class in their Degree or Masters level but met all the qualifications/requirements prescribed by AICTE at the time of their recruitment, shall be exempted from the requirement of First Class for the Degree they had at the time of their recruitment.
12. Appendix-B provides that for the post of Lecturer, qualification prescribed is First Class Bachelor's Degree in appropriate branch of engineering/technology or First Class Master's Degree in appropriate branch for teaching posts in Humanities and Sciences. For the post of Lecturer, there is no requirement of experience. For Senior Lecturer, qualification prescribed is First Class Bachelor's Degree in appropriate branch of engineering/technology, or, First Class Master's Degree in appropriate branch of Humanities and Sciences with five years of experience in teaching/industry/research in the level of Lecturer or equivalent.
13. Clause 8.0 deals with Career Advancement and Clause 8.1(a) stipulates that career advancement is provided for movement of Lecturer to Lecturer (Senior Scale) and (ii) Senior Lecturer/Lecturer (Senior Scale) to Lecturer (Selection Grade). Clause 8.2 provides, W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 12 amongst others, that a Lecturer will be eligible for placement as Lecturer (Senior Scale), through a process of selection if he/she has six years of service after regular appointment as Lecturer, with relaxation of two years for those with Ph.D. and one year for those with M. Phil/M.E./M. Tech. Clause 8.3 provides that a Senior Lecturer/Lecturer (Senior Scale) who has a Master's Degree and five years experience as Senior Lecturer or Lecturer (Senior Scale) and has consistently satisfactory performance appraisal reports would be eligible to be placed as Lecturer (Selection Grade) subject to the recommendation of the selection committee.
14. Before we proceed further, it will be appropriate to take note of the notification dated 10.09.2003 clarifying on certain issues pertaining to pay scales and service conditions for teachers of Degree/Diploma level technical institutions with special reference to Item No. 10 therein. The notification dated 10.09.2003 with Item No. 10 is reproduced herein below for better appreciation:
" ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (A Statutory Body of Govt. of India by Parliament Act (52) 1987) Prof. B. G. Naresh Kumar ADVISOR-II F. No. FD/PSSC/Clarif./2003/1 Date: 10.9.2003 To, Secretaries (Technical Education) All State Government/Union Territories Sub: Clarification on certain issues pertaining to Pay Scales and Service conditions for teachers of Degree/Diploma level Technical Institutions.
Sir, From time to time the AICTE receives queries seeking clarification on different issues pertaining to Pay Scales and Service conditions for teachers of Degree/Diploma level Technical Institutions.
The AICTE has constituted Expert Committee to give the clarification/ anomalies pertaining to Pay Scales and Service conditions of Teachers of Degree/Diploma level Technical Institutions. The decision of the Expert Committee on these issues is enclosed (Annexure-1) for information and necessary action, if any.
This is issued with the approval of the Competent Authority.
Yours faithfully Sd/-
(B.G. Naresh Kumar) Advisor (FD)"
W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 13 Encl: As above Copy to:
1. All the Directors of Technical Education of All State Govts/Union Territories -
for circulation amongst all Directors/Principals of degree/diploma level Technical Institutions.
2. Principals of all national Institutes of Technologies.
3. All Vice-Chancellors of Universities/Deemed Universities.
4. Secretary/Additional Secretary/Union Public Service Commission (UPSC).
5. All Centrally funded Technical Institutions.
6. All Regional Officers of AICTE at Kolkata, Mumbai, Kanpur, Chennai, Chandigarh, Bhopal and Bangalore.
7. The Deputy Secretary (T), Dept. of Secondary and Higher Education, Ministry of HRD, Govt. of India, Shastri Bhawan, New Delhi.
Annexure-1
Item No. 1: *** *** ***
Item No. 2: *** *** ***
Item No. 3: *** *** ***
Item No. 4: *** *** ***
Item No. 5: *** *** ***
Item No. 6: *** *** ***
Item No. 7: *** *** ***
Item No. 8: *** *** ***
Item No. 9: *** *** ***
Item No. 10: Anomaly in AICTE recommended pay scales for teachers of diploma level technical institutions (polytechnics) Decision taken:
The committee had discussed the issue at length and it was decided that the teachers who have been recruited prior to 01.01.1996, should be governed by the existing Recruitment Rules (RRs). So, the committee recommends relaxation of qualification for such teachers to consider them for CAS in the grade of Lecturer (i.e., from Lecturer to senior grade & from senior grade to selection grade) and also for those who were promoted before the implementation of revised AICTE pay scales & service conditions (From the date of AICTE notifiction to the date of implementation of the same by the concerned State Govt./ Union Territory).
*** *** ***
*** *** ***"
W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 14
15. At this juncture, it will be also appropriate to take note of the notification dated 20.05.2004 issued by the Secretary to the Government of Assam, Education (Higher and Technical) Department. The relevant portion of the notification is extracted herein below:
"GOVERNMENT OF ASSAM EDUCATION (HIGHER &TECHNICAL) DEPARTMENT: ASSAM: DISPUR No. TEC.42/95/Pt/12 Dated 20th May, 2004 OFFICE MEMORANDUM Sub:- Adoption of AICTE recommendations regarding recruitment of Lecturer/ Career Advancement Scheme in the Polytechnics in Assam.
In conformity with the AICTE's recommendations and guidelines communicated by the Govt. of India vide their letter No. 1-65/CD/NEC/98-99 dated December 30, 1999 on revision of pay scales and associated terms and conditions of service of teachers etc. for Diploma level technical institutions, the State Govt. in Finance Department have issued notification No. FEC/6/99/27 dated 7-2-2000 extending the benefit of revised pay scale to the teachers of Govt. Polytechnics in Assam w.e.f. 1-1-96.
In the said letter of Government of India dated December 30, 1999, the following academic qualifications and procedures have been prescribed. The State Govt. accepts the guidelines and criteria of AICTE as communicated vide above letter as indicated below for maintenance of standards in the Govt. Polytechnics in Assam, so far as recruitment/promotion/placement under Career Advancement Scheme and pay scales are concerned.
A. Accordingly, while making recruitment of Lecturers in Polytechnics/ promotions to the post(s) of Senior Lecturer, Head of Department and Principal of the Polytechnics, the academic qualification and experience will be as prescribed below:
Sl.No. Cadre Qualification Experience
1 Lecturer First Class Bachelor's Degree in No requirement
appropriate branch of Engineering/
Technology, OR First Class Master's
Degree in appropriate branch for
Teaching posts in Humanities and
Science
2 Senior First Class Bachelor's Degree in 5 years experience
Lecturer appropriate branch of Engineering/ in teaching at the
Technology OR First Class Master's level of Lecturer or
Degree in appropriate branch of equivalent
Humanities and Sciences
W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 15 3 Head of Master's Degree in appropriate 5 years experience Department branch of Engineering/Technology in teaching at the with First Class at Master's or level of Lecturer or Bachelor's level, OR Ph.D. with equivalent First Class Master's Degree in appropriate branch of Humanities and Sciences 4 Principal Master's Degree in appropriate 15 years expe-
branch of Engineering/Technology rience in teaching
with First Class at Master's or out of which at
Bachelor's level least 3 years shall
be at the level of
Head of
Department or
equivalent.
B. The relaxation given under Para 5.0 under the Head "qualification" at
2(i), (ii) and 3 of the above AICTE notification will be applicable up to December 31, 2004, which is reproduced below:
'2. Where qualifications and experience prescribed for a post in this pay revision higher than the qualifications and experience prescribed by AICTE for that post prior to revision,
(i) The revised qualifications and experience will be required only for fresh appointees to that post and will not be insisted on for existing incumbents working on those positions,
(ii) For open selection to a higher cadres position through advertisement internal candidates presently working in a lower position will be exempted from the prescribed higher qualification and experience to the extent that they will be required to possess only the qualifications and experience prescribed by AICTE prior to this pay revision. This relaxation will be available only for a period of 5 years from the date of issue of this notification. Thereafter, internal candidates must also possess the qualifications and experience prescribed in this notification.
3. Teachers already in service prior to January 1st 1996 and who at the time of their recruitment possessed only a 2nd Class in their degree at Bachelor's or Master's level (but met all the qualifications of recruitment prescribed by AICTE at the time of their recruitment) shall be exempted from the recruitment of 1st Class for the Degree they had at the time of their recruitment.' W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 16 C. Selection of candidates for promotion will be through a selection committee as may be constituted by the Govt. of Assam.
D. *** *** ***
E. Career Advancement:
1. General
(a) Career Advancement provides for movement of
(i) Lecturer to Lecturer (Senior Scale)
(ii) Senior Lecturer/ Lecturer (Senior Scale) to Lecturer (Selection Grade)
(b) For promotion under Career Advancement Scheme.
(i) the candidates must have consistently satisfactory performance appraisal reports.
(ii) Assessment and selection would be made by a selection committee, as required for normal selection by respective institution.
F. Lecturer (Senior Scale) A Lecturer will be eligible for placement as Lecturer (Senior Scale) through a process of selection if he/she has
(i) Completed 6 years of service after regular appointment as a Lecturer with relaxation of 2 years for those with Ph.D. and one year for those with M. Phil/M.E./M.Tech.
(ii) Participated in the orientation course/induction training and one refresher course or industrial training of aggregate duration of 8 weeks, or has undertaken other appropriate continuing education or training programmes of comparable quality and duration as may be specified or approved by AICTE. Those with Ph.D. degree would be exempted from these course/training requirements.
G. Lecturer (Selection Grade) A Senior Lecturer (Senior Scale) who has a Master's Degree and 5 years experience as Senior Lecturer (Senior Scale) and has consistently satisfactory performance appraisal reports will be eligible to be placed as Lecturer (Selection Grade), subject to the recommendation of the Selection Committee.
H. In case any relaxation is to be given from the aforementioned terms and conditions considering the facts and circumstance of any individual cases it W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 17 would be done only with concurrence of Personnel Department and Finance Department, Govt. of Assam.
I. *** *** ***
J. The qualification prescribed in this O.M. shall be applicable from the date
of applicability of the corresponding AICTE guidelines. However, any case already decided shall not be re-opened.
Sd/- Illegible (P. K. Borthakur, IAS) Secretary to the Govt. of Assam Education (Higher & Technical) Department"
16. In Parshvanath Charitable Trust and Others v. All India Council for Technical Education and Others, reported in (2013) 3 SCC 385, the Apex Court had observed that the primacy of AICTE, which is an authority constituted under All India Council for Technical Education Act, 1987, is undisputed. AICTE is the authority constituted under the Act of 1987 with the responsibility of maintaining operational standards and judging the infrastructure and facilities available for imparting professional education and that the State and its affiliating universities cannot lay down any guideline or policies in conflict with the Central statute and the standards laid down by the Central body. While State can frame its policies, such policies have to be in conformity with the directions issued by the Central body. The Apex Court further held that the regulations framed by the Central authorities such as AICTE have the force of law and are binding on all concerned.
17. Therefore, there is no mistaking of the fact that the regulations framed/notifications issued by the Central authority, such as, AICTE have force of law and are binding on all concerned. After the notification dated 30.12.1999 had been issued, an expert committee was constituted by the AICTE to give clarification with regard to certain issues pertaining to pay scales and service conditions for teachers in degree/diploma level technical institutions. The decision taken by the expert committee was communicated to the Secretaries of Technical Education of all the State Governments/Union Territories by the Advisor, FD, on 10.09.2003, with the approval of the competent authority and, therefore, the plea sought to be set up in WP(C) 578/2013 that the notification dated 10.09.2003 would not supersede the notification dated 30.12.1999 cannot be countenanced. The notification dated 10.09.2003 is equally binding.
W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 18
18. The relaxation and/or exemption for a period of five years from the date of notification dated 30.12.1999 in terms of Clause 5.0.2(ii) thereof is restricted to open selection to higher cadre position through advertisement. Such relaxation/exemption is available to internal candidates working in lower position from the requirement of prescribed higher qualification and experience as envisaged under the notification dated 30.12.1999 provided that they had the requisite qualification and experience prescribed by AICTE prior to the pay revision effected by the said notification. Though nothing was said specifically in the said notification with regard to career advancement in respect of teachers who had been recruited earlier and who are not possessing qualification and experience as prescribed by the notification dated 30.12.1999, the decision taken in Item No. 10 as contained in the letter dated 10.09.2003 makes the position very clear. In the said decision taken under Item No. 10, it had been specifically recorded that the teachers who had been recruited prior to 01.01.1996 would be governed by the existing recruitment rules and, therefore, relaxation of qualification for such teachers to consider them for career advancement scheme in the grade of Lecturer, i.e., from Lecturer to Senior Grade and from Senior Grade to Selection Grade and also for those who were promoted before the implementation of the revised AICTE pay scales and service conditions, was recommended. Therefore, in view of the said notification dated 10.09.2003, there is no impediment to consider teachers recruited prior to 01.01.1996 from being considered under CAS.
19. Admittedly, while issuing the notification dated 20.05.2004 by the Secretary to the Government of Assam, Education (Higher and Technical) Department, the notification dated 10.09.2003 of the AICTE was not even referred to. Based on the relaxation granted under Clause 5 of notification dated 30.12.1999 for five years, it was specified that relaxation on qualification under Clause 5 will be applicable up to 31.12.2014. But the relaxation of qualification prescribed under Clause 5 is also sought to be made applicable to CAS limited to a period of five years from the date of notification dated 30.12.1999. Such interpretation given by the authorities, in the face of notification dated 10.09.2003, is not sustainable in law.
20. Under Clause 8.2 of the notification dated 30.12.1999, amongst others, on completion of six years of service after regular appointment as a Lecturer, a Lecturer is eligible for placement as Lecturer (Senior Scale). The writ petitioners in WP(C) 1393/2013 had completed, as per their averments, more than six years as Lecturer after their promotion made under Regulation 4(d) of APSC Regulation, 1951, had been regularized.
W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 19 Therefore, the petitioners in WP(C) 1393/2013 will be entitled to be considered for placement as Lecturer (Senior Scale) as envisaged under Clause 8.2.
21. Clause 8.3 of the notification dated 30.12.1999, amongst others, requires a Master's Degree in respect of Senior Lecturer/Lecturer (Senior Scale) for movement under CAS. It is to be noted that First Class Bachelor's Degree is an educational qualification prescribed for Lecturer under notification dated 30.12.1999, but such a Lecturer does not become entitled to be moved as Lecturer (Selection Grade) under CAS in terms of Clause 8.3 unless he/she has a Master's Degree apart from other requirements. Therefore, for placement at Lecturer (Selection Grade) under CAS, the entry level qualification as per existing recruitment rules prior to 01.01.1996 will not suffice. The arguments advanced by Mr. Choudhury that for movement to Lecturer (Selection Grade) for Lecturers recruited prior to 01.01.1996, the only requirement is length of service as Lecturer (Senior Scale), does not commend for acceptance, because the AICTE notification dated 30.12.1999 read with the notification dated 10.09.2003, on which the petitioners rely on, only gives relaxation in entry level qualification for the purpose of consideration under CAS. Therefore, unless a Lecturer (Senior Scale) has a Master's Degree, he/she will not be eligible for consideration under CAS. It is noticed that some of the petitioners in WP(C) 578/2013 had obtained Master's Degree after they were appointed as Lecturer.
22. It appears that petitioners in WP(C) 578/2013 and WP(C) 2879/2013 had completed more than five years as Lecturer (Senior Scale). Therefore, the cases of all the writ petitioners in WP(C) 578/2013 and WP(C) 2879/2013, who have Master's Degree, are required to be considered under Clause 8.3 of the notification dated 30.12.1999 for movement from Lecturer (Senior Scale) to Lecturer (Selection Grade).
23. Podar Cem ent Pvt. Ltd. (supra) and Adhiyam an Educational & Research Institute (supra), cited by Mr. Choudhury, in the considered opinion of the Court, are not relevant for the purpose of adjudication of these cases. For the record, in Podar Cem ent Pvt. Ltd., the Apex Court had reiterated the principle that an amendment to a statute which is clarificatory in nature will have retrospective operation. In Adhiyam an Educational & R esearch Institute , while interpreting the expression "Coordination"
used in Entry 66 of the Union List of the Seventh Schedule of the Constitution, the Apex Court elaborated upon how to resolve a conflict between State Legislation and Central Legislation.
24. Accordingly, the writ petitions are disposed of by issuing a writ of mandamus directing the respondents to act in terms of the directions contained in paragraphs 20 and W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 20 22 above. The considerations as directed will be made within a period of three months from the date of receipt of a certified copy of this order. No cost.
JUDGE RK W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013 21 W P(C) 578/ 2013, W P(C) 1393/ 2013 and W P(C) 2879/ 2013