Orissa High Court
Afr Chittaranjan Mallick And Others vs State Of Of Odisha And Others ....... ... on 9 August, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 17515 of 2019
Applications under Articles 226 & 227 of Constitution of
India.
---------------
AFR Chittaranjan Mallick and others ...... Petitioners
- Versus -
State of of Odisha and others ....... Opp. Parties
Advocate(s) appeared in this case:-
_________________________________________________________
For Petitioners : M/s. Biswabihari Mohanty,
J.N. Panda, M. Harichandan,
B. Tripathy, B. Samantaray &
S.S. Sahu, Advocates.
For Opp. Parties : Mr. S. Pattanaik,
Addl. Government Advocate
Mr. Tusharkanti Satapathy,
[For O.P. No.3- UGC]
M/s. B. Jena & C.R. Dash,
Advocates
[for O.P. No.4-AICTE]
M/s. Sanjeev Udgata, S. Udgata &
Mr. A. Mishra, Advocates
[for O.P. Nos. 5 & 6- BPUT]
M/s. C. Patra, Mrs. B.P. Panda &
R.R. Satpathy, Advocates
[ for O.P. No.7-College]
____________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th 9 August, 2023 Page 1 of 19 SASHIKANTA MISHRA, J.
An advertisement was issued on 18.07.2009 by Biju Patnaik University of Technology (BPUT), Odisha Rourkela for filling up of the posts of Lecturers in different disciplines of Parala Maharaja Engineering College, Berhampur. All the three petitioners applied pursuant to such advertisement against posts of different disciplines. All three were selected and recommended by the Board of Management of BPUT for appointment. Accordingly, offer of appointments were issued to them on 25.09.2010. Petitioner No.1 joined as Lecturer in Mathematics on 01.09.2010, Petitioner No.2 joined as Lecturer in Economics on 11.10.2010 and petitioner No.3 joined as Lecturer in Physics on 04.10.2010. The posts of Lecturers was subsequently re-designated as Asst. Professor as per Resolution of erstwhile Department of Employment and Technical Education and Training on 25.10.2013. All the three petitioners had Ph.D. qualification at the time of their appointment. As such, they claim to be entitled to five non- compounded advance increments at the entry level. Such claim is on the basis of the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications Page 2 of 19 for the Teachers and Other Academic Staff in Technical Institutions (Degree) Regulations, 2010 (in short "AICTE Regulations, 2010), which came into force from 22.01.2010. According to the petitioners, the AICTE Regulations, 2010 is applicable to the Parala Maharaja Engineering College, Berhampur, which was a constituent college under BPUT at the relevant time. Further, the Government in Employment and Technical Education and Training Department in its letter dated 24.07.2012 addressed to the Vice Chancellor of BPUT, Odisha Rourkela, VSS University of Technology, Burla and the Director, IGIT, Sarang communicated the decision taken by the Department under the Chairmanship of Chief Secretary, Odisha on 12.06.2012 to grant five additional increments at the entry level of Lecturers having Ph.D Degree in order to attract quality persons to take up teaching jobs in BPUT and other Government Engineering Colleges in the State. As such, proposals were sought for appropriate action at the level of the Government. However, the petitioners were not granted the benefit of five advance increments even though the institutions under the control of the Department of Higher Education had extended three advance increments to Lecturers/ Asst. Professors, who were recruited with Ph.D Page 3 of 19 qualification at the entry level. The petitioners submitted several representations through proper channel to the Registrar, BPUT on 20.02.2013 followed by several reminders but no action was taken in this regard. Being aggrieved by such inaction, the petitioners approached this Court in W.P.(C) No. 18294 of 2016, which was disposed of by order dated 24.10.2016 directing the Registrar, BPUT to consider and dispose of the representations within three months. Since the order was not implemented, the petitioners filed contempt application bearing CONTC No. 614 of 2017, which was disposed of on 18.05.2017 directing the Principal Secretary, Finance Department to comply with the order within a further period of three months. Upon receipt of such order, the Registrar, BPUT forwarded the matter to the Government for consideration at their end. The petitioners again filed CONTC No. 353 of 2019, which was not entertained having been filed beyond one year. Being aggrieved by such inaction of the authorities, the petitioners approached this Court seeking the following relief:
"Under the circumstances, it is humbly prayed that this Hon'ble Court may graciously be pleased to issue a writ in appropriate nature directing the Opp.Party No.1 and 2 to take appropriate steps to sanction and disburse 5 non-Page 4 of 19
compounded advance increments in the pay of the petitioners at the entry level on account of their possession of Ph.D Degree at the time of recruitment in terms of the decision of the Government in erstwhile Employment and Technical Education & Training Department dated 24.07.2012 forthwith or within a time to be stipulated by this Hon'ble Court.
Pass such other order/orders, direction/directions as this Hon'ble Court may deem fit and proper."
2. The case of the petitioners is supported by University Grants Commission (UGC) (opposite party No.3). In its counter it is stated that as all the petitioners have been awarded Ph.D degrees in the year 2008 and joined as Lecturers in 2010 and that they are entitled to five non- compounded advance increments as per AICTE Regulations, 2010. Reference is also made to the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (in short UGC Regulation, 2010). Clause 1.1.1 thereof, inter alia, states that for teachers in the faculties of Engineering and Technology, the norms/Regulations formulated in consultation with AICTE shall apply.
Page 5 of 19
3. The AICTE (opposite party No.4) in its counter has fully supported the claim of the petitioners by referring to the AICTE Regulations, 2010.
4. The Government (opposite party No.1) in its counter has however, disputed the claim of the petitioners on the ground that the norms and standards in respect of infrastructure, library, laboratory, teacher student ratio, amenities and qualification of teachers prescribed by the AICTE is applicable to the constituent colleges of BPUT but so far as the condition of service, recruitment rules and pay scale is concerned, the same is guided by the First Statutes, 2006 of the University and Rules framed by the Government from time to time. It has been incidentally stated that by notification dated 21.01.2021 of the State Government, three Government Engineering Colleges including Parala Maharaja Engineering College (PMEC), Berhampur have been allowed to function independently with their respective Board of Governors as the apex body and is no longer considered a constituent college of BPUT but is only affiliated to it. It is however, stated that the Government in Industries Department vide notification dated 10.01.2011 notified the Page 6 of 19 revised pay scale of teachers in Engineering Colleges and University w.e.f. 01.01.2006 but it does not speak about sanction of five non-compounded advance increment in the event of acquiring Ph.D Degree at the entry level. Subsequently, after introduction of 7th pay (Commission), Odisha Revised Scales of Pay (for Teachers of Engineering College/Degree Level Technical Institutions/Universities) Rules, 2019 was published vide notification dated 31.12.2019 but nothing is prescribed therein regarding sanction of such advance increment. It is also stated that the matter was earlier referred to the Finance Department, which clarified that advance increment benefit allowed in case of Higher Education Department is because their recruitment rules provide so but the Skill Development and Technical Education Department, under which PMEC is controlled, does not have any such provision. As regards the recommendations of the AICTE, it is stated that the same are not a part of the recruitment rules of the petitioners. The First Statute, 2006 of BPUT also does not prescribe grant of such advance increment and Clause-95 only provides for grant of an advance increment to any university employee by Page 7 of 19 the Board in exceptional circumstances. As such, the petitioners are not entitled to the benefits claimed.
5. In its counter affidavit, Parala Maharaj Engineering College, Berhampur (opposite party No.7) has referred to letter dated 10.10.2019 of the Government in Skill Development and Technical Education Department addressed to the Registrar, BPUT stating that AICTE has made recommendations only and it is not a part of their recruitment rules. Reference is also made to letter dated 12.05.2022 of the Government in Skill Development and Technical Education Department indicating the views of the Finance Department that the advance increment benefit has been allowed in case of Higher Education Department as it is provided in their recruitment rules but same is not part of the recruitment rules governing the petitioners.
6. Thus, while the UGC and AICTE have supported the claim of the petitioners specifically referring to the AICTE Regulations, 2010, the State Government and PMEC have opposed the same on the ground that such provision is not available in the recruitment rules governing the petitioners and that the AICTE Regulations are only in the nature of Page 8 of 19 recommendations. In essence, it is the stand of the State Government and PMEC that AICTE Regulations, 2010 do not apply to the petitioners.
7. Heard Mr. B.B. Mohanty, learned counsel for the petitioner, Mr. S. Pattnaik, learned Addl. Government Advocate for the State. Mr. B. Jena, learned Addl. Government for the AICTE; Mr. T.K. Satpathy, learned counsel for UGC; Mr. S. Udgata, learned counsel for BPUT; and Mr. C. Patra, learned counsel for Parala Maharaja Engineering College, Berhampur.
8. Mr. B.B. Mohanty, learned counsel for the petitioner would argue that AICTE Regulations, 2010 is mandatory in nature. It being a Sub-ordinate Central Legislation, being covered under Item No.66 of List-1 of Schedule-VII of the Constitution has the force of law and therefore, cannot be ignored. Moreover, the University (at the relevant time) had also acted as per the Regulations as would be evident from the fact that the Scale of Pay of the petitioners at the initial level carried Academic Grade Pay (AGP) of Rs.6,000/- which is entirely in consonance with the said Regulations. As to the stand taken by the contesting Page 9 of 19 opposite parties, Mr. Mohanty would argue that though repeated reference is made to the recruitment rules governing the petitioners yet, which is the relevant rule has not been clarified. In fact, the First Statute, 2006 also provides that the guidelines framed by the UGC and AICTE are to be mandatorily followed. Therefore, according to Mr. Mohanty, the provisions of AICTE Regulations, 2010 is binding on all concerned.
9. Mr. S. Pattnaik, learned Addl. Government Advocate would submit that the AICTE Regulations, 2010 are not binding on the State Government or the BPUT, which is governed by the BPUT Act and its First Statutes, 2006. The UGC and AICTE can only make recommendations but the same cannot be applied automatically to the constituent Colleges of BPUT.
Mr. C. Patra, learned counsel for Parala Maharaja Engineering College, Berhampur adopts the aforesaid arguments of learned State Counsel.
10. Mr. B. Jena, learned counsel appearing for AICTE, Mr. T.K. Satpathy, learned counsel appearing for UGC and Page 10 of 19 Mr. S. Udgata, learned counsel appearing for BPUT have all submitted that AICTE Regulations, 2010 has to be followed by all concerned.
11. Considering the rival contentions referred to hereinbefore it is evident that the only issue that falls for consideration in the present writ application is applicability of AICTE Regulations, 2010. Before proceeding to determine the said issue however, it would apt to refer to the counter affidavit filed by the State Government wherein reference has been made to two notifications issued by the Industries Department on 10.01.2011 and 31.12.2019 because a stand has been taken that such notifications do not contain any provision for sanction of five non-compound advance increments in the event of acquiring Ph.D degree. The notifications have been enclosed as Annexures-B/1 and C/1 respectively to the counter filed by the State- opposite party No.1. Notification dated 10.01.2011 notifies the Orissa Revised Scales of Pay (for Teaches of Engineering College/Degree Level Technical Institutions/Universities) Rules, 2010. Clause (2)(i) reads as under;
"(2) These rules shall not apply to-Page 11 of 19
(i) Teachers engaged on contract except when the contract provides otherwise.
xx xx xx"
Notification dated 31.12.2019 notifies the Odisha Revised Scales of Pay (for Teaches of Engineering College/Degree Level Technical Institutions/Universities) Rules, 2019. Clause-(2)(i) of the said Rules reads as under:
"(2) These rules shall not apply to-
(i) Teachers engaged on contract basis except when the contract provides otherwise.
xx xx xx"
Bare reading of the notifications as above would make it abundantly clear that they relate to revision of pay scales effected by the State Government to the teachers of technical institutions from a particular date. Thus, while Rules, 2010 were deemed to have come into force on 1st January, 2006, Rules, 2019 were deemed to have come into force on the first date of January, 2016. Neither of the Rules refers to the sanction of advance increment on account of possession of higher qualification like Ph.D etc. Obviously, the aforementioned Rules cannot be treated as recruitment rules. It would now be apposite to refer to the offer of appointment issued to the petitioners by the BPUT which contains the pay scale. The petitioners were offered Page 12 of 19 appointment under the revised pay scale of Rs.15,600-
39100+ AGP Rs.6,000/. Keeping this in background, the AICTE Regulations, 2010 can be referred to. Clause-(a)(i) under General provisions of AICTE Regulations, 2010 reads as follows;
"(a)(i) Persons entering the teaching profession in Technical Institutions shall be designated as Assistant Professors and shall be placed in the Pay Band of Rs.15600-39100 with AGP of Rs.6000.
Lecturers already in service in the pre-revised scale of Rs.8000-13500, shall be re-designated as Assistant Professors with the said AGP of Rs.6000."
Thus, pay scale allowed to the petitioners was entirely in consonance with the Regulations. As regards grant of advance increments on acquiring/possession of higher qualification, Clause-(v) under the heading 'Incentive for Ph.D/M.Tech and other higher qualification' is relevant and reads as follows;
"However, teachers in service who have been awarded Ph.D. at the time of coming into force of this Scheme or having been enrolled for Ph.D. have already undergone coursework, If any, as well as evaluation, and only notification in regard to the award of Ph.D. is awaited, shall also be entitled to the award of three non-compounded increments even if the university awarding such Ph.D. has not yet been notified."
12. The petitioners have heavily relied upon the above provision to stake their claim. In view of the stand taken by Page 13 of 19 the contesting opposite parties that the Regulations are only 'recommendations', implicitly suggesting thereby that they are not binding, it would be proper to first determine if the Regulations have any binding force. The Regulations were made by AICTE exercising power conferred under Sub- section(1) of Section 23 read with Section 10(i) and (v) of the AICTE Act, 1987, which are quoted hereinbelow.
"23. Power to make regulations.--(1) The Council may, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act, and the rules generally to carry out the purposes of this Act.
10. Functions of the Council.--It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may--
xx xx xx
(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;
xx xx xx
(v) perform such other functions as may be prescribed."
13. It goes without saying that AICTE Act, 1997 is a central legislation. Entry-66 of List-1 of Seventh Schedule of the Constitution of India reads as follows;
"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions"Page 14 of 19
14. Thus, there can be no dispute as regards the power of the Union (Central Government) to legislate on the matters covered under Entry-66 of the List-1. Since the regulations have been made by virtue of the enabling provision in the AICTE Act, it must also be held to have statutory force. In other words, being a subordinate legislation, it does have the force in law as was held by the Apex Court in the case of Vidya Dhar Pande vs Vidyut Grih Siksha Samiti reported in (1988) 4 SCC 734. Further the Constitution Bench of the Apex Court in the case of State of U.P. v. Babu Ram Upadhya, reported in 1960 SCC OnLine SC 5: AIR 1961 SC 751 held that Rules (sub-ordinate legislation) were for all purpose of construction or obligation, to be treated exactly as if they were in the Act.
15. Thus there can be no doubt that the AICTE Regulations, 2010 have the force of law and thereby, have a binding nature. Clause-1 of the Regulations are relevant and are quoted hereinbelow.
1. Short Title, Application and Commencement:
1.1 These Regulations may be called the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications for the Page 15 of 19 Teachers and other Academic Staff In Technical Institutions (Degree) Regulations, 2010.
1.2 They shall apply to technical institutions and Universities including deemed Universities imparting technical education and such other courses / Programs and areas as notified by the Council from time to time.
They shall come into force with effect from the date of their publication in the Official Gazette"
Therefore, it is not open to the Government, or for that matter any other stakeholder/authority to contend that the regulations would not be applicable to it. Even otherwise there are several instances discernable from the materials on record, of the authorities acting in consonance with the AICTE Regulations. As stated earlier, the pay scale is entirely in line with that mentioned in the regulations. Secondly, Statute-95 of the First Statute also makes a reference to the AICTE guidelines. It is obviously not open to any authority to abide by the Regulations (guidelines) only in parts and ignore the rest. It is reiterated that if the AICTE Regulations, 2010 has force of law, which this Court has already held so, it has full application to the Institution in which the petitioners are engaged.
16. Having held so, this Court would now examine the merits of the claim advanced by the petitioners, which is Page 16 of 19 grant of five non-compounded advance increments for possessing Ph.D. Degree. The AICTE Regulations, 2010 provides under Clause(i) under the heading 'Incentives for Ph.D/M.Tech and other higher qualification' as follows:
"(i) Five non-compounded advance increments shall be admissible at the entry level of recruitment to persons possessing the degree of Ph.D. awarded in the relevant discipline by a university following the process of registration, course-work and external evaluation as prescribed by UGC."
In fact, such a decision was also taken by the Government in the erstwhile Department of Employment and Technical Education and Training in a meeting held on 12.06.2012 under the Chairmanship of Chief Secretary, Odisha. Such decision was communicated to the Vice Chancellor, BPUT, Odisha, Rourkela by letter dated 24.07.2012 (copy enclosed as Annexure-5). Surprisingly, even the Institution (PMEC) itself forwarded the representations submitted by the petitioners to the Registrar, BPUT on 22.06.2015. Copy enclosed as Annexure-9 series specifically stating as follows:
"xx xx xx In this connection, it may be stated that as per the revised guidelines dated 22.01.2010 issued by the AICTE, New Delhi and letter No.2512/ETET, dated 24.07.2010 issued by the Employment and Technical Education & Training Department of Govt. of Odisha, the above faculty of PMEC, having Page 17 of 19 Ph.D degree at the time of their recruitment in the entry grade are eligible to get 5 non-compounded advance increments.
xx xx xx" 17. Therefore, neither the Government nor the
Institution, PMEC can turn around subsequently to take a completely contrary stand to deny the claimed benefits to the petitioners.
18. The other ground taken by the State and PMEC to deny the benefits is the purported clarification submitted by Finance Department that such provision is not available for persons under administrative control of Skill Development and Technical Education Department. This Court finds the same untenable being contrary to law as discussed above. It is admitted that benefit of three advance increments of possession of higher qualification is granted to persons under the administrative control of the Higher Education Department. If this be the case, then it would be gross discrimination on the part of the Government to not allow such benefits to persons under the administrative control of one of its other Departments. Obviously, the Government being a model employer cannot be expected to discriminate between Administrative Departments. It would offend the Page 18 of 19 very principle of equality enshrined under Article 14 of the Constitution of India.
19. Thus, from a conspectus of analysis made in light of the position of law hereinbefore, this Court is left with no doubt that the denial of the benefit of five advance increments to the petitioners at the entry level for possessing Ph.D degrees is unconscionable in the eye of law.
20. In the result, the writ petition succeeds and is therefore, allowed. The opposite party Nos. 1, 2 and 7 are directed to sanction and disburse five non-compounded advance increments in the entry level pay of the petitioners as early as possible preferably within a period of two months.
.................................
Sashikanta Mishra, Judge Orissa High Court, Cuttack.
The 9th August, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Page 19 of 19 Date: 09-Aug-2023 19:07:17