Central Administrative Tribunal - Delhi
Dr. Nirendra Dev vs All India Council Of Technical ... on 12 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI T.A. 138/2009, M.A. 850/2009, M.A. 1772/2009; T.A. 100/2009, M.A. 851/2009; T.A. 117/2009, M.A. 852/2009; O.A. 419/2009, M.A. 661/2009; O.A. 431/2009, M.A. 307/2009, M.A. 208/2009, M.A. 666/2009; T.A. 312/2009, M.A. 660/2009; O.A. 1209/2009 This the 12th day of January, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) TA-138/2009 1. Dr. Nirendra Dev, Deputy Director, All India council of Technical Education, 7th Floor, Chanderlok Building, Janpath, New Delhi. 2. Ms. Rominder Randhawa, Deputy Director, All India council of Technical Education, 7th Floor, Chanderlok Building, Janpath, New Delhi. 3. Ms. G. Manushree, Deputy Director, All India council of Technical Education, 7th Floor, Chanderlok Building, Janpath, New Delhi. 4. Ms. Aradhana Chopra, Deputy Director, All India council of Technical Education, 7th Floor, Chanderlok Building, Janpath, New Delhi. Applicants Versus 1. All India Council of Technical Education through its Chairman, 7th Floor, chanderlok Building, Janpath, New Delhi. 2. Member Secretary, All India council of Technical Education, 7th Floor, Chanderlok Building, Janpath, New Delhi. 3. Union of India through Secretary, Ministry of Human Resources Development, Department of Technical Education, Shastri Bhawan-110001. Respondents TA-100/2009 1. Dr. Buhpendra Kumar Sharma S/O Dr. Narendra Nath Sharma, R/O C-403, Vijay Apartments, Ahinsa Khand-II, Indirapuram, Ghaziabad, UP. 2. Sandeep Singhal S/O Surender Singhal, R/O SD-395, Shastri Nagar, Ghaziabad, UP. Applicants Versus 1. All India Council of Technical Education through its Member Secretary, 7th Floor, Chanderlok Building, Janpath, Connaught Place, New Delhi-110001. 2. Government of Assam Education (Higher) Department, Dispur, Assam through its Under Secretary. 3. National Institute of Technology, Kurukshetra, Haryana through its Registrar. Respondents TA-117/2009 1. Dr. B. K. Tosh S/O P. Tosh R/O 6/9, Nehru Nagar, New Delhi-110066. 2. Dr. V. K. Kohli S/O B. M. Kohli, R/O 521-B, Regent Shipra Sun City, Indirapuram, Ghaziabad (UP). Applicants Versus All India Council for Technical Education, 7th Floor, Chanderlok Building, Janpath, Connaught Place, New Delhi-110001. Respondent TA-419/2009 Mrs. Sulata Dandapat, Assistant Director (RID), AICTE, 13/290, Vasundhara, Ghaziabad, UP-201012. Applicant Versus 1. Union of India through its Secretary, Ministry of Human Resources Development, Department of Education, Shastri Bhawan, New delhi-110001. 2. All India council for Technical Education, 7th Floor, Chanderlok Building, Janpath, Connaught Place, New Delhi-110001. Respondents TA-431/2009 1. Dr. Arindam Kumar Chanda S/O A. K. Chanda, R/O 290-D, Pocket-C, Mayur Vihar, Phase II, Delhi-110091. 2. Dr. Manish Bhalla S/O B. N. Bhalla, R/O C-3417, Janakpuri, New Delhi. 3. Sanjeev Batra S/O I. J. Batra, R/O 204, Arihant CGHS Ltd., GH-4, Sector 56, Gurgaon. Applicants Versus 1. All India Council for Technical Education (AICTE), 7th Floor, Chanderlok Building, 36, Janpath, New Delhi. 2. Union of India, Ministry of Human Resource Development through Secretary, Shastri Bhawan, New Delhi. Respondents TA-312/2009 Shriom Dalal S/O Zile Singh, R/O Village Asaudah, District Jhajjar, Haryana. Applicant Versus 1. All India Council for Technical Education, 7th floor, Chanderlok Building, Janpath, Connaught Place, New Delhi-110001 through its Member Secretary. 2. Government of NCT of Delhi, Department of Training and Technical Education, Muni Maya Ram Marg, Pitampura, Delhi through its Deputy Director-1. Respondents OA-1209/2009 Dr. Sanjay Sharma S/O O.P. Sharma, Deputy Director, AICTEW-Western Regional Office, 2nd Floor, Industrial Assurance Building, V.N.Road, Opp. Church Gate Rly. Station, Mumbai-400020. Applicant Versus 1. All India Council for Technical Education, 7th Floor, Chanderlok Building, Janpath, New Delhi-110001. 2. Maulana Azad National Institute of Technology (Deemed University), Bhopal-462051 Madhya Pradesh. Respondents Present: Shri A. K. Ganguly, Sr. Advocate and with him Shri R. K. Gupta, Advocate, for applicant in TA-100/2009 and TA-138/2009; Shri P. N. Mishra, Sr. Advocate and with him Shri J. K. Sahoo and Shri K. N. Tripathi, Advocates, for applicants in TA-117/2009 & OA-419/2009; Shri Vivek Singh, Advocate, for applicant in OA-1209/2009; Shri Arunab Choudhary with Ms. Raktim Gogoi, Advocate for applicant in TA-32/2009; Ms. Manisha Badoni for Shri Naresh Kaushik, Advocate for applicant in OA-431/2009. Shri S. Chandrashekhar with Shri Manoj Kumar, Advocate for respondent AICTE in all cases; Shri R. N. Singh, Advocate for respondent No.1; Shri Aditya Chhibber for Ms. Jyoti Singh, Advocate for respondents in TA-312/2009; Shri Rajan Mazumdar, Advocate for respondent No.2 in TA-100/2009. O R D E R Justice V. K. Bali, Chairman:
By this common order, we propose to decide seven connected Transferred/Original Applications bearing nos. T.A. 138/2009; T.A. 100/2009; T.A. 117/2009; O.A. 419/2009; O.A. 431/2009; T.A. 312/2009; and O.A. 1209/2009, as common questions of law and facts arise in all the cases. Learned counsel representing the parties also suggest likewise. The bare minimum facts that, however, need necessary mention, have been extracted from T.A. 138/2009 in the matter of Dr. Nirendra Dev & Others v All India Council of Technical Education & Others, so numbered after W.P.(C) No.3874/2008 came to be transferred to this Tribunal, the primary jurisdiction, meanwhile having been vested with the Tribunal.
2. The facts as set out in the Application reveal that the applicants are Deputy Directors in All India Council for Technical Education (in short, AICTE), the first respondent herein, at New Delhi. The said respondent is stated to be administratively and financially controlled by the Ministry of Human Resources Development, Government of India and as such is an instrumentality of the State under Article 12 of the Constitution. It is stated that applicants 1 to 4 have rendered about 14 years of contractual service in the AICTE on duly sanctioned vacant posts of perennial nature after being selected on five occasions through open selection process conducted by the AICTE, without any intervention by any court of law or tribunal. The AICTE issued advertisement on all India basis in Employment News dated 25th September 1st October, 1993 and other national newspapers for recruitment on 10 posts of Assistant Director with the following required qualifications and experience in pay scale of Rs.3000-5000:
Qualifications: Masters degree in any of the subjects of Sciences/Mathematics/Computer Applications/Management including commerce and Economics/Pharmacy/Applied Arts/Engineering and Technology. Relevant experience as per job requirements including teaching/research, educational planning, educational administration and training, etc. or equivalent industrial/public sector experience in the present scale of pay or at one level below. It was mentioned in the advertisement that fresh engineering graduates could also be considered and given consolidated (fixed) amount of Rs.4000/- per month. Such persons could be subsequently placed after due assessment in the pay scale of Rs.3000-5000 on completion of minimum of eight years of experience, including previous experience, if any. The 1st applicant was possessing B.Tech., M.Sc. (Engg.) and was having experience of nine years and fulfilled requirements regarding academic qualifications and experience as given in the advertisement. Pursuant to the advertisement as mentioned above, the applicants and others applied for the said posts of Assistant Director. Interview was held in the month of January, 1994, which was conducted by a duly constituted selection committee, and in the selection the applicants were selected on the basis of merits. The 1st applicant was appointed on contract basis as Assistant Director for three years in pay scale of Rs.2200-4000 with the stipulation that he may be placed in the pay scale of Rs.3000-5000 after due assessment and review of his performance as per criteria to be laid down by AICTE separately. He joined on 25.4.1994 and appointed in the lower pay scale as above than the one prescribed in advertisement. The 3rd applicant, who was B.Pharmacy and M.Pharmacy was appointed to the post of Assistant Director on 7.4.1994 against a duly sanctioned vacant post of perennial nature, on a consolidated salary of Rs.4000+450 HRA per month on contract of three years. In the appointment letter it was also mentioned that the applicant might be placed in the pay scale of Rs.2200-4000 after due assessment and review of her performance as per criteria to be laid down by the Council separately. The 2nd applicant was B.E. (Civil) and M.E. (Structures). She was appointed as Assistant Director on 29.4.1994 on same terms and conditions as the 3rd applicant. The 4th applicant who was B.E. (Civil) and M.E. (Irrigation & Hydraulics) was appointed as Assistant Director on 20.7.1994, also on same terms and conditions. The 1st applicant was appointed as Assistant Director after open advertisement for the post and interview by a duly constituted selection committee and his performance appraisal in the pay scale of Rs.3000-5000 (subsequently revised to Rs.10000-15200) vide appointment letter dated 25.8.1995. On the same very day, the 2nd applicant was appointed as Assistant Director in the pay scale of Rs.2200-4000 (revised subsequently to Rs.8000-13500) after open advertisement for the post and interview by the selection committee. On 27.10.1995, the AICTE notified its first recruitment regulations, wherein there was no provision for appointment on regular basis. It provided for appointment either on contract basis or on deputation basis without mentioning any possibility of absorption. Constitution of the selection committee was prescribed as under:
1. Chairman of the Council Chairman;
2. Vice Chairman of the Council Member;
3. Education Secretary or his nominee Member;
4. Expenditure Secretary or his nominee Member;
5-6 2 members of EC to be nominated by the Chairman Members;
7-8 2 experts to be nominated by the Chairman Members;
9. Member-Secretary of the Council Member. On 18.12.1996 the 3rd and 4th applicants were granted the pay scale of Rs.2200-4000 (subsequently revised to Rs.8000-13500) w.e.f. 28.6.1996, after due assessment and review of performance as per AICTE criteria. On 5.5.1997 the applicants were again selected for the same post of Assistant Director in the open selection on all India basis by the selection committee. The posts were advertised in December, 1996. Applicants 2, 3 and 4 were placed in the revised pay scale of Rs.10000-15200 on 27.12.1999 after due assessment and review of their performance as per the AICTE criteria. The 1st applicant was appointed on contract basis to the next higher post of Deputy Director w.e.f. 3.10.2000 following open advertisement and selection by the selection committee. It is the case of the applicants that in contravention of AICTE practice/policy, the 1st applicant was arbitrarily relieved of his service as Deputy Director from 3.10.2003 to 7.10.2003, and was again selected to the said post on the basis of fresh advertisement and interview by the selection committee and appointed again on 7.10.2003. He was granted the minimum basic pay in the scale of Rs.12000-18000, even though he had drawn Rs.13150/- as basic pay at the time he was relieved of his service on 3.10.2003. His contractual appointment as Deputy Director since 7.10.2003 was extended maintaining continuity of service with protection of all service benefits based on performance evaluation up to 6.10.2008 or till joining of a regular incumbent, whichever was to be earlier. The contractual appointments of the 2nd applicant since 29.4.1994 were renewed, maintaining continuity of her service with protection of all permissible service benefits up to 21.5.2003, after periodic open advertisements on all India basis of post/performance appraisal and interviews by successive selection committees as per recruitment regulations. It is the case of the applicants that the 2nd applicant was arbitrarily relieved of her services as Assistant Director on 21.5.2003, but was re-appointed on the same post on 6.6.2003, once again, following open re-advertisement for the post and interview by the selection committee. She was granted the minimum basic pay in the scale of Rs.10000-15200 even though, she had drawn Rs.10975/- as basic pay at the time she was relieved of her service in May, 2003. In October, 2003 the 2nd applicant was considered ineligible for interview for the post of Deputy Director on the pretext that her minimum basic pay being Rs.10000/- which was less than Rs.10975/-, requisite basic pay. Decision to debar her from interview, it is pleaded, was arbitrary because AICTE had earlier interviewed her for the same post in May, 2003 and she had already drawn basic pay of Rs.10975/-. Based on performance evaluation/selection committee recommendations, the 3rd and 4th applicants were granted extension as Assistant Director in continuity from 7.4.1994 up to 28.2.2004 and 20.7.1994 up to 21.5.2003 respectively, with protection of all legally permissible service benefits. On 21.5.2003, the 4th applicant was relieved of her services as Assistant Director in contravention of prevailing AICTE practice/policy. However, being selected by the selection committee in an open selection on all India basis, she was re-appointed to the said post on 6.6.2003. She was granted the minimum basic pay in the scale of Rs.10000-15200, although she was already drawing Rs.10975/- as basic pay when she was relieved of her services in May, 2003.
3. Various committees constituted by the Ministry of HRD with respect to review of AICTE functioning suggested for regular staff in the Council for the sake of continuity and organizational memory. In September, 2003 Prof. U. R. Rao Committee for Revitalization of Technincal Education stressed the need of regularization of experienced staff to ensure continuity of institutional memory. However, in contravention of prevailing AICTE, the 1st applicant was relieved of his service as Deputy Director on 3.10.2003 when he had put in more than nine years of unblemished continuous contractual service. He was again selected on the post of Deputy Director on 6.10.2003 following an open advertisement and interview by the selection committee. He was appointed on 7.10.2003. It is pleaded that in the renewed contractual appointment as Deputy Director, the 1st applicant was unfairly subjected to serious hardships of financial loss and mental harassment in addition to the unjustified and arbitrary break in service of three days. The committee for review of the clause 10(K) of the AICTE Act, under chairmanship of Prof. S. K. Khanna, Ex-Chairman, AICTE, recommended in August, 2004 that AICTE may review all appointees who have put in three tenures each of 3 years (with break) and consider them to be placed on regular post by following necessary prescribed procedure. It is, however, the case of the applicants that the AICTE ignored the recommendations of such high level committees by providing no provision for the applicants who have long organizational memory of about 14 years, and on the contrary, the AICTE has made provision of absorption of those persons on deputation who have only one year of the organizational memory, which would be highly arbitrary and discriminatory. On 28.2.2004, the 3rd applicant was relieved of her services as Assistant Director on the expiry of contractual period, in contravention of prevailing AICTE practice/policy. However, after being selected following open advertisement and interview by the selection committee, she was re-appointed to the said post on 8.4.2004. She was granted the minimum basic pay in the scale of Rs.10000-15200 although she was already drawing Rs.11300/- basic when she was relieved of her services in February, 2004, thus causing a financial loss to her. The applicants 3 and 4 were made ineligible for interview for the post of Deputy Director on the ground that their minimum basic pay was Rs.10000/- whereas the basic pay required for the post of Deputy Director was Rs.10975/-, which they had already drawn previously. They were called for interview of Deputy Director prior to expiry of their contractual tenure in May, 2003 and February, 2004. In open advertisement on all India basis for the post of Deputy Director, the 2nd applicant was interviewed and was selected and appointed on 4.5.2005 for three years on contract basis. Although this appointment was in continuation of her previous contractual tenure, the service benefits earlier availed by her were not granted. On consideration of their repeated representations, however, the applicants 3 and 4 were permitted to appear for the interview for Deputy Director and they were selected in an open selection. They were appointed on the said post on 25.8.2005 on fresh contract for three years, but the benefits such as leave etc. were not carried forward.
4. AICTE regularized services of 19 Data Entry Operator-cum-Assistants (DEOAs) who were appointed on contract basis in 1994 on similar terms and conditions as that of the applicants. The DEOAs had filed WP No.3830/2004 before the High court for regularization of their services from their initial appointment with all consequential benefits. AICTE voluntarily offered to grant regular appointment to the DEOAs, as would be evident from order dated 4.10.2005 passed in the said writ petition. On 2.11.2007, AICTE notified the new recruitment regulations. In the said regulations provision has been made for absorption of various incumbents working on deputation basis. It has been specifically stated that existing incumbents working on deputation basis who have completed at least one years service in AICTE would be given one opportunity for consideration for permanent absorption in their respective post against direct recruitment quota. No such provision has, however, been incorporated in the said regulations for absorption of its own staff, i.e., the applicants who have been discharging duties since 1994, which would be violative of Articles 14 and 16(1) of the Constitution. Apart from providing clause for absorption of deputationists against the posts of Assistant Director and Deputy Director, AICTE in its new recruitment regulations has also provided clause for adjustment of persons working in the posts of Under Secretary and Deputy Secretary (scale Rs.12000-16500) against the posts of Assistant Director, and in a higher scale of Deputy Director (scale Rs.12000-18000) by way of re-designation. The posts of assistant Director and Deputy Director have been sanctioned by the SIU for the technical bureaus, where the applicants are working. The applicants for Government employments are now age barred. The applicants are stated to have been appointed as the first batch of employees after the first full-time Chairman of the AICTE took over and that they have fully committed their careers and aspirations for AICTE. It is pleaded that the applicants have no parent organization except AICTE and that they have been part of the development of the organization procedure and systems and have developed expertise in the field of working of AICTE. It is their case that to hire and train fresh people would take time and work of the AICTE would suffer. However, AICTE ignoring their long meritorious service and experience, has forced them to again compete for the post which the applicants are presently holding, as fresh applicants. The applicants were selected through duly constituted selection committees through open advertisement on all India basis. Constitution of the selection committee as per the recruitment rules of 1995 was the same as is under the recruitment regulations of 2007 (except for inclusion of SC/ST representative in place of Expert member). The applicants do not want to be subjected to harassment of facing the selection committee again with fresh candidates with barely any experience against the technical experience of about 14 years in the AICTE that the applicants have. The applicants were also selected against the post of Assistant Director advertised in December, 1996 with the clause that there was a likelihood of some posts becoming regular in due course and the Council would offer the option to the selected candidates for absorption to AICTE in accordance with the rules and regulations laid down from time to time, and now when the posts have been made regular, no provision has been made for the applicants by the AICTE as per the assurance made at that time. Advertisement for the post of Assistant Directors/Deputy directors in AICTE was published in Employment News of 24-30 November, 2007, and other national newspapers, as per notified procedure by AICTE. The applicants have since already been repeatedly subjected to open selection by duly constituted selection committees at least five times. Applicants 2 to 4 have applied for both the posts, i.e., Assistant director and Deputy Director, whereas the 1st applicant has applied for the post of Deputy Director only under protest. Earlier the persons who are now holding the post of Under secretary and Deputy Secretary in AICTE had joined on the posts of Administrative Officer, Principal Private Secretary and other administrative positions, and they were absorbed in AICTE on the said posts when there was provision for absorption in the non-technical cadre, and now when as per the SIU report of 2005 the posts of Under Secretary and Deputy Secretary do not exist, these incumbents are being shifted to the technical bureaus for the purpose of adjustment and promotion by way of re-designation, and this way the posts of Deputy Directors which are presently held by the applicants in technical bureau, will be occupied by the incumbents who are working in the AICTE at various cadres in the administration and finance bureaus. Although persons working on the posts of Under Secretary and Deputy Secretary also have 14 years experience of working in AICTE, they do not possess the technical expertise required for the job as per the advertisement issued in November, 2007. The applicants made representations to the respondents on 19.11.2007 and 31.12.2007 seeking their regularization including various service benefits as per rules and also requesting them not to go ahead with the selection to the posts of Assistant Director and Deputy Director. When despite receipt of representations, the respondents did not take any action, the applicants in March, 2008 filed WP) No.2232/2008 before the High Court for regularization/absorption of their services against the permanent posts respectively including various service benefits as per rules, and to restrain the respondents from making recruitment/promotion/absorption/re-designation of Under Secretary and Deputy Secretary as Assistant Director/Deputy Director in AICTE, which posts were occupied by the applicants. The writ was listed for hearing on 19.3.2008 and after hearing both parties, the Honble Bench passed the following order:
Issue notice to the respondents to show cause why rule nisi be not issued. Mr. Jattan Singh enters appearance on behalf of Respondents No.1 and 2 and Ms. Harvinder Oberoi enters appearance on behalf of respondent no.3 and accept notice. They waive service.
Counsel for respondents No.1 and 2 points out that the representations made by the petitioners are also under consideration of the Respondent, and that the respondents do not intend to take any adverse action with regard to the service of the petitioner till the disposal of those representations which are being considered on merits. He further states that in the event that any adverse orders that come to be passed under the rules on these representations, they will not be implemented for a period of at least 15 days after intimation of such orders is given to the petitioners.
Mr. G.D. Gupta states that in view of the statement made by counsel for respondents No.1 & 2 before this Court, he does not wish to press his writ petition for the time being and seeks to withdraw the same with liberty to re-agitate his grievance, if any, as he may be advised. Liberty granted.
The writ petition is dismissed as withdrawn. On 5.5.2008 a memorandum was served upon the applicants by the Member Secretary of AICTE stating therein that AICTE had constituted a committee of two members namely the Registrar of Jamia Millia Islamia as Chairman and Shri Tej Singh, retired Joint Secretary, Government of India as Member, to consider the representations for regularization of services and other reliefs, and that the said committee met on 23.4.2008 and 25.4.2008, and that on 23.4.2008 personal hearing was given to all the applicants, and on the basis of recommendations made by the committee and on analysis thereof, the competent authority had rejected their representations, mainly on the following three grounds:
a) That the terms and conditions of your contract under the AICTE clearly provided for as under:
The officer shall not have any right or claim for regular appointment employment in any post in the Council after the completion of the contract period with the Council.
b) Recruitment Regulations, 2007 of AICTE as notified vide No. 37-3/Legal (iii)/2007 dated November 1, 2007 do not provide for the regularization/absorption of contractual employees.
c) Regularization of contractual employees merely on basis of the length of service on contract basis de hors the constitutional scheme of public employment. Such an act amounts to considering equity for the handful of people whilst ignoring equity for thousands others seeking employment and a fair opportunity for competing for employment. It may also be seen that the engagement on contract basis was accepted by you fully aware of the nature of employment and it does not make a valid or legally permissible ground to put recruitment rules on hold. By doing so, the Council will be creating another mode of appointment which is not permissible as per the Recruitment Regulations, 2007. It would also be relevant to make reference here to the judgment of Honble Apex Court in State of Karnataka and Ors. vs. Uma devi (3) and Ors., 2006. Ratio of this case is that absorption, regularization, permanent continuance of temporary, contractual, casual, daily wages or ad-hoc employees appointed/recruited and continued for long in public employment de hors the constitutional scheme of public employment. The Honble Apex Court has emphasized the need for addressing concerns for equity for all, and not just the few, by upholding the constitutional scheme of public employment whose hallmark is equality of opportunity. Aggrieved of the order as referred to above, the writ was filed in the High Court with the prayer that the impugned memorandum dated 5.5.2008 issued by the respondents be set aside and quashed being violative of Articles 14, 16(1) and 21 of the constitution. In consequence of setting aside of the order aforesaid, the further prayer of the applicants is to give a direction to the respondents to regularize/absorb them on their respective posts held by them following regular selection and appointment from the inception and giving them the benefit of past service for all purposes like seniority, pay fixation etc. They also seek a writ in the nature of mandamus directing the respondents not to go ahead with the selection for the posts of Assistant Director and Deputy director of persons who have been working as Under Secretary/Deputy Secretary holding non-technical posts in AICTE, and further to quash the advertisement dated 24-30 November, 2007 for recruitment to the posts of Assistant Director and Deputy Director.
5. The matter came up before the High court on 20.5.2008. While noticing the main contention of the applicants, it has been directed that any appointments made by the 1st and 2nd respondents to the regular posts would be subject to the outcome of the writ petition. Vide order dated 29.7.2008, however, the respondents have been directed to maintain status quo regarding filling up of four vacant posts of Deputy Director, if any, on regular basis till further orders. Vide order dated 7.1.2009, in view of the notification dated 1.12.2008, the matter has been transferred to this Tribunal. When the matter came up before us on 14.9.2009, counsel representing the applicants in TA-138/2009 stated that insofar as, Dr. Nirendra Dev the 1st applicant, is concerned, he had got an appointment to the post of Professor elsewhere and that, therefore, he may not like to proceed in the matter any further, and prayed for deletion of his name from the array of parties. It was so ordered. The learned counsel for applicants in TA-117/2009 also stated that Mr. K. C. Mathur, applicant No.2, would not like to continue with this Application, and, therefore, his name be deleted from the array of parties, which was so ordered. The matter came up before us for hearing on 22.9.2009, and after substantial arguments were heard in the matter, it came to our notice that the application seeking amendment in the writ petition was filed when the matter was listed before the High Court and that notices in that application were issued on 18.11.2008, but the respondents, despite availing opportunities, had not filed their reply. Substantial issues of importance have been raised in the application seeking amendment. We thus gave last opportunity to the respondents to file their reply. By a detailed order dated 8.10.2009, the amendments sought for in the Application were allowed and the respondents were required to file reply to the amended Application by the next date of hearing. When the matter came up before us on 22.10.2009 and when we had heard substantial arguments, the matter was adjourned seeking clarification from the respondents with regard to method of regular appointment of the employees mentioned in the chart annexed with the counter affidavit of the respondents. The respondents filed additional affidavit, contents whereof appeared to be vague. Vide order dated 5.11.2009, we gave one more chance to the respondents to come clear with regular appointments made by them before introduction of rules of 1995 pertaining to technical and rules of 2001 pertaining to non-technical. Pleadings are complete and we have heard the arguments.
6. At this stage, it shall, however, be necessary to make mention of the amendments that have been sought for by the applicants. It is the case of the applicants that they have been recruited repeatedly, on 5-6 occasions on the basis of open selection on all India basis after due advertisements, and such selections had been conducted by duly constituted selection committee, and that in all such selections the applicants were selected on merits. However, their tenure was restricted to three years. Before enactment of the AICTE Act, 1987, the Ministry of Education used to coordinate the development of technical education system in the country. However, with a view to secure coordinated and integrated development of technical education and maintenance of standards throughout the country, Parliament enacted the Act of 1987 inter alia establishing a Council by the name of All India council of Technical Education, and laid down the functions of the Council under Section 10 of the Act. In order to effectively discharge its functions, the council is empowered under Section 11 to undertake inspection of the Technical Institutions to ensure qualitative improvement in technical education in relation to planned quantitative growth and standard in such education system. In order to enable the Council to effectively discharge the said duties and functions, it became imperative for the Council inter alia to recruit sufficient number of technically qualified officers at different levels, and keeping in view the nature of duties and functions of the Council, a conscious decision was taken both at the level of the Council and by the Ministry of Human Resources Development, successor of the Ministry of Education, to recruit adequate number of experienced and technically qualified officers at the levels of Assistant Director, Deputy Director, Director and Advisors. In terms of the mandate of Section 20, the Council continued to abide by the directions issued by the Central Government from time to time, in the matter of recruitment of its offices and staff. It is in view of the directions of Central Government that the Council recruited officers as Assistant Director, Deputy Director and Director by open advertisement and selection on merit on all India basis, but restricted their tenure to three years. In view of the functions of the Council enumerated under the said Act, although the job requirements of the incumbents to the said posts were perpetual in nature, the applicants were subjected to undergo repeated selections on 5-6 occasions on all India basis. Section 23 of the Act empowers the Council to make regulations, not inconsistent with the provisions of the Act and the rules, providing inter alia the terms and conditions of service of the officers and employees of the Council. In exercise of the powers so vested under Section 23 read with Section 8 of the Act, the Council framed the All India Council for Technical Education (Financial Adviser and Group A Technical Posts) Recruitment Regulations, 1995.
7. It is the case of the applicants that the only method of recruitment statutorily prescribed was that mentioned in the recruitment regulations of 1995, and following the said method of recruitment, statutorily prescribed for the posts of Assistant Director/Deputy Director, the applicants were selected. While the applicants were continuing in the service of AICTE for more than 14 years after being recruited on merit on all India basis and in accordance with the recruitment process statutorily laid down for the same, considering the nature of functions of the Council, the Central Government set up a committee (Staff Inspection Unit) to study the staffing pattern of the AICTE and to make necessary recommendation. The said committee, after a detailed study of staffing pattern and the functions of the Council, recommended inter alia that the administrative posts of Under Secretary and Deputy Secretary in administration bureau are not required at all. AICTE, in purported implementation of the said recommendation, notified the All India Council for Technical Education (Group A, B and C Posts) Recruitment Regulations, 2007. Since it was felt that the nature of the duties required to be performed by Assistant Directors and Deputy Directors was perpetual in nature, the regulations of 2007, while maintaining all other terms and conditions of service for Assistant Directors and Deputy Directors identical to those contained in the regulations of 1995, did away with the restricted tenure (provided under the regulations of 1995). The method of recruitment, the source of such recruitment and the composition of the selection committee (with some minor changes already mentioned above) remained identical. While reproducing regulation 7, the applicants plead that they were all appointed as Assistant Directors and Deputy Directors under AICTE, following the procedure laid down in the prevailing recruitment regulations, on regular basis, and would thus be deemed to have been appointed to the said posts under regulation 7 and the services rendered by them in the said posts of Assistant Directors and Deputy Directors, before the commencement of the regulations of 2007, were required to be taken into account as regular service for purpose of promotion to next higher grades. It is then pleaded that since deputationists recruited to the posts of Assistant Director and Deputy Director retained their lien in their respective parent organizations, regulation 6 of the regulations of 2007 gave an option to the deputationists to seek absorption in AICTE against direct recruitment quota subject to fulfilling certain conditions mentioned therein. This was, however, subject to the AICTE separately notifying the absorption rules. It is pleaded that under the garb of implementing the said recommendations of SIU inter alia for discontinuance of the administrative posts, namely, Under Secretary and Deputy Secretary, in the regulations of 2007, for the post of Deputy Director maintaining identical position as provided in the regulations of 1995, except 1/3 quota laid down for promotion, failing which, by deputation and 2/3 by direct recruitment. Though under the column qualification the regulations of 2007 provided identical position as was in the regulations of 1995, a note (Note 2) was inserted in the regulations of 2007, which has been reproduced. It is the case of the applicants that insertion of the said Note 2 was only with a view to securing the interest of present incumbents of the said administrative posts by notionally shifting them to technical post of Assistant Director and later promoted as Deputy Director, although they are not qualified and as per the recommendation of the SIU, the administrative posts held by them should have been abolished and with such abolition of posts, the incumbents should have been declared as surplus and discharged them from their services under AICTE. The note is stated to be inconsistent with substantive provisions of the regulations of 2007 and also runs contrary to the source and the method of recruitment laid down for the post of Deputy Director. The same has been styled to be unreasonable and unjustified, having come into being only with a view to favour the holders of the posts of Under Secretary and Deputy Secretary who are required to be discharged on abolition of their administrative posts and thus, it is stated, would be a colorable exercise of power. The note, it is further stated, seeks to put different classes of officers on equal footing, which is violative of Article 14 of the Constitution, as unequal persons are sought to be treated equally, and that the note does not contemplate any promotion and hence, the promotion given to the incumbents of the said administrative post with the post of Deputy Director would be illegal. The applicants made representations dated 19.11.2007 and 31.12.2007 to the respondents for regularization of their services, but the same were rejected. We need not refer to the additional grounds that have been incorporated while amending the Application, as surely, legal grounds pressed into service would be taken into consideration at the relevant time.
8. In response to notice issued to the respondents, they have entered appearance and filed counter reply contesting the cause of the applicants. It is inter alia pleaded that the applicants were appointed afresh each time on different terms and conditions, namely, some times on consolidated salary and some times in a particular pay scale. Before regulations of 2007, it is then pleaded, the Council had formulated regulations of 2001 also whereunder there is a provision for regularly appointed persons. It is denied that the duties required to be performed by the applicants as Assistant Director and Deputy Director are perpetual in nature and that all terms and conditions in regulations of 1995 are not similar to provisions in regulations of 2007. It is also denied that the applicants would be deemed to be appointed under regulation 7 and services rendered by them before the commencement of regulations of 2007 are required to be taken into account as regular service for purpose of promotion to the next higher grade. It is specifically denied that the administrative posts were discontinued in the garb of implementation of recommendation of SIU. It is also denied that note-2 was inserted to secure the interest of incumbents of the administrative posts, and that they were not qualified. It is further denied that the said note has been engrafted only with a view to favour the holders of the posts of Under Secretary and Deputy Secretary. It is then pleaded that the applicants did not continue for more than 14 years as there was no continuity in their services, and that they were appointed afresh every time after the expiry of their terms of contract on different posts on different terms and conditions including salary. Deemed appointment of the applicants under regulation 7 and their plea that the services rendered by them would count as regular service, has been denied.
9. The applicants have filed rejoinder by and large reiterating the facts and pleas raised by them in the Application and refuting the one taken in the counter reply.
10. Before we may proceed any further with the case, we may mention that when the matter came up for hearing on 22.10.2009, after hearing arguments at some length, we adjourned the matter seeking clarification from the respondents with regard to method of regular appointment of employees mentioned in the chart annexed with the counter affidavit of the respondents. When the matter came up for hearing on 5.11.2009, while prima facie finding that the averments made in the additional affidavit filed pursuant to our order dated 22.10.2009, were absolutely vague, we gave one more opportunity to the respondents to come clear with regular appointments made by them before introduction of rules of 1995 pertaining to technical and rules of 2001 pertaining to non-technical. We may make mention of the two additional affidavits referred to above. In the first additional affidavit dated 4.11.2009, it has inter alia been mentioned that the words regular basis as occurring in regulation 7 of the regulations of 2007, would mean permanent employees of AICTE as on the date of enforcement of regulations of 2007, and such permanent employees include those who were directly recruited as per the rules of DOP&T, Government of India in 1990-91. Another category of permanent employees includes those appointed in the Council on deputation basis and absorbed later during the years 1993 to 1996 in administration and finance bureaus. There is yet another category of permanent employees who were working in regional offices of Ministry of HRD at Chennai, Calcutta, Kanpur and Bombay, who were en masse transferred to AICTE during 1994-95 along with the assets, and the above mentioned categories of employees have been appointed on regular basis prior to the date of commencement of regulations of 2007. The applicants are, thus, stated not to be permanent employees of the Council, as they were appointed on contract basis for a fixed term and as per other terms and conditions of the contract. In the second affidavit dated 23.11.2009, it has been pleaded that it would clearly appear from notification dated 4.9.1995 of the Department of Education, Government of India, that the employees thus transferred from Ministry of HRD (Department of Education) are also such permanent employees of AICTE who would fall under regulation 7 of the regulations of 2007. The employees appointed on contract basis, it is pleaded, cannot be said to fall under regulation 7 for another reason, i.e., while the permanent employees hold the post till superannuation, the contract employees cease to hold the post on expiry of the term of contract. Along with the affidavit aforesaid, the respondents have annexed copy of notification dated 4.9.1995 as Annexure-A.
11. We may also at this stage refer to the impugned order dated 5.5.2008. Perusal of the same would reveal that AICTE constituted a committee comprising Shri S. M. Afzal, Registrar, Jamia Millia Islamia as Chairman, and Shri Tej Singh, retired Joint Secretary, Government of India as Member, to consider representation of the applicants for regularization of their services, and to make suitable recommendations to the Council for further consideration. The committee, it appears, gave personal hearing to the applicants. It went through the representation made by the applicants for their regularization in service, gazette notification dated 12.10.1995 and 2.11.2007 notifying recruitment regulations, the recruitment notice published in employment News 24-30 November, 2007, orders issued by Ministry of Human Resources Development from time to time regarding mode of recruitment on key positions in the Council, order dated 19.3.2008 passed in WP(C) No.2232/2008 passed by the High Court, decision of the Honble Supreme Court dated 10.4.2006 in Uma Devis case, and verbal submissions of the applicants. On an analysis of the material as mentioned above, the applicants were informed as follows:
a) That the terms and conditions of your contract under the AICTE clearly provided for as under:
The officer shall not have any right or claim for regular appointment employment in any post in the Council after the completion of the contract period with the Council.
b) The Recruitment Regulation, 2007 of AICTE as notified vide No.37-3/Legal(iii)/2007 dated November 1, 2005 do not provide for the regularization/absorption of contractual employees.
c) Regularization of contractual employees merely on the basis of the length of service on contract basis de hors the constitutional scheme of public employment. Such an act amounts to considering equity for the handful of people whilst ignoring equity for thousands others seeking employment and a fair opportunity for competing for employment. It may also be seen that the engagement on contract basis was accepted by you fully aware of the nature of employment and it does not make a valid or legally permissible ground to put recruitment rules on hold. By doing so, the Council will be creating another mode of appointment which is not permissible as per the Recruitment Regulations, 2007. It would also be relevant to make reference here to the judgment of Honble Apex Court in State of Karnataka and Ors. vs. Uma Devi (3) and Ors., 2006. Ratio of this case is that absorption, regularization, permanent continuance of temporary, contractual, casual, daily wages or ad-hoc employees appointed/ recruited and continued for long in public employment de hors the constitutional scheme of public employment. The Honble Apex Court has emphasized the need for addressing concerns for equity for all, and not of just the few, by upholding the constitutional scheme of public employment whose hallmark is equality of opportunity. Similar reply was given al all the applicants.
12. Shri A. K. Ganguly, Sr. Advocate, leading a galaxy of lawyers, vehemently contents that the applicants were appointed before issuance of recruitment regulations of 1995, but their selection made after issuance of the regulations of 1995 was as per the norms of AICTE, and that in the said regulations there were two modes of recruitment, namely, deputation and contract for technical staff, and no mode for making regular appointment was prescribed in the regulations of 1995 for technical staff, and that being so, the applicants were appointed as per existing recruitment regulations on the basis of all India competition by a properly constituted selection committee, which may not be at variance with the committee now constituted under regulations of 2007, and that the appointment of the applicants even though, termed as on contractual basis, has to be held on regular basis, and the only mode of appointment as per recruitment regulations in vogue was resorted to and, therefore, the appointment of the applicants has to be termed as if made on regular basis. It is then urged that the applicants have put in 15 years of continuous service with only artificial breaks of few days, and that such deliberate artificial breaks have to be deprecated and ignored. Regulation 7 of the regulations of 2007, it is urged, would be applicable to the applicants.
13. Per contra, Shri S. Chandrashekhar, learned counsel representing the respondents, would contend that the term regular basis is being wrongly interpreted by the applicants to mean that they would be covered under regulation 7 of the Regulations of 2007, and that the term regular basis as occurring in regulation 7 indicates that the appointments made on permanent basis would not cover the appointments made on contract basis, and further that if there may be some ambiguity in regulation 7 that instead of regular basis, regular employees may have been mentioned, then in that case the explanation offered by the AICTE should be accepted by this Tribunal. It is further urged that if the contention of the applicants is accepted, then it would not only be contrary to the terms of appointment, but it would amount to creating a new mode of appointment, which is not permissible in law, and that the applicants cannot be deemed to be declared permanent employees of AICTE.
14. Before we may touch upon the core controversy between the parties as mentioned above, it would be useful to trace briefly how the AICTE came into being and how the service conditions of its employees are being governed from time to time. AICTE was set up in 1945 as an advisory body, and it was given statutory status through an Act of Parliament in 1987. Before enactment of the AICTE Act, 1987, the Ministry of Education used to coordinate the development of technical education system in the country, and it was with a view to secure coordinated and integrated development of technical education and maintenance of standards throughout the country, that Parliament enacted the Act of 1987. Functions of the Council were laid down under section 10 of the Act. In terms of the mandate of section 20, the Council continued to abide by the directions issued by the Central Government from time to time, in the matter of recruitment of its officers and staff. In order to enable the Council to effectively discharge its duties and functions, it became imperative for the Council inter alia to recruit sufficient number of technically qualified officers at different levels, and keeping in view the nature of duties and functions of the Council, a conscious decision was taken to recruit adequate number of experienced and technically qualified officers at different levels of Assistant Director, Deputy Director, Director and Advisor. At this stage, we may mention that it is the case of the applicants that although the job requirements of the incumbents to the said posts were perpetual or perennial in nature, the respondents would, however, resort to contract employment for fixed terms by inviting applications on all India basis, and making selection through properly constituted committee. Section 23 of the Act of 1987 empowers the Council to make regulations which may not be inconsistent with the provisions of the Act and rules, providing inter alia the terms and conditions of service of the officers and employees of the Council. Even though, the Act of 1987 by virtue of provisions contained in Section 23 provides for framing regulations in respect of terms and conditions of service of officers and staff of the Council, it appears that the process for the same started for the first time in the year 1993 when Ministry of Human Resources Development vide its letter dated 6.12.1993 approved creation of 49 Group A posts in the Council including the post of Deputy Directors and Assistant Directors. Sanction of these posts was subject to number of conditions, one of which was that the administrative and finance divisions in the Council may provide officials to be in regular service of the council till superannuation, but the post of F.A. was to be on tenure basis, and further that the Council may frame recruitment rules so that there is sufficient induction of fresh blood at the lowest level of Group A and B posts. The posts in the technical division, i.e., posts of Adviser-I, Adviser-II, Director, Deputy Director and Assistant Director were under the recruitment rules required to be filled up only on tenure basis, and no officer in these posts was to be regular employee of the Council till superannuation. In exercise of powers so vested under section 23 read with section 8 of the Act, the Council framed the All India Council for Technical Education (Financial Adviser and Group A Technical Posts) Recruitment Regulations, 1995. Number of posts, classification thereof and scales of pay, in terms of regulation 3, was to be as specified in columns 2 to 4 of the schedule annexed to the said Regulations. Method of recruitment, age limit and qualifications etc., as per regulation 4, was to be as provided in columns 5 to 14 of the schedule. The said Regulations as per the schedule annexed thereto, laid down the following terms and conditions for appointment on the posts of Assistant Director and Deputy Director:
Deputy Director Method of recruitment Qualification By transfer on deputation/contract through open advertisement and inviting nominations (Tenure of deputation/ contract shall be three years at a time). Transfer on deputation or contract: Persons in regular service from Universities/Institutions of higher education, Central/State Governments, Autonomous Bodies, and Public Sector Undertakings holding posts is analogous grades on regular basis or drawing basic pay of Rs.3300/- in the grade of Rs.3000-5000/3000-4500 or equivalent (1) Qualification: Masters Degree in any of the subject of Science/ Mathematics/Computer Application/Management including commerce & Economics/Pharmacy/ Applied Arts/ Engineering and Technology/Architecture and Town Planning, and (2) Experience: 6 years experience in teaching/research educational planning/ Administration training etc. in Central/State Governments, Universities/other institutions of higher educations, autonomous bodies and public sector undertakings. Preference will be given to the persons with doctoral degree and/or published research work with evidence of writing the technical reports.
Note:1: Persons from Private Sector fulfilling the above qualification and experience will also be considered or appointed on contractual basis.
Note:2: Persons not in regular service but holding tenurial and contractual positions in education/research institutions possessing the above qualifications and experience will also be considered for appointment on contractual basis.
Age: Not exceeding 45 years as on the last date for receipt of applications.
Note: The competent authority may on each occasion of advertisement, decide the particular qualifications needed for the post.
Asstt. Director Method of Recruitment Qualification:
By transfer on deputation/contract through open advertisement and inviting nominations (Tenure of deputation/ contract shall be three years at a time. Transfer on deputation or contract: Persons in regular service from Universities/Institutions of higher education, Central/State Governments, Autonomous Bodies, and Public Sector Undertakings holding posts in analogous grades on regular basis or drawing basic pay of Rs.3000/- 4000/- in the grade of Rs.2200-4000 or equivalent. (1) Qualification: Masters Degree in any of the subject of Science/ Mathematics/Computer Application/Management including commerce & Economics/Pharmacy/ Applied Arts/ Engineering and Technology/Architecture and Town Planning, and (2) Experience: 6 years experience in teaching/research educational planning/ Administration training etc. in Central/State Governments, Universities/other institutions of higher educations, autonomous bodies and public sector undertakings. Preference will be given to the persons with doctoral degree and/or published research work with evidence of writing the technical reports.
Note:1: Persons from Private Sector fulfilling the above qualification and experience will also be considered or appointed on contractual basis.
Note:2: Persons not in regular service but holding tenurial and contractual positions in education/research institutions possessing the above qualifications and experience will also be considered for appointment on contractual basis.
Age: Not exceeding 45 years as on the last date for receipt of applications.
Note: The competent authority may on each occasion of advertisement, decide the particular qualifications needed for the post.
All the technical posts, it would appear, were to be filled by way of transfer on deputation/contract basis. Approval of the Ministry of Human Resources Development for creation of 49 Group A posts including that of Deputy Directors and Assistant Directors vide letter dated 6.12.1993, as mentioned above, was only on tenure basis. It would further appear that insofar as, non-technical posts are concerned, they were governed by a different set of regulations. The same came into being vide notification dated 25.1.2001 and were to be called the All India Council for Technical Education (Group A, B & C Non-technical Posts) Recruitment Regulations, 1999. The posts referred to in the schedule to the said Regulations, which came into being by virtue of provisions contained in regulation 4 thereof, are Deputy Secretary, Under Secretary, Hindi Officer, Private Secretary etc. The method of recruitment on these posts was to be by way of promotion, deputation/contract as also direct recruitment. We may not make mention of all the posts and the method of their recruitment as provided under the Regulations of 1999, but by way of illustration, however, we may mention the method of recruitment for the post of Assistant, which was to be 33.1/3% by promotion failing which by direct recruitment and 66.2/3% by direct recruitment. We find from the book titled All India Council for Technical Education Answers to the Questions of Estimate Committee of the Parliament for its Visit to Delhi (including NCR) on 27.9.2001, which has been handed over to us during the course of arguments, that by 2001, more than 95% of the employees of the Council were on deputation/contract. In supersession of the Regulations of 1995 that pertained to technical posts as also the Recruitment Regulations of 1999 pertaining to non-technical posts, notification dated 2.11.2007 came into being making the Regulations called the All India Council for Technical Education (Group A, B and C Posts) Recruitment Regulations, 2007. Whereas, before framing the Regulations of 2007, there were two set of Regulations, one pertaining to technical posts and the other with regard to non-technical posts, by virtue of provisions contained in the Regulations of 2007, all technical and non-technical posts are to be governed by the same Regulations. Number of posts, classification and scales of pay, as per regulation 3, is to be the one specified in columns 3 to 5 of the schedule annexed to the said Regulations. Method of recruitment, age limit and qualifications etc., as per regulation 4, is to be as specified in columns 6 to 14 of the schedule. Regulation 6 which deals with absorption of deputationists, reads as follows:
6. Absorption of deputationists: Existing incumbents working on deputation basis, who have completed at least one year service in AICTE, shall be given one opportunity for consideration for permanent absorption in their respective posts against direct recruitment quota. The absorption rules shall be notified by the Council separately. Regulation 7 with the caption Initial constitution, dealing with persons appointed on regular basis, on which primarily the argument of the applicants rests, reads as follows:
7. Initial constitution: Any person appointed on regular basis and holding the post on the date of commencement of these regulations shall be deemed to have been appointed under these regulations and the services rendered by him in the said post before the said commencement shall be taken into account as regular service for deciding eligibility for promotion to the next grade. The schedule attached to the Regulations deals with posts of Assistant Director and Deputy Director besides many others. Note 2 in column 13 of the schedule reads as follows:
Note 2: The posts of Under Secretary have not been assessed by the Staff Inspection Unit (SIU). However, incumbents are working on regular basis on these posts. As such, they are included in the channel of promotion. The existing three posts of Under Secretary are redesignated as Assistant Director and merged with the post of Assistant Director. It is not in dispute that qualifications for the posts under contention held by the applicants are the same as were prescribed under the Regulations of 1995. The composition of the selection committee which is provided for every post in the schedule, is also not at much variance, but for the difference pointed out by the applicants, mention whereof has already been made.
15. What emerges from the facts as mentioned above is that AICTE was set up in 1945 and was conferred statutory status only in 1987. Even though, there may have been provision for framing service regulations, as per section 23 of the Act of 1987, such regulations came to be framed for the first time vide notification dated 12.10.1995 in respect of technical posts, and in 1999 pertaining to non-technical posts. Both the technical and non-technical posts are now to be governed by the Regulations of 2007. Whereas, Deputy Director was placed in the pay scale of Rs.3700-5700, the pay scale admissible to Assistant Director as per the schedule was Rs.3000-5000. The only mode of appointment under the Regulations of 1995 was by way of transfer on deputation/contract through open advertisement and inviting nominations, and tenure of deputation/ contract was to be three years at a time. In view of schedule attached to Regulations of 2007, Assistant Director is to be in the pay scale of Rs.10000-15200. Whereas, 75% of the posts, i.e., 20 out of 27, are earmarked for direct recruitment, 25%, i.e., 7 posts, are earmarked to be filled by promotion failing which by deputation. The tenure of appointment of three years by way of contract has been done away with. Deputy Director is to be in the pay scale of Rs.12000-18000, and whereas 33%, i.e., 2 out of 6 posts are earmarked to be filled by promotion failing which by deputation, 66.67%, i.e., 4 posts, are to be filled by direct recruitment. Once again, the method of appointment by way of contract has been done away with. Appointments now on both posts of Assistant Director and Deputy Director are to be made on regular basis.
16. We have given our serious thoughts to the contentions raised by the learned counsel representing the parties as noted above. The contention raised by Shri Ganguly, learned Sr. Advocate, may appear to be very attractive at the first blush, but when examined in its minute details the same may not hold any water. It may be true that the only recognized method of appointment on the posts of Assistant Director and Deputy Director, as per Regulations of 1985 may be by contract, as also that the applicants and others came to be appointed through an all India competition by properly constituted selection committee under the Regulations, but the same cannot be said to be regular appointment. We do find a distinction between regular employment and appointment on regular basis, but in the context of the facts and circumstances of present case, the words on regular basis would appear to relate to those who are appointed on regular basis, and not those who had a fixed tenure of three years arrived through contract between the employer and employee.
17. The detailed facts given above would clearly manifest that whereas persons on technical posts were to be recruited only on tenure appointments by way of contract as ordained and approved by the Ministry of Human Resources Development vide its letter dated 6.12.1993, as also emanating from the Regulations of 1995, insofar as, non-technical posts are concerned, all were not to be governed by the same method; for some of the posts the method of recruitment was by way of direct recruitment as well. The applicants have shown to us the book titled All India Council for Technical Education Answers to the Questions of Estimate Committee of the Parliament for its Visit to Delhi (including NCR) on 27.9.2001, adverted to above, wherein it is mentioned that 95% of the employees of the Council were on deputation/contract basis. The said book pertains to the year 2001. It may be recalled that the Regulations of 1999 came into being in 2001 itself, and it can well be presumed that more appointments on non-technical posts on regular basis would have been made after the said date. In the counter reply filed to the amended Application, the respondents have specifically averred that some employees were regularly appointed. A chart has been prepared and annexed with the reply as Annexure-A, showing number of persons, who, according to the respondents, were appointed on regular basis by way of direct recruitment. Some of the employees mentioned in the chart came on deputation but were absorbed in the Council. The respondents have also annexed copy of Regulations of 1999, reference whereof has already been given above, and according to which, for some of the employees or certain categories of employees, the mode of recruitment was direct recruitment as well. We may also refer to the two affidavits which came to be filed by the respondents on the directions of this Tribunal. In the first affidavit dated 4.11.2009, it has inter alia been mentioned that the words regular basis as occurring in regulation 7 of the Regulations of 2007, would mean permanent employees of the Council as on the date of enforcement of the said Regulations, and such permanent employees would include those who were directly recruited as per the rules of DOP&T, Government of India in 1990-91. Mention is also of another category of permanent employees who were appointed in the Council on deputation basis and absorbed later during the year 1993 to 1996 in administration and finance bureaus, and of yet another category of permanent employees who were working in regional offices of the Ministry of HRD at Chennai, Calcutta, Kanpur and Bombay, and were en masse transferred to the Council during 1994-95 along with assets, and the said employees had been appointed on regular basis prior to the date of commencement of Regulation of 2007. In the second affidavit dated 23.11.2009, it has been pleaded that it would clearly appear from notification dated 4.9.1995 of the Department of Education that the employees thus transferred from the Ministry of HRD (Department of Education) are also such permanent employees of the Council who would fall under regulation 7 of the Regulations of 2007. What we thus find is that prior to introduction of the Regulations of 1999 notified in 2001, some employees were either transferred or brought on deputation basis, and after introduction of the 1999 Regulations some employees were appointed in the Council on regular basis. The additional affidavits given by the respondents, of course, have not clarified as to by what orders they were brought on transfer or deputation basis, and as to how and in what manner they were absorbed, and to that extent, the affidavits may be lacking in giving such particulars, but surely, we are not looking into the issue of legality of appointments of such employees. The fact, however, remains that whether before introduction of the Regulations of 1999 or thereafter, and before Regulations of 2007 came into being, some employees in the Council were working on regular basis, even though on non-technical posts. Insofar as, the employees belonging to technical cadre are concerned, admittedly, they were appointed on contract basis. The Regulations of 1995 and 1999 were repealed by framing the Regulations of 2007 and, as mentioned above, all technical and non-technical posts are now to be governed by the Regulations of 2007. Looked in the background as mentioned above, the words regular basis have to necessarily relate to those who were given regular appointments and not tenure or contract appointments for specified terms. This Tribunal was very keen to know as to whether there was no employee who may have been appointed on regular basis, as indeed was canvassed on behalf of the applicants during the course of arguments, and for that precise reason, we had required the respondents to file affidavits, mention whereof has been made above. Naturally, if no one was appointed on regular basis, the words on regular basis occurring in regulation 7 would pertain to the applicants as well, but once, we find from the pleadings and material placed before us that there were indeed such employees who were appointed on regular basis, the words regular basis can be only with reference to such employees.
18. The appointment of the applicants may have thus been strictly in accordance with the Regulations of 1995 and thus may not be termed as appointment de hors the rules, but nonetheless the same was not on regular basis. It was, as mentioned, and as held above, on contract basis. In our considered view, therefore, regulation 7 of the Regulations of 2007 would not come to the rescue of the applicants and, thus on the dint of the said regulation they would not be entitled to continue in service. That apart, what we find is that under Regulations of 1995 the recognized mode of appointment was contract basis insofar as, technical posts are concerned, and deputation and regular appointments insofar as Regulations of 1999 with regard to non-technical posts are concerned. In the Regulations of 2007 while there are provisions dealing with absorption of deputationists and deemed appointment of those who are appointed on regular basis, the category of employees who came to be employed on contract basis have been left out from absorption or continuance. From the scheme of the Regulations of 1995 and 1997 and the one envisaged under Regulations of 2007 the intention of the legislature in not continuing with those who were employed on contract basis can clearly be inferred. The difference between appointments on regular basis, deputation and contract was known to all concerned, be it the AICTE or the employees, and once, no care has been taken with regard to contract employees in regard to their absorption or continuance, regulation 7, in our view, cannot apply to those who were employed on contract basis. It is interesting to note that when the writ petition came to be filed before the High Court it was not even the case of the applicants that they would be covered by regulation 7. It is specifically pleaded that the committee for review of clause 10(k) of the AICTE Act, under chairmanship of Prof. S. K. Khanna, Ex-Chairman, AICTE, recommended in 2004 that AICTE may review all appointees who have put in three tenures each of 3 years (with break) and consider them to be placed on regular post by following necessary prescribed procedure, but the AICTE ignored the recommendations of such high level committee by providing provision for the applicants who have long organizational memory of about 14 years, and on the contrary, made provision of absorption of those persons on deputation who had only one year of organizational memory, which would be highly arbitrary and discriminatory. The applicants thus, themselves understood that regulation 7 would not cover their case. They sought relief by showing discriminatory treatment having been met to them. It is only while amending the petition that the plea based upon regulation 7 has been raised. Even though, amendment has been allowed and the applicants can well advance their arguments based upon regulation 7, but all that we are mentioning here is that even the applicants understood in the first instance that they would not be covered by regulation 7.
19. Shri Ganguly, learned sr. advocate representing the applicants, however, for the proposition advanced by him on the basis of regulation 7 and in particular the words on regular basis, has placed reliance upon the judgment of the Honble Supreme Court in Union Public Service Commission v Girish Jayantilal Vaghela & Others [(2006) 2 SCC 482]. The facts of the case aforesaid reveal that respondent Girish Jayantilal Vaghela, was appointed as Drugs Inspector on 11.3.1996 on short term contract basis on a fixed salary for a period of six months, which was continued for over five years. Pursuant to an advertisement for making regular selection on the post of Drugs Inspector he applied, and inasmuch as, there was relaxation in upper age limit for those who were in government service, he sought such relaxation. When the same was not granted to him, he agitated the matter before the Tribunal at Bombay, which dismissed the Original Application filed by him. Aggrieved thus, he filed a writ petition before the High Court which was allowed. Inasmuch as, it is a government servant who was entitled to age relaxation, the point that came to be canvassed before the Apex Court was as to whether while holding the post on contract basis without any competition, he could be treated or termed as a government employee. While dealing with issue, it was observed that the main object of Article 16 of the Constitution is to create a constitutional right to equality of opportunity and employment in public offices, and the words employment or appointment would cover not merely the initial appointment, but also other attributes of service like promotion and age of superannuation etc. It was further observed that appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made, and that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which may, in some cases, include inviting applications from the employment exchange where eligible candidates get their names registered. What is held by the Apex Court is that a person appointed on contract basis without any competition would not be termed or treated as a government employee and would not be entitled to relaxation in age. The decision of the High Court was set aside and the writ petition filed on behalf of respondent Girish Jayantilal Vaghela was dismissed. From the observations made by the Honble Supreme Court that unless a person is appointed through a regular procedure he cannot be termed as government employee, it cannot be spelled that a person appointed within the rules and through a competition would be a permanent employee. Reliance by the learned counsel is then placed upon yet another decision of the Honble Supreme Court in K. Madhavan v Union of India & Others [(1987) 4 SCC 566]. Facts of the case aforesaid reveal that for promotion to the post of DIG in CBI, the eligibility was eight years in the grade on regular basis. The service of eight years as per rules had to be on regular basis. It is in the context of computing the eligibility of eight years that it was held that the expression on a regular basis would exclude temporary or ad hoc period. It was further held that when a person is appointed to a post against a permanent vacancy on probation, his appointment is on regular basis, but when a person is appointed to a post on a purely temporary or on ad hoc basis, the appointment is not on regular basis. The judgment relied upon by the learned counsel would have no parity with the facts of the case in hand. Reliance is also placed upon yet another judgment of the Honble Supreme Court in Ahmedabad Pvt. Primary Teachers Association v Administrative Officer & Others [(2004) 1 SCC 755]. The facts of the case aforesaid reveal that the grievance of the teachers association, the appellant before the Supreme Court, was that by the impugned judgment, a Full Bench of the Gujarat High Court had not only rejected the claim of an individual teacher, the writ petitioner before it, to gratuity under the Payment of Gratuity Act, 1972, but had rejected an important question of law against the teachers as a class that they did not fall within the definition of employee under section 2(e) of the said Act, and could not, therefore, raise any claim to gratuity under the Act. The contention raised by the appellant association was that a beneficial, purposeful and wide interpretation should be given to section 2(e), particularly because after the 1984 amendment, even employees in managerial or administrative capacity and without any bar or limit on their salaries or wages, were brought within the definition of employee to extend the benefit of gratuity to them. Per contra, it was urged that the definition of employee should be considered in the light of the definition of similar expressions in other labour legislations, and so considered, a teacher would not be covered by section 2(e) of the Payment of Gratuity Act. The contention on behalf of the teachers association in short was that they should be treated as included in the expression unskilled or skilled. While answering the question posed in the matter, the Honble Supreme Court held that in construing the words skilled, semi-skilled or unskilled, which are used in association with each other, the rule of construction noscitur a sociis may be applied and the meaning of each of these words is to be understood by the company it keeps. It was further observed that it is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them, and the actual order of these three words in juxtaposition indicates that the meaning of one takes colour from the other. Reliance upon this judgment is placed in endeavour to show that the words regular basis should be read with each other, and so read, it would only mean that the applicants have been appointed on the basis of existing rules suggesting a method of appointment, which was resorted to while making appointments of the applicants. We are unable to accept the contention of the learned counsel, as the judgment relied upon, once again, is in entirely different context and has no parity of facts with the present case. The learned counsel while referring to the judgment of the Honble Supreme Court in Secretary, State of Karnataka & Others v Umadevi (3) & Others [(2006) 4 SCC 1], wherein it is held that temporary, contractual, casual, daily-wage or ad hoc employees appointed/recruited de hors the constitutional scheme of public employment cannot claim discrimination against regularly recruited employees, contends that in the present case, the applicants were appointed on regular basis and, therefore, the respondents could not place reliance upon the said judgment in rejecting their claim. The judgment of the Honble Supreme Court in Umadevi may not be applicable to the facts of the present case, as surely, the applicants were appointed as per rules, but the question in the present case is of their continuance even though, appointed on contract basis, based upon the words regular basis mentioned in regulation 7 of the Regulations of 2007.
20. Based upon report on the review committee on AICTE with the title Revitalizing Technical Education published in the year 2003, it is urged that a high powered expert committee headed by eminent professionals such as Prof. U. R. Rao and Prof. S. K. Khanna had also criticized the mode of short term/contractual appointments of the technical staff, resort to which, the committee felt, was the cause for vociferous complaints from various institutions and lack of organizational memory, and recommended that for the institutional memory and continuity, the incumbents of AICTE should be permanent. Indeed, it is on the recommendation of the high powered expert committee and various aspects which must have been gone into, that the Regulations of 2007 came into being, by which all employees are to be conferred regular status, but that, in our view, would not show that the applicants should be treated to be regular employees. There would be a marked difference between desirability of making recruitment on regular basis and the fact that it was not so till such time the Regulations of 2007 came into being. Simply because the respondents may have resorted to regular appointments from the very inception, would not clothe the applicants with the status of permanent employees.
21. The plea raised on the basis of discrimination in meeting an equal treatment to the applicants vis-`-vis Data Entry Operators-cum-Assistants, who were appointed on similar terms and conditions as the applicants and were later regularized, may also not advance the cause of the applicants. It may be recalled that 19 DEOs-cum-Assistants had filed a writ petition in the High Court, reference whereof has already been given above, and it was during the pendency of the writ that the services of such DEOs-cum-Assistants were regularized. It may be true that the applicants and DEOs-cum-Assistants may have been appointed on the same terms and conditions, but, in our considered view, they constitute a class apart. The applicants were holding technical posts of high caliber. They were holding Group A posts. The requirement of the organization on such posts may be to have the best talent available in the country. DEOs, it would appear, were holding Group C posts, and may be, by virtue of the duties carried out by them as also the experience put in by them, they answered the requirement of the respondent organization. Present is thus a case of reasonable classification and not of hostile discrimination, as is sought to be made out by the learned counsel representing the applicants.
22. Present is, however, not a case where the applicants may not be entitled to any relief. The applicants have held their respective posts for number of years; some of them for over 15 years. Their tenure in service with artificial breaks has been unblemished. They came to be repeatedly and successively selected, facing all India competitions, not once but on number of occasions. On the posts occupied by them, they have vast experience. Insofar as, their competing with others is concerned, the same has been allowed to them irrespective of their age. It is the positive stand of the respondents in the counter replies filed by them that the applicants would have a chance to compete with others, and age bar in their case would be relaxed. We are of the considered view that because of unblemished long years of service put in by the applicants they should have an edge over others with whom they are to compete. We have pondered over the issue and given our serious thoughts to the same. Normally, no distinction can be made between those who are competing at the same level having same qualifications etc., but there may be a special class needing a better treatment or requiring precedence in the matter of selection and appointment. To adopt such a course is not impermissible and has indeed been adopted by courts on earlier occasions as well. We may straightway refer to a Full Bench decision of this Tribunal at Hyderabad in OA Nos.306/1990 and connected OAs in the matter of S. S. Sambhus etc. v Union of India & Ors., decided on 29.10.1991. The facts of the case before the Full Bench would reveal that it was a case of promotion by selection to higher grade. Some employees while holding substantively Class-III posts of Surveyor Assistants Grade-I had been officiating in Class-I post of Assistant Supervisors (Works) for number of years continuously with some technical breaks of one or two days. They were, however, officiating as such on ad hoc basis and had been promoted not by selection but on the basis of seniority. Therefore, the class of persons holding higher posts, even though on ad hoc basis, simply because of seniority and not because of selection, were given precedence in the matter of selection. The issue before the Full Bench of the Tribunal has been lucidly stated in the judgment, relevant part whereof is reproduced as under:
the main issue is the modality of making a comparative assessment of the performance of two groups of officers for promotion by selection to a higher grade. The applicants in these cases while holding substantively Class III posts of Surveyors Assistants Gr. I have been officiating in Class I posts of Assistant Surveyors (Works) for a number of years continuously with some technical breaks of one or two days. They were, however officiating as such on an adhoc basis and had been promoted not by selection but on the basis of seniority. They had been allowed to cross the efficiency bar also by the DPC in the Class-I posts. When the question of regular selection came up against the vacancies of ASW for 1985, 1986 and 1987 their performance as ASW also was taken into account for the years they have been working as ASW on an adhoc basis, while in case of their juniors impleaded as respondents who had never been promoted as ASW on an adhoc basis their performance as Surveyor Assistant Gr. 1 only in Class III grade was taken into account for the same period. By this process, the grading as good of the applicants as Class-1 ASWs was valued as lower than the grading as `very good/outstanding of the individual respondents as Class-III SAs and the applicants were superseded by their juniors for regular promotion as ASW. The grievance of the applicants is that there has been clear violation of Articles 14 and 16 of the Constitution by comparing their performance as Class-I ASWs with the performance of their juniors in the Class III grade of SA-I. The learned Full Bench observed thus:
The main contention of the applicants is that it was not proper for the DPC to compare their assessment in Class-I post, they were holding on adhoc basis, with the assessment of the others working in Class-III posts and that treating of `unequals as equal amounted to discrimination, and is violative of Art. 14 of the Constitution. Thus, the limited controversy which we are called upon to resolve is as to how an officer working on an adhoc basis in a higher post for a certain number of years relevant for the purpose of regular promotion should be assessed, especially when he is competed with those holding the lower substantive posts in the feeder cadre and having had no occasion to shoulder the responsibility of the higher post. The principle underlying Art. 14 of the Constitution requires that when several persons competent for a post or grade, their merit assessment should be by the same yardstick and of same character otherwise it may result in discrimination and the selection process may be violative of the principles of equality enshrined in Art. 14 of the Constitution..
The case of the applicants rests mainly on the erroneous method of comparative assessment of the merits of the applicants vis-`-vis their junior who are only working in Class III posts while the applicants were working in Class-I posts when their merits were judged on the basis of such performance..
Thus, the supersession of the applicants has taken place in respect of the vacancies for the year 1986. The question, therefore, to be considered by us is as to whether they were rightly superseded or did the DPC arbitrarily supersede the applicants as alleged by them. The sole ground for branding the selection as arbitrary is that they applicants and the respondents were not placed on equal footing that is the assessment of the applicants was made on their performance while they were working on the post of ASW while on the other hand the assessment of the respondents was made while they were working on the post of Surveyor Assistant Grade-I. (emphasis supplied).
After considering all aspects, the Tribunal further observed in paragraph 8 thus:
8. We are fully convinced that comparing the quality of performance of a candidate at the class-III level of S.A. with the quality of performance or another at the class-I level of ASW on equal footing will be comparing the incomparables and will be not only illegal, irrational but also violative of article 14 of the Constitution. To this extent we agree entirely with the Madras Bench of the Tribunal. Since neither the Principal Bench nor the Bangalore Bench of the Tribunal has gone into basic infirmity of the assessment process, the judgments in those cases which are based on entirely different grounds are of no assistance to us. The Allahabad Bench of the Tribunal in C.A. No.336/1990 (V.N. Dutta v. Union of India & Ors.) however, took the view that comparative assessment of performance based solely on the C.R. entries, irrespective of the level on which the performance was discharged is in accordance, with law. One of us was a party to that judgement. However, the said judgment is under review and the operation of that judgment has been stayed by the Bench itself. In the instant cases the class-III post of S.A. is two levels below the Class I post of A.S.W. The enormity of hostile discrimination suffered by the applicants in these cases calls for serious consideration. One of the applicants in the Bombay cases stated that he, an adhoc SW, wrote the CR of one of his juniors who was working as SA under him, and now that junior would be working as ASW and he has been reverted as SA. Such a situation is an anathema to service jurisprudence and discipline. Just as the quantity of water will reach a higher level in a tumbler or narrow girth but a lower level in a tumbler of wider girth, and the lower level does not signify a lower quantity of water as compared to the water in the narrow tumbler, similarly `good performance in a Class I post as compared to Very Good performance in a Class III post does not signify lesser talent of the incumbent in the higher post. We feel that para 2-2 1 (d) of the Dept. of Personnels OM dated 10.03.89 cited earlier needs to be reviewed and modified to the extent it purports to equalize the yardstick of assessment of performance at two different levels. Having come to the above conclusion, the learned Full Bench gave the following directions:
The only reasonable and just suggestion that in our opinion can be made to meet the ends of justice in the circumstances of the case is that for the period during which the applicants shouldered the higher responsibilities of the higher Class-I posts of ASW/SW their gradation as SA should be treated as one level higher than the grading awarded to them as ASW as per the ACRs for that period. That is, if the ACR as ASW reflects `good, it should be taken as `very good, and if `Very good, then it should be taken as `outstanding. In this manner they are placed on equal footing for the purpose of assessment of comparative merits. With this modification in the grading, the comparative assessment of the merits of the candidates may be made by the selection committee and they may be accordingly considered for empanelment. In Shiv Kumar Sharma & Another v Union of India & Others [(1997) 11 SCC 112], both the officers belonged to the State Police Service and were being considered for selection for entry into the Indian Police Service. Appellant Shiv Kumar Sharma was holding dual charge during the years 1980-81, 1981-82 and 1982-83 as Joint Superintendent of Police, as also the charge of part of establishment work at intelligence headquarters. He urged before the Honble Supreme Court that UPSC should have applied the formula evolved in S. S. Sambhus (supra) decided by the Full Bench of this Tribunal. The Honble Supreme Court observed, we see no difficulty in accepting the submission of the counsel that the UPSC should be directed to reconsider their cases in the light of the judgment of the Full Bench of the Central Administrative Tribunal approved by this Court so that a proper assessment can be made by the UPSC. It would appear from the observations made above, although we are unable to trace a judgment nor has it been shown to us by the counsel representing the applicants, that the judgment of the Full Bench was approved by the Honble Supreme Court. Be that as it may, the judgment of the Full Bench of the Tribunal has been approved either independently or, in any case, in the judgment in Shiv Kumar Sharma (supra). The courts and tribunals are constantly engaged in dispensation of justice, and while doing substantial justice, some times, equitable solutions to vexed problems have to be found out.
23. Having given our serious thoughts to the entire spectrum of the facts of the case and in particular, that the applicants have long unblemished service to their credit and have been selected on the basis of all India competitions as per service regulations in vogue, not once, but on number of occasions, have vast experience on the post for which they may apply now or may have already applied, and the predicament they may have at this late stage of their career, we are of the view that a formula needs to be devised for giving them precedence in the matter of their selection to the respective posts. We have pondered over the issue and have come to the conclusion that in the matter of their selection vis-`-vis others, if the respondents would resort to categorization, like categories A, B, C and D, the applicants be placed a category higher than which they may actually get in the process of selection. To illustrate, if an applicant is put into category B, he should be placed in category A. If, however, the respondents may resort to evaluating the merits of the candidates on the basis of marks, then in that event the marks actually obtained by the applicants during the process of selection should be added commensurate to the number of years of service put in by them. In case, however, in the essential qualifications and experience required for the jobs under contention the respondents may have provided experience as well, then the applicants would be given marks commensurate to the number of years experience which may be over and above provided by the respondents. To illustrate, if the respondents may have provided experience on the job in an equivalent, analogous or similar institution for five years and the concerned applicant has experience to the extent of fifteen years, the marks added to his credit would be ten. However, if no experience is prescribed, then the marks added to the original tally of the applicants would be exactly as the number of years put in by them.
24. These Transferred/Original Applications shall be disposed of in the manner fully indicated above, but in view of the peculiar facts and circumstances of the case, costs of the litigation are made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/