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17. The prescribed qualification and experience for the post of professor as per AICTE circular dated 28-2-89 is Ph.D. with first class degree either at Bachelor or Master level in Engineering/Technology with 10 years experience, out of which 5 years as Assistant Professor. It is contended by Mr. Sen the learned Counsel appearing for the petitioners that the respondents 4 to 6 did not fulfil the minimum qualifications for the post of the Professor i.e. Ph.D. with first class either at Bachelor or Master Degree level. According to him, neither of the respondents 4 and 5 had Bachelor or Master Degree in First Class while respondent No. 6 did not possess Ph.D. Degree on the last date of the application for appointment to the post, on the date of interview and also on the date of selection. It is submitted that AICTE does not recognise the degree of M.E. by thesis and, therefore, respondents 4, 5 and 6 were not qualified to apply to the post of professor and as such their selection is invalid. It is submitted that AICTE is a constituted Body constituted under the All India Council for Technical Education Act, 1987 for proper planning and co-ordinated development of the technical education system throughout the country, the promotion of qualitative improvement of such education in relation to plan quantitative growth and the regulation of proper maintenance of norms and standards in the technical education system and the matters connected therewith. It is submitted that under section 10, Clause (I), it has power to lay down the norms and standars for courses, curricula, physical and instructional facilities, staff pattern, staff qualification, quality instructions, assessment and examination. Mr. Sen submitted that it is not disputed that for the post of professor, the AICTE prescribed the minimum qualification for a professor in Engineering to be Ph.D. with First Class Degree at Bachelor's or Master's level in appropriate branch of Engineering/ Technology. It is also not disputed that respondent No. 4 Dr. D.J. Tidke and respondent No. 5 Dr. J.P. Modak, is B.E. Second Class, M.E. by thesis with Ph.D. According to Mr. Sen, their degree for M.E. does not show that they got M.E. in First Class or Grade 'A' or highly commended, which they got in the year 1974 and 1973 respectively. It is submitted that respondents 1 and 3 have contended that M.E. by thesis always treated as First Class which is without any authority. Further, Nagpur University is silent in this respect.

Mr. Sen has drawn attention of this Court to the fact that on 26-4-89, respondents 4 and 5 had represented through their Association that minimum qualification prescribed for the professor be modified so as to include also M.E. by thesis by impliedly admitting that the M.E. by thesis is First Class. It is submitted that the claim of the respondents that M.E. research is always equivalent to First Class is without any basis and can not be accepted. Mr. Sen pointed out that Ordinance No. 93 framed by the Nagpur University in the year 1994, providing for degree of Master of Engineering (M.E. by Thesis). Clause 8(a) of the said Ordinance requires the examiner to give Grade 'A' or Grade 'B' or not highly commended to the candidates and the explanation equates Grade 'A' to First Class and Grade 'B' to Second Class. Clause (c) states that on receiving the report of the Academic Council, the Executive Council shall declare the candidate eligible for admission to the degree and cause his name to be published together with subject of Thesis alongwith the Grade. Therefore, all degree of M.E. by Thesis is not First Class as pleaded by the respondents. It is submitted that it is only respondent No. 5 Dr. Tidke claimed that the examiner has highly commended for his M.E. Degree (W.P. No. 1140/93) and the respondent VRCE supported the case of Dr. Tidke in their additional affidavit. Even then it is submitted that assuming that highly commended is equivalent to Grade 'A' which in turn equivalent to First Class, still the respondent No. 4 Dr. Tidke cannot be treated as First Class because amendment in 1994 of Ordinance No. 93 have no retrospective effect for the reason that after the said amendment, curricular has also undergone change; (i) there is now to be two written papers; (ii) examiners to give Grade on perusal of written, vivavoce test while earlier written test was not a must and (iii) Grade has to be mentioned in the degree awarded. Besides, (i) course work has written and practical tests; (ii) has different examiners for different subjects while the guide for research is normally chosen by the candidate or vice-versa; (iii) course work has syllabus and project/dissertation work and (iv) written test is more authentic and positive while oral test is highly subjective and prone to bias. Mr. Sen submitted that the degree of respondent No. 4 does not show that he got the degree of highly commended or Grade 'A' or First Class. Respondent No. 5 Dr. Modak does not claim that he was highly commended or given Grade "A" by the examiners for his M.E. Thesis degree. In order to substantiate his contention, Mr. Sen submitted that under Ordinance 21 of the Nagpur University in Clause (2) for the post of Lecturer, the minimum qualification is second Class Master Degree in the subject or Master Degree by research. This itself goes to show that earlier, Nagpur University was treating the Master Degree by research to be Second Class. Under these circumstances, it is submitted that respondents 4 and 5 do not possess the minimum qualification of First Class either at Bachelor or Master level in Engineering in the relevant subject. Mr. Sen submitted that the Supreme Court in M.C. Bindal v. R.C. Singh, have held that;

20. On behalf of respondents 4, 5, and 6, Shri Dharmadhikari the learned Counsel submitted that the first argument of the petitioners is that the qualification of M.E. by research is not equal to M.E. First Class. According to the learned Counsel for the respondents, Dr. Tidke and Dr. Modak hold the degree of M.E. by thesis. They have also acquired Ph.D. immediately thereafter. It is submitted that the respondent-VRCE accepts that the M.E. by research is equivalent to First Class and the certificate of M.E. by thesis of Dr. Tidke clearly shows that it is highly commended and, therefore, in accordance with the Ordinance No. 93, M.E. by thesis obtained by Dr. Tidke is equivalent to First Class. It is submitted that the contention of the petitioners that the amendment in the Ordinance is not retrospective and, therefore, the respondents cannot be treated as equivalent to First Class is without any substance. According to Shri Dharmadhikar, the amendment is only clarificatory and the certificate of the respondent No. 4 clearly shows that it is highly commended which has not been disputed by the VRCE. It is, therefore, submitted that the replacement of Grades in Ordinance or mere change of it's name does not have effect of change of nature of qualifications. As regards respondent No. 6-Dr. Askhedkar, it is submitted that he had obtained Ph.D. on 7-11-90 prior to his appointment on 8-11-90 and, therefore, his selection cannot be held to be invalid merely on this count, as in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another v. M. Tripura Sundari Devi, . The Supreme Court took a view that the respondent having acquired requisite qualification, it will be unjust to deprive her of the post and directed the Authorities to regularise her appointment. It is further contended that grant of Ph.D. on 7-11-90 relates to the back date earlier to 11-6-90. It is not disputed that respondent No. 6 had submitted his thesis much prior to 6-11-90 i.e. the date on which respondent No. 6 submitted his thesis and it is a settled law that the declaration of result relates back to the date of examination and, therefore, it cannot be said that respondent No. 6 was not qualified on the date he applied for the said post and the date on which he was appointed. Mr. Dharmadhikari relied upon the case of Sukram Pal Singh Saharawat v. U.P. Secondary Education Services Commission, Alenganj and others, 1993 Lab.I.C. 555. Wherein the Allahabad High Court held that;

25. Dr. J.P. MODAK.

The case of Dr. J.P. Modak is identical to that of Dr. Tidke. Dr. Modak has been selected and appointed as Professor in Mechanical Engineering pursuant to the said Advertisement. Dr. Modak also possess degree in B.E. Mechanical in Second Class. He obtained M.E. by thesis in the year 1973 and Ph.D. of Nagpur University in the year 1979. There is one distinction in the case of Dr. Modak which invalidates his appointment i.e. Dr. Modak has not brought on record the report of the examiners certifying his work in M.E. thesis as highly commended. Therefore, we are left with no alternative but to hold that Dr. Modak does not possess minimum qualification prescribed for being appointed as Professor in Mechanical Engineering i.e. Ph.D. with First Class Degree either at Bachelor or Master level. In the absence of any material on record, it cannot be said that Dr. Modak has obtained his M.E. by thesis in First Division. We may also add that in case Dr. Modak's M.E. by thesis was 'highly commended', there was no reason that he would not have placed it before the Court to show that he was duly qualified for being considered to be appointed as Professor in Mechanical Engineering. Under these circumstances, it will have to be held that Dr. Modak was not qualified for being appointed as Professor in Mechanical Engineering.