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2008 DIGILAW 563 (GAU)

Bani Kanta Talukdar v. State of Assam

2008-08-04

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. The writ jurisdiction of this Court has been sought to be invoked for annulment of the Office Memorandum No. TEC. 110/98/334, dated 6.8.2007, issued by the Commissioner and Secretary, to the Government of Assam, Higher Education (Tech) Department, inter alia, modifying the academic qualification essential for induction in the post of Assistant Professor in the Assam Technical Education Service ('the Service'). Thereby, the petitioner, presently a lecturer in the Assam Engineering College, Jalukbari ('the College') Guwahati, has been rendered ineligible for promotion to the aforementioned post. 2. I have heard Mr. D.K. Sharma, Learned Counsel for the petitioner, Mr. M.R. Pathak, Learned Standing Counsel. Education Department, Assam and Mr. S. Dutta, Learned Counsel for the All India Council for Technical Education ('the Council'). Also heard Ms. A. Verma, learned Standing Counsel, Finance Department, Government of Assam. 3. The petitioner's pleaded case, in short, is that he is a Bachelor of Engineering (Electrical) from the Gauhati University with 1st Class (Hons.) and has also obtained Post Graduate-degree in Engineering from the University of Saskatchewan, Saskatoon, Canada with 82.2% marks. He claims to have to his credit several publications in the international journals as well as conferences, and is pursuing Ph.D in the Indian Institute of Technology (IIT) Kharagpur. He joined as lecturer in the Electrical Branch of the Jorhat Engineering College on 31.7.1989 and on being transferred to the College in the year 1997, he has been serving there in the said capacity since then. In course of his duties, he has also been taking up PG classes in the College, the same having been introduced in the year 2003. Though, he was, meanwhile, promoted as Assistant Teacher in the year 1985, he had to forgo the same for personal reasons. According to him, two vacancies in the post of Assistant Professor had occurred in the College for which a process to fill up the same was initiated on 12.7.207. As the exercise was nearing culmination and was at the stage of finalization, the impugned office memorandum was issued, whereby Ph.D was prescribed to be an essential qualification for being promoted to the post of Assistant Professor in technical institutions offering PG courses. As the exercise was nearing culmination and was at the stage of finalization, the impugned office memorandum was issued, whereby Ph.D was prescribed to be an essential qualification for being promoted to the post of Assistant Professor in technical institutions offering PG courses. Consequently, the earlier process was abandoned and a new pursuit was launched excluding the petitioner from consideration, as he lacked Ph.D. Espousing his cause along with those of other similarly placed, the Engineering College Teachers Association held a meeting with the Director of Technical Education, Assam, wherein, it was emphasized by the Association that the criteria of Ph.D as an essential condition of eligibility be relaxed for a period of 7 years. It was underlined that the aforementioned degree, though, may be introduced as a desirable qualification, the College being a degree level institution, Senior lecturers wanting in the above qualification ought not to be deprived of promotion to the post of Assistant Professor. As the appeal by the Association to the Commissioner and Secretary, Higher Education (Technical) Department forwarding the minutes of the above meeting, seeking redressal, did not evoke any response and instead the selection process as per the impugned office memorandum gained momentum, the petitioner turned to this Court for succour. 4. The respondent State, in its affidavit, while affirming that by the impugned office memorandum it has adopted the revised guidelines of All India Council for Technical Education (hereafter for short referred to as the 'AICTE/Council', has pleaded that in terms of the All India Council of Technical Education Act, 1987 ('the Act') it (Council) had been established to ensure proper planning and coordinated development of the Technical Education System throughout the country and amongst others to regulate and oversee the proper maintenance of norms and standards therefor. Clause 10(i) and 10(ii) of Chapter-III of the Act have been referred to underline the power of the council to lay down the norms and standards for courses, staff qualifications etc. and to conduct periodical evaluation of technical institutions on the basis of the guidelines, precepts and standards specified by it. 5. According to the State respondent, all technical institutions, in country, are obliged to maintain these criteria and standards as minimum norms to sustain their recognition under the Act. and to conduct periodical evaluation of technical institutions on the basis of the guidelines, precepts and standards specified by it. 5. According to the State respondent, all technical institutions, in country, are obliged to maintain these criteria and standards as minimum norms to sustain their recognition under the Act. It has maintained that the Assam Engineering College, Jalukbari, Guwahati and Jorhat Engineering College, Jorhat, the two engineering colleges of the State managed by the Government are recognized by the council and are, therefore, governed by its rules and regulations. The State respondent has clarified that it accepts, adopts and implements the norms as and when recommended and notified by the council from time to time for the continuation of the recognition of these two institutions. According to the answering respondent, appointments and promotions in the service are obligatorily governed by the norms and prescriptions stipulated by the council and in force at the relevant point of time. The State respondent has sought to assert that the norms and standards ordained by the council are compulsorily implementable, failing which the technical institutions in default would loose their recognition. An Office Memorandum No. TEC/73/2002/Pt-I/55, dated 19.5.2004 has been referred to whereby, the Government of Assam, had accepted the council's recommendation for maintenance of the standard in the Engineering Colleges of Assam, so far as recruitment/Promotion/Career advancement and pay scales are concerned. It has been sought to be contended that the impugned office memorandum in a way is an extension thereof. The answering respondent has maintained that absence of Post Graduate courses in any Engineering College or Technical Institution in the State or any post relating thereto, has no decisive bearing on the application or otherwise of the norms and enjoinments mandated by the council. It has been further asserted that the Government Assam, Education Department vide Notification No. B(2)H.760/92/231, dated 21.1.1994 had implemented the revised scale of pay for the Teachers of Engineering Colleges and Polytechnic Institutions in the State as recommended by the council with effect from 1.1.1986 on the condition that the recruitment at each level of the teaching staff, would be as per the procedure recommended by the council and the revision of pay, would be extended only after the teachers accept or opt in writing the AICTE Scheme. The notification also mentioned that the terms and conditions, as recommended by the council and accepted by the Government, would be applicable in the matter of revision of pay scales and the career advancement of the teachers. It was further clarified that all future appointments to the post of Lecturers, Senior Lecturers, Selection Grade Lecturers, Assistant Professors etc. would be made in accordance with the guidelines issued by the council and accepted by the government. 6. The answering respondent averred that the petitioner had, accordingly, opted for the AICTE in terms writing and since then has been in receipt of the revised scale of pay. The Finance Department of the State also vide its Notification No. FPC.40/81/Pt/28, dated 26.5.1995 approved the extension of the revised scale of pay to the Teachers of the Engineering Colleges and Polytechnic Institutions of the State as recommended by the council, stipulating that there would be no dilution or relaxation of the standards, qualifications and norms prescribed by it (Council) and accepted by the State Government. Subsequent thereto, the Government of Assam also adopted a policy decision accepting the schemes, norms and covenants specified by the University Grants Commission (for short as the 'Commission') and the AICTE and issued notification No. FPC. 16/99/11, dated 18.9.1999 in exercise of powers conferred by proviso to Article 309 of the Constitution of India, amongst others, extending the benefit of revised AICTE scale of pay to the teachers (Technical and Non-Technical) of Engineering Colleges and Polytechnics of the State with effect from 1.1.1996. 7. The State respondent has contended that the selection committee held its meeting on 8.8.2007 for filling up 3 promotional vacancies conforming to the council norms. It dismissed the claim of the petitioner as untenable, he being not possessed of the requisite qualifications as per the AICTE prescriptions. The petitioner's challenge to the office memorandum, has been repudiated as untenable construing it to be an endeavour to avoid AICTE norms while enjoying the revised scale of pay accorded by it. The answering respondent has maintained that the impugned office memorandum has been issued, having regard to the AICTE Notifications No. F.37-3/Legal/2004 dated 28.11.2005 and No. F.37-3/Legal/2006 dated 14.9.2006, predicating the revised norms of qualification and experience for various pots of the teaching faculty in the Technical Institutions as referred to therein. 8. The answering respondent has maintained that the impugned office memorandum has been issued, having regard to the AICTE Notifications No. F.37-3/Legal/2004 dated 28.11.2005 and No. F.37-3/Legal/2006 dated 14.9.2006, predicating the revised norms of qualification and experience for various pots of the teaching faculty in the Technical Institutions as referred to therein. 8. The council, in its counter, while generally reiterating the pleaded version of the State respondent vis-a-vis its role and power in effecting coordination and development of Technical Education System in the country, has insisted that being statutorily authorized, it has been prescribing amongst others, the norms of qualification and experience of the teaching staff of the Technical Institutions in addition to detailing standards, model curricula, structure of courses, etc. The council has emphasised that any institute imparting technical education has to be recognized by it and has to comply with its rules and regulations for its recognition. It has insisted that as a corollary, an incumbent of a post in a Technical Institute to avail the pay scale prescribed by the AICTE would have to be essentially draped with all the qualifications prescribed by it. The council has emphasized that, under the prevailing norms to be eligible for appointment/promotion as an Assistant Professor in a Technical Institution one must posses Ph.D degree in addition to the stipulated degrees at the Bachelors or the Masters level in the appropriate branch. 9. In its affidavit-in-reply, the petitioner, in substance, has reiterated his plea that in absence of the corresponding amendments in the Assam Technical Education Service Rules, 1981 (for short hereafter referred to as the 'Rules'), the AICTE guidelines as sought to be adopted vide the office memorandum No. TEC. 110/09/334, dated 6.8.2007, are inapplicable to the Technical Institutions of the State. In the above backdrop of the pleadings, Mr. Sharma, has assiduously' argued that in the teeth of the Rules prescribing amongst others, the conditions of eligibility for promotion to the post of Assistant Professor, the impugned office memorandum is non est in law and, therefore, is liable to be adjudged as such. There being no corresponding amendments in the Rules, which is statutory in nature, the office memorandum dated 6.8.2007, which is in the form of an administrative instruction, cannot be accorded the primacy, as sought for by the respondents, he urged. There being no corresponding amendments in the Rules, which is statutory in nature, the office memorandum dated 6.8.2007, which is in the form of an administrative instruction, cannot be accorded the primacy, as sought for by the respondents, he urged. The Learned Counsel has further asserted that in any view of the matter, the impugned office memorandum cannot be given a retrospective effect and, therefore, the same is wholly inapplicable in the matter of the petitioner's promotion to the post of Assistant Professor against the vacancy, admittedly, existing before the issue thereof. Mr. Sharma, argued that as the petitioner, in terms of the prescriptions of the Rules, is eligible to be considered for promotion to the post of Assistant Professor, the invocation of the office memorandum dated 6.8.2007, is wholly uncalled for and the insistence on the part of the respondents to apply the same lacks bona fide. Without prejudice to the above, Mr. Sharma, has contended that the office memorandum vis-a-vis the post of Assistant Professor being meant only for direct recruitment, the non-consideration of the petitioner's case for promotion to that post on the basis thereof is, per se, arbitrary, unfair and unjust. As, admittedly, the College has not been declared to be a Post Graduate Institution with no post therefor, the insistence for Ph.D is obviously illogical and fanciful rendering the impugned action of the respondents unsustainable in law, he urged. He maintained that the imposition of the requirement of Ph.D degree for the post of Assistant Professor only in the technical institutions offering PG programme/research is discriminatory as well, as the same is suggestive of two varying sets of norms for promotion to the post and, therefore, is liable to be adjudged as such. Mr. Sharma to endorse his arguments placed reliance on the decisions of the Apex Court in Naseem Bano (Smt.) v. State of U.P. and Ors. 1993 Suppl. 4 SCC 46, O.P. Lather and Ors. v. Satish Kumar Kakkar and Ors. (2001) 3 SCC 110 . 10. Mr. Mr. Sharma to endorse his arguments placed reliance on the decisions of the Apex Court in Naseem Bano (Smt.) v. State of U.P. and Ors. 1993 Suppl. 4 SCC 46, O.P. Lather and Ors. v. Satish Kumar Kakkar and Ors. (2001) 3 SCC 110 . 10. Mr. Pathak, has argued that the State Government having adopted the norms and standards prescribed by the AICTE from, time to time to configure amongst others, the criteria of eligibility of the staff of the Technical Institutions of the State, their scale of pay in order to acquire and secure their recognition from the council and to maintain the same, those are indispensable in their applicability and, therefore, the impugned office memorandum is unassailable. It being permissible under the Rules to alter the qualifications mentioned therein, for various posts, the office memorandum dated 6.8.2007, having regard to the contents thereof, and the decision making authority is valid, he urged. The learned Standing Counsel, contended that the omission to amend the Rules in consonance with the prescriptions of the council on these issues from time to time, per se, would not render the impugned office memorandum impaired in law. The petitioner having subjected himself to the prevailing enjoinments of the council and enjoyed the revised pay scale accorded by it, he is estopped from questioning the validity of the office memorandum dated 6.8.2007, he argued. Mr. Pathak, dismissed the plea of completing the process of promotion on the basis of the Rules, contending that as the same was pending at the time of issuance of the impugned office memorandum, the revised stipulations are peremptorily invocable. He urged that absence of PG course in some of the technical institutions can by no means be a fetter to the enforceability of the impugned office memorandum and, therefore, the plea of arbitrariness and discrimination is misplaced. In support of his contentions, Mr. Pathak, referred to a host of notifications dated 27.7.1998, 9.10.1998, 14.1.1999, 28.11.2005, 14.9.2006 of the Government of India, Ministry of Human Resource Development (Department of Education) and 18.9.1999 of the Government of Assam, Finance (Pay Research Institute) Department. In support of his contentions, Mr. Pathak, referred to a host of notifications dated 27.7.1998, 9.10.1998, 14.1.1999, 28.11.2005, 14.9.2006 of the Government of India, Ministry of Human Resource Development (Department of Education) and 18.9.1999 of the Government of Assam, Finance (Pay Research Institute) Department. He, while apprising this Court that the State cabinet in its decision on 21.8.1999 had resolved to adopt the AICTE norms for the technical institutions of the State, has submitted on instructions that no promotion or appointment to the post of Assistant Professor in such institutions has been made since 2004. He also produced a copy of the Notification No. ATE. 158/2008/5, dated 21.7.2008 occasioning amendments to the Rules. The relevant official records were also placed to reinforce the above arguments. 11. Mr. Dutta, while referring to the various provisions of the Act, has argued that the notifications issued by the council thereunder carry a statutory edict and, are, therefore, binding. According to the Learned Counsel, the notification dated 9.10.1998, issued by the Government of India, Ministry of Human Resource Development (Department of Education) explicitly made the revision of pay scales subject to the implementation of the scheme appended thereto together within the terms and conditions stipulated by the council. Ph.D, having been prescribed to be a minimum eligibility criteria in the scheme for induction in the post of Assistant Professor, the petitioner's contention to the contrary is untenable, he urged. Mr. Dutta, with reference to the notification dated 14.9.2006 of the council contended that relaxation in the above degree though permissible for the graduate level institutions, it is imperative for those offering PG course and/or programmes. The Learned Counsel also relied on a communication being F. No. 1-65/CD/NEC/98-99, dated 15.3.2000 of the AICTE, addressed, amongst others to all State Governments and Union Territories conveying thereby its recommendations regarding revision of pay scales, service conditions of teachers etc. of the technical institutions. 12. The Learned Standing Counsel, Finance Department, while generally endorsing the arguments advanced on behalf of the other respondents, has produced the official record being File No. FPC. 16/99 to supplement the same. 13. The pleaded contentions and the arguments advanced have been cautiously attended to. As the debate veers around the Rules juxtaposed to the impugned office memorandum, apt it would be to initiate the adjudicative pursuit with the Rules. 16/99 to supplement the same. 13. The pleaded contentions and the arguments advanced have been cautiously attended to. As the debate veers around the Rules juxtaposed to the impugned office memorandum, apt it would be to initiate the adjudicative pursuit with the Rules. This had been framed by the Governor of Assam in exercise of his powers contained in the proviso to Article 309 of the Constitution of India for regulating the recruitment and conditions of service of persons appointed to Assam Technical Education Service. Rule 2(a), defines appointing authority to be the Governor of Assam. The posts of Assistant Processor and Lecturer of Engineering College are encadred in Class-I of the Service. The strength of the cadre on the date of the commencement of the Rules has been disclosed in Schedule I thereto. The post of Assistant Professor under the Rules is to be filled up by promotion as well as direct recruitment, the percentage ratio being 75:25. The qualifications and experience for such appointments/promotions, are as catalogued in Schedule II to the Rules. Rule 12 and 13 detail the procedure for promotion. The feeder post for promotion to the post of Assistant Professor in the Engineering College is the lecturer of such College, the criteria being merit. Rule 14 sets out a special procedure for promotion in the eventualities as referred to therein. The minimum qualification and experience for direct recruitment and promotion to the post of Assistant Professor as outlined in Schedule II to the Rules is as hereunder: (iv) Assistant Professor: First Class Master's Degree/Doctorate Degree in appropriate field with minimum of five years experience in teaching/research in Institution of University Standard level. Specialised knowledge in one or more specified field/subject with outstanding teaching/research experience and Doctorate Degree or published work of equal standard would be preferred. Significantly, the academic qualification so prescribed, is the same for direct recruitment as well as promotion to the post of Assistant Professor. 14. Rule 8 enjoins that the academic qualification of a candidate for direct recruitment would be, as prescribed by the Governor from time to time. A residuary power for altering and/or modifying the academic qualification of a candidate as contained in Schedule II has been bestowed thereby and an inbuilt authorization of the rule making Authority to prescribe the academic qualification of a candidate governed by the Rules, is thus decipherable. A residuary power for altering and/or modifying the academic qualification of a candidate as contained in Schedule II has been bestowed thereby and an inbuilt authorization of the rule making Authority to prescribe the academic qualification of a candidate governed by the Rules, is thus decipherable. Having regard to the identicalness in the prescribed qualification for direct recruitment and promotion vis-a-vis the post of Assistant Professor, it is axiomatic that any alteration or modification therein, would have a bearing on the eligibility of the candidates for both the streams. 15. The council was set up by the Government of India in the year 1945 as a National Expert Body to advise the central and State Government for ensuring coordinated development of technical education in accordance with the approved standards. Over the years, it came to be felt that the council ought to be vested with statutory powers to regulate and maintain standards of technical education in the country. The National Policy of Education, 1986 also endorsed the said view and consequentially the Act, was enacted with the avowed objective of establishing an All India council for Technical Education with a view to ensure proper planning and coordinated development of the technical education system through out the country, promote qualitative improvement of such education in relation to planned qualitative growth, regulate and maintain norms and standards in technical education system. The council is described under Section 3 of the Act to be a body corporate having perpetual succession and common seal to sue and be sued in its name. It is constituted of high level dignitaries of eminence and distinction in the field of technical education. Section 10 of the Act enumerates the functions of the council, which in its enterprise to ensure coordinated and integrated development of technical education and maintenance of standards thereof would, amongst others, lay down: (1) the norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations (2) set up a National Council of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it and to make recommendation to it or to the Commission or other bodies regarding recognition or de-recognition of the institution or the programme. The Council, therefore, is a body created by a statute to achieve myriad avowed purposes legislatively intended as above. The Council, therefore, is a body created by a statute to achieve myriad avowed purposes legislatively intended as above. It is in the discharge of its functions and duties under the Act, bound by such directions on the questions of policy as the Central Government may formulate in writing from time to time. A statutorily recognized dominion of the council in the matter of technical education in the country is, therefore, clearly demonstrable. There is no wrangle at the Bar that the-Technical Institutions of the State to offer valid degrees in various courses conducted by them, have to enjoy the recognition of the council and for that matter scrupulously conform the norms and standards prescribed by it and adopted by the Government. The State respondents, in the case in hand, have unequivocally pleaded in favour of compliance of the prescripts of the council from time to time to secure the recognition of the Technical Institutions of the State for obvious reasons. 16. Apropos the issue seeking resolution, the notifications dated 18.9.1999, 28.11.2005 and 14.9.2006 referred to in the impugned office memorandum are of determinative significance. The Government of India, Ministry of Human Resource Development (Department of Education), by its communication No. F.1.22/97-UI, dated 27.7.1998 decided to revise the pay scales of teachers in Universities and Colleges following the revision of pay scales of Central Government employees on the recommendation of the 5th Pay Commission. The same authority by its letter No. F.37-104/95-T.S.II dated 9.10.1998 conveyed to the Principal Secretary, AICTE its decision to revise the pay scales of teachers of centrally funded Degree Level Technical Educations subject to the various provisions of the Scheme enclosed to the said letter. Besides referring to the recommendations of the AICTE to the said effect, the council was required to notify the other terms and conditions of service of teachers in the line of the existing scheme(s) with the approval of the Government. In the annexure to the Appendix-B to the aforesaid letter, while dwelling on "career advancement", it was provided that for movement in the grade of Assistant Professor, the minimum eligibility criterion would be Ph.D and those without the said degree would go up to the level of Lecturer (Selection Grade). This Clause is an integral part of scheme of revision of pay scales recommended. This Clause is an integral part of scheme of revision of pay scales recommended. The technical institutions were required to make necessary changes in their Statutes, Memorandum of Association, Rules Scheme, Regulations, Bye-laws etc. to incorporate the provisions of the scheme. Thereby, the Central Government assured to provide financial assistance to the State Governments willing to adopt and implement the scheme of revision of pay scales subject to the terms and conditions mentioned therein. By its letter No. 37-104/98-TS.II dated 14.1.1999, the same authority clarified that the revised scales of pay would be effective from 1.1.1996. The other terms and conditions as stipulated in the letter dated 9.10.1998, were reiterated. In Appendix-E to this letter, the qualification prescribed for the post of Assistant Professor was Ph.D with 1st Class Degree at Bachelors or Masters level in the appropriate branch of Engineering/Technology This communication, therefore, insisted on the Doctorate decree as an essential condition of eligibility for the post of Assistant Professor, while approving the revised scales of pay with effect from 1.1.1996. 17. The council in response to the above, by its letter F. No. 1-65/CD/NEC/98-99, dated 15.3.2000, addressed to the Secretaries, Technical Education of all State Governments and Union Territories circulated its recommendations on the terms and conditions of service of the Teachers, Librarians and Physical Education Personnel of Degree Level Technical Institutions. Its notification embodying the same, inter alia, required under the caption "career advancement", the minimum eligibility criterion of Ph.D for the grade of Assistant Professor. This evidently, was in reiteration of the norm recommended by the central Government as one of the stipulations for entitlement of the revised pay scales approved. 18. In the meantime, as File No. FPC. 16/99 produced before this Court reveals the State Cabinet, Government Assam, in its meeting held on 21.8.1999 approved the Finance Department's proposal for implementation of the revised AICTE pay scales to the Teachers of the Engineering Colleges and Government Polytechnics with effect from 1.1.1996 subject to the covenants as referred to in the communication dated 27.7.1998 and 9.10.1998. Accordingly, the Finance (Pay Research Institute) Department, Government of Assam vide its notification No. FTC. Accordingly, the Finance (Pay Research Institute) Department, Government of Assam vide its notification No. FTC. 16/99/11 dated 18.9.1999 conveyed the decision of the Governor of the State in the exercise of powers conferred by the proviso to Article 309 of the Constitution of India to extend the benefit of revised AICTE/UGC pay scales to the Teachers (Technical and Non-Technical) of the Engineering Colleges of the State w.e.f. 1.1.1996. The existing pay scale of Assistant Professor (Tech)/Lecturer (Tech.) (Selection grade) of Rs. 3,700-5,700 was revised to Rs. 12,000-18,300. The notification in clear terms traced the decision to the letters dated 27.7.1998, 9.10.1998 and 14.1.1999 referred to hereinabove. The revision of pay scales was evidently subject to compliance of the conditions prescribed as the essential pre-requisite therefor. Admittedly, thereafter, the petitioner was accorded the benefit of revised pay scales subject to the norms bearing on the service conditions, which he accepted without any demur. 19. The AICTE by its notification No. F.37-3/Legal/2004, dated 28.11.2005 and F.37-3/Legal/2006 dated 14.9.2006, prescribed the following academic qualification and experience for the post of Assistant Professor: 28.11.2005 2. ASSISTANT PROFESSOR QUALIFICATION AND EXPERIENCE FOR CANDIDATES FROM TEACHING. Ph.D. degree with the first class degree at Bachelor’s or Master’s level in the appropriate branch of Engineering/Technology/Applied Biological Sciences with 2 years experience in Teaching/Industry/Research at the level of Lecturer or equivalent. OR First Class Degree at Master’s level in the appropriate branch of Engineering/ Technology/ Applied Biological Sciences with 5 years experience in teaching/ industry/ Research at the level of lecturer or equivalent. Such candidates will be required to obtain Ph.D. degree with a period of 7 years from the date of appointment as Assistant Professor. QUALIFICATION AND EXPERIENCE FOR CANDIDATES FROM INDUSTRY & PROFESSION Candidates form industry/Profession with First Class Bachelor’s degree in the appropriate branch of Engineering/Technology or First Class Master’s Degree in the appropriate branch of Engineering/Technology/Applied Biological Sciences. AND Professional work, which is significant and can be recognized as equivalent to Ph.D. degree and with 2 years experience would also be eligible. 14.9.2006 2. ASSISTANT PROFESSOR QUALIFICATION AND EXPERIENCE FOR CANDIDATES FROM TEACHING. Ph.D. degree with the first class degree at Bachelor’s or Master’s level in the appropriate branch of Engineering/Technology/Applied Biological Sciences with 2 years experience in Teaching/Industry/Research at the level fo Lecturer or equivalent. 14.9.2006 2. ASSISTANT PROFESSOR QUALIFICATION AND EXPERIENCE FOR CANDIDATES FROM TEACHING. Ph.D. degree with the first class degree at Bachelor’s or Master’s level in the appropriate branch of Engineering/Technology/Applied Biological Sciences with 2 years experience in Teaching/Industry/Research at the level fo Lecturer or equivalent. OR First Class Degree at Master’s level in the appropriate branch of Engineering/ Technology/ Applied Biological Sciences with 5 years experience in teaching/ industry/ Research at the level of lecturer or equivalent. Such candidates will be required to obtain Ph.D. degree within period of 7 years from the date of appointment as Assistant Professor. In the case of Universities/University departments and the institutions offering PG programmes/Research, Ph.D. is a must. For candidates from Industry, Professional experience in R and D and patents would be desirable requirement failing which the increments will be stopped until Ph.D. is earned. QUALIFICATION AND EXPERIENCE FOR CANDIDATES FROM INDUSTRY AND PROFESSION Candidates form Industry/Profession with First Class Bachelor’s degree in the appropriate branch of Engineering/Technology or First Class Master’s Degree in the appropriate branch of Engineering/Technology. AND Professional work, which is significant and can be recognized as equivalent to Ph.D. degree and with 2 years experience would also be eligible. The faculty norms, thus, laid down by the council for various posts including that of the Assistant Professor, were meant to be the minimum qualification and experience therefor, in the technical institutions. 20. A conjoint reading of the above two extracts would proclaim that the Doctorate degree was enjoined to be a peremptory criteria for the post of Assistant Professor in case of University/University Departments and institutions affording PG programme/research. It has been clarified on behalf of the council in course of the arguments that whereas essentiality of a Ph.D degree for the said post for the degree level institutions is conditional, the candidate concerned being required to obtain the same within a period of 7 years from the date of appointment thereto, it is inflexible if the institution concerned imparts PG courses. The impugned office memorandum on a bare reading, reveals that the same followed the acceptance of the norms, criteria and standards insisted upon by the Government of India and the AICTE from time to time, subject to which the State Government had decided to extend the benefit of revised pay scale to the teaching staff of the technical institutions as well as those referred to in the notifications dated 28.11.2005 and 14.9.2006 of the council. The office memorandum discloses the satisfaction of the Governor on the essentiality thereof for maintenance of standard of Engineering Colleges of the State for adopting councils prescriptions on academic qualifications and experience for the various posts enumerated therein. The faculty norms for the post of Assistant Professor as engrafted in the said office memorandum are identical to the one conveyed by the council's notification dated 14.9.2006, which again is a reiteration of the enjoinment carried in the Central Government letters dated 27.7.2008, 9.10.2008 and 14.1.1999. The Rules have since been amended as well with retrospective effect from 1.1.1996 incorporating, inter alia, the above condition of eligibility in Schedule II thereof. The Assam Technical Education Service (Amendment) Rules, 2008 to the above effect, has been notified in the issue dated 21.7.2008 of the Assam Gazette Extraordinary. 21. Noticeably, the author of the notification dated 18.9.1999 and the office memorandum dated 6.8.2007 is the Governor of the State, the decisions contained therein, having been taken in exercise of powers under the proviso to Article 309 of the Constitution of India. The petitioner in opting for the revised scale of pay, has accepted the attendant conditions subject to which the same had been extended. The benefit of revised scale has been rolled out following the cabinet-decision approving as well, the terms and conditions prescribed by the Government of India and the AICTE ingrained in the related scheme, inter alia, bearing on career advancement of the teaching staff to be benefited thereby. The power locatable in Rule 8 authorising the Governor of the State to prescribe the academic qualification from time to time for direct recruitment, is extendable to promotions as well, the conditions of eligibility listed in Schedule II being the same for the two modes of recruitment to the posts. The power locatable in Rule 8 authorising the Governor of the State to prescribe the academic qualification from time to time for direct recruitment, is extendable to promotions as well, the conditions of eligibility listed in Schedule II being the same for the two modes of recruitment to the posts. The framer of the Rules and the author of the office memorandum being the same, having regard to the inbuilt power and prerogative of the Governor of the State to prescribe the academic qualifications for the posts governed by the Rules from time to time, the plea against the validity of the office memorandum, in absence of amendment of the Rules, lacks in substance. True it is that eventual amendment of the Rules by integrating any decision of the Governor in this regard would be unavoidable, but to entertain a contention of the same to be a condition precedent for the validity of the office memorandum, would render the power of the said authority treasured in Rule 8, otiose. Mere delay in the amendment of the Rules to assimilate such a decision of the Governor would not, per se, render it invalid or non est in law. The eventuality might have been different, had the decision being of some other administrative authority. 22. The petitioner's version, if accepted, the process wherein his case was considered for promotion as Assistant Professor had commenced on 12.7.2007, but remained incomplete in view of the offending office memorandum. Admittedly, therefore, the exercise was terminated before taking it to its logical conclusion in face of the conditions of eligibility communicated by the said office memorandum. Promotion is indubitably a condition of service to which no incumbent has any claim as a matter of right. He is, however, entitled to be considered therefor. The ordainment of the Doctorate degree, as an imperative condition of eligibility for the post of Assistant Professor for PG courses, in the above factual backdrop, by no means be dubbed as illogical or irrational. It is obviously in furtherance of the wholesome objective of the Act for maintaining and elevating the level of excellence in technical education. Such a prescription, therefore, cannot be jettisoned to be antithetical to the objectives of the said legislation. It is obviously in furtherance of the wholesome objective of the Act for maintaining and elevating the level of excellence in technical education. Such a prescription, therefore, cannot be jettisoned to be antithetical to the objectives of the said legislation. To sustain the plea of the petitioner and apply the pre-revised norms for promotion to the post of Assistant Professor, would be to ignore the progression, of events over the years constituting the undeniable background of the revision of pay scale of the teaching staff of the Technical Institutions of the State of which he is a beneficiary. The petitioner has not and rightly so questioned the statutory empowerment of the AICTE and the obligation of the State Government to abide by its sanctions in pursuit of the laudable objectives of the Act. The decision to approve the revised pay scale as recommended by the Central Government and the AICTE subject to sanctions entrenched in the scheme relatable thereto was in conscious appreciation of the attendant facts and circumstances and the petitioner as well, having opted for the benefit offered, is bound thereby. 23. The decision of the Apex Court in Naseem Bano (Smt.) v. State of U.P. and Ors. (supra) has been pressed into service to underline the proposition that qualifications prescribed by a statutory Regulation cannot be displaced by an executive order. This decision is in the contextual facts of the present case, is of no avail to the petitioner as the office memorandum dated 6.8.2007 cannot be equated to be an administrative order simpliciter having regard to the scheme of the Rules and the empowerment of author thereof to alter the qualifications, already prescribed. 24. In O.P. Lather and Ors. v. Satish Kumar Kakkar and Ors. (supra), the challenge to an executive order illustrating that the diploma in Engineering awarded by the. State of Haryana Technical Education and approved by the AICTE would be construed as equivalent to diploma in Electrical Engineering from a recognized University as mentioned in Haryana Electrical Inspectorate (Group A) Service Rules, 1997, thereby effecting an amendment of the Rules was negated holding it to be only clarificatory in nature. The Apex Court, however, reiterated the view that though Rules defining qualifications and suitability for promotion can be changed retrospective, the benefits acquired under the existing Rules cannot be divested. The Apex Court, however, reiterated the view that though Rules defining qualifications and suitability for promotion can be changed retrospective, the benefits acquired under the existing Rules cannot be divested. The above judicial formulation, though, is unquestionable, the same, in the opinion of this Court does not advance the case of the petitioner in the present set of facts for reasons recorded hereinabove. No vested right of the petitioner has been extinguished, chances of promotion not being a condition of service. 25. The Apex Court in State of M.P. and Ors. v. Raghuveer Singh Yadav and Ors. (1994) 6 SCC 151 , while acknowledging the power of the State to prescribe qualifications for recruitment repudiated the challenge to an amendment to the Madhya Pradesh Standard of Weights and Measurement (Enforcement) Rules, 1989, altering the qualification for eligibility for the post of Inspectors thereunder, in course of the process initiated under the pre-amended Rules. Their lordships held that the State was entitled to withdraw the notification pertaining to the process and issue a fresh one on the basis of the amended Rules and that thereby no vested right of any candidate participating in the earlier process was denied. 26. The Apex Court in State of Punjab and Ors. v. Arun Kumar Aggarwal and Ors. 2007 (6) Scale 593, in a similar fact situation enunciated that though a vacancy occurring during the subsistence of a Rule, ought to be filled up in terms of the provisions thereof, in case there is a conscious decision of the Government or the concerned administration authority due to impending amendment thereof, not to conform to the unamended Rules, no vested right of any incumbent is adversely affected. In other words, if an administrative authority consciously decides to conduct a process for filling up any post by amending the Rules appertaining thereto, no insistence to fill up the same on the basis of the pre-amended Rules can be entertained only because the vacancies had occurred prior to the new Rules. The necessity of the amendments and the intention of the administrative authority have to be taken note of. 27. Applying the above yardstick, the petitioner's assertion in favour of the applicability of the unamended academic qualification for consideration of his case for promotion to the post of Assistant professor does not commend for acceptance. 28. The necessity of the amendments and the intention of the administrative authority have to be taken note of. 27. Applying the above yardstick, the petitioner's assertion in favour of the applicability of the unamended academic qualification for consideration of his case for promotion to the post of Assistant professor does not commend for acceptance. 28. A plain reading of the office memorandum dated 6.8.2007 belies the petitioner's contention that the same vis-a-vis the post of Assistant Professor is enforceable only for the purpose of direct recruitment. This is also untenable in view of the similitude in academic qualification and experience for both direct recruitment and promotion to the said post. That the petitioner presently is in service in a Technical Institution offering PG course is a matter of coincidence. The same ipso facto, cannot invalidate the prescription of Doctorate degree for the post of Assistant Professor for such institutions. The council, as noticed hereinabove, has consciously maintained a distinction qua the essentiality of the Doctorate degree between Graduate Level and Post Graduate Level Technical Institutions. While in the former a lecturer sans such a degree has to acquire it within a period of 7 years from his appointment as a Assistant Professor, a candidate for the said post in an institution offering PG programme or courses has to be essentially accoutered with that qualification to be eligible. The emphasis is not out of place and rather is wholly in alignment with the purpose the Act seeks to achieve. The plea of discrimination amongst candidates serving in the two types of institutions as above, cannot be upheld. 29. In view of the determination on the issues raised, the petition is adjudged to be lacking in substance and is thus dismissed. No costs. Petition dismissed.