Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 631 (GAU)

Ajay Bhusan Pal v. State of Assam

2008-08-27

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. The petitioner in essence, seeks a writ of mandamus to the State respondents for considering him for promotion to the post of Principal, Polytechnic in the Assam Technical Education Service ('Service'). 2. I have heard Mr. S. Shyam, learned Counsel for the petitioner, Mr. U.K. Goswami, learned Standing Counsel, Education Department and Mr. S. Dutta, learned Counsel for the Indian Council of Technical Education, New Delhi ('the Council'). 3. The petitioner's pleaded case in short is that, he was initially appointed as a Lecturer on 29.12.1982 under Regulation 3(f) of the Assam Public Service Commission (Limitations of Functions) Regulation, 1951 whereafter he joined the Assam Textile Institute, Guwahati on the next day. His service as a Lecturer was regularized thereafter and in the year 1996 he was promoted as a Senior Lecturer. He rose further in the ranks to be promoted as the Head of the Department in December, 1997 and during 25.1.1999 to 30.10.1.999, discharged the duties of Principal Incharge of the Residential Girls Polytechnic, Golaghat. He is presently posted as the Head of the Department of Assam Textile Institute at Guwahati. In addition to his academic qualification of Bachelor of Textile Technology, he has put in more than 21 years of teaching experience which includes 6 years as the Head of the Department. According to him, therefore, under the Assam Technical Education Service Rules, 1987 ('the Rules') which relate to the recruitment and conditions of service of persons appointed to the Service, he is eligible for being promoted to the post of Principal. 4. The Council through its letter No. F.6-6/89-T.5/TD.IV dated 20.9.1989 recommended the revision of pay scales of teachers of technical institutes (Polytechnics) laying down therein the qualification of the incumbents of various posts in such institutes. The essential academic qualification and experience for the post of Principal and Head of the Department. Polytechnic as enumerated therein were 1st Class Master's Degree in Engineering/Technology/Technical Education or Ph. D. Degree in appropriate branch for teaching posts in humanities and science together with 5 years experience in teaching, industry and research at the appropriate levels. 5. The essential academic qualification and experience for the post of Principal and Head of the Department. Polytechnic as enumerated therein were 1st Class Master's Degree in Engineering/Technology/Technical Education or Ph. D. Degree in appropriate branch for teaching posts in humanities and science together with 5 years experience in teaching, industry and research at the appropriate levels. 5. By a subsequent communication No. F.47-3/91-AICTE dated 10.9.1993 of the Council as well, which contained the guidelines for career advancement of Lecturers in Polytechnics, it was inter alia provided that all existing staff who were eligible for grant of revised scales/benefits of career advancement were exempted from the essentiality of the revised qualifications of the circular dated 20.9.1989 which were to be applicable to the new entrants recruited after that date. The Government of Assam by its Notification No. TEC.42/95/Pt/92-A dated 30.8.1997 extended the revised scales of pay recommended by the Council by its circular dated 20.9.1989 with effect from 1.1.1986 to all existing teaching staff. The exemption conveyed by the communication dated 10.9.1993 herein abovementioned was reiterated. 6. According to the petitioner, he being a recruitee of the year 1982, was thus exempted from the operation of the revised qualifications and experience of the aforesaid notification dated 20.9.1989. All promotions to various posts in the Polytechnics were thereafter made in accordance with the rules as well as guidelines of the council and he too in terms thereof was duly promoted to the post of Head of the Department in the month of December 1997. 7. Following the recommendations of the 5th Central Pay Commission, the Council in its circular No. F-No.l-65/CD/NEC/98-99 dated 30.12.1999 proposed revision of pay scales and the service conditions of teachers of Diploma Level Technical Institutions. While suggesting the date of effect for the revised pay scales, career advancement scheme and incentives by higher qualification to be 1.1.1996, it prescribed fresh qualifications and experience for the teaching post in the diploma level for the technical institutions. Master's Degree in appropriate branch of Engineering/Technology with 1st Class at Masters or Bachelor level or Ph.D. in appropriate branch of Engineering/Technology/Technical Education with teaching and administrative experience as mentioned therein were prescribed for the post of Principal. Clause 5 of the circular, according to the petitioner, exempted the existing incumbents from the rigour of the revised academic qualifications and experience for a period of 5 years from the date of issue thereof. Clause 5 of the circular, according to the petitioner, exempted the existing incumbents from the rigour of the revised academic qualifications and experience for a period of 5 years from the date of issue thereof. 8. The Government of Assam by Office Memorandum No. TEC.42/95/Pt/12 dated 20.5.2004 adopted the council's recommendations postulating that the relaxation contemplated in the circular dated 30.12.1999 would be available up to 31.12.2004. The benefit of revised pay scales to the teachers of the government polytechnics in the State was thereby accorded with effect from 1.1.1996. 9. The petitioner has maintained that in view of the relaxation in the council's recommendations as accepted by the Government of Assam, he was eligible and qualified for promotion to the next higher post of Principal, Polytechnic. Five vacancies in the afore mentioned rank having occurred at the relevant time, a Selection Beard was constituted to undertake the process which in fact was initiated in the month of April/May 2004. According to the petitioner, cases of ten eligible candidates including him were forwarded to the Selection Board for recommendation. However, his name was dropped in between along with two other officers from the zone of consideration on the plea of want of post graduate degree by them. On enquiry, the petitioner learnt that in terms of the council's latest recommendations a Bachelor Degree holder was not eligible for consideration for such promotion. The petitioner has insisted that in terms of the gradation list reflecting the cadre of the Heads of the Department of Polytechnics as on 1.6.2003 he is at S1. No. 4 in order of seniority and therefore, considering the number of vacancies he was well within the zone of consideration for promotion. He has cited instances of promotion of existing incumbents to the post of Principal in various Polytechnics and Diploma Institutes, the incumbents being Bachelor Degree holders like him. He has therefore pleaded unfair and arbitrary denial of his right to be considered for promotion to the post of Principal, Polytechnics. 10. This Court while issuing rule on 16.8.2004 by its order of the even date, had directed consideration of the petitioner's case also for the post of Principal, Polytechnics and to keep the decision in a sealed cover to abide by further orders. Appointment to the said post pursuant to the selection was also ordered to be subject to the out come of the writ petition. Appointment to the said post pursuant to the selection was also ordered to be subject to the out come of the writ petition. The petitioner by his additional affidavit, inter alia, has brought on record a notification dated 26.8.2004 whereby 5 Heads of Department (T)/Polytechnics had been promoted to officiate as Principal under Regulation 4(d) of the Assam Public Service Commission (Limitation of Function) Regulations, 1951 alleging that the incumbents at S1. Nos. 4 and 5 were ineligible in terms of the relevant guidelines/norms of the council 11. The State respondents through their affidavit affirmed by the Joint Secretary to the Government of Assam, Education (CTM), Department has in substance contended that as per the revised conditions of eligibility prescribed by the Council and accepted by the Education Department of the State by its Office Memorandum dated 20.5.2004, a Master's Degree in the appropriate branch of engineering/technology with 1st Class at the Master's or Bachelor level was indispensably essential and therefore as the petitioner is a Second Class Bachelor of Technology, he was not eligible to be considered for promotion to the post of Principal, Polytechnics. The State respondents, however admitted that the petitioner otherwise was within the zone of consideration, but was not recommended by the Selection Boards being deficient in the eligibility norms. 12. The Council in its affidavit while referring to its authority under the All India Technical Education Act, 1987 ('the Act') to lay down the norms and standards for courses, curricula, staff pattern, staff qualification, assessment and examination of staff pattern etc. asserted that any institution imparting technical education (Degree or Diploma) in India has to be recognized by it and has to comply with its Rules and Regulations for the continuance of its recognition. It, therefore, asserted that the Assam Textile Institute too was governed by its Rules and Regulations. It reiterated the qualifications and experience as communicated by its circular dated 30.12.1999 to be essential to hold the posts mentioned therein and to avail the revised pay scales recommended by it. The relaxation referred to in its notification dated 10.9.1993 according to it was limited to the aspect of entitlement of an existing teacher in any post to the revised scale of pay then suggested and did not signify exemption from the prescribed essential qualification for the post. The relaxation referred to in its notification dated 10.9.1993 according to it was limited to the aspect of entitlement of an existing teacher in any post to the revised scale of pay then suggested and did not signify exemption from the prescribed essential qualification for the post. In terms of Clause 5 of the notification dated 30.12.1999 as well, according to it, an existing teacher in any post was required to possess the qualifications and experience stipulated before the issue thereof. The Council stressed upon the fact that the relaxation clause in the notification dated 30.12.1999 notwithstanding, the petitioner ought to possess the qualification prescribed by the notification dated 20.9.1989 being construable a new entrant qua, the post of Principal. It reiterated that the relaxation was not to denote dilution of the essential conditions of eligibility prescribed for the post of Principal. As the petitioner was a graduate and was not possessed of the Master's Degree, he was not qualified to hold the post of Principal. 13. In his affidavit in reply, the petitioner has sought to contend that Sri H.K. Bhattacharya and Smt. Paramita Kakati (promotee Nos. 4 and 5 in the notification dated. 20.6.2004) promoted to officiate as Principal in Polytechnics did not have the prescribed period of experience as the Head of the Department. Thereby the petitioner has endeavoured to insist that the conditions of eligibility ordained by the Council are not inflexible and had already been departed therefrom. He has also brought on record a corrigendum No. TEC.42/95/pt/15 dated 20.5.2004 occasioning some corrections in the length of experience. 14. Mr. Shyam has urged that as the petitioner is qualified under the rules as well as the recommendations/guidelines of the council, non-consideration of his case for promotion to the post of Principal is ex facie illegal, arbitrary and discriminatory. Referring to the relaxation contained in the circulars of the council dated 10.9.1993 and 30.12.1999 as adopted by the State government on 30.8.1997 and 20.5.2004 respectively, the learned Counsel has urged that the impugned action of disqualifying him for not possessing the Master's degree is per se unfair, unreasonable and unjust. Referring to the relaxation contained in the circulars of the council dated 10.9.1993 and 30.12.1999 as adopted by the State government on 30.8.1997 and 20.5.2004 respectively, the learned Counsel has urged that the impugned action of disqualifying him for not possessing the Master's degree is per se unfair, unreasonable and unjust. It being apparent on the face of the records that the Council's norms are being deviated from to accommodate the persons of choice, insistence therefore vis a vis the petitioner, has rendered the impugned action arbitrary, discriminatory and nontransparent and is thus liable to be adjudged unconstitutional, null and void. 15. The learned Standing Counsel, Education Department in reply, has argued that the petitioner being ineligible in terms of the stipulations of eligibility prescribed by the council for the post of Principal, Polytechnics, his grievance is misconceived and he is thus not entitled to the relief prayed for. 16. Mr. Dutta while confirming the above has contended that as the petitioner in any view of the matter is required to possess the Master's Degree in Engineering/Technology/Technical Education as prescribed by circular dated 20.9.1989, relaxation by the subsequent notification notwithstanding, he is not qualified for the post of Principal and, therefore, all assertions to the contrary are unsustainable in law. The learned Counsel reiterated that the exemption in the notifications dated 10.9.1993 and 13.12.1999 do not connote relaxation of the essential norms of eligibility for the post mentioned therein and the petitioner has totally misconstrued the same. 17. The rival pleadings and the documents advanced have received the due consideration of this Court. Significantly, the applicability of the circulars/notifications of the council and those of the government of Assam adopting the same is not in dispute. On the other hand, the controversy raised permits its resolution on an interpretation of the said documents. 18. The petitioner's service conditions are governed by the rules framed by the Government of Assam in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Thereunder, the post of Principal, Polytechnic is to be filled up by promotion in accordance with Rules 12 and 13, the feeder post being the Head of the Department of the concerned institute. The qualifications and experience are as set forth in Schedule II. Thereunder, the post of Principal, Polytechnic is to be filled up by promotion in accordance with Rules 12 and 13, the feeder post being the Head of the Department of the concerned institute. The qualifications and experience are as set forth in Schedule II. The academic qualification prescribed in the schedule for the post of Principal, Polytechnic is Bachelor of Degree in Engineering or Technology or the other alternative as mentioned therein. Master's Degree is not prescribed as an academic qualification under the Rules. The Rules, however, have since been amended by the Assam Technical Service (Amendment) Rules, 2008 by notification No. ETE. 158/2008/5 dated 21.7.2008 published in the Assam Gazette, Extra Ordinary, whereby amongst others. Schedule II stands modified in terms of the notification No. ETE.42/95/Pt/15 dated 20.5.2004. In effect thereby the criteria, norms and standards prescribed by the council in its notification dated 30.12.1999 stands incorporated in the said schedule. 19. A plain reading of the circular dated 20.9.1989 or the council demonstrates that the same dealt with the issue of revision of pay scales of teachers of Technical Institutes (Polytechnics) and the qualification mentioned therein required to be possessed by the incumbent to be eligible to avail the said pay scales. The root of the dissension being lodged in the said circular, it would be appropriate to extract the conditions of eligibility prescribed thereby for the post of Principal of Polytechnics. Principal Essential Principal 1st Class Master’s Degree In engineering/technology/technical education. Or Ph.D. Degree in appropriate Branch for teaching posts. In humanities and sciences. Note : Candidates from Industry/profession with Recognized professional Work equivalent to Master’s Degree or Ph.D. Degree as the case May be, will also be Eligible. Desirable Administrative experience In a responsible position. This circular does not admit of any relaxation. 20. Clause 2 of the notification dated 10.9.1993 of the Council has a note appended to it. Sub-clause (v) thereof reads as hereunder: The revised scales of pay circulated by the AICTE vide circular dated 20.9.1989 are applicable with effect from 1.1.1986 to all the existing teaching staff such as Principal, Heads of Department, Senior Lecturers and Lecturers who were appointed by the Competent authority. Sub-clause (v) thereof reads as hereunder: The revised scales of pay circulated by the AICTE vide circular dated 20.9.1989 are applicable with effect from 1.1.1986 to all the existing teaching staff such as Principal, Heads of Department, Senior Lecturers and Lecturers who were appointed by the Competent authority. All the existing staff who are eligible for grant of revised scales/benefits or Career Advancement, are exempted from the application of revised qualifications of AICTE's circular dated 20.9.1989 and such qualifications shall be applicable to new entrants recruited after 20.9.1989. It is obvious from the quoted excerption that the existing staff who are otherwise eligible for grant of revised scale/benefit of career advancement are exempted from the rigidity of the norms of eligibility prescribed by circular dated 20.9.1989 intended to be applied to the entrants to be recruited after that date. Noticeably, the exemption does not indicate any time limit therefor. A reading of this notification does not proclaim that the exemption comprehends only the aspect of revision of pay scale and excludes from its purview the career advancement of the members of the service. To the contrary, the tone and tenor of the said notification suggest that the guidelines contained therein are dominantly addressed to the aspect of career advancement in Polytechnics. The State notification dated 30.8.1997 adopting guidelines of the council as contained in the circular dated 10.9.1993 also reiterates the exemption of the existing staff of Polytechnics otherwise eligible for grant of revised pay scales or benefits of career advancement from the application of revised qualification. On a conjoint reading of the notifications dated 20.9.1989, 10.9.1993 and 30.8.1997, the plea that the relaxation only relates to the issue of revision of pay scales does not commend for acceptance. 21. The notifications dated 10.9.1993 and 30.8.1997 therefore exempted the existing staff of the Polytechnics from the enjoinment of the revised qualifications and experience mentioned in the circular dated 20.9.1989 both for the purpose of revised pay scales and career advancement in service. 22. The notification dated 30.12.1999 introducing the revised scales of pay following the 5th Central Pay Commission's recommendations communicating thereby the qualification and experience for the teaching posts in Technical Institutes mandated the following conditions of eligibility for the post of Principal. 22. The notification dated 30.12.1999 introducing the revised scales of pay following the 5th Central Pay Commission's recommendations communicating thereby the qualification and experience for the teaching posts in Technical Institutes mandated the following conditions of eligibility for the post of Principal. Principal – Qualification & Experience Master’s degree in appropriate branch of Engineering/Technology with First Class at Master’s or Bachelor’s level Ph.D. in appropriate branch of Engineering/Technology Technician Education. 15 years experience in teaching out of which at the level of Head of Department or equivalent. 10 years experience in teaching out of which atleast 3 years shall be at the level of head of” Department or Equivalent Note : Candidates from Industry with First Class Bachelor's degree in Appropriate branch of Engineering/Technology and with industrial Experience which is equivalent to Master's degree, with total 15 years of experience of which at least 5 years would be at a level comparable with Head of Department will also be eligible. 23. Master's Degree in the appropriate branch of Engineering/Technology with First class at Master's or Bachelor's level or Ph.D. Degree in the appropriate branch of Engineering/Technology, etc. was thus insisted upon as an imperative academic qualification. Clause 5 of this notification having a determinative bearing on the course of the adjudication deserves extraction as well: 5. QUALIFICATIONS 1. The prescribed minimum qualifications and experience requirements for teaching posts in diploma level technical institutions are given in (Appendix-B). 2. Where qualifications and experience prescribed for a post in this pay revision are higher than the qualifications and experience prescribed by AICTE for that post prior to this revision. (i) the revised qualifications and experience will be required only for fresh appointee to that post and will not be insisted on for existing incumbents working on these positions. (ii) for open selection to a higher cadre position through advertisement internal candidates presently working in a lower position will be exempted from the prescribed higher qualifications and experience to the extent that they will be required to possess only the qualifications and experience prescribed by AICTE prior to this pay revision. This relaxation will be available only for a period of 5 years from the date of issue of this notification. Thereafter internal candidates must also possess the qualifications and experience prescribed in this notification. This relaxation will be available only for a period of 5 years from the date of issue of this notification. Thereafter internal candidates must also possess the qualifications and experience prescribed in this notification. Whereas, paragraph 2(i) of the above excerpt makes it explicit that the revised qualifications and experience would be required only for fresh appointees to that post and would not be insisted upon for the existing incumbents, (ii) thereof, posits that for open selection to higher grade position through advertisement, the internal candidates working in a lower position would be exempted from the prescribed higher qualification and experience to the extent that they would be required to possess only the qualifications and experience prescribed by the council prior to pay revision effected by that notification. The period of relaxation is limited to 5 years from the date of issue thereof, whereafter the internal candidates should also possess the qualifications and experience prescribed thereunder. Thereby two categories of existing incumbents have been contemplated. Firstly, those who await their progression to the higher post by availing the normal avenue(s) of promotion prescribed by the rules and secondly, who intend to participate in a joint selection for higher post in a public process to be initiated by an advertisement. The existing incumbents of the first category are exempted from the rigour of the revised qualifications and experience and would have to be considered for promotion to the higher post as per the procedure prescribed by the rules. Exemption from the new qualifications and experience prescribed to the existing incumbents competing for higher post in a joint selection is limited for a period of 5 years from the date of issue of the notification, i.e., 30.12.1999 on the expiry whereof, they would also be required to acquire the same. 24. The government of Assam by the Office Memorandum dated 20.5.2004 vis-a-vis the recruitment/promotion/confirmation of the incumbents in service reiterated the clauses of exemption/relaxation designed by the council. It however, clarified that such relaxation/exemption would be available up to 31.12.2004. The existing incumbents not intending to participate in any open selection for appointment to a higher post were exempted from the requirement of the revised qualifications up to 31.12.2004. It however, clarified that such relaxation/exemption would be available up to 31.12.2004. The existing incumbents not intending to participate in any open selection for appointment to a higher post were exempted from the requirement of the revised qualifications up to 31.12.2004. As a matter of fact, the restriction on the period of exemption for the existing incumbents not participating in any open selection for higher grade post was not intended by the council and is an appendage imposed by the notification dated 20.5.2004. Be that as it may, an existing incumbent willing to avail the normal channel of promotion to the higher post as contemplated by the rules would stand relieved of the indispensability of the revised qualifications and experience prescribed by the council's notification dated 30.12.1999 till 31.12.2004. 25. On the above touchtone, in the opinion of this Court, the petitioner could not have been rendered ineligible for not possessing the Master's Degree in Engineering/Technology at the selection admittedly conducted before 31.12.2004 for promotion to the post of Principal, Polytechnics. As he was an existing incumbent, possessed of the essential conditions of eligibility prescribed by the rules and exempted from the exigency of the revised qualifications and experience prescribed by the Council at that point of time he could not have been excluded from the process of consideration for such promotion. 26. In view of the above determination, I am of the unhesitant opining that the action of the state respondents in not considering the petitioner for promotion to the post of Principal, Polytechnics in the selection held before 31.12.2004 is patently untenable in law and is adjudged as such. In absence of any conceivable justification in support of the arbitrary exclusion of the petitioner in the matter of his consideration for promotion as above, a writ of mandamus is warranted to redress his grievance. 27. The petition is thus allowed with a direction to the State respondents to attend to the case of the petitioner for promotion to the post of Principal, Polytechnics as on the date on which he ought to have been considered along with other similarly placed in accordance with the rules, if necessary by conducting a review selection process. 27. The petition is thus allowed with a direction to the State respondents to attend to the case of the petitioner for promotion to the post of Principal, Polytechnics as on the date on which he ought to have been considered along with other similarly placed in accordance with the rules, if necessary by conducting a review selection process. Needless to say that the exercise would be administered in terms of the rules and the aforementioned notifications and depending on the outcome thereof, if the petitioner is found suitable for promotion, he would be favoured therewith. While passing this order, this Court is conscious of the fact that in the meantime regular promotions to the posts involved might have been made. However, as by order dated 16.8.2004 passed by this Court the appointment/promotion to the post of Principal of the Polytechnics of the State pursuant to the impugned selection had been made subject to the final adjudication in the instant proceeding, the course adopted is permissible and called for. No costs. Petition allowed.