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2014 DIGILAW 605 (GAU)

Binoy Ch. Sarma v. State of Assam

2014-06-06

TINLIANTHANG VAIPHEI

body2014
JUDGMENT Tinlianthang Vaiphei, J. 1. Being denied of promotion to the post of Workshop Superintendent in Engineering College on the ground that he does not possess the requisite qualification of M.Tech. with Ph.D., the petitioner is filing this writ petition for appropriate relief. The essential facts are not in dispute. The petitioner passed B.E. (Honours) examination in First Class, and joined the post of Workshop Superintendent at Bonggaigaon Polytechnic in the year 1995, and his service was subsequently regularised in the year 2004. He has also passed M. Tech examination with First Class. In the year 2004, he applied for promotion to the post of Workshop Superintendent in Engineering College in accordance with the extant rules, namely, Assam Technical Education Service Rules, 1981 ("the Rules", for short). The Director of Technical Education, Assam recommended his case for the promotion with detailed resume indicating therein that two posts of Workshop Superintendent in Engineering College were lying vacant ever since 2004. When no DPC meeting was held for a fairly long spell of time, the petitioner filed W.P.(C) No. 3083 of 2009 before this Court, which by the order dated 7.12.2011 had directed the respondent authorities to hold a meeting of DPC for considering his case together with other eligible candidates for the promotion. After some delay, the DPC meeting was convened on 30.11.2012 in the Office of the respondent No. 1, but he could not be considered for the promotion since he did not possess the qualifications of M. Tech with Ph.D. degree as required by the All India Council for Technical Education (AICTE) notification dated 22.1.2010. It is contended by the petitioner that the eligibility for the post of Workshop Superintendent in Engineering College under the unamended Rules of 1981 is only M.Tech, which he acquired in 2008 and Ph.D. is not necessary. 2. The writ petition is resisted by the State respondents through the Director of Technical Education, Assam (respondent No. 2) by filing their affidavit-in-opposition. It is pointed out by the answering respondent that in compliance with the order dated 7.12.2012 passed by this Court, a DPC meeting was held on 30.11.2012 in the chamber of the respondent No. 1 regarding the promotion of the petitioner from the post of Workshop Superintendent, Polytechnic to the post of Workshop Superintendent, Engineering College. It is pointed out by the answering respondent that in compliance with the order dated 7.12.2012 passed by this Court, a DPC meeting was held on 30.11.2012 in the chamber of the respondent No. 1 regarding the promotion of the petitioner from the post of Workshop Superintendent, Polytechnic to the post of Workshop Superintendent, Engineering College. The meeting resolved that the post of Workshop Superintendent, Engineering College belonged to the cadre of Assistant Professor which is now re-designated as Associate Professor of Engineering College for which the minimum qualification prescribed by the Notification dated 22.1.2010 issued by the AICTE is BE/B.Tech and M.E./M.Tech and Ph.D. degree or its equivalent in the appropriate discipline; the petitioner does not possess Ph.D. degree and could not be considered for the post of Workshop Superintendent of Engineering College in the DPC meeting. The DPC, therefore, declined to recommend the promotion of the petitioner to the said post. 3. It is also the case of the answering respondent that in terms of the Government notification dated 15.3.1985, the post of Workshop Superintendent in Engineering College would be in the grade of Assistant Professor, which, as per the notification dated 22.1.2010 of the AICTE has been redesignated as Associate Professor [Pay band of Rs. 37,900-67,000 with AGP of Rs. 9,000/-]. Thus, the qualification for Workshop Superintendent in Engineering College is now on par with the qualification for Associate Professor, for which Ph.D. degree is essential. The petitioner has no Ph.D. degree and is, therefore, not qualified for the post of Workshop Superintendent in Engineering College. It is also pointed out by the answering respondent that clause 5(3) of the AICTE notification dated 30.12.1999 and the subsequent Government notification dated 20.5.2004, it is provided that teachers already in service prior to 1st January, 1996 and who at the time of recruitment possessed only a second class degree at Bachelor's or Master's level (but met all the qualification requirements prescribed by AICTE at the time of their recruitment) are exempted from the requirement of First Class for the Degree they had at the time of their recruitment. However, there is no exemption in respect of the minimum requirement of qualification/degree for promotion/recruitment as in the case of the petitioner. There is no question of the respondent No. 2 attempting to push back the process of selection through DPC. However, there is no exemption in respect of the minimum requirement of qualification/degree for promotion/recruitment as in the case of the petitioner. There is no question of the respondent No. 2 attempting to push back the process of selection through DPC. The answering respondent does admit that there are some Associate Professor in Assam Engineering College without Ph.D. Degree because they had received Selection Grade Lecturer pay scale of Rs. 12,000-18,300/- and had completed 3 years as on 1.1.2003 (the date of Revision of Pay) and redesignated as Associate Professor as per AITCE norms for which Ph.D. degree was not mandatory. After implementation of the pay scale to the gazetted staff of the Engineering Colleges and Polytechnics of Assam, the State Government follows the norms and procedure laid down by the AICTE for appointment and promotion in such colleges and polytechnics under the Government of Assam. 4. An additional affidavit was subsequently filed by the respondent No. 2 wherein he points out that the post of Workshop Superintendent in Engineering College under Rule 3 of the Rules is a Class-I cadre post, whereas the post of Workshop Superintendent belongs to Class-II cadre. Rule 14(2) after its amendment in 2008 provides that subject to suitability, an officer shall be eligible for promotion if he possesses the qualification and experience as prescribed by AICTE from time to time as adopted by the Government of Assam. In terms of the notification dated 22.1.2010 issued by the Government of Assam, the post of Assistant Professor has been re-designated as Associate Professor with the revised scale of pay as prescribed by the AICTE norms. As per the AICTE norms, the requisite qualification for the post of Associate Professor is, among others, Ph.D. or its equivalent in the appropriate discipline, post-Ph.D. publications and guiding Ph.D. students is highly desirable. A minimum of 5 years experience in teaching/research/industry of which 2 years post Ph.D. is desirable. The post of Workshop Superintendent in Engineering College which was earlier equivalent to the post of Assistant Professor is now re-designated as Associate Professor, and the petitioner must fulfill such qualifications and experience for promotion to the post of Workshop Superintendent in Engineering College. As he does have, his claim has been rejected by the DPC. 5. The post of Workshop Superintendent in Engineering College which was earlier equivalent to the post of Assistant Professor is now re-designated as Associate Professor, and the petitioner must fulfill such qualifications and experience for promotion to the post of Workshop Superintendent in Engineering College. As he does have, his claim has been rejected by the DPC. 5. After going through the pleadings of the parties, I am of the opinion that the first point for consideration in this writ petition is whether the post of Workshop Superintendent, Engineering College is equivalent to the post of Assistant Professor now re-designated as Associate Professor? It is contended by Mr. B. Sarma, the learned counsel for the petitioner, that the stance taken by the respondents that the post of Assistant Professor/Associate Professor and the post of Workshop Superintendent in Engineering College is, to say the least, perverse and is contrary to the provision of the Rules and cannot be sustained in law. He further submits that there is no amendment of the extant Rules incorporating Ph.D. degree as the essential qualification for the post of Workshop Superintendent in Engineering College. In any case, submits the learned counsel, any post which has fallen vacant prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. In the instant case, as the post in question had already fallen vacant as early as 2004 when the original Rules was applicable, the petitioner is eligible for the promotion as per the old rules. On the other hand, Mr. U.K. Goswamy, the learned Standing Counsel for the Education Department, defends the impugned decisions of the respondents and submits that the petitioner is not eligible for the post of Workshop Superintendent of Engineering College inasmuch as he does possess Ph.D. degree, which is a mandatory qualification. He further contends that the respondents are bound by the norms prescribed by the AICTE, which have been adopted by the Government of Assam. Contending that the writ petition is bereft of merit, he, therefore, strenuously urges this Court to dismiss the writ petition with costs. 6. I have given my thoughtful consideration to the submissions advanced by the learned counsel appearing for the rival parties. Contending that the writ petition is bereft of merit, he, therefore, strenuously urges this Court to dismiss the writ petition with costs. 6. I have given my thoughtful consideration to the submissions advanced by the learned counsel appearing for the rival parties. It may be noted that Item No. 8 of Schedule-1 to the Rules clubs together the posts of Deputy Controller of Examination and Workshop Superintendent in Engineering College in the pay scale of Rs. 8750-13,825/-. Incidentally, it may also be noticed that item No. 10 groups together the posts of Assistant Controller of Examination, Research Officer, Administrative Officer, Programme-cum-System Analyst, Workshop Superintendent, Polytechnic, Superintendent, Junior Technical School and Assistant Project Engineer in the pay scale of Rs. 5,725-11,825. Then, item No. 5 clubs together the posts of Assistant Professor (Technical), Civil Engineering, Mechanical Engineering, Chemical Engineering, Head of Department, Polytechnic in one category. Between the post of Assistant Professor and Workshop Superintendent, Engineering College, there are two groups of posts, namely, Controller of Examination, Training-cum-Placement Officer, Project Engineer, Polytechnic carrying the pay scale of Rs. 9725-15100 and the post of Joint Director carrying the pay scale of Rs. 9075-14,225/-. Thus, the post of Workshop superintendent, Engineering College is obviously lower in grade than the post of Assistant Professor. Moreover, Rule 12(3)(iii) clearly indicates that the next promotional post of Workshop Superintendent, Engineering College is the post of Assistant Professor. In view of this, the post of Workshop Superintendent, Engineering College is evidently the feeder post for promotion to the post of Assistant Professor. 7. Furthermore, in his letter dated 22.4.2004 of the respondent No. 2 addressed to the respondent No. 1, the former had categorically stated that the petitioner had been working as Workshop Superintendent since 1995 and was eligible for promotion to the post of Workshop Superintendent in Assam Engineering Institute and recommended his case. Under the circumstance, I have no hesitation to hold that the post of Workshop Superintendent, Engineering College is not and cannot be treated to be equivalent to the post of Assistant Professor or the post of Associate Professor as claimed by the respondent No. 2 subsequently. What changes his mind now? Has he any material to substantiate his claim? No evidence is, however, produced by the respondents to show that the post of Workshop Superintendent, Engineering College is equivalent to the post of Assistant Professor (now redesignated as Associate Professor). What changes his mind now? Has he any material to substantiate his claim? No evidence is, however, produced by the respondents to show that the post of Workshop Superintendent, Engineering College is equivalent to the post of Assistant Professor (now redesignated as Associate Professor). The AICTE Notification on Revised Pay Scales and Service Conditions annexed to the affidavit-in-opposition as well as Office Memorandum dated 6.7.2007 or the AICTE notification dated 22.1.2010 do not say anything about treating the post of Workshop Superintendent, Engineering College as equivalent to the post of Assistant Professor/Associate Professor. True, Rule 12(4) as amended on 21.7.2008 provides that subject to suitability, an officer shall be eligible for promotion if he possesses the qualifications and experience as prescribed by the AICTE from time to time as adopted by the Government of Assam. But then, no new qualification i.e. Ph.D. degree is expressly, or by necessary implication, prescribed by the AICTE for the post of Workshop Superintendent, Engineering College. 8. At this stage, it may also be noticed that the existing rule, namely, Item No. 9 of Schedule-II to the Rules prescribes the eligibility for the post of Workshop Superintendent, Engineering College as (i) Degree in Mechanical Engineering or equivalent; (ii) at least 6 years experience in Machine Shop in a responsible capacity covering production, planning, estimating, production, control of labour, teaching experience are desirable. There is thus no requirement to have Ph.D. degree for promotion to the post of Workshop Superintendent, Engineering College. In any case, until and unless the extant Rules framed under Article 309 of the Constitution of India is suitably amended to incorporate the new eligibility criteria prescribed by AICTE, if there is any, the instructions or regulations made by the AICTE cannot be enforced; the law is now well-settled that where there is a conflict between rules framed under Article 309 of the Construction and an executive instruction, the former will prevail. Facing shortage of ammunitions to deny promotion to the petitioner, a desperate and a last-ditch attempt is now being made by the respondent authorities to justify their stance by claiming in their review DPC held on 24.5.2013 that there is no provision of transfer from Polytechnic to Engineering College in the cadre of Workshop Superintendent in the existing rule and that there is no precedent as regards transfer of technical post from Polytechnic to Engineering College! What has deliberately been overlooked is that this case is not about transfer but a case of promotion from Workshop Superintendent, Polytechnic to the post of Workshop Superintendent, Engineering College, which, as found by me, is permissible in law. 9. That apart, assuming for the sake of argument that the rules have been amended in 2008 also, it must not be forgotten that not one but two posts of Workshop Superintendent, Engineering College were vacant in Assam Engineering College and Jorhat Engineering College respectively as early as 22.9.2004 as clearly stated by no less an authority than the respondent No. 2 himself in his letter of even dated to the respondent No. 1. The Rules was claimed to have been enforced in 2008. Even if this is true also, which is not the case here, as already found by me, the law laid down by the Apex Court in Y.V. Rangaiah vs. J. Sreenivasa, (1983) 3 SCC 284 that any post which has fallen vacant prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules will, ex proprio vigore, apply in this case. This is so inasmuch as such amendment making Ph.D. degree as the essential qualification for the post in question will have the effect of rendering an already eligible candidate like the petitioner ineligible for the post of Workshop Superintendent in Engineering College. Therefore, the cumulative effect of my aforesaid findings is that the petitioner is eligible for promotion to the post of Workshop Superintendent in Engineering College; that there is no amendment of the Rules prescribing Ph.D. degree as the essential qualification for the post of Workshop Superintendent in Engineering College and that the decision of the respondent authorities to the contrary is perverse, arbitrary, mala fides and cannot be sustained in law. No other reason is given by the respondent authorities for denying promotion to the petitioner. 10. For the reasons stated in the foregoing, this writ petition succeeds. The decisions of the respondent authorities holding the petitioner ineligible for the post of Workshop Superintendent, Engineering College in the DPC and Review DPC meeting held on 30.11.2012 and 24.5.2013 respectively are hereby quashed. 10. For the reasons stated in the foregoing, this writ petition succeeds. The decisions of the respondent authorities holding the petitioner ineligible for the post of Workshop Superintendent, Engineering College in the DPC and Review DPC meeting held on 30.11.2012 and 24.5.2013 respectively are hereby quashed. The respondent No. 1 and 2 are, accordingly, directed to convene within one month from the date of receipt of this judgment a fresh DPC for considering the case of the petitioner, along with other eligible candidate or candidates, if any, but who came within the zone of consideration as on 7.12.2011, when this Court disposed of W.P.(C) No. 3083 of 2009, for promotion to the post of Workshop Superintendent Engineering College. If the petitioner is found to be fit for promotion, he should be promoted to the post in question with effect from 7.12.2011 with all consequential service benefits except for back wages. The entire exercise must be completed within the next two months. Before parting, I am constrained to observe that the respondent No. 2, perhaps, to settle personal score, in his desperation to deny promotion to the petitioner at any cost, has no hesitation to twist facts and deliberately misread/misapplied the law applicable in this case and has in the process effectively stalled the promotion legitimately due to the petitioner for a considerable period of time, at any rate, since 2008. He could be charged for perjury, but I refrain from doing so for the time being with the hope that saner counsel will prevail upon him hereafter.