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2016 DIGILAW 152 (MAN)

Bhabeswar Tongbram v. Rajkumar Nando Singh

2016-09-12

R.R.PRASAD, SONGKHUPCHUNG SERTO

body2016
JUDGMENT AND ORDER : Heard Mr. K. Rabei, learned counsel for the petitioner, Dr. Deepak, learned counsel appearing for the respondent No.1, Mr. BP Sahu, learned Sr. counsel as well as Mr. Sh. Yangya, learned G.A. appearing for the respondents-2 and 3 respectively. 2. When the post of Principal Government Polytechnic fell vacant on 29.2.2016 on account of superannuation of one Shri Kh. Rajendra Singh, the State Government, instead of making appointment on the said post on regular basis, appointed the appellant- respondent as in-charge Principal, Govt. Polytechnic vide its order dated 29.2.2016. 3. Technical Education Department, Manipur (Principal Government Polytechnic) Recruitment Rules, 1998 does prescribe for appointment on the post of Principal, Government Polytechnic. Rule 11 of the said Rules reads as follows: “Promotion: Lecturers Selection Grade possess Master’s Degree in Engineering/ Technology/Technician Education with at least 7 (seven) years regular service in the grade.” Subsequently, the Government vide its order dated 26.8.2011 made further stipulation that the eligibility for recruitment and promotion at every step shall be subject to fulfilling of requirements and conditions laid down by the AICTE. Earlier to it, the AICTE vide notification dated 5.3.2010 laid down eligibility criteria for appointment on the post of Principal which reads as follows: “Notification Dated 05.03.2010. Principal Qualification as above for the post of Head of Department and Ph.D in Engineering. OR Qualification as above for the post of Head of Department Minimum of 10 years relevant experience in teaching/Research/Industry out of which at least 3 years shall be at the level of Head of Department or equivalent. In case of Architecture, professional practice of 10 years as certified by the Council of Architecture shall also be considered valid. 4. When one intended to have clarification on some which was there in the Notification dated 5.3.2010, such clarification was made under Notification dated 4.1.2016 which reads as follows: “Notification Dated 05.03.2010. 48 Whether a faculty of Engineering & Technology with minimum 10 years relevant experience in teaching/ research out of which 3 years is in the same grade pay (i.e. Rs.9000) at par with HOD is eligible for the post of Principal in Polytechnic. Yes, provided the person also has an administrative experience of at least 3 years. 64 Whether Ph. 48 Whether a faculty of Engineering & Technology with minimum 10 years relevant experience in teaching/ research out of which 3 years is in the same grade pay (i.e. Rs.9000) at par with HOD is eligible for the post of Principal in Polytechnic. Yes, provided the person also has an administrative experience of at least 3 years. 64 Whether Ph. D is an essential qualification for the post of Principal in Diploma Level Technical Institutions Yes On going through the said notification, one finds that the eligibilities for being appointed on the post of Principal, Government Polytechnic College which have been prescribed by the AICTE, are that one should be Ph. D holder in Engineering and that he should have have experience of 10 years in teaching/research/industry. Out of which at least 3 years experience shall be at the level of Head of the Department. 5. The Government having taken the appellant-respondent to have been fulfilling the eligibilities prescribed by AICTE appointed him as in-charge Principal, Government Polytechnic, Takyelpat vide order dated 29.2.2016 which was challenged before this Court by the writ petitioner-respondent taking a plea that respondent, though does possess Ph. D degree, an essential qualification for being appointed on promotion to the post of Principal, but the Ph. D Degree which the respondent is having is in the subject of History awarded by the Department of Social Science, Manipur University and not in any subject relating to Engineering. Further plea which was taken on behalf of the petitioner that though the respondent is claiming to have have 3 years administrative experience, he has never acquired 3 years administrative experience as Head of Department and that the writ petitioner though does not possess Ph. D degree, but does have 3 years administrative experience and that the writ petitioner being senior to the appellant, as is evident from the Seniority list, was entitled to be appointed on the post of Principal, Government Polytechnic not on regular basis but in the capacity of the Principal in-charge but the respondent completely ignored the claim rather did not even consider the case of the writ petitioner-respondent for appointment on the said post. 6. The stand taken on behalf of the writ petitioner- respondent was refuted not only by the private respondent appellant but also by the State taking stands that the petitioner-respondent does not have requisite qualification of Ph. 6. The stand taken on behalf of the writ petitioner- respondent was refuted not only by the private respondent appellant but also by the State taking stands that the petitioner-respondent does not have requisite qualification of Ph. D degree nor does have 3 years’ administrative experience and that seniority in terms of guidelines issued by the AICTE cannot be a criteria for appointment on the post of Principal, Government Polytechnic even on ad hoc basis. Further objection which was taken is that whether the respondent does have valid Ph. D degree or not, it is to be considered by the Board of Governor and none else and thereby it is not the right forum for the petitioner to challenge that the respondent is not possessing Ph. D degree in Engineering. 7. The learned Single Judge, after taking into account the fact relating to eligibilities as prescribed under the guidelines of AICTE, was pleased to hold that the writ petitioner-respondent does not have Ph. D degree whereas the respondent-appellant, though does have Ph. D degree, it is not in the subject of engineering, rather it is in the subject of History awarded by the Department of Social Science, Manipur University whereas as per the guidelines one should be Ph. D in engineering. Further, it was held that none of the parties, neither the petitioner nor the respondent do have requisite administrative experience of 3 years as Head of the Department as the petitioner does have the experience of only 2 years and some months whereas administrative experience which the respondent is claiming is on account of being Dy. Director of Controller of Technical Education, which cannot be taken to be the administrative experience as a Head of the Department. Thus, it was held that the State Government appears to have proceeded on an erroneous presumption that the appellant-respondent is eligible for appointment as Principal. There by the impugned order was set aside. Accordingly, the writ application was disposed of observing therein that if the State Government is of the view that on account of administrative exigency the appointment of Principal on incharge basis is indispensable, it is open to do so keeping in mind the seniority list as has been observed by the Hon’ble Supreme Court as well as Hon’ble Gauhati High Court in the case of Government of AP Vs. A.V. Venugopal, (1995) 1 SCC 179 and in case of Mangsatabam Imomacha Singh v. State of Manipur & Ors., reported in 2012 (4) GLT 808. 8. Being aggrieved with that order, this intra court appeal has been filed. 9. Mr. K. Rabei, learned counsel for the appellant submits that the learned Judge should not have entertained the objection taken by the writ petitioner-respondent relating to Ph. D degree being not valid as the right forum to resolve this kind of dispute would always be the Board of Governor as to whether one does have valid Ph. D degree or not and that the learned Single Judge also committed wrong in directing the respondent State to consider the case of the parties taking into account the seniority of the person as seniority would never prevail over the merit and this proposition has been laid down by the Hon’ble Supreme Court in the case of Narsingh Prasad vs. Anil Kumar Jain, (2012) 4 SCC 642 . The learned counsel, in this regard, also submitted that the seniority list upon which much emphasis is being laid by the petitioner-respondent has never been approved by the Government and thereby that cannot be the basis for ascertaining inter se seniority. 7.1 As against this Dr. Deepak, counsel appearing for the private respondent No.1, took the same stand and submitted that the learned Judge having found the appellant-respondent not fulfilling the eligibilities as prescribed by the AICTE, has rightly set aside the impugned order and as such appeal being devoid of any merit is fit to be dismissed. 8. Having heard learned counsel for the parties, it does appear that the appellant-respondent when was appointed as in-charge Principal, Government Polytechnic, his appointment was challenged by the writ petitioner-respondent on the ground that he does not have Ph.D. Degree in Engineering, rather he is Ph.D. degree holder in the subject of History and that he even does not have requisite administrative experience and as such was not eligible to be appointed even as in-charge Principal, Government polytechnic. 9. Learned Single Judge, after upholding the stand taken by the writ petitioner-respondent, did find that the appellant-respondent does not have requisite qualification. 9. Learned Single Judge, after upholding the stand taken by the writ petitioner-respondent, did find that the appellant-respondent does not have requisite qualification. The submission which was advanced on behalf of the appellant-respondent is that whether the appellant-respondent does have valid Ph.D. Degree or not, it is not for the Court to consider; rather it is to be considered by the Board of Governor which submission is devoid of any merit and is fit to be rejected out-rightly as the appellant-respondent was having valid Ph.D. Degree or not it was to be ascertained in the context of the eligibility prescribed by the AICTE. It never involved any detailed examination or scrutiny by an expert body and thereby by looking to the eligibilities prescribed by AICTE it was evidently clear that the appellant-respondent was not having valid Ph.D. degree in engineering and as such any finding recorded to that effect can never be said to be wrong or illegal. That apart, it has also been recorded by the learned single Judge that the appellant-respondent even does not have three years administrative experience as Head of the Department. For assailing this finding, no tenable submission was advanced in this regard and as such we uphold the said finding. 10. Coming to the other aspect of the matter, submission which was advanced on behalf of the appellant is that the learned single Judge committed wrong in directing the authority to take into account the seniority while considering the matter relating to the appointment of a person as in-charge Principal, Govt. polytechnic as merit cannot be left aside, rather it is the merit which takes the prime position in the matter relating to promotion or even for appointment on a post as time gap arrangement. Learned counsel has even referred to a decision rendered in a case of Anil Kumar Jain (supra) holding therein that even for stop gap arrangement, merit for such higher post is required to be considered. 11. It be recorded that the learned single Judge has never made direction to the authority to go for appointment for in-charge Principal, Govt. Polytechnic, rather the concerned appears to be there of the learned single Judge that the post be filled up on regular basis in accordance with eligibilities prescribed under AICTE. 11. It be recorded that the learned single Judge has never made direction to the authority to go for appointment for in-charge Principal, Govt. Polytechnic, rather the concerned appears to be there of the learned single Judge that the post be filled up on regular basis in accordance with eligibilities prescribed under AICTE. However, it has been observed that on account of administrative exigency if the authority do consider that there has been no way out but to appoint a person as Principal in-charge of the Govt. polytechnic then the authority must take into account the seniority as has been observed by Hon’ble Supreme Court in a case of Government of AP Vs. A.V. Venugopal (supra) holding therein that for interim arrangement with respect to matter relating to promotion, seniority be given due regard to avoid heart burning among the officers. We do not find any illegality on this part of the judgment. So far as the case referred to on behalf of the appellant is concerned, the observation as has been recorded earlier, has been made in the context of relevant regulation which speaks about suitability of the person and thereby their Lordships did observe that even for a stop gap arrangement merit for such a higher post is to be considered. Here in the instant case, as we have noted above, the guidelines issued by the AICTE in the matter of promotion to the post of Principal Govt. Polytechnic, no such criteria relating to suitability has been laid down. Under the circumstances, we do find that case relied upon is not applicable in the instant case. 12. Thus, we do not find any infirmity in the judgment and order passed by the learned single Judge and hence it is confirmed. Accordingly, appeal being devoid of merit is dismissed.