JUDGMENT AND ORDER : All the above mentioned twenty three writ petitions were taken up together for hearing at the admission stage itself on the prayer of learned counsel of both side since the factual aspect and the points of law involved in all the writ petitions were same and identical. The writ petitions since heard analogously, this common judgment is passed which shall govern all the writ petitions. WP(C) No.632 of 2015 has been taken up as the lead case with the consent of the learned counsel of the parties and the pleadings and documents annexed in that writ petition by the parties have been referred in the judgment hereunder. 2. Heard learned counsel, Mr. Somik Deb for the petitioners and learned ASG, Mr. H. Deb as well as learned CGC, Mr. A. Roy Barman and Mr. B. Majumder for the respondents. 3. The petitioners of all the writ petitions were appointed/engaged as Lecturer of Tripura Engineering College(for short, TEC) under the Department of Higher Education of the Government of Tripura. The National Institute of Technology Act, 2007(for short, NIT Act), a central act made by Parliament came into effect in the year 2007 and under that act the TEC was converted as National Institute of Technology, Agartala(for short, NIT, Agartala). The petitioners, who were regularly working as Lecturer of TEC were absorbed as Assistant Professor under NIT, Agartala on different dates. Section 5(d) of the NIT Act prescribes thus: “5. The petitioners, who were regularly working as Lecturer of TEC were absorbed as Assistant Professor under NIT, Agartala on different dates. Section 5(d) of the NIT Act prescribes thus: “5. On and from the commencement of this Act,— *** **** **** (d) every person employed by a society, immediately before such commencement shall hold his office or service in the corresponding Institute for the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as he would have held if this Act had not been passed, and shall continue to do so unless and until his employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statutes: Provided that if the alteration so made is not acceptable to such employee, his employment may be terminated by the Institute in accordance with the terms of contract with the employee or, if no provision is made therein in this behalf, on payment to him by the Institute, of compensation equivalent to three months’ remuneration in the case of permanent employee and one month’s remuneration in the case of other employee.” In view of the above provision of NIT Act, the petitioners were entitled to continue their service in the NIT, Agartala for the same tenure, same remuneration and same terms and conditions until it is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statutes. 4. As defined in Section 3(g) of the NIT Act, NIT, Agartala is an Institute and the powers and duties of the Institute have been prescribed in Section 6 of the NIT Act and I would like to refer here Section 6(1)(h) and Section(1)(i) of the NIT Act which read as follows: “6.(1) Subject to the provisions of this Act, every Institute shall exercise the following powers and perform the following duties, namely: *** *** *** *** (h) to institute academic and other posts with the prior approval of the Central Government, and to make appointments thereto excluding the Director and Deputy Director; (i) to frame Statues and Ordinances and to alter, modify or rescind the same;” 5. The word, “Statues” has been defined in Section 3(n) of the NIT Act which reads thus: “3.(n) “Statutes” and “Ordinances”, in relation to any Institute, means the Statutes and Ordinances of that Institute made under this Act; 6. Section 26 of the NIT Act prescribes the manner as to how the Statutes to be made and the same reads thus: “26.(1) The first Statutes of each Institute shall be framed by the Central Government with the prior approval of the Visitor and a copy of the same shall be laid as soon as may be before each House of Parliament. (2) The Board may, from time to time, make new or additional Statutes or may amend or repeal the Statutes in the manner provided in this section. (3) Every new Statute or addition to the Statutes or any amendment or repeal of Statutes shall require the previous approval of the Visitor who may grant assent or withhold assent or remit it to the Board for consideration. (4) A new Statute or a Statute amending or repealing an existing Statute shall have no validity unless it has been assented to by the Visitor.” The above provision makes it clear that the first Statutes has to be made by the Central Government and thereafter the Board of every Institute from time to time may make new or additional Statutes or amend or repeal the Statutes. 7. Section 25 of the NIT Act prescribes as to what the Statutes may provide which is very important and the provision reads as follows: “25. 7. Section 25 of the NIT Act prescribes as to what the Statutes may provide which is very important and the provision reads as follows: “25. Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:— (a) the conferment of honorary degrees; (b) the formation of departments of teaching: (c) the fees to be charged for courses of study in the Institute and for admission to the examinations of degrees and diplomas of the Institute; (d) the institution of fellowships, scholarships, exhibitions, medals and prizes; (e) the term of office and the method of appointment of officers of the institute; (f) the qualifications of teachers of the Institute; (g) the classification, the method of appointment and the determination of the terms and conditions of service of teachers and other staff of the Institute; (h) the constitution of pension, insurance and provident funds for the benefit of the officers, teachers and other staff of the Institute; (i) the constitution, powers and duties of the authorities of the Institute; (j) the establishment and maintenance of halls and hostels; (k) the conditions of residence of students of the Institute and the levying of fees for residence in the halls and hostels and of other charges; (l) the allowances to be paid to the Chairperson and members of the Board; (m) the authentication of the orders and decisions of the Board; and (n) the meetings of the Board, the Senate, or any Committee, the quorum at such meetings and the procedure to be followed in the conduct of their business.” Clause(f) and Clause(g) of the above provision clearly stipulate that the Statutes may provide the qualifications of teachers of the Institute and also it may provide provision in respect of classification, method of appointment and the determination of terms and conditions of service of teachers and other staff of the Institute. 8. It is an admitted position that the Central Government has made the first Statutes with the prior approval of the Visitor which has been notified on 23.04.2009. Section 22 of the Statutes prescribes the classification of the members of the staff which reads as follows: “22. 8. It is an admitted position that the Central Government has made the first Statutes with the prior approval of the Visitor which has been notified on 23.04.2009. Section 22 of the Statutes prescribes the classification of the members of the staff which reads as follows: “22. (1) Except in the case of employees paid from contingencies, the members of staff of the Institute shall be classified as under: (i) Academic staff: Director, Deputy Director, Professor, Associate Professor, Assistant Professor, Lecturer, Professor Training and Placement, and such other academic posts as may be decided by the Board from time to time. (ii) Technical staff: System Manager, System Analyst, Programmer, Librarian, Workshop Superintendent, Assistant Workshop Superintendent, Foreman, Technician, Instructor, Laboratory Assistant, Mechanic, Overseer, Technician, Assistant, Draftsman and such other technical posts as may be decided by the Board from time to time; and (iii) Administrative and others staff: Registrar, Deputy Registrar and Assistant registrar, Accounts Officer, Audit Officer, Estate Officer, Executive Engineer, Assistant and Junior Engineer, Medical Officer, Medical Assistant, Horticultural Assistant/Officer, Office Superintendent, Security Officer, Stores Officer, Store Keeper, Office Assistants, Data entry Operators and such other Administrative and other staff as may be decided by the Board from time to time. (2) Posts classified as Academic staff shall be vacation posts only.” It is therefore evident that under the first Statute made by the Central Government the post of academic staff has been clearly specified and to bring about any change in the classification of the members of the staff as contained in Section 22 of the Statutes, by any Institute, under the NIT Act, the Board of particular Institute has to make a new or additional Statute or amend or repeal the Statute. 9. It is clearly stipulated in Section 26 of the NIT Act that previous approval of the Visitor shall require to make a new Statute or to make any addition, alteration, amendment or repeal of the Statute. 10. Visitor means the President of India as contained in Section 9 of the NIT Act and the power of the Visitor has been prescribed therein which reads as follows: “9. (1) The President of India shall be the Visitor of every Institute. 10. Visitor means the President of India as contained in Section 9 of the NIT Act and the power of the Visitor has been prescribed therein which reads as follows: “9. (1) The President of India shall be the Visitor of every Institute. (2) The Visitor may appoint one or more persons to review the work and progress of any Institute and to hold inquiries into the affairs thereof and to report thereon in such manner as the Visitor may direct. (3) Upon receipt of any such report, the Visitor may take such action and issue such directions as he considers necessary in respect of any of the matters dealt with in the report and the Institute shall be bound to comply with such directions within reasonable time.” 11. As prescribed in Section 10 of the Act the Board of Governors(for short, BoG), the Senate and any such other authorities as may be declared by the Statutes shall be the authorities of an Institute. The NIT Act has also prescribed constitution of the BoG and the word, “Board” has been defined in Section 3(a) which means in relation to any institute, means the Board of Governors thereof. 12. Section 26 clearly stipulates that the Board is authorized to make a new Statute or to amend, repeal, etc. of the existing Statutes. 13. It is therefore quite evident that the provision prescribed in Section 22 of the Statutes shall remain in force in respect of classification of the members of academic staff until it is amended or a new Statute is made in respect of classification of the members of the academic staff. 14. Sections 30 to 34 of Chapter III of the NIT Act prescribe the establishment of a Council. It is an admitted position that a Council has been established as per the provision prescribed in Section 30 of the NIT Act. The function of the Council has been prescribed in Section 32 of the NIT Act which reads as follows: “32. (1) It shall be the general duty of the Council to coordinate the activities of all the Institutes. The function of the Council has been prescribed in Section 32 of the NIT Act which reads as follows: “32. (1) It shall be the general duty of the Council to coordinate the activities of all the Institutes. (2) Without prejudice to the provisions of subsection (1), the Council shall perform the following functions, namely:— (a) to advise on matters relating to the duration of the courses, the degrees and other academic distinctions to be conferred by the Institutes, admission standards and other academic matters; (b) to lay down policy regarding cadres, methods of recruitment and conditions of service of employees, institution of scholarships and freeships, levying of fees and other matters of common interest; (c) to examine the development plans of each Institute and to approve such of them as are considered necessary and also to indicate broadly the financial implications of such approved plans; (d) to advise the Visitor, if so required, in respect of any function to be performed by him under this Act; and (e) to perform such other functions as are assigned to it by or under this Act.” 15. Section 34 of the Act empowers the Central Government to make rules in respect of matters prescribed in Chapter III of the NIT Act, i.e. in respect of the constitution, power, function, etc. of the Council. Section 34 reads as follows: “34.(1) The Central Government may, by notification, make rules to carry out the purposes of this Chapter. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (a) the travelling and other allowances payable to members of the Council under subsection (5) of section 31; and (b) the procedure to be followed in the meetings of the council under subsection (4) of section 33. (3) Every rule made by the Central Government under this Chapter shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.” It is an admitted position that no rule has been made by the Central Government to carry out the purposes of Chapter III of the NIT Act. 16. The grievances of the petitioners are that the Council has made certain recommendations on the basis of which the Ministry of Human Resource Development(for short, MHRD), Government of India, issued communications to the Directors of all NITs dated 18.03.2013(Annexure P7 to the writ petition), 28.08.2013(Annexure P8 to the writ petition) and 15.01.2014(AnnexureP9 to the writ petition) and in all those communications it has been reflected that a 4tier faculty cadre structure has been introduced in place of the classification of members of the academic staff as prescribed in Section 22 of the Statutes without making any amendment or change in the Statues according to the procedure prescribed under the NIT Act. The petitioners therefore challenged all those communications made to the Director, NIT, Agartala since those communications are found to be detrimental to the interest in respect of service conditions of the petitioners. According to the petitioners, the council has recommended 4tier cadre structure of faculty posts, namely—(i) Assistant Professor(on contract), (ii) Assistant Professor, (iii) Associate Professor and (iv) Professor; whereas, under Section 22 of the Statutes the academic staffs were classified as Director, Deputy Director, Professor, Associate Professor, Assistant Professor, Lecturer, Professor Training and Placement, and such other academic posts as may be decided by the Board time to time. 17. It is submitted by learned counsel, Mr. 17. It is submitted by learned counsel, Mr. Deb for the petitioners that the recommendations made by the Council is clearly in conflict with the provisions prescribed in Section 5(d) of the Act. He has also submitted that without making any change in the classification of members of the academic staff in the Statutes, according to the procedure prescribed by law MHRD has no authority to issue direction to the Directors of NITs to implement those recommendations of the Council. It is emphatically submitted by Mr. Deb that the Council is no doubt an apex body but it has to function within the fourcorner of the Statutes and not beyond that. The Council may lay down the policy regarding cadres, method of recruitment, conditions of service of employees but cannot change the structure of the academic staff by giving any direction to the NITs. He has also submitted that though Council has been established but no rule has yet been made as to how the Council shall function to carry out the purposes of Chapter III of the Act. Since there is no rule framed as yet, neither the Council can make any recommendation in respect of the classification of the academic staff nor the MHRD can issue direction to the Directors of NITs to implement any such recommendations. He has referred to a decision of the Division Bench of Allahabad High Court dated 30.04. 2015 in Writ Appeal No.51603 of 2014 and Writ Appeal No.4998 of 2015 wherein the similar communications were challenged and he has referred to the following observations of the Allahabad High Court— “In the present case, the so called Rules/Policy is in reference to recruitment; deputation/contractual appointment; disqualifications; other conditions of service; qualifications and other requirements of selection and all these matters are to be provided by Statutes. Even under the First statutes covering such heads, various provisions have been infact introduced and if it has to be supplemented and new conditions of service with new eligibility criteria is to be introduced, then the Statutes will have to be added by new statutes or by additional statutes and said exercise has to be undertaken by the Board but same will require approval of the Visitor. Once prescribed procedure is there in the statutes, then consent of Visitor is required to be undertaken and once the consent of Visitor has not been undertaken in the case in hand, then in view of this, the inevitable conclusion is that the Council has got authority to frame policy decision and the institutes are duty bound and obligated to comply with the same and accordingly, even if the Board has proceeded to approve the same in the absence of approval by the Visitor, it has to be considered as "Statute in the making" or " Statute in process" i.e. it is incomplete and neither valid nor effective as a Statute. Once the statutory provisions, provide for an act to be done and performed in particular manner, then the said act has to be performed accordingly, in the manner prescribed by the authority vested with the power to act under the statutory provisions. Here every new statute or addition to the Statute or any amendment or repeal of Statute requires prior approval of the Visitor, who may grant assent or withhold assent or remit to the Board for consideration. There is a mandate provided for that a new statute or statute amending or repealing an existing statute shall have no validity unless it has been assented by the Visitor. Once law lays down the procedure and also provides for that a new Statute or Statute amending or repealing an existing Statute shall have no validity, then taking assent of the Visitor is part and parcel of Statute making process, and until and unless said exercise is not undertaken, the Statute will have to be accepted and treated as incomplete. There appears to be a purpose for taking assent of Visitor, as here the Visitor is no one else but the President of India as per Section 9 of the Act and Visitor is not an ornamental head, rather under subsection 2 of Section 9, the Visitor may appoint one or more persons to review the work and progress of Institute and to hold enquiries thereof and to report in such manner as Visitor may direct. Sub-Section 3 of Section 9 empowers the Visitor, upon receipt of report to take such action as he considers necessary in respect of matter dealt with in report and Institutes are duty bound to comply with the same. Sub-Section 3 of Section 9 empowers the Visitor, upon receipt of report to take such action as he considers necessary in respect of matter dealt with in report and Institutes are duty bound to comply with the same. Visitor is not a rubber stamp when he receives the Statute (Amended; New; Additional) for his consideration, he holds a unique position as Visitor is free to withhold assent and even remit the same for reconsideration. The so called 'Rules' have to be introduced through statutory forum i.e. by incorporating the same and making the same as part of the Statute and admittedly the same has not been done. In view of this, as far as policy decision is concerned, framing of policy decision is in the domain of the expert body i.e. the Council, but its implementation certainly, has to take place as per the statutory provisions that holds the field and in the present case, once the policy decision is in reference to the subject that falls within the domain of the statutes, then such policy decision has to be incorporated in the statute as per the provision for amending, altering and adding statutes i.e. by taking assent from the Visitor and mere ratification of the same by the Board will not be sufficient. In view of the above, till the said policy decision is not made part of the statute and assent is not taken by the Visitor, the same cannot be enforced. In view of this, future action based on said Rules be kept on hold till said Rules are not made part of the Statute. Any action that has already been taken in the past and already attained finality, in no way would be effected by our judgment. Writ petitions are disposed of with aforementioned observations/directions.” Learned ASG has submitted that the judgment dated 30.04.2015 of the Allahabad High Court has been challenged before the Apex Court by filing an SLP and the same is pending. Be that as it may, we have to decide the present set of writ petitions on its own merit even without referring to the above judgment of the Hon’ble Allahabad High Court. According to Mr. Deb, the communications dated 18.03.2013, 23.08.2013 and 15.01.2014 made by MHRD since are violative of the provisions of the Statutes, those are liable to be interfered and set aside. According to Mr. Deb, the communications dated 18.03.2013, 23.08.2013 and 15.01.2014 made by MHRD since are violative of the provisions of the Statutes, those are liable to be interfered and set aside. He has also submitted that the advertisement dated 10.04.2015(Annexure 13 to the writ petition) is also liable to be quashed since the advertisement has been made with reference to communication dated 15.01.2014(Annexure P 9), wherein it has been made clear that the faculty members who do not fulfill the essential qualifications, relevant experience and other essential requirements, will continue in the present grade(existing grade) and that means that the petitioners who were holding the post of Assistant Professor at the time of converting the TEC to NIT shall have to remain stagnant in the same grade and will not be in a position to have any promotion in their life. It is also submitted that the qualification cannot be changed on the basis of mere recommendation of the Council without giving it the statutory prescription as required by law. 18. On the contrary, learned ASG and learned CGCs submitted that Section 32(b) of the Act clearly prescribes that the Council is authorized to lay down policy regarding cadres, method of recruitment and conditions of service of employees, etc. According to learned counsel the employees include the academic staff also. In a broader sense, I agree with the submission that the word, “employees” include both academic and nonacademic staff of the Institute. It is also submitted that the Council has made recommendations and pursuant to the recommendations MHRD has issued communications to all the Directors of NITs and those are simply policy matters which cannot be interfered by the writ Court in exercise of the power of judicial review. It is also submitted that according to the communications made by MHRD, the Board of Governors of NIT, Agartala in its 29th meeting held on 27.02.2014 vide Agenda Item No.29.3 adopted resolution that 4tier flexible faculty structure shall be introduced and that resolution has been annexed as Annexure R1. Once that decision has been taken by the Board of Governors to introduce the 4tier faculty structure, there is no bar to implement it by the Institute for recruitment of the academic staff as per and in accordance with the educational and other qualifications prescribed thereunder. Once that decision has been taken by the Board of Governors to introduce the 4tier faculty structure, there is no bar to implement it by the Institute for recruitment of the academic staff as per and in accordance with the educational and other qualifications prescribed thereunder. It is emphatically submitted that NIT is a pioneer Institution to render technical education and quality teachers should be engaged which cannot be stalled and therefore learned counsel prayed for dismissal of the writ petitions. 19. I am quite aware that judicial review of administrative action is limited to see whether the action has been taken in accordance with the provisions prescribed by law and in accordance with the settled principles thereof. I am also aware that it is for the State to decide the recruitment rules for a particular post and to decide what are the eligibility criteria for filling up the posts. The State action has to be according to the procedure prescribed by law. The Central Government is authorized to issue administrative instructions in respect of those matters for which no law is made. The NIT Act and the Statutes made thereunder has prescribed the classification of the academic staff. To make a change in the structure as contained in Section 22 of the Statutes there ought to have been a new Statute or an amendment or change in the existing Statute by the Board of Governors. If the Board of Governors makes any new Statute or amend the existing Statute, the assent of the Visitor is compulsory. Subsection (4) of Section 26 clearly stipulates that a new Statute or a Statute amending or repealing an existing Statute shall have no validity unless it has been assented to by the Visitor. 20. It is an admitted position that no rule has been made as yet so as to carry out the purposes of Chapter III of the NIT Act. The Council has been authorized under Section 32(2)(b) to lay down policy regarding cadres, method of recruitment and conditions of service of employees, etc. but how the Council has to function to lay down those policy matters has to be specified in the rules to be made under Section 34. No such rule has been made to carry out the purposes of that Chapter. but how the Council has to function to lay down those policy matters has to be specified in the rules to be made under Section 34. No such rule has been made to carry out the purposes of that Chapter. However, in the absence of any such rule, even if certain recommendations have been made by the Council and MHRD issued communications to the NITs, it cannot automatically make applicable to the particular NIT unless the Board of Governors approves it by way of making a new Statute or amending the existing Statute in due process as prescribed under Section 26 of the NIT Act. 21. Learned CGC, Mr. Majumder has referred a decision of this Court in WP(C) No.283 of 2015 and submitted that the ratio of that decision may be fairly applied in this batch of writ petitions. After going through that judgment dated 31.03.2016, I find that it was in respect of the appointment of Registrar as prescribed in Section 21 of the Statute. Regarding appointment of Registrar certain policy decisions were taken which were in no way in conflict with the provisions of the Statutes and therefore the ratio of that decision cannot be applied in the present cases. 22. Mr. Roy Barman, learned CGC has submitted that the recruitment process may continue in accordance with the changed structure and qualification since it is for the betterment of the Institute. No doubt, every institute shall take effort to appoint best faculty to impart best education to the students but that does not mean that beyond statutory prescription the Institute should proceed. Regarding the classification of the academic staff, the qualification for such academic staff, etc. no doubt the Board of Governors is authorized to make statutory prescription with the assent of the Visitor. Until such a Statute is made, by way of administrative instruction of MHRD, the Institute cannot proceed. It is abundantly clear that communications dated 18.03.2013 (AnnexureP7), 28.03.2013(AnnexureP8) and 15.01.2014 (AnnexureP9) and the advertisement dated 10.04.2015 (AnnexureP13) have been made not in accordance with the procedures prescribed by law as discussed hereinbefore and therefore those are liable to be interfered and set aside, and accordingly I do so. The respondent-Institute, if so advised, may make new Statute or amend the existing Statute in accordance with the provisions prescribed under the NIT Act to suit their purpose. 23. The respondent-Institute, if so advised, may make new Statute or amend the existing Statute in accordance with the provisions prescribed under the NIT Act to suit their purpose. 23. All the writ petitions are accordingly allowed and disposed of. 24. The parties are to bear their own costs.