JUDGMENT AND ORDER : 1. All these writ petitions, being W.P. (C) No. 251/2015 (Dr. Prasun Chakraborty vs. Union of India and Others), W.P. (C) No. 399/2015 (Dr. Ardhendu Saha and Others vs. Union of India and Others), W.P. (C) No. 549/2015 (Dr. Aparna Nath vs. Union of India and Others), W.P. (C) No. 550/2015 (Dr. Saroj Kumar Das vs. Union of India and Others), W.P. (C) No. 551/2015 (Dr. Manish Pal vs. Union of India and Others), W.P. (C) No. 553/2015 (Dr. Debasish Bhattacharya vs. Union of India and Others), W.P. (C) No. 554/2015 (Dr. Rama Debbarma vs. Union of India and Others), W.P. (C) No. 555/2015 (Dr. Ratul Das vs. Union of India and Others), W.P. (C) No. 556/2015 (Dr. Ajoy Kumar Das vs. Union of India and Others) and W.P. (C) No. 572/2015 (Dr. Priyanath Das vs. Union of India and Others), are clustered for disposal by a common judgment as the questions/ challenges as projected in these writ petitions are substantially identical and having considered the said premise, except the writ petition, being W.P. (C) No. 251/2015, were heard analogously. Since the learned counsel appearing for the petitioners and the respondents, have in one voice stated that the writ petition, being W.P. (C) No. 251/2015 and the other writ petitions as are being considered here are structured on the same nature of challenge, those may be disposed by a common judgment. 2. Sans insignificant variations in facts, the facts which are relevant for purpose of considering these writ petitions may be noted. The writ petitioners in W.P. (C) No. 251/2015, namely Dr. Prasun Chakraborti, Dr. Sujit Kumar Pal, Dr. Rup Narayan Ray and Dr. Swapan Bhaumik, have been made proforma respondents in the remaining writ petitions, which are being considered here alongwith the said writ petition, being W.P. (C) No. 251/2015 for the simple reason that there may not be any observation and order adverse or prejudicial to the petitioners in W.P. (C) No. 251/2015. However, it is to be further noted that the writ petitioners in W.P. (C) No. 251/2015, have urged for the similar reliefs as urged by the remaining writ petitioners in this batch of writ petitions as noted. 3. The fundamental question arises in these writ petitions are for consideration of the Career Advancement Scheme (CAS) for the existing faculties following the 5th CPC norms. 3. The fundamental question arises in these writ petitions are for consideration of the Career Advancement Scheme (CAS) for the existing faculties following the 5th CPC norms. According to the petitioners, their non-consideration under the CAS following the 5th CPC norms are wholly arbitrary, inasmuch as all the petitioners were eligible for the CAS benefit. 4. The substantive facts are undisputed. Prior to filing of these writ petitions, some of the faculties had previously filed another writ petition urging the same reliefs as advanced in W.P. (C) No. 251/2015 and the said writ petition was registered as W.P. (C) No. 97/2013. The said writ petition has been disposed of by the judgment and order dated 12.01.2015, directing the Board of Governors of the National Institute of Technology (NIT), Agartala to re-examine the cases of the petitioners in the terms as noted under: “(i) That, the Board of Governors of the NIT, Agartala shall re-examine the entire issue and consider the case of the petitioners afresh after giving them one opportunity of hearing on or before 31.03.2015 and the decision be conveyed to the petitioners latest by 15.04.2015; (ii) In case, the decision is against the petitioners they shall be at liberty to file a fresh petition.” 5. Since, except the petitioners in W.P. (C) No. 251/2015 the said directions did not encompass the other petitioners whose writ petitions are being considered now, those writ petitioners having confronted with such circumstances that their cases may not be considered alongwith the cases of those petitioners of W.P. (C) No. 251/2015, they served the notice dated 11.02.2015 on the Chairman, Board of Governors, the Director of National Institute of Technology, Agartala, demanding that those petitioners shall also be equally considered for the post of Professor alongwith the writ petitioners of W.P. (C) No. 251/2015. By another notice dated 19.05.2015 the petitioners, except the petitioners of W.P. (C) No. 251/2015, demanded that arbitrarily they were not considered for interview for extending the benefit under the CAS. The notice thus, demanded that a fresh look within a week be taken by the NIT-respondents. 6. Before appreciating the challenge in these writ petitions, it would be apposite to refer the relevant components of the narrative whereby and whereunder the CAS following the 5th CPC norms read with the MHRD guidelines and the AICTE clarification has been made to operate. 7. 6. Before appreciating the challenge in these writ petitions, it would be apposite to refer the relevant components of the narrative whereby and whereunder the CAS following the 5th CPC norms read with the MHRD guidelines and the AICTE clarification has been made to operate. 7. There is no dispute that, as per the 5th CPC norms, the CAS for the existing faculties was introduced for purpose of development of merit on performance basis unlike the eligibility basis promotion. For purpose of convenience, the annexures of the writ petition and the counter-affidavits/further affidavits in W.P. (C) No. 251/2015 would be referred, but in case of any additional record the annexures of the other writ petitions may also be referred. In that event the writ petition number would be mentioned against the said document/ record referring to their annexure numbers. Where there would be no such reference, it shall be deemed that the documents/record as mentioned by their annexure no. are in reference to the writ petition, being W.P. (C) No. 251/2015. 8. By the Office Memorandum dated 17.08.2004 (Annexure-4), the Ministry of Human Resource Development Department (MHRD in short), having reference to promotion under the Career Advancement Scheme (CAS) for the faculty members in the National Institute of Technology (NITs), made clarification regarding eligibility criteria prescribed by the All India Council for Technical Education, (AICTE in short). In that clarification, the following has been provided: “The undersigned is directed to refer to para 4 of this Ministry’s Office Memorandum (OM) of even number dated 15.09.2003 on the subject mentioned above and to say that the Ministry has been receiving a number of queries from NITs regarding the exact eligibility criteria for promotion under CAS as AICTE has issued different clarifications at different points of time which are at variance with each other. The matter has been considered in the Ministry and it is clarified that instructions contained in the letter No. FD/PSSC/Clarif./ 2003/1 dated 10.09.203 of AICTE with regard to eligibility criteria for promotions under CAS for different posts of faculty shall be applicable to NITs. But any other clarifications issued by AICTE subsequently after this date shall not be applicable to NITs. If there is any specific operational difficulty or anomaly with regard to implementation of this order, the same may be referred to the Ministry for appropriate consideration and clarifications.” 9. But any other clarifications issued by AICTE subsequently after this date shall not be applicable to NITs. If there is any specific operational difficulty or anomaly with regard to implementation of this order, the same may be referred to the Ministry for appropriate consideration and clarifications.” 9. It is apparent, on perusal of the said Office Memorandum dated 17.08.2004 that the NITs were disjuncted from the operational jurisdiction of the AICTE. It may be noted that, before the said office memorandum dated 17.08.2004, the AICTE also made some clarification by their communication dated 10.09.2003, where it was clarified in the following manner: “From time to time AICTE receives queries seeking clarification on different issues pertaining to Pay Scales and Service Conditions for teachers of Degree/Diploma level Technical Institutions. The AICTE has constituted Expert Committee to give the clarification/anomalies pertaining to Pay Scales and Service Conditions of Teachers of Degree/Diploma Level Technical Institutions. The decision of the Expert Committee on these issues is enclosed (Annexure-1) for information and necessary action, if any. This is issued with the approval of the Competent Authority.” 10. In the referred Annexure-1, there is one appendix for purpose of the revised CAS. In the said Annexure-1, the Revised Career Advancement Schemes for Teachers of Degree Level Technical Institutions are provided. The relevant part so far it relates to the CAS for movement to the grade of Professor, are extracted hereunder: “1.1. General 1.1.0 Minimum length of service for eligibility to move into the grade of Lecturer (Senior Scale) would be four years for those with Ph.D. five years for those with M.Phil., M.Tech. and six years for others at the level of Lecturer, and for eligibility to move into the grade of Lecturer (Selection Grade/Assistant Professor, the minimum length of service as Lecturer (Senior Scale) shall be uniformly five years. 1.1.1 For movement into grades of Professor, the minimum eligibility criterion would be Ph.D. Those without Ph.D can go up to the level of Lecturer (Selection Grade)/Assistant Professor. 1.1.2 An Assistant Professor with a minimum of eight years of service in that grade will be eligible to be considered for appointment as a Professor. 1.1.3 The Selection Committee for Career Advancement shall be the same as those for Direct Recruitment for each category.” 11. 1.1.2 An Assistant Professor with a minimum of eight years of service in that grade will be eligible to be considered for appointment as a Professor. 1.1.3 The Selection Committee for Career Advancement shall be the same as those for Direct Recruitment for each category.” 11. Initially all the writ petitioners, except the petitioners in W.P. (C) No. 251/2015 filed the joint writ petition, being W.P. (C) No. 399/2015, but in view of the change as to how the writ petitions are to be filed by the writ petitioners who are substantially covered by the same cause, this court passed the order dated 30.09.2015 in W.P. (C) No. 399/2015, observing as under: “This is an application filed for permission to file a joint petition. The petitioners are all Associate Professor. They are not under privileged persons. They can afford to file separate petitions. They all want to be placed in the higher pay scale. The cause of action for each petition is different, everybody’s date of appointment is different, the date from which they will get the higher scale is different. Therefore, each one of the petitioner will have to file a separate petition. In case the petitioner No. 1 so desires, he may continue with the petition but separate petitions will have to be filed by the other petitioners. This petition shall be treated only to be a petition on behalf of the petitioner No. 1.” In terms of the said order dated 30.09.2015, the writ petition, being W.P. (C) No. 399/2015 though filed jointly, was treated as the writ petition only filed by the petitioner, namely Dr. Ardhendu Saha. 12. According to the petitioners, they have all completed 8(eight) years of required service in the grade of Assistant Professor and they all do have the degree of Ph.D and as such they were eligible for consideration for having the benefit of moving to the grade of Professor under the 5th CPC norms. For this purpose, it appears essential that in a tabular form, the service particulars of the writ petitioners are extracted:- S. No. Writ Petitioners Number Name of the writ petitioners with their present designation Date of entry in the service as the Assistant Professor/Lecturer (Sel. Gr.) Lecturer (Sr. Scale) Date of appointment as the Associate Professor, if any Date of obtaining Ph.D. Date of completing 8(eight) years of service in the grade of Assistant Professor 1. Gr.) Lecturer (Sr. Scale) Date of appointment as the Associate Professor, if any Date of obtaining Ph.D. Date of completing 8(eight) years of service in the grade of Assistant Professor 1. W.P. (C) No. 251 of 2015 Dr. Prasun Chakraborty, Associate Professor 04.04.2005 01.01.2006 04.08.2005 03.04.2013 Dr. Sujit Kumar Pal Associate Professor 03.03.1999* 01.01.2006** 25.01.2010 02.03.2007 Dr. Rup Narayan Ray, Associate Professor 04.04.2005 01.01.2006 09.06.2010 03.04.2013 Dr. Swapan Bhaumik, Associate Professor 08.04.2005 01.01.2006 30.07.2003 07.04.2013 2. W.P. (C) No. 399 of 2015 Dr. Ardhendu Saha, Associate Professor 11.04.2005 11.04.2008 15.09.2007 10.04.2013 3. W.P. (C) No. 549 of 2015 Dr. Aparna Nath, Associate Professor 08.04.2005 08.04.2008 10.07.1996 07.04.2013 4. W.P. (C) No. 550 of 2015 Dr. Saroj Kumar Das, Associate Professor 11.04.2005 11.04.2008 30.01.2001 10.04.2013 5. W.P. (C) No. 551 of 2015 Dr. Manish Pal, Associate Professor 04.04.2005 04.04.2008 09.06.2010 03.04.2013 6. W.P. (C) No. 553 of 2015 Dr. Debasish Bhattacharya, Associate Professor 29.04.2005 29.04.2008 25.11.1998 28.04.2013 7. W.P. (C) No. 554 of 2015 Dr. Rama Debbarma, Associate Professor 04.04.2005 04.04.2008 28.11.2011 03.04.2013 8. W.P. (C) No. 555 of 2015 Dr. Ratul Das, Associate Professor 04.04.2005 04.04.2008 07.03.2012 03.04.2013 9. W.P. (C) No. 556 of 2015 Dr. Ajoy Kumar Das, Associate Professor 04.04.2005 04.04.2008 02.03.2011 03.04.2013 10. W.P. (C) No. 572 of 2015 Dr. Priyanath Das, Associate Professor 04.04.2005 04.04.2008 12.03.2013 03.04.2013 *The petitioner No. 2 in the writ petition, being W.P. (C) No. 251/2015, has not been appointed ever as the Assistant Professor, but it is stated that the post of Lecturer (Selection Grade) is treated equivalent to the Assistant Professor. The petitioner No. 2 in the said writ petition appears to have treated accordingly while appointing him as the Associate Professor w.e.f. 01.01.2006. **The petitioners those were appointed initially as the Lecturer, thereafter Lecturer (Senior Scale) or Lecturer (Selection Grade), but later on appointed as the Assistant Professors, their appointments prior to the Assistant Professors have not been denoted as those fact appear not relevant in the context of the case. The information/entries made in the table above are not at all disputed as the respondents by filing their counter-affidavit, have admitted those facts relating to the appointment/date of obtaining the degree of Ph.D etc. 13. The information/entries made in the table above are not at all disputed as the respondents by filing their counter-affidavit, have admitted those facts relating to the appointment/date of obtaining the degree of Ph.D etc. 13. All the petitioners have completed their 8(eight) years of service in the grade of Associate Professor before 30.04.2013, from which day the CAS was discontinued having substituted by a new system called 4-tier Cadre Structure. The further facts that the NIT Agartala by the notification No. NITA-2(226-Estt)/2008 dated 12.08.2008 (Annexure-6) adopted the Revised CAS for implementation. The AICTE further clarified more specifically that for promotion to the post of Professor, minimum 8(eight) years of service is required either as Lecturer (Selection Grade) with Ph.D or Assistant Professor with Ph.D. All the petitioners, as would be available from the table above, had completed their 8(eight) years of service before 30.04.2013, the end date for the CAS following the 5th CPC norms. The petitioners have admittedly made their representations on diverse dates for consideration of their cases under the CAS. 14. By means of these writ petitions, the petitioners have stated that for completion of 8(eight) years, the relevant date be considered either from the date of appointment as the Assistant Professor or from the date of appointment as the Lecturer (Selection Grade). 15. It appears from the record that the time stipulated by the order dated 12.01.2015 in the previous writ petition, being W.P. (C) No. 97/2013, was extended till 15.05.2015 by the order dated 31.03.2015 delivered in C.M. Appeal No. 102/2015 [arising from W.P. (C) No. 97/2013] in the following manner: “For the reasons stated in the application, the same is allowed. The time to take a decision is extended up to 15.05.2015 and the said decision is conveyed to the petitioners latest by 31.05.2015. It is made clear that there shall be no further extension of time under any circumstances whatsoever. C.M. Application stands disposed of.” 16. In terms of the said order dated 31.03.2015, the decision was conveyed to those petitioners in the form of the communication dated 13.05.2015 (Annexure-11). It is made clear that there shall be no further extension of time under any circumstances whatsoever. C.M. Application stands disposed of.” 16. In terms of the said order dated 31.03.2015, the decision was conveyed to those petitioners in the form of the communication dated 13.05.2015 (Annexure-11). It was communicated that, the decision in that regard was taken in the 33rd (Special) Board of Governors meeting of NIT Agartala and Minutes dated 13.04.2015, under Item No. 33.2, demonstrate that the following decision was taken: “In response to the Judgment and Order passed by the Hon’ble High Court of Tripura, Agartala, in the captioned matter, I am to communicate the decision of the 33rd (Special) Board of Governors meeting of NIT Agartala as recorded vide Minutes dated 13.04.2015 under Item No. 33.2 as follows: “Special Meeting of the BoG was called in view of the directions passed by the Hon’ble High Court of Tripura by Judgement dated 12/1/2015 in WP (C) No. 97 of 2013 filed by Dr. Prasun Chakraborti and three others. Considering the above directions issued by the Hon’ble High court, the 32nd meeting of the Bog held on 17/1/2015 recommended that due process be followed for examination of applications of the 4 petitioners through a selection committee as stipulated for CAS. After the said meeting of the BoG, NIT Agartala received an e-mail from the Director (NITs), MHRD, Govt. of India, on March 16, 2015 and letter No. F.39-10/2015-TS.III dated 16/3/2015 issued by Under Secretary (NITs), MHRD, regarding the CAS with regard to the decision of the Agenda Item No. 32.16.8, which inter-alia mentioned that no permission shall be granted for conducting selection under CAS in any institute after 30/4/2013 as the institutes have to adopt implementation of 4-tier Cadre structure. It was also mentioned in the letter of MHRD that NIT Agartala may seek extension of time from the Hon’ble High Court for taking decision according to the direction issued by the Hon’ble High Court. Accordingly, on the basis of the prayer of NIT, Agartala, vide C.M. Application No. 102 of 2015 in WP (C) No. 97 of 2013 (DO), the Hon’ble High Court on 31.3.2015 granted time until 15.05.2015 to take a decision on its directions and to communicate the decision of the BoG to the petitioners by 31/05/2015. Accordingly, on the basis of the prayer of NIT, Agartala, vide C.M. Application No. 102 of 2015 in WP (C) No. 97 of 2013 (DO), the Hon’ble High Court on 31.3.2015 granted time until 15.05.2015 to take a decision on its directions and to communicate the decision of the BoG to the petitioners by 31/05/2015. It is evident from the above that the decision on Agenda No. 32.16.8 taken in the 32nd BoG meeting in response to the directions of the Hon’ble High Court of Tripura is beyond the powers and jurisdiction of the BoG. Hence this decision of the 32nd meeting of BoG is not ratified. Since the decision of the NIT Council to dispense with CAS from April 30, 2013 is final and binding on all NITs, this meeting of BoG resolved that the BoG cannot process any case of CAS at NIT Agartala after April 30, 2013. As CAS cannot be considered, hence the apprehension of petitioners that they may be victimised for promotion is misplaced. The decision may be communicated to Dr. Prasun Chakraborti and three other petitioners of WP (C) No. 97 of 2013 (D.O.).” 2. The above mentioned decision taken by the Board of Governors, NIT Agartala, in its 33rd (Special) meeting held on April 13, 2015 is communicated to you as per direction of the Hon’ble High Court of Tripura.” 17. Thus, it is apparent that no decision on the merit of the petitioners suitability was taken simply on the ground that, no promotion could be granted under the CAS in any institute after 30.04.2013 as the institute had to adopt implementation of the 4-tier Cadre Structure. Thus, it is apparent that though the petitioners were eligible to be considered under the CAS following the 5th CPC norms, their cases were not considered in view of the purported cut-off date. The petitioners have asserted in their writ petitions that the Board of Governors while taking the said decision, did not appreciate that they acquired eligibility for promotion to the post of Professor under the CAS before the 4-tier Cadre Structure came into force, after 30.04.2013 or that the petitioners were entitled for consideration of promotion against the vacancies available prior to 30.04.2013 under the 3-tier Cadre Structure. Thus, the decision as communicated by the letter dated 13.05.2015 (Annexure- 11) is wholly unreasonable and unsustainable in law. Thus, the decision as communicated by the letter dated 13.05.2015 (Annexure- 11) is wholly unreasonable and unsustainable in law. The said decision as communicated by the letter dated 13.05.2015 was in respect of the petitioners in W.P. (C) No. 251/2015. The cases of the other writ petitioners were not even considered alongwith the writ petitioners of W.P. (C) No. 251/2015. Their cases were unceremoniously shut down understandably for the same reason, as after 30.04.2013 the 4-tier Cadre Structure has been adopted in the NITs and no movement to the post of Professor from the post of Assistant Professor/Lecturer (Selection Grade) could be entertained after 30.04.2013. 18. By filing the counter-affidavit in all the writ petitions, the respondents have stated the same reason for non-considering the petitioners cases. The respondents have asserted in their counter-affidavits that the Ministry of Human Resource Development, Department of Higher Education, Government of India, by their letter No. F.33-71/2011-TS-III dated 18.03.2013 [Annexure-R/1], reiterated the decision of the NIT Council [3rd meeting Item No. 3.17] to adopt flexible 4-tier faculty structure by way of resolution by the respective Board of Governors of all the NITs with compliance report to be sent by them to the Ministry by 30.04.2013. Further it was stated in the said letter of the MHRD that vide Ministrys order No. F.23-1/2008-TS.III, dated 18.08.2009 [Annexure-R/2], the Ministry shall put up selection norms for various faculty positions under the 4-tier cadre structure by 30.04.2013, which clearly indicates that the NITs cannot conduct selection under the CAS w.e.f. 30.04.2013, since under the 4-tier cadre structure there is no provision for CAS. The respondents have further contended that the NIT Agartala adopted the 4-tier flexible cadre structure by the Ministries letter No. 33-9/2011-TS-III dated 28.01.2014 to the Directors of all the NITs [Annexure-R/3] and the guidelines attached to the letter dated 15.01.2014 by the MHRD alongwith the Recruitment Rules for 4-tier faculty cadre with the approval of the BoG in its 29th meeting held on 27.02.2014 [Annexure-R/4] against the Item No. 29.3. They have further asserted that regarding the guidelines for conducting the CAS under the 5th CPC norms, the AICTE issued clarification dated 10.09.2003 [Annexure-5(a) to the writ petition]. They have further asserted that regarding the guidelines for conducting the CAS under the 5th CPC norms, the AICTE issued clarification dated 10.09.2003 [Annexure-5(a) to the writ petition]. The respondents have pointed out Item No. 23 of the said letter regarding norms of the CAS, which provided that, “Consideration of the Career Advancement Scheme of AICTE and conversion of Lecturer (SG) to Assistant Professor after attaining the Ph.D degree.” The committee recommended Selection Grade Lecturers at par with Assistant Professors after acquiring Ph.D. The decision of the AICTE clearly states that for consideration of CAS, only that part of the teaching experience in the post of Selection Grade Lecturer (SG) will be counted as the Assistant Professor (5th CPC), which is after acquiring the Ph.D in their respective branch. 19. The respondents have further stated that the petitioners were awarded Ph.D on diverse dates. After acquiring the Ph.D, the experience in the Lecturer (Selection Grade) can be counted. If it is found that the Lecturer (Selection Grade), such as the writ petitioner No. 2 in W.P. (C) No. 251/2015, who after acquiring the Ph.D degree, did not complete the required years of service, is liable to be declared ineligible for consideration under the CAS as per the 5th CPC norms. However, they are silent why they have not considered those Assistant Professors having the Ph.D degree in their possession. 20. From the above, it is apparent that by two distinct clauses it has been provided that 8(eight) years of service in the grade of Assistant Professor and a Ph.D is required for consideration and the Ph.D as per the revised CAS has not been made pre-condition for purpose of calculating the qualifying service. The respondents have stated that since the MHRD has prohibited to conduct any exercise under the CAS following the 5th CPC norms after 30.04.2013, the NIT-respondents had to abandon their earlier decision taken in the 32nd meeting of the BoG held on 17.01.2015 in terms of the order dated 12.01.2015 delivered in W.P. (C) No. 97 of 2013 and they have asserted as under: “After the said meeting of BoG, NIT Agartala received mail from Director (NITs) MHRD, Govt. of India. of India. On 16.03.2015 and letter No. F.39-10/2015-TS-III dated 16.03.2015 issued by the Under Secretary (NITs) MHRD regarding the CAS with regard to the decision on the agenda item No. 32.16.8 which inter-alia mentioned that no permission shall be granted for conducting selection under CAS in any institute after 30.04.2013 as the institutes have to adopt implementation of 4-tier cadre structure. Hence the decision communicated to the petitioners is as per decision of the NIT Council and MHRD and BoG minutes.” 21. Mr. C.S. Sinha, learned counsel has appeared for the petitioners in W.P. (C) No. 251/2015 whereas Mr. K.N. Bhattacharji, learned senior counsel, assisted by Ms. S. Chakraborty, learned counsel has appeared for the petitioners in the remaining writ petitions. This court has also heard Mr. H. Deb, learned Assistant Solicitor General of India and Mr. B. Majumder, learned Central Government Counsel appearing for the respondents. 22. Mr. Bhattacharji, learned senior counsel has submitted that all the writ petitioners made their applications for being considered under the CAS following the 5th CPC norms. In this regard, he has referred to the rejoinder of the petitioners, except the petitioners in W.P. (C) No. 251/2015, where the petitioners are represented by Mr. C.S. Sinha, learned counsel, for purpose of pointing out the Note No. 19, which contains a report in terms of the office order No. F.NITA.2.1(363-Estt)/2012/15036-110 dated 22.03.2013 (Annexure-12 to the affidavit-in-rejoinder). From that Note No. 19, which has been disclosed under the Right to Information Act, it appears that all the petitioners under consideration here, are listed as eligible candidates for promotion to the grade of Professor as per the 5th CPC norms. In the said report, the following has been observed: “1. Fifty eight (58) application forms of Assistant Professors have been received for enhancement of AGP and from Assistant Professor to Associate Professorship. (a) For Lecturer Senior Scale, 43(Forty Three) applicants are eligible. 5(Five) applicants are not eligible because of shortage of requisite experience as per 5th CPC AICTE. (b) For Assistant Professor/Selection Grade as per 5th CPC Norms, 10 applicants are eligible. (c) For Professorship 13 applicants are eligible and 17(seventeen) applications have been received. 9(nine) applicants are not eligible because of shortage of requisite experience as per 5th CPC AICTE. 5(Five) applicants are not eligible because of shortage of requisite experience as per 5th CPC AICTE. (b) For Assistant Professor/Selection Grade as per 5th CPC Norms, 10 applicants are eligible. (c) For Professorship 13 applicants are eligible and 17(seventeen) applications have been received. 9(nine) applicants are not eligible because of shortage of requisite experience as per 5th CPC AICTE. (d) Experience of the individual candidate in the respective position has been calculated up to 28th April, 2013.” The list of eligible candidates has been provided under Table-C in the following manner: List of eligible candidates for Professorship as per 5th CPC Norms 23. Mr. Bhattacharji, learned senior counsel, has also referred to the decision of this court in Smt. Tara Sen and Others vs. Union of India and Others [judgment dated 31.03.2016]. In the said decision, though in a different circumstances, but about the same procedure which was circumscribed in view of the decision of the MHRD, this court has observed as under:- S. No. Name of the candidates Department 1. Dr. Prasun Chakraborty ME 2. Dr. Swapan Bhowmik ME 3. Dr. Ajoy Kumar Chakraborty EE 4. Dr. Debasis Bhattacharya Maths 5. Dr. Rup Narayan Ray EE 6. Dr. Manish Kr. Pal CE 7. Dr. Ratul Das CE 8. Dr. Rama Debbarma CE 9. Dr. Ajoy Kr. Da ME 10. Dr. Sujit Kr. Pal CE 11. Dr. Saroj Das Chemistry 12. Dr. Aparna Nath Physics 13. Dr. Ardhendu Saha EE “21. The respondents No. 1 to 4 are directed to re-consider the eligibility of the petitioners vis-a-vis the experience of the respondents No. 5 to 14 and make the appropriate recommendation for their up-gradation under CAS from AGP Rs. 6,000 to AGP Rs. 7,000 if they are found fit for such up-gradation on assessment of performance. Such exercise shall be completed within a period of 2(two) months from today and for this matter, the prohibition as imposed by the MHRD, that cases of CAS should not be considered after 30.04.2013, shall not create any bar. If it is found that the proforma respondents were also not eligible then on taking a uniform view of the matter the official respondents No. 1 to 4 shall take appropriate action so that in no manner, even in terms of the pecuniary advantage, the petitioners are not discriminated. If it is found that the proforma respondents were also not eligible then on taking a uniform view of the matter the official respondents No. 1 to 4 shall take appropriate action so that in no manner, even in terms of the pecuniary advantage, the petitioners are not discriminated. If following the experience of the respondents No. 5 to 14, it is found that the petitioners are as well eligible for consideration of up-gradation under CAS, in the same terms as has been provided to the respondents No. 5 to 14, the petitioners shall also be given the benefit from the date when the said benefit has been released or extended to the respondents No. 5 to 14.” 24. According to Mr. Bhattacharji, learned senior counsel, this court has laid down the law that, when there is a state action contrary to the provisions of Article 14 of the Constitution viz. arbitrariness or denying the extant right without due consideration, the constitutional courts for ensuring the justice, should remove such embargo by way of declaring that right and directing enforcement thereof. Right which accrued cannot be trampled by inaction from the executive. 25. From Note No. 19 as stated, it has surfaced that even though the petitioners were considered eligible on 22.04.2013 and admittedly the scheme was in force till 30.04.2013, whereas the new 4-tier cadre structure came into force on 15.05.2013, the petitioners were not considered under the CAS following the 5th CPC norms. 26. From the other side, Mr. B. Majumder, learned Central Government Counsel has submitted that the authority, competent to change the policy, when changed their policy, the NITs could not consider the petitioners under the CAS following the 5th CPC norms, which lapsed on 30.04.2013. Hence, with the change of policy, the petitioners right has lapsed and they are to be considered under the 4-tier faculty cadre structure. 27. From the averments, submissions and records, the questions that arise, are as follows: (i) Whether the petitioners were eligible for consideration under the CAS following the 5th CPC norms for movement/promotion to the post of Professor under the NIT Agartala, or not? (ii) Whether by not considering the petitioners for movement/promotion to the post of Professor in the NIT Agartala under the CAS following the 5th CPC norms, the respondents have acted arbitrarily or not? 28. (ii) Whether by not considering the petitioners for movement/promotion to the post of Professor in the NIT Agartala under the CAS following the 5th CPC norms, the respondents have acted arbitrarily or not? 28. (i) WHETHER THE PETITIONERS WERE ELIGIBLE FOR CONSIDERATION UNDER THE CAS FOLLOWING THE 5TH CPC NORMS FOR MOVEMENT/ PROMOTION TO THE POST OF PROFESSOR UNDER THE NIT AGARTALA, OR NOT? From the Note No. 19 [Annexure-12 to the rejoinder to the writ petitions, except in W.P. (C) No. 251/2015] it appears that the petitioners were declared by the competent authority to be eligible for consideration for movement/promotion to the post of Professor under the CAS following the 5th CPC norms. The averments that has been made in this respect by the petitioners, except the petitioners in W.P. (C) No. 251/2015, are as under: “2. That, with reference to the statements made in para 7 of Counter Affidavit, I say that in response to the Institute Notification No. FNITA 2.1(363-Estt) 2012/7877, dated 15.11.2012 inviting application from the in-house regular faculty members of NIT Agartala for granting CAS, according to 5th CPC guidelines and as per MHRD order No. F.33-7/2011-TS-III dated March 14, 2012, the petitioner submitted her application in prescribed form well within the last date of submission i.e. 10.01.2013. 3. That in the meantime MHRD vide letter No. F.33-71/2011-TS-III, dated 18.03.2013 informed that CAS will be dispensed with effect from 30.04.2013 and from this date new 4 tier faculty cadre structure will be introduced in NITs. It was also further stated in the letter that the Institutes which have not conducted CAS for the last 3 years may conduct one time CAS before 30th April 2013. The fact is that in NIT Agartala CAS was not conducted after 2008 under 5th CPC guidelines. After the said letter dated 18.03.2013, the Institute constituted one scrutiny committee comprising of three professors to examine the applications submitted by the faculties for CAS (Annexure-10). The committee submitted its report to the Director on 22.04.2013 and in the report the committee categorically prepared the list of eligible/qualified candidates and non-eligible candidates for up-gradation of Associate Professors to Professors under CAS along with others. Thus ineligible candidates have been excluded by the Committee. The committee considered eligibility of the candidates as on 28.04.2013. However the petitioner was considered and found eligible vide Note No. 19 (Annexure-11). Thus ineligible candidates have been excluded by the Committee. The committee considered eligibility of the candidates as on 28.04.2013. However the petitioner was considered and found eligible vide Note No. 19 (Annexure-11). The petitioner has completed 8(eight) years of service in the post of Assistant Professor on 7th April 2013, and is having a Ph.D Degree, which are essential qualification needed for movement to next higher rung under 5th CPC guidelines. Further in respect of fulfilment of the criteria relating to Teaching, research output, sharing institutional responsibilities as suggested by MHRD order No. F.33-7/2011-TS.III, dated 14.03.2012, by the petitioner is furnished in a tabular form showing the details of particulars vide Annexure-12. This table clearly shows that the petitioner also satisfies the approved criteria vide MHRD order No. F.33-7/2011-TS.III, dated 14.03.2012 for which the petitioner has been recommended by the committee and some who couldn’t satisfy the committee were left out of recommendation.” 29. In reply to those paragraphs of rejoinder, by filing the additional affidavit, the respondents have stated as follows: “3. That, the statements and averments made in paragraph 1 and 2 of the rejoinder are matters on record. 4. That, with reference to the statements and averments made in paragraph 3, 4 and 5 of the rejoinder, I say that the MHRD in its letter dated 14th March, 2012 categorically stated that the Career Advancement Scheme (CAS) was introduced for the purpose of development of merit and not eligibility based promotion. In this letter it was also mentioned that the cumulative academic performance was one of the important criteria for getting CAS benefit and the then Director of NIT, Agartala on 24.04.2013 decided to call for interview only the candidates for up-gradation of grade pay in respect of Assistant Professors, excluding the candidates in the rank of Associate Professors for up-gradation/promotion to Professors under CAS as per MHRD letter No. 33-71/2011-TS-III dated 18.03.2013, conducting selection under CAS was not allowed, from any Institute w.e.f. 30.04.2013 based on decision taken by the NIT Council, a Statutory Authority as per NIT/NITSER Act.” 30. As such, it is apparent that the petitioners filed their applications within due date and on 22.04.2013 they were considered by the competent committee which was authorised to submit a report in this regard that all the petitioners were eligible for consideration for movement/promotion to the post of Professor under the CAS following the 5th CPC norms. 31. The respondents have stated that the Director of NIT Agartala on 24.04.2013 had decided to call for interview only the candidates for up-gradation of grade pay in respect of Assistant Professors, excluding the candidates in the rank of Associate Professors for up-gradation/promotion to the post of Professor under the CAS and no consideration could be and was made after 30.04.2013 in view of the MHRDs letter under F. No. 33-71/2011-TS-III dated 18.03.2013. 32. From the minutes of the 33rd (Special) Meeting of the Board of Governors held on 13.04.2015 vide item No. 33.2 it can be gathered that the cases of the writ petitioners in the writ petition being W.P. (C) No. 97/2013 were considered having regard to the judgment and order dated 12.01.2015 and it was resolved as under: “Special Meeting of the BoG was called in view of the directions passed by the Hon’ble High Court of Tripura by judgment dated 12/1/2015 in WP (C) No. 97 of 2013 filed by Dr. Prasun Chakraborti and three others. Considering the above directions issued by the Hon’ble High Court, the 32nd meeting of the BoG held on 17/1/2015 recommended that due process be followed for examination of applications of the 4 petitioners through a selection committee as stipulated for CAS. After the said meeting of the BoG, NIT Agartala received an e-mail from the Director (NITs), MHRD, Govt. of India, on March 16, 2015 and letter No. F. 39-10/2015-TS-III dated 16/3/2015 issued by Under Secretary (NITs), MHRD, regarding the CAS with regard to the decision on the Agenda Item No. 32.16.8, which inter-alia mentioned that no permission shall be granted for conducting selection under CAS in any institute after 30/4/2013 as the institutes have to adopt implementation of 4-tier Cadre structure. It was also mentioned in the letter of MHRD that NIT Agartala may seek extension of time from the Hon’ble High Court for taking decision according to the direction issued by the Hon’ble High Court. It was also mentioned in the letter of MHRD that NIT Agartala may seek extension of time from the Hon’ble High Court for taking decision according to the direction issued by the Hon’ble High Court. Accordingly, on the basis of the prayer of NIT, Agartala, vide C.M. Application No. 102 of 2015 in WP (C) No. 97 of 2013 (DO), the Hon’ble High Court on 31.3.2015 granted time until 15.05.2015 to take a decision on its directions and to communicate the decision of the BoG to the petitioners by 31/05/2015. It is evident from the above that the decision in Agenda No. 32.16.8 taken in the 32nd BoG meeting in response to the directions of the Hon’ble High Court of Tripura is beyond the powers and jurisdiction of the BoG. Hence this decision of the 32nd meeting of BoG is not ratified. Since the decision of the NIT Council to dispense with CAS from April 30, 2013 is final and binding on all NITs, this meeting of BoG resolved that the BoG cannot process any case of CAS at NIT Agartala after April 30, 2013. As CAS cannot be considered, hence the apprehension of petitioners that they may be victimised for promotion is misplaced. This decision may be communicated to Dr. Prasun Chakraborti and three other petitioners of WP (C) No. 97 of 2013 (D.O.).” 33. It is apparent that the petitioners for their designation as the Associate Professors were not discarded from consideration. The petitioners, despite their designations as Associate Professors, were entitled to be considered under the CAS following the 5th CPC norms, but they were not considered for their movement/ promotion because of the communication made from the MHRD instructing that after 30.04.2013 no permission shall be granted for conducting selection under the CAS in any institute as those institutes have to adopt implementation of the 4-tier cadre structure. As such, there was no embargo in respect of the eligibility of the petitioners is concerned under the 5th CPC norms. If the said purported bar was not created by the MHRD, the petitioners would have been considered for CAS even after 30.04.2013. 34. (ii) WHETHER BY NOT CONSIDERING THE PETITIONERS FOR MOVEMENT/ PROMOTION TO THE POST OF PROFESSOR IN THE NIT AGARTALA UNDER THE CAS FOLLOWING THE 5TH CPC NORMS, THE RESPONDENTS HAVE ACTED ARBITRARILY OR NOT? If the said purported bar was not created by the MHRD, the petitioners would have been considered for CAS even after 30.04.2013. 34. (ii) WHETHER BY NOT CONSIDERING THE PETITIONERS FOR MOVEMENT/ PROMOTION TO THE POST OF PROFESSOR IN THE NIT AGARTALA UNDER THE CAS FOLLOWING THE 5TH CPC NORMS, THE RESPONDENTS HAVE ACTED ARBITRARILY OR NOT? From the Note No. 19 [part of Annexure-12 to the rejoinder filed in the writ petitions, except in W.P. (C) No. 251/2015] it appears that the petitioners were declared by the competent authority to be eligible for consideration for movement/ promotion to the post of Professor in the NIT Agartala under the CAS following the 5th CPC norms. Even though the respondents have filed the additional-affidavit to furnish their response as regards the averments made in the rejoinder, but they did not contest the veracity of the said report or the competence of its authors. As such, so far the eligibility is concerned, having regard to the said report and the decision as taken in the Special Meeting of the BoG, it is apparent that there was no cloud regarding eligibility of the petitioners for their consideration under the CAS following the 5th CPC norms. Even the stand that the Associate Professors were excluded is not borne any valid record and no reason whatsoever has been asserted by the respondents. Thus, this court declares hereby that the petitioners were eligible to be considered under the CAS following the 5th CPC norms. 35. Since the CAS following the 5th CPC norms admittedly was in force till 30.04.2013, the respondents were under obligation to consider the cases of the petitioners under the said CAS and by not considering their case they have denied an extant right of consideration arbitrarily and no reason has been given as to why their cases were not considered even though they were found eligible for consideration on 22.04.2013 (See Note No. 19, part of Annexure-12 of the said rejoinder). 36. In the considered opinion of this court, since an extant right was not acknowledged, the state action in this regard cannot be held constitutionally valid in view of caprice, arbitrariness and unreasonableness in the said action. The respondents have failed to show any fault of the petitioners for such non-consideration. 36. In the considered opinion of this court, since an extant right was not acknowledged, the state action in this regard cannot be held constitutionally valid in view of caprice, arbitrariness and unreasonableness in the said action. The respondents have failed to show any fault of the petitioners for such non-consideration. It is the admitted position that all the petitioners filed applications within due time and their applications were considered and all the petitioners before this court in this batch of writ petitions were found to be eligible for consideration for movement/promotion to the post of Professor in the NIT, Agartala under the said scheme by a selection committee, which is same as the selection committee for the direct recruitment. But no selection committee was constituted for that purpose and the respondents played dirge on the petitioners' right. This action cannot be absolved. Even the embargo as created by the MHRD, if at all, is declared unsustainable. 37. Having due regard to the ratio as laid down in Smt. Tara Sen (supra), this court is of the view that the respondents shall be directed to constitute a Selection Committee to consider the cases of the petitioners whether they are suitable to move to the post of Professor on or before 30.04.2013 under the CAS following the 5th CPC norms, within a period of 3(three) months from the date when the petitioners shall furnish a copy of this order to the respondents, having due regard to the observations made hereinabove. Accordingly, it is ordered. If the petitioners are found eligible to move to the post of Professors under the CAS following the 5th CPC norms, they shall be released all financial and service benefits from the day when they would be so moved to the post of Professors under the NIT Agartala in the respective branches. It is made clear that the embargo as put by the MHRD will have no impact in the cases of the petitioners. 38. In the result, all the Writ Petitions, being W.P. (C) No. 251/2015, W.P. (C) No. 399/2015, W.P. (C) No. 549/2015, W.P. (C) No. 550/2015, W.P. (C) No. 551/2015, W.P. (C) No. 553/2015, W.P. (C) No. 554/2015, W.P. (C) No. 555/2015, W.P. (C) No. 556/2015 and W.P. (C) No. 572/2015 stand allowed. There shall be no order as to costs.