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Uttarakhand High Court · body

2016 DIGILAW 323 (UTT)

Anil Kumar Gautam v. State of Uttarakhand

2016-07-11

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. Petitioner belongs to the Scheduled Caste Community. He has passed B.E. in the year 1999 in Electronics and Communication Engineering from Kumaon Engineering College, Dwarahat, District Almora in 1st division. He, later on, obtained Ph.D in the year 2007 in Electronics Engineering from the Indian Institute of Technology, Banaras Hindu University, Varanasi. Pursuant to Annexure 1 dated 18.08.2015 issued by the second respondent-College calling for applications for the post of Principal, the petitioner applied for the said post vide Annexure 2. In Annexure 1, notification, it is indicated, inter alia, that the essential qualification and the experience will be the same as prescribed by AICTE. The controversy to be resolved in this case revolves around the effect of the petitioner not possessing masters degree in Engineering branch, namely, Electronics and Communication Engineering. In short, having obtained B.E., he was enrolled for Ph.D. Programme and obtained Ph.D. 2. To resolve the said issue, we would necessarily have to find out what is the qualification mandated for the post of Principal under the AICTE Regulation. The AICTE Regulation in respect of degree courses in a technical institution is elaborated in Annexure 4 produced alongwith the writ petition. It is dated 22.01.2010. 3. In regard to the post of Principal what is provided is as follows:- Cadre Qualifications Experience Principal/Director Qualifications as above that is for the post of Professor, as applicable. Post Ph.D publications and guiding PhD students is highly desirable. Minimum of 10 years experience in teaching/research/Industry out of which at least 3years shall be at the level of Professor. Or Minimum of 13 years experience in teaching and/or Research and/or Industry In case of research experience, good academic record and books/research paper publications/IPR/patents record shall be required as deemed fit by the expert members of the Selection committee. If the experience in industry is considered, the same shall be at managerial level equivalent to 4. Therefore, we must ascertain what is the qualification for the post of professor. For the post of professor, the qualification is as follows:- Cadre Qualifications Experience Professor Qualifications as above that is for the post of Associate Professor, applicable. Post PhD publications and guiding PhD students is highly desirable. Minimum of 10 years teaching/research/industrial experience of which at least 5 years should be at the level of Associate Professor. For the post of professor, the qualification is as follows:- Cadre Qualifications Experience Professor Qualifications as above that is for the post of Associate Professor, applicable. Post PhD publications and guiding PhD students is highly desirable. Minimum of 10 years teaching/research/industrial experience of which at least 5 years should be at the level of Associate Professor. Or Minimum of 13 years experience in teaching and/or Research and /or Industry. In case of research experience, good academic record and books/research paper publications/IPR/patents record shall be required as deemed fit by the expert members of the Selection committee. If the experience in industry is considered, the same shall be at managerial level equivalent to Associate Professor with active participation record in devising/designing, planning, executing, analyzing, quality control, innovating, training, technical books/research paper publications/IPR/patents, etc. as deemed fit by the expert members of the Selection committee. In case of Architecture, Professional Practice of 10 years as certified by the Council of Architecture shall also be considered valid. 5. Necessarily, we have to find out what is the qualification for the post of Associate Professor and again therein, the qualification for the posts of Associate Professor and Assistant Professor as relevant is as follows:- Programme Cadre Qualifications Experience Engineering/Technology Asstt. Professor BE/B.Tech and ME/M.Tech in relevant branch with First Class or equivalent either in BE/B.Tech or ME/M.Tech Associate Professor Qualification as above that is for the post of Assistant Professor, as applicable and PhD or equivalent, inappropriate discipline. Post PhD publications and guiding PhD student is highly desirable. Minimum of 5 years experience in teaching/research/industry of which 2 years post PhD experience is desirable. In case of Architecture, Professional Practice of 5 years as certified by the Council of Architecture shall also be considered valid. 6. It is clear from the perusal of the aforesaid notification that it mandates possession of qualification of M.E./M.Tech in relevant branch in 1st class or equivalent to be appointed as Associate Professor. Thus, for the post of Assistant Professor while Ph.D is not provided for; when it comes to the post of Associate Professor, Ph.D or equivalent is also mandated. The same qualification is also rendered indispensable for the post of Professor as is provided for the post of Associate Professor. Besides the same, there are other aspects, with which we are not concerned, relating to experience. The same qualification is also rendered indispensable for the post of Professor as is provided for the post of Associate Professor. Besides the same, there are other aspects, with which we are not concerned, relating to experience. But as far as qualification for appointment to the post of Principal is concerned, it is indispensable to be considered for the post of Principal that, among other qualifications, a candidate must possess the qualification of M.E./M.Tech in the concerned subject in 1st division. Admittedly, the petitioner does not possess the qualification of M.E./M.Tech. Therefore, he would not be qualified. The petitioner applied pursuant to the advertisement dated 18.08.2015. Screening was held of the candidates and by proceedings dated 14.12.2015, among other candidates, the candidature of the petitioner was rejected. The said document has been produced alongwith the counter affidavit. Still later, interview was held of the eligible candidates on 20.01.2016. In the meantime, the petitioner approached this Court on 19.01.2016 and the Court ordered that the selection process may go on but the appointment letter shall not be issued till 24.02.2016. Interim order was extended from time to time. 7. We heard Mr. M.C. Pant, learned counsel for the petitioner, Mr. Pradeep Joshi, learned Standing Counsel for the State/respondent no.1 and Mr. Subhash Upadhyay, learned counsel for respondent nos.2 & 3. 8. Learned counsel for the petitioner would submit that the petitioner must be treated as qualified by virtue of clarification issued by AICTE dated 04.01.2016. The said clarification is produced before us alongwith the supplementary affidavit dated 04.06.2016. The said clarification is purported to be issued in exercise of power under Section 23 Sub Section (1) read with Section 10(1)(5) of the All India Council for Technical Education Act, 1987. Therein, we notice that it is notified on 04.01.2016; it is to apply to all technical institutions conducting technical education and such other courses/programmes and area notified by the Council from time to time. Under the heading “General” in clause (II) of the AICTE Regulations, it is provided as follows:- II. Therein, we notice that it is notified on 04.01.2016; it is to apply to all technical institutions conducting technical education and such other courses/programmes and area notified by the Council from time to time. Under the heading “General” in clause (II) of the AICTE Regulations, it is provided as follows:- II. General “AICTE has received several representations seeking clarifications on certain issues arising out of implementation of AICTE Regulations No.37-3/Legal/AICTE/2010 dated 05th March 2010 on revised Pay Scales, Service Conditions and Qualifications for the Teachers and other Academic Staff in Technical Institutions (Degree & Diploma) Regulations, 2010 (here in after referred as AICTE Regulations, 2010) and No.37-3/Legal/AICTE/2012 dated 8th Nov.2012 on Career Advancement Scheme for the Teachers and other Academic Staff in Technical Institutions (Degree & Diploma) Regulation, 2012 (here in after referred to as AICTE Regulations, 2012). Some of the issues raised from the AICTE previous Notifications have also been included”. 9. Petitioner drew our attention to the clarification provided as against entry at serial no.8, which is extracted as under:- Sl. No. Issue Clarification 8. Consideration of qualification B. Tech with Ph.D in appropriate technical discipline without completing M.Tech degree as an eligibility criterion for the appointment of faculty/Principal/Director in Technical Institutions. The qualification of Ph.D acquired for the various level of posts directly after B.E./B.Tech. is applicable in Technical institutions, provided degree of Ph.D awarded is in relevant discipline by a University following the process of registration, course work and evaluation etc. as prescribed by UGC or has been awarded by the Institutes of national importance (i.e. IITs/IISc/NITs etc.), duly recognized by the MHRD. Further, candidate should have obtained at least first class at Bachelor’s level in Engineering/Technology. 10. He would, therefore, contend that the matter is clarified by the competent body, namely, AICTE, whose prescription of the qualifications, the respondent college purported to follow in the advertisement dated 18.08.2015, pursuant to which, the petitioner made his application. Therefore, petitioner having obtained B.Tech and also Ph.D. must be treated as qualified; he has obtained Ph.D. from an Indian Institute of Technology. It is the case of the petitioner that in other Universities [i.e. Annexure 11] qualification is fixed as B.Tech along with P.h.D. 11. Next, he would draw our attention to paragraphs 15 & 16 of the writ petition, which read as follows:- “15. It is the case of the petitioner that in other Universities [i.e. Annexure 11] qualification is fixed as B.Tech along with P.h.D. 11. Next, he would draw our attention to paragraphs 15 & 16 of the writ petition, which read as follows:- “15. That the petitioner has applied information under RTI Act from the Public Information Officer of AICTE vide his application dated 03.06.2015 and sought the following information: i. Certified copy of the AICTE No.FD/PSSC/clarif/2003/1 dated 10.09.2003. ii. Certified copy of Annexure-1 of AICTE letter no.FD/PSSC/clarif/2003/1 dated 10.09.2003 iii. Certified copy of letter (if any) which supersede the decision taken by the committee for Item No.28(b). A copy of RTI application dated 03.06.2015 is being filed herewith and marked as Annexure No.5 to this petition. 16. That in response to his application and vide their reply dated 09.02.2015, the Public Information Officer of AICTE supplied copy of the letter dated 10.09.2003 and provided the information as sought by the petitioner, but not provided any information in respect of query no.3 meaning thereby, the letter dated 10.09.2003 is not being superseded and arbitrarily occupied the field. A copy of the letter dated 09.02.2015 along with letter dated 10.09.2003 is being filed herewith and marked as Annexure No.6 to this petition.” 12. They have not received any response from the respondents. Therefore, he would submit that even earlier under the clarification, which was issued, without having obtained M.Tech, persons were entitled to be appointed as Professor. For this, reliance is placed on the clarification that has been issued, which reads as follows:- “Item No.28 (b); Consideration of amendment in the AICTE prescribed minimum qualifications and experience for the post of Professors in degree level technical institutions.” Decision Taken: In case of candidates having only Bachelors degree in Engg./Tech. and completed Ph.D., the minimum qualifications & experience for the post of Professors in degree level technical Institutions should be as follows: ‘Ph.D. with First Class Bachelors degree in the appropriate branch of Engg/Tech. with 10 years experience in teaching industry/research out of which 5 years should be at the level of Assistant Professor and/or equivalent.’ 13. Therefore, he would submit that the clarification must apply to the case of the petitioner and the petitioner be treated as qualified. 14. Thirdly, he would draw our attention to Article 335 of the Constitution of India, which reads as follows:- “335. Therefore, he would submit that the clarification must apply to the case of the petitioner and the petitioner be treated as qualified. 14. Thirdly, he would draw our attention to Article 335 of the Constitution of India, which reads as follows:- “335. Claims of Scheduled Castes and Scheduled Tribes to service and posts.- The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: [Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.]” 15. He would submit that the proviso contemplates lowering of qualification for members of the Scheduled Caste Community and, therefore, petitioner must pass muster in the matter of qualification. 16. Per contra, the submission of the learned counsel for the respondents is that the petitioner did not possess the qualification as provided earlier by AICTE. Even as on the date when the candidature of the petitioner was overruled by the screening committee, namely, on 14.12.2015, there was no clarification issued by AICTE. The clarification issued by AICTE must be treated as having prospective operation as it has the effect of creating a new right in favour of the person, who did not possess M.E./M.Tech. As far as clarification issued in the year 2003 is concerned, it is contended that the clarification would not help to advance the case of the petitioner, as after issuance of the Regulations in the year 2010, wherein for the post of Principal, qualifications as provided for the post of professor are adverted to and are clearly spelt out, which includes the possession of post graduation in concerned subject, the earlier clarification issued in the year 2003 would not continue to hold good. 17. 17. The issue which we must consider is, whether the petitioner is qualified in the light of the subsequent clarification issued, as bereft of the clarification and subject to our decision on the effect of 2003 Regulations, clearly, petitioner is not qualified in terms of the Regulation issued on 22.01.2010. The advertisement is issued after the promulgation of the said Regulations, namely, on 18.08.2015. 18. If the clarification is held to apply in the present case, there is not much controversy that the petitioner would be qualified. But the question is, whether it can apply? The advertisement in this case is dated 18.08.2015. The petitioner applied pursuant to the same. As the last date for receipt of the application was 15.09.2015, the qualification ordinarily must be determined with reference to the last date provided for making an application. Going by the Regulations issued in 2010, which we have adverted to, it clearly shows that the petitioner was not qualified to be appointed as Principal as he did not possess M.Tech in the concerned subject. Then the question is, whether the clarification issued on 04.01.2016 will advance the case of the petitioner? We are of the view that the clarification issued by AICTE can have only prospective operation. In regard to the operation of statute, we notice the following discussion in the work “PRINCIPLES OF STATUTORY INTERPRETATION” by Justice G.P. Singh’s Eighth Edition 2001, which reads as follows: (i) Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statues. As stated in CRAIES and approved by the Supreme Court: “For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word ‘declared’ as well as the word ‘enacted”’. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word ‘declared’ as well as the word ‘enacted”’. But the use of the words ‘it is declared’ is not conclusive that the Act is declaratory for these words may, at times, be used to introduce new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain’ an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statue is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant’ or ‘shall be deemed never to have included’ is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the preamended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force, the amending Act also will be part of the existing law. The above statement of the law relating to the nature and effect of a declaratory statute has been quoted with approval by the Supreme Court from earlier editions of this book in a number of cases. “In Mithilesh Kumari v. Prem Bihari Khare, section 4 of the Benami Transactions (Prohibition) Act, 1988 was, it is submitted, wrongly held to be an Act declaratory in nature for it was not passed to clear any doubt existing as to the common law or the meaning or effect of any statute. “In Mithilesh Kumari v. Prem Bihari Khare, section 4 of the Benami Transactions (Prohibition) Act, 1988 was, it is submitted, wrongly held to be an Act declaratory in nature for it was not passed to clear any doubt existing as to the common law or the meaning or effect of any statute. The conclusion, however, that section 4 applied also to past benami transactions may be supportable on the language used in the section.” These observations and criticism of Mithilesh Kumari’s case also received the approval in R. Rajgopal Reddy v. Padmini Chandrasekharan where the Supreme Court after quoting them (from 5th Edition pp.315, 316) said: “No exception can be taken to the above observations”. 19. Therefore, a clarificatory amendment, which clarifies the meaning of an expression, which may be ambiguous or lend itself to more meaning than one and on the matter being clarified, it could have retrospective effect. Even applying the principle that a clarificatory amendment could have retrospective operation, we would think that there is no scope for applying the said principle to the clarification issued in this case. This was for the reason that there was no ambiguity in the meaning to be given to the words used in the Regulations issued on 22.01.2010. Questions, no doubt, apparently were raised as to whether, in regard to the post of Principal, M.Tech is required, when the candidate has passed B.Tech and straightway done P.h.D. It was this aspect, which engaged the attention of AICTE and, under the heading “clarification”, it has issued statutory Regulation, which came into effect on 04.01.2016 as it was admittedly, notified in the Gazette on that date. We are concerned, therefore, with subordinate legislation and being subordinate legislation, ordinarily it would have prospective operation. The clarification in this case has the effect of creating a right in favour of those candidates, who have B.Tech and without passing M.Tech, have obtained P.h.D. This is a creation of a new right and it could have operation only in future. To test the above hypothesis, we will ask ourselves the question, namely, if we were to place contrary interpretation, what would be the effect? Could it be said that the clarification would entitle persons, who did not possess M.Tech in between 22.01.2010 and the date of the clarification, to question the appointment of Principal made after 22.01.2010. To test the above hypothesis, we will ask ourselves the question, namely, if we were to place contrary interpretation, what would be the effect? Could it be said that the clarification would entitle persons, who did not possess M.Tech in between 22.01.2010 and the date of the clarification, to question the appointment of Principal made after 22.01.2010. We are of the clear view that AICTE would not have such an intention. It was no doubt, issued as clarification, but having regard to the scope and context of the clarification, it is intended to create a new right and the creation of a new right, in our view, cannot have effect of undoing the general principle that the question as to qualification must be decided with reference to the last date mentioned for considering the applications under the advertisement. As already noted the clarification was not made as, on the last date, as well as on the date on which screening took place. Not unnaturally, the petitioner was found not eligible. 20. In this regard, there is a case for the respondents that the said communication rejecting candidature of the petitioner has not been challenged. In this regard, we notice the prayer of the petitioner, which is extracted below:- “(i) Issue a writ rule or direction in the nature of mandamus directing to the respondents to consider the case of the petitioner for direct recruitment for the post of Professor pursuant to the advertisement dated 18.08.2015 treating him eligible and keeping in view the AICTE recommendations as well as UGC Regulations and to quash any order which is in power and possession with the respondents and not communicated to the petitioner for non considering his case for interview for the post of Director by issuing writ rule or direction in the nature of certiorari after calling the same with entire records from the respondents after calling the entire records from the respondents alongwith its effect and operation also.” 21. We would not lay much store by the contention of the respondents in this regard. We would have had there been merit in the case of the petitioner overlooked this aspect, as the petitioner has while not directly laid a challenge to the decision, as it was not communicated to him and according to him, was produced alongwith the counter affidavit sought relief as above. We would have had there been merit in the case of the petitioner overlooked this aspect, as the petitioner has while not directly laid a challenge to the decision, as it was not communicated to him and according to him, was produced alongwith the counter affidavit sought relief as above. But as we have already noticed, this is not the reason why we do not find favour with the case of the petitioner. 22. Coming to the next contention based on the earlier clarification in the year 2003, we would think that the petitioner also may not have a case as the said clarification issued in the year 2003 cannot hold good after promulgation of the Regulations of 2010. The subsequent promulgation laid bare the new set of qualifications, which would, after the date of notification, hold good over whatever may have been the relaxation given for appointment as professor under the clarification of 2003. In other words, it would not hold good to the extent, where it is inconsistent with the statutory Regulations, which have been promulgated by AICTE in the year 2010. Under 2010 Regulations, for the post of Professor, possession of qualification of M.Tech is mandatory, as we have already noticed. We may also in this regard, notice that in regard to the notification dated 04.01.2016, nothing is clarified regarding the post of Professor. Therefore, we would not think that neither clarification of 2003 would hold good or clarification of 2016 would come to the rescue of the petitioner. 23. The last remaining contention is based on the proviso to Article 335 of the Constitution of India. We are of the view that there is absolutely no basis for the petitioner to lay store by Article 335 of the Constitution of India, as there is no relaxation under Article 335 of the Constitution of India available to the petitioner being a member of the Scheduled Caste community, which is brought to our notice, entitling him to be appointed as Principal without being in possession of qualification of M.Tech. 24. 24. We may also bear in mind the fact that acceptance of the contention of the petitioner would result in a situation where we would have to recognize the petitioner as qualified on the basis of the clarification issued subsequently, which would leave out of consideration other persons, who may have applied, had they also known that they would be qualified under the clarification being given retrospective effect. 25. The upshot of the above discussion is that the petitioner has not made out a case. Writ petition is dismissed. No order as to costs. Learned counsel for the petitioner Mr. M.C. Pant, sought Leave Certificate under Article 134-A read with Article 134 of the Constitution of India. We do not perceive any question of general importance, which is required to be decided by the Apex Court and we decline the certificate to the petitioner.