Gelus Ram Sahu And Others vs Dr. Surendra Kumar Singh And Others

,,,,,

Leave Granted.,,,,,

The appellants are aggrieved by the order dated 28.09.2016 of the High Court of Chhattisgarh through which the writ petition filed by Surendra,,,,,

Kumar Singh (Respondent No. 1) seeking declaration of Ph.D. being an essential qualification for the post of Principal at the Polytechnic colleges,,,,,

was allowed and consequently appointment of the appellants were quashed for want of the said qualification.,,,,,

FACTS,,,,,

Respondent No. 1 started teaching as a lecturer of electrical engineering at the Govt Polytechnic College, Ambikapur on 10.11.1993 and was",,,,,

promoted as the Head of Department (hereinafter, “HODâ€) of electrical engineering at the Govt Polytechnic, Durg from 03.03.2009. He is",,,,,

presently working at Govt. Polytechnic, Kabirdham with additional responsibility of PrincipalÂinÂcharge. Having completed three years of service as",,,,,

HOD on 01.01.2012, Respondent No. 1 applied for the post of Principal in response to the process of promotion initiated by the State of Chhattisgarh",,,,,

(Respondent No. 2) in 2014. Along with Respondent No. 1, numerous other serving HODs (including the seven appellants herein) too participated in",,,,,

the selection process. Whereas Appellants No. 1 to 7 were declared successful through notification dated 25.06.2014, the 1st respondent did not figure",,,,,

in the selection list.,,,,,

Respondent No. 1 being aggrieved approached the High Court, complaining that his fundamental rights stood violated as the promotion process was",,,,,

in contravention of the ‘Pay Scales, Service conditions and Qualifications for the Teachers and other Academic Staff in Technical Institutions",,,,,

(Diploma) Regulations, 2010’ (hereinafter, “2010 AICTE Regulationsâ€). These regulations were framed by All India Council for Technical",,,,,

Education (Respondent No. 3, hereinafter “AICTEâ€) in exercise of its powers conferred under the AICTE Act, 1987 which has been enacted by",,,,,

Parliament with reference to Entry 66 of the Union List contained in Schedule VII of the Constitution; and is thus binding on the State of Chhattisgarh,,,,,

(Respondent No. 2). The ‘Chhattisgarh Technical Education (Teaching cadreÂPolytechnic) (Gazetted) Service Recruitment Rules, 2014’",,,,,

(hereinafter, “2014 Chhattisgarh Rulesâ€), in so far as they allow candidates without Ph.D to be appointed as Principals, were contended to be",,,,,

illegal for being in contravention of the 2010 AICTE Regulations whereunder, according to respondent No. 1, Ph.D degree was a mandatory",,,,,

qualification for the post of Principal.,,,,,

Respondent No. 1 butressed his superior claim highlighting that he had the requisite threeÂyear HOD experience and there was no complaint or,,,,,

disciplinary enquiry pending against him. On the other hand, he urged that the appellants had been promoted though none of them was having Ph.D",,,,,

qualification. He further alleged several other irregularities in the selection process, including the below specification ACR gradings possessed by",,,,,

certain candidates. Accordingly, Respondent No. 1 sought quashing of the 2014 Chhattisgarh Rules and the promotion order dated 25.06.2014; review",,,,,

of the proceedings conducted by the Departmental Promotion Committee and the grading awarded to him in his Annual Confidential Reports of 2012,,,,,

and 2013, and further sought resultant reconsideration of his case for promotion from HOD to Principal.",,,,,

The High Court viewed that the 2010 AICTE Regulations were binding, and relying upon a decision of the High Court of Kerala inB Ajith Kumar",,,,,

v. State of Kerala (2009) 3 KLJ 563, it held that the State Government could not lower the qualification threshold. Further, the High Court interpreted",,,,,

the AICTE criteria to imply that Ph.D was mandatory for appointment/promotion as ‘Principal’ and any ambiguity which could plausibly have,,,,,

existed in the initial formulation of 2010 AICTE Regulations, had been clarified through the ‘All India Council for Technical Education (clarifications",,,,,

on certain issues/anomalies pertaining to Qualifications, Pay Scales, Service Conditions, Career Advancement Schemes (CAS) etc. for Teachers and",,,,,

other Academic Staff of Technical Institutions Degree/Diploma), 2016’ (hereinafter, “2016 AICTE Notificationâ€) which although published",,,,,

on 04.01.2016 would operate retrospectively being clarificatory in nature.,,,,,

Consequently, the High Court quashed the incongruous parts of 2014 Chhattisgarh Rules.",,,,,

The High Court further observed how Appellant No. 1 was Chairman of the very Committee which drafted the 2014 Chhattisgarh Rules, making",,,,,

him an interested party. Noting yet other infirmity regarding the date of publication of 2014 Chhattisgarh Rules in the official gazette, the High Court",,,,,

quashed the order promoting Appellant Nos. 1 to 7 to the posts of Principal of the Polytechnic Colleges.,,,,,

CONTENTIONS,,,,,

The distressed appellants contend before us that there existed no ambiguity in the 2010 AICTE Regulations. These regulations clearly mention,,,,,

“or†between two sets of qualifications, one in which Ph.D was specified and the other without such prescription. It is submitted that the High",,,,,

Court could hence not have read it in a manner which converted “or†into “andâ€. It was further submitted that even if any ambiguity existed,",,,,,

it was not open for the AICTE to retrospectively introduce an eligibility condition in a manner which would expropriate the appellants of their vested,,,,,

rights.,,,,,

Highlighting how seven out of nine positions would remain vacant in case a Ph.D degree was mandated as an essential qualification for the posts of,,,,,

Principal in polytechnic colleges in Chhattisgarh, the appellants vociferously sought intervention of this Court. They further urged that having",,,,,

participated in the process of promotion, Respondent No. 1 had acquiesced to the interpretation and understanding of the Rules made by Respondent",,,,,

No. 2, and the former was now estopped from challenging the validity of the selectionÂ​ process or of the 2014 Chhattisgarh Rules.",,,,,

Respondent No. 1, on the other hand, reiterated that the AICTE is a statutory body established by the Parliament through the All India Council for",,,,,

Technical Education Act, 1987, and thus enjoys complete supremacy and superintendence over determination of standards for technical education. All",,,,,

technical institutions across the country are obliged to adhere to the minimum standards laid down by AICTE. Supporting the High Court’s,,,,,

interpretation, he maintains that since the 2010 AICTE Regulations mandated ‘Ph.D in Engineering’ as one of the essential qualification for the",,,,,

post of Principal, the 2014 Chhattisgarh Rules were ultra vires for having impermissibly relaxed mandatory qualifications. The 1st Respondent adverts",,,,,

to certain other procedural irregularities in framing and publication of the 2014 Chhattisgarh Rules, and additionally alleges that Respondent No. 2 not",,,,,

only violated the Chhattisgarh Public Service Promotion Rules, 2003 but also arbitrarily altered the minimum grading requirement to favour certain",,,,,

candidates.,,,,,

Respondent No. 3 (AICTE) has submitted that it was not their case that candidates who had already been promoted to the posts of Principal,,,,,

despite not possessing Ph.D, should be removed. Drawing attention to various relevant provisions of the 2010 AICTE Regulations read with the 2016",,,,,

AICTE Notification, learned counsel for AICTE urged that any interpretation by this Court holding Ph.D mandatory ought only be prospective in",,,,,

application, and not retrospective.",,,,,

ANALYSIS,,,,,

Post,Qualifications,Experience,,,

Head of Department,,,,,

Engineering / Technology,"Bachelor’s and Masters degree of appropriate branch in Engineering /

Technology with First Class or equivalent either Bachelor’s or Master’s

level

OR

Bachelor’s degree and Master’s degree of appropriate branch in

Engineering / Technology with First Class or equivalent either Bachelor’s o

Master’s level

andÂ

Ph. D or equivalent, in appropriate discipline in Engineering / Technology","Minimum of 10 years relevant

experience in teaching / research /

industry.

r

Minimum of 5 years relevant

experience in teaching / research /

industry",,,

NOTE: Since the qualifications and experience for the post of Heads of Pharmacy, Hotel Management & Catering Technology and

Architecture Departments are also identical except that the qualification and experience must be only in the relevant subjects, the same have not

been reproduced to avoid multiplicity.",,,,,

Sl. No.,"Name of posts

included in

service","Minimum age

limit","Maximum age

limit","Prescribed

educational education",Remarks

1,2,3,4,5,6

1,Principal,Â​-,58 years,"(1) Bachelor and

Master degree of

appropriate branch in

Engineering/

Technology from a

recognized

University/Institute

with First Class or

equivalent at either

Bachelor’s or

Master’s

level.

(2) Minimum of 15

years relevant

experience in

teaching/research/

industry out of which

at least 03 years shall

b e at the level of

head

of department.

OR

(1) Bachelor and

Master degree of

appropriate branch of

Engineering/

Technology from a

Recognized

University /Institute

with First Class or",

,,,,,

,,,,,

,,,,"equivalent at either

Bachelor’s or

Master’s

level and Ph.D or

equivalent in

appropriate discipline

in Engineering/

Technology from a

recognized

University/Institute.

(2) Minimum of 10

years relevant

experience in

teaching/research/

industry out of which

at least 03 years shall

be at the level of

head of department

or equivalent.",

1,"Civil/Mechanic

al/Electrical/El

ectronics/Â

InformationÂ

Technology/Â

Instrumentatio

n/Metallurgy/

Mining/Chemic

al/ComputerÂ

Science andÂ

Engineering",-,58 years,"Bachelor’s and

Master’s degree

of

appropriate branch

in Engineering/

Technology from a

recognized

University/Institute

with First Class or

equivalent at either

Bachelor’s or

Master’s level.

OR

Bachelor’s and

Master’s degree

of

appropriate branch

in Engineering/

Technology from a

recognized University

/Institute with First

Class or equivalent at

either Bachelor’s

or Master’s level

and

Ph.D or equivalent in

appropriate

discipline in

Engineering/

Technology from a

recognized

University/Institute.","Minimum of

10 years

relevant

experience

in teaching/

research/

industry.

Minimum of

05 years

relevant

experience

in teaching/

research/

industry.

xxx,xxx,xxx,xxx,xxx,xxx

SI. No.,Issue,Clarification,,,

64.,"Whether Ph.D is an essential qualification for the Post o

Principal in Diploma Level Technical Institutions.",fYes,,,

The law on vested rights in service matters has exhaustively been elaborated in Railway Board v. Rangadhamiah (1997) 6 SCC 623, wherein it",,,,,

has been stated:,,,,,

“20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the",,,,,

ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit",,,,,

which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the",,,,,

extent it operates retrospectively.,,,,,

xxx,,,,,

In many of these decisions the expressions “vested rights†or “accrued rights†have been used while striking down the impugned,,,,,

provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment,",,,,,

etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered",,,,,

with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an,,,,,

amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is,,,,,

arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. ...â€​",,,,,

The aforestated principle would apply with equal force on the outcome of judicial review also and any new meaning given to a set of,,,,,

Rules/Regulations by the court of law would not ordinarily unsettle the settled appointments or conferment of other service benefits. We are,",,,,,

nevertheless, fully conscious of the legal position that appointment of a candidate who has erroneously secured public employment without fulfillment",,,,,

of minimum qualifications can always be annulled upon discovery of mistake. An appointment which is erroneous or illegal from the very inception,,,,,

does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions.,,,,,

There is no quarrel that the appellants herein do not possess Ph.D. However, they satisfied the requirement of having fifteen years’",,,,,

experience (of which at least three years was as HOD) under the 2014 Chhattisgarh Rules and were found suitable for promotion by the,,,,,

Departmental Promotion Committee on the basis of various other material. They have also been found in possession of one of the eligibility criteria,,,,,

prescribed under the 2010 AICTE Regulations. We are, thus, of the considered opinion that the appellants’ appointments ought to remain",,,,,

undisturbed in any eventuality.,,,,,

This takes us to the last objection taken by the High Court regarding ‘conflict of interest’. It is not in dispute that the State Government had,,,,,

inducted Appellant No. 1 in a Committee which submitted the draft service rules. It is, however, difficult to accept (nor has it been alleged) that the",,,,,

said appellant held a position through which he could influence the ruleÂmaking authority to exercise its powers under Proviso to Article 309 of the,,,,,

Constitution as per his wishes. He was holding too small a position that no inference of his dominance in the decision making process can be drawn.,,,,,

CONCLUSION,,,,,

In the light of the above discussion, the appeals are allowed. The judgment of the High Court is set aside and the writ petition filed by Respondent",,,,,

No. 1 challenging the promotion of appellants is dismissed but without any order as to costs.,,,,,