Mrinal kanti Bhowmik VsThe State of Tripura

S.C. Das, J.—By filing this writ petition, the petitioners, inter alia, prayed for quashing/setting aside Notification dated 31.03.2005(Annexure-P/6 to the writ petition), issued by the Secretary, Tripura Public Service Commission (respondent No. 4) by which the private-respondents (respondent Nos. 5 to 8) were recommended for appointment to the posts of Assistant Professor in Civil Engineering of Tripura Engineering College (for short ''TEC'') and also prayed for directing the official respondents to hold the petitioners as eligible for selection to the posts of Assistant Professor(Civil Engineering) of TEC and further prayed for quashing/cancelling and/or setting aside the offer of appointments issued to the private respondent Nos. 5 to 8 for the posts of Assistant Professor of TEC.

Heard learned senior counsel, Mr. K.N. Bhattacharji, assisted by learned counsel, Mr. S. Acharjee, for the petitioners, learned Government Advocate, Mr. T.D. Majumder for the State-respondent Nos. 1 to 3, learned counsel, Mr. P. Datta for the respondent No. 4, Tripura Public Service Commission, learned senior counsel, Mr. S.M. Chakraborty, assisted by learned counsel, Ms. B. Chakraborty for the private-respondent Nos. 5 to 8 and learned Sr. Assistant SG, Mr. P.K. Biswas for the respondent No. 9, National Institute of Technology.

Pursuant to advertisement No. 2/2004, dated 01.03.2004, published by the Tripura Public Service Commission (respondent No. 4) in different newspapers, for the 17 posts of Assistant Professor, Group-A Gazetted, of TEC, the petitioners, private respondent Nos. 5 to 8 and others applied for appointment to the posts of Assistant Professor. The essential qualification for technical teaching post has been categorically mentioned in the advertisement, which reads as follows:-

(4) 17(seventeen)(3 reserved for SC and 5 for ST) tmp. Posts of Assistant Professor, Group-A Gazetted, Tripura Engineering College, Barjala, Tripura under the Education(Higher) Department in the following disciplines : Scale of pay Rs. 12,000-18,300/-(AICTE scale, 1996) plus admissible allowances :

ESSENTIAL QUALLIFICATION : (A) FOR TECHNICAL TEACHING POST:

(I) Ph.D. Degree with the First Class Degree at Bachelor''s or master''s level in the appropriate branch of Engineering/Technology with 3(three) years experience in Teaching/Industry/Research at the level of Lecturer or equivalent. OR First Class Degree at Master''s level in the appropriate branch of Engineering/Technology with 5(five) years experience in Teaching/Industry at the level of Lecturer or equivalent. Such candidates will be required to obtain Ph.D. Degree within a period 7(seven) years from the date of appointment of Assistant Professor. (B) FOR CANDIDATES FROM INDUSTRY & PROFESSION: (I) Candidates from Industry/Profession with First Class Bachelor''s Degree/First Class Master''s Degree in the appropriate branch of Engineering/Technology AND Professional work which is significant and can be recognised as equivalent to Ph.D. Degree and with 5(five) years Industrial/Professional experience would also be eligible.

The petitioners contended that they all are having with the degree at Master''s level (M.E.). Petitioner Nos. 1 and 2 are working as Executive Engineer under the Public Works Department of the Government of Tripura and the petitioner No. 3 is working as an Assistant Engineer under the same department and that petitioner No. 1 gathered 15 years of experience and petitioner No. 2 gathered 6 years and petitioner No. 3 gathered 10 years of experience in the meantime as a members of the Tripura Engineering Services under the Government of Tripura. The petitioners applied for the posts of Assistant Professor with all their testimonials and they claimed that they were eligible candidates for the posts, but respondent No. 4, Tripura Public Service Commission, illegally and wrongly did not invite them for the interview, whereas, the private respondent Nos. 5 to 8 were called for the interview and selected. It is also contended by the petitioners that the private respondent Nos. 5 to 8 had no minimum experience as required in the advertisement and so, their selection was wrong and illegal and pursuant to such selection their appointment to the posts of Assistant Professor was also illegal and not tenable in law.

The respondents contended that after the applications were received from various candidates, respondent No. 4 took up the issue with respondent No. 1 to determine the eligibility criteria of the applicants. Accordingly, respondent No. 1 took up the issue with the All India Council for Technical Education (for short ''AICTE) and respondent No. 1 received communication from AICTE regarding minimum qualification and experience required for the post of Assistant Professor in degree level in Technical Institution and accordingly, respondent No. 1 communicated the decision about eligibility criteria to respondent No. 4 by writing letter dated 18.08.2004 (Annexure-C to the counter affidavit of respondent No. 4), which reads as follows:-

No. F.1(620)-DHE/Estt(G)/01

Government of Tripura

Education(Higher) Department

******

Dated, Agartala, the 18-08-2004.

To

The Secretary,

Tripura Public Service Commission,

Agartala, Tripura West.

Sub :-Requisition for direct recruitment to the post of Assistant Professor, Tripura Engineering College, Barjala, Tripura West.

Sir,

I am directed to refer to your letter No. F.66(46)-TPSC/2001 dated 17-06-2004 on the subject cited above and to say that the matter was taken up with the All India Council for Technical Education,(AICTE) wherein the said organisation has opined as follows:

"it is to clarify, with regard to Professional Work of a person, working in industry/profession may treated as equivalent to Ph.D. degree that the Screening/Selection Committee/Board of Governors can take suitable decision on the matter."

(Copy of the said letter is enclosed)

In view of the above perspective, I am to request you kindly to take immediate recruitment action for filling up of the above mentioned posts considering the acute shortage of teachers at Tripura Engineering College.

Yours faithfully,

Sd/- 18.8.04

(Ms. Soma Deb)

Under Secretary to the

Government of Tripura.

5.1. Pursuant to above communication, respondent No. 4 constituted a Screening Committee consisting of expert members headed by the Chairman of Tripura Public Service Commission by Notification dated November 8, 2004 (Annexure-E to the counter affidavit of respondent No. 4). The said Notification reads as follows:-

No. F.66(46)-TPSC/2001/5749-52

TRIPURA PUBLIC SERVICE COMMISSION

AGARTALA

AGARTALA

November 8, 2004

NOTIFICATION

A Screening Committee has been constituted by the Tripura Public Service Commission for determining the eligibility of the candidates for the post of Assistant Professor, Tripura Engineering College, Barjala, West Tripura from outside the University system in view of the opinion of the AICTE vide, their letter No. F.D/PSSC/2004-05/13 dated 09.08.2004 and as communicated by the Education (Higher) Department, Government of Tripura vide, their letter No. F.1(620)-DHE/Estt(G) dated 18-08-2004 with the following dignitaries :-

Shri B.K. Dev Burman Chairman, Tripura Public Service Commission.

Prof. (Dr.) S. Chakraborty, Principal (Retired),

Tripura Engineering College, Barjala, Agartala.

Prof. (Dr.) J.C. Pal, Principal (Retired),

Murshidabad College of Engineering & Technology, West Bengal.

Prof. (Dr.) Samir Kr. Saha,

Head of the Department of Mech. Engineering, Jadavpur University, West Bengal.

The Committee may submit their report by 4th December, 2004.

The Committee may also prepare a general guideline for determining the eligibility of such candidates.

By order of the Commission,

Sd/-8.11.2004

(M.C. DATTA)

SECRETARY"

5.2. The above Committee held its meeting on 04.12.2004 in the Office of the Chairman, Tripura Public Service Commission and the minutes of the meeting of the Scrutiny Committee annexed as Annexure-H to the counter affidavit of respondent No. 4. The Committee found 5 candidates out of 25 candidates as eligible for the posts of Assistant Professor in Civil Engineering, 5 candidates out of 14 candidates for the posts of Assistant Professor in Mechanical Engineering, 4 candidates out of 15 candidates for the posts of Assistant Professor in Electrical Engineering and 1 candidate out of 4 candidates for the post of Assistant Professor in Computer Engineering. Pursuant to that report of the Screening Committee, Tripura Public Service Commission selected the private-respondents and other eligible candidates for the posts of Assistant Professor in different disciplines and appointment letters were issued. Respondents contended that since the petitioners were not having with the required experience as prescribed under the rules and published in the advertisement, their candidature for the posts of Assistant Professor for technical teaching post could not be accepted and they were rightly excluded from consideration. No fundamental rights of the petitioners were violated and hence, the writ petition should be dismissed.

A copy of the Recruitment Rules made under Article 309 of the Constitution of India for recruitment to the posts of Assistant Professor of TEC has been annexed as Annexure-K to the counter affidavit of respondent No. 4 and Annexure-R/1 to the counter affidavit of respondent Nos. 1 and 2. In Item No. 7 of the Recruitment Rules, educational and other qualification required for direct recruitment for technical teaching post has been prescribed, which reads as follows :-

"7. Educational and other A. FOR TECHNICAL TEACHING qualification required for direct POSTS.

recruitment: I) Ph.D. Degree with the first class Degree at Bachelor''s or Master''s level in the appropriate branch of Engineering/Technology with 3(three) years experience in Teaching/Industry/Research at the level of Lecturer or equivalent,

OR

First class Degree at Master''s level in the appropriate branch of Engineering/Technology with 5(five) years experience in Teaching/Industry at the level of Lecturer or equivalent. Such candidates will be required to obtain Ph.D. Degree within a period of 7(seven) years from the date of appointment as Assistant Professor.

B. FOR CANDIDATES FROM INDUSTRY AND PROFESSION.

(I) Candidates from Industry/Profession with first class Bachelor''s Degree/first class Master''s Degree in the appropriate branch of Engineering/Technology AND

Professional work which is significant and can be recognized as equivalent to Ph.D. Degree and with 5(five) years Industrial/Professional experience would also be eligible."

Mr. Bhattacharji, learned senior counsel has submitted that the petitioners are having with the requisite qualification of Master''s degree in Engineering and they have been working as Executive Engineer/Assistant Engineer in the Public Works Department of the Government of Tripura for more than 5 years at the time when the advertisement was made and so, they are eligible on the both count of qualification and experience to face the interview for the posts of Assistant Professor. According to Mr. Bhattacharji, learned senior counsel, a meticulous reading of the prescribed experience makes it clear that experience in Teaching/Industry should be taken into consideration and in the case of the petitioners, since they are working under the Government of Tripura in Engineering Department having requisite qualification, they should be treated as having gathered experience in the "Industry" and the Public Works Department for the purpose may be treated as an ''Industry'' and, therefore, the petitioners are eligible candidates for the posts of Assistant Professor of TEC.

On the other hand, learned counsel, Mr. P. Datta for respondent No. 4, learned Government Advocate, Mr. T. Datta Majumder for respondent Nos. 1 to 3 and learned senior counsel, Mr. S.M. Chakraborty for respondent Nos. 5 to 8 contended that Public Works Department of the Government of Tripura cannot be termed as an ''Industry'' and further experience must be in the line of teaching whether it is Industry or Research. Working in the Public Works Department of the Government in no way be termed as experience for the purpose of teaching in technical education and hence, the Tripura Public Service Commission rightly arrived at a conclusion that the petitioners were not eligible candidates for the posts and, therefore, the Scrutiny Committee, consisting of experts, constituted by the Public Service Commission to determine the eligibility criteria as per AICTE norms rightly excluded the petitioners from the zone of consideration. It is also contended by learned counsel of the respondents that as per AICTE guidelines, the independent Scrutiny Committee consisting of experts from the field was constituted by the Public Service Commission and that the Scrutiny Committee in the minutes of its meeting (Annexure-H to the counter affidavit of respondent No. 4) has determined as to who were eligible candidates as per the criteria of AICTE norms and that decision of the Scrutiny Committee has not been challenged by the petitioners on the basis of which the interview was conducted for selection of candidates and hence, the petitioners have no case at all for consideration and the writ petition, therefore, liable to be dismissed.

Indisputably the petitioners are having with Master''s degree in Engineering in their particular branch and they are working as members of the Tripura Engineering Services under the Public Works Department of the Government of Tripura admittedly for more than 5 years. The core question is whether their experience of working in the Public Works Department of the Government of Tripura is an eligible experience for the purpose of technical teaching post is to be determined in this writ petition.

The Recruitment Rules prescribed essential qualification for technical teaching post which has already been reproduced herein before. In the advertisement (Annexure-1 to the writ petition), as reproduced herein before, the same qualification has been mentioned. It is mentioned in Heading ''B'' that the candidates from Industry/Profession with First Class Bachelor''s Degree/First Class Master''s Degree in the appropriate branch of Engineering/Technology and Professional work which is significant and can be recognised as equivalent to Ph.D. Degree and with 5 years Industrial/Professional experience would also be eligible. The petitioners have 5 years experience in their own trade under the Government of Tripura in the Public Works Department and now, whether that experience amounts to Industrial/Professional experience is the key issue to be determined here.

According to the expert Committee, constituted by the Tripura Public Service Commission, the experience of the petitioners in their own trade as an Executive Engineer/Assistant Engineer under the Government of Tripura in the Public Works Department was not a required experience for the purpose of technical teaching post. Learned senior counsel, Mr. Bhattacharji has contended that the Public Works Department of the Government of Tripura should be recognized as an ''Industry'' for all practical purposes and so, the experience of the petitioners of their working in the Public Works Department should be taken into consideration. He referred Black''s Law Dictionary, wherein the word ''Industry'' means any department or branch of art, occupation, or business conducted as a means of livelihood or for profit; especially, one which employs much labor and capital and is a distinct branch of trade.

The word ''Industry'' has been defined in Section 2(j) of the Industrial Disputes Act, 1947, which reads thus :-

(j) "industry" means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--

(i) any capital has been invested for the purpose of carrying on such activity; or

(ii) such activity is carried on with a motive to make any gain or profit, and includes--

(a) any activity of the Dock Labour Board established u/s 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);

(b) any activity relating to the promotion of sales or business or both carried on by an establishment.

but does not include--

(1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.

Explanation.--For the purposes of this sub-clause, "agricultural operation" does not include any activity carried on in a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951); or

(2) hospitals or dispensaries; or

(3) educational, scientific, research or training institutions; or

(4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or

(5) khadi or village industries; or

(6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or

(7) any domestic service; or

(8) any activity, being a profession practised by an individual or body or individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or

(9) any activity, being an activity carried on by a cooperative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten;"

Any activity of the Government departments cannot be termed as a means of livelihood or for profit. In the Government departments also there is relationship of employer and employee, but the Government departments which are discharging sovereign functions of the Government cannot be termed as an ''Industry'' for the purpose as defined in Section 2(j) of the Industrial Disputes Act.

The Supreme Court in the case of Agricultural Produce Market Committee Vs. Shri Ashok Harikuni and Another Etc., has observed that in interpreting any statute to find if it is "industry" or not we have to find its pith and substance. The Central Act is enacted to maintain harmony between employer and employee which brings peace and amity in its functioning. This peace and amity should be the objective in the functioning of all enterprises. This is to the benefit of both the employer and employee. Misuse of rights and obligations by either or stretching it beyond permissible limits have to be dealt with within the framework of the law but endeavour should not be in all circumstances to exclude any enterprise from its ambit. That is why courts have been defining "industry" in the widest permissible limits and "sovereign" functioning within its limited orbit.

In the case of The National Union of Commercial Employees and Another Vs. M.R. Meher, Industrial Tribunal, Bombay and Others, the Supreme Court has observed that the concept of industry postulates partnership between capital and labour or between the employer and his employees. In other words, the co-operation between capital and labour or between the employer and his employees which is treated as a working test in determining whether any activity amounts to an industry, is the cooperation which is directly involved in the production of goods or in the rendering of service. It cannot be suggested that every form or aspect of human activity in which capital and labour co-operate or employer and employees assist each other is an industry. The distinguishing feature of an industry is that for the production of goods or for the rendering of service, co-operation between capital and labour or between the employer and his employees must be direct and must be essential.

In my considered opinion, experience for the purpose of direct recruitment to the post of technical teaching, the experience gathered by the candidates must be relatable to the teaching experience in the industry or profession. Ordinary experience in the field of industry or profession in course of business is of no use for the purpose of technical education. The private respondents were considered by the Committee since they had been working as Lecturers in the technical education of the Engineering College with requisite qualification. The petitioners have got requisite qualification but have no experience of teaching in the industry or profession to which they belong. Working as an Executive Engineer or Assistant Engineer under the Government department, even if termed as industry, cannot be said to be an experience gathered for the purpose of rendering technical education. The expert Committee, constituted by the Tripura Public Service Commission, arrived at a conclusion taking into account the AICTE norms and I find nothing to interfere with the decision of the expert Committee on the issue. More particularly, the decision of the expert Committee has not been challenged in the writ petition and so long the report of the expert Committee stands good, the ultimate decision of the Tripura Public Service Commission in the selection of the candidates cannot be challenged.

In view of the discussion made above, I find no merit in the writ petition and hence, the writ petition stands dismissed. Parties to bear their own costs.