Allahabad High Court

Teachers Association Mnnit ... vs Union Of India And 4 Ors on 30 April, 2015

Bench: V.K. Shukla, Ranjana Pandya




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserve
 
Reserved on: 15.04.2015
 
Delivered on: 30.04.2015
 
Court No. - 29
 
Case :- Writ A No. - 51603 of 2014
 

 
Appellant:- Teachers Association MNNIT Allahabad and Another
 
Respondent :- Union of India and 4 others
 
Counsel for Appellant:- Anupam Kumar
 
Counsel for Petitioner :- A.S.G.I., Gyan Prakash, Ramesh Upadhyaya
 

 
&
 

 
Case :- Writ A No. - 4998 of 2015
 

 
Appellant:- Teachers Association MNNIT Allahabad and Another
 
Respondent :- Union of India and 4 others
 
Counsel for Appellant:- Anupam Kumar, T.P. Singh
 
Counsel for Petitioner :- A.S.G.I., Krishna Agarwal, Ramesh Upadhyaya
 

 
Hon'ble V.K. Shukla, J.

Hon'ble Mrs.Ranjana Pandya, J.

(Delivered by Hon'ble V.K. Shukla, J.)

Teachers' Association of Motil Lal Nehru National Institute of Technology, Allahabad through its Secretary, Dr. Ravi Prakash Tiwari has come up before this Court with the following prayers:

(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned advertisement no.10/2014 dated 17.09.2014 issued by Registrar, Motil Lal Nehru National Institute of Technology, (MNNIT), (respondent no.4), Allahabad.

(ii) Issue writ, order or direction in the nature of certiorari, quashing the Government of India, Ministry of Human Resource Development (H.R.D.) notification dated 23.08.2013 and 18.03.2013 and 15.01.2014 issued by Director (NITs) respondent no.2.

(iii) Issue a writ, order or direction in the nature of Mandamus directing the concerned respondents to proceed with "Mapping" of existing faculties at all levels at appropriate places in four tier flexible system, as followed in IITs.

(iv) Issue a writ, order or direction in the nature of Mandamus, directing the concerned respondent to continue and proceed with the implementation of the AICTE and UGC guidelines for Career Advancement Scheme till the amendment of the Act is affected and appropriate Statutes are framed after removal of anomalies.

(v) Issue a writ, order or direction in nature of Prohibition restraining concerned respondents from changing the service conditions of the petitioners by restraining them from implementing and enforcing the Model Recruitment Rules in view of the notification of respondents dated 18.03.2013.

Same set of petitioners in Writ Petition No.4998 of 2015 have come up with the following prayers:

(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned advertisement no.13/2014 dated 18.12.2014 issued by Registrar, Motil Lal Nehru National Institute of Technology, (MNNIT), (respondent no.4), Allahabad for the post of Associate Professor and Professor.

(iv) Issue a writ, order or direction in the nature of Mandamus, directing the concerned respondents to continue and proceed with the implementation of the AICTE and UGC guidelines for Career Advancement Scheme till the amendment of the Act is affected and appropriate Statutes are framed after removal of anomalies.

(v) Issue a writ, order or direction in nature of Prohibition restraining concerned respondents from changing the service conditions of the petitioners by restraining them from implementing and enforcing the Recruitment Rules, 2013 in view of the notification of respondents dated 18.03.2013.

Both the writ petitions have been taken up today and Civil Misc. Writ Petition No.51603 of 2014 has been treated as leading writ petition.

Petitioner no.1 claims to be registered Forum/Association duly recognized by Board of Governors of Motil Lal Nehru National Institute of Technology under the provisions of Societies Registration Act, 1860. Petitioner no.1 claims to be association comprising a large number of teachers working in MNNIT, Allahabad and claims to represent the agonies of the teaching faculty of the Institute.

Initially Motil Lal Nehru Regional Engineering College was one of the Regional Engineering Colleges and thereafter alongwith other 16 Regional Engineering Colleges, Moti Lal Nehru Regional Engineering College was converted into Motil Lal Nehru National Institute of Technology and the status of a deemed University was accorded in exercise of powers conferred by Section 3 of U.G.C. Act by Central Government on the advice of U.G.C. with cent-percent Central Government funding w.e.f. financial year 2003-04. The Institute in question thereafter has been brought within the scope and ambit of National Institute of Technology Act, 2007. The said Act in question was enforced on 5th June, 2007. In the year 2012, on 8th June, 2012, amendment has been introduced in this Act. In order to appreciate the controversy raised, relevant provisions of N.I.T. Act, 2007, as amended from time to time, are being looked into:

"3. In this Act, unless the context otherwise requires-

(a) to (f) xxx xxx xxx

(g) "Institute" means any of the Institutions mentioned in column (3) of the Schedule.

(h) to (I) xxx xxx xxx

(m) "Society" means any of the societies registered under the Societies Registration Act, 1860 and mentioned in column (2) of the Schedule.

(n) xxx xxx xxx

(5) On and from the commencement of this Act -

(a) xxx xxx xxx

(b) xxx xxx xxx

(d) every person employed by a society, immediately before such commencement shall hold his office or service in the corresponding Institute for the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as he would have held if this Act had not been passed, and shall continue to do so unless until his employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statutes.........."

13(1) Subject to the provisions of this Act, the Board of every Institute shall be responsible for the general superintendence, direction and control of the affairs of the Institute and shall exercise all the powers of the Institute not otherwise provided for by this Act, the Statutes and the Ordinances, and shall have the power to review the acts of the Senate.

(2) Without prejudice to the provisions of sub-section (1), the Board of every Institute shall,-

(a) take decisions on questions of policy relating to the administration and working of the Institute;

(b) institute courses of study at the Institute;

(d) institute and appoint persons to academic as well as other posts in the Institute;

(e) consider and modify or cancel Ordinances;

(f) consider and pass resolutions on the annual report, the annual accounts and the budget estimates of the Institute for the next financial year as it thinks fit and submit them to the Council together with a statement of its development plans;

(g) exercise such other powers and perform such other duties as may be conferred or imposed upon it by this Act or the Statutes;

(3) The Board shall have the power to appoint such committees, as it considers necessary for the exercise of its powers and the performance of its duties under this Act.

25. Statutes : Subject to the provisions of this Act,

the Statutes may provide for all or any of the following matters, namely:-

(a) xxx xxx xxx

(b) xxx xxx xxx

(d) xxx xxx xxx

(e) xxx xxx xxx

(f) the qualifications of teachers of the Institute;

(g) the classification, the method of appointment and the determination of the terms and conditions of service of teachers and other staff of the Institute;

26. Statutes how made : (1) The first Statutes of each Institute shall be framed by the Central Government with the prior approval of the Visitor and a copy of the same shall be laid as soon as may be before each House of Parliament.

(2) The Board may, from time to time, make new or additional Statutes or may amend or repeal the Statutes in the manner provided in this section.

(3) Every new Statute or addition to the Statutes or any amendment or repeal of Statutes shall require the previous approval of the Visitor who may grant assent or withhold assent or remit it to the Board for consideration.

(4) A new Statute or a Statute amending or repealing an existing Statute shall have no validity unless it has been assented to by the Visitor.

CHAPTER -III

30. (1) With effect from such date as the Central Government may, by notification specify in this behalf, there shall be established for all the Institutes specified in column (3) of the Schedule, a central body to be called the Council.

(2) The Council shall consist of the following members, namely:-

(a) the Minister in charge of the Ministry or Department of the Central Government having administrative control of the technical education, ex officio, as Chairman;

(b) the Secretary to the Government of India in charge of the Ministry or Department of the Central Government having administrative control of the technical education, ex officio, as Vice-Chairman;

(d) the Director of every Institute, ex officio;

(e) the Chairman, University Grants Commission, ex officio;

(f) the Director General, Council of Scientific and Industrial Research, ex officio;

(g) four Secretaries to the Government of India, to represent the Ministries or Department of the Central Government dealing with biotechnology, atomic energic, information technology and space, ex officio;

(h) the Chairman, All India Council for Technical Education, ex officio;

(i) not less than three, but not more than five persons to be nominated by the Visitor, at least one of whom shall be a woman, having special knowledge or practical experience in respect of education, industry, science or technology;

(j) three members of Parliament, of whom two shall be chosen by the House of the People and one by the Council of States;

provided that the office of member of the Council shall not disqualify its holder for being chosen as or for being, a member of either House of Parliament;

(k) two Secretaries to the State Government, from amongst the Ministries or Departments of that Government dealing with technical education where the Institutes are located, ex officio;

(l) Financial Advisor, dealing with the Human Resource Development Ministry or Department of the Central Government, ex officio,

(m) one officer not below the rank of Joint Secretary to the Government of India in the Ministry or Department of Central Government having administrative control of the Technical Education, ex officio, as Member-Secretary.

31.(1) The terms of office of a member shall be three years from the date of notification:

Provided that the term of office of an ex officio member shall continue so long as he holds office by virtue of which he is such a member.

(2) The term of office of a member elected under clause (j) of sub-section (2) of section 30 shall expire as soon as he ceases to be member of the House, which elected him.

(3) The term of office of a member nominated or elected to fill a causal vacancy shall continue for the remainder of the term of the member in whose place he has been appointed.

(4) Notwithstanding anything contained in this section an outgoing member shall, unless the Central Government otherwise directs, continue in office until another person is appointed as a member in his place.

(5) The members of the Council other than ex officio member shall be paid such travelling and other allowances as may be prescribed.

32.(1) It shall be the general duty of the Council to co-ordinate the activities of all the Institutes.

(2) Without prejudice to the provisions of sub-section (1); the Council shall perform the following functions, namely:-

(a) to advise on matter relating to the duration of the courses, the degrees and other academic distinctions to be conferred by the Institutes, admission standards and other academic matters;

(b) to lay down policy regarding cadres, methods of recruitment and conditions of service of employees, institution of scholarships and freeships, levying of fees and other matters of common interest;

(c) to examine the development plans of each Institute and to approve such of them as are considered necessary and also to indicate broadly the financial implications of such approved plans;

(d) to advise the Visitor, if so required, in respect of any function to be performed by him under this Act; and

(e) to perform such other functions as are assigned to it by or under this Act.

33.(1) The Chairman of the Council shall ordinarily preside at the meetings of the Council:

Provided that, in his absence, the Vice-Chairman of the Council shall preside at the meetings of the Council.

(2) It shall be the duty of the Chairman of the Council to ensure that the decisions taken by the Council are implemented.

(3) The Chairman shall exercise such other powers and perform such other duties as are assigned to him by this Act.

(4) The Council shall meet once in every year and follow such procedure in its meetings as may be prescribed.

34.(1) The Central Government may, by notification, make rules to carry out the purpose of this Chapter.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the travelling and other allowances payable to members fo the Council under sub-section (5) of section 31; and

(b) the procedure to be followed in the meetings of the Council under sub-section (4) of section 33.

(3) Every rule made by the Central Government under this Chapter shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both House agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

CHAPTER IV.

35. No act of the Council, or any Institute or Board or Senate or any other body set up under this Act or the Statutes, shall be invalid merely by reason of-

(a) any vacancy or defect in the constitution thereof, or

(b) any defect in the election, nomination or appointment of a person acting as a member thereof, or

36.(1) If any difficulty arises in giving effect to the provisions of this Act the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for removing the difficulty;

Provided that no such order shall be made after the expiry of a period of two years from the date on which this Act receives the assent of the President.

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.

37. Notwithstanding anything contained in this Act-

(a) the Board of Governors of every Institute functioning as such immediately before the commencement of this Act shall continue to so function until a new Board is constituted for that Institute under this Act, but on the constitution of a new Board under this Act, the member of the Board holding office before such constitution shall cease to hold office;

(b) every Senate constituted in relation to every Institute before the commencement of this Act shall be deemed to be the Senate constituted under this Act until a Senate is constituted under this Act for that Institute but on the constitution of new Senate under this Act, the members of the Senate holding office before such constitution shall cease to hold office.

(d) all matters, which are meant to be provided through Statutes and Ordinances under Sections 25 and 27, respectively, shall, till such Statutes and Ordinances are made, be governed, mutatis mutandis, by the corresponding provisions in force immediately before the commencement of this Act."

After the enforcement of the Act in question in exercise of powers conferred by sub-section 1 of Section 26 of N.I.T. Act, 2007, the Central Government with the prior approval of Visitor has framed, First Statutes named as 'First Statutes of the National Institute of Technology' and same has been enforced on 23rd April, 2009. The said First Statutes, under Statute 3 defines the authorities of Institute. Statute 4 deals with Board of Governors and meeting thereof. Statute 5 deals with additional powers of the Board. Statute 5 provides for as follows:

"5.Powers of the Board:

In addition to the powers under sub-section (1) of section 13 of the Act, the Board shall be empowered:-

(i) to abolish, re-designate or change the nomenclature of any post in the institute;

(ii)to make, modify or cancel the statutes with the approval of the visitor from time to time:

Provided that the new Statute, additions or amendments of existing Statutes shall be applicable only after the assent of the visitor; and

(iii) to make, modify and cancel all or any ordinances on recommendation of the Finance Committee or Senate of the Institute subject to the condition that making, modification and cancellation shall not be in contravention of the Act and (or) Statutes."

Statute 14 deals with 'additional authority of Chairperson of Board of Governors'. Statute 15 deals with 'travelling allowance of members of the authorities of Institute'. Statute 17 provides for 'the Director and his powers'. Statute 18 provides for 'Deputy Director'. Statute 19 deals with 'Deans'. Statute 20 deals with 'Head of the Department/Centre'. Statute 21 talks of 'Registrar'. Statute 22 provides for 'classification of the Member of Staff' as follows:

"22. Classification of the Members of the Staff:

(1) Except in the case of employees paid from contingencies, the members of staff of the Institute shall be classified as under:-

(i) Academic staff:- Director, Deputy Director, Professor, Associate Professor, Assistant Professor, Lecturer, Professor Training and Placement and such other academic posts as may be decided by the Board from time to time;

(ii) Technical Staff:- System Manager, System Analyst, Programmer, Librarian, Workshop Superintendent, Assistant Workshop Superintendent, Foreman Technician, Instructor, Laboratory Assistant, Mechanic, Overseer, Technical Assistant, Draftsman and such other technical posts as may be decided by the Board from time to time; and

(iii) Administrative and other staff:- Registrar, Deputy Registrar and Assistant Registrar, Accounts Officer, Audit Officer, Estate Officer, Executive Engineer Assistant and Junior Engineer, Medical Officer, Medical Assistant, Horticultural Assistant/Officer, Office Superintendent Security Officer, Stores Officer, Store Keeper, Office Assistants, Data Entry Operators and such other Administrative and other staff a may be decided by the Board from time to time.

(2) Posts classified as Academic staff shall be vacation posts only."

Statute 23 deals with 'Appointment', as follows:

23. Appointments:

(1) The posts at the Institute shall be filled by advertisement on all India basis:

Provided that the ratio between Direct Recruitment and Promotion posts for posts other than that of Director or the Deputy Director shall be as per the recruitment rules.

(2)The reservation of posts shall be in accordance with the rules of the Central Government.

(3) For the purpose of appointments, the rules applicable to of the Central Government employees shall apply.

(4) The Selection Committee, for filling posts under the Institute (other than the posts on contract basis) by advertisement or by promotion from amongst the members of staff of the Institute, shall be constituted in such manner as laid down by Ministry of Human Resources Development, Department of Higher and Secondary Education, Government of India or Board from time to time by ordinances.

(5) Selection Committees for filling up of posts under the Institute (other than on contract basis) by advertisement or by promotion from amongst the members of staff of the Institute shall be constituted in the following manner, namely:-

(a) the Selection Committee for recruitment of Academic Staff (excluding the Director and the Deputy Director), or for promotion shall be as under:

 
(1) Director or Deputy Director			-	Chairman
 
(2) Visitor;s Nominee				-	Member
 
(3) two nominee of the Board one being an 
 
     expert, but other than a member of the Board	-	Member
 
(4) one expert nominee of Senate from outside
 
      the institute					- 	Member
 
(5) Head of Department concerned 
 
(for other than the post of Professor)		-	 Member
 

 
(b) The Selection Committee for Technical posts shall be as follows:
 
(1) Director or Deputy Director			-	Chairman
 
(2) one Expert from outside the Institute		-	Member
 
(3) Nominee of Ministry of Human Resources
 
     Development 				-	Member
 
(4) Concerned Head of Department		-	Member
 
(5) Registrar					- 	Member
 

 
(c) The Selection Committee for Administrative and Ministerial Staff shall be as under:-
 
(1) Director or Deputy Director			- 	Chairman
 
(2) one Expert from outside the Institute 		-	Member
 
(3) Nominee of Ministry of Human Resource 
 
     Development				-	Member
 
(4) Registrar					-	Member
 

 
(d) The Selection Committee for Senior Administrative and other comparable posts carrying pay scale of Lecturer and above shall be as under:-
 
(1) Director or Deputy Director			-	Chairman
 
(2) one Expert from outside the Institute		-	Member
 
(3) Nominee of Ministry of Human Resources
 
     Development 				-	Member
 
(4) Nominee of Board				-	Member
 
(5) Registrar					- 	Member
 

 
(6) The Registrar shall be substituted by another nominee of the Board in case the Selection is made from the Registrar or the equivalent post.

(7) In the absence of the Deputy Director, the Director may nominate any member of the staff of the Institute to be the member of the Selection Committee in his place.

(8) Where a post is to be filled on contract basis or by invitation, the Board may, constitute such Adhoc Selection committee, as circumstances of each case may require.

(9) Where a post is to be filled by promotion from amongst the members of the Institute or temporarily for a period not exceeding twelve months, the procedure for the same shall be as specified by ordinances.

(10) Notwithstanding anything contained in these Statutes, the Board shall have the power to make appointments of persons having special skill or knowledge to suit the emergent need of the department(s) or centre(s).

(11) If the post is to be filled by advertisement, the Registrar shall advertise the terms and conditions of the post and the screening committee for the purpose of short listing the eligible land most desirable candidates and shall screen all applications received within the date specified in the advertisement.

(12) As the time of interview, the Selection Committee shall examine credentials of all candidates who have been called for the interview, interview the eligible candidates and recommend the appointment of the most suitable candidate to the competent authority for approval.

(13) The recommendations of the Selection Committee shall remain valid for a period of one year from the date of interview and if for any reason the recommendations are not approved by the competent authority or appointment orders not issued after the approval of recommendations within the said period of one year, the recommendations shall lapse and fresh advertisement shall be issued.

(14) No act or proceeding of any Selection Committee shall be called in question on the ground merely of the absence of any member or members of the Selection Committee.

(15) Unless otherwise provided for under these Statutes, the Selection Committee constituted for the purpose of making recommendations for appointment to a post shall continue to exercise its functions in relation to that post till the appointment is made against that post.

(16) All appointments made at the Institute shall be reported to the Board at its next meeting.

(17) The application of the employees eligible for promotion under Assured Career Progress (ACP) shall be considered by the Departmental Promotion Committees before any promotion or up-gradation is recommended.

(18) The Departmental Promotion Committee shall be as follows:

 
(1) Director or Deputy Director			-	Chairman
 
(2) Concerned Head of Department 		-	Member
 
(3) Head of Department from other Department	-	Member
 
(4) Registrar					- 	Member

Statute 24 deals with 'general terms and conditions of service of permanent employee'. Statute 25 provides for 'code of conduct of permanent employees'. Statute 26 deals with 'suspension, penalties, disciplinary proceedings'. Statute 27 deals with 'general terms and conditions of temporary employees'. Statute 28 deals with 'appointment on contract'. Statute 29 deals with 'Provident Fund Pension Scheme'. Statute with 'Provident Fund/Pension Scheme'. Statute 30 and 31 deals with 'resignation and retirement', respectively. Statute 32 deals with 'advances' and Statute 33 deals with 'deputation'. Statute 34 deals with 'residential accommodation' and Statute 35 provides for 'leave and vacation rules'.

The Council of the National Institute of Technologies (N.I.T.s) on 18th November, 2011 resolved to switch over to four tier flexible system for the faculty with the recommendation of respective Board of Governors and with appropriate recruitment rules. Relevant extract of the same are being extracted below:

"Item No.3.17: Switch over to four tier flexible system for the faculty with the recommendations of the respective Board of Governors and with appropriate Recruitment Rules.

The Council resolved that individual NITs will be allowed to adopt by the Central Government the 4-tier flexible faculty cadre structure through appropriate resolution of the respective Board of Governors. The Recruitment Rules, recommended by the Dr. Sarangi Committee and approved by the Council (with changes) vide item 3.18 of this meeting, will be notified by the Ministry of HRD to provide the selection norms mandated under the 6th C.P.C. implementation order dated 18th August, 2009. When an institute adopts the 4 tier structure, the AGPs will be upgraded to their revised values for every faculty member at Associate Professor and Professor level; pay in the pay band, however, will be raised to the prescribed minimum at all AGPs if recommended by a proper selection committee after reviewing the candidate's academic contribution. Assistant Professors with three years of post-Ph.D. experience may also move to AGP of Rs.8000/- with corresponding minimum pay in the pay band on review by a property constituted selection committee."

Thereafter, the norms under Four-tier flexible faculty cadre structure were communicated to N.I.T.s vide Ministry's letter dated 23.08.2013, but same was kept on hold vide letter dated 12.12.2013 as a Committee to work out norms to ensure uniform implementation of Four-tier faculty structure in C.F.T.I.s was constituted to make further recommendations. Based on the recommendations of Four-Tier Implementation Committee, the four tier norms alongwith recruitment rules were communicated to N.I.T.s for adoption by their respective Board and in this direction for implementation of aforesaid four tier flexible faculty structure in the National Institute of Technology, necessary circular dated 15th January, 2014 has been sent and alongwith the same recruitment rules and other guidelines to be adopted by Board of Governors have been attached. Relevant extract of the said letter is being quoted below:

"To

The Directors of the 30 NITs.

Subject:- Implementation of 4-tier flexible faculty structure in the National Institute of Technology (NITs)-regarding.

Sir/Madam,

I am directed to refer to this Ministry's letter of even number dated 23rd August, 2013 and 12th December, 2013 on the subject cited above.

2. The meeting of the Committee constituted to devise norms for implementation of the four-tier flexible cadre (faculty) structure for both the new and the existing faculty in NITs, IITs and ISM-Dhanbad was held under the Chairmanship of Additional Secretary (TE) on 16th December, 2013 (Monday) at Ministry of Human Resources Development, Shastri Bhawan, New Delhi.

3. The Committee in its aforesaid meeting resolved the following:-

(i) That there would be no automatic migration to the salaries and AGP's of the four-tier flexible faculty structure.

(ii) Any change of the Grade Pay under Four-Tier will be purely through open advertisements and on the recommendation of duly constituted Selection Committee.

(iii) Those who do not fulfil the essential qualifications, relevant experiences and other essential requirements as in Annexure-l [pages 3 to 4], however, will continue in the present grade.

(iv) As an eligibility criteria for the post of Professor, the requirement of minimum four year's experience at the level of Associate Professor shall mean that of Associate professor under the Four-Tier System i.e. at the AGP of Rs.9,500/-. Associate Professors of three tier system with Academic Grade Pay of Rs.9,000/- shall also be eligible but with sever year's experience, if they meet the relevant academic requirements for the post;

(v) Professors with Rs.10,500/- AGP will only be considered for HAG Scale in accordance with Ministry's letter dated 22nd March, 2013 and the concerned Professor has to have 6 (six) years of service in AGP of Rs.10,000/- or higher; and

(vi) The academic criteria as approved by the Council of NITs [Annexure-l] has to be used in conjunction with the Ministry's letter F.No.33-9/2011-TS.lll dated 23rd August, 2013 [Annexure-II (pages 5 to 7)] for selection under four-tier flexible pay structure.

4. The Recruitment Rules and other guidelines to be adopted by the Board of Governors (BOGs) are attached at Annexure-iii [pages 8 to 22].

5. The NITs are advised to strictly adhere the aforesaid instructions for both the new and the existing faculty in NITs.

6. This issues with the approval of the competent authority in the Ministry."

Norms of Four-Tier Cadre Structure of Faculty Posts in the N.I.T.s has been as follows:

Sl No.

Designation, Pay Band and Academic Grade Pay

Essential Qualification and Relevant Experience

Assistant Professors (on contract)

PB-3 of Rs.15600-39100 with AGP of Rs.6000/- p.m.

(i) Assistant Professors to be recruited on contractual basis are not part of the regular faculty cadre in NITs. Appointment at this level may be made on contract basis to enable bright young Ph.D.s scholars to teach and earn experience in premier Institutions.

(ii) At the entry level they may be placed in Pay Band PB-3 of Rs.15600-39100 with Academic Grade Pay (AGP) of Rs.6000/- p.m. with seven non-compoundable advance increments.

(iii) To encourage fresh Ph.D.s to join the teaching system, at least 10% of the total faculty strength should be recruited at this level. However, relaxation in respect of educational qualifications could be given upto 25% of total Assistant Professors recruited. The reasons for such relaxations should be duly recorded and reported to the Board of Governors of the respective Institutions.

(iv) After one year of post Ph.D. Experience, these Assistant Professors shall be placed in the AGP at Rs.7000/- p.m.

Assistant Professors

PB-3 of Rs.15600-39100 with AGP of Rs.8000/- p.m.

(i) To be appointed in PB-3 to be placed at Rs.22500/- with AGP of Rs.8000/- p.m. For direct recruits, minimum pay in the Pay band to be fixed at Rs.30,000/-

(ii) For appointment as Assistant Professor, one should have a Ph.D. with first class at the preceding degree or equivalent in the appropriate branch with a very good academic record throughout and at least three years industrial/research/teaching experience excluding however, the experience gained while pursuing Ph.D.

(iii) Assistant Professors on completion of 3 years of service shall move to Pay Band of Rs.37400/--67000/- (PB-4) with an Academic Grade Pay (AGP) of Rs.9000/- and will, however, continue to be designated as Assistant Professor.

Associate Professors

PB-4 of Rs.37400-67000 with AGP of Rs.9500/- p.m.

(i) To be appointed in PB-4 with AGP of Rs.9500/- p.m. For direct recruits. Minimum pay in the P.B.-4 to be fixed at Rs.42,800/-.

(ii) For appointment as Assistant Professor, one should have a Ph.D. with first class at the preceding degree or equivalent in the appropriate branch with a very good academic record throughout and a minimum of six years Teaching Industry/Research experience, or which at least three years' should be at the level of Assistant Professors, Senior Scientific Officer/Senior Design Engineer.

Professors

PB-4 of Rs.37400-67000 with AGP of Rs.10500/- p.m.

Professors: HAG Scale (Rs.67000-79000) without any G.P.

(i) For appointment as Professor, one should have a Ph.D. with first class at the preceding degree or equivalent with a very good academic record throughout and a minimum of 10 years experience of which at least 4 years should be at the level of Associate Professor.

(ii) For Direct Recruits, Minimum pay in the Pay Band to be fixed at Rs.48,000/-

(iii) Upto a maximum of 40% of the sanctioned posts of Professors after regular service of 6 years as Professor can be awarded HAG Scale of Rs.67000-79000 without any GP in all NITs after fulfilling the eligibility conditions given in the guidelines for implementation of HAG scales in this Ministry's letter No.34-9/2012-TS.III dated 22.3.2013.

(iv) While implementing the HAG scales, those Professors of NITs and CFTIs who are appointed as Directors in the NITs system by the MHRD, shall deemed to have been placed in the HAG scale notionally from the day they took charge as Directors in NITs or from the day the guidelines were issued by the Ministry vide its letter No.F.23-1/2008-TS.II dated 18.08.2009, whichever is later.

Recruitment Rules for the faculty posts under Four-Tier Flexible Faculty Cadre in N.I.T.s has been as follows:

"1. Short title and commencement: These rules may be called the NIT Faculty Recruitment Rules, 2013. These shall come into force from the date of their acceptance/adoption by the Board of Governors of the concerned Institute.

2. Definition: In these rules, unless the context otherwise requires;

a) "Act" means National Institutes of Technology, Scheme Education and Research (NITSER) Act, 2007.

b) "Statutes" means the First Statutes of the NITs and the Statutes subsequently framed by the respective NIT or framed by the Ministry of Human Resource Development.

c) "Service rules" means Service Rules of the respective NIT.

d) "Faculty" means the Professor, Associate Professor and Assistant Professor of the NITs.

3. Method of Recruitment and other matters: The method of recruitment and other matters relating to the post of Faculty shall be specified in the Schedule annexed to these rules.

4. Deputation/Contractual Appointments : Faculty, who are appointed on contractual basis, shall be for a fixed period not exceeding five years.

5. Disqualification: No person,

(i) Who had entered into or contracted a marriage with a person having a spouse living; or

(ii) Who having a spouse living, has entered into or contracted a marriage with any person.

shall be eligible for appointment to the said post;

provided that the Board of Governors may, if satisfied that such marriage is permissible under the personal law applicable to such a person and the other party to the marriage and that there were other grounds for so doing, exempt any person from the operation of this rule.

6. Saving : Nothing in these rules shall affect reservations, relaxations of the age limit and other concessions required to be provided for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, Ex-servicemen and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard. These rules shall also not affect the recruitments already made or for which recruitment process has already commenced, but any appointment or promotion to higher post proposed to be made or made subsequent to the notification of these Recruitment Rules will be governed by these Recruitment Rules.

7. Other conditions of service: The other conditions of service of the Faculty for which no specific provisions have been made in these rules shall be regulated in accordance with such rules as are, from time to time, applicable as per the First Statutes of the NITs and the subsequent amendments. For matters not covered by the Statutes, the corresponding Central Government Rules shall be applicable.

8. Qualification and other requirements of Selection: Qualifications and other requirements of selection for various posts are given in detail in the Annexure-I.

9. These rules are bare minimum and the Board of Governors can however fix higher benchmarks, higher than the prescribed in consultation with the Council of NITs."

Petitioners' Association has been resisting the implementation of four tier system as per the pleadings made in writ petition on following grounds:

(a) Para 3(i) which says that there would be no migration to the salaries and AGPs of the 4-tier flexible faculty structure without keeping in mind the fact that any migration from one system to another needs certain period of time for the new system to adopt itself and mapping of seniority grade etc. of the old 3-tier system in the new system and for this purpose at least three years period was needed which would have facilitated adoption of the new 4-tier system and would have also given time for removal of anomalies which have crept up in the new 4-tier system.

(b) Since various anomalies have crept up relating to the promotion, seniority and service conditions and eligibility norms of the members of the Petitioners' Association which will adversely affect their future career, therefore, the Petitioners' Association wants to press the fact that the old system of CAS be continued as under the 3-tier system till the time all such anomalies which will be mentioned later on are removed from migration from one system to another.

(c) Adoption of 4-tier system relating to flexible faculty structure in NITs is full of flaws, since firstly, it has overlooked all the existing anomalies from such sudden migration and its adoption without following the norms procedures as provided under the NIT Act and Statute, secondly the MHRD/Central Government without inviting objections and recommendations of the aggrieved persons, like the petitioner association in utter violation of Principals of Natural Justice could force upon the implementation of the four tier system in such haphazard manner, third can newly framed recruitment rules apply retrospectively to those who are already in service i.e. existing faculty. Fourth, can powers of the Visitor with respect to grant of approval be exercised by the BOG.

(d) The procedure adopted in changing the qualification and service of the employees of NIT is in violation of the NIT Act 2007 and statutes 2009. Further NIT Council and NIT BOG cannot change the qualification and service conditions of the employees without due approval of Visitor, followed by its notification in Official Gazette of India.

At this juncture, petitioners are before this Court with the prayers quoted above.

The claim that has been raised by the petitioners has been resisted by counter affidavit filed on behalf of the Institute as well as on behalf of Central Government by contending that rightful exercise has been undertaken and whatever action has been taken, same has been in the domain of Council of NIT and in view of this, none of the legal rights of petitioners has been infringed.

Affidavits and Supplementary Affidavits have been filed and rejoinder affidavit has also been filed.

After respective pleadings have been exchanged, the matter is taken up for final hearing and disposal with the consent of the parties.

Shri T.P. Singh, Senior Advocate assisted by Shri Anupam Kumar, Advocate has confined his arguments to the effect that in the present case merely because the Council has taken a policy decision to enforce four tier system, it ipso facto and automatically could not be enforced until and unless, the amendment is made in the statute or alternatively Central Government by way of notification introduces the Rules in question and as such, any action taken based on the same is per se bad and unjustifiable and contrary to the spirit of statutory provision.

Shri Ashok Mehta, Senior Advocate assisted by Shri Krishna Agrawal as well as Shri Ramesh Upadhayay, Advocate representing the Institute concerned, on the other hand, has justified the action taken by the Institute by contending that the Council is the Apex Body of fixing eligibility criteria and once policy decision has been taken and same has been ratified by the Board of Governors, then this Court should not at all come to the rescue and reprieve of the petitioners as in policy matters, the matter has to be left to the wisdom of experts who manage the system and it is not at all for the Court to lay down methodology of recruitment.

In order to appreciate the respective arguments that has been so advanced what we find that on the enforcement of NIT Act, 2007, Section 5 clearly proceeds to mention that every person employed by a Society, immediately before such commencement shall hold his office or service in the corresponding Institute for the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as he would have held if this Act had not been passed, and shall continue to do so unless and until his employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statutes.

Thus this much is clear that whatever has been the terms and conditions in existence on the date of enforcement of the Act, same was to continue unless it was not duly altered by the Statutes.

Section 25 deals with the subject that is to be provided under the Statute and clause 'f' provides that qualification of teachers of the Institute has to be given in the Statutes and clause 'g' provides that the determination of the terms and conditions of service of teachers and other staff to the Institute is also to be provided by the Statute.

Section 26 provides for as to how the statutes are to be made. The first Statute of each university has to be framed by the Central Government with the prior approval of the Visitor and copy of the same has to be laid down as soon as may be before each House of Parliament. The Board has been authorized to make new or additional Statutes and the same requires previous approval of Visitor. Thus a Visitor has an important role to play in the matter of amending or repealing an existing Statute.

Section 37 is clear and categorical and starts with a non-obstante clause by providing that all matter which are meant to be provided through statutes, ordinances under Section 25 and 27, respectively, shall till such statutes and ordinances are made be governed mutatis mutandis by the corresponding provisions in force immediately before the commencement of this Act.

Accepted position is that in consonance with the provisions of the Act in question, statutes have been framed known as the first Statutes of the National Institute of Technology Act, 2007 and in the said Statutes in question, statute 23, as already extracted above, deals with appointments and proceeds to mention that the reservation of posts shall be in accordance with the rules of the Central Government and that the Rules applicable to the Central Government employees shall also apply. For filling up of posts, constitution of selection committee for academic staff for technical posts and for administrative and ministerial staff has been provided for. The general terms and conditions of service of permanent employees have also been been provided for alongwith other matters.

Under Chapter 3, Section 30 there is a Council comprising of high dignitaries and under Sub-section 1 of Section 32, it is the duty of the Council to co-ordinate the activities of all the Institutes and under sub-section (2) of Section 32 without prejudice to the provisions of sub-section (1), the Council is duty bound to perform following functions namely:-

(a) to advise on matters relating to the duration of the courses, the degrees and other academic distinctions to be conferred by the Institutes, admission standards and other academic matters;

(b) to lay down policy regarding cadres, methods of recruitment and conditions of service of employees and others.

The Rules/Policy in question have been framed in exercise of authority vested under clause (b) of sub-section (2) of Section 32 of the Act, and once policy has been framed then as per the terms of policy, it has to be ratified by the Board and the Board in its turn has ratified the same and from the said date it has to be accepted as enforceable, in this background as per the respondents then petitioners legitimately can have no grievance on the said score and implementation of said policy decision can not be blocked, as has been requested in the present case by the petitioners.

Framing of policy decision is certainly the domain of the Council concerned, but in what way and manner the said policy is to be implemented and given effect to, is an issue to be answered by us. Rules/Policy in question has been approved by the Board in its existing format, and based on said Rules/Policy, Board is implementing the same, and the grievance is that without statutory sanction, the same cannot be implemented and given effect to. Under sub-section (1) of Section 34, the Central Government by notification is empowered to make rules to carry out the purposes of Chapter III. Sub section (2) of Section 34 provides that in particular to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:-

(a) the travelling and other allowances payable to members of the Council under sub-section (5) of section 31; and

(b) the procedure to be followed in the meetings of the Council under sub-section (4) of section 33.

Sub-section (3) of Section 34 clearly provides that every rule made by the Central Government under this Chapter shall be laid, as soon as may be after it is made, before each House of Parliament.

Here the rules in question have been framed and the said rules have been approved by the Board but have not at all been placed before the Parliament. The Central Government is authorized to make rules to carry out the purpose of this Chapter and in case the Central Government intends to make rules to carry out the purpose of this chapter, then certainly the said rules will have to face the test of sub-section (3) of section 34. Sub-section (2) deals with specific subject on which rules can be framed i.e. (a) travelling and other allowances payable to members of the Council under sub-section (5) of Section 31; and (b) the procedure to be followed in the meetings of the Council under sub-section (4) of section 33. As far as sub-section 2 of Section 34 is concerned, if rules are to be framed on the said subject, then sub-section 3 of section 34 is to be complied with and similarly, if Central Government makes rules by notification to carry out the purpose of this chapter, then also it has to go through the process of sub-section (3) of section 34.

In the present case, accepted position is that the Central Government has made rules and Rule 1 mentions that these Rules may be called 'The N.I.T. Faculty Recruitment Rules, 2013' and it shall come into force from the date of their acceptance/adoption by the Board of Governors of concerned Institute. It also contains condition that it is bare minimum and the Board of Governors can fix higher benchmark, higher than the prescribed in consultation with the Council of N.I.T.s. These Rules till date have not at all been notified nor till date it has been laid before the House of Parliament.

Respondents cornered with this are submitting, that it is true that it has been described as Rules, but the fact of the matter is that it is not a Rule, and label should not matter, and on its face value it should be accepted as a policy decision and nothing beyond the same.

The Council is empowered to lay down policy decision regarding cadres, method of recruitment and conditions of service of employees but in what way and manner it is to be implemented and given effect to, is certainly a matter of concern.

Section 25 clearly provides that statutes may provide for all or any of the following matters: (a) the qualification of teachers of the Institutes; (b) the classification, the method of appointment and the determination of the terms and conditions of service of teachers and other staff. This section is wide enough to cover entire field pertaining to teachers of the Institute and in case anything touching the said subject is to be provided for, then it has to be provided through statutes.

In the present case, the so called Rules/Policy is in reference to recruitment; deputation/contractual appointment; disqualifications; other conditions of service; qualifications and other requirements of selection and all these matters are to be provided by Statutes. Even under the First statutes covering such heads, various provisions have been in-fact introduced and if it has to be supplemented and new conditions of service with new eligibility criteria is to be introduced, then the Statutes will have to be added by new statutes or by additional statutes and said exercise has to be undertaken by the Board but same will require approval of the Visitor. Once prescribed procedure is there in the statutes, then consent of Visitor is required to be undertaken and once the consent of Visitor has not been undertaken in the case in hand, then in view of this, the inevitable conclusion is that the Council has got authority to frame policy decision and the institutes are duty bound and obligated to comply with the same and accordingly, even if the Board has proceeded to approve the same in the absence of approval by the Visitor, it has to be considered as "Statute in the making" or " Statute in process" i.e. it is incomplete and neither valid nor effective as a Statute.

Once the statutory provisions, provide for an act to be done and performed in particular manner, then the said act has to be performed accordingly, in the manner prescribed by the authority vested with the power to act under the statutory provisions. Here every new statute or addition to the Statute or any amendment or repeal of Statute requires prior approval of the Visitor, who may grant assent or withhold assent or remit to the Board for consideration. There is a mandate provided for that a new statute or statute amending or repealing an existing statute shall have no validity unless it has been assented by the Visitor. Once law lays down the procedure and also provides for that a new Statute or Statute amending or repealing an existing Statute shall have no validity, then taking assent of the Visitor is part and parcel of Statute making process, and until and unless said exercise is not undertaken, the Statute will have to be accepted and treated as incomplete. There appears to be a purpose for taking assent of Visitor, as here the Visitor is no one else but the President of India as per Section 9 of the Act and Visitor is not an ornamental head, rather under sub-section 2 of Section 9, the Visitor may appoint one or more persons to review the work and progress of Institute and to hold enquiries thereof and to report in such manner as Visitor may direct. Sub-Section 3 of Section 9 empowers the Visitor, upon receipt of report to take such action as he considers necessary in respect of matter dealt with in report and Institutes are duty bound to comply with the same. Visitor is not a rubber stamp when he receives the Statute (Amended; New; Additional) for his consideration, he holds a unique position as Visitor is free to withhold assent and even remit the same for reconsideration. The so called 'Rules' have to be introduced through statutory forum i.e. by incorporating the same and making the same as part of the Statute and admittedly the same has not been done.

In view of this, as far as policy decision is concerned, framing of policy decision is in the domain of the expert body i.e. the Council, but its implementation certainly, has to take place as per the statutory provisions that holds the field and in the present case, once the policy decision is in reference to the subject that falls within the domain of the statutes, then such policy decision has to be incorporated in the statute as per the provision for amending, altering and adding statutes i.e. by taking assent from the Visitor and mere ratification of the same by the Board will not be sufficient.

In view of the above, till the said policy decision is not made part of the statute and assent is not taken by the Visitor, the same cannot be enforced. In view of this, future action based on said Rules be kept on hold till said Rules are not made part of the Statute. Any action that has already been taken in the past and already attained finality, in no way would be effected by our judgement.

Writ petitions are disposed of with aforementioned observations/directions.

Order Date :- 30.04.2015

A. Pandey