Bombay High Court
Anala Pandit vs Director, Directorate Of ... on 8 January, 2018
Bench: B.R. Gavai
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BDPSPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 251 OF 2017
Mrs. Anala Pandit, aged 54 years )
E-3, Prashant Co-operative Housing )
Society, Senapati Bapat Marg, )
Mahim, Mumbai - 4000016 ) ..... Petitioner.
Versus
1] Director, Directorate of Technical )
Education, Maharashtra, 3, )
Mahanagarpalika Marg, )
Mumbai - 400 001 )
)
2] State of Maharashtra, Through the )
Secretary, Higher and Technical )
Education Department, Mantralaya, )
Mumbai. )
)
3] Veermata Jijabai Technological )
Institute, Through the Principal, )
H.R. Mahajani Marg, Matunga (East) )
Mumbai - 400019 )
)
4] The Registrar, )
University of Mumbai, )
Fort, Mumbai - 400 032 )
)
5] All India Council for Technical )
Education, Nelson Mandela Marg, )
Vasant Kunj, New Delhi-110067 ) ...... Respondents.
Mr. Mihir Desai, Senior Counsel alongwith Ms Saranga Ugalmugle, Mr Vinamra
Koparia for the Petitioner.
Mr. A.L. Patki, Additional Govt. Pleader for Respondent Nos. 1 and 2/State.
Mr. Ashuthosh M. Kulkarni alongwith Mr. Sarthak Diwan for Respondent No.3.
Mr. P.M. Palshikar for Respondent No.4.
CORAM: B. R. GAVAI &
B. P. COLABAWALLA, JJ.
DATE: 8th JANUARY, 2018
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ORAL JUDGMENT: (Per B.R. Gavai, J.)
1] Rule. Rule is made returnable forthwith. Respondents waive
service. Heard finally, by consent of parties.
2] Petitioner has approached this Court, praying for quashing and
setting aside the orders dated 05/11/2012 and 26/07/2016 passed by
Respondent No.1, whereby Respondent No.1 refused to grant sanction
to the appointment of the Petitioner as Assistant Professor.
3] Facts, in brief, giving rise to the present Petition are as under:-
4] Petitioner passed B.Sc. in Physics in First Class from Bombay
University in 1981. Petitioner passed M.Sc. in Physics (Electronics)
from Bombay University in First Class in 1983. She also obtained
degree of M.S. in Electrical Engineering from University of Louisville,
Kentucky, U.S.A in 1985. She further obtained degree of M.S. in
Computer Science from the same University in U.S.A. in 2012. She
obtained Ph.D. in Computer Science from the same University in
U.S.A. in 2014.
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5] Petitioner initially worked with Private Industry for a period of
10 years from 1985 to 1995. She joined Respondent No.3 - Central
Technological Institute in Maharashtra State, which is an autonomous
Institute, affiliated to University of Bombay, as a visiting faculty from
August, 1995. She worked as full time lecturer with the said Institute
from 1996 to 1999. On 10/05/1999, an advertisement was issued by
the said Institute for the post of lecturer in Computer Applications.
Petitioner was selected and appointed by duly constituted Selection
Committee on 13/03/2000. However, since the post on which the
Petitioner was appointed, was reserved for Scheduled Caste, the
Petitioner was appointed on year to year basis. The appointment of
the Petitioner was also approved by Respondent No.1. Petitioner was
also granted two additional increments on 24/03/2000, since the
Master Degree obtained by the Petitioner in the U.S.A. was treated as
equivalent to Degree of Master of Electrical Engineering of
Respondent No. 4 - University. Since the Petitioner was granted
approval on year to year basis, she was required to undergo selection
process every year. She therefore approached this Court by way of
Writ Petition No.1456 of 2003. In the said Petition, in Notice of
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Motion No.339 of 2003, an order came to be passed on 12/08/2003
that the Petitioner cannot be replaced by another ad-hoc candidate. In
the said Petition, again, vide order dated 04/02/2005 in Notice of
Motion No.20 of 2005, this Court observed that since an open category
post was advertised, Petitioner should be continued on that post till
disposal of the Petition. Petitioner was granted approval by the
University vide Order dated 01/04/2005 with effect from 15/03/2000.
Respondent No.1 also granted approval to the Petitioner vide order
dated 11/07/2005 with effect from 03/03/2003, subject to final
outcome of the Petition.
6] In the meantime, on 18/08/2007, Respondent No.3 - Institute
issued an advertisement for the post of Assistant Professor in general
category in the subject of Computer Applications. Petitioner came to
be selected by duly constituted Selection Committee for the said post
on 18/12/2007. As per selection, Petitioner came to be appointed
from 07/01/2008. However, vide order dated 7/11/2012, the
proposal for grant of approval to the Petitioner's appointment was
rejected by Respondent No.1. Since Respondent No.3 - Institute was
of the view that post-graduate degrees obtained by the Petitioner from
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the University in U.S.A were equivalent to the Post-graduate degrees of
Respondent No.4 - University, it forwarded the Certificates of the
Petitioner to Respondent No.1. However, vide order dated
26/07/2016, approval again came to be rejected on the ground that
the Petitioner's basic qualification of B.Sc. was not in the subject
concerned. In this premises, the Petitioner has approached this Court,
challenging the aforesaid two orders.
7] Heard Mr. Mihir Desai, learned Senior Counsel, appearing on
behalf of the Petitioner, Mr. Ashutosh Kulkarni, learned Counsel
appearing on behalf of Respondent No.3 as well as Mr. A.L. Patki, the
learned Additional Government Pleader appearing on behalf of
Respondent Nos. 1 and 2.
8] In the present case, Petitioner as well as the University and
employer of the Petitioner i.e. Respondent No.3 - Institute have taken
a stand that the Petitioner is duly qualified as per the norms laid down
by Respondent No.5, which is a apex body in the field of technical
education. They therefore submitted that the Petitioner, having been
duly selected by duly constituted Selection Committee and the
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Petitioner's appointment having been approved by Respondent No.3 -
University, the impugned orders are not sustainable in law.
9] Mr. Patki, learned AGP appearing on behalf of the State,
vehemently opposes the Petition. He submits that, Respondent No.3 -
College is receiving grant-in-aid from the State Government. Learned
AGP therefore submits that Respondent No.3 is bound to follow the
Rules laid down by the State Government with regard to qualification
prescribed by the State Government vide its Notification dated
05/09/2000. Learned AGP submits that though the Petitioner
possesses requisite post-graduate degree and Ph. D. degree in the
subject concerned, since she does not possess basic degree of B.Sc. in
the subject concerned, approval has rightly been rejected. Learned
AGP fairly submits that, if there is a conflict between the provisions
framed by Respondent No.5 - AICTE and the State Government, the
norms laid down by Respondent No.5 shall prevail. However, he
submits that there is no apparent conflict between the provisions
framed by the State Government and the rules framed by Respondent
No.5.
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10] A perusal of the Notification dated 05/09/2000, would reveal
that the said Rules are titled as " 'the Professor, Assistant Professor and
Lecturer in Computer Engineering and Computer Science for post-
graduate degree course in Master in Computer applications in
Government Engineering Colleges (Recruitment) Rules, 2000". Not
only that, the Preamble of the said Rules itself, would reveal that the
said Rules are framed for making appointment to the Maharashtra
Engineering College Teacher's Service Group A in Government
Engineering Colleges under the Higher and Technical Education
Department of the Government of Maharashtra. Admittedly,
Respondent No.3 - Institute is not a Government Engineering College
as defined under the said Rules, though it may be receiving grant-in-
aid from the State Government. Respondent No.3 is a Central
Technological Institute in Maharashtra State, having an autonomous
status and affiliated to Respondent No.4 - University.
11] We are therefore of the considered view that the said
Notification would not be applicable to the appointment to be made by
Respondent No.3. However, Respondent No.3 would be bound to
follow the norms laid down by Respondent No.5 - AICTE, which is an
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Apex Body in the field of technical education. It will be relevant to
refer to the qualification prescribed by the AICTE for the first time by a
Notification dated 05/03/2010. A perusal of the same, would reveal
that the said Rules shall apply to technical institutions and Universities
including deemed Universities imparting technical education and such
other courses / Programs and areas as notified by the Council from
time to time. In so far as subject is concerned, the relevant
qualification would be found in the said Regulations as under:-
Faculty Norms
Programme Cadre Qualifications Experience
.............. .............. .....................
MCA Asstt. BE/BTech and ME/M.
Professor Tech in relevant branch
with First Class or
equivalent either in
BE/BTech or ME/MTech
OR
BE/BTech and MCA with
First Class or equivalent
in either BE / BTech or
MCA
OR
MCA with first class or
equivalent with two
years relevant
experience.
Not only this, Respondent No.5 - AICTE has also issued further
Notification dated 04/01/2016, the relevant portion of which, reads
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thus :-
A. ISSUES RELATED TO QULAIFICATION
Sr Issue Clarification
No
1 Whether a person with under The Institutions should not
mentioned qualification is eligible for consider these qualification for
CAS and/or for Appointment as direct recruitment for faculty
faculty in Degree and Diploma level position, at any level of post
Technical Institutions. from the date of publication in
Official Gazette (i.e. AICTE
(a) MC/M.Sc in Mathematics/ Regulations, 2010). However,
Physics/ Electronics / Computer existing incumbents recruited
Science and allied subjects with as a faculty with these basic
ME/M. Tech/Ph. D in Computer minimum qualifications prior
Science/ Information Technology to to the issue of AICTE
teach in Computer Science, IT & Engg. Regulations 2010 are to be
Courses. considered for Career
Advancement Scheme (CAS),
(b) M. Sc. (Electronic Science) and subject to fulfilment of other
M.E. (ET&T) qualification. eligibility criteria and higher
qualification prescribed, if any,
(c ) Master of Science in Information for various levels of posts.
Technology (M.Sc. IT) to teach in CSE
program.
12] It could thus be seen that the relevant qualification as prescribed
by Respondent No.5 - AICTE for the post of Assistant Professor is that,
either the candidate should have BE/BTech and ME/M. Tech in
relevant branch with First Class or equivalent either in BE/BTech or
ME/MTech. The candidate would also be qualified if he has BE/
BTech and MCA with First Class or equivalent in either BE / BTech or
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MCA. It further provides that the candidate possessing Degree of
MCA with first class or equivalent with two years relevant experience
would also be qualified. Not only that, 2016 clarification would
further reveal that the Institutions are required not to consider these
qualifications for direct recruitment for faculty position, at any level of
post from the date of publication in Official Gazette (i.e. AICTE
Regulations, 2010). However all existing incumbents recruited as
faculty with basic minimum qualifications, provided in clause -1 prior
to the issue of AICTE Regulations, 2010 are to be considered for
Career Advancement Scheme (CAS), subject to fulfilment of other
eligibility criteria and higher qualification prescribed, if any, for
various levels of posts.
13] In this background, it will be relevant to refer to the
communication addressed by Respondent No.4 - University to the
Petitioner on 05/03/2005, which reads as under:-
"With reference to your letter dated 3 rd
March 2005 requesting to issue equivalence
certificate equating the M.Sc Physics
(Electronics) degree course of this University
as equated to the M.Sc degree course in
Electronics, I am to inform you that the M.Sc
degree in Physics (with specialisation in
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Electronics) passed by you has been treated as
equivalent to the M.Sc. Electronics degree."
It could thus be clearly seen that Respondent No.4 - University has
clearly certified that M.Sc. Degree in Physics with specialisation in
Electronics passed by the Petitioner has been treated as equivalent to
the M.Sc. Electronics degree. It will further be relevant to refer to the
another communication of the University dated 16/12/1999 addressed
to the Petitioners, which reads thus:-
"With reference to your letter dated 3 rd
November, 1999 in the matter of equivalence of
the M.Sc in Electrical Engineering of the
University of Louisville, U.S.A. with the M.E.
Degree examination of this University, I am to
inform you that the Master of Science in
Electrical Engineering of the University of
Lousville, U.S.A. is recognised as equivalent to
the M.E. degree examination of this University
for admission to the Higher course of study in
this University."
It could thus be clearly seen that Respondent No. 4 - University has, in
unambiguous terms, certified that M.Sc in Electrical Engineering of
the University of USA is equivalent with the M.E. Degree examination
of Respondent No.4 - University. Not only that, the Association of
Indian Universities has also granted similar certificate. However, we
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need not go into the said certificate inasmuch as Respondent No.4 -
University to which Respondent No.3 - College is affiliated has, in
unambiguous terms, held degree obtained by the Petitioner to be
equivalent to the degree of Respondent No.4 - University.
14] It will also be relevant to refer to the advertisement issued by
Respondent No.3 in response to which the Petitioner has applied. The
relevant portion of which reads as under:-
"ASSISTANT PROFESSOR
. Qualification: Ph. D. degree in any
branch of Science / Engineering /
Technology with first class degree at
Bachelor's or Master's level in Computer
Engineering / Technology
or
Ph.D. Degree in Computer Science with
First Class in MCA
(desirable Ph D in Computer Science /
Engineering / Technology)
. Experience : Three years experience or
equivalent after Ph D"
It could thus be seen that the qualification prescribed by Respondent
No.3 was Ph.D. Degree in any branch of Science / Engineering /
Technology with first class degree at Bachelor's or Master's level in
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Computer Engineering / Technology or Ph. D. Degree in Computer
Science with First Class in MCA.
15] It is pertinent to note that the Selection Committee, which had
selected the Petitioner, consisted of Respondent No.1 himself as well
as his additional nominee in addition to other members of the
Committee. The Selection Committee duly constituted, unanimously
recommended name of the Petitioner for the post of Assistant
Professor, subject to her completing Ph.D. within a stipulated period
as per AICTE norms. Resolution would further reveal that since
Respondent No.3 is an autonomous Institute, qualification as provided
by Board of Governance of Respondent No.3 was found to be
possessed by the Petitioner. It is not in dispute that the Petitioner has
obtained a Degree of Ph.D. within a period prescribed by the AICTE.
The only ground on which, according to Respondent No.1, the
Petitioner is not qualified is that she does not possess B.Sc. Degree in
the subject of Computer Applications.
16] As discussed hereinabove, Rules on which learned AGP relies,
are the Rules governing the service conditions of the employees to be
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employed in Maharashtra Engineering College Teacher's Service Group
A in Government Engineering Colleges under the Higher and
Technical Education Department of the Government of Maharashtra.
Admittedly, Respondent No.3 is neither a Government Engineering
College nor the post to which the Petitioner is selected falls in the
Cadre of the Maharashtra Engineering College Teacher's Service
Group A. We are therefore of the considered view that the relevant
qualification would be as per the norms laid down by Respondent
No.5 -AICTE, which Petitioner undisputedly possesses. Not only that,
Respondent No.4 - University to which Respondent No.3 is affiliated,
has already granted approval to the Petitioner's appointment on
29/04/2016 with effect from 07/01/2008. In this premises, we find
the action of Respondent No.1 in refusing to grant approval to the
Petitioner's appointment would not be sustainable.
17] In the result, the impugned orders dated 05/11/2012 and
26/07/2016 are quashed and set aside. Respondent No.1 is directed
to grant approval to the appointment of the Petitioner, which was
made from 07/01/2008 in pursuance to the recommendation of the
Selection Committee dated 18/12/2007. The same shall be done
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within a period of two weeks from today.
18] Rule is made absolute in the aforesaid terms.
19] At this stage, Mr. Patki, learned AGP, prays for stay to the order
passed by this Court for a period of six weeks. Taking into
consideration the view that we have taken, prayer is rejected.
(B. P. COLABAWALLA, J. ) (B. R. GAVAI, J. )
