Bombay High Court
Sunil Rauprao Adhau And Another vs The State Of Maharashtra And ... on 7 May, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9611 OF 2018
Dr. Sadanand Shrinivas Deshpande
and others .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Mr. Kunal Kataria, Advocate i/by Mr. S. S. Jadhavar, Advocate for the
Petitioners.
Mr. S. G. Karlekar, AGP for Respondent Nos. 1 to 3.
Mr. C. V. Dharurkar, Advocate for Respondent No. 4.
Mr. Ajay S. Deshpande, Advocate for Respondent Nos. 5, 7, 8 and 16.
WITH
WRIT PETITION NO. 9662 OF 2018
Dr. Sunil Rauprao Adhau
and another .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Mr. Kunal Kataria, Advocate i/by Mr. S. S. Jadhavar, Advocate for the
Petitioners.
Mr. S. G. Karlekar, AGP for Respondent Nos. 1 to 3.
Mr. C. V. Dharurkar, Advocate for Respondent No. 4.
Mr. Ajay S. Deshpande, Advocate for Respondent Nos. 5, 7, 8 and 16.
CORAM : S. V. GANGAPURWALA &
SHRIKANT D. KULKARNI, JJ.
Date on which reserved for orders : 09th April, 2021.
Date on which order pronounced : 07th May, 2021.
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ORDER ( PER S. V. GANGAPURWALA, J. ) :-
. The petitioners are working as Lecturers (Selection Grade). The
petitioners applied for the post of Principal, Government Polytechnic
College (Group - A). Their candidature is rejected. Aggrieved thereby,
the petitioners filed Original Application No. 1116 of 2017 before the
Maharashtra Administrative Tribunal Mumbai, Bench at Aurangabad.
The Tribunal dismissed the original application under judgment and
order dated 18.07.2018.
2. The gravamen of the petitioners contention appears to be that
the experience acquired working on the post of Lecturer (Selection
Grade) is equivalent to the experience of the person officiating as Head
of Department interalia eligible to apply for the post of Principal,
Government Polytechnic College (Group - A). The case of the
respondents rests on the premise that the post of Lecturer (Selection
Grade) is not equivalent to the post of Head of Department interalia
person officiating as Lecturer (Selection Grade) is not eligible to apply
for the post of Principal. The contention of the petitioners did not find
favour with the Tribunal. The Tribunal dismissed the Original
Application.
3. Mr. Kataria, learned counsel for the petitioners eruditely
canvassed the submissions. The contour of the submissions is summed
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up as under :
A. The All India Council for Technical Education (for short 'AICTE')
notifications dated 30.12.1999 and 04.01.2016 list the academic and
administrative responsibilities of the Lecturers (Selection Grade) in
Polytechnic institutions. The said notifications very clearly suggest that
the Lecturers (Selection Grade) also possess administrative
responsibilities and, therefore, have experience in educational
administration. The Tribunal has laid emphasis only on the question
whether the post of Head of Department (HOD) and Lecturer
(Selection Grade) are the same. In the present matter the controversy
would be whether the administrative experience of the petitioners is
equivalent to the post of Head of Department. The AICTE has clarified
by letter dated 27.12.2017 that the term "administrative experience"
and "educational administration" are synonymous for academicians.
The AICTE pursuant to the query of this Court on 16.10.2019 clarified
that there are only three designations of teachers in Polytechnic namely
Lecturer, Head of Department and Workshop Superintendent. Since
Lecturer (Selection Grade) and Head of Department both carry similar
pay band and AGP of Rs. 9000/- . The service rendered by the Lecturers
(Selection Grade) can be considered for his eligibility to the post of
Principal, provided that he has the qualifications of the Head of
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Department. In view of AICTE's clarification, the debate ought to end
and ought to have been held that Lecturer (Selection Grade) are
competent to be considered for the post of Principal. The Head of
Department carry out administrative activities. Even the Lecturers
(Selection Grade) carry out educational administrative activities and,
therefore, ought to have held eligible for selection to the post of
Principal.
B. It is emphatically contended that if there is a conflict between
the provisions framed by AICTE and the State Government, the norms
laid down by the AICTE would prevail. The learned counsel relies on
the following judgments.
a. Mrs. Anala Pandit Vs. Director, Directorate of Technical
Education & Ors. (2018) SCC OnLine Bom 463 - para 8, 9 and
11.
b. State of TN and Anr Vs. Adhiyaman Educational &
Research Institute and Others (1995) 4 SCC 104 - para 12 and
41.
c. Parshvanath Charitable Trust and Ors. Vs AICTE & Ors
(2013) 3 SCC 385 - para 24.
C. In the present case, the advertisement issued by the Government
of Maharashtra is not in conflict with AICTE notification. However, the
respondents interpretation is without considering AICTE clarifications.
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D. The M.P.S.C. as well as the Tribunal failed to consider the binding
clarification issued by the AICTE while interpreting the advertisement.
The whole attempt by the M.P.S.C. and the Tribunal was to find out
sources of the definition of 'equivalent'. The AICTE notification dated
04.01.2016 itself laid down the equivalence in clarification No. 48 r/w
clarification No. 62. The AICTE clarification dated 04.01.2016 and
notification dated 05.03.2010 are statutory rules governing the
advertisement in question. Once the statutory rules clearly lay down
the principle that a Lecturer (Selection Grade) has experience in
educational administration, is eligible to apply for the post of principal.
The equivalence is created by deeming fiction in the statutory rules and
the petitioners ought to have been held eligible for appointment to the
post of Principal. Under clarification dated 04.01.2016 to the
notification dated 05.03.2010, the AICTE has observed and held that at
diploma level the workload of Head of Department and Lecturer
(Selection Grade) is 14 hours per week. The respondents are
erroneously contending that workload of Head of Department is 14
hours per week and Lecturer (Selection Grade) is 18 hours per week.
E. The petitioners possess the qualification for being appointed to
the post of Principal as per the AICTE notification and the
advertisement. The advertisement will have to be interpreted in
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consonance with the AICTE notifications. On 27.02.2003 the
Government of Maharashtra under the Government Resolution adopted
the responsibilities listed in AICTE notification of 1999 and agreed that
teachers in Polytechnic institution also perform administrative duties.
The list of the administrative duties are enlisted in Appendix - C of the
said Government Resolution.
F. It is further submitted that career advancement scheme also does
not recognize the post of Head of Department to be superior to the post
of Lecturer (Selection Grade) and the Head of Department is one of the
Lecturer (Selection Grade) and effectively a first among equals. The
Tribunal has failed to consider the relevant aspects in the matter in its
correct perspective and impugned order deserves to be set aside. The
petitioners be considered eligible for the post of Principal. The learned
counsel further submits that it will not be necessary to dislodge the
respondents selected as principals as there are vacant posts for
accommodating the petitioners as Principal available.
4. Mr. Karlekar, the learned Assistant Government Pleader lucidly
canvassed the following propositions.
I. As per the relevant recruitment rules and the Government
Resolutions issued from time to time, the cadres in diploma level
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institution comprises of Director / Principal and other two cadres are
Lecturer and Head of Department. There is no separate cadre of
Lecturer (Selection Grade) to which the petitioners belong and the
posting of Lecturer ( Selection Grade) is only to avoid stagnation and is
a career advancement avenue and forms part of the approved cadre viz.
Lecturer.
II. The post of Head of Department as per the recruitment rules
dated 28.08.2008 was to be filled in by promotion on the basis of
seniority amongst Lecturers working in Selection Grade scale and by
nomination from amongst the candidates possessing seven years
experience of industry or research with at least three years experience
as a Lecturer in Polytechnic College and other criteria. As per the
recruitment rules of 2012 notified vide notification dated 10.09.2012
the post of Head of Department is to be filled in by nomination.
III. The Lecturer (Selection Grade) is a feeder cadre for considering a
candidate for appointment as Head of Department in Polytechnic
College. The petitioners had also applied pursuant to the advertisement
for filling up post of Head of Department. Some of the petitioners were
also selected. The petitioners participated in the process for
appointment to the post of Head of Department. It also clearly
establishes that petitioners have presented themselves for appointment
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to the post of Head of Department and as such, acceded to the fact that
Head of Department forms a separate cadre. Therefore, the experience
as a Lecturer (Selection Grade) cannot be termed as an experience
equivalent to the experience of officiating as a Head of Department.
The workload amongst the Head of Department and Lecturer (Selection
Grade) also defers. The workload of Head of Department is 14 hours a
week and for Lecturer (Selection Grade) it is 18 hours a week. The pay
scale also defers. The pay scale of Lecturer (Selection Grade) is
Rs. 15,600 - 39,100/- with Grade Pay of Rs. 8000/- for first three years
and thereafter they get pay scale of Rs. 37,400 - 67,000/- with Grade
Pay of Rs. 9000/- after completion of three years. Whereas, Head of
Department from the date of their appointment are placed in the pay
scale of Rs. 37,400 - 67,000/- with Grade Pay of Rs. 9000/- and on
completion of three years they are entitled for Grade Pay of
Rs. 10,000/- . Even otherwise, pay scale cannot be a criteria to consider
equivalence.
IV. The reliance placed by the petitioners on Government Resolution
dated 27.02.2003 and claiming the responsibilities enumerated therein
as an experience akin to experience of educational administration and
further reliance on Note 62 in the clarification issued by AICTE also
cannot be considered for the simple reason that those job
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responsibilities are carried out by all the Lecturers. Therefore, if, the
same is to be accepted, then the Lecturer irrespective of whether they
are officiating as Lecturer (Selection Grade) would have to be
considered eligible for the post of Principal and the requirement of
experience of Head of Department would be rendered redundant.
5. Mr. Deshpande, learned counsel for the respondent Nos. 5, 7, 8
and 16 supports the contentions of the learned A.G.P.
6. We have considered the submissions canvassed by the learned
counsel for respective parties.
7. The diapason of the lis is interpretation of clause 4.3 (b) of the
advertisement. Clause 4.3 of the advertisement prescribes the
qualification for the post of Principal. The same reads thus :
4.3 'kS{kf.kd vgZrk o vuqHko %&
(A) Bachelor's degree and Master's degree of appropriate
branch in Engineering / Technology with First Class or
equivalent either at Bachelor's or Master's level.
OR
(B) Bachelor's degree and Master's degree of appropriate
branch in Engineering / Technology with First Class or
equivalent either at Bachelor's or Master's level And Ph.D. or
equivalent in appropriate discipline in Engineering/
Technology.
AND
(C) Minimum of 10 years relevant experience in teaching /
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research / industry out of which at least 3 years shall be at the
level of Head of Department or equivalent.
Note (1) - In case of Architecture, professional practice of
10 years as certified by the Council of Architecture shall also
be considered valid.
Note (2) a. Equivalence for Ph.D. is based on publication of 5
international journal papers, each journal having a cumulative
impact index of not less than 2.0, with incumbent as the main
Author and all 5 publications being in the authors area or
specialization.
b. In case of research experience, good academic
record and books / research paper publications / IPR / patents
record shall be required as deemed fit by the expert members
of the Selection Committee.
c. If the experience in industry is considered, the same
shall be at managerial level equivalent to head of the
department with active participation record in designing,
planning, executing, analyzing, quality control, innovating,
training, technical books / research paper publications / IPR /
patents / etc. as deemed fit by the expert members of the
Selection Committee.
d. For the post of Principal flair for management and
leadership is essential as deemed fit by the expert members of
the Selection Committee.
8. Perusal of the advertisement, 10 years relevant experience may
be in teaching or research or industry. Out of that, three years shall be
at the level of Head of Department or equivalent to the position of
Head of Department. Perusing clause 4.3 (C) it would appear that if a
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person possesses qualification as detailed in clause 4.3 (A) or (B) then,
a person possessing 10 years relevant experience in teaching at the
level of Head of Department or equivalent or 10 years experience in
research at the level of Head of Department or equivalent or 10 years
experience in industry at the level of Head of Department or equivalent
is eligible to apply. The post of Principal can be occupied by a person
from stream of teaching or research or industry. Note 2 (b) of the
clause 4.3 prescribes the criteria for research and in case of person
from industry the officiation at managerial level is equivalent to Head
of Department.
9. The petitioners herein are Lecturers (Selection Grade) and they
claim equivalence of possessing experience of the persons functioning
at the level of Head of Department. The Maharashtra Administrative
Tribunal negatived the contention of the petitioners.
10. Under the service jurisprudence the true attribution for
equivalence are the nature and responsibilities of the duties attached to
the two posts and also its status. Mere pay scale of two posts would not
be a determinative factor.
11. The petitioners' case rests on the premise that the job
responsibilities of the Lecturer (Selection Grade) and Head of
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Department is similar. Their pay scales are also similar. The petitioners
have relied upon the Appendix - C of the Government Resolution
issued by the Government of Maharashtra dated 27.02.2003 to
substantiate the contention of similarity of job responsibilities between
Lecturer (Selection Grade) and Head of Department. The same reads
thus :-
APPENDIX -
JOB RESPONSIBILITIES OF TEACHER
(Diploma Level Technical Institutions)
Academic RES and Administration Extension
Consultancy
Teaching Diploma & R & D work on Assisting in Assisting in
Post-diploma courses Industrial Institution/ Extension services
including lecturers, problems & Department to the industry
laboratory & tutorials projects Administration
planning & its
implementation
Students assessment & Publication of Organizing R & D Contributing to
evaluation including Technical papers Work in Community
Examination work of industrial Activities
the State Board of Problems &
Technical Educational Projects
Planning and Promotion of Academic & Public relations &
implementation of Industry Administrative interaction with
Instruction in institution Management of community.
Laboratory collaboration & Institution
industry oriented
R&D
Developing resource Organizing & Preparation of Providing non
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material and curricula. Coordinating project proposals Formal/distance
Consultancy for funding Mode of Education
services for benefit of
community
Design & Developing of Providing Development Promotion of
laboratory instructions testing /Repaid Administration & Entrepreneurship
services Management of and job creation
institutional
facilities
Participation in the Co- Providing Dissemination of
curricular and academic And Knowledge
Extracurricular administrative
Activities Leadership
Student guidance & Monitoring & Technical support
counseling & helping Evaluation of to socially relevant
their character academic projects
development Activities in the
institution
Innovation in Participation in
Technician education & policy and
Evaluation system planning
at State Regional
& National Level
for development
of technical
education
Providing leadership in Assisting in
teaching Diploma & resource
Post Graduate Diploma mobilization for
courses the institution
Promoting & Maintaining
coordinating continuing Accountability,
Education Activities Developing,
updating and
maintaining MIS
Self development To conduct
through Up-gradation performance
of, knowledge and skills appraisal
12. The job responsibilities of the Head of Department as detailed
and relied by the respondents are as under :-
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Responsibilities :-
1. Head of Department is answerable to the Principal of the
Polytechnic for all academic and administrative/personnel activities of
the department.
2. Academic and administrative management of the department.
3. Assessing the requirements of the material, financial and human
resources for effective implementation of prescribed curricula of
program offered by the department.
4. Planning, scheduling, coordinating and monitoring the
curriculum implementation pertaining to the department.
5. Responsible authority to perform academic, personnel and
security functions and to maintain necessary records (like DSR) of the
departmental assets in stipulated formats.
6. To act as facilitator for the departmental faculty in laboratory
development, laboratory set-up, and laboratory maintenance.
7. Provide motivation & guidance to faculty and other staff in the
department.
8. Participate, motivate, guide & facilitate professional
development through continuing education, testing and consultancy &
research.
9. Identify and organize faculty and supporting staff development
programs.
10. To act as authority for coordinating and conducting
examinations / test examinations.
11. Maintaining students attendance record submitted by the
lecturers and students evaluation record.
12. Development and implementation of short term and long term
plan for department development and quality improvement.
13. Preparation of timetable and mobilization of teaching-learning
resources.
14. Provide guidance & counseling and other student services at
department level.
15. Plan, organize and facilitate industry visits and expert lectures.
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16. To plan and implement the activities to take care of hygiene,
safety and house keeping in the department.
17. Take teaching load prescribed as per the norms issued time to
time by State Government.
18. Evaluate the performance of the faculty and supporting staff.
19. Create, maintain and motivate cordial relations and team spirit
in the team working under him/her & provide impartial opportunities
for contribution to faculty & staff.
20. Promote, guide, facilitate and participate in professional
activities through interaction with industries, consultancy, testing,
continuing education and trainings, industry sponsored projects,
entrepreneurship development.
21. Assist Principal in institute level activities.
22. Keep abreast of the newer knowledge, skills and technology
through self-up-gradation and dissemination of knowledge through
articles, books, journals and seminars etc.
23. Self development through qualification improvement,
experience enrichment, professional activities and interactions with
professional bodies.
24. Participate in non-formal mode of education for benefit of
society/Community.
25. Certify and recommend the vouchers/bills of department/
related expenditures for further processing.
26. To plan and implement the activities to take care of hygiene,
safety and house keeping in the institute.
27. To develop and maintain inter departmental relation for
effective working in the institute.
28. Motivator and facilitator for carrying co-curricula and extra
curricular activities for developing overall personality of students.
13. Perusing the job responsibilities of Head of Department and the
Lecturer (Selection Grade), it cannot be said that they are similar. The
Head of Department is in-charge of the academic and administrative
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management of the department. He acts as facilitator for the
departmental faculty in laboratory development, laboratory set-up and
laboratory maintenance. He has to maintain the students attendance
record submitted by the lecturers and students evaluation record. It is
the Head of Department who evaluates the performance of the faculty
and supporting staff. The Head of Department has to assist the
Principal in institute level activities. Some of the duties of the Lecturer
(Selection Grade) and the Head of Department would be overlapping.
The evaluation of the lecturers performance is made by the Head of
Department. As per Government Resolution dated 25.03.1997 the
Reporting Officer for the Lecturers, Lecturers in Senior & Selection
Scale is the HOD and Reviewing Officer is the Head of Organisation,
whereas, Reporting Officer for HOD is the Principal. As per the
Government Resolution dated 25.03.1997 the Head of Department is
an administrative head in so far as his department is concerned.
14. As per the Government Resolution dated 27.02.2003 only two
cadres are recognized. Level 1 is a cadre of Lecturer and level 2 is the
cadre of Head of Department. The status of the Lecturer (Selection
Grade) and Head of Department is also distinct. The Lecturer
(Selection Grade) is answerable to the Head of Department. Clause 7 of
the Government Resolution dated 27.02.2003 prescribes the cadres.
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The same is as under :-
7. Cadre Structure :
(A) For each diploma level institution there shall be one post
Director / Principal. In addition each Department shall have one
post of
Head of Department if there are more than one department in
the Institute. The other cadres shall be as under :-
Level Cadre
I Lecturer
II Head of Department
(B) The required total strength of teachers in the institution
including Heads of Departments will be determined by the
staff/student ratio as per A.I.C.T.E. norms or as per actual
workload of Institutes whichever is less.
(C) In addition to the cadre structure mentioned in sub-para
(A) above the career Advancement Scheme shall provide for the
following teaching positions but within the overall sanctioned
strength of each Department:
i) Lecturer (senior scale)
ii) Lecturer (Selection Grade)
15. The Principals are in pay band of Rs. 37,400-67,000 with AGP of
Rs. 10,000/- + special allowance of Rs. 2000/- per month.
16. As per the AICTE notification dated 05.03.2010 the Lecturer
(Selection Grade) after completing three years of teaching with AGP of
Rs. 8000/- is eligible to move to the pay band of Rs. 37,400-67,000
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with AGP of Rs. 9000/-. The person officiating as a Head of
Department is directly placed in the pay band of Rs. 37,400-67,000
with AGP of Rs. 9000/-.The Head of Department completing three
years of service in the AGP of Rs. 9000/- and possessing Ph.D.
qualification in the relevant discipline is eligible to be placed in pay
band of Rs. 37,400-67,000 with AGP of Rs. 10,000/-.
17. It thus would appear form the above that a Lecturer (Selection
Grade) at the most is eligible for AGP of Rs. 9000/-. Whereas, the Head
of Department from the day one of his officiation is placed in AGP of
Rs. 9000/-. Upon completion of three years, he is eligible to be placed
in AGP of Rs. 10,000/-. Under the advertisement, for a person to be
eligible to apply for the post of Principal the candidate should have
worked at least three years at the level of Head of Department or
equivalent. The Head of Department after three years is placed in AGP
of Rs. 10,000/-. Whereas, Lecturer (Selection Grade) can move upto
maximum to the AGP of Rs. 9000/-.
18. The petitioners are harping on the clarification dated
04.01.2016. The AICTE has clarified that a faculty of Engineering and
Technology with minimum 10 years relevant experience in teaching /
research out of which three years in the same grade i.e. Rs. 9000/- at
par with Head of Department is eligible for the post of Principal in
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Polytechnic, provided the person also has an administrative experience
of at least three years and under column No. 62 it is clarified that
experience in education administration for the purpose of appointment
of Principal / Director in Technical Institution can be considered.
19. The AICTE notification dated 04.01.2016 is only clarification of
the notification dated 05.03.2010.
20. It would also appear that upto the year 2012 the post of Lecturer
(Selection Grade) was a feeder cadre for the post of Head of
Department when the post of Head of Department is filled in by
promotion. It is only under the notification dated 10.09.2012 the posts
of Head of Department are filled in by nomination. It is also fact that
some of the petitioners had appeared for the selection of Head of
Department and had failed in getting selected.
21. The process of placing a Lecturer in senior scale or selection
grade is not a promotion. The person remains the Lecturer. Only
because his qualification and experience he is given a higher scale. It is
only a placement in the pay scale of a selection grade. The job
responsibilities of the Lecturer, Lecturer (Selection Grade) and Head of
Department are quite different and are commensurate to their
nomenclature. The Head of Department is an academic post, but it has
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to perform the administrative job of the department. If the job
responsibilities as are seen, then even other lecturers would be
performing the similar job responsibilities as that of a Lecturer
(Selection Grade). The job responsibilities of Lecturers relied by the
petitioners irrespective of their placement in a senior scale or in a
selection grade is the same.
22. The reliance is placed by the petitioners in a case of
Dr. Bhabeshwar Tongbram Vs. Shri Rajkumar Nando Singh and others
of the High Court of Manipur at Imphal. In the said case the
administrative experience was three years. Educational administration
was considered to be sufficient experience.
23. The judgment in a case of Mrs. Anala Pandit (supra) of the
Division Bench of this Court at the Principal Seat at Bombay is on
altogether different facts. The eligibility criteria for the post of Lecturer
was a subject matter of consideration. The approval to her appointment
was rejected on the ground that the petitioners' basic qualification of
B.Sc. was not in the subject concerned, however, possessed the Ph.D.
and the Post Graduate degree in the concerned subject. It is in that
context, this Court held that the petitioner therein was eligible. The
judgment in a case of State of Tamilnadu and Anr. (supra) lays down
that the State Acts cannot lay down standards and requirements higher
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than those prescribed by the Central Act for Technical institutions. The
inconsistent provisions of the State Act were declared void. The
judgment in a case of Parshvanath Charitable Trust and Ors. (supra)
relied by the petitioners is on the similar lines. In the present case, the
matter in issue is completely different as discussed supra. The
experience as contemplated under Clause 4.3 (C) of the advertisement
of a Lecturer (Selection Grade) cannot be held to be equivalent with
that of Head of Department.
24. The conspectus of the aforesaid discussion leads us to conclude
that the Tribunal has not committed any error in negativing the
contention of the petitioners.
25. Writ petitions, as such, are dismissed. No costs.
( SHRIKANT D. KULKARNI ) ( S. V. GANGAPURWALA )
JUDGE JUDGE
P.S.B.
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