Calcutta High Court (Appellete Side)

Federation) & Ors vs The State Of West Bengal & Ors on 24 July, 2023

Form No. J(2)
                    IN THE HIGH COURT AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                            APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
           And
The Hon'ble Justice Md. Shabbar Rashidi

                                 WP.ST 238 of 2014
                            IA NO: CAN/2/2016(Old No:CAN/6557/2016)
                                CAN/4/2019(Old No:CAN/2592/2019)
                                CAN/5/2019(Old No:CAN/6775/2019)
                                CAN/6/2020(Old No:CAN/2046/2020)
                                           CAN/7/2020
     West Bengal (Government and Sponsored) Polytechnic Teachers'
        Association (Formerly West Bengal Polytechnic Teachers'
                           Federation) & ors.
                                   VS.
                     The State of West Bengal & ors.

For the Writ Petitioners/
        Appellants               :      Mr. Samim Ahammed,
                                        Ms. Gulsanwara Pervin,
                                        Ms. Ambiya Khatun
                                                                Advocates
For the State                    :      Mr. Tapan Kumar Mukherjee,
                                                    Sr. Advocate & A.G.P.
                                        Mr. Pranab Halder,
                                        Ms. Tuli Sinha
                                                          Advocates
Hearing concluded on             :      24.07.2023

Judgement on                     :      24.07.2023


DEBANGSU BASAK, J.:-

1.

The writ petitioners assail an order dated April 4, 2014

passed by the West Bengal Administrative Tribunal in O.A.322

of 2012.

2. By the impugned order, the Tribunal was pleased to

negate the claim for modified career advancement scheme as

prayed for by the writ petitioners.

3. The claim was negated by the Tribunal on the ground

that, the condition of participation in a refresher course was

introduced by the All India Council for the Technical

Education (AICTE) and was incorporated in Government Order

dated October 24, 2007 as well as in Government Order dated

September 13, 2010. The Tribunal noted the Government

Order dated November 28, 2011 which spoke of grant of

benefit of selection grade notionally with effect from the date of

entitlement even without participation in the training

programme as laid down in the Government Order dated

September 13, 2010. The Tribunal agreed with the contention

that it was not mandatory for the State Government to accept

all recommendations of AICTE in regard to pay scale or other

conditions of service in their entirety in respect of Polytechnic

Institutions under the control of the

State Government.

4. Learned advocate appearing for the petitioners submits

that, any regulation issued by the AICTE is binding upon the

State Government. He submits that, AICTE Regulations are

issued under the provisions of All India Council for Technical

Education Act, 1987. He relies upon (1995) 4 Supreme Court

Cases 104 (State of Tamil Nadu & another vs. Adhiyaman

Educational & Research Institute and ors.), (2013) 3

Supreme Court Cases 385 (Parshvanath Charitable Trust

and others vs. All India Council for Technical Education

and others), (2020) 4 Supreme Court Cases 484 (Gelus

Ram Sahu and others vs. Dr. Surendra Kumar Singh and

others), order dated March 31, 2016 passed by WP 30843(W)

of 2014 (Tarun Kumar Khanra & ors. vs. The State of West

Bengal & ors.), judgment and order dated July 20, 2018

passed in FMA 2801 of 2016 (The Director, Directorate of

Technical Education and Training, Government of West

Bengal) v. Tarun Kumar Khanra & ors. and the order dated

April 19, 2022 in Special Leave to Appeal (C) No(s).14606-

14607/2019 (The Director, Directorate of Technical Education

and Training Govt. of West Bengal & ors. vs. Tarun Kumar

Khanra & ors.) in support of his contention that regulations of

AICTE are binding upon the State.

5. Learned advocate appearing for the petitioners draws the

attention of the Court to the Regulation issued by the AICTE

dated March 5, 2010. He submits that such Regulation was

accepted by the State on September 13, 2010. He refers to a

Circular issued by the State dated June 8, 2011 as well as the

notification dated June 10, 2016. He contends that, State

accepted all Regulations of AICTE. Therefore, there was no

question of the State not granting the modified career

advancement scheme to the petitioners.

6. Learned Senior Advocate for the State submits that, the

so-called acceptance dated June 8, 2021, was issued by the

Directorate of Technical Education & Training, Government of

West Bengal, who was not authorised to issue such circular.

Such circular does not bind the State. He contends that, all

Regulations of AICTE are not binding on the State. State is

required to look after the financial aspect. State can formulate

its own Rule. In support of his contention he draws the

attention of the Court to the observations made by the Hon'ble

Supreme Court in Gelus Ram Sahu and others (supra).

7. The first petitioner is the Association of teaching staff

employed in Polytechnic Colleges within the State of West

Bengal both Government and sponsored. The other petitioners

are persons who hold offices of the first petitioner.

8. The petitioners approached the Tribunal by way of the

Original Application being O.A.322 of 2012 complaining that

the State was not acting in terms of the

recommendations/clarifications of the expert committee of

AICTE. The State Government did not remove the anomalies

pertaining to pay scales and service conditions of teachers of

degrees/diploma level technical institutions. The petitioners

sought quashing of Memo dated November 28, 2011 of the

State which according to the petitioners were not in

conformity with the recommendations/clarifications of the

Expert Committee of AICTE granting benefits of Career

Advancement Scheme (CAS) due and admissible to them.

9. By a notification dated November 28, 2011, State

Government took a decision with regard to award of CAS

benefit of selection grade scale (second CAS) in favour of

lecturers of Government/Government Sponsored Polytechnic.

One of the clauses was that, such lecturers shall be paid

actual benefits strictly with effect from the date of completion

of all other criteria including the training programme as

provided in Government Order dated September 13, 2010.

10. By the Government Order dated September 13, 2010,

State accorded sanction to revised Pay structures with

corresponding Academic Grade Pay, notionally with effect from

January 1, 2006. It inter alia prescribed that all advancements

to higher grade pay in various cadres will be effected subject to

completion of two AICTE approved refresher programmes of

not less than two weeks duration each and two one week each

Technical Education Quality Improvement Programme (TEQIP)

sponsored programmes.

11. AICTE issued a notification dated March 5, 2010 framing

regulations named as "All India Council for Technical

Education Pay Scale, Service Conditions, Qualifications for the

Teachers and other Academic Staff in Technical Institutions

(Diploma) Regulations, 2010".

12. The Regulations of 2010, introduced by the notification

dated March 5, 2010 by the AICTE required inter alia the

following qualifications:-

"(xvi) All advancements to higher grade pays in various cadres will be effected subject to completion of two AICTE approved refresher programs of not less than two weeks duration each and two one week each TEQIP sponsored programs."

13. By a notification dated November 28, 2011 State sought

to prescribe that, CAS benefit of selection grade scale (2nd CAS)

shall be paid strictly with effect from the date of completion of

all other criteria including the training programme as provided

by the Government Order dated September 13, 2010.

14. AICTE subsequently, clarified the regulation of 2010 on

June 10, 2016 by prescribing the following:

59 Consideration of relax Two courses/programs two one week each of one week duration TEQIP sponsored each approved or programs for CAS. conducted by AICTE/UGC/MHRD/D ST/Central/State Govt.

Universities/Institutes may also be considered as alternative to TEQIP programs.

15. By the notification of November 28, 2011 State claimed

that CAS benefit can be extended to only those persons who

undertook two one week each TEQIP sponsored programmes

and none less.

16. Petitioners claim that the alternative provided by AICTE

on June 10, 2016 is binding on the State as much as the

regulation of 2010.

17. State contends that, AICTE Regulations are not

mandatory on the State and that other criteria can be laid

down by the State. Petitioners contend that AICTE Regulations

are binding.

18. In Adhiyaman Educational and Research Institute &

Ors. (supra), the Supreme Court considered the issue as to

whether after coming into force of the All India Council for

Technical Education Act, 1987 the State Government retained

the power to grant or withdraw permission to start a technical

education as defined in the Central Act or not. In dealing with

such issue, the Supreme Court observed that where the

provisions of the Central statute on the one hand and of the

State statute on the other, are inconsistent and repugnant to

each other, the Central statute will prevail. It observed that,

the derecognition or disaffiliation on the grounds which are

inconsistent with those enumerated in the Central statute will

be inoperative.

19. Adhiyaman Educational and Research Institute and

ors. (supra) was considered in Parshvanath Charitable Trust

and ors (supra). It was held there that:

"24. The consistent view of this Court has been that where both Parliament and the State Legislature have the power to legislate, the Central Act shall take precedence in the matters which are covered by such legislation and the State enactments shall pave way for such legislations to the extent they are in conflict or repugnant. As per the established canons of law, primacy of the Central Act is indisputable which necessarily implies primacy of AICTE in the field of technical education.

Statutes like the present one as well

as the National Council for Teacher Education Act, 1993, the Indian Medical Council Act, 1956, etc. fall within the ambit of this canon of law.

AICTE is the authority constituted under the Central Act with the responsibility of maintaining operational standards and judging the infrastructure and facilities available for imparting professional education. It shall take precedence over the opinion of the State as well as that of the University. The department concerned of the State and the affiliating university have a role to play, but it is limited in its application. They cannot lay down any guidelines or policies in conflict with the Central statute or the standards laid down by the Central body. The State can frame its policies, but such policy again has to be in conformity with the direction issued by the Central body. Though there is no such apparent conflict in the present case, yet it needs to be

clarified that grant of approval by the State and affiliation by the University for increased intake of seats or commencement of new college should not be repugnant to the conditions of approval/recommendation granted by AICTE. These authorities have to work in tandem as all of them have the common object to ensure maintenance of proper standards of education, examination and proper infrastructure for betterment of technical educational system."

20. In paragraph 25, Parshvanath Charitable Trust & ors

(supra) held that, Regulations framed by the Central

authorities such as AICTE have the force of law and are

binding on all concerned.

21. On the strength of Parshvanath Charitable Trust & ors

(supra) it can be said that, regulations framed by AICTE have

the force of law. State cannot lay down a policy or a guideline

in conflict with any regulation of AICTE. Policy of the State

needs to be in conformity with the regulation or direction of

AICTE.

22. Gelus Ram Sahu and ors. (supra) considered the issue

of cancellation of an appointment of persons since it was

alleged that it violated the provisions of AICTE Regulation of

2010. In the facts of that case, the Supreme Court found that,

the appellant satisfied the eligibility criteria prescribed under

the AICTE Regulation of 2010 and therefore, his appointment

should remain untouched.

23. The Single Bench in Tarun Kumar Khanra & ors.

(supra) considered the prescription of a pay scale for lecturers

by the AICTE Regulation of 2010. The decision was upheld by

the Division Bench. The Special Leave Petition preferred

against the same was dismissed. The Division Bench observed

as follows:-

"21. Since under the provisions of the West Bengal State Council of Technical Education Act, 1995, the power to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations, is uniform, under

Section 15(1)(viii), there cannot be two separate staff patterns for Government polytechnics and non-

Government polytechnics, for the same purpose, especially when the State of West Bengal has accepted the recommendations of the expert body by making the said Rules of 2009 as amended by the transitory provisions for junior lecturers already in service and for direct recruitment by the Rules of 2012, where also there is no scope for having junior lecturers, but only lecturers as the lowest teaching post. The State has made the rules for carrying out the purposes of the Act of 1995, under Section 32 thereof, and no distinction has been made between Government polytechnics and private polytechnics so long as they are affiliated to the Council established by the said statute and it is nobody's case that the Ramakrishna Mission Shilpapith at Belgharia is not affiliated to the Council and/or courses of study

therein do not lead to a diploma of the Council. Therefore, of necessity, it must be held that if a polytechnic is affiliated to the Council and a course of instruction therein leads to a diploma of the Council, then they are to be guided and controlled by the Rules made by the State of West Bengal, particularly in the matter of the lowest level of teaching post, being the former demonstrators, re-

designated junior lecturers and upgraded by the transitory provisions to lecturers. In other words, under its power to make Regulations, the Council, whose regulations in terms of section15(1)(viii) as to the staff pattern and qualifications would have been binding on both the Government and non-Government polytechnics, could not make any regulations making any qualitative changes, different from the staff pattern made by the State of West Bengal through such rules. These regulations are itself valid and

effective only if they are approved by the same State of West Bengal, which could not, under Article 14 of the Constitution of India, approve one staff pattern for Government polytechnics and another staff pattern for non-Government polytechnics, when the diploma awarded by the Council in both cases under the same course of study/instructions, would be the same. This is a conclusion which becomes irresistible if the ratio in the case of Adhiyaman Educational and Research Institute [supra] is considered in its context. Thus, on the consequential issue as stated in paragraph 19, I hold that the rules made by the State of West Bengal under the provisions of the 1995 Act, for its purposes, so far as they are in consonance with the intention of the Union Legislature and that which has been accepted by the Union Government for the purposes of technical education including in

respect of staff pattern, uniformly for all polytechnics, throughout the country, would apply with equal force to both Government polytechnics and non-Government, private or Government sponsored polytechnics."

24. In the facts of the present case, therefore, the claim of the

members of the petitioner no.1 for benefits under the AICTE

Regulation of 2010 as clarified by the notification dated June

10, 2016 are required to be individually assessed and granted

from the date from which an individual becomes entitled

thereto.

25. In such circumstances, we direct the authorities to

undertake such exercise and to grant benefits of the

Regulation of 2010 to individual members of the first

petitioner as may be entitled to, within a period of four weeks

from date.

26. With the aforesaid observations the WP.ST 238 of 2014