Sanjiv Lochan Gupta And Ors. vs Govt. Of Nct Of Delhi And Ors.
2002 Latest Caselaw 399 Del

JUDGMENT

S.B. Sinha, C.J.

1. Interpretation of a notification issued by All India Council for Technical Education (hereinafter referred to as 'AICTE') falls for consideration in this writ petition, which is directed against an order and judgment dated 20.02.2001 passed by the Central Administrative Tribunal, Principal Bench (hereinafter referred to as 'the Tribunal') in O.A. No. 519 of 2000 whereby and whereunder the original application filed by the petitioner was dismissed.

2. The factual position, in a nutshell, is as follows:-

The petitioners are First Class Graduates in Mechnical, Automobile, Electronics and Industrial Engineering. The first petitioner was appointed as Lecturer in Mechanical Engineering by respondent No. 1, i.e., Govt. of NCT of Delhi on 01.02.1997 for a period of one year, which was extended. He was later on selected as Lecturer in Automobile Engineering from 11.01.1999. The second petitioner was recruited as Lecturer in Digital Electronics in Guru Nanak Dev Polytechnic and is continuing in service from 27.11.1997, whereas the third petitioner was recruited as Lecturer in Guru Nanak Dev Polytechnic since 28.12.1998.

3. It is not in dispute that their appointments were made on a contract basis.

4. An advertisement was issued by Union Public Service Commission (in short, 'UPSC') for various posts in Polytechnics, which are based on the qualifications laid down in the recruitment rules.

5. It is not dispute that in terms of a notification communicated to all concerned by a covering letter dtd. 30.12.1999, AICTE laid down the minimum qualification for the posts of teachers, librarians and physical education personnel in diploma level technical institutions, covered by The all India Council For Technical Education Act, 1987 (hereinafter referred to as 'the said Act') were laid down. The said letter dated 30.12.1999 reads thus:-

"ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (A STATUtorYBODY OF THE GOVERNMENT OF INDIA)

F.No. 1-65/CD/NCE/98-99 Date: December 30, 1999

To,

The Secretaries

Dealing with Technical Education

of All State Govts. and Union Territories

Sub: Recommendations of the All India Council for

Technical Education (AICTE) regarding

revision of Pay Scales and Service Conditions

of Teachers of Technical Institutions

(Diploma).

Sir,

You are aware that the All India Council for Technical Education (AICTE) has been established by an Act of Parliament for proper planning and coordinated development, regulation and maintenance of Norms and Standards in the Technical Education System throughout the country. Consequent upon revision of Pay Scales based on the recommendations of the Central Vth Pay Commission, AICTE formulated a revision of Pay Scales and Service Conditions for Diploma Level Technical Institutions in the country. The recommendations of AICTE were sent to Govt. of India for approval. The Govt. of India examined these recommendations and suggested that the revised Pay Scales and Service Conditions may be circulated to all the State Govt.'s and Union Territory Administrations for information and appropriate action. Accordingly the recommendations of the AICTE are hereby communicated to all concerned.

These recommendations are applicable to all Diploma Level Technical Institutions falling under the Purview of the All India Council for Technical Education.

Yours faithfully,

(R.S. Nirjar),

Member Secretary (AICTE)

6. From the Preamble to the said notification, it would appear that the Central Government had notified terms and conditions of the services of such teachers with the approval of Ministry of Human Resource Development, Department of Education following the revision of pay-scales of Central Government employees on the recommendations of Fifth Central Pay Commission. The relevant provisions of the said notification are as follows:-

"2.1 Scope:

The provisions of this notification apply to teachers, librarians and physical education personnel in diploma level technical institutions, covered under the AICTE Act.

2.3 State Government Institutions and Private Aided Institutions:

Taking into account the local conditions, a State Government may implement the revised pay-scales from a date later than January 1, 1996 and/or implement pay-scales other than those given in this notification, but which are not higher than the pay-scales given in Tables (Appendix A-1, 2 and 3). In such cases, the details of the modification proposed either to the scales of pay or the date from which the Scheme is to be implemented, should be furnished to the All India Council for Technical Education for its approval.

5.0 QUALIFICATIONS:

1. The prescribed minimum qualifications and experience requirements for various teaching posts in diploma level technical institutions are given (Appendix-B).

2. Where qualifications and experience prescribed for a post in this pay revision are higher than the qualifications and experience prescribed by AICTE for that post prior to this revision,

(i) the revised qualifications and experience will be required only for fresh appointees to that post and will not be insisted on for existing incumbents working on those positions,

(ii) for open selection to a higher cadre position through advertisement internal candidates presently working in a lower position will be exempted form the prescribed higher qualification and experience to the extent that they will be required to possess only the qualifications and experience prescribed by AICTE prior to this pay revision. This relaxation will be available only for a period of 5 years from the date of issue of this notification. Thereafter, internal candidates must also possess the qualifications and experience prescribed in this notification.

3. Teachers already in service prior to January, 1, 1996 and who at the time of their recruitment possessed only a second class in their degree at Bachelor's or Master's level (but met all the qualification requirements prescribed by AICTE at the time of their recruitment) shall be exempted from the requirement of First Class for the Degree they had at the time of their recruitment."

7. The qualifications and experience for the post of 'Lecturer' as laid down in Appendix--B to the said notification is in the following terms:-

QUALIFICATIONS & EXPERIENCE

FOR THE TEACHING POSTS IN

DIPLOMA LEVEL TECHNICAL INSTITUTIONS

(ENGINEERING/TECHNOLOGY PROGRAMMES)

S.

No.

Cadre

Qualifications

Experience

1.

Lecturer

First     Class     Bachelor's degree     in     appropriate branch   of   Engineering Technology

OR

First       Class       Master's degree      in     appropriate branch for teaching posts in Humanities & Science.

No requirement

8. It is not dispute that despite the aforementioned notification, the recruitment rules had not been amended by the respondents and the recommendations for appointments are being made by UPSC in terms of the said recruitment rules.

9. It has been contended by the respondents that UPSC evolves certain criteria for short-listing the candidates and thus, the petitioners cannot have any grievance, if they been left out despite the fact that they are First Class Graduates.

10. The petitioners having regard to the fact that in the advertisement, it had not been categorically stated that candidates must possess First Class Degree in Engineering, filed a representation, but no response thereto was received, resulting in filing of the aforementioned original application by the petitioners before the Tribunal.

11. The learned Tribunal by reason of its impugned judgment held that the recommendations of AICTE having not been accepted by the first respondent before issuance of the said advertisement, the same being recommendatory in nature, the impugned order cannot be faulted.

12. The prescribed educational qualification as required in the said advertisement was in the following terms:-

"24. (Ref. No. F-1/235/98-R.V.) THIRTEEN LECTURERS IN AUTOMOBILES ENGINEERING IN POLYTECHNICS UNDER THE DIRECtorATE OF TRAINING AND TECHNICAL EDUCATION, GOVERNMENT OF NCT OF DELHI. OF the thirteen posts, four posts are reserved for OBC and one post each for SC & ST Candidates.

QUALIFICATIONS : ESSENTIAL EDUCATIONAL : Bachelor's Degree in Automobile Engg. Or equivalent OR Bachelor's Degree in Mechanical Engg. from a recognized University or equivalent with Automobile Engineering as one of the subject.

DESIRABLE : (i) Master's degree in Automobile Engineering or equivalent from a recognized University. (ii) Qualified in an All India Examination such as GATE DUTIES : Teaching and allied duties.

HQ : Delhi/New Delhi."

13. Mr. K.N.R. Pillay, the learned counsel appearing on behalf of the petitioners, would submit that having regard to the provisions of the said Act, the qualifications prescribed by AICTE must be followed by the respondents. The learned counsel further contended that the recruitment rules should have been amended by the respondents.

14. The learned counsel appearing on behalf of the respondents, on the other hand, would submit that the recommendations of AICTE are not binding on the first respondent.

15. The Parliament enacted the said Act being Act No. 52 of 1987 inter alia for establishment of AICTE with a view to proper planning and coordinated development of the technical education system throughout the country, the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith.

16. Section 10 of the said Act provides for powers and functions of AICTE. Section 10(1)(i) and (k), which are relevant for the purpose of this case, are in the following terms:-

S.10(1): It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may-

... ... ... ... ... ...

(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;

... ... ... ... ... ...

(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;

17. The powers and functions of AICTE are not subject to any rules and/or regulations. Such power, therefore, can be issued by AICTE from time to time. It is not in dispute that no statutory rules or regulations laying down the standard of education in different disciplines have been made. The question, which arises for consideration in this application, is no longer res-integra in view of several decisions of the Apex Court.

18. In Medical Council of India v. State of Karnataka and Ors. , The Apex Court held that regulations framed with previous sanction of Central Government have statutory force and if they fall within the purposes referred to under Section 33 of Medical Council Act, 1956, they will have mandatory force. It was held:-

"30. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical college or institution, it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned Single Judge was right in his view that no medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government and that Sections 10-A, 10-B and 10-C will prevail over Section 53(10) of the State Universities Act and Section 4(1)(b) of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and / or the university before 1-6-1992 could continue would be allowing an illegality to perpetuate for all time to come. The Division Bench, in our opinion, in the impugned judgment was not correct in holding that admission capacity for the purpose of increase or decrease in each of the medical colleges / institutions has got to be determined as on or before 1-6-1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical colleges and not with reference to the minimum standard of education prescribed under Section 19-A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jain case does not say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that only future admissions will have to be regulated on the basis of the capacity fixed or determined by the Medical Council. The plea of the State Government that power to regulate admission to medical colleges is the preogative of the State has to be rejected.

31. What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act."

19. In State of Tamil Nadu and Anr. v. Adhiyaman Educational and Research Institute and Ors. , the Apex Court held:-

"22. The aforesaid provisions of the Act including its preamble make it abundantly clear that the Council has been established under the Act for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. The Council is also required to regulate and ensure proper maintenance of norms and standards in the technical education system.

The Council is further to evolve suitable performance appraisal system incorporating such norms and mechanisms in enforcing their accountability. It is also required to provide guidelines for admission of students and has power to without or discontinue grants and to de-recognise the institutions where norms and standards laid down by it and directions given by it from time to time are not followed. This duty and responsibility cast on the Council implies that the norms and standards to be set should be such as would prevent a lopsided or an isolated development of technical education in the country. For this purpose, the norms and standards to be prescribed for the technical education have to be such as would on the one hand ensure development of technical educational system in all parts of the country uniformly; that there will be a coordination in the technical education and the education imparted in various parts of the country and will be capable of being integrated in one system; that there will be sufficient number of technically educated individuals and that their growth would be in a planned manner; and that all institutions in the country are in a position to properly maintain the norms and standards that may be prescribed by the Council. The norms and standards have, therefore, to be reasonable and ideal and at the same time, adaptable, attainable and maintainable by institutions throughout the country to ensure both quantitative and qualitative growth of the technically qualified personnel to meet the needs of the country. Since the standards have to be laid down on a national level, they have necessarily to be uniform throughout the country without which the coordinated and integrated development of the technical education all over the country will not be possible which will defeat one of the main objects of the statute. This country as is well known, consists of regions and population, which are at different levels of progress and development or to put it differently, at differing levels of backwardness. This is not on account of any physical or intellectual deficiency but for want of opportunities to develop and contribute to the total good of the country. Unnecessarily high norms or standards, say for admission to the educational institutions or to pass the examinations, may not only deprive a vast majority of the people of the benefit of the education and the qualification, but would also result in concentrating technical education in the hands of the affluent and elite few and in depriving the country of a large number of otherwise deserving technical personnel. It is necessary to bear this respect of the norms and standards to be prescribed in mind, for a major debate before us centered around the right of the States to prescribe standards higher than the one laid down by the Council. What is further necessary to remember is that the Council has on it representatives not only of the States but also of the State Universities. They have, therefore, a say in the matter of laying down the norms and standards, which may be prescribed by the Council for such education from time to time. The Council has further the Regional Committees, at present, at least, in four major geographical zones and the constitution and functions of the Committees are to be prescribed by the regulations to be made by the Council. Since the Council has the representation of the States and the professional bodies on it, which have also representation from different States and regions, they have a say in the constitution and functions of these Committees as well. What is further important to note is that the subject covered by this statute is fairly within the scope of Entry 66 of List I and Entry 25 of List III. Further, these regulations along with other regulations made by the Council and the rules to be made by the Central Government under the Act are to be laid before Parliament. Hence, on the subjects covered by this statue, the State could not make a law under Entry 11 of List II prior to Forty-second Amendment nor can it make a law under Entry 25 of List III after the Forty-second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Article 372 of the Constitution, as the Madras University Act, 1923, on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests, which are applied for adjudging repugnancy under Article 254 of the Constitution."

20. In Jaya Gokul Educational Trust v. Commissioner & Secretary to Government Higher Education Department Thiruvanathapuram, Kerala State and Anr. , the Apex Court held:-

"25. As already stated, in view of the judgment of this Court in T.N. case it is obvious that there is no need to approach the State of Kerala for its approval for starting engineering colleges. There is no power vested in the State under any State law to grant approval and even if it was so vested, it would have been void in view of T.N. case. This ground of repugnancy alone would be sufficient to quash the State Government's letter dated 16-8-1996 refusing to give their approval."

21. A bare perusal of the aforementioned decisions is clear pointer to the fact that in the matter of laying down norms and standards for courses as also the qualification for the staff, which would include teaching staff, the directions issued by AICTE shall be binding. There can, therefore, be no doubt whatsoever that the action of the respondents is wholly illegal being contrary to the said notification.

22. In Dr. B. Srinivas v. Dr. P. Krishna Malakonda Reddy and Ors. , a Division Bench of the Andhra Pradesh High Court referring to Preeti Srivastava v. State of Madhya Pradesh , held thus:-

"... We need not elucidate all such decisions for the reason that an authoritative pronouncement has been made by a Constitution Bench of the Supreme Court with majority of 4:1 in Preeti Srivastava v. State of Madhya Pradesh that standards of medical education tak-in not only the courses of study set by the Medical Council but also several other aspects like (i) calibre of teaching staff, (ii) proper syllabus designed to achieve the high level of education in the given span of time, (iii) the student-teacher ratio, (iv) the ratio between the students and the hospital beds available to each student, (v) the calibre of the students admitted to the institutions, (vi) Equipment of laboratory facilities or hospital facilities for training in the case of medical colleges, (vii) adequate accommodation for the Colleges and the attached hospitals, and (viii) the standard of examination held including the manner in which the papers are set and examined and the clinical performance is judged. Ultimately, it was held by the Supreme Court that prescription of qualifying marks for admission in Medical Courses has nexus to the object of achieving the minimum standards of education and that the said qualifying marks cannot be lowered by the State authority and that is a matter to be considered only by the Medical Council by way of framing Regulations under Section 33 of the Act. Dealing with Section 20 of the Act, the Supreme Court held that the Medical Council is empowered to prescribe, inter alia, standards of Post-Graduate medical education and in exercise of the powers under Section 20 read with Section 33 of the Act, the Medical Council of India has framed regulations governing Post-Graduate medical examinations and that the said Regulations are binding and the States cannot, in exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon the Regulations framed by the Medical Council of India for Post-Graduate medical education. It was also held that since the standards laid down are in exercise of power conferred under Entry 66 of List I, the exercise of that power is exclusively within the domain of the Union Government and that the power of the States under Entry 25 of List III is subject to Entry 66 of List I and that in any event, the State is not having the exclusive power to frame the rules and regulations pertaining to education since the subject is in the concurrent list and any power exercised by the State under Entry 25 of List III shall always be subject to any existing relevant provisions made in that connection by the Union Government, subject, of course, to Article 254."

23. In any view of the matter, even if it be assumed that the said recommendations are recommendatory in nature, there does not appear to be any reason whatsoever as to why the petitioners' names, who were First Class Graduates in Engineering, had not been considered.

24. For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained, which is accordingly set aside and the respondent are directed to strictly comply with the direction of the AICTE as contained in the said notification. However, in the facts and circumstances of the case, there shall be no order as to costs.