Delhi High Court
Govt. Of Nct Of Delhi vs Suresh Chand Vashist & Ors. on 6 August, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On:14th July, 2010
Judgment Delivered On:6th August, 2010
+ W.P.(C) 10640/2009
GOVT OF NCT OF DELHI ..... Petitioner
Through: Mr.V.K. Tandon, Ms. Mamta
Tandon, Advs.
Versus
SURESH CHAND VASHIST & ORS. ..... Respondents
Through: Mr. Arun Bhardwaj, Mr. Piyush
Gaur, Ms. Ruchika, Advs.
W.P.(C) 1325/2010
GOVERNMENT OF NCT OF DELHI ..... Petitioner
Through: Mr. V.K. Tandon, Ms. Mamta
Tandon, Advs.
Versus
PARMANAND ..... Respondent
Through: Mr.Arun Bhardwaj, Mr. Piyush
Gaur, Ms. Ruchika, Advs.
W.P.(C) 1326/2010
GOVERNMENT OF NCT OF DELHI ..... Petitioner
Through: Mr. V.K. Tandon, Ms. Mamta
Tandon, Advs.
Versus
SMT.SWATANTRA NAYYAR ..... Respondent
Through: Nemo.
W.P.(C) 1358/2010
GOVERNMENT OF NCT OF DELHI ..... Petitioner
Through: Mr. V.K. Tandon, Ms. Mamta
Tandon, Advs.
W.P.(C) No.10640/2009 & Connected Matters Page 1 of 28
Versus
SHEO RAJ SINGH ..... Respondent
Through: Mr. Harish Kumar Mehra, Adv.
W.P.(C) 1375/2010
GOVERNMENT OF NCT OF DELHI ..... Petitioner
Through: Mr. V.K. Tandon, Ms. Mamta
Tandon, Advs.
Versus
ASHOK KUMAR ..... Respondent
Through: Mr. Harish Kumar Mehra, Adv.
W.P.(C) 1767/2010
GOVERNMENT OF NCT OF DELHI ..... Petitioner
Through: Mr. V.K. Tandon, Ms. Mamta
Tandon, Advs.
Versus
SHIV RAM SUMAN ..... Respondent
Through: Mr. Sanjoy Ghose, Adv.
W.P.(C) 13199/2009
UNION OF INDIA AND ORS ..... Petitioners
Through: Mrs. Avnish Ahlawat, Ms. Latika
Chaudhary, Advs.
Versus
ASHOK KUMAR ..... Respondent
Through: Nemo.
W.P.(C) 13200/2009
UNION OF INDIA AND ORS ..... Petitioners
Through: Mrs. Avnish Ahlawat, Ms. Latika
Chaudhary, Advs.
W.P.(C) No.10640/2009 & Connected Matters Page 2 of 28
Versus
DHANESH KUMAR ..... Respondent
Through: Nemo.
W.P.(C) 13213/2009
UNION OF INDIA AND ORS ..... Petitioners
Through: Mrs. Avnish Ahlawat, Ms. Latika
Chaudhary, Advs.
Versus
DRAUPADI ..... Respondent
Through: Nemo.
W.P.(C) 13238/2009
GOVT OF NCT OF DELHI AND ORS ..... Petitioner
Through: Mrs. Avnish Ahlawat, Ms. Latika
Chaudhary, Advs.
Versus
PARAMJEET KAUR DHILLON ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. On 23.12.1987, All India Council for Technical Education
Act, 1987 (hereinafter referred to as the "AICTE Act") was
enacted by the Parliament by virtue of its powers under Entry
66 of Union List wherein exclusive power is vested with the
Central Government with regard to technical education. The
Preamble to AICTE Act reads as under:-
"An Act to provide for the establishment of an All India
Council for Technical Education with a view to proper
planning and co-ordinated 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."
2. Under Section 3 of the AICTE Act, the Central
Government has the power to appoint a Council called All India
Council of Technical Education (hereinafter referred to as
"AICTE"). Relevant would it be to note that Section 10 of AICTE
Act enumerates the powers and functions of the Council and
reads as under:-
"10. Functions of the Council - 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 purpose for performing its functions under
this Act, the Council may-
(a) undertake survey in the various fields of technical
education, collect data on all related matters and
make forecast of the needed growth and development
in technical education;
(b) coordinate the development of technical education
in the country at all levels;
(c) allocate and disburse out of the Fund of the
Council such grants on such terms and conditions as it
may think fit to-
(i) technical institutions, and
(ii) Universities imparting technical education in
coordination with the Commission;
(d) promote innovations, research and development in
established and new technologies, generation,
adoption and adaptation of new technologies to meet
developmental requirements and for overall
improvement of educational processes;
(e) formulate schemes for promoting technical
education for women, handicapped and weaker
sections of the society;
(f) promote an effective link between technical
education system and other relevant systems
including research and development organisations,
industry and the community;
(g) evolve suitable performance appraisal systems for
technical institutions and Universities imparting
technical education, incorporation norms and
mechanisms for enforcing accountability;
(h) formulate schemes for the initial and in-service
training of teachers and identify institution or centres
and set up new centres for offering staff development
programmes including continuing education of
teachers;
(i) lay down norms and standards for courses,
curricula, physical and instructional facilities, staff
pattern, staff qualifications, quality instructions,
assessment and examinations;
(j) fix norms and guidelines for charging tuition and
other fees;
(k) grant approvals for starting new technical
institutions and for introduction of new courses or
programmes in consultation with agencies concerned;
(l) advise the Central Government in respect of grant
of charter to any professional body or institution in the
field of technical education conferring powers, rights
and privileges on it for the promotion of such
profession in its field including conduct of
examinations and awarding of membership
certificates;
(m) lay down norms for granting autonomy to
technical institutions;
(n) take all necessary steps to prevent
commercialisation of technical education;
(o) provide guidelines for admission of studies to
technical institutions and Universities imparting
technical education;
(p) inspect or cause to inspect any technical
institution;
(q) withhold or discontinue grants in respect of
courses, programmes to such technical institutions
which fail to comply with the directions given by the
Council within the stipulated period of time and take
such other steps as may be necessary for ensuring
compliance of the directions of the Council;
(r) take steps to strengthen the existing organisations,
and to set up new organisations to ensure effective
discharge of the Council‟s responsibilities and to
create positions of professional, technical and
supporting staff based on requirements;
(s) declare technical institutions at various levels and
types offering courses in technical education fit to
receive grants;
(t) advise the Commission for declaring any institution
imparting technical education as a deemed University;
(u) set up a National Board of Accreditation to
periodically conduct evaluation of technical
institutions or programmes on the basis of guidelines,
norms and standards specified by it and to make
recommendation to it, or to the Council, or to the
Commission or to other bodies, regarding recognition
or de-recognition of the Institution or the programme;
(v) perform such other functions as may be
prescribed." (Emphasis Supplied)
3. Consequent upon revision of pay scales of Central
Government employees on the recommendations of 5th Central
Pay Commission, Ministry of Human Resource and
Development, Government of India issued orders dated
09.10.1998 and 14.09.1999 directing AICTE to frame a scheme
for revision of pay scales of teachers employed in Technical
Institutions pursuant to which AICTE framed such a scheme.
AICTE issued notification dated 30.12.1999 relating to revision
of pay scales and service conditions of teachers, librarians and
physical education personnel employed in diploma level
Technical Institutions. The relevant portion of the said
notification reads as under:-
"AICTE NOTIFICATION FOR REVISION OF PAY-SCALES
AND ASSOCIATED TERMS AND CONDITIONS OF
SERVICE OF TEACHERS, LIBRARIANS AND PHYSICAL
EDUCATION PERSONNEL FOR DIPLOMA LEVEL
TECHNCIAL INSTITUTIONS
1.0 PREAMBLE
The Government of India, Ministry of Human
Resource Development, Department of Education has
issued orders vide letter No.37-104/95-TS-II, dated
October 9, 1998 and of even No. dated January 14,
1999 implementing a scheme of revision of pay scales
of teachers of degree level Technical Institutions,
following revision of pay scales of Central Government
employees on the recommendation of Fifth Central
Pay Commission. The Government orders require that
AICTE notify other terms and conditions of service of
such teachers with the approval of Ministry of Human
Resource Development.
In line with the revised pay-scales of teachers of
degree level technical institutions and the associated
service conditions, AICTE has now revised the pay-
scales and associated service conditions of teachers,
librarians and physical education personnel in diploma
level technical institutions, with the concurrence of
Ministry of Human Resource Development. These
revised pay scales and associated service conditions
are given in this notification.
2.0 COVERAGE
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.
2.2 Date of Effect:
The revised pay-scales, Career Advancement
Scheme and incentives for higher qualification given
in this notification shall be effective from January 1,
1996. All other terms and conditions come into force
with effect from date of this notification.
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.
....
4.0 PAY-SCALES
The revised pay-scales for teachers of diploma level
technical institutions are given in Tables (Appendix A-
1 and 2).
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 from 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 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 degrees they had at the time of
their recruitment.
.....
12.0 SUPERANNUATION AND RE-EMPLOYMENT
The age of superannuation of teachers in diploma
level technical institutions would be 62 years and
thereafter no extension of service shall be given......
The age of superannuation of Librarians, Physical
Education Personnel and such other employees of
technical institutions who are treated at par with the
teachers and whose age of superannuation was 60
years, will now be 62 years......
......
TABLE A-1
SCALES OF PAY FOR TEACHERS FOR DIPLOMA LEVEL
TECHNICAL INSTITUTIONS
S. Category Existing Pay-Scales Proposed Pay-
No. (Rs.) Scales (Rs.)
1. Lecturer 2200-75-2800-100- 8000-275-
4000 13500
2. Senior 3000-100-3500-125- 10000-325-
Lecturer 5000 15200
3. Head of 3700-125-4950-150- 12000-420-
Deptt. 5700 18300
4. Principal 4500-150-5700-200- 16400-450-
6300 20000
TABLE A-2
S. No Category Existing Pay-Scales (Rs) Proposed Pay-
Scales (Rs)
1. Lecturer 3000-100-3500-125- 1000-325-
5000 15200 (Senior
Scale)
2. Lecturer 3700-125-4950-150- 12000-420-
5700 18300
(Selection
Grade)
The revised scales of pay for Librarians and Physical Education
Personnel are given in Table A-3.
TABLE A-3
SCALES OF PAY FOR LIBRARIANS AND PHYSICAL TRAINING
INSTRUCTORS (PEI) FOR DIPLOMA LEVEL TECHNICAL
INSTITUTIONS
S. No Category Proposed Pay-Scales
(Rs.)
1. Librarian/Lecturer 8000-275-13500
Physical Training instructors
(P.E.I.)
2. Librarian (Senior 10000-325-15200
Scale)/Lecturer (Senior
Scale)/Physical Education
Instructor (Senior Scale)
3. Librarian (Selection 12000-420-18300
Grade)/Lecturer (Selection
Grade)/Physical Education
Instructor (Selection Grade)
....." (Emphasis Supplied)
4. Relevant would it be to note that the notification dated
30.12.1999 prescribed higher qualifications and experience
than previously required for appointment to various teaching
posts in the diploma level technical institutes but
correspondingly did not provide for any change in the
qualifications and experience required for appointment to the
posts of librarians and physical training instructors in the said
institutes. A period of 5 years was granted to the existing
incumbents on the said posts to acquire revised qualifications
and service experience.
5. The matter regarding the revision of pay scales of
teachers, librarians and physical education personnel in
diploma level technical institutions as prescribed in the
notification dated 30.12.1999 issued by AICTE was submitted
by Department of Training and Technical Education
(hereinafter referred to as "DTTE") to the cabinet, government
of National Capital Territory, Delhi for consideration. The
relevant portion of the note submitted by DTTE to the cabinet
dealing with revision of pay scales and age of superannuation
of librarians and physical education personnel in diploma level
technical institutions reads as under:-
"5.3 PAY SCALES OF LIBRARIANS & PHYSICAL
EDUCATION PERSONNEL
Besides the teachers, AICTE has also recommended
revised pay scales for Librarians and Physical
Education Personnel as under:-
FOR COLLEGES
1. Librarian/Directors, Rs.8,000-275-
13500/-
Physical Education
2.Librarian (Sr. Scale)/ Rs.10,000-325-
15200/-
Director, Physical
Education (Sr. Scale)
3.Librarian (Selection Rs12,000-420-18300/-
Grade)/Director,
Physical Education
(Selection Gr.)
FOR POLYTECHNICS
1. Librarian/Physical Rs.8,000-275-
13500/-
Education Instructor
2.Librarian (Sr. Scale)/ Rs.10,000-325-
15200/-
Physical Education
(Sr. Scale)
3.Librarian (Selection Rs12,000-420-
18300/-
Grade)/ Physical
Education (Selection Gr.)
........
9.1 (viii) AICTE recommendations on pay scales
may be accepted for implementation for eligible
categories of employees of Government Polytechnics
and implementation may be w.e.f 1.1.96. As in the
case of colleges like Delhi College of Engineering, the
retirement age will continue to be 60 years and
benefits under the Pay Commission over and above
the AICTE/MHRD recommendations may not be
available and will have to be adjusted.
.....
11.0 As regards the revised pay scales
recommended by AICTE for colleges and polytechnic
Librarians and Physical Education personnel, at
present there is a post of Librarian in Delhi College of
Engineering in the pay scale of Rs. 8000-13,500 but in
College of Pharmacy and College of Art the post of
Librarian exists in a lower pay scale of Rs. 5000-8000.
Similarly, in polytechnics also the posts exist in the
pay scale of Rs. 5000-8000. In so far as Physical
Education personnel are concerned there is a post of
Director, Physical Education in Delhi College of
Engineering and College of Art in the pay scale of Rs.
8000-13,500. There is no post of Director, Physical
Education in College of Pharmacy but a post of PTI
exists in the pay scale of Rs. 5000-8000. In
Polytechnics there are posts of PTIs. So, where the
posts exist in lower pay scale the incumbents cannot
be straightaway placed in revised pay scales as posts
will have to be created in higher scales and eligibility
of existing Librarians and PTIs will have to be seen in
terms of qualifications recommended by AICTE for
these posts. These issues need to be examined in
consultation by the Finance Department separately
before implementing the recommendations of AICTE
in their cases. It is, therefore, proposed that for these
categories of employees-viz-Librarians and PTIs the
implementation of AICTE recommended pay scales
may be carried out after the issue of qualifications
and upgradation of existing posts is settled in
consultation with Finance Department and their cases
examined separately in consultation with Finance
Department.
....
14.1 As regards Librarians and Physical Education
Personnel, they are not being denied the benefit. It is
only certain issues relating to upgradation of the
existing posts and educational qualifications that
needs to be sorted out in consultation with Finance
Department before their case can be considered for
implementation of AICTE pay scales"
6. Vide cabinet decision No.841 dated 23.09.2003, the
Government of NCT of Delhi approved the grant of revised pay
scales to the teachers teaching in diploma level technical
institutions under DTTE. However, the cabinet did not take a
decision with respect to revision of pay-scales of librarians and
physical education personnel employed in technical
institutions under DTTE. The reason for the same is that in the
notification dated 30.12.1999 AICTE recommended scales of
pay for lecturers, librarians and physical educational persons
at par with same post holders in degree colleges, but enhance
the requirement of a higher educational qualification only for
lecturers and bring it at par with lecturers in degree colleges
but did not recommend similar enhancement in the
educational qualifications for librarians and physical
educational persons and the Government of NCT Delhi thought
it not advisable to pay same scale of pay to those having
higher qualifications and those with lesser qualifications.
7. On 02.08.2004 the DTTE issued letter
No.F.123/19/2000/TE/AD/1217 to AICTE seeking clarifications
regarding the revision of pay scales of librarians and physical
training instructors. The relevant portion of the said letter
reads as under:-
"....AICTE vide its notification No.1-65/CD/NCE/98-99
dated 20th December, 1999 has given the pay scales
and Career Advancement scheme for Librarian and
Physical Training Instructors for Diploma Level
Technical Institutions at table A-3.
Kindly clarify whether these scales are linked with
the qualifications of the Librarian and Physical Training
Instructors or to be given to all irrespective of their
qualifications.
In case the pay scales are linked with the
qualification, you are requested to convey the
qualifications for Librarians/Physical Training
Instructors attached to each grade as the same is not
reflected in your notification....."
8. In response thereto, AICTE issued letter No.2004-05/50
dated 23.08.2004 to DTTE, the relevant portion whereof reads
as under:-
".....The normal practice to give revised pay scales to
the existing faculty members (including
Librarians/Physical Training Instructors) for the post
they are holding at the time of revision of the pay
scales i.e. 01.01.1996 in the present cadre. The
revised qualifications and experience, if any,
prescribed with the revised scales are to be made
applicable for fresh recruitment only. The only
consideration for giving the revised pay scales to the
existing faculty should be that the person concerned
was appointed in the date of cadre prior to the date of
revision i.e. 01.01.1996....."
9. Vide cabinet decision No.1024 dated 16.12.2005,
Government of NCT of Delhi accepted the AICTE‟s
recommendation pertaining to enhancement of age of
superannuation from 60 to 62 years for teachers of degree and
diploma level technical institutions under DTTE and further
decided to not to extend the said benefit to librarians and
physical training instructors at diploma level technical
institutions.
10. Feeling aggrieved by the inaction of Government of NCT
of Delhi in respect of revision of pay-scales of librarians and
physical education persons at diploma level technical
institutions under DTTE, a few librarians and physical training
instructors working in various polytechnics under DTTE filed
applications under Section 19 of Administrative Tribunals Act,
1985 before Central Administrative Tribunal, Principal Bench,
New Delhi (hereinafter referred to as the "CAT") inter-alia
seeking issuance direction against the government to revise
the pay-scales of librarians and physical instructors in
polytechnics under DTTE in terms of the notification dated
30.12.1999 issued by AICTE. The details of the applications
filed before CAT are being noted herein under:-
S. No. Number of Name of the Details of the
the applicant applicant
application
(OA No.)
i. 2451/2006 Suresh Chander Librarian in
Vashisht Kasturba Gandhi
Polytechnic
ii. 2297/2006 Sheo Ram Suman Librarian in
Parmanand
Institute of
Business Studies
iii. 2298/2006 Parmanand Librarian in
Parmanand
Institute of
Business Studies
iv. 2232/2006 Ashok Kumar Librarian in
Parmanand
Institute of
Business Studies
v. 2338/2006 Sheo Raj Singh Librarian in
Parmanand
Institute of
Business Studies
vi. 2339/2006 Swatantra Nayyar Librarian in
Parmanand
Institute of
Business Studies
vii. 2020/2008 Ashok Kumar Physical Training
Instructor in Arya
Bhatt Polytechnic
viii. 2021/2008 Draupadi Physical Training
Instructor in GBP
Polytechnic
ix. 2022/2008 Dhanesh Kumar Physical Training
Instructor in Guru
Nanak Dev So Ed
Polytechnic
x. 2023/2008 Paramjeet Kaur Physical Training
Dhillon Instructor in
Meera Bai
Polytechnic
11. A perusal of the pleadings filed by Government of NCT of
Delhi before CAT reveals that the stand taken by the
government was that since the effect of AICTE‟s
recommendations was that the pay-scales of the librarians and
physical education persons in diploma level technical
institutions were upgraded to the level of their counterparts in
degree level technical institutions it was necessary that the
qualifications and service experience required for appointment
in the cadre of librarians and physical education persons in
diploma level technical institutions should have also been
upgraded in the same manner and that there is a fallacy in the
recommendations of AICTE inasmuch as AICTE upgraded the
qualifications and service experience required for appointment
for various teaching posts in diploma level technical
institutions while revising the pay-scales of teachers in
diploma level technical institutions but ignored said aspect of
the matter while revising pay-scales of librarians and physical
training instructors in diploma level technical institutions.
Thus, the Government of NCT Delhi justified its decision to
implement a different pay-scale for librarians and physical
education persons in diploma institutes in Delhi.
12. Before the aforesaid matters could be decided by the
CAT, a significant development took place. In the year 2006,
one Mr.K.R. Mann, who was working as a librarian in Arya Bhatt
Polytechnic under DTTE of Government of NCT of Delhi filed an
application under Section 19 of Administrative Tribunal Act,
1985 before CAT challenging the decision of Government of
NCT of Delhi not to enhance age of superannuation of
librarians in polytechnics under DTTE of Government of NCT of
Delhi from 60 to 62 years in terms of notification dated
30.12.1999 issued by AICTE. In the said proceedings the stand
taken by the Government of NCT Delhi was two-fold: - (i)
notification dated 30.12.1999 issued by AICTE is
recommendatory and not mandatory in nature; (ii) though in
the notification dated 30.12.1999 recommendation has been
made for enhancement of age of superannuation of librarians
and physical training instructors in diploma level technical
institutions, who are at par with teachers from 60 to 62 years,
the said notification nowhere states that librarians are to be
treated at par with the teachers.
13. Vide order dated 30.04.2007, CAT allowed the aforesaid
application filed by Mr.K.R.Mann. It was held that the
recommendations of AICTE Contained in notification dated
30.12.1999 are mandatory in nature and that the expression
"who are treated at par with the teachers" occurring in
paragraph 12.0 of the said notification includes librarians and
physical education personnel treating them at par with
teachers.
14. Feeling aggrieved by the afore-noted order dated
30.04.2007 passed by CAT, the Government of NCT of Delhi
filed a petition bearing W.P.(C) No.6588/2008 in this Court
challenging to the aforesaid order, which petition was
dismissed by this Court vide order dated 28.03.2008. After
noticing the decisions of Supreme Court reported as Unni
Krishnan J.P. v State of A.P. (1993) 1 SCC 645, Govt. of A.P. v
J.B. Educational Society (2005) 3 SCC 212, Jaya Gokul
Educational Trust v Commissioner and Secretary to Govt.
Higher Education Deptt Thiruvanthapuram AIR 2000 SC 1614
and State of Tamil Nadu v Adhiyaman Educational & Research
Institute (1995) 4 SCC 104, this Court was of the view that the
recommendations of AICTE contained in the notification dated
30.12.1999 are mandatory in nature. The relevant
observations of this Court are being extracted herein below:-
"16......Therefore, the validity of the judgment of the
Tribunal and outcome of this petition rests on the sole
issue, namely, upon the nature of the notification
dated 30.12.1999 of the AICTE and that is whether it
has the binding effect or every State Government or
other authorities running such technical institutions
were given freedom to accept or not to accept the
provisions of the said notification and had their own
final say in the matter.
.....
24. A common thread, which is discernible from the
aforesaid judgments is that in the matter of technical
education covered by the AICTE Act and to maintain
the uniformity, the standards prescribed by the
Council established under this Act would prevail. This
was necessary to have uniformity in the educational
standards in so far as technical education in this
country is concerned. Once we accept this
proposition, it would also follow that the service
conditions laid down by the AICTE would also have
uniform application in all technical institutions. Once it
is recognized that norms and standards and the
requirements of technical education are to be
uniform, this cannot be achieved in case the service
conditions of the employees working in these
institutions are also uniform. It would, therefore,
logically follow that the age of retirement, as
recommended by the AICTE and duly accepted by the
MHRD would be applicable to the librarians working in
DTTE as well."
15. Feeling aggrieved by the afore-noted order dated
28.03.2008 passed by this Court, the Government of NCT of
Delhi filed a petition under Article 136 of Constitution of India
before Supreme Court, which petition was dismissed by
Supreme Court in the following terms:-
"The special leave petition is dismissed leaving open
the question of law."
16. Relying upon the decision of this Court dated 23.3.2008
in W.P.(C) No.6588/2008 titled „Chief Secretary, Govt. of NCT
of Delhi v K.R. Mann‟, vide order dated 23.05.2008 CAT
allowed the application(s) before it holding that it was the
bounden duty of Government of NCT of Delhi to revise pay
scales of librarians in diploma level technical institutes under
DTTE, Govt. of NCT of Delhi in terms of recommendations of
AICTE contained in the notification dated 30.12.1999 for the
said recommendations were mandatory in nature. The CAT
directed the Government of NCT of Delhi to grant pay scale
Rs.8000-13500/- at the entry level; Rs.10000-15200 at senior
scale level and Rs.12000-18300/- at selection grade level i.e.
pay scales prescribed in the notification dated 30.12.1999 to
the librarians in diploma level technical institutions.
17. Aggrieved by the order dated 23.05.2008 passed by CAT,
Government of NCT of Delhi filed application(s) before CAT
seeking review of the said order, which application(s) were
dismissed by CAT vide order dated 22.04.2009 for the reason
that there was an inordinate delay in filing the said
application(s) and that no satisfactory explanation has been
furnished by the government for the said delay.
18. In view of the decision dated 23.3.2008 of this Court in
W.P.(C) No.6588/2008 titled „Chief Secretary, Govt. of NCT of
Delhi v K.R. Mann‟ vide order dated 23.05.2008 and the order
dated 23.05.2008 passed by CAT allowing the application(s)
filed by the librarians vide order dated 14.05.2009 CAT allowed
the application(s) filed by the physical training instructors.
19. Aggrieved by the orders dated 23.05.2008 and
14.05.2009 by CAT allowing the application(s) filed by the
librarians and physical training instructors respectively,
Government of NCT of Delhi has filed the above-captioned writ
petitions challenging the said orders.
20. During hearing of the present petitions, following
arguments were advanced by the learned counsel for the
petitioner:-
I AICTE‟s recommendations contained in the notification
dated 30.12.1999 are not mandatory in nature but are
recommendatory. Counsel pointed out clauses (a)-(k) of
Section 10 of AICTE Act enumerates functions of AICTE.
Counsel argued that only such recommendation of AICTE
would be mandatory in nature which is issued by it in
discharge of its functions prescribed under Section 10 of AICTE
Act. That AICTE acts in advisory capacity while issuing
recommendations on a matter not included under clauses (a)-
(k) of Section 10 of AICTE Act and thus such recommendations
have no binding force. That since fixation of pay of staff of
technical institutions is not a function of AICTE under Section
10 of AICTE Act, recommendations issued by AICTE in respect
of said matter are not mandatory but recommendatory in
nature. With respect to the decision of this Court in K.R.
Mann's case (supra), counsel submitted that the said decision
is per incuriam as Section 10 of AICTE Act has not been
examined therein. Counsel further submitted that since the
issue pertaining to nature of the recommendations of AICTE
was left open for adjudication by Supreme Court while
dismissing the special leave petition filed by Government of
NCT of Delhi against the decision of this Court in K.R. Mann‟s
case (supra), the said decision cannot be taken to be an
authority for the proposition that the recommendations of
AICTE contained in the notification dated 30.12.1999 are
mandatory in nature inasmuch as view of this Court on the
said issue was not approved by Supreme Court.
II Even if it is taken that the recommendations of AICTE
contained in notification dated 30.12.1999 are mandatory in
nature, paragraph 2.3 of the said notification extracted in para
3 above gives sufficient lee way to a state government to
suitably modify said recommendations and therefore
Government of NCT of Delhi was fully justified in seeking to
make appropriate modifications in the said recommendations
in respect of librarians and physical education personnel in
diploma level technical institutions under DTTE, Government of
NCT of Delhi.
III The modifications sought to be made by Government of
NCT of Delhi in the recommendations of AICTE contained in the
notification dated 30.12.1999 are based on sound rationale
and logic. Counsel argued that when scales of pay of librarians
and physical education personnel of diploma level technical
institutions are sought to be upgraded it is most reasonable
that the qualifications and service experience required for
appointment in the cadre of librarian and physical training
instructor in diploma level technical institutions be upgraded
accordingly. To demonstrate the reasonableness of the
decision of Government of NCT of Delhi to upgrade the
qualifications and service experience required for appointment
to the cadre of librarian and physical education personnel in
diploma level technical institutions while granting them benefit
of higher scales of pay, counsel pointed out similar step has
been taken by AICTE in the matter of revision of pay scales of
teachers in diploma level technical institutions inasmuch as
while recommending higher pay scales for teachers in diploma
level technical institutions AICTE has also recommended
upgradation of qualifications and service experience required
for appointment to various teaching posts in the said
institutions.
21. Per contra, learned counsel for the respondent contended
that:-
I The view taken by CAT that recommendations of AICTE
contained in the notification dated 30.12.1999 are mandatory
in nature and thus it is the bounden duty of the Government of
NCT of Delhi to implement the pay scales prescribed in the
said notification in respect of librarians and physical education
personnel in diploma level technical institutions is perfectly
legal. It was further submitted that when the stand taken by
Government that the said recommendations are
recommendatory in nature already stood rejected by a Division
Bench of this Court there was no occasion for the government
to re-agitate the same argument in the present matters.
II As per the notification dated 30.12.1999 as also the view
taken by this Court in K.R. Mann‟s case (supra), the librarians
and physical education personnel in the diploma level
technical institutions are to be treated "at par" with the
teachers. In the face of said factual position, the decision of
the government to accept the recommendations of AICTE only
qua teachers and not in respect of librarians and physical
education personnel is most arbitrary.
III In the teeth of the direction issued by CAT to grant pay
scales prescribed in the notification dated 30.12.1999 to the
librarians and physical training instructors in diploma level
technical institutions, the government was not justified in
issuing office order dated 09.01.2009 which provided that pay
scales in question would be granted to the librarians and
physical training instructors subject to their possessing revised
qualifications and service experience required for appointment
to the said posts. According to the counsel, the aforesaid
attempt of the government to modify the aforesaid direction of
CAT particularly when the matter was sub-judice before this
Court demonstrates that the decision of government to not to
implement the recommendations of AICTE in respect of
librarians and physical education personnel in diploma level
technical institutions smacks of malafide.
IV The stand taken by government to not to implement the
recommendations of AICTE in respect of librarians and physical
education personnel in diploma level technical institutions is
most untenable in view of the fact that many states and union
territories namely Mizoram, Arunachal Paradesh, Andhra
Pradesh, Madhya Pradesh and Rajasthan have implemented
the said recommendations in respect of librarians and physical
education personnel in diploma level technical institutions.
22. The primary question which has arisen for consideration
in the instant matter is whether the recommendations of AICTE
contained in the notification dated 30.12.1999 are mandatory
or recommendatory in nature.
23. We may not delve on said aspect of the matter for a Co-
ordinate Bench of this Court has already taken a view that the
said recommendations are mandatory in nature in K.R. Mann‟s
case (supra). However, since great emphasis was laid by the
learned counsel for the petitioner that Section 10 of AICTE Act
which prescribes the powers and functions of AICTE and holds
the key to the answer to the aforesaid question has not been
examined in K.R. Mann‟s case (supra), we proceed to examine
the said aspect of the matter in the light of Section 10 of AICTE
Act.
24. It is an established proposition of law that where a
specific power is conferred without prejudice to the generality
of the general powers already specified, the specific power is
only illustrative and does not in any way restricts the general
power. (See the decisions of Supreme Court reported as Om
Prakash v Union of India (1970) 3 SCC 942 and Ajay Canu v
Union of India & Ors (1988) 4 SCC 156). In view of the
aforesaid settled legal position, a perusal of Section 10 of the
AICTE Act reveals that the council is entrusted with the duty to
ensure coordinated and integrated development of technical
education and maintenance of standards in technical institutes
and for which it may exercise various powers as per clause (a)
to (u). As per clause (i) the counsel specifically empowered to
lay down norms and standards pertaining to staff pattern, staff
qualifications and quality instructions.
25. As per clause (i) of Section 10 which provides that AICTE
is empowered to „lay down norms and standards for courses,
curriculam, physical and instructional facilities, staff pattern,
staff qualifications, quality instructions, assessment and
examinations‟ and hence must include power to prescribe
service conditions of staff of technical institutions. The
expression „staff pattern‟ occurring in clause (i) of Section 10 is
wide enough to include within its ambit service conditions of
staff of technical institutions.
26. We may incidentally note that the Preamble to AICTE Act,
contents whereof have been noted in 1 above, as also
decisions of Supreme Court reported as Govt. of A.P. v J.B.
Educational Society (2005) 3 SCC 212, Jaya Gokul Educational
Trust v Commissioner and Secretary to Govt. Higher Education
Deptt Thiruvanthapuram AIR 2000 SC 1614 and State of Tamil
Nadu v Adhiyaman Educational & Research Institute (1995) 4
SCC 104 lay down that AICTE shall have primacy in the matter
of technical education in this country.
27. It is thus apparent that AICTE is empowered to
recommend pay of staff of technical institutions.
28. The question arises whether the State Government can
modify the recommendations of AICTE as per the notification
dated 30.12.1999?
29. A perusal of the notification, contents whereof have been
noted in para 3 above, vide para 2.3 clearly show that while
making the recommendations AICTE has left it to the State
Government to implement the revised pay scales from a date
later than 1.1.1996 and even to implement different pay scales
but with a rider that in such case the same should be furnished
to the counsel for its approval.
30. Thus, exercising its statutory power, AICTE has not
mandatorily directed the State Governments to implement its
recommendations. The State Governments have been given
the freedom to implement different pay scales, but with the
approval of AICTE.
31. The obvious rationale behind the aforesaid decision of
the AICTE is that ordinarily it should be expected that the State
Governments should implement the recommendations of
AICTE, but for valid reasons may chose not to do so, but the
justifiability of the said reasons has to be made good to AICTE,
evidenced by the requirement that in such situation, approval
from the council should be taken.
32. What has happened in the instant case is that AICTE has
recommended pay scales for lecturers, librarians and physical
education persons in technical institutes awarding diplomas at
par with what is paid in institutes imparting education in
engineering for graduate courses, but with respect to lecturers
has enhanced the educational qualifications at par with those
required in regular engineering colleges, but has failed to
upgrade the education qualifications for physical education
persons and librarians to bring them at par with engineering
colleges and for this reason the Government of NCT Delhi
sought a clarification on the issue of the enhancement of
educational qualification for said two category of posts when it
wrote the letter dated 2.8.2004, to which the council gave a
evasive reply vide its letter dated 23.7.2004. The result is that
a stalemate has ensued.
33. We see no reason why AICTE could not be specific on the
issue of educational qualifications as it did in the case of
teachers by requiring teachers in technical education to have
same qualifications as required by teachers in engineering
colleges.
34. Thus, the Government of NCT Delhi has acted within the
scope of its right as per the notification dated 30.12.1996,
which vide para 2.3 left it to the discretion of the respective
State Government to implement or not the pay scales
recommended by AICTE and instead implement some other
pay scale, but has fallen foul in not taking the prior approval of
AICTE, which council has also contributed to the mess by not
according due consideration to the controversy arising out of
AICTE enhancing educational qualifications for teachers and
bringing the same at par with teachers in engineering colleges
and simultaneously requiring same scale of pay to be made
applicable but qua librarians and physical education persons
recommending pay scale at par with corresponding posts in
engineering colleges but without enhancing the requisite
educational qualifications by bringing the same at par with the
posts in engineering colleges.
35. Thus, the inevitable conclusion has to be that the
impugned directions issued by the Tribunal in all the writ
petitions are required to be quashed and as a consequence the
applications filed by the respondents before the Tribunal being
dismissed, but with a direction to the Government of NCT Delhi
and AICTE to resolve the deadlock.
36. The impugned orders passed by the Tribunal which are
the subject matter of challenge in all the writ petitions are
quashed.
37. Since Government of NCT Delhi is permitted to
implement pay scales for the post of librarian and physical
education persons in technical institutions in Delhi other than
those recommended by AICTE, but subject to the approval of
AICTE, which has not been done we issue a direction requiring
AICTE to decide specifically the issue of educational
qualifications required by the librarians and physical education
persons in technical institutes in Delhi and in what scale of pay
they must be put. A specific approval shall be granted by
AICTE in clear language for the reason its notification dated
30.12.1999, vide para 2.3 thereof casts an obligation on AICTE
to consider for approval the pay scales to be applied if the
State Government seeks not to implement the scales of pay
recommended by AICTE and this must of necessity require
AICTE to pass a specific order.
38. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(MOOL CHAND GARG)
JUDGE
AUGUST 06, 2010
mm
