Delhi High Court
Prof. Sachin Maheshwari vs Netaji Subhas Institute Of ... on 11 December, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: October 10, 2017
Judgment delivered on: December 11, 2017
+ W.P.(C) 12083/2016
PROF. SACHIN MAHESHWARI ..... Petitioner
Through: Mr. Tarkeshwar Nath
& Mr. Onkar Nath, Advs.
versus
NETAJI SUBHAS INSTITUTE OF TECHNOLOGY
& ANR. ..... Respondents
Through: Ms. Avnish Ahlawat and
Ms. Palak Rohmetra, Advs. Adv.
for R-1
Mr. Anil Soni, Standing Counsel
with Ms. Priyanka Singh, Adv.
for AICTE.
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. The present petition has been filed by the petitioner with the following
prayers:
"Therefore, this Hon'ble Court may graciously be pleased to:-
(i) Quash and set aside the Advertisement dated 30.11.2016.
(ii) Pass any other order that is deemed fit and proper under
the facts and circumstances of the case."
2. From the above, it is seen that in substance, the petitioner is challenging
the advertisement dated November 30, 2016, whereby the respondent / NSIT
while advertising the post of Director in Netaji Subhash Institute of
Technology (NSIT in short) has prescribed the qualifications and experience
as under:
"Qualifications and Experience: The candidate must
possess a doctorate degree in any field of Engineering,
Technology and specialization in any of the areas of endeavour
of the Institute (i.e Electrical/Electronics and
Communication/Instrumentation & Control/Computers &
Information Technology/Bio-Technology/Manufacturing
Processes and Automation Engineering or Physical Sciences).
He/She must be an eminent academician and should have
proven ability of developing and managing organizations,
providing leadership and vision, and sufficient experience of
technical education and/or Industry at a senior level (Dean,
Head, Professor etc) in planning and
development/research/teaching. Candidate must have
demonstrated high academic excellence by way of research
publications in referred international journals, membership of
professional bodies and reviewership/editorship of professional
national/international Journals. The candidate should have
worked for at least 10 years as Professor/equivalent."
The challenge is primarily on the ground that the advertisement requires
a candidate to have 10 years experience as Professor / equivalent.
3. Some the facts relevant for the proper adjudication of the case are, the
petitioner joined the respondent / NSIT as a Lecturer in Manufacturing
Processes and Automation Engineering Division. In the year 2000, he was
selected as an Assistant Professor in respondent / NSIT. In April, 2007, he
was selected as a Professor in the same institute. It is his case that on
February 23, 2009, he was allocated the duties and responsibilities of Head of
the Division of Manufacturing and Process and Automation Engineering. On
May 6, 2010, the Institute invited applications from eligible candidates for the
post of Director, NSIT wherein no minimum period of working as Professor /
equivalent has been mentioned. It is also averred that on July 29, 2010, Govt.
of NCT of Delhi, Department of Training and Technical Education decided to
implement the revised pay scales and other service conditions for the
categories of employees of Degree Level Technical Institutions and Delhi
Technological University on the basis of recommendations made by AICTE
with details as mentioned therein, i.e., AICTE (Pay Scales Service Conditions
and Qualifications for the Teachers and other academic staff in Technical
Institution) (Degree) Regulations 2010 notified on March 5, 2010 (Regulation
2010 in short). As per Para 2 therein, the appointments to the post of
Principal / Director in Technical Institutions would be based on the conditions
and eligibility in respect of the educational qualifications, teaching and
research experience laid down by the AICTE from time to time. It is his case
for Principal / Director the norms of the AICTE prescribe the eligibility as
minimum of 10 years experience in Teaching / Research / Industry out of
which at least 3 years shall be at the level of Professor or minimum 13 years
experience in teaching and / or Research and / or Industry. It is his case that
no change has been made by AICTE till date. It is also averred that on August
16, 2010, NSIT conveyed the implementation of revised pay scales and other
service conditions to the Institute Faculty in accordance with the AICTE
notification dated March 5, 2010 read with office Order dated July 29 2010 of
Govt. of NCT of Delhi Department of Training and Technical Education. In
other words, respondent / NSIT has made the Regulation, 2010 of AICTE read
with Office Order dated July 29, 2010 of Govt. of NCT of Delhi applicable in
regard to appointment to the post of Principal / Director with same
qualification and teaching experience as laid down by the AICTE. It is his
case that no condition of Regulation, 2010 of AICTE has been changed so far.
Insofar as the post of Principal is concerned the AICTE Regulation stipulate it
to be in the pay band of Rs.37400-67000 with AGP of Rs.10,000/- plus
special allowance of Rs.3,000/- per month. It is averred that on May 8, 2013
another advertisement was issued by the Chairman, Board of Governors,
NSIT inviting applications for the post of Director, which again did not
mention minimum working period as Professor, as an eligibility criteria. It is
also averred that even in the year 2014, a notification was advertised for the
post of Director which also did not mention minimum working period as
Professor as eligibility criteria. In view of the said notification, the petitioner
also applied for the post of Director as he was eligible for the same. On
November 5, 2014, he was called for interaction with the Selection Committee
held on November 24, 2014. He was not recommended by the Committee for
the post of Director. It is averred that on October 13, 2015, Ministry of
Personnel, Public Grievance and Pension, DOP&T, Government of India has
issued the Office Memorandum to the effect that the proposed amendments /
revision in the Recruitment Rules should be put on the website for 30 days for
inviting comments from stakeholders. On April 18, 2016, the petitioner was
appointed as Dean, Faculty Affairs. On July 11, 2016, Professor Yogesh
Singh was relieved from the charge of Director. He was given additional
charge of Director on July 12, 2016. As the post of Director was lying vacant,
an advertisement dated November 30, 2016 was issued for the said post by
Director, NSIT on behalf of the Board of Directors, NSIT and not by the
Chairman, Board of Governors, as has been done in the past. It is the case, a
new condition has been added of a candidate having working experience of 10
years as Professor / equivalent as eligibility criterion for the post of Director
and that too without the approval of the Board of Governors. On December 6,
2016, petitioner made a representation to the Institute seeking amendment to
the advertisement by issuing Corrigendum to the effect of withdrawing the
condition of work experience of 10 years. It is also averred that a further
representation dated December 8, 2016 was made by the petitioner to the
Hon'ble Lt. Governor seeking withdrawal of the illegal condition. It is his
case that the Hon'ble Lt. Governor instead of responding to the representation
of the petitioner dated December 6, 2016 sent the same to the Deputy Director
(SB), Department of Training and Technical Education, Govt. of NCT of
Delhi. It appears that petitioner had earlier filed the Writ Petition being
11932/2016, which was withdrawn with liberty to file a fresh petition with
better particulars.
4. It may be suffice to state that during the pendency of this Writ Petition,
memo of parties were amended whereby the Hon'ble Lt. Governor, Govt. of
NCT of Delhi, respondent no.1 was deleted as party and All India Council for
Technical Education was impleaded as respondent no.2. In terms of the
amended Memo of Parties, there are two respondents, (1) Netaji Subhash
Institute of Technology and (2) All India Council for Technical Education.
5. In the counter-affidavit respondent no.1/NSIT has stated that it is a
100% grantee institution of Govt. of NCT of Delhi and the President of the
Society is Hon'ble Lt. Governor of Delhi. It is their case that the President i.e.
Hon'ble Lt. Governor of Delhi is competent to fix the criteria and guidelines
for appointment to the Post of Director in the absence of notified Recruitment
Rules. The NSIT is a Society registered under the Societies Registration Act.
It was set up by the Government with an objective to provide excellence in
instruction at the under-graduate and post-graduate levels and undertake
sponsor research in such branches of Engineering and Technology and
Applied Science and Management Sciences as Institute may think fit. It is
also averred, that a proposal for giving the status of University to NSIT as
approved by Legislative assembly of Delhi was sent for final approval to the
President of India and the same has been received back with observations for
reconsideration of GNCTD. It is averred that the Memorandum of Association
and Rules and Regulations of NSIT do not prescribe any qualification /
experience for the post of Director, NSIT, which is one of the post of the
officers of the Institute. The Director shall be the Principal Academic and
Executive Officer of the Institute and shall be responsible for the proper
administration of the Institute and for imparting instructions and maintenance
of discipline therein. It is averred that the post of Director from the beginning
has been filled by the Govt. of NCT of Delhi, Department of Training and
Technical Education after the same was advertised in the Newspaper. For the
first time in the year 2009, the NSIT was directed to advertise the post of
Director for which necessary selection was made by the Selection Committee
appointed by the Hon'ble Lt. Governor of Delhi. It is also averred that the
Department of Training and Technical Education proposed that keeping in
view the fact that NSIT is likely to be upgraded into a University as the Bill in
this regard has already been passed by the Legislative Assembly of Delhi, and
in view of its future requirement, it was agreed that it may be advisable to
include a clause regarding possession of 10 years experience as Professor /
equivalent by the applicant. The proposal was approved by the Chief
Secretary, Deputy Chief Minister and finally by the Hon'ble Lt. Governor of
Delhi and accordingly, the advertisement was issued for the post of Director,
NSIT. The pay scale of Director of NSIT is Rs.67,000/- - Rs.79,000 (HAG
Scale). The Hon'ble Lt. Governor of Delhi and the President of the NSIT also
constituted a Selection Committee to recommend the name of candidate for
appointment for the post of Director, NSIT. The last date of receipt of
application was October 26, 2016 and 40 applications were received.
6. On the aspect of guidelines issued by AICTE, it is stated by the
respondent no.1 / NSIT that All India Council for Technical Education (pay
scale, service condition and qualification for teachers and other academic Staff
in Technical Institutions (Degree) Regulation, 2010 are regulatory only and
not mandatory. The institutes have to frame their own Rules and Regulations
keeping in view the minimum criteria prescribed by AICTE. It is their case, if
any Institute is giving a higher scale of pay and wants more experienced
persons for their faculty, no fault can be found with the same. As per the
AICTE, Regulation, 2010, the post of Principal / Director is in the pay band of
PB-IV, i.e., Rs.37,000 - Rs.67,000 with AGP of Rs.10,000 plus Special
Allowance of Rs.3,000/- per month, whereas the post of Director of NSIT as
per the advertisement is in the pay band of Rs.67,000 - Rs.79,000/- (HAG
Scale) which is much higher and more superior post compared to AICTE
norms. In other words, it is the case of the respondent NSIT, the
qualifications and experience prescribed by AICTE to the post of Director /
Principal are minimum in the pay scale of PB-IV i.e., Rs.37,400 - Rs.67,000
with AGP of Rs.10,000/-. It is also stated that as per the advertisement dated
November 30, 2016 for the post of Director, NSIT, the petitioner was not
eligible for the same as he did not possess 10 years of experience as Professor,
which is the basic requirement. It is also averred that in the past for
appointment to the post of Director, NSIT, the criteria was fixed by the
Chairman, BOG in consultation with the President of the Society as is evident
from the advertisements issued in 2009, 2010, 2013 and 2014 and current
2016 respectively. But keeping in view that NSIT is likely to be upgraded to
the University as the Bill in this regard has already been passed by the
Legislative Assembly of Delhi, the Department of Training and Technical
Education, GNCTD proposed a clause regarding 10 years of experience as
Professor / equivalent which was approved by the President (NSIT), i.e.,
Hon'ble Lt. Governor of Delhi. Pursuant thereto the advertisement was issued.
In other words, respondents have justified, the prescribing of experience of 10
years as Professor for the post in question.
7. I may note here that initially a short affidavit was filed by the AICTE,
respondent no.2, wherein they referred to the Regulations made by AICTE
called as AICTE (pay scales, service conditions, qualifications of teachers and
other academic staff in technical institutions) (Degree) Regulations, 2010 and
the same are applicable to technical institutions and Universities including
deemed Universities imparting technical education. They referred to the fact
that the post of Principal / Director shall be in the pay band of Rs.37,400 -
Rs.67,000/- with AGP of Rs.10,000/- plus Special Allowance of Rs.3,000/-
per month. It is also stated that the State Governments taking into
consideration other local conditions may also decide in their discretion to
introduce scales of pay higher than those mentioned in the Scheme and may
give effect to the revised bands / scale of pay from a date on or after January
1, 2006, however in such case, details of modifications proposed shall be
furnished to the Central Government and central assistance shall be restricted
to the Pay Bands as approved by the Central Government and not to any
higher scale of pay fixed by the State Government(s). Rejoinder has been
filed by the petitioner.
8. I may also note in terms of order dated May 18, 2017, this Court noting
that the affidavit of AICTE it is not clear that respondent no.1 could have put
the condition in the advertisement which is under challenge and the same
needs to be clarified, called upon the AICTE to file an affidavit in that regard.
AICTE filed an affidavit initially on July 14, 2017. This Court on September
11, 2017 noting that the affidavit filed by the AICTE is not adverting to the
issue on which the affidavit was required to be filed, granted further time to
the AICTE to file another affidavit. Accordingly on September 22, 2017,
further affidavit was filed by AICTE, wherein in Para 6, AICTE has stated as
under:
"It is submitted that AICTE prescribe the minimum
norms and standards including the qualification and pay
scales of Faculty and Principal / Director for all AICTE
approved Technical Institutions. As stated above in the
para 5 as per AICTE Regulations, 2010 State
Government is permitted to have higher scale of pay
without expecting central assistance. In this case State
Govt. of Delhi have adopted higher scale of pay and
hence might have asked for higher qualification and
experience. It is pertinent to mention here that pay
scales are in general related to qualifications and
experience of a candidate. Since the minimum
requirements as per AICTE Regulations are fulfilled,
there is no deviation in norms."
9. The petitioner has also filed a response to this affidavit wherein the
petitioner has denied the stand of the AICTE that the Govt. of NCT of Delhi
having adopted higher scale of pay might have asked for higher qualification
and experience. According to the petitioner, the said stand is contrary to the
stand taken by the AICTE earlier.
10. Mr. Tarkeshwar Nath, learned counsel appearing for the petitioner
submitted that AICTE has framed Regulations i.e. "Regulation 2010" vide
Notification dated March 5, 2010 in exercise of its powers conferred under
Sub Section (i) of Section 23 read with Section 10(i) and (v) of All India
Council for Technical Education Act 1987 which was enacted by Parliament
to govern the Technical Education throughout the country. Therefore, the
same are statutory and binding on all Technical Institutions throughout the
country. In this regard he relied upon the judgment in the case reported as
(2016) 14 SCC 505 Pramod V. State of Maharashtra & Ors. wherein in Para
17 the Supreme Court held as under:
"Moreover, the Regulations of AICTE being statutory,
unless these have been superseded or annulled by a
competent authority, the appellant's age of superannuation
stood extended up to 65 years"
11. He further stated, AICTE Regulations have made it mandatory for the
State Governments and Technical Institutions to implement the same as a
composite scheme without any modification except with regard to the date of
implementation and scales of pay mentioned therein, leaving it open to State
Governments, taking into consideration other local conditions, in their
discretion to introduce scales of pay higher than those mentioned in the
Scheme. He submitted, the Government of NCT of Delhi by its Office Order
dated July 29, 2010 adopted the Regulation 2010 dated March 5, 2010 as per
the Cabinet decision dated July 22, 2010 to implement the revised pay scales
and other service conditions in respect of different categories of employees of
Degree Level which includes the conditions of eligibility in respect of
educational qualifications and teaching/research experience with the same pay
band of Rs.37,400-67000 with AGP of Rs.10,000/- plus special allowance of
Rs.3,000/- for Principal/Directors in Technical Institutions without any
modification and NSIT, in turn, vide its office order dated August 16, 2010
with the approval of Board of Governors and in pursuance of the office order
dated July 29, 2010 of the Govt. of NCT of Delhi adopted the implementation
of revised pay scales and other service conditions as contained in AICTE
notification dated March 05, 2010 and office order dated July 29, 2010 of the
Govt. of Delhi in totality without any change or modification. Thus it is also
his submissions that the approval of BOG, NSIT is necessary for adoption of
Regulation, 2010 after the Delhi Govt. adopts the same as has been done in
the present case where the Delhi Govt. has adopted Regulation, 2010 in
totality first without any change or modification by its office order dated
August 16, 2010 and thereafter NSIT as stated above, in totto, without any
change.
12. He stated, Sh. Puneet Kaushik (who had sworn the earlier affidavit
dated July 14, 2017) filed third affidavit dated September 22, 2017 on behalf
of AICTE reiterating its stand as taken in earlier affidavits but expressed his
opinion, (though without any basis, contrary to Regulation, 2010 and the stand
taken earlier) that the Government of NCT of Delhi in this case has adopted
higher scale of pay and hence might have asked for higher qualification and
experience. Such an opinion is not binding on the court. He stated, the
petitioner fulfills all the criteria with respect to qualifications and experience
for the post of Director as per Regulation 2010. He also fulfils all the criteria
as per impugned advertisement except the experience of 10 years as
Professor/equivalent. According to Mr. Nath, the petitioner is short by four
months as Professor though he has teaching experience of 18 years out of
which 9 years & 8 months as Professor. He would state Regulation 2010 has
neither been amended/altered till dated by AICTE who is the Competent
Authority. No document, contrary to the same has been placed on record by
the respondents. According to him, Delhi Government too has not prescribed
any qualification and experience (though not competent) other than those
mentioned in Regulation, 2010 nor the Delhi Govt. has introduced scales of
pay higher than those mentioned in the scheme. So is the case with NSIT.
BOG, though is competent to prescribe the terms and conditions for
appointment of Director in terms of Clause 10A (viii) and (xi) (g) read with
clause 22 but the same would attain finality subject to the approval of Delhi
Government. He stated, the legality or illegality of the said prescriptions are
to be tested on the touchstone of Regulation, 2010 whether they are in
consonance with the said Regulations. In case of repugnancy, AICTE
Regulations would prevail as held by Supreme Court.
13. He stated, Delhi Government cannot stipulate norms of even higher
standards in those areas which are covered by the norms of AICTE as held by
Supreme Court in Rungta Engineering College, Bhilai & Anr v.
Chhattisgarh Swamy Vivekananda Technical University & Anr. cited as
2014 (11) SCALE 582. He also relied upon Christy James & Ors v. State of
Kerala Civil Appeal No. 4604/2016. He stated, the AICTE, Regulation, 2010
in any case are necessarily to be followed by NSIT as they are, as on date,
includes the criteria with respect to minimum experience. According to him,
in the present case, NSIT has compromised the standards in the impugned
advertisement, which is not permissible. Condition with respect to physical
sciences as a requirement for the post of Director in a highly and specialized
technical Institution is not understood. BE/B.Tech or ME/M.Tech has been
compromised in the advertisement. Post PhD publications and guiding PhD
student being highly desirable has also been compromised. Insertion of 10
years experience in the impugned advertisement without the approval of BOG
or by Competent Authority, i.e., AICTE is not sustainable contrary to AICTE,
Regulation, 2010. The Delhi Government or LG or even BOG is not
competent to change the criteria as fixed by AICTE as held in catena of cases.
Earlier two advertisements, though mention the same pay band of Rs.67000-
79000/- have not fixed the criteria with respect to experience of 10 years as
Professor/equivalent. He stated, NSIT has not been upgraded into a University
till date as contended by respondent No.1. Even otherwise, the petition has to
be adjudicated on the basis of status existing at the time when cause of action
for the petition arose and admittedly, NSIT was not a University at the time
when impugned advertisement was published or at the time of filing the
instant petition. In other words, rules applicable at the time of advertisement
will be considered more particularly in view of the settled law that rules if
amended (which is not the case in hand) would obviously be prospective in
nature. He relied upon the judgment reported as 2016 (8) AD Delhi 678
Municipal Corporation of Delhi Ministerial Staff Association (Regd.) v. The
Director, Local Bodies, New Secretariat & Ors. He would state, bill for
upgradation of NSIT into University as stated by the respondent No.1
admittedly has not been finalized till date.
14. He stated, internal note annexed as Annexure R-1 confirms that the
matter of release of impugned advertisement was not discussed in BOG but
was discussed in the chamber of Secretary, TTE, in the presence of Director,
TTE and Spl. Director, TTE who have no authority in this regard. The
proposed changes were not made public as required under office order of
DoPT O.M. dated October 13, 2015. The said internal note further confirms
that the signature of Chief Secretary or Dy. C.M. or L.G, though they are not
competent, were taken on misrepresentation that the proposed advertisement
is similar to the one issued earlier when Director, NSIT was appointed
previously. He relied on the judgment reported as 65(1997) DLT 840 B.N.
Mishra v. L. Governor of Delhi & Ors to contend that the President of NSIT
Society is not competent to prescribe the terms and conditions of service for
appointment to the post of Director. Experience is one of the conditions of the
appointment. He further stated, the publication of impugned advertisement
itself is illegal as the same has been issued by the Director on behalf of Board
of Governors, which is not permissible. The same is required to be issued by
Chairman, Board of Governors as has been done in past. The judgment
annexed as Annexure R-2 (to the counter-affidavit of respondent no.1) is not
applicable in the present case in view of the fact that the dispute therein was
between two Central Universities and also the issue involved therein was left
open to be decided by the Division Bench in appeal vide LPA No. 1195/2007.
Therefore, the issue involved in that case cannot be said to have attained
finality. Additionally, judgments relied upon by the respondent No.1 are not
applicable in the present case in view of the facts and circumstances. None of
the judgments cited by the Ld. Counsel for the respondent No.1 say that
criteria fixed by AICTE with respect to qualification and experience falling
under the jurisdiction are changeable by the authority other than AICTE.
During his submissions, Mr. Nath also relied upon the judgment of the
Bombay High Court (Aurangabad Bench) in the case of G.H.R. Education
Foundation Society Jalgaon and Anr. vs. State of Maharashtra and Ors.
2011 (5) MhLJ 267. He prays, the impugned advertisement be set aside and
the petition be allowed.
15. On the other hand, Ms. Avnish Ahlawat, learned counsel for the
respondent / NSIT would submit that there is no deviation from AICTE
Regulations. The NSIT is a 100% grantee institute of Govt. of NCTD. The
President, Hon'ble Lt. Governor / Govt. has provided a Higher Scale of Pay
for the post of Director NSIT which is Rs.67,000 - Rs.79,000 (HAG) Scale as
against the AICTE had recommended scale for the post of Principal / Director
in PB-IV Rs.37,000 - Rs.67,000 with AGP of Rs.10,000 plus special
allowance of Rs.3000. The Regulations framed by the AICTE are regulatory
and not mandatory. The Institute is required to follow the minimum
prescribed standards in the Regulations, but the Higher Scales and
qualifications can be prescribed by the Institute / Government for achieving
excellence and betterment in the Higher Education. The institute / GNCTD
has to frame its own Service Rules and Regulations keeping in mind the
minimum criteria prescribed by the AICTE. She submitted, since there are no
Recruitment Rules for the post in question, keeping in mind the requirement
for the post of Director, the advertisement was issued. At present there being
no Chairman of the Board of Governors, the steps were taken up to fill up the
post of Director and matter was sent by acting Director for approval to the
Nodal Department, i.e., DTTE GNCTD and the President of the Society, i.e.,
Hon'ble Lt. Governor of Delhi and under the clause qualification, 10 years
experience as Professor / equivalent was mentioned in the advertisement with
the approval of the President NSIT, i.e., Hon'ble Lt. Governor of Delhi in
view of the fact that very soon NSIT is to be given the status of University.
No fault can be found merely because 10 years experience as Professor has
been asked for the post of Director whose scale is almost double of the scale
prescribed in the Regulations. It can be seen that file was put up by the nodal
department to the Dy. Chief Minister and then to the Hon'ble Lt. Governor
(the President) who approved the requirement of experience of 10 years as
Professor. The Petitioner being not eligible for the post of Director, NSIT
cannot be allowed to challenge the advertisement dated November 30, 2016.
Mere eligibility as per AICTE Regulations does not give him any right to be
considered for the post. The Hon'ble Lt. Governor of Delhi / President of
NSIT constituted a selection committee to recommend the names of the
candidates for appointment to the post of Director NSIT in terms of Rule 20 of
the NSIT Rules and Regulations. In all 43 applications were received by the
committee out of which 3 were received late and the committee after short
listing called 20 candidates out of 40 eligible for interview and Prof. J.P. Saini
has been selected for the post of Director. Offer of appointment was issued on
4th May, 2017 and he has taken charge of the post, subject to the result of this
writ petition. Respondent no.2 also filed their affidavit confirming that states
in their discretion can enhance the pay scale for the posts and the same shall
be furnished to the Central Government and the Central Government's
assistance shall be restricted to the pay bands as approved by the Central
Government and not to any Higher Scale of pay fixed by the State
Governments. In the present case in any case NSIT is not funded by the
Central Government; it is 100% funded by the State Government therefore,
there could not be any dispute on granting higher pay scale. Since the
affidavit of AICTE was silent on the issue of higher qualification prescribed,
this Court in its order dated May 18, 2017 referring to the issue which arises
for consideration, whether the Respondent No.1 could have put a condition of
10 years experience as Professor in the advertisement issued for making
appointment to the post of Director, NSIT directed AICTE to file a specific
affidavit in this regard which has been filed. She referred to Para 6 of the
affidavit filed by AICTE on September 22, 2017.
16. Ms. Ahlawat referred to some of the provisions of Rules and
Regulations. Ms. Ahlawat also stated that there is no challenge that the
decision of the President / Government to have 10 years experience as
Professor for the post of Director is an arbitrary or irrational decision or that it
is a malafide exercise on the part of the President / Government.
17. She submitted the number of applications received with the present
advertisement re-confirms the justification of the decision of the President /
Government to call for applications for the post of Director from the
applicants having 10 years experience as Professor.
18. During the course of the arguments it was submitted by Mr. Nath that in
the advertisement while prescribing educational qualification that the
candidate must possess a Doctorate Degree in any field of Engineering,
Technology and specialization in any of the areas of endeavour of the Institute
(i.e., Electrical / Electronics and Communication / Instrumentation & Control
/ Computers & Information Technology / Bio-Technology / Manufacturing
processes and Automation Engineering or Physical Sciences), the physical
sciences qualification is a deviation from AICTE Regulations.
19. According to Ms. Ahlawat, the word physical science is being read by
the petitioner in totally out of context. The word physical science does not
mean applied science of humanities. It is submitted that AICTE recognizes
number of Engineering Degrees programme in Physical Science, i.e., Material
Science, metallurgy, mathematics & computing, chemical science, electronics
science, information science, computer science, nano science, polymer
science, manufacturing science, electronics & computer science,
environmental science, pharmaceutical chemistry etc. Therefore, the
contention of the petitioner on this account is also to be rejected.
20. She would refer to the Judgment of the Supreme Court in the case
reported as (2011) 4 SCC 606 Visveswaraiah Technological University and
Anr. v. Krishnendu Halder and Ors. wherein according to her it was held that
the fixation of higher eligibility criteria than the minimum prescribed by
Central Governing Body, by University / State Government concerned to
achieve excellence in education unless it is a established that such standards
are arbitrary or adversely affect the standards, if any fixed by the Central body
under the Central enactment cannot be faulted with. She stated, the Supreme
Court relied upon its earlier decision in the case of Preeti Srivastava (Dr.) v.
State of M.P. (1999) 7 SC 120 wherein the Constitution Bench of the
Supreme Court in Paras 39, 45, 46, 47 and 48 categorically held that there is
distinction in the word eligibility and qualification. Eligibility connoting the
minimum criteria for selection that may be laid down by the University or any
Central statute while qualifications connoting the additional norms laid down
by the College or by the State. In every case, minimum prescribed standard
has to be complied with, in addition, it may lay down other additional norms
for admissions or regulate admissions. She also relied upon the Judgment in
the case of State of Tamil Nadu v. S. V. Bratheep (2004) 4 SCC 513, wherein
according to her, the Supreme Court in Paras 9, 10 & 12 categorically held
that if higher is prescribed by the State Government than what has been
prescribed by the AICTE, it cannot be said that it is in any manner adverse to
the standards fixed by AICTE. The Court categorically held that minimum
alone cannot be taken into consideration.
21. The contention that the purpose of fixing of norms by AICTE is to
ensure uniformity with extended access of educational opportunity and such
norms should not be tinkered with by the State in any manner was rejected by
the Supreme Court relying upon the case of Preeti Srivastava (Dr.) (supra)
that the State can always fix a further qualification or additional qualification
to what has been prescribed by AICTE and that proposition is indisputable.
22. She submitted in the case of Association of Management of Private
Colleges v. All India Council for Technical Education (2013) 8 SCC 271,
the Supreme Court while dealing with the powers and function of AICTE
held that the role of AICTE is only advisory and recommendatory in the sense
that AICTE can set standards of technical educational and if there is non-
compliance therewith, AICTE can only bring the same to the notice of UGC it
cannot by itself enforce or issue any sanction to or penalize Universities or
their constituent and affiliated colleges. AICTE role is limited to the purpose
of ensuring proper maintenance of norms and standards in technical education
system and compliance therewith.
23. She also submitted the reliance placed by the counsel for the petitioner
in the case of Christy James & Ors. (supra) is concerned the same has no
applicability to the facts of this case as in that case the qualifications
prescribed by AICTE for the post of Assistant Professor were diluted by
Kerala Government by framing a special Rule where the requirement was of
Ph.D. Degree; first class Degree at Bachelor's or Master's level in the
appropriate branch of Engineering or Technology with three years experience
in teaching / industry / research at the level of Lecturer or equivalent was
diluted by bringing Rule 6 (A) in the special Rules framed by the Kerala Govt.
which reads as under: -
"6(A)(2) candidates applying for the post of Assistant Professor
are exempted from possessing Ph.D. Degree but they have to
acquire Ph.D. Degree within 7 years of appointment to the post
of Assistant Professor as stipulated by the All India Council for
Technical Education."
The Supreme Court held that in view of the fact that Rule 6 (A) was not
in consonance with the prescription made by the AICTE the same is liable to
be set aside.
24. According to Ms. Ahlawat there is no dispute that AICTE lays down
the qualifications in order to maintain the standards of Education in the
Technical Institutions but qualifies the submission by stating they cannot be
reduced. The issue in this case, according to her is the question of prescribing
higher qualifications. That issue has been dealt with by the Constitution
Bench judgment in the case of Preeti Srivastava (Dr.) (supra), S.V. Bratheep
(supra) and Krishnendu Halder and Ors. (supra). She stated the case of
Rungta Engineering College Bhilai and Ors. (supra) also has no
applicability to the facts of this case as the said case was dealing with a case
where the College which was granted approval by AICTE, the examining
body refused to give affiliation on the ground that it does not fulfill the
conditions required under the norms specified by AICTE. The Supreme Court
held that it is not the examining body who will go into this issue. They can
only bring the shortcomings to the notice of AICTE and seek appropriate
action against the college and therefore, directed that affiliation be given.
There was no issue of prescribing higher norms than the AICTE norms or
standards.
25. She further submitted that the reliance placed by the petitioner on the
judgment reported as 2011 (5) Mh. 267 G.H.R. Education Foundation
Society Jalgaon & Ors. v. State of Maharashtra also has no applicability to
the facts of this case as in that case, the Society had selected Director for
appointment to the Institute but the University was not giving approval to the
same. The Division Bench held that when there is no dispute that Respondent
no.2 selected candidate possessing requisite educational qualification for
being appointed to the post of Director of Technical Institute as per the norms
prescribed by AICTE, refusal by the University to grant approval to the
appointment is erroneous and therefore, granted approval.
26. Mr. Anil Soni, Ld. Counsel for the AICTE, reiterates the stand taken in
the various affidavits filed by AICTE.
27. Having heard the learned counsel for the parties, two issues arises for
consideration in this petition, the first being whether a stipulation could have
been put / prescribed in the advertisement for making appointment to the post
of Director, NSIT of a candidate having 10 years experience as Professor /
equivalent different from the one prescribed by the AICTE, secondly whether
such a stipulation can be prescribed with the approval of the President of the
Society i.e Hon'ble Lt. Governor of NCT of Delhi, contrary to the Rules and
Regulations.
28. On the first question, there is no dispute that the AICTE is the
regulatory body, which prescribes/empowered to issue, Regulations regulating
the terms/conditions of appointment to various posts in the technical institutes
established with its approval, NSIT in this case. In fact, parties are at ad idem
on this proposition. There is also no dispute that as per the Regulations issued
by the AICTE, the same stipulates the post of Director/Principal of a technical
institute to be in the Pay Band-IV, Rs.37,000-67000 with AGP of Rs.10,000/-,
special allowance of Rs.3,000/-. Insofar as the post of Director in NSIT is
concerned, the same carries a pay scale of Rs.67000-79000. This aspect can
be noted from the impugned advertisement issued by the respondent No.1. In
other words, the scale as prescribed by the respondent No.1 for the post of
Director, NSIT is higher than the one prescribed by the AICTE in its
Regulations. The submission of Ms. Ahlawat based on the Regulation, 2010
that gives a State Government, discretion to introduce scales of pay, higher
than those mentioned in the Regulations and that as the NSIT is likely to be
upgraded in a University as the Bill in that regard has already been passed by
the Legislative Assembly of Delhi, a higher pay scale was prescribed, is
appealing. So it follows, if a pay scale attached to a post is higher than one
stipulated by the AICTE in its Regulations 2010, the respondent No.1 would
be justified to have a higher eligibility condition for appointment to such post,
the post of Director, NSIT in this case.
29. The submission of Mr. Tarkeshwar Nath that the respondent No.1 is
required to follow the eligibility as prescribed by the Regulations 2010, of
AICTE is without any merit for more than one reason; (i) the said eligibility is
for a post in the pay scale of Rs.37000-67000 with AGP of Rs.10000/- in PB-
IV; and (ii) the petitioner having not disputed, rather accepted the fact that the
post of Director, NSIT is in the scale of Rs.67000-79000/-, the requirement
for appointment to a post carrying such a scale must be with a higher
eligibility condition cannot be contested. Further her submission that the
stipulation prescribed by the AICTE in terms of Regulations 2010 are the
minimum standards to be maintained by an Institute for making appointment
to the post of Director is also appealing.
30. The issue raised is no more res-integra in view of the judgment of the
Constitution Bench of the Supreme Court in the case of Preeti Srivastava
(Dr.) (supra), wherein in para 39, the Supreme Court held as under:-
"39. The respondents have emphasised the observation that
admission has to be made by those who are in control of the
colleges. But, the question is, on what basis? Admissions must
be made on a basis which is consistent with the standards laid
down by a statute or regulation framed by the Central
Government in the exercise of its powers under Entry 66, List I.
At times, in some of the judgments, the words "eligibility" and
"qualification" have been used interchangeably, and in some
cases a distinction has been made between the two words -
"eligibility" connoting the minimum criteria for selection that
may be laid down by the University Act or any Central Statute,
while "qualifications" connoting the additional norms laid
down by the colleges or by the State. In every case the minimum
standards as laid down by the Central Statute or under it, have
to be complied with by the State while making admissions. It
may, in addition, lay down other additional norms for
admission or regulate admissions in the exercise of its powers
under Entry 25 List III in a manner not inconsistent with or in a
manner which does not dilute the criteria so laid down."
31. The Supreme Court, in the case of State of Tamil Nadu v. S. V.
Bratheep (supra), in paras 10, 12 and 13 held as under:-
10. Argument advanced on behalf of the respondents is that
the purpose of fixing norms by the AICTE is to ensure
uniformity with extended access of educational opportunity and
such norms should not be tinkered with by the State in any
manner. We are afraid, this argument ignores the view taken by
this Court in several decisions including Dr. Preeti Srivastav's
case that the State can always fix a further qualification or
additional qualification to what has been prescribed by the
AICTE and that proposition is indisputable. The mere fact that
there are vacancies in the colleges would not be a matter,
which would go into the question of fixing the standard of
education. Therefore, it is difficult to subscribe to the view that
once they are qualified under the criteria fixed by the AICTE
they should be admitted even if they fall short of the criteria
prescribed by the State. The scope of the relative entries in the
Seventh Schedule to the Constitution have to be understood in
the manner as stated in the Dr. Preeti Srivastava's case and,
therefore, we need not further elaborate in this case or consider
arguments to the contrary such as application of occupied
theory no power could be exercised under Entry 25 of List III
as they would not arise for consideration.
12. One other argument is further advanced before us that
the criteria fixed by the AICTE was to be adopted by the
respective colleges and once such prescription had been made
it was not open to the Government to prescribe further
standards particularly when they had established the
institutions in exercise of their fundamental rights guaranteed
under Article 19 of the Constitution. However, we do not think
this argument can be sustained in any manner. Prescription of
standards in education is always accepted to be an appropriate
exercise of power by the bodies recognising the colleges or
granting affiliation, like AICTE or the University. If in exercise
of such power the prescription had been made, it cannot be said
that the whole matter has been foreclosed.
13. In this view of the matter, we think these appeals deserve
to be allowed in part and the order of the High Court stands
modified to the extent of stating that it is permissible for the
State Government to prescribe higher qualifications for
purposes of admission to the engineering colleges than what
had been prescribed by the AICTE and what has been
prescribed by the State and considered by us is not contrary to
the same but is only complementary or supplementary to it."
32. The Supreme Court in the case of Visveswaraiah Technological
University and Anr. (supra), has in paras 14(i) and 15 held as under:-
"14. (i) While prescribing the eligibility criteria for admission
to institutions of higher education, the State/University cannot
adversely affect the standards laid down by the Central
Body/AICTE. The term `adversely affect the standards' refers to
lowering of the norms laid down by Central Body/AICTE.
Prescribing higher standards for admission by laying down
qualifications in addition to or higher than those prescribed by
AICTE, consistent with the object of promoting higher
standards and excellence in higher education, will not be
considered as adversely affecting the standards laid down by
the Central Body/AICTE.
xxx xxx xxx
15. The primary reason for seats remaining vacant in a state, is
the mushrooming of private institutions in higher education.
This is so in several states in regard to teachers training
institutions, dental colleges or engineering colleges. The second
reason is certain disciplines going out of favour with students
because they are considered to be no longer promising or
attractive for future career prospects. The third reason is the
bad reputation acquired by some institutions due to lack of
infrastructure, bad faculty and indifferent teaching. Fixing of
higher standards, marginally higher than the minimum, is
seldom the reason for seats in some colleges remaining vacant
or unfilled during a particular year. Therefore, a student whose
marks fall short of the eligibility criteria fixed by the
State/University, or any college which admits such students
directly under the management quota, cannot contend that the
admission of students found qualified under the criteria fixed by
AICTE, should be approved even if they do not fulfil the higher
eligibility criteria fixed by the State/University."
33. The reliance placed by Mr. Tarkeshwar Nath on the judgment of the
Supreme Court in the case of Rungta Engineering College, Bhilai & Anr v.
Chhattisgarh Swamy Vivekananda Technical University & Anr (supra) by
referring to para 33 is concerned, in the said para, the Supreme Court had
referred to its judgment in the case of State of T.N. v. Adhiyaman
Educational & Research Institute, (1995) 4 SCC 104 and held that the
arguments that the State Legislature can stipulate norms of higher standards
even in those areas, which are covered by the AICTE is clearly rejected (by
the Supreme Court). I may state here that the Supreme Court in its judgment
in the case of Visveswaraiah Technological University and Anr. (supra) has
already clarified its observations in the case of State of T.N. v. Adhiyaman
Educational & Research Institute (supra), by stating as under:-
14. The respondents (colleges and the students) submitted that
in that particular year (2007-2008) nearly 5000 engineering
seats remained unfilled. They contended that whenever a large
number of seats remained unfilled, on account of non-
availability of adequate candidates, para 41(v) and (vi) of
Adhiyaman would come into play and automatically the lower
minimum standards prescribed by AICTE alone would apply.
This contention is liable to be rejected in view of the principles
laid down in the Constitution Bench decision in Dr. Preeti
Srivastava and the decision of the larger Bench in S.V.
Bratheep which explains the observations in Adhiyaman in the
correct perspective. We summarise below the position,
emerging from these decisions :
(i) While prescribing the eligibility criteria for admission to
institutions of higher education, the State/University cannot
adversely affect the standards laid down by the Central
Body/AICTE. The term `adversely affect the standards' refers to
lowering of the norms laid down by Central Body/AICTE.
Prescribing higher standards for admission by laying down
qualifications in addition to or higher than those prescribed by
AICTE, consistent with the object of promoting higher
standards and excellence in higher education, will not be
considered as adversely affecting the standards laid down by
the Central Body/AICTE."
34. From the above, it is clear that the Supreme Court has on the basis of its
judgment of the Constitution Bench in Preeti Srivastava (Dr.) (supra) and the
decision of the larger Bench in S.V. Bratheep (supra) has clarified that
prescribing higher standards for admission by laying down qualifications in
additional to or higher than those prescribed by AICTE, consistent with the
object of promoting higher standards and excellence in higher education, will
not be considered as adversely affecting the standards laid down by the central
body/AICTE. Since the limited reliance has been placed by Mr. Tarkeshwar
Nath on the judgment of the Supreme Court in the case of Rungta
Engineering College, Bhilai & Anr v. Chhattisgarh Swamy Vivekananda
Technical University & Anr (supra) with regard to para 33, wherein the
Supreme Court had referred to the judgment in State of T.N. v. Adhiyaman
Educational & Research Institute (supra), which was already clarified by the
Supreme Court in its earlier judgment in Visveswaraiah Technological
University and Anr. v. Krishnendu Halder and Ors. (supra) and which was
not brought to the notice of the Supreme Court and such a conclusion being
based on its Constitution Bench judgment in the case of Preeti Srivastava
(Dr.), the position of law must be held to be that higher standards can be
prescribed.
35. Insofar as the judgment relied upon by Mr. Nath in the case of G.H.R.
Education Foundation Society Jalgaon & Ors. (supra), is concerned, there
the Division Bench of the High Court was concerned with a dispute, whether
the respondent no.2 the selected candidate possessed the requisite educational
qualification for being appointed to the post of Director of Technical Institute
as per the norms prescribed by AICTE, which appointment was refused by the
University inter alia on the ground he did not fulfill the norms as prescribed
by the AICTE. It was held by the High Court that the respondent no.2 fulfills
the qualification as prescribed by the AICTE and directed the appointment of
respondent no.2. The said judgment has no applicability in the facts of this
case.
36. Insofar as the second issue i.e. whether such a stipulation could have
prescribed with the approval of the President of the Society contrary to the
Rules and Regulations is concerned, to answer this issue, it is necessary to
reproduce some of the relevant provisions of the Rules and Regulations of the
NSIT. Rule 1(b)(iii) defines "President" to mean the Hon'ble Lt. Governor.
Rule 2 defines "Authorities of the Institute" to include Board of Governors.
As per Rule 8, which relates to Board of Governors, the general
superintendence, direction and control of the affairs of the Institute shall be
vested in the Board of Governors. The Board of Governors shall consist of 13
Members including the Chairman. Rule 10 defines the powers and functions
of the Board of Governors, which includes sub-rule(vii), empowering the
Board of Governors to create such posts as it may consider necessary for
carrying on the work of the Institute and to prescribe the terms and conditions
of service of appointment to the posts taking full cognizance of such
provisions existing in the University of Delhi and Ordinance (xii) of the
University of Delhi; Rule 10 (viii) relates to making appointments to all
Group A posts in the Institute. Clause (g) of Rule 10(xi) stipulates framing,
classification and method of appointment and determination of the terms and
conditions of service in respect of posts under the control of the Institute.
Rule 11 stipulates that the Chairman of the Board of Governor shall preside
over the meeting. In case of his absence, the Chairman for conducting that
meeting shall be elected from amongst the Members present. The Board of
Governors by a resolution can delegate to the Director or to a Committee such
of its powers as it may deem fit. Rule 20 relates to Selection Committees and
insofar as the selection to the post of Director is concerned, the Selection
Committee shall be formed by the Chairman, Board of Governors in
consultation with the President except that the first Director shall be appointed
by the Government. The Officers of the Institute includes the President;
Chairman; Board of Governors; Director etc. Rule 22A empowers the
President to cause an inspection to be made by such person or persons as he
may direct of the Institute itself, building, laboratories and equipment and also
of the examinations, teaching and other work conducted or done by the
Institute. In that regard, the President shall in every case give notice to the
Institute of his intention to cause an inspection or inquiry. The President may
address the Chairman, Board of Governors/Director with respect to result of
such inspection or inquiry. The President is empowered to annul any
proceedings of the Institute, which is not in conformity of the Rules and
Regulations of the Institute. Rule 22(b) empowers the Chairman to exercise
all powers of the Board of Governors and inform the Board of Governors of
the action taken for its approval in the next meeting. Rule 22(c) relates to
Director. For the purpose of this case, suffice to note that in the event of the
post of Director remaining vacant for any reason, it shall be open to the Board
of Governors to authorize a Senior Professor in the service of the Institute to
exercise such power, functions and duties of the Director as the Board of
Governors may deem fit.
37. From the reading of the aforesaid provisions of the Rules and
Regulations, it is clear that the power to create posts and to make
appointments to all Group A posts lies with the Board of Governors. The
power includes framing, classification and method of appointment and
determination of the terms and conditions of service in respect of all posts
under the control of the Institute. It is the Chairman of the Board of
Governors, who shall preside over the meeting. In his absence, the Chairman
for conducting meeting shall be elected from amongst the Members present.
The President is to cause inspection about the working of the Institute. The
President has to ensure that the proceedings of the Institute are in conformity
with the Rules and Regulations of the Institute. The role of the President is
supervisory. The selection committee shall be formed by the Chairman of the
Board of Governors in consultation with the President.
38. The plea on behalf of respondent no.1, to justify the approval of the
eligibility by the President, in view of the position of the Chairman of the
Board of Governors was vacant, is untenable as it is stipulated in the Rules
that the other Members of the Board of Governors can choose a Chairman to
preside over the meeting.
39. The President has power to annul the proceedings, if it is not in
conformity with the Rules and Regulations. This power is different and
distinct from the power to prescribe method of appointment, which power
exists only with the Board of Governors. Hence, the incorporation of the
eligibility of 10 years as Professor / equivalent could not have been done with
the approval of the President.
40. It is a settled law that Rules and Regulations have to be implemented in
the manner they have been laid down. Further, the issue with regard to the
power of the President to prescribe the eligibility condition for appointment is
no more res-integra in view of the judgment of this Court as relied upon by
Mr. Tarkeshwar Nath in the case of B.N. Mishra (supra). From the facts, it is
noted that the dispute relates to Delhi Institute of Technology, an autonomous
Institution receiving full grant in aid from the Government of Delhi and Dr.
B.N. Mishra, who till his attaining the age of superannuation on May 31, 1996
was its Director. Dr. Mishra was associated with the Institute since its
inception in the year 1983, much before attaining the age of superannuation.
He applied for re-employment. The application was addressed to the
President of the Society. His grievance was that he was not even considered
for re-employment and consequently the order of the Board of Governors
dated May 16, 1996 directing one Professor Raj Senani to look after the work
of Director with effect from June 01, 1996 in addition to his normal duties
was illegal, arbitrary and was passed with mala fide intent, ulterior motives, in
violation of Memorandum of Association, Rules and Regulations as well as
Service Rules of the Society as applicable to the Institute. He filed a petition
before this Court seeking a direction quashing the Memorandum and for
direction that the respondents to take a decision for his re-
employment/contractual appointment. The respondents therein had justified
the impugned action. This Court referring to the Memorandum of Association
and Rules and Regulations of the Institute, including Rule 4 (xix) under the
title FUNCTIONS, (which is reproduced as under) and clause 10, which deals
with powers and functions of Board of Governors more particularly Clauses
10 (A)(i) and 10 (A) (vii), (which read as under) and also Clauses 11(1) and
24, (which read as under) and the resolution of the Board of Governors dated
June 20, 1996, (the relevant portion of which read as under), had come to a
conclusion that the Board of Governors was so overtaken by the decision of
the Government that it did not consider it fit to discuss the matter. It was held
by the Court that the Board had completely abdicated its powers. All the Rules
and Clauses referred to above were ignored and the Resolution of the
University was made to take wings and fly away. The Court refused to accept
that the matter of re-employment was considered by the Governing Body.
The writ petition was allowed and the direction was given to consider the re-
employment of the petitioner within a month.
"(xix) to frame Rules and Regulations and bye- laws for service
conditions of all categories of its employees taking full
cognizance of such provisions existing in the University of
Delhi and in accordance with the Ordinance Xii of the
University of Delhi wherever applicable;"
"Powers: 10 (A)(i) to exercise the executive authority of the
Institute subject to police directives of the General Council
and/or the government and/or the University of Delhi. The
policy directives of the University of Delhi will remain in force
till the Institute remains affiliated to the University of Delhi
Within the meaning of clause (a) of section 2 of the Delhi
University Act 1922;"
10(A)(vii) to create such posts as it may consider necessary for
carrying on the work of the Institute and to prescribe the terms
and conditions of service and appointment to these posts taking
full cognizance of such provisions existing in the University of
Delhi and ordinance Xii of the University of Delhi wherever
applicable;"
"Meetings: Clause 11(1): The Board of Governors shall meet
at least once in three months."
"24. Transitory Provisions: Subject to the formulation of
service conditions of all categories of employees of the Institute
the following transitory provisions shall apply;
a) A person employed on a permanent basis shall be entitled to
be in the service of the Institute until he completes the age of
Sixty.
b) If the Board of Governors is satisfied, it may reemploy any
distinguished teacher, after he has attained the age of sixty
years in accordance with the provisions of the ordinance Xii of
the University of Delhi.
Note : Director, and all other categories of staff recognised as
Teachers by the University of Delhi are Teachers for this
purpose.
d) Rest of the service conditions including provisions for LTC,
HBA, VA, Medical facilities etc. will be as per Government
Rules till the Society frames its own rules."
Resolution
"In connection with the retirement of Dr.B.N.Mishra, the
Chairman informed the Board that this issue was discussed at
length in the Standing Committee and brought to the attention
of the Board the following observations of the 11th meeting of
the Standing Committee of the Board held on 13.6.96:
"In spite of the fact that Dr.B.N.Mishra was informed about his
forthcoming retirement on 31.5.96 by a communication vide ref.
U.O. No. PA/DTTE/96/109 dated 23.4.96 of the Secretary (TE),
he was repeatedly insisting on the question of his re-
employment. The Standing Committee considers this kind of
action on the part of Dr.B.N.Mishra not in good taste and
considering that the L.G in his capacity as President of DIT
Society has not agreed to his re-employment, recommends that
no further action should be taken in this matter."
In this context, the Chairman pointed out that although there
were repeated representations and pressures on him to call a
meeting of the Board to consider this issue, the meeting was not
called as no discussion was considered desirable to overrule
the decision of the Govt. which has categorically stated by an
order issued on 23rd April, 1996 that Dr.Mishra must retire on
31st May, 1996. The question, Therefore, of his reemployment
can not be considered as a matter of right and since Dr.Mishra
has already retired and has handed over the charge, this
question cannot be reopened and should be declared as closed.
The observations and recommendations of the Standing
Committee of the Board noted above, were duly endorsed by the
Board."
41. From the reading of the judgment, it is clear that even in the case of
Dr. B.N. Mishra, this Court had come to a conclusion that it is the Board of
Governors, which was the Authority concerned to decide the issue of re-
employment of Dr. B. N. Mishra.
42. The position of rules in the case in hand being same, the eligibility
prescribed and advertisement dated 30.11.2016 must be held illegal. Ordered
accordingly. Accordingly the consequential decision of appointing Professor
J.P. Saini, which appointment was made subject to the outcome of the writ
petition vide order dated December 24, 2016 in LPA No. 724/2016 is set
aside. It is made clear, nothing precludes the respondent No.1 to make
appointment to the post of Director by following the procedure as laid down
in the Rules and Regulations. The writ petition is disposed of. No costs.
CM No. 47737/2016 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
DECEMBER 11, 2017
jg/ak
