Gauhati High Court
Page No.# 1/23 vs The State Of Assam And 6 Ors on 2 July, 2024
Page No.# 1/23
GAHC010114082023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3048/2023
ARUP KAR AND 9 ORS.
S/O- LATE ASHIT KAR, R/O- 2 NO. KEREKONI, P.O. BHADOI PANCHALI,
DIBRUGARH, ASSAM, PIN- 786191.
2: MD. ABDUL AZIZ ALI
S/O- LATE NURUL ISLAM
R/O- VILL. 1 NO. MIRIHULA VILLAGE
P.O. MORANHAT
DIBRUGARH
ASSAM
PIN- 785670.
3: MANASHREE DUTTA
D/O- SRI BIPIN KUMAR DUTTA
R/O- NEAR HANUMAN MANDIR
TARAJAN PATH
P.O. AND P.S. JORHAT
ASSAM
PIN- 785001.
4: HEMANTA KUMAR PATHAK
S/O- NAGENDRA NATH PATHAK
R/O- VILL.- ULUBAM
P.O. KHETRI
DIST. KAMRUP(M)
PIN- 782403.
5: ANUP DAS
S/O- TAPAN DAS
R/O- VILL- PUTHIMARI
P.O. ODALGURI
P.S. PATACHARKUCHI
DIST.BARPETA
ASSAM
Page No.# 2/23
PIN- 781325.
6: JONALI DAIMARY
D/O- SHRI KAMALESWAR DAIMARY
R/O- VILL.- SARUFULCHAKI
GORESWAR
BAKSA
P.S. BAKSA
PIN- 781366.
7: KARISHMA GOGOI
D/O- LAKHESWAR GOGOI
R/O- MAKUM
DIST. TINSUKIA
ASSAM
PIN- 786125.
8: KHAGANA BURAGOHAIN
D/O- RUBUL GOHAIN
R/O- RATNPUR MILAN NAGAR
NAMGHAR PATH
DIST. DIBRUGARH
P.O. C.R. BUILDING
ASSAM
PIN- 786003.
9: SAHEERA AZMI HAZARIKA
D/O- IMDAD HUSSAIN HAZARIKA
R/O- JAILROAD
DIST. JORHAT
P.O. AND P.S. JORHAT
ASSAM
PIN- 785001.
10: DIBYA JYOTI DANG
S/O- SUREN CHANDRA DANG
R/O- GREENLAND VILLAGE VIA RATANPUR
DHEMAJI
ASSAM
PIN 787057
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM, DISPUR, GUWAHATI-781006.
Page No.# 3/23
2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
HIGHER EDUCATION (TECHNICAL) DEPARTMENT
DISPUR
GUWAHATI-781006.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HIGHER EDUCATION DEPARTMENT
DISPUR
GUWAHATI-781006.
4:SECRETARY TO THE GOVERNMENT OF ASSAM
HIGHER EDUCATION (TECHNICAL) DEPARTMENT
DISPUR
GUWAHATI-6
ASSAM
5:ASSAM ENGINEERING SERVICE RECRUITMENT BOARD
REPRESENTED BY ITS CHAIRMAN
ASSAM TEXTILE INSTITUTE CAMPUS
AMBARI
GUWAHATI-781001.
6:DIRECTOR OF TECHNICAL EDUCATION
ASSAM
DIRECTORATE OF TECHNICAL EDUCATION
KAHILIPARA
GUWAHATI
ASSAM
PIN- 110070.
7:ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (AICTE)
REPRESENTED BY ITS CHAIRMAN
HAVING ITS HEAD OFFICE AT NELSON MANDALA MARG
VASANT KUNJ
NEW DELHI-110070
Advocate for the Petitioner : MR. D DAS SR. ADV
Advocate for the Respondent : GA, ASSAM
Page No.# 4/23
Linked Case : WP(C)/3051/2023
ARJUARA BEGUM AND 21 ORS
D/O AYUB ALI
R/O GERAMARI PART-IV
P.O. ALOMGANJ
P.S. GAURIPUR
DHUBRI
ASSAM
PIN-783339.
2: AYAN BHATTACHARJEE
S/O ASHIM BHATTACHARJEE
R/O HOUSE NO. 36
SUNDARI MOHAN ROAD
RANGIRKHARI
SILCHAR
ASSAM
PIN-788005.
3: DHANASHREE DEVI
D/O AMIYA KUMAR NATH
R/O NO. 1 KALAIGAON
P.O. AND P.S. KALAIGAON
UDALGURI
ASSAM
PIN-784525
4: DHOROM TERON
S/O DHONIRAM TERON
R/O VILL- RAPADANG
WEST KARBI ANGLONG
P.S. BAITHALANGSO
PIN-783410
5: MANAS PRATIM NATH
S/O KHAGENDRA KUMAR NATH
R/O WARD NO. 8
SANKAR NAGAR
MANGALDOI
DARRANG
ASSAM
PIN 784125
Page No.# 5/23
6: NASIR HUSSAIN
S/O MIRZA HUSSAIN
R/O GOHALIBHANGA
P.O. BURIGANG
P.S. GINGIA
BISWANATH (SONITPUR)
ASSAM
PIN-784176.
7: NITAMANI CHOUDHURY
D/O JOGESH CHANDRA CHOUDHURY
R/O KARARA
P.O. KARARA
P.S. BAIHATA CHARIALI
KAMRUP
ASSAM
PIN-781381
8: PANKAJ SARMA
S/O LATE RAMANI SARMAH
R/O KHATIKUCHI
LOCALITY- SANPARA
P.O. DHEKIAPARA
P.S. SIPAJHAR
DARRANG
ASSAM
PIN-784145
9: SASANKA BUJAR BARUAH
S/O KULEN BUJARBARUAH
R/O HOUSE NO. 21
BYLANE 06
JANAPATH
NABIN NAGAR
GUWAHATI
PIN-781024
10: SONARAM BRAHMA
S/O RAJA BRAHMA
R/O HABRUBARI
KOKRAJHAR
P.O.AND P.S. KOKRAJHAR
ASSAM
PIN-783370
11: BISHNUBRAT HAZARIKA
S/O SATYENDRAJJIT HAZARIKA
Page No.# 6/23
R/O MILIJULI PATH SIPAHIGAON
JOYSAGAR
P.O. AND P.S. JOYSAGAR
DIST. SIBSAGAR
ASSAM
PIN-785665
12: MANASH JYOTI GOGOI
S/O ARUP KUMAR GOGOI
R/O LOHONG KACHARI GAON
MADHAPUR
TITABAR JORHAT
DIST. JORHAT
ASSAM
PIN-785630
13: SASANKA SEKHAR SARMAH
S/O PRAFULLA KUMAR SARMAH
R/O WARD NO. 13
CHOLADHARA
P.O. JORHAT
P.S. JORHAT
ASSAM
PIN-785001
14: NIDARSHANA NEELAM
D/O JITU CH. SARMAH BORDOLOI
R/O SONALI JAYANTI NAGAR
TARAJAN
P.O. JORHAT
P.S. PULIBOR
JORHAT
ASSAM
PIN-785001
15: ZARIR SUBBANI ISLAM
S/O RAFIQUL ISLAM
R/O HOWLY TOWN
WARD NO. 8
P.O. AMBARI
P.S. HOWLY
BARPETA
ASSAM
PIN CODE- 781316
16: RACKTACKSHREE CHELLENG
D/O LAKHINDRA CHELLENG
R/O MANCOTTA
Page No.# 7/23
KACHARIBARI DIBRUGARH
PIN CODE- 786003
17: DIPIKA BORDOLOI
D/O SRI NILEN BORDOLOI
R/O UTTAR BALIPARA
RAHA
DIST. NAGAON
ASSAM
PIN CODE- 782103
18: MIMLI DAS
D/O RAJANI KANTA DAS
R/O HOUSE NO. 23
LUIT PATH
JYOTINAGAR
GUWAHATI
PIN CODE- 781021
19: MANAS JYOTI BHARALI
S/O SRI ATUL BHARALI
R/O VILL- PUB PANERI
P.O. PANERIHAT
P.S. PANERI
DIST. UDALGURI
ASSAM
PIN CODE- 784523
20: KULDEEP DEKA
S/O LATE BIPUL CH. DEKA
R/O HOUSE NO. 33
VILL- PACHARIA (UJANTOL SUBURI)
PIN CODE- 781104
21: JUBI BEGUM
D/O SAMSER ALI
R/O VILL- DOLAITOLA
P.O. SANIADI
P.S. HAJO
DIST. KAMRUP (R)
ASSAM
PIN-781102
22: RAHUL NATH
S/O SRI HIREN NATH
R/O HOUSE NO. 9
BISHNU PATH
Page No.# 8/23
LOKHRA NOONMATI
GUWAHATI
PIN CODE- 781040
VERSUS
THE STATE OF ASSAM AND 6 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-781006.
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
HIGHER EDUCATION (TECHNICAL) DEPARTMENT
DISPUR
GUWAHATI-781006
3:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
HIGHER EDUCATION DEPARTMENT
DISPUR
GUWAHATI-781006.
4:SECRETARY TO THE GOVT. OF ASSAM
HIGHER EDUCATION (TECHNICAL) DEPARTMENT
DISPUR
GUWAHATI-6
ASSAM
5:ASSAM ENGINEERING SERVICE RECRUITMENT BOARD
REP. BY ITS CHAIRMAN
ASSAM TEXTILE INSTITUTE CAMPUS
AMBARI
GUWAHATI-781001
6:DIRECTOR OF TECHNICAL EDUCATION
ASSAM
DIRECTORATE OF TECHNICAL EDUCATION
KAHILIPARA
GUWAHATI
ASSAM
PIN-110070
7:ALL INDIA COUNCIL FOR TECHNICAL EDUCATION (AICTE)
REP. BY ITS CHAIRMAN
HAVING ITS HEAD OFFICE AT NELSON MANDALA MARG
VASANT KUNJ
Page No.# 9/23
NEW DELHI-110070
------------
Advocate for : MR. D DAS SR. ADV
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 6 ORS
BEFORE
HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
For the petitioners:
Mr. D. Das, Senior Advocate,
Mr. P. Chutia, Advocate,
Mr. K. Mohammad, Advocate,
Mr. S. Chutia, Advocate.
For the respondents:
Mrs. D. D. Barman, Government Advocate,
Mr. K. Gogoi, SC, Higher Education (Technical),
Mr. S.C. Keyal, SC, AICTE,
Ms. R. Deka, Advocate.
Dates of hearing : 01-02-2024 & 09.02.2024
Date of Judgment : 02.07.2024
Page No.# 10/23
J U D G M E N T AND O R D E R
Both the writ petitions are being disposed of by this common judgment
and order inasmuch as the reliefs sought for are identical.
2. The petitioners in WP(C) No.3048/2023 are working as full time Assistant
Professors (Technical and Non-Technical) in the Dhemaji Engineering College,
Assam. An Advertisement No.01/2020 dated 25.02.2020 was issued by the
Director of Technical Education, Assam inviting applications from the permanent
residents of Assam for appointment to Assistant Professor (Technical), Assistant
Professor (Non-Technical) and Senior Instructor of Dhemaji Engineering College,
Dhemaji under the Directorate of Technical Education, Assam. The petitioners
being qualified applied for the post of Assistant Professor both technical and
non-technical. The advertisement further provided that the post will be filled up
under Regulation 3(f) of the Assam Public Service Commission (Limitations and
Functions) Regulations, 1951 (Regulations of 1951 in short). The petitioners
were successful in the recruitment process. Thereafter, by a Notification, dated
17.02.2021, issued by the Department of Higher Education (Technical), the
petitioners were appointed temporarily for a period of four months as Assistant
Professors at Dhemaji Engineering College, Dhemaji under Regulation 3(f) of
the Regulations of 1951. The services of the petitioners were extended from
time to time and they are continuing as such till date. Thereafter, by a
Notification, dated 15.12.2021, in pursuance to the Department Notification,
dated 17.02.2021, and the Cabinet decision held on 24.11.2021, ex post facto
approval was given for the appointment of the petitioners as Assistant
Page No.# 11/23
Professors of Dhemaji Engineering College, Dhemaji.
In the meantime, the Assam Engineering Services Recruitment Board issued
a Notice No. AESRB/022/2022/248 dated 21.02.2023 inviting online applications
from the permanent residents of Assam and having requisite qualifications for
recruitment to 61 vacant posts of Assistant Professor in the State Engineering
Colleges under Higher Education (Technical) Department, Government of
Assam. Similarly, another Notice No. AESRB/023/2022/249 was issued on
21.02.2023 inviting applications for recruitment to 46 vacant posts of Assistant
Professors (Non-Technical) in State Engineering Colleges under the Higher
Education (Technical) Department, Government of Assam. In both the Notices,
dated 21.02.2023, it is prescribed that the recruitment process will comprise of
(i) OMR-MCQ based written examination - 75 marks and (ii) teaching proficiency
test - 25 marks. The Notices further provided that only the shortlisted
candidates will be called for teaching proficiency test. The petitioners
participated in the selection process initiated by the Notices dated 21.02.2023
by applying for the post of Assistant Professor in the State Engineering Colleges
of Assam. They also appeared in the OMR-MCQ based written examination. In
the meantime, the Assam Engineering Services Recruitment Board issued a
Recruitment Notice dated 23.04.2023 providing that the teaching/skill
proficiency test is to be treated as an integral part of the test to be conducted
for selection and the final merit/selection list will be based on the gross
performance in the two tests (OMR-MCQ based written test and teaching/skill
proficiency test). The recruitment notice further provided that all aspiring
candidates will have to appear in both the tests and the candidates appearing in
the OMR-MCQ based written test will be shortlisted to appear in an Innovative
Written Teaching/Skill Proficiency Test in a level playing field with no marks on
Page No.# 12/23
interview.
Being aggrieved with the Recruitment Notice, dated 23.04.2023, the
petitioners are before this Court.
3. The petitioners in WP(C) No.3051/2023 are working as full time Lecturers
(Technical and Non-Technical) in different Polytechnics of five districts of Assam,
namely, Tinsukia, Hailakandi, Chirang, Morigaon and Udalguri. The petitioners
were also subjected to a recruitment process in terms of the Advertisement No.
04/2020 dated 25.02.2020, issued by the Director of Technical Education,
Assam under Regulation 3(f) of the Regulations of 1951. On being successful,
they were appointed as temporary lecturers under Regulation 3(f) of the
Regulations of 1951 by a Notification dated 22.02.2021 issued by the
Department of Higher Education (Technical), Government of Assam. The
appointment of the petitioners as lecturers were also given ex post facto
approval by a Notification, dated 15.12.2021, in pursuance of the Department
Notification, dated 22.02.2021, and the Cabinet decision held on 24.11.2021.
The Assam Engineering Services Recruitment Board issued a Notice No.
AESRB/034/2022/250 on 21.02.2023 inviting online applications from
permanent residents of Assam and having requisite qualification for recruitment
to 80 vacant posts of Lecturer (Technical) in Polytechnics of Assam under the
Higher Education (Technical) Department, Government of Assam. By another
Notice No. AESRB/035/2022/251 dated 21.02.2023 online applications were
invited for recruitment to 57 vacant posts of Lecturer (Non-Technical) in the
Polytechnics of Assam under the Higher (Technical) Department Government of
Assam. Both the Notices, dated 21.02.2023, provided that the recruitment
process will comprise of (i) OMR-MCQ based written examination - 75 marks
and (ii) teaching proficiency test - 25 marks. The Notice further provided that
Page No.# 13/23
only the shortlisted candidates will be called for the teaching proficiency test.
The petitioners, being qualified, made their applications to the Notice dated
21.02.2023 and they also appeared in the OMR-MCQ based written examination.
After participating in the OMR based written test, the Assam Engineering
Services Recruitment Board issued a Recruitment Notice dated 23.04.2023
providing that the teaching/skill proficiency test is to be treated as an integral
part of the test to be conducted for selection and the final merit/selection list
will be based on the gross performance in the two tests (OMR-MCQ based
written test and teaching/skill proficiency test). The Recruitment Notice further
provided that all aspiring candidates will have to appear in both the tests and
the candidates appearing in the OMR-MCQ based written test will be shortlisted
to appear in an innovative written teaching/skill proficiency test in a level
playing field with no marks for interview.
Being aggrieved with the Recruitment Notice, dated 23.04.2023, the
petitioners are before this Court.
4. Heard Mr. D. Das, learned Senior counsel, assisted by Ms. P. Chutia,
learned counsel for the petitioners. Also heard Ms. D.D. Barman, learned
Government Advocate, Assam; Mr. K. Gogoi, learned Standing Counsel, Higher
Education Department, Government of Assam and Ms. R. Deka, learned
Standing Counsel, AICTE.
5. Appearing for the petitioners, Mr. D. Das, learned Senior counsel, submits
that after the petitioners in both the writ petitions were appointed as Lecturers
in their respective Colleges after being successful pursuant to the
Advertisement, dated 25.02.2020, under Regulation 3(f) of the Regulations of
Page No.# 14/23
1951, their services were extended from time to time and they are presently
working as such till date. In the meantime, Government of Assam framed the
Assam Engineering Services Recruitment Board Regulations, 2021 (Regulations
of 2021, in short), which was notified in the official gazette on 09.07.2021.
Under the Regulations of 2021, the Assam Engineering Services Recruitment
Board has been constituted and henceforth, all recruitments for all categories in
technical posts under the Higher Education (Technical) Department including the
post of Lecturers will be conducted by the Assam Engineering Services
Recruitment Board (the Board, in short) and not by the Assam Public Service
Commission (Commission, in short).
6. Upon coming into force of the Regulations of 2021, the Board issued a
Notice dated 21.02.2023, inviting applications for recruitment to 61 vacant posts
of Assistant Professor (Technical) and by another Notice dated 21.02.2023
applications were also invited for recruitment to 46 vacant posts of Assistant
Professor (Non-Technical) in the State Engineering Colleges under the Higher
(Technical) Education Department, Assam. The petitioners in WP(C)/3048/2023
applied against the posts notified by the aforesaid notices.
7. He submits that petitioners in WP(C)/3051/2023 also submitted their
applications against the Notice dated 21.02.2023 by which invitation were called
for application to 80 vacant posts of Lecturer (Technical) in the Polytechnics
under the Higher Education (Technical) Department, Government of Assam as
well as the Notice dated 21.02.2023,by which applications were invited for
recruitment of 57 numbers of Lecturers (Non-Technical) in the Polytechnics
under the Higher Education (Technical) Department.
In all the Notices, the process of recruitment was shown to be comprised
of OMR-MCQ based written examination for 75 marks and teaching proficiency
Page No.# 15/23
for 25 marks. The petitioners in both the writ petitions being qualified, applied
for their respective posts and also appeared in the OMR-MCQ based written
examination. However, while they were awaiting their results, the Board issued
a Recruitment Notice dated 23.04.2023 providing that teaching/skill proficiency
test, is to be treated as an integral part of the Advertisement dated 21.02.2023,
would be an innovative written teaching/skill proficiency test with no marks on
interview. The issuance of the Recruitment Notice dated 23.04.2023 is contrary
to the all the Notices dated 21.02.2023 inasmuch as in the Notices dated
21.02.2023, it was specifically provided that the recruitment process will
comprise of OMR-MCQ based written examination for 75 marks followed by a
teaching proficiency test of 25 marks. In the said Notices, it was projected that
the teaching proficiency test carrying 25 marks would be given to those who
have teaching experience in their respective field. However, with the publication
of the Recruitment Notice dated 23.04.2023, it is revealed that teaching
proficiency test would be an innovative written teaching/skill proficiency test and
the said Recruitment Notice also prescribes the syllabus for the innovative
written test.
8. Learned Senior counsel for the petitioners submits that the Recruitment
Notice, dated 23.04.2023, is inconsistent with the AICTE Measures For
Maintenance of Standards in Technical Education (Degree) Regulation, 2019
(Degree Regulation, 2019, in short) in case of Engineering Colleges and AICTE
Measures for Maintenance of Standards in Technical Education (Diploma
Regulation), 2019 (Diploma Regulation, 2019, in short) in case of Polytechnics,
which is followed in the instant recruitment process. Therefore, the Recruitment
Notice dated 23.04.2023 amounts to changing the rule of the game after the
game has started, which is not permissible under the law. He also submits that
Page No.# 16/23
under Regulation No.2.25 of the Degree Regulation, 2019 and Regulation
No.2.22 of the Diploma Regulation, 2019, past services of Assistant
Professors/Lecturers shall be counted for direct recruitment and promotion as
an Assistant Professor/Associate Professor/Lecturer subject to fulfillment of
certain conditions. However, the Recruitment Notice, dated 23.04.2023, does
not provide for counting of past services and, in fact, the Recruitment Notice,
dated 23.04.2023, provides for participation in a written test after being
qualified in the OMR based written test without any provision for interview or
marks in teaching experience. He, therefore, submits that the recruitment
Notice, dated 23.04.2023 is arbitrary, illegal and unconstitutional as the same is
contrary to the mandates of the Degree Regulation, 2019.
9. Learned Senior counsel further submits that the recruitment Notice, dated
23.04.2023, is issued in violation of the Assam Technical Education Service
Rules, 1981 (as amended in 2008) and the All India Council for Technical
Education Act, 1987 inasmuch as nowhere in the Act or Rules provide for having
a teaching proficiency test. The respondents have introduced the innovative
written test for the first time on their own to access the relative skill/proficiency
of all the candidates by using higher order questioning and probing techniques
on the attributes of the candidates as the ability to deliver the domain
knowledge effectively to target group of students particularly the beginners
which is not prescribed by the Act or Rules.
10. Further submission is made that in the Advertisements dated 21.02.203, it
is specifically specified that those candidates who are qualified in OMR-MCQ
based written test can only participate in the teaching proficiency test. However,
contrary to the terms and conditions mentioned in the Advertisements, dated
Page No.# 17/23
21.02.2023, the Recruitment Notice, dated 23.04.2023, provides that all aspiring
candidates will have to appear in both OMR-MCQ based written examinations as
well as in the teaching proficiency test. Such action on the part of the
respondents is, therefore, not permissible in law. He also submits that the
process of teaching proficiency test is not mentioned anywhere in the AICTE
Notification. He, therefore, submits that the recruitment Notice, dated
23.04.2023, is palpably illegal in the eyes of law and the same deserves to be
set aside.
11. Mr. K. Gogoi, learned Standing Counsel, Higher Education Department,
Government of Assam, submits that the Recruitment Notice, dated 23.04.2023,
was issued in terms of the Notices, dated 21.02.2023, providing the
teaching/skill proficiency test syllabus for recruitment to the post of Assistant
Professor, Lecturer and Senior Instructor under the Higher Education (Technical)
Department, Government of Assam. He submits that the recruitment process in
connection with the Advertisement dated 21.02.2023 is governed by the Assam
Technical Education Service Rules, 1981, Assam Engineering Services
Recruitment Board Regulations, 2021, AICTE Degree Regulation, 2019 and the
AICTE Diploma Regulation, 2019. It is submitted that Clause 5.1 of the AICTE
Degree Regulation, 2019 provides that the minimum qualification as an
Assistant Professor (Level 10), Entry Pay 57700 in Engineering/Technical is
BE/B. Tech/BS and ME/M. Tech/MS/Integrated M. Tech in relevant branch with
First Class or equivalent in any of the degrees. Further, Regulation 2.1 of the
AICTE Diploma Regulation, 2019, which provides for revised designations and
mode of appointment prescribes that there shall be only three designations in
respect of teachers in the diploma level institutes/Polytechnics, namely, Lecturer,
Head of the Department and Principal and the mode of appointment for
Page No.# 18/23
Lecturer with Entry Pay of Rs.56,100 of level 9A is direct recruitment and for
Lecturer with Entry Pay of Rs.57,700 at Level 10 is promotion/direct recruitment.
He, therefore, submits that the advertised posts in terms of the Advertisement
dated 21.01.2023 for Engineering Colleges are up to the level of 10 as per the
AICTE Degree Regulation, 2019 and for the Polytechnics, up to the level of 9A
and level 10 as per the AICTE Diploma Regulation, 2019. He also submits that
counting of past service for direct recruitment and promotion in terms of
Regulation 2.25 of the AICTE Diploma Regulation, 2019 and as per Regulation
2.22 of the AICTE Diploma Regulation, 2019 will be application from Level 11
inasmuch as experience is a required qualification from Level 11 subject to the
condition that the incumbent was appointed under recommendation of a duly
constituted Selection Committee to a permanent post in continuation with the
ad hoc or temporary service. As the petitioners has applied for Level 9A and
Level 10 posts, they are not entitled for counting of past service in terms of the
AICTE Degree Regulation, 2019 and AICTE Diploma Regulation, 2019. It is also
submitted that Rule 8 of the Assam Technical Education Service Rules, 1981
provides that the minimum academic qualification and experience for a
candidate for direct recruitment shall be prescribed by the AICTE from time to
time as adopted by the Government of Assam. Therefore, the qualifications
prescribed in the Advertisement dated 21.02.2023, is in terms of the AICTE
Degree Regulation, 2019 and the AICTE Diploma Regulation, 2019. Therefore,
no violation of the AICTE Regulation has been done by the respondents while
issuing the Advertisement dated 21.02.2023. It is further submitted that the
AICTE Degree Regulation, 2019 and the AICTE Diploma Regulation, 2019 does
not bar the State authorities to formulate the procedure and the modalities for
selection of best of the best candidates in the interest of the student community
Page No.# 19/23
and in the interest of the institution.
12. It is also submitted that the basic syllabus of innovative
written/teaching/skill proficiency test prescribed in the recruitment notice, dated
23.04.2023, is not a new concept but it relates to the day-to-day activities/life of
the teaching professionals for upward movement/benefit of the student
community. The essential requirement for recruitment to a post are for the
employers to decide and not by the candidates, who participate in the selection
process. It is the employer, who is best suited to decide a requirement a
candidate should possess according to the needs of the employer and the
nature of the work. He, therefore, submits that the writ petitions have no merit
and the same deserves to be dismissed. He has placed reliance in the cases of
Ramesh Kumar Vs. High Court of Delhi and another, reported in (2010)
3 SCC 104, Maharashtra Public Service Commission Vs. Sandeep
Shriram Warade and others, reported in (2019) 6 SCC 362, Indresh
Kumar Mishra Vs. State of Jharkhand and others, AIR 2022 SC 1854,
Anand Yadav and others Vs. State of Uttar Pradesh and others, AIR
2020, Unnikrishnan CV and others Vs. Union of India, AIR 2023 SC
1934, State of Tamil Nadu and another Vs. S.V. Brathey (Minor) and
others, (2004) 4 SCC 513 and APJ Abdul Kalam Technological
University and another Vs. Jai Bharath College of Management and
Engineering Technology and others, reported in (2021) 2 SCC 564.
13. I have considered the submissions advanced by the learned counsel for
the parties.
14. This Court has considered the Notice, dated 21.02.2023, issued by the
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Assam Engineering Service Recruitment Board for filling up of 61 posts of
Assistant Professor in the Government Engineering Colleges of Assam, the
Notice dated 21.02.2023 for filling up of 46 numbers of Assistant Professor
(Non-Technical) in the Government Engineering Colleges of Assam, the Notice
dated 21.02.2023 for filling up of 80 numbers of Lecturer (Technical) in the
Government Polytechnics of Assam and the Notice dated 21.02.2023 for filling
up of 57 post of Lecturer (Non-Technical) in the Government Polytechnics of
Assam. In all the Notices, dated 21.02.2023, the process of recruitment is
identical and the same is reproduced here-in-below:-
"Process of recruitment.
Recruitment will comprise of
(i) OMR-MCQ based written examination - 75 marks
(ii) Teaching proficiency test - 25 marks.
The OMR-MCQ based question paper/Booklets shall contain 75 questions
carrying one mark for each correct answer. There will be negative marking of
0.25 (one-fourth) marks for wrong answer against each question. Only
shortlisted candidate will be called for Teaching Proficiency Test.
The necessary guidelines/instructions relating to OMR-MCQ based written
examination and Teaching Proficiency Test will be notified in due course of
time in the official website of AESRB."
15. Thereafter, the petitioners applied for the post as advertised in the Notices
dated 21.02.2023 and they had also participated in the OMR-MCQ based written
examination. It was thereafter that the recruitment Notice dated 23.04.2023
was issued by the Assam Engineering Service Recruitment Board prescribing
that teaching/skill proficiency test is to be treated as an integral part of the test
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to be conducted for selection and the final merit/selection list will be based on
the gross performance in the two tests. It is also provided that all the aspiring
candidates will have to appear in both the tests and the aspiring candidates
appearing in OMR-MCQ based written test will be shortlisted to appear in an
innovative written teaching/skill proficiency test in a level playing field with no
marks for interview. The recruitment Notice further provides that the innovative
written test is designed to assess the relevant teaching/skill proficiency of all the
candidates by using high order questioning and probing techniques on the
attributes of the candidates as the creative ability to deliver the domain
knowledge effectively to target group of students, particularly, the beginners.
Further, the recruitment notice prescribes the basic syllabus of the innovative
written/skill proficiency test. The petitioners are aggrieved by this Recruitment
Notice dated 23.04.2023 on the ground that it is contrary to the recruitment
process prescribed in all the Notices dated 21.02.2023.
16. This Court has also considered the submission of learned Senior counsel
for the petitioners that no provision for counting of past service in terms of
Regulation 2.25 of the AICTE Degree Regulation, 2019 and as per Regulation
2.22 of the AICTE Diploma Regulation, 2019 has been prescribed in the
recruitment Notice, dated 23.04.2023. The further contention of the learned
Senior counsel for the petitioners that the respondents on their own has
introduced the innovative written test to assess the relevant teaching/skill
proficiency of all the candidates by using high order questioning and probing
techniques on the following attributes of the candidates as the creative ability to
deliver the domain knowledge effectively to target group of students,
particularly, the beginners has also been considered.
17. Regulation 5.1 of the AICTE Regulation, 2019 prescribes the minimum
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qualification for direct recruitment as an Assistant Professor Level 10, Entry Pay
57,700. Further, Regulation 4.1 and 4.2 of the AICTE Diploma Regulation, 2019
prescribes the minimum educational qualification for Level 9A Entry Pay 56,100
and Level 10 Entry Pay 57,700 respectively. A comparison of the Notice dated
21.02.2023 for both Technical and Non-Technical groups would indicate that the
pay scale prescribed is Rs. 56,000/- and Rs.57,700/- in Level 9A and 10.
18. Regulation 2.25 (f)(i)(ii) and (iii) of the AICTE Degree Regulation, 2019
and Regulation 2.22 (f) (1)(2) and (3) of the AICTE Diploma Regulation, 2019
provides that ad hoc or temporary services can be counted provided that the
service was more than one year duration, the incumbent was appointed on
recommendation of duly constituted Selection Committee and the incumbent
was selected for the permanent post in continuation to ad hoc or temporary
service. The petitioners were, admittedly, appointed on temporary service after
going through a selection process duly constituted and against permanent post
and have been serving continuously till date. Therefore, in the considered
opinion of this Court, the past service of the petitioners should be counted.
However, considering the fact that the petitioners in both the writ petitions have
already participated in the OMR-MCQ based written examinations without any
protest, this Court is not inclined to interfere in all the four Notices dated
21.02.2023.
19. Coming back to the Notices dated 21.02.2023, it is seen that the
recruitment process would comprise only on OMR-MCQ based written
examination and teaching proficiency test. Further, only the shortlisted
candidates will be called for teaching proficiency test. However, a contrary stand
has been taken in the recruitment Notice dated 23.04.2023 wherein it is stated
that all the aspiring candidates will have to appear in both the tests, i.e., OMR-
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MCQ based written test and teaching/skill proficiency test. It is also to be noted
that the petitioners had already participated in the recruitment process up to
the stage of OMR-MCQ and when they were waiting for their results, the
Recruitment Notice, dated 23.04.2023, was issued. In the considered opinion of
this Court, the Recruitment Notice is not in terms of the Notices, dated
21.02.2023, to which the petitioners had already participated. The same would
amount to changing the rules of the game after the game has started. Further
with the introduction of the Recruitment Notice dated 29.04.2023 it is seen that
many aspiring candidates would be disqualified to participate in the selection
process.
In that view of the matter, this Court is of the considered opinion that the
recruitment Notice, dated 23.04.2023, stands vitiated.
20. Accordingly, the recruitment Notice, dated 23.04.2023, is set aside and
quashed. The respondents are directed to proceed with the recruitment process
strictly in terms of the conditions laid down in the Notices, dated 21.02.2023 for
recruitment to 61 posts of Assistant Professor and 46 posts of Assistant
Professor (Non-Technical) in the Government Engineering Colleges of Assam as
well as for recruitment to the post of 80 posts of Lecturer (Technical) and 57
posts of Lecturer (Non-Technical) in the Government Polytechnics of Assam.
21. Both the writ petitions are partially allowed. No costs.
JUDGE
Comparing Assistant
