Afr Chittaranjan Mallick And ... vs State Of Of Odisha And Others
2023 Latest Caselaw 8892 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                      W.P.(C) No. 17515 of 2019

      Applications under Articles 226 & 227 of Constitution of
      India.
                             ---------------
AFR   Chittaranjan Mallick and others ......               Petitioners

                          - Versus -

      State of of Odisha and others          .......      Opp. Parties
      Advocate(s) appeared in this case:-
      _________________________________________________________
        For Petitioners   :         M/s. Biswabihari Mohanty,
                                    J.N. Panda, M. Harichandan,
                                    B. Tripathy, B. Samantaray &
                                    S.S. Sahu, Advocates.

         For Opp. Parties :         Mr. S. Pattanaik,
                                    Addl. Government Advocate

                                    Mr. Tusharkanti Satapathy,
                                    [For O.P. No.3- UGC]

                                    M/s. B. Jena & C.R. Dash,
                                    Advocates
                                    [for O.P. No.4-AICTE]

                                    M/s. Sanjeev Udgata, S. Udgata &
                                    Mr. A. Mishra, Advocates
                                    [for O.P. Nos. 5 & 6- BPUT]

                                M/s. C. Patra, Mrs. B.P. Panda &
                                R.R. Satpathy, Advocates
                                [ for O.P. No.7-College]
      ____________________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

th 9 August, 2023

SASHIKANTA MISHRA, J.

An advertisement was issued on 18.07.2009 by Biju

Patnaik University of Technology (BPUT), Odisha Rourkela for

filling up of the posts of Lecturers in different disciplines of

Parala Maharaja Engineering College, Berhampur. All the

three petitioners applied pursuant to such advertisement

against posts of different disciplines. All three were selected

and recommended by the Board of Management of BPUT for

appointment. Accordingly, offer of appointments were issued

to them on 25.09.2010. Petitioner No.1 joined as Lecturer in

Mathematics on 01.09.2010, Petitioner No.2 joined as

Lecturer in Economics on 11.10.2010 and petitioner No.3

joined as Lecturer in Physics on 04.10.2010. The posts of

Lecturers was subsequently re-designated as Asst. Professor

as per Resolution of erstwhile Department of Employment

and Technical Education and Training on 25.10.2013. All the

three petitioners had Ph.D. qualification at the time of their

appointment. As such, they claim to be entitled to five non-

compounded advance increments at the entry level. Such

claim is on the basis of the All India Council for Technical

Education (Pay Scales, Service Conditions and Qualifications

for the Teachers and Other Academic Staff in Technical

Institutions (Degree) Regulations, 2010 (in short "AICTE

Regulations, 2010), which came into force from 22.01.2010.

According to the petitioners, the AICTE Regulations, 2010 is

applicable to the Parala Maharaja Engineering College,

Berhampur, which was a constituent college under BPUT at

the relevant time. Further, the Government in Employment

and Technical Education and Training Department in its

letter dated 24.07.2012 addressed to the Vice Chancellor of

BPUT, Odisha Rourkela, VSS University of Technology, Burla

and the Director, IGIT, Sarang communicated the decision

taken by the Department under the Chairmanship of Chief

Secretary, Odisha on 12.06.2012 to grant five additional

increments at the entry level of Lecturers having Ph.D Degree

in order to attract quality persons to take up teaching jobs in

BPUT and other Government Engineering Colleges in the

State. As such, proposals were sought for appropriate action

at the level of the Government. However, the petitioners were

not granted the benefit of five advance increments even

though the institutions under the control of the Department

of Higher Education had extended three advance increments

to Lecturers/ Asst. Professors, who were recruited with Ph.D

qualification at the entry level. The petitioners submitted

several representations through proper channel to the

Registrar, BPUT on 20.02.2013 followed by several reminders

but no action was taken in this regard. Being aggrieved by

such inaction, the petitioners approached this Court in

W.P.(C) No. 18294 of 2016, which was disposed of by order

dated 24.10.2016 directing the Registrar, BPUT to consider

and dispose of the representations within three months.

Since the order was not implemented, the petitioners filed

contempt application bearing CONTC No. 614 of 2017, which

was disposed of on 18.05.2017 directing the Principal

Secretary, Finance Department to comply with the order

within a further period of three months. Upon receipt of such

order, the Registrar, BPUT forwarded the matter to the

Government for consideration at their end. The petitioners

again filed CONTC No. 353 of 2019, which was not

entertained having been filed beyond one year. Being

aggrieved by such inaction of the authorities, the petitioners

approached this Court seeking the following relief:

"Under the circumstances, it is humbly prayed that this Hon'ble Court may graciously be pleased to issue a writ in appropriate nature directing the Opp.Party No.1 and 2 to take appropriate steps to sanction and disburse 5 non-

compounded advance increments in the pay of the petitioners at the entry level on account of their possession of Ph.D Degree at the time of recruitment in terms of the decision of the Government in erstwhile Employment and Technical Education & Training Department dated 24.07.2012 forthwith or within a time to be stipulated by this Hon'ble Court.

Pass such other order/orders, direction/directions as this Hon'ble Court may deem fit and proper."

2. The case of the petitioners is supported by

University Grants Commission (UGC) (opposite party No.3).

In its counter it is stated that as all the petitioners have been

awarded Ph.D degrees in the year 2008 and joined as

Lecturers in 2010 and that they are entitled to five non-

compounded advance increments as per AICTE Regulations,

2010. Reference is also made to the University Grants

Commission (Minimum Qualifications for Appointment of

Teachers and other Academic Staff in Universities and

Colleges and Other Measures for the Maintenance of

Standards in Higher Education) Regulations, 2010 (in short

UGC Regulation, 2010). Clause 1.1.1 thereof, inter alia,

states that for teachers in the faculties of Engineering and

Technology, the norms/Regulations formulated in

consultation with AICTE shall apply.

3. The AICTE (opposite party No.4) in its counter has

fully supported the claim of the petitioners by referring to the

AICTE Regulations, 2010.

4. The Government (opposite party No.1) in its

counter has however, disputed the claim of the petitioners on

the ground that the norms and standards in respect of

infrastructure, library, laboratory, teacher student ratio,

amenities and qualification of teachers prescribed by the

AICTE is applicable to the constituent colleges of BPUT but

so far as the condition of service, recruitment rules and pay

scale is concerned, the same is guided by the First Statutes,

2006 of the University and Rules framed by the Government

from time to time. It has been incidentally stated that by

notification dated 21.01.2021 of the State Government, three

Government Engineering Colleges including Parala Maharaja

Engineering College (PMEC), Berhampur have been allowed

to function independently with their respective Board of

Governors as the apex body and is no longer considered a

constituent college of BPUT but is only affiliated to it. It is

however, stated that the Government in Industries

Department vide notification dated 10.01.2011 notified the

revised pay scale of teachers in Engineering Colleges and

University w.e.f. 01.01.2006 but it does not speak about

sanction of five non-compounded advance increment in the

event of acquiring Ph.D Degree at the entry level.

Subsequently, after introduction of 7th pay (Commission),

Odisha Revised Scales of Pay (for Teachers of Engineering

College/Degree Level Technical Institutions/Universities)

Rules, 2019 was published vide notification dated

31.12.2019 but nothing is prescribed therein regarding

sanction of such advance increment. It is also stated that the

matter was earlier referred to the Finance Department, which

clarified that advance increment benefit allowed in case of

Higher Education Department is because their recruitment

rules provide so but the Skill Development and Technical

Education Department, under which PMEC is controlled,

does not have any such provision. As regards the

recommendations of the AICTE, it is stated that the same are

not a part of the recruitment rules of the petitioners. The

First Statute, 2006 of BPUT also does not prescribe grant of

such advance increment and Clause-95 only provides for

grant of an advance increment to any university employee by

the Board in exceptional circumstances. As such, the

petitioners are not entitled to the benefits claimed.

5. In its counter affidavit, Parala Maharaj Engineering

College, Berhampur (opposite party No.7) has referred to

letter dated 10.10.2019 of the Government in Skill

Development and Technical Education Department

addressed to the Registrar, BPUT stating that AICTE has

made recommendations only and it is not a part of their

recruitment rules. Reference is also made to letter dated

12.05.2022 of the Government in Skill Development and

Technical Education Department indicating the views of the

Finance Department that the advance increment benefit has

been allowed in case of Higher Education Department as it is

provided in their recruitment rules but same is not part of

the recruitment rules governing the petitioners.

6. Thus, while the UGC and AICTE have supported

the claim of the petitioners specifically referring to the AICTE

Regulations, 2010, the State Government and PMEC have

opposed the same on the ground that such provision is not

available in the recruitment rules governing the petitioners

and that the AICTE Regulations are only in the nature of

recommendations. In essence, it is the stand of the State

Government and PMEC that AICTE Regulations, 2010 do not

apply to the petitioners.

7. Heard Mr. B.B. Mohanty, learned counsel for the

petitioner, Mr. S. Pattnaik, learned Addl. Government

Advocate for the State. Mr. B. Jena, learned Addl.

Government for the AICTE; Mr. T.K. Satpathy, learned

counsel for UGC; Mr. S. Udgata, learned counsel for BPUT;

and Mr. C. Patra, learned counsel for Parala Maharaja

Engineering College, Berhampur.

8. Mr. B.B. Mohanty, learned counsel for the

petitioner would argue that AICTE Regulations, 2010 is

mandatory in nature. It being a Sub-ordinate Central

Legislation, being covered under Item No.66 of List-1 of

Schedule-VII of the Constitution has the force of law and

therefore, cannot be ignored. Moreover, the University (at the

relevant time) had also acted as per the Regulations as would

be evident from the fact that the Scale of Pay of the

petitioners at the initial level carried Academic Grade Pay

(AGP) of Rs.6,000/- which is entirely in consonance with the

said Regulations. As to the stand taken by the contesting

opposite parties, Mr. Mohanty would argue that though

repeated reference is made to the recruitment rules governing

the petitioners yet, which is the relevant rule has not been

clarified. In fact, the First Statute, 2006 also provides that

the guidelines framed by the UGC and AICTE are to be

mandatorily followed. Therefore, according to Mr. Mohanty,

the provisions of AICTE Regulations, 2010 is binding on all

concerned.

9. Mr. S. Pattnaik, learned Addl. Government

Advocate would submit that the AICTE Regulations, 2010 are

not binding on the State Government or the BPUT, which is

governed by the BPUT Act and its First Statutes, 2006. The

UGC and AICTE can only make recommendations but the

same cannot be applied automatically to the constituent

Colleges of BPUT.

Mr. C. Patra, learned counsel for Parala Maharaja

Engineering College, Berhampur adopts the aforesaid

arguments of learned State Counsel.

10. Mr. B. Jena, learned counsel appearing for AICTE,

Mr. T.K. Satpathy, learned counsel appearing for UGC and

Mr. S. Udgata, learned counsel appearing for BPUT have all

submitted that AICTE Regulations, 2010 has to be followed

by all concerned.

11. Considering the rival contentions referred to

hereinbefore it is evident that the only issue that falls for

consideration in the present writ application is applicability

of AICTE Regulations, 2010. Before proceeding to determine

the said issue however, it would apt to refer to the counter

affidavit filed by the State Government wherein reference has

been made to two notifications issued by the Industries

Department on 10.01.2011 and 31.12.2019 because a stand

has been taken that such notifications do not contain any

provision for sanction of five non-compound advance

increments in the event of acquiring Ph.D degree. The

notifications have been enclosed as Annexures-B/1 and C/1

respectively to the counter filed by the State- opposite party

No.1. Notification dated 10.01.2011 notifies the Orissa

Revised Scales of Pay (for Teaches of Engineering

College/Degree Level Technical Institutions/Universities)

Rules, 2010. Clause (2)(i) reads as under;

"(2) These rules shall not apply to-

(i) Teachers engaged on contract except when the contract provides otherwise.

xx xx xx"

Notification dated 31.12.2019 notifies the Odisha

Revised Scales of Pay (for Teaches of Engineering

College/Degree Level Technical Institutions/Universities)

Rules, 2019. Clause-(2)(i) of the said Rules reads as under:

"(2) These rules shall not apply to-

(i) Teachers engaged on contract basis except when the contract provides otherwise.

xx xx xx"

Bare reading of the notifications as above would

make it abundantly clear that they relate to revision of pay

scales effected by the State Government to the teachers of

technical institutions from a particular date. Thus, while

Rules, 2010 were deemed to have come into force on 1st

January, 2006, Rules, 2019 were deemed to have come into

force on the first date of January, 2016. Neither of the Rules

refers to the sanction of advance increment on account of

possession of higher qualification like Ph.D etc. Obviously,

the aforementioned Rules cannot be treated as recruitment

rules. It would now be apposite to refer to the offer of

appointment issued to the petitioners by the BPUT which

contains the pay scale. The petitioners were offered

appointment under the revised pay scale of Rs.15,600-

39100+ AGP Rs.6,000/. Keeping this in background, the

AICTE Regulations, 2010 can be referred to. Clause-(a)(i)

under General provisions of AICTE Regulations, 2010 reads

as follows;

"(a)(i) Persons entering the teaching profession in Technical Institutions shall be designated as Assistant Professors and shall be placed in the Pay Band of Rs.15600-39100 with AGP of Rs.6000. Lecturers already in service in the pre-revised scale of Rs.8000-13500, shall be re-designated as Assistant Professors with the said AGP of Rs.6000."

Thus, pay scale allowed to the petitioners was

entirely in consonance with the Regulations. As regards grant

of advance increments on acquiring/possession of higher

qualification, Clause-(v) under the heading 'Incentive for

Ph.D/M.Tech and other higher qualification' is relevant and

reads as follows;

"However, teachers in service who have been awarded Ph.D. at the time of coming into force of this Scheme or having been enrolled for Ph.D. have already undergone coursework, If any, as well as evaluation, and only notification in regard to the award of Ph.D. is awaited, shall also be entitled to the award of three non-compounded increments even if the university awarding such Ph.D. has not yet been notified."

12. The petitioners have heavily relied upon the above

provision to stake their claim. In view of the stand taken by

the contesting opposite parties that the Regulations are only

'recommendations', implicitly suggesting thereby that they

are not binding, it would be proper to first determine if the

Regulations have any binding force. The Regulations were

made by AICTE exercising power conferred under Sub-

section(1) of Section 23 read with Section 10(i) and (v) of the

AICTE Act, 1987, which are quoted hereinbelow.

"23. Power to make regulations.--(1) The Council may, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act, and the rules generally to carry out the purposes of this Act.

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

xx xx xx

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

xx xx xx

(v) perform such other functions as may be prescribed."

13. It goes without saying that AICTE Act, 1997 is a

central legislation. Entry-66 of List-1 of Seventh Schedule of

the Constitution of India reads as follows;

"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions"

14. Thus, there can be no dispute as regards the

power of the Union (Central Government) to legislate on the

matters covered under Entry-66 of the List-1. Since the

regulations have been made by virtue of the enabling

provision in the AICTE Act, it must also be held to have

statutory force. In other words, being a subordinate

legislation, it does have the force in law as was held by the

Apex Court in the case of Vidya Dhar Pande vs Vidyut Grih

Siksha Samiti reported in (1988) 4 SCC 734. Further the

Constitution Bench of the Apex Court in the case of State of

U.P. v. Babu Ram Upadhya, reported in 1960 SCC OnLine

SC 5: AIR 1961 SC 751 held that Rules (sub-ordinate

legislation) were for all purpose of construction or obligation,

to be treated exactly as if they were in the Act.

15. Thus there can be no doubt that the AICTE

Regulations, 2010 have the force of law and thereby, have a

binding nature. Clause-1 of the Regulations are relevant and

are quoted hereinbelow.

            1.  Short     Title,       Application       and
            Commencement:

1.1 These Regulations may be called the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications for the

Teachers and other Academic Staff In Technical Institutions (Degree) Regulations, 2010.

1.2 They shall apply to technical institutions and Universities including deemed Universities imparting technical education and such other courses / Programs and areas as notified by the Council from time to time.

They shall come into force with effect from the date of their publication in the Official Gazette"

Therefore, it is not open to the Government, or for that

matter any other stakeholder/authority to contend that the

regulations would not be applicable to it. Even otherwise

there are several instances discernable from the materials on

record, of the authorities acting in consonance with the

AICTE Regulations. As stated earlier, the pay scale is entirely

in line with that mentioned in the regulations. Secondly,

Statute-95 of the First Statute also makes a reference to the

AICTE guidelines. It is obviously not open to any authority to

abide by the Regulations (guidelines) only in parts and ignore

the rest. It is reiterated that if the AICTE Regulations, 2010

has force of law, which this Court has already held so, it has

full application to the Institution in which the petitioners are

engaged.

16. Having held so, this Court would now examine the

merits of the claim advanced by the petitioners, which is

grant of five non-compounded advance increments for

possessing Ph.D. Degree. The AICTE Regulations, 2010

provides under Clause(i) under the heading 'Incentives for

Ph.D/M.Tech and other higher qualification' as follows:

"(i) Five non-compounded advance increments shall be admissible at the entry level of recruitment to persons possessing the degree of Ph.D. awarded in the relevant discipline by a university following the process of registration, course-work and external evaluation as prescribed by UGC."

In fact, such a decision was also taken by the

Government in the erstwhile Department of Employment and

Technical Education and Training in a meeting held on

12.06.2012 under the Chairmanship of Chief Secretary,

Odisha. Such decision was communicated to the Vice

Chancellor, BPUT, Odisha, Rourkela by letter dated

24.07.2012 (copy enclosed as Annexure-5). Surprisingly,

even the Institution (PMEC) itself forwarded the

representations submitted by the petitioners to the Registrar,

BPUT on 22.06.2015. Copy enclosed as Annexure-9 series

specifically stating as follows:

"xx xx xx In this connection, it may be stated that as per the revised guidelines dated 22.01.2010 issued by the AICTE, New Delhi and letter No.2512/ETET, dated 24.07.2010 issued by the Employment and Technical Education & Training Department of Govt. of Odisha, the above faculty of PMEC, having

Ph.D degree at the time of their recruitment in the entry grade are eligible to get 5 non-compounded advance increments.

           xx                xx                       xx"

17.        Therefore,    neither    the    Government       nor    the

Institution, PMEC can turn around subsequently to take a

completely contrary stand to deny the claimed benefits to the

petitioners.

18. The other ground taken by the State and PMEC to

deny the benefits is the purported clarification submitted by

Finance Department that such provision is not available for

persons under administrative control of Skill Development

and Technical Education Department. This Court finds the

same untenable being contrary to law as discussed above. It

is admitted that benefit of three advance increments of

possession of higher qualification is granted to persons under

the administrative control of the Higher Education

Department. If this be the case, then it would be gross

discrimination on the part of the Government to not allow

such benefits to persons under the administrative control of

one of its other Departments. Obviously, the Government

being a model employer cannot be expected to discriminate

between Administrative Departments. It would offend the

very principle of equality enshrined under Article 14 of the

Constitution of India.

19. Thus, from a conspectus of analysis made in light

of the position of law hereinbefore, this Court is left with no

doubt that the denial of the benefit of five advance

increments to the petitioners at the entry level for possessing

Ph.D degrees is unconscionable in the eye of law.

20. In the result, the writ petition succeeds and is

therefore, allowed. The opposite party Nos. 1, 2 and 7 are

directed to sanction and disburse five non-compounded

advance increments in the entry level pay of the petitioners

as early as possible preferably within a period of two months.

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

Sashikanta Mishra, Judge Orissa High Court, Cuttack.

The 9th August, 2023/ A.K. Rana, P.A.

Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication

Date: 09-Aug-2023 19:07:17