Orissa High Court

Padmanav Dash & Ors vs Vice Chancellor on 3 April, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No. 16124 of 2022

      In the matter of an application under Articles 226 & 227 of the
  Constitution of India.
                                       ..................

         Padmanav Dash & Ors.                          ....               Petitioners

                                                   -versus-

         Vice Chancellor, Veer Surendra                ....               Opposite Parties
         Sai University of Technology,
         Burla & Ors.

        For Petitioners        :       Mr. B. Routray, Sr. Advocate
                                              along with
                                       Mr. J. Biswal, Advocate

        For Opp. Parties :             Mr. N.K. Sahu, Advocate
                                        (Opp. Party Nos. 1 & 2)
                                       Mr. P.K. Rath, Sr. Advocate
                                             along with
                                       Mr. S. Rath, Advocate
                                       (Opp. Party Nos. 5 & 6)

PRESENT:

   THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY

   ---------------------------------------------------------------------------------------
       Date of Hearing: 16.01.2025 & Date of Judgment: 03.04.2025
   ---------------------------------------------------------------------------------------

    Biraja Prasanna Satapathy, J.

The present writ petition has been filed inter alia challenging

the selection process adopted by Sambalpur University (in short

University) for promotion to the post of Professor under the Career // 2 //

Advancement Scheme (in short 'CAS') as per the advertisement

issued on 22.07.2021 under Annexure-5 and consequential order

dtd.08.02.2022 in extending the benefit of promotion to Opp. Party

Nos. 3 to 15 under Annexure-8.

2. Even though the present writ petition was filed initially by 14 nos.

of Petitioners challenging the promotion of Opp. Party Nos. 3 to 15 in

different disciplines, but in terms of the order passed by this Court on

07.01.2025 and 16.01.2025, the writ petition was confined in respect

of Petitioner Nos. 1, 2, 3, 7 & 13 and the challenge to the promotion

of Opp. Party Nos. 5 & 6, so made vide the order issued under

Annexure-8.

3. Learned Sr. Counsel appearing for the Petitioners contended that

Opp. Party No. 2 vide notice dtd.27.01.2020 under Annexure-3 invited

applications in the prescribed format for promotion under Career

Advancement Scheme. In the said notice it was clearly indicated that

faculty members who wish to be considered for promotion under CAS

and are eligible for promotion through CAS by 04.03.2010, shall be

governed as per AICTE Regulation, 2000 and those who are eligible

in between 05.03.2010 to 28.02.2019, they shall be governed by

AICTE Regulation issued on 08.11.2012.

// 3 //

3.1. It is also contended that notice issued on 27.01.2020 under

Annexure-3 was modified vide another notice issued on 10.02.2020

under Annexure-4. But vide notice dtd.08.07.2021 under Annexure-5

the date of making the application was extended to 20.07.2021.

Subsequently, vide another notice issued on 22.07.2021 under

Annexure-6, the last date for making the application was extended to

23.07.2021 for promotion from Stage-I to Stage-II and Stage-II to

Stage-III and last date for such submission of form for promotion

from Stage-III to Stage-IV and Stage-IV to Stage-V was fixed to

29.07.2021.

3.2. It is contended that Petitioners made their applications for

promotion through CAS from Stage-IV to Stage-V in terms of Clause

2 of notice dtd.27.01.2020 under Annexure-3 and accordingly they are

to be governed by AICTE Regulations issued on 08.11.2012.

3.3. It is contended that Petitioner Nos. 1, 2, 3, 7 & 13, since were

appointed as Associate Professors during the year 2016, they became

eligible to get the benefit of promotion under CAS to the rank of

Professor, which comes under Stage-V and as provided in the

advertisement governed under AICTE Regulation dt.08.11.2012. The

// 4 //

same was also indicated all through in the notice issued under

Annexure-3 as well as under Annexure-6.

3.4. Learned Sr. Counsel appearing for the Petitioners contended that

in the notification issued by AICTE on 08.11.2012 under Annexure-2,

the following Regulation was made namely:- All India Council for

Technical Education (Career Advancement Scheme for the Teachers

and Other Academic Staff in Technical Institutions) (Degree)

Regulations, 2012 (in short Regulation).

3.5. Regulation 5.2 of the said Regulation describes the modality and

constitution of the Selection Committee for promotion to the post of

Associate Professor in the University and the same reads as follows:-

"5.2. Associate Professor in the University :

The Selection Committee for the post of Associate Professor in the University shall have the following composition:

1. Vice Chancellor or Acting Vice Chancellor to be the Chariperson of the Selection Committee.

2. An academician who is the nominee of the Visitor/Chancellor, wherever applicable.

3. Three experts in the concerned subject/field nominated by the Vice Chancellor out of the panel of names approved by the relevant statutory body of the University concerned.

4. Dean of the faculty, wherever applicable.

5. Head/Chairperson of the Department/School.

// 5 //

6. And academician representing SC / ST / OBC / Minority / Women / Differently-abled categories, if any of candidates representing these categories is the applicant, to be nominated by the Vice Chancellor, if any of the above members of the selection committee does not belong to that category.

To constitute the quorum for the meeting, five of which at least two must be from out of the three subject experts shall be present."

3.6. It is contended that the modality for constitution of the Selection

Committee, prescribed under Regulation 5.2 for promotion to the post

of Associate Professor is also required to be followed for promotion to

the post of Professor as prescribed under Regulation 5.3. It is

contended that though in the notice dtd.22.07.2021 under Annexure-6,

it was clearly indicated that AICTE Regulation 2012 is to be followed

in respect of eligible candidates coming in between 05.03.2010 to

28.02.2019, but Opp. Party-University in violation to the provisions

contained under Regulation 5.2 r.w. Regulation 5.3, constituted a

Selection Committee, which is not in terms of the Regulation.

3.7. It is contended that in the proceeding of the Selection Committee

for the post of Professor and Associate Professor under CAS held on

11.01.2022 in the Department of Mechanical Engineering of VSSUT,

Burla, the following Selection Committee was constituted to conduct

the interview:

// 6 //

Selection Committee

Sl # Name & Designation Remarks 1 Prof. B. Majhi, Vice-Chancellor, VSSUT Chairman Chancellor's 2 Prof. A.K. Darpe, Dept. of Mechanical Engg., IIT Delhi Nominee 3 Prof. M.P. Maiya, Department of Mechanical Engg., IIT Madras Subject Expert 4 Prof. Shubhashis Sanyal, Dept. of Mechanical Engg., NIT Raipur Subject Expert Shri Tapan Kumar Satapathy, Addl. Secretary, SDTE, Govt. of 5 Govt. Nominee Odisha Member 6 Ms. Upama Kalo, Registrar VSSUT Convener

3.8. It is contended that since the Selection Committee constituted by

the University, who conducted the interview for consideration of the

claim of the Petitioners for their promotion to the rank of Professor

under CAS, was not constituted in terms of the provisions contained

under Regulation 5.2 r.w. Regulation 5.3 of the AICTE guideline

dtd.08.11.2012 under Annexure-2, selection and promotion of Private

Opp. Party Nos. 5 & 6 vide order dtd.08.02.2022 under Annexure-8

basing on the recommendation of the Committee is not sustainable in

the eye of law.

3.9. It is also contended that Regulation 2012 was framed by AICTE

in exercise of the power conferred under Sub. Sec. 1 of Section 23

r.w. Section 10(i) to (v) of the All India Council of Technical

Education Act, 1987 (in short Act). Regulation 3.9 of 2012 Regulation

makes entitled an Associate Professor completing 3 years of service in

// 7 //

Stage-IV and possessing Ph.D. degree in the relevant discipline,

eligible to be appointed and designated as Professor in the next higher

grade.

3.10. It is also contended that Petitioner Nos. 1, 2, 3, 7 & 13 were not

only eligible to get the benefit of promotion in terms of the notice

issued under Annexure-3 to 6, but also they had the required

qualification and experience as provided under Regulation 3.9. But

since the University never conducted the selection by constituting the

Selection Committee in terms of Regulation 5.2 r.w. Regulation 5.3,

process of selection conducted by the University through such a

Committee was vitiated and so also the recommendation of the names

of Opp. Party Nos. 5 & 6 and their promotion to the rank of Professor

vide order under Annexure-8.

3.11. A further submission was made that the Selection Committee so

constituted by the University is not only contrary to the Regulation

framed and issued by the AICTE on 08.11.2012, but also it did not

follow, the minimum APIs as provided in Table I, more particularly

the expert assessment system percentage distribution of weightage

points in the expert assessment. As provided under the Table I, the

Selection Committee out of the total weightage of 100 is required to

// 8 //

give 30% towards contribution to research, 50% towards assessment

of domain knowledge and teaching practices and 20% towards

interview performance. But the Selection Committee so constituted by

the University never followed the APIs in terms of the provisions

contained in the 2012 Regulation. The assessment prescribed in Table-

I for preparation of minimum APIs reads as follows:-

V Expert Screening Screening Selection Selection Expert Assessment Committee Committee Committee Committee Committee System Percentage No No 30% 50% 50% Distribution separate separate Contribution Contribution Contribution of points. points. to Research to Research to Research Weightage Screening Screening 50% 30% 50% Points in the Committee Committee Assessment Assessment Performance Expert to verify to verify of domain of domain evaluation Assessment API scores API scores knowledge knowledge and other (Total and teaching and teaching credential by weightage practices. practices referral

100.

procedure Minimum 20% 20% required for interview Interview promotion is performance Performance

50)

3.12. Making all these submissions learned Sr. Counsel appearing for

the Petitioners contended that since on the face of the notice issued

under Annexure- 3 and 6, the University neither constituted the

Selection Committee in terms of Regulation 5.2 r.w. Regulation 5.3 of

the AICTE 2012 Regulation nor calculated the APIs in terms of the

// 9 //

Regulation as provided in Table-I of the Regulation, the selection and

appointment of Opp. Party Nos. 5 & 6 as Professor in the Department

of Mechanical Engineering vide order under Annexure-8 basing on

the recommendation of the Selection Committee, is illegal and

requires interference of this Court.

4. Mr. N.K. Sahu, learned counsel appearing for Opp. Party Nos. 1 &

2 on the other hand made his submission basing on the stand taken in

the counter affidavit and further affidavits filed by the said Opp.

Parties. It is 1st contention that since Petitioners without raising any

objection, participated before the Selection Committee so held on

11.01.2022, pursuant to notice dtd.22.07.2021 under Annexure-6, after

becoming unsuccessful on the face of such selection and appointment

of Opp. Party Nos. 5 & 6 vide order dtd.08.02.2022 under Annexure-

8, the challenge made to such selection and appointment of Opp. Party

Nos. 5 & 6 is not entertainable.

4.1. In support of his aforesaid submission learned counsel appearing

for Opp. Party Nos. 1 & 2 relied on the following decisions of the

Apex Court:-

(i) 2023 SCC OnLine SC 344 (Tajvir Singh Sodhi & Ors. Vs. State of Jammu & Kashmir & Ors.)

// 10 //

(ii) 2024 SCC OnLine Ori 1205 (Dr. Archana Kanungo Vs. State of Odisha & Ors.)

(iii) 2024 SCC OnLine Ori 1122 (Pramod Kumar Sahoo Vs. State of Odisha & Ors.)

4.2. Hon'ble Apex Court in in Para 48 & 69 of the Judgment in the

case of Tajvir Singh Sodhi has held as follows:-

"48. The learned ASG cited Rule 10 of the 1992 Rules which provides for Recruitment and Selection to contend that there is no prescribed procedure for the appointment of drug inspectors. Rule 10(i) states that the Board shall finalize the selections after holding such tests or examinations as may be prescribed under rules or if there are no such rules, as the Board may consider necessary. Thus, it is a matter of record that no rules have been prescribed for the selection of drug inspectors and in the absence of prescribed rules, the Selection Committee and the Board carried out the selection process in a fair and transparent manner. That merely because the record of the case was not traceable when it was called for by the Single Judge in February 2015, i.e., 6 years after the selection/appointments were made, cannot be a ground to set aside the entire selection process.

xxx xxx xxx

69. It is therefore trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Therefore, we find that the writ petitioners in these cases, could not have questioned before a Court of law, the rationale behind recasting the selection criteria, as

// 11 //

they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of the principle of waiver and acquiescence."

4.3. Hon'ble Apex Court in in Para 4.2 of the Judgment in the case of

Dr. Archana Kanungo has held as follows:-

"4.2. Hon'ble Apex Court in Para 14 to 18 of the Judgment in the case of Madras Institute has held as follows:--

"14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.

15. In G. Sarana v. University of Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S) 474], a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held : (SCC p. 591, para 15)

"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of

// 12 //

the Committee. This view gains strength from a decision of this Court in Manak Lal case [Manak Lal v. Prem Chand Singhvi, AIR 1957 SC 425] where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting : (AIR p. 432, para 9)

„9. ... It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.‟

16. In Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603], similar view has been reiterated by the Bench which held that : (SCC p. 493, para 9)

"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644] it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without

// 13 //

protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."

17. In Martish Kumar Shahi v. State of Bihar [(2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256], this Court reiterated the principle laid down in the earlier judgments and observed :

(SCC p. 584, para 16)

"16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

18. In Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309 : (2013) 3 SCC (L&S) 129], recently a Bench of this Court following the earlier decisions held as under : (SCC p. 320, para 24)

"24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge [Anil Joshi v. State of Uttara khand, 2012 SCC OnLine Utt 521] and the Division Bench [Ravi Shankar Joshi v. Anil Joshi, 2012 SCC OnLine Utt 766] of the High Court committed

// 14 //

grave error by entertaining the grievance made by the respondents.""

4.4. Hon'ble Apex Court in in Para 23 of the Judgment in the case of

Pramod Kumar Sahoo has held as follows:-

"23. This Court has no doubt about the principle that an employee can challenge the selection process for promotion, but once he having taken part in the selection process without any protest cannot afterwards normally challenge the same after having been declared unsuccessful, which is reiterated by the Apex Court in the judgment in Tajvir Singh Sodhi (supra). It is no doubt that the petitioner has relied upon in Ashish Kumar (supra) and the Employees State Insurance Corporation (supra) to contend that the entire selection process adopted by DPC being contrary to mandate of Rules is without jurisdiction and liable to be quashed, but the principle decided in these two relied on cases being related to recruitment process and eligibility conditions contained in advertisement has no application in the context of consideration for promotion of the petitioner. On the other hand, the decision as relied on by the petitioner in Krishna Rai (supra), it is held by the Apex Court that the principle of estoppels cannot override the law and this Court is duty bound to accept such proposition of law as laid down by the Apex Court, but in this case, the contention of learned Additional Government Advocate is that the petitioner having already participated in the selection process without any protest cannot challenge such selection after becoming unsuccessful and thereby, the decision relled on by OP Nos. 1 to 3 in Tajvir Singh Sodhi (supra) is factually different from the decision in Krishna Rai (supra). This Court, however, believes that the decision of the DPC should not ordinarily be Interfered with, unless it is actuated with malafides or bias. In this regard, this Court considers is apposite to

// 15 //

refer to the decision in State of Bank of India (supra), wherein it has been held as under: -

"5. xx xx If promotion has been denied arbitrarily or without any reason ordinarily the Court can issue a direction to the management to consider the case of the Officer concerned for promotion, but it cannot issue a direction to promote the Officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion. There is good reason for taking this view."

4.5. With regard to non-compliance of the provisions contained under

Regulation 5.2 and 5.3 of AICTE Regulation, 2012, learned counsel

appearing for Opp. Party Nos. 1 & 2 contended that the said

Regulation is not mandatory in nature and to be followed by the

University, as VSSUT, Burla is governed by its own Acts and

Statutes.

4.6. It is contended that the Selection Committee who conducted the

interview for promotion to the rank of Professor Stage-V in the

Department of Mechanical Engineering was constituted in terms of

the provisions contained under Statute 34 (9) of the VSSUT 1st

Statute, 2010.

4.7. Statute 34 (9) of the 1st Statute provides the modality for

constitution of the Selection Committee and the said Committee shall

consist of the following members:-

// 16 //

(i) Vice Chancellor : Chairman

(ii) Nominee of the Government : Member in Industries Department (Not below the rank of Additional Secretary / DTET)

(iii) One Expert : Member (Nominated by Chancellor)

(iv) Two Subject experts : Member (nominated by the Board)

(v) Registrar : Member Convener

Statute 34(10) of the said Statute provides the quorum of the

Committee for selection.

4.8. It is also contended that Selection Committee in terms of Statute

34 (9) of the Statute was constituted in terms of the provisions

contained under Sec. 34 (1) of the VSSUT Act, 2008. Sec. 34(1) of

the Act reads as follows:-

"34. (1) The following shall be teacher of the University as per Section 2(r) of the Act, namely Professor, Associate Professor, Reader/Assistant professor, Workshop Superintendent, Lecturer or such other persons imparting instruction or conducting or supervising research either in the Centers, Schools or in the Departments of the University;

The Board may by notification include any other post from time to time as teacher."

4.9. Similarly, it is contended that since the Selection Committee who

conducted the interview was constituted in terms of Statute 34(9) of

// 17 //

the VSSUT 1st Statute and Petitioners without raising any objection

participated in the interview so conducted by the Selection

Committee, after becoming unsuccessful, such selection process

cannot be challenged on the ground that the interview was unfair or

the Selection Committee was not properly constituted.

4.10. In support of the aforesaid submission reliance was placed in the

decision reported in (1976) 3 SCC 585 (Dr. G. Sarana Vs. University

of Lucknow & Ors.) and another decision reported in 2017(9) SCC

478 (D. Sarojakumari Vs. R. Helen Thilakom & Ors.).

4.11. Hon'ble Apex Court in the case of Dr. G. Sarana in Para 15 has

held as follows:-

"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:

"It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.""

// 18 //

4.12. Hon'ble Apex Court in the case of D. Sarojakumari in Para 5, 6

& 11 has held as follows:-

"5. In G. Sarana v. University of Lucknow [G. Sarana v. University of Lucknow, (1976) 3 SCC 585 : 1976 SCC (L&S) 474] , the petitioner after appearing in the interview for the post of Professor and having not been selected pleaded that the experts were biased. This Court did not permit the petitioner to raise this issue and held as follows: (SCC p. 591, para 15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee."

6. In Madan Lal v. State of J&K [Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712] , the petitioner laid challenge to the manner and method of conducting viva voce test after they had appeared in the same and were unsuccessful. This Court held as follows: (SCC p. 493, para 9) "9. ... Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted."



                                  // 19 //




                       xxx             xxx           xxx

11. As far as the present case is concerned, an advertisement was issued by Respondent 6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent 1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this, we need not go into the other issues raised."

4.13. It is also contended that AICTE Regulation, 2012 was framed in

terms of the provisions contained under AICTE Act, 1987. But in

view of the decisions governing the field, role of AICTE vis-à-vis the

Universities is only advisory, recommendatory and a guiding factor

and it is not at all mandatory. In support of the same, reliance was

placed to a decision of the Apex Court reported in 2001 (8) SCC 676

(Bharathidasan University & Anr. Vs. All-India Council For

Technical Education & Ors.) .

4.14. Hon'ble Apex Court in Para 15 of the Judgment in the case of

Bharathidasan University has held as follows:-

// 20 //

"15. To put it in a nutshell, a reading of Section 10 of the AICTE Act will make it clear that whenever the Act omits to cover a "university", the same has been specifically provided in the provisions of the Act. For example, while under clause (k) of Section 10 only "technical institutions" are referred to, clause (o) of Section 10 provides for the guidelines for admission of students to "technical institutions" and "universities" imparting technical education. If we look at the definition of a "technical institution" under Section 2(h) of the Act, it is clear that a "technical institution" cannot include a "university". The clear intention of the legislature is not that all institutions whether university or otherwise ought to be treated as "technical institutions" covered by the Act. If that was the intention, there was no difficulty for the legislature to have merely provided a definition of "technical institution" by not excluding "university"

from the definition thereof and thereby avoided the necessity to use alongside both the words "technical institutions" and university in several provisions in the Act. The definition of "technical institution" excludes from its purview a "university". When by definition a "university" is excluded from a "technical institution", to interpret that such a clause or such an expression wherever the expression "technical institution" occurs will include a "university" will be reading into the Act what is not provided therein. The power to grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned is covered by Section 10(k) which would not cover a "university" but only a "technical institution". If Section 10(k) does not cover a "university" but only a "technical institution", a regulation cannot be framed in such a manner so as to apply the regulation framed in respect of "technical institution" to apply to universities when the Act maintains a complete dichotomy between a "university" and a "technical institution". Thus, we have to focus our attention mainly to the Act in question on the language adopted in that enactment. In that view of the matter, it is, therefore, not even necessary to examine the scope of other enactments or whether the Act prevails over the University Act or effect of competing entries falling under Entries 63 to 65 of List I vis-à-vis Entry 25 of List III of the Seventh Schedule to the Constitution."

4.15. It is also contended that since the Selection Committee

constituted in terms of Statute 34(9) of the 1st Statute of the University

is pari materia to the Selection Committee prescribed by AICTE

under Regulation 5.2 r.w. Regulation 5.3 of 2012 Regulation, no

// 21 //

illegality or irregularity can be found with such formation of the

Selection Committee by the University.

4.16. It is also contended that the Selection Committee constituted in

terms of Statute 34(9), constitute members in terms of the standard

prescribed by the AICTE, and it is also in a better form than that

prescribed by AICTE. It is accordingly contended that since the

Selection Committee constituted by the University is in a better form

than the Selection Committee prescribed by AICTE under Regulation

5.2 r.w. 5.3, no illegality or irregularity can be found with formation

of such Selection Committee. In support of the aforesaid submission,

reliance was placed to a decision reported in (2021) 2 SCC 564

(A.P.J. Abdul Kalam Technological University & Anr. Vs. Jai

Bharath College of Management And Engineering Technology &

Ors.).

4.17. Hon'ble Apex Court in Para 46 & 47 of the Judgment in the case

of A.P.J. Abdul Kalam Technological University has held as

follows:-

"46. The law is now fairly well settled that while it is not open to the universities to dilute the norms and standards prescribed by AICTE, it is always open to the universities to prescribe enhanced norms. As regards the role of the universities vis-à-vis AICTE, this Court held in Bharathidasan University v. All India Council for Technical

// 22 //

Education [Bharathidasan University v. All India Council for Technical Education, (2001) 8 SCC 676 : 1 SCEC 924] , that AICTE is not a super power with a devastating role undermining the status, authority and autonomous functioning of the universities in areas and spheres assigned to them. This view was followed in Assn. of Management of Private Colleges v. All India Council for Technical Education [Assn. of Management of Private Colleges v. All India Council for Technical Education, (2013) 8 SCC 271 : 6 SCEC 255] .

47. That even the State Government can prescribe higher standards than those prescribed by AICTE was recognised by a three- member Bench of this Court in State of T.N. v. S.V. Bratheep [State of T.N. v. S.V. Bratheep, (2004) 4 SCC 513 : 2 SCEC 547] . This principle was later applied in the case of universities in Visveswaraiah Technological University v. Krishnendu Halder [Visveswaraiah Technological University v. Krishnendu Halder, (2011) 4 SCC 606 : 4 SCEC 148] where this Court considered the previous decisions and summarised the legal position emerging therefrom as follows: (Visveswaraiah Technological University case [Visveswaraiah Technological University v. Krishnendu Halder, (2011) 4 SCC 606 : 4 SCEC 148] , SCC pp. 614-15, para 14) "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 the 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.

(ii) The observation in para 41(vi) of Adhiyaman [State of T.N. v. Adhiyaman Educational & Research Institute, (1995) 4 SCC 104] to the effect that where seats remain unfilled, the State authorities cannot deny admission to any student satisfying the

// 23 //

minimum standards laid down by AICTE, even though he is not qualified according to its standards, is not good law.

(iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/University would cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them, they will continue to apply in spite of the fact that there are vacancies or unfilled seats in any year. The main object of prescribing eligibility criteria is not to ensure that all seats in colleges are filled, but to ensure that excellence in standards of higher education is maintained.

(iv) The State/University (as also AICTE) should periodically (at such intervals as they deem fit) review the prescription of eligibility criteria for admissions, keeping in balance, the need to maintain excellence and high standard in higher education on the one hand, and the need to maintain a healthy ratio between the total number of seats available in the State and the number of students seeking admission, on the other. If necessary, they may revise the eligibility criteria so as to continue excellence in education and at the same time being realistic about the attainable standards of marks in the qualifying examinations.""

4.18. With regard to the award of API score, it is contended that award

of API Score is only for the purpose of making eligible the candidates

to took the interview. Since Petitioners were allowed to take part in

the interview basing on the API score awarded to them, no challenge

can be made that such marks awarded is not in conformity with the

API score prescribed in Table I of AICTE Regulation, 2012.

// 24 //

4.19. It is also contended that after getting the benefit of promotion

vide order under Annexure-8, while Opp. Party No. 5 has retired from

service in the meantime, Opp. Party No. 6 has been transferred to

another Department on availing further benefit of promotion. Since

Opp. Party Nos. 5 & 6 after getting the benefit of promotion have

retired and/or have got further promotion, any interference to their

promotion at this stage will cause them prejudice and it is not in the

interest of justice. It is accordingly contended that no illegality or

irregularity is there with regard to constitution of the Selection

Committee and promotion of Private Opp. Party Nos. 5 & 6 to the

rank of Professor vide order under Annexure-8.

5. Mr. B. Routray, learned Sr. Counsel appearing for the Petitioners

taking into account the stand taken in the counter affidavit so filed by

Opp. Party Nos. 1 & 2, made further submission basing on the stand

taken in the rejoinder affidavit and further affidavits filed by the

Petitioners. It is contended that AICTE Regulation, 2012 having been

framed in terms of the AICTE Act, 1987 and the said Act being a

central legislation, provisions contained in the said Regulation is

required to be followed by all the Universities and the stand taken by

the University that such AICTE Regulation is not mandatorily to be

followed and it is only directory, is not true and correct.

// 25 //

5.1. In support of the aforesaid submission reliance was placed to a

decision reported in (2013) 3 SCC 385 (Parshvanath Charitable

Trust & Ors. Vs. All India Council For Technical Education &

Ors.). Hon'ble Apex Court in Para 24 & 25 of the Judgment in the

case of Parshvanath Charitable Trust has held as follows:-

"24. The consistent view of this Court has been that where both Parliament and the State Legislature have the power to legislate, the Central Act shall take precedence in the matters which are covered by such legislation and the State enactments shall pave way for such legislations to the extent they are in conflict or repugnant. As per the established canons of law, primacy of the Central Act is indisputable which necessarily implies primacy of AICTE in the field of technical education. Statutes like the present one as well as the National Council for Teacher Education Act, 1993, the Indian Medical Council Act, 1956, etc. fall within the ambit of this canon of law. AICTE is the authority constituted under the Central Act with the responsibility of maintaining operational standards and judging the infrastructure and facilities available for imparting professional education. It shall take precedence over the opinion of the State as well as that of the University. The department concerned of the State and the affiliating university have a role to play, but it is limited in its application. They cannot lay down any guidelines or policies in conflict with the Central statute or the standards laid down by the Central body. The State can frame its policies, but such policy again has to be in conformity with the direction issued by the Central body. Though there is no such apparent conflict in the present case, yet it needs to be clarified that grant of approval by the State and affiliation by the University for increased intake of seats or commencement of new college should not be repugnant to the conditions of approval/recommendation granted by AICTE. These authorities have to work in tandem as all of them have the common object to ensure maintenance of proper standards of education,

// 26 //

examination and proper infrastructure for betterment of technical educational system.

25. It is also a settled principle that the regulations framed by the Central authorities such as AICTE have the force of law and are binding on all concerned. Once approval is granted or declined by such expert body, the courts would normally not substitute their view in this regard. Such expert views would normally be accepted by the court unless the powers vested in such expert body are exercised arbitrarily, capriciously or in a manner impermissible under the Regulations and the AICTE Act. In All India Council for Technical Education v. Surinder Kumar Dhawan [(2009) 11 SCC 726] , this Court, while stating the principles that the courts may not substitute their opinion in place of the opinion of the Council, held as under:

(SCC pp. 732-33 & 736, paras 17-18 & 32) "17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in. In J.P. Kulshrestha v. Allahabad University [(1980) 3 SCC 418 : 1980 SCC (L&S) 436 : (1980) 2 LLJ 175] this Court observed: (SCC pp. 424-

26, paras 11-17) „11. ... Judges must not rush in where even educationists fear to tread. ...

***

17. ... While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.‟ (emphasis supplied)

18. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [(1984) 4 SCC 27 : (1985) 1 SCR 29] this Court reiterated: (SCC pp. 56-57, para 29) „29. ... the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional

// 27 //

men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them.‟ ***

32. This is a classic case where an educational course has been created and continued merely by the fiat of the court, without any prior statutory or academic evaluation or assessment or acceptance. Granting approval for a new course or programme requires examination of various academic/technical facets which can only be done by an expert body like AICTE. This function cannot obviously be taken over or discharged by courts. In this case, for example, by a mandamus of the court, a bridge course was permitted for four-year advance diploma-holders who had passed the entry-level examination of 10+2 with PCM subjects. Thereafter, by another mandamus in another case, what was a one-time measure was extended for several years and was also extended to post diploma- holders. Again by another mandamus, it was extended to those who had passed only 10+1 examination instead of the required minimum of 10+2 examination. Each direction was obviously intended to give relief to students who wanted to better their career prospects, purely as an ad hoc measure. But together they lead to an unintended dilution of educational standards, adversely affecting the standards and quality of engineering degree courses. Courts should guard against such forays in the field of education."

(emphasis in original)

5.2. Reliance was also placed to a decision of this Court in W.P.(C)

No. 17515 of 2019 disposed of on 09.08.2023. This Court in Para 4, 9

and 12 to 15 has held as follows:-

"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

// 28 //

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.




                             // 29 //




                  xxx             xxx            xxx

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.

xxx xxx xxx

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 Subsection(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

// 30 //

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.

// 31 //

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."

5.3. It is contended that since Regulation 2012 was framed in terms of

the AICTE Act, 1987 and the said Act being a central legislation,

provisions contained under the said Act and Regulation will supersede

the provisions contained under the VSSUT Act, 2008 and the 1 st

statute of the University, 2010.

5.4. It is further contended that since it is not disputed that the

Selection Committee was constituted in terms of the provisions

contained under Statute 34(9) of the 1st Statute of the University, the

// 32 //

stand taken by the Petitioners that the University has not followed the

AICTE Regulation 2012 is well proved.

5.5. It is also contended that since the guideline prescribed under

Regulation 5.2 r.w. 5.3 of the 2012 Regulation has not been followed,

the stand taken by the University that the Selection Committee

constituted under Statute 34(9) of the 1 st Statute has been duly

constituted cannot be accepted, as it is the settled law that if

something has been prescribed to be done in a particular manner, then

that should be done in that manner or not at all.

5.6. In support of the submission, reliance was placed to the following

decisions of the Hon'ble Apex Court:-

(i) Ramchandra Keshav Adke (Dead) By LRs. & Ors. Vs. Govind Joti Chavare & Ors. reported in (1975) 1 SCC 559

(ii) Arulmighu Nellukadai Mariamman Tirukkoil Vs. Tamirlarasi (Dead) By LRs. reported in 2019 (6) SCC 686

(iii) M/s. A.P. Electrical Equipment Corporation Vs. The Tahsildar & Ors. reported in 2025 SCC OnLine SC 447

(iv) Krishna Rai (Dead) through LRs. & Ors. Vs. Banaras Hindu University through Registrar & Ors. reported in (2022) 8 SCC 713

// 33 //

5.7. Hon'ble Apex Court in Para 25 of the Judgment in the case of

Ramchandra Keshav Adke has held as follows:-

"25. A century ago, in Taylor v. Taylor [(1876) 1 Ch D 426] Jassel, M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor [AIR 1936 PC 253 : LR 63 IA 372] and later by this Court in several cases [Shiv Bahadur Singh v. State of U.P., AIR 1954 SC 322 : AIR 1954 SC 1098 : 1954 SCR 1098 : 1954 Cri LJ 910; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 : (1962) 1 SCR 662 : (1961) 2 Cri LJ 705] , to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other." [ Maxwell's Interpretation of Statutes, 11th Edn., pp. 362-63] The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of Section 5(3)(b)."

5.8. Hon'ble Apex Court in Para 13 of the Judgment in the case of

Arumighu Nellukadai Mariamman has held as follows:-

"13. Recently, this Court had an occasion to examine this very question in Surat Singh v. Siri Bhagwan [Surat Singh v. Siri Bhagwan, (2018) 4 SCC 562 : (2018) 3 SCC (Civ) 94] . The law is explained in paras 19 to 35 of this decision which read as under :

(SCC pp. 567-69) "19. ... Section 100 of the Code reads as under:

„100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

// 34 //

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.‟

20. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is "satisfied" that the case involves a "substantial question of law".

Sub-section (3) makes it obligatory upon the appellant to precisely state in memo of appeal the "substantial question of law" involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court.

21. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4). The respondent, however, at the time of hearing of the appeal is given a right under sub-section (5) to raise an objection that the question framed by the High Court under sub- section (4) does not involve in the appeal. The reason for giving this right to the respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the respondent. In other words, the question is framed behind the back of respondent and, therefore, sub-section (5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to sub-section (5), however, also recognises the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for

// 35 //

framing such additional question of law at the time of hearing of the appeal.

22. Adverting to the facts of this case at hand, we are at a loss to understand as to how the High Court while passing a final judgment [Bhagwan v. Murti Devi, 2006 SCC OnLine P&H 2175] in its concluding paragraph could frame the substantial question of law for the first time and simultaneously answered the said question in appellant's favour. Obviously, the learned Judge must have done it by taking recourse to sub-section (4) of Section 100 of the Code.

23. Here is the case where the High Court was under a legal obligation to frame the substantial question at the time of admission of the appeal after hearing the appellant or/and his counsel under sub-section (4) of Section 100 of the Code, but the High Court did it while passing the final judgment in its concluding paragraph.

24. Such novel procedure adopted by the High Court, in our considered opinion, is wholly contrary to the scheme of Section 100 of the Code and renders the impugned judgment legally unsustainable.

25. In our considered opinion, the High Court had no jurisdiction to frame the substantial question at the time of writing of its final judgment in the appeal except to the extent permitted under sub-section (5). The procedure adopted by the High Court, apart from it being against the scheme of Section 100 of the Code, also resulted in causing prejudice to the respondents because the respondents could not object to the framing of substantial question of law. Indeed, the respondents could not come to know on which question of law, the appeal was admitted for final hearing.

26. In other words, since the High Court failed to frame any substantial question of law under sub-section (4) of Section 100 at the time of admission of the appeal, the respondents could not come to know on which question of law, the appeal was admitted for hearing.

27. It cannot be disputed that sub-section (5) gives the respondents a right to know on which substantial question of law, the appeal was admitted for final hearing. Sub-section (5) enables the respondents to raise an objection at the time of final hearing that the question of law framed at the instance of the appellant does not really arise in the case.

28. Yet, the other reason is that the respondents are only required to reply while opposing the second appeal to the question formulated by the High Court under sub-section (4) and not beyond that. If the question of law is not framed under sub-section (4) at the time of admission or before the final hearing of the appeal, there remains nothing for the respondent to oppose the second appeal at the time of hearing. In this situation, the High Court will have no jurisdiction to decide such second appeal finally for want of any substantial question(s) of law.

// 36 //

29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section

100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).

30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub- section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.

31. It is, however, of no significance, whether the respondent has appeared at the time of final hearing of the appeal or not. The High Court, in any case, has to proceed in accordance with the procedure prescribed under Section 100 while disposing of the appeal, whether in limine or at the final hearing stage.

32. It is a settled principle of rule of interpretation that whenever a statute requires a particular act to be done in a particular manner then such act has to be done in that manner only and in no other manner. (See Interpretation of Statutes by G.P. Singh, 9th Edn., p. 347 and Baru Ram v. Prasanni [Baru Ram v. Prasanni, AIR 1959 SC 93] .)

33. The aforesaid principle applies to the case at hand because, as discussed above, the High Court failed to follow the procedure prescribed under Section 100 of the Code while allowing the second appeal and thus committed a jurisdictional error calling for interference by this Court in the impugned judgment.

34. While construing Section 100, this Court in Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] succinctly explained the scope, the jurisdiction and what constitutes a substantial questions of law under Section 100 of the Code.

35. It is, therefore, the duty of the High Court to always keep in mind the law laid down in Santosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] while formulating the question and deciding the second appeal."

// 37 //

(emphasis in original)

5.9. Hon'ble Apex Court in Para 24 of the Judgment in the case of

A.P. Electrical Equipment Corporation has held as follows:-

"24. This Court in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, in the context of the Gujarat Town Planning and Urban Development Act, 1976 held thus:--

"The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The state and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof."

5.10 Hon'ble Apex Court in Para 32 of the Judgment in the case of

Krishna Rai has held as follows:-

"32. Further in Tata Chemicals Ltd. v. Commr. of Customs [Tata Chemicals Ltd. v. Commr. of Customs, (2015) 11 SCC 628] , it has been laid down that there can be no estoppel against law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of the law. Para 18 of the said judgment is reproduced below : (SCC p. 636) "18. The Tribunal's judgment [Commr. of Customs v. Tata Chemicals Ltd., 2004 SCC OnLine Cestat 270] has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the clearing agent of the appellants in that he was not their employee

// 38 //

but also stated that he was not present when the samples were taken. In fact, therefore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realised that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of the law at all. The Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is illegal cannot convert itself into something legal by the act of a third person."

5.11. With regard to the stand taken by the University that after

participating in the selection process and not becoming successful

they can't challenge the process of selection, reliance was placed to a

decision of the Hon'ble Apex Court reported in (2019) 20 SCC 2017

(Dr. (Major) Meeta Sahai Vs. State of Bihar & Ors.). Hon'ble Apex

court in Para 19 of the said Judgment has held as follows:-

"19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents' interpretation of "work experience" as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of the appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not."

5.12. Making all these submissions learned Sr. Counsel appearing for

the Petitioners contended that since the Selection Committee

// 39 //

admittedly has not been constituted in terms of Regulation 5.2 r.w. 5.3

of the AICTE 2012 Regulation, selection and appointment of Opp.

Party Nos. 5 & 6 in terms of the recommendation made by such

Selection Committee is not sustainable in the eye of law and requires

interference of this Court.

6. Mr. P.K. Rath, learned Sr. Counsel appearing for Opp. Party Nos. 5

& 6 on the other hand made his submission basing on the stand taken

in the affidavit filed by Opp. Party Nos. 5 & 6. Though it is not

disputed that the selection in terms of notice issued under Annexure-6

was required to be conducted in terms of AICTE Regulation 2012, but

since Petitioners without any objection participated in the selection

process before the Selection Committee so constituted by the

University in terms of Statute 34(9) of the 1st Statute, after becoming

unsuccessful Petitioners are not permitted to challenge the process of

selection. It is also contended that Selection Committee constituted by

the University in terms of Statute 34(9) stands in a better footing than

the Selection Committee prescribed by the AICTE under Regulation

5.2 r.w. Regulation 5.3.

6.1. It is also contended that after getting the benefit of promotion vide

order dtd.08.02.2022 under Annexure-8 while Opp. Party No. 5 has

// 40 //

retired from his services w.e.f.30.06.2022 vide order dtd.30.06.2022

under Annexure-D/5, Opp. Party No. 6 in the meantime has assumed

the charge of Principal, Govt. College of Engineering, Keonjhar, in

terms of order dtd.21.09.2024 issued by the Govt. under Annexure-

D/5.

6.2. It is contended that since after getting the benefit of promotion,

Opp. Party No. 5 has retired w.e.f.30.06.2022 and Opp. Party No. 6

has got further benefit of promotion to the rank of Principal and they

got the said benefit of promotion without having any fault of their

own, they will be seriously prejudiced, if their order of promotion is

interfered with by this Court.

6.3. It is however contended that after becoming unsuccessful to get

the benefit of promotion in terms of further notice issued by the

University on 25.08.2023 under Annexure-A/5, all the Petitioners

have made their applications once again to get the benefit of

promotion to the rank of Professor. It is accordingly contended that

since in the meantime Petitioners have taken their chance basing on

subsequent notice issued on 25.08.2023 under Annexure-A/5,

challenge made to the selection process pursuant to Annexure-6 has

become infructuous.

// 41 //

6.4. Learned Sr. Counsel appearing for Opp. Party Nos. 5 & 6 in

support of his aforesaid submissions relied on the following decisions

over and above the decision in the case of Parshavanath Charitable

Trust & Ors and Dr. (Major) Meeta Sahai., so cited by the learned

Sr. Counsel appearing for the Petitioner:-

1. Manas Ranjan Senapati & Ors. Vs. State of Odisha & Ors.

2. Chittanjan Mallick & Ors. Vs. State of Odisha & Ors.

(W.P.(C) No. 17515 of 2019)

6.5. This Court in Para 8 & 10 of the Judgment in the case of Manas

Ranjan Senapati has held as follows:-

"8. Even though learned counsel appearing for the University vehemently contended that the guideline framed by the University under Annexure-3 is to be followed for recruitment of faculty under CAS in terms of the notice issued on 30.06.2023 under Annexure-2, but in course of hearing learned counsel appearing for the University contended that the University has no objection to follow the guideline so issued by the AICTE in its notification dtd.01.03.2019 and notification dtd.20.05.2020. But it is contended that in the guideline framed by the University under Annexure-3 so far as it relates to securing a score of 60 or more mark to qualify for the position, be allowed to be followed by the University instead of the score prescribed by the AICTE at 50 mark.

xxx xxx xxx

10. Having heard learned counsel appearing for the Parties and after going through the materials available on record and considering the

// 42 //

submissions made by the learned counsel for the University that for recruitment of faculty under CAS, the regulation prescribed by the AICTE under Annexure-5 will be followed in all respect, save and except the cut-off score to be adopted by the University at 60, this Court while disposing the writ petition, permits the University to go ahead with the selection in terms of the notice issued on 30.06.2023 under Annexure-2 by following the guideline issued by the AICTE under Annexure-5, 10 & 11, save and except fixing the cut-off score at

60."

6.6. This Court in Para 4, 9 and 12 to 15 of the Judgment in the case of

Chittaranjan Mallick has held as follows:-

"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,

// 43 //

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.

xxx xxx xxx

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.

xxx xxx xxx

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 Subsection(1)

// 44 //

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

// 45 //

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

// 46 //

force of law, which this Court has already held so, it has full application to the Institution in which the petitioners are engaged."

7. I have heard Mr. B. Routray, learned Sr. Counsel appearing for the

Petitioners along with Mr. J. Biswal, learned counsel, Mr. N.K. Sahu,

learned counsel appearing for Opp. Party Nos. 1 & 2 and Mr. P.K.

Rath, learned Sr. Counsel appearing for Opp. Party Nos. 5 & 6 along

with Mr. S. Rath, learned counsel. On the consent of the learned

counsel appearing for the Parties and with due exchange of pleadings,

the matter was heard at the stage of admission and disposed of by the

present order.

8. Having heard learned counsel appearing for the Parties and

considering the submissions made, it is not disputed by the Parties that

pursuant to the notice issued by the University under Annexure-3 to 6,

Petitioner Nos.1, 2, 3, 7 & 13 and Private Opp. Party Nos. 5 & 6 made

their applications to get the benefit of promotion to the rank of

Professor under Career Advancement Scheme. It is found from the

notice issued under Annexure-3 and the last notice issued under

Annexure-6, that the selection has to be made in terms of AICTE

Regulation, 2012. Regulation 5.2 r.w. Regulation 5.3 of the

Regulation prescribes the modality for constitution of the Selection

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Committee for consideration of the claim of Associate Professor to get

the benefit of promotion to the rank of Professor under CAS.

8.1. It is not disputed by Opp. Party Nos. 1 & 2 that the Selection

Committee constituted by the University for the Post of Professor in

the Department of Mechanical Engineering was not constituted in

terms of the provisions contained under Regulation 5.2 r.w.

Regulation 5.3 of AICTE Regulation, 2012.

8.2. It is an admitted fact that the Selection Committee was constituted

by the University in terms of Statute 34(9) of the 1 st Statute of the

University. AICTE Regulation 2022, which is not disputed was

framed in exercise of the power conferred under Sub-Section 1 of

Section 23 r.w. Sec. 10(i) to (v) of the All India Council for Technical

Education Act, 1987. Placing reliance on the decisions in the case of

Parshavanath Charitable Trust & Ors. and the decision in the case of

Chittaranjan Mallick as cited (supra), it is the view of this Court that

Regulations framed by AICTE taking recourse to the provisions

contained under the Act will prevail over the provisions contained

under VSSUT Act, 2008 and the VSSUT 1st Statute, 2010.

8.3. It is found from the record that the selection process though was

conducted in terms of AICTE Regulation, 2012, but the Selection

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Committee was only constituted in terms of the provisions contained

under Statute 34(9) of the 1st Statute. Since it is the view of this Court

that AICTE Regulation, 2012 will prevail over the provisions

contained under the 1st Statute and the Committee prescribed by

AICTE in its 2012 Regulation so provided under Regulation 5.2 vis-à-

vis 5.3 has not been followed by the University, which is not disputed,

this Court is of the view that the process of selection undertaken by

the University as against the post of Professor in the Department of

Mechanical Engineering is illegal and not sustainable in the eye of

law. The stand taken by the University that after participating in the

selection process and after becoming unsuccessful no challenge can be

made to the selection process so followed by the University is also not

acceptable in view of the recent decision of the Hon'ble Apex Court in

the case of Dr. Meeta Sahai as cited (supra).

8.4. It is also the view of this Court that since Regulation 5.2 r.w. 5.3

prescribes the modality for constitution of the Selection Committee

for promotion to the post of Professor under CAS, the same cannot be

changed by the University relying on the provisions contained under

Statute 34(9) of the 1st Statute. It is the settled law that anything

prescribed has to be followed in that manner only or not at all. This

Court relying on the decision of the Apex Court in the case of

// 49 //

Ramchandra Keshav Adke, Arulmighu Nellukadai Mariamman

Tirukkoil, M/s. A.P. Electrical Equipment Corporation and Krishna

Rai as cited (supra), is of the view that the Selection Committee so

constituted is not in terms of Regulation 5.2 r.w. 5.3 of the 2012

Regulation.

8.5. Since the Selection Committee admittedly has not been

constituted in terms of Regulation 5.2 r.w. Regulation 5.3, it is the

view of this Court that the selection process conducted for recruitment

and promotion to the post of Professor under CAS by the University in

the Department of Mechanical Engineering is vitiated. Therefore, this

Court is inclined to interfere with the selection process so conducted

by the University in respect of promotion to the rank of Professor in

the Department of Mechanical Engineering. But since Opp. Party Nos.

5 & 6 have already got the benefit of promotion and in the meantime

Opp. Party No. 5 has retired from his service, this Court without

interfering with their promotion, directs the University to constitute a

fresh Selection Committee in terms of the Regulation 5.2 r.w.

Regulation 5.3 of AICTE Regulation, 2012 and after constituting such

a Selection Committee, a fresh interview be conducted by allowing

the Petitioners to participate in the same. If Petitioners come out

successful, then benefit of promotion be extended, from the date Opp.

// 50 //

Party Nos. 5 & 6 got the said benefit in terms of order dtd.08.02.2022

under Annexure-8. This Court directs the University to complete the

entire exercise within a period of four (4) months from the date of

receipt of this order.

9. The writ petition accordingly stands disposed of.

(BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 3rd April, 2025/Sneha

Location: High Court of Orissa, Cuttack