Dr. Nilimanka Das vs The Union Of India
2021 Latest Caselaw 526 Tri

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                    HIGH COURT OF TRIPURA
                          AGARTALA
                            W.P. (C) No.1228/2017

Dr. Nilimanka Das
Son of Sri Nakul Das,
Resident of Jogendranagar,
Agartala Municipal Corporation Ward No.29,
P.O. Jogendranagar, PS- East Agartala,
District- West Tripura, PIN- 799004.
                                                         .....Petitioner(s)

                                 Versus

1. The Union of India
   To be represented by the Secretary-in-Charge of the
   Human Resource Development, Department of Higher Education,
   Government of India, Sastri Bhawan, New Delhi - 110001.

2. The All India Council for Technical Education,
   Department of Higher Education,
   Ministry of Human Resource Development, Nelson Mendela Marg,
   Basant Kunj, New Delhi - 110067.
   (to be represented by its Member Secretary).

3. The State of Tripura,
   To be represented by the Chief Secretary to the
   Government of Tripura, Civil Secretariat, New Secretariat Complex,
   P.O. Kunjaban, PS- New Capital Complex, District- West Tripura.
   PIN- 799010.

4. The Secretary-in-Charge,
   Health and Family Welfare Department, Government of Tripura,
   Civil Secretariat, New Secretariat Complex, P.O. Kunjaban,
   PS- New Capital Complex, District- West Tripura. PIN- 799010.

5. The Director of Health Services & Ex-Officio Addl. Secretary,
   Government of Tripura, Gorkhabasti, Pandit Nehru Complex,
   P.O. Kunjaban, Agartala, PS- New Capital Complex,
   District- West Tripura, PIN- 799006.

6. The Principal,
   Regional Institute of Pharmaceutical Science & Technology
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  (For Short RIPSAT), Government of Tripura, Abhoynagar,
  P.O. Abhoynagar, PS- New Capital Complex, Kunjaban, Agartala,
  District- West Tripura, PIN- 799005.

7. The Under Secretary to the
   Government of Tripura, Health & Family Welfare Department,
   Civil Secretariat, New Capital Complex, P.O. Kunjaban, PS- N.C.C.,
   District- West Tripura, PIN- 799010.

8. Dr. Partha Ranjan Bhattacharjee,
   Son of Unknown, Resident of Ramnagar Road No.6. P.O. Ramnagar,
   Agartala, PS- West Agartala, District- West Tripura, PIN- 799002.

9. Dr. Tejendra Bhakta,
   Son of Late Jatra Mohan Bhakta, Lecturer (Selection Grade), RIPSAT,
   P.O. Abhoynagar, PS- New Capital Complex, Kunjaban,
   District- West Tripura, PIN- 799005.

10.Dr. Tarun Kanti Ghosh,
  Son of Late Hari Mohan Ghosh, Lecturer (Selection Grade), RIPSAT,
  P.O. Abhoynagar, PS- New Capital Complex, Kunjaban,
  District- West Tripura, PIN- 799005.

11.Dr. Binoy Behari Goswami,
  Son of Late Bana Bihari Goswami, Resident of Old Kalibari Lane,
  Near Sky Lark Club, Krishna Nagar, Agartala P.O. Agartala,
  PS- West Agartala District- West Tripura, PIN- 799001.

12.Dr. Biplab De,
  Son of Bimal kanti De, Associate Professor, RIPSAT, P.O. Abhoynagar,
  PS- New Capital Complex, Kunjaban, District- West Tripura,
  PIN- 799005.

13.Dr. (Mrs.) Sabita Pal (Datta),
  Wife of Sri Binoy Krishna Datta, Associate Professor, RIPSAT,
  P.O. Abhoynagar, PS- New Capital Complex, Kunjaban,
  District- West Tripura, PIN- 799005.

14.Dr. Rishi Raj Chhetree,
  Son of Late Ram Chandra Chhetree, Associate Professor, RIPSAT,
  P.O. Abhoynagar, PS- New Capital Complex, Kunjaban,
  District- West Tripura, PIN- 799005.
                                                     .....Respondent(s)

For Petitioner(s) : Mr. K.N. Bhattacharjee, Sr. Advocate.

Mr. Daniel Debbarma, Advocate.

For Respondent(s) : Mr. D.K. Biswas, Sr. Advocate.

Mr. Somik Deb, Sr. Advocate.

Mr. G.K. Nama, Advocate.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

Date of hearing and judgment : 20.04.2021.

Whether fit for reporting     : No.


                      JUDGMENT & ORDER (ORAL)

(Akil Kureshi, CJ).

The petitioner has prayed for a direction to grant him AGP of

Rs.7,000/- on completion of 5 years of service as Assistant Professor with

consequential benefits. Before we record facts leading to this prayer of the

petitioner, we may record that in the petition as it was originally filed,

there were averments and allegations against private respondents with

matching prayers against granting certain service benefits to these private

respondents. However, subsequently this petition was amended so as to

drop this challenge. We have focused on the petitioner‟s principal prayer

for grant of higher AGP upon completion of 5 years service as an Assistant

Professor.

2. This prayer of the petitioner arises in following background:

The petitioner holds a Degree of M. Pharm, which he obtained from

Jadavpur University, Kolkata in the year 2004. After completing his

education, the petitioner first joined as a Lecturer at Gayatri College of

Pharmacy, Sambalpur University, Orissa. He, thereafter, appeared in

competitive examination conducted by the Tripura Public Service

Commission (TPSC) in the year 2005 and was selected and appointed to

the post of Lecturer (Pharmaceutics) in Regional Institute of

Pharmaceutical Science & Technology, Agartala under a Memorandum

dated 22.07.2006 issued by the Government of Tripura. The petitioner

accepted such job offer and joined as a Lecturer (Pharmaceutics) on

18.08.2006. It is not in dispute that the post of Lecturer was re-designated

as an Assistant Professor by All India Council for Technical Education

(„AICTE‟, for short).

3. The AICTE framed the All India Council for Technical Education

(pay scales, service conditions and qualifications for Teachers and other

Academic staff in Technical Institutions (Degree) Regulations, 2010

(hereinafter to be referred to as „AICTE Regulations, 2010‟) under a

Notification dated 22.01.2010. These Regulations would come into effect

from their publication in the Official Gazette which happened on

13.03.2010. Under these Regulations, it was provided that there shall be

only three designations in respect of teachers in Universities and Colleges

namely, Assistant Professors, Associate Professors and Professors. These

Regulations also provided Revised Pay Scales, Service conditions and

Career Advancement Scheme for teachers and equivalent positions.

Relevant portion of these Regulations reads as under:

"Revised Pay Scales, Service conditions and Career Advancement Scheme for teachers and equivalent positions: The pay structure for different categories of teachers and equivalent positions shall be as indicated below:

(a) Assistant Professor/Associate Professors/Professors In Technical institutions

(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.

(ii) An Assistant Professor with completed service of 4 years, possessing Ph.D Degree in the relevant branch/discipline shall be eligible, for moving up to AGP of Rs.7000.

(iii) Assistant Professors possessing Master's degree in the relevant branch/discipline as defined for technical education shall be eligible for the AGP of Rs.7,000 after completion of 5 years service as Assistant Professor.

(iv) Assistant Professors who do not have Ph.D or a Master's degree in the relevant branch/discipline of a program shall be eligible for the AGP of Rs.7,000 only after completion of 6 years' service as Assistant Professor.

(v) The upward movement from AGP of Rs.6000 to AGP of Rs.7000 for all Assistant Professors shall be subject to their satisfying other conditions as laid down by AICTE."

4. These Regulations made several other provisions with respect to

service conditions of teaching staff of AICTE controlled and Government

Colleges such as by providing age of superannuation, provision for

pension, family pension etc. It was provided that the Scheme would be

applicable to teachers in Technical institutions and other equivalent cadres

of Library in all AICTE approved institutions and the implementation of

the revised scales shall be subject to the acceptance of all conditions

mentioned in the letter as well as Regulations to be framed by AICTE in

this behalf. It was also provided that the Scheme may be extended to all

Technical institutions coming under the purview of the State Legislatures

provided State Governments wish to adopt and implement the Scheme

subject to certain terms and conditions. Relevant portion of these

Regulations reads as under:

"Applicability of the Scheme:

(i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Regulations to be framed by the AICTE in this behalf.

(ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc. who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government.

(iii) This Scheme may be extended to all technical Institutions coming under the purview of State legislatures, provided State Governments wish to adopt and implement the Scheme subject to the following terms and conditions:

Financial assistance from the Central Government to State Governments opting to revise pay scales of teachers and other equivalent cadre covered under the Scheme shall be limited to the extent of 80% (eighty percent) of the additional expenditure involved in the implementation of the revision.

The State Government opting for revision of pay shall meet the remaining 20% (twenty percent) of the additional expenditure from its own sources.

Financial assistance referred to in sub-clause (a) above shall be provided for the period from 1.01.2006 to 31.03.2010.

The entire liability on account of revision of pay scales etc. of teachers of AICTE approved Institutions shall be taken over by the State Government opting for revision of pay scales with effect from 1.04.2010.

Financial assistance from the Central Government shall be restricted to revision of pay scales in respect of only those posts which were in existence and had been filled up as on 1.01.2006.

State Governments, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme, and may give effect to the revised bands/scales of pay from a date on or after 1.01.2006; however, in such cases, the details of modifications proposed shall be furnished to the Central Government and Central assistance shall be restricted to the Pay Bands as approved by the Central Government and not to any higher scale of pay fixed by the State Government(s).

Payment of Central assistance for implementing this Scheme is also subject to the condition that the entire Scheme of revision of pay scales, together with all the conditions to be laid down by the AICTE by way of Regulations and other guidelines shall be implemented by State Governments and technical institutions coming under their jurisdiction as a composite scheme without any modification except in regard to the date of implementation and scales of pay mentioned herein above."

5. As per the said Regulations, the revised pay and allowances under

the Scheme would be effective from 01.01.2006.

6. The Government of Tripura accepted the said Scheme and issued a

consequential Notification dated 01.03.2013 revising the pay scales of the

teachers in Degree courses of Technical institutions. This Notification

provides that the Government of Tripura after careful consideration of the

matter had decided to introduce the Scheme for revised pay structure for

the teachers in Degree course of Technical institution as recommended by

AICTE under Notification dated 13.03.2010. The pay scales of Professors

were revised in tune with the AICTE Regulations, 2010. Their

designations were also changed to Assistant Professor, Associate Professor

and Professor. This Notification contained an Annexure in which terms

and conditions for introduction of the revised pay structure were outlined.

As per this Notification, the revised pay would be available effective from

01.01.2006. For upward movement in the AGP after completion of

prescribed years of service in the Grade, following provisions were made:

"(ii) An Assistant professor with completed service of 4 years, possessing Ph.D degree in the relevant branch/discipline shall be eligible for moving up to AGP of ₹7,000/-.

(iii) Assistant Professors possessing M.Phil degree in the relevant branch/discipline as defined for technical education shall be eligible for the AGP of ₹7,000/- after completion of 5 years' service as Assistant Professor.

(iv) Assistant Professors who do not have Ph.D or M.Phil degree shall be eligible for the AGP of ₹7,000/- only after completion of 6 years' service as Assistant Professor.

(v) The upward movement from AGP of ₹6,000/- to AGP of ₹7,000/- for all Assistant Professors shall be subject to their satisfying other conditions duly notified by the AICTE."

7. Comparison of the AICTE Regulations and the Regulations of the

Government of Tripura would show that as per AICTE Regulations, an

Assistant Professor possessing Master‟s Degree in the relevant subject

would be eligible for AGP of Rs.7,000/- after completion of 5 years of

service as Assistant Professor. As against this, an Assistant Professor, who

does not have Master‟s Degree would get AGP of Rs.7,000/- only after

completion of 6 years of service. In contrast, as per the Government of

Tripura Regulations, an Assistant Professor possessing M.Phil Degree in

the relevant field would be granted AGP of Rs.7,000/- after completion of

5 years of service as Assistant Professor whereas an Assistant Professor,

who does not have such Degree would be eligible for AGP of Rs. 7,000/-

only after completion of 6 years of service. This is where the grievance of

the petitioner arises. Since the petitioner does not have M.Phil Degree, as

per Government of Tripura Regulations, he has been granted higher AGP

of Rs.7,000/- after completion of 6 years of service. He contends that as

per AICTE Regulations, 2010 he should have been granted AGP of

Rs.7,000/- after completion of 5 years of service which he completed on

18.08.2011.

8. The petitioner first made representations to the authorities taking

this grievance and when the authorities failed to redress his grievance he

filed this petition. As noted, his prayer therefore, is for grant of higher

AGP of Rs.7,000/- upon completion of 5 years of service as Assistant

Professor with consequential benefits. He would point out that this would

have cascading affect on his further pay fixations and other service

benefits.

9. Learned senior counsel, Mr. K.N. Bhattacharjee for the petitioner

raised following contentions:

(i) The AICTE Regulations, 2010 have provided the terms and conditions

on which higher AGP would be granted to an Assistant Professor.

Government of Tripura cannot make Regulations for the said purpose

which run contrary to AICTE Regulations.

(ii) M.Phil course is not available in Pharmacy in India anywhere. Thus,

providing M.Phil as a requirement for higher AGP is a redundant

condition. Such condition should be read down as requiring Master‟s

Degree in Pharmacy.

(iii) Counsel submitted that the AICTE Regulations, 2010 also mandate

that the State Government must accept the Scheme in its entirety. Only

upon which the Central Government aid would be available for providing

revised pay scales to the teaching staff of Technical institutions.

Government of Tripura having accepted this Scheme, cannot deviate from

part thereof to the detriment of the employees.

10. On the other hand, learned special counsel Mr. D.K. Biswas for the

official respondents opposed the petition raising following contentions:

(i) Master‟s Degree is the entry level qualification for a teaching post in

Government Technical institutions. The petitioner therefore cannot insist

on being granted higher AGP after completion of 5 years of service.

(ii) As is well settled, the State Legislature can make conditions for

imparting technical education which are more stringent requiring higher

standards as those laid down by AICTE. As long as the Regulations

framed by the State Legislature, thus, are not in any manner lowering

down the standard of Technical education from those laid down by

AICTE, such Regulations would prevail. In this context, counsel relied on

the decision of the Supreme Court in case of Visveswaraiah Technological

University and another vs. Krishnendu Halder and others, reported in

(2011) 4 SCC 606.

(iii) Counsel lastly contended that the question of grant of pay and

allowances has to be decided by the State Government dependant on range

of facts and circumstances including the capacity of the Government to

weigh such additional burden.

11. Having thus heard learned counsel for the parties and having

perused documents on record, what emerges is that under AICTE

Regulations, 2010, the entire Scheme was framed for revision of pay scales

and other service conditions of teachers in educational institutions

approved by AICTE as well as run by the State Governments. This revised

pay structure would come into effect from 01.01.2006. As per these

Regulations, three grades of Professors would be recognized namely,

Assistant Professor, Associate Professor and Professor. An Assistant

Professor would be placed in the pay band of Rs.15,600 - 39,100/- with

AGP of Rs.6,000/-. An Assistant Professor upon completion of requisite

number of years of service depending on his qualifications would make

upward movement to AGP of Rs.7,000/- in following manner:

(i) If he possesses Ph.D Degree in the relevant field, he would be granted

AGP of Rs.7,000/- after 4 years of service.

(ii) If he possesses Master‟s Degree in the field he would get such higher

AGP after 5 years of service.

(iii) An Assistant Professor who neither has Ph.D Degree nor Master‟s

Degree would get AGP of Rs.7,000/- after completion of 6 years of

service.

12. As against this, as per the Regulations of the State Government,

upward movement in the AGP from Rs.6,000/- to Rs.7,000/- would be

granted subject to following conditions:

(i) For an Assistant Professor with Ph.D Degree, the higher AGP would be

available after completion of 4 years of service.

(ii) For an Assistant Professor possessing Degree of M.Phil, such benefit

would be available after completion of 5 years.

(iii) An Assistant Professor, who possesses neither Ph.D nor M.Phil

Degree would be granted AGP of Rs.7,000/- after 6 years of service.

13. Thus, for an Assistant Professor in Government Technical institution

to claim benefit of higher AGP after 5 years of service, he or she must

possess a Degree in M.Phil and a mere Master‟s Degree in the relevant

field would not be sufficient. This is in contrast to the provisions made by

AICTE in the said Regulations for grant of higher AGP of Rs.7,000/- upon

completion of 5 years of service as Assistant Professor to an employee,

who holds Master‟s Degree in the field. Short question is, was it open for

the State Government to make this requirement more stringent in order to

grant higher AGP after completion of 5 years.

14. We do not find force in the submission of the counsel for the

petitioner that since there is no institution in India awarding Degree of

M.Phil in Pharmacy, such condition must be seen as redundant or which

requires reading down. This is so because these requirements and

prescriptions of pay scales are general for all teachers in Technical

education under the State Government and not confined to Pharmacy

teachers alone. Even if in the branch of Pharmacy, M.Phil Degree is not

available, the incumbent cannot hope to make upward movement after

completion of 5 years which would be contrary to the Regulations framed

by the State Government.

15. At the same time, we also do not see this apparent conflict in the

Regulations framed by AICTE and those framed by the State Government

as one concerning the standard of education. The pay and allowances and

in particular, the period after which a teacher can make upward movement

in the AGP, in isolation cannot be seen as having impact on the standards

of education in Technical institutions. The decision of Supreme Court in

case of Visveswaraiah Technological University (supra) on which reliance

has been placed by the counsel for the official respondents concerns the

fixation of eligibility criteria higher than the minimum prescribed by the

central governing body for admission in educational institutions. In this

context, it was held that even though the seats remain vacant for concerned

year, higher eligibility criteria fixed by the University/Government cannot

be relaxed even if it is above the minimum eligibility criteria suggested by

AICTE. It was in this context held and observed that while prescribing the

eligibility criteria for admission to institutions of higher education, the

State or University cannot adversely affect the standards laid down by

central body such as AICTE, but prescribing higher standards for

admission by laying down qualifications in addition to or higher than those

prescribed by AICTE, which are consistent with the object of promoting

higher standards an excellence in higher education was not impermissible.

16. The crux of the issue in this case is, in face of certain prescriptions

made by the AICTE in the said Regulations of 2010, was it open for the

State Government to deviate from the prescriptions of pay scales contained

in the said Regulations. We have reproduced relevant portion of the

AICTE Regulations, 2010. In the context of the applicability of the

Scheme it was provided that the same would be applicable to teachers in

Technical institutions and other cadres in all AICTE approved institutions

and the implementation of the revised scale will be subject to the

acceptance of all conditions mentioned in the Scheme as well as in the

Regulations framed by the AICTE in this behalf. It was further provided

that the Scheme would be extended to all Technical institutions under the

purview of the State Legislatures "provided State Governments which to

adopt and implement the Scheme subject to the following terms and

conditions". One of the conditions was that the financial assistance from

the Central Government to the State Governments to implement revised

pay scales of the teachers and other equivalent cadres covered under the

Scheme would be available to the extent of 80% of the additional

expenditure involved. The State Government would bear the remaining

burden of 20%. Such financial assistance would be provided for the period

between 01.01.2006 to 31.03.2010. It was also provided that the State

Governments considering other conditions may decide to introduce scales

of pay higher than those mentioned in the Scheme. It was provided that

payment of Central assistance would be subject to the condition that the

entire Scheme of revision of pay scales together with all conditions laid

down by AICTE by way of Regulations and other guidelines shall be

implemented by the State Governments without any modification except in

regard to the date of implementation to the scales of pay mentioned in the

Scheme.

17. Few things become clear from these provisions made by the AICTE

in the said Regulations. Firstly, the State Governments were free to adopt

the Scheme. However, the Central aid would be available only if the

Scheme is accepted in its entirety along with all terms and conditions and

guidelines. Only liberty to the State Legislatures would be with respect to

granting higher benefits than those prescribed under the Regulations and of

the choice of the date from which the revised pay scales would be

implemented. The State Government accepted this Scheme along with

Central assistance. The State Government was therefore bound by the

terms and conditions of this Scheme. It was thereafter not open for the

State Government to deviate from the various provisions contained in the

said Scheme to the detriment of the teaching staff. By way of the

impugned Regulation, the State Government has deferred the grant of

higher AGP to an Assistant Professor not possessing Degree of M.Phil but

possessing only a Master‟s Degree in the relevant field by one year. This in

our opinion was not permissible. The said Regulation, therefore, must be

read down and the petitioner must get the benefit of higher AGP as

prescribed by the AICTE Regulations, 2010. In other words, since the

petitioner was holding the Master‟s Degree in the relevant field, he would

move to higher AGP of Rs.7,000/- after completion of 5 years of service.

However, there was considerable delay in raising this claim and thereafter,

approaching the Court. The petitioner completed 5 years of service on

18.08.2011. The Government of Tripura framed the Rules for grant of

revised pay scale in tune with AICTE Regulations under Notification dated

01.03.2013. The petitioner made the first representation to the authorities

for grant of higher AGP after completion of 5 years on 13.06.2016. The

petitioner may, therefore, get proper pay fixation with higher AGP of

Rs.7,000/- with effect from18.08.2011, but the same would be for notional

purposes till the date of his first representation dated 13.06.2016. Actual

arrears would be paid for the period thereafter. This pay revision would

have all consequential benefits. The respondents shall, therefore, carry out

the revised pay fixation of the petitioner in terms of the above directions

and pay the arrears within 6 (six) months from today.

18. Petition disposed of accordingly. Pending application(s), if any, also

stands disposed of.

  (S.G. CHATTOPADHYAY), J                       (AKIL KURESHI), CJ




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