TaxTMI 
TaxTMI 
2020 (2) TMI 1618
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....lants were quashed for want of the said qualification. Facts 3. Respondent No. 1 started teaching as a lecturer of electrical engineering at the Govt. Polytechnic College, Ambikapur on 10.11.1993 and was promoted as the Head of Department (hereinafter, "HOD") of electrical engineering at the Govt. Polytechnic, Durg from 03.03.2009. He is presently working at Govt. Polytechnic, Kabirdham with additional responsibility of Principal-in-charge. Having completed three years of service as HOD on 01.01.2012, Respondent No. 1 applied for the post of Principal in response to the process of promotion initiated by the State of Chhattisgarh (Respondent No. 2) in 2014. Along with Respondent No. 1, numerous other serving HODs (including the seven Appellants herein) too participated in the selection process. Whereas Appellants No. 1 to 7 were declared successful through notification dated 25.06.2014, the 1st Respondent did not figure in the selection list. 4. Respondent No. 1 being aggrieved approached the High Court, complaining that his fundamental rights stood violated as the promotion process was in contravention of the 'Pay Scales, Service conditions and Qualifications for the T....
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....es/anomalies pertaining to Qualifications, Pay Scales, Service Conditions, Career Advancement Schemes (CAS) etc. for Teachers and other Academic Staff of Technical Institutions Degree/Diploma), 2016' (hereinafter, "2016 AICTE Notification") which although published on 04.01.2016 would operate retrospectively being clarificatory in nature. Consequently, the High Court quashed the incongruous parts of 2014 Chhattisgarh Rules. 7. The High Court further observed how Appellant No. 1 was Chairman of the very Committee which drafted the 2014 Chhattisgarh Rules, making him an interested party. Noting yet other infirmity regarding the date of publication of 2014 Chhattisgarh Rules in the official gazette, the High Court quashed the order promoting Appellant Nos. 1 to 7 to the posts of Principal of the Polytechnic Colleges. Contentions 8. The distressed Appellants contend before us that there existed no ambiguity in the 2010 AICTE Regulations. These Regulations clearly mention "or" between two sets of qualifications, one in which Ph.D. was specified and the other without such prescription. It is submitted that the High Court could hence not have read it in a manner which convert....
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....s explained briefly in para 4 of this order with an explicit power to set up an Expert Body to regulate the standards and norms in technical education and for establishment of institutions imparting such education. It is not a matter of dispute that AICTE is a creation of the said statute and the Regulations framed by it in exercise of the powers under the AICTE Act, 1987 carry the force of law. Indeed, it has been accepted by learned Counsel for the parties that the 2010 AICTE Regulations would be the governing law, holding the field, and would bind all parties, including the State of Chhattisgarh. The foremost question which thus arises for our consideration is whether the 2010 AICTE Regulations, in fact, make it mandatory for candidates vying for the post of Principal to possess a Ph.D. degree? (i) Is Ph.D. mandatory for appointment to the post of 'Principal' under the 2010 AICTE Regulations? 13. The cause of the present controversy is not difficult to fathom. Prerequisite criteria for appointment to the post of Principal in a Polytechnic College has been provided under the 2010 AICTE Regulations in a tabulated form, relevant parts of which are extracte....
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....s in a 5-year relaxation in requisite work experience. In other words, Ph.D. has been treated equivalent to 5 years teaching experience. 16. The interpretation as propounded by Respondent No. 1 would necessarily mean that there is no power with a State Government to make Ph.D. optional, and that the higher of the two alternate criteria specified under the 2010 AICTE Regulations would be binding on all. We find such a plea is problematic on two counts. Firstly, it implies that Ph.D., specifically in 'Engineering' only, would be compulsory for all principals. This creates an inconsistency as such a restriction would be in conflict with the nature of 'experience' specified by the AICTE, like recognition of Experience Certificate granted by the Council for Architecture, which undoubtedly shows that there can be candidates other than from the field of 'Engineering' eligible for appointment as Principal. Secondly, such a contention would be iniquitous in so far as it disenfranchises HODs from multiple recognised departments from applying to the posts of Principal, and arbitrarily restricts the zone of consideration to Engineering HODs only. Such seems to be nei....
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....aching/research/ industry out of which at least 03 years shall be at the level of head of department. OR (1) Bachelor and Master degree of appropriate branch of Engineering/ Technology from a recognized University /Institute with First Class or equivalent at either Bachelor's or Master's level and Ph.D or equivalent in appropriate discipline in Engineering/ Technology from a Recognized University/Institute. (2) Minimum of 10 years relevant experience in teaching/research/ industry out of which at least 03 years shall be at the level of head of department or equivalent. HEAD OF DEPARTMENT 1 Civil/Mechanical/Electrical/El ectronics/Information Technology/Instrumentatio n/Metallurgy/ Mining/Chemic al/Computer Science and Engineering - 58 Years Bachelor's and Master's degree of appropriate branch in Engineering/ Technology from a Recognized University/Institute with First Class or equivalent at either Bachelor's or Master's level. OR Bachelor's and Master's degree of appropriate branch in Engineering/ Technology from a recognized University /Institute with First Class or equivalent at either Bachelor's or Master's level and Ph.D or....
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....ed by the 2010 AICTE Regulations and consequently the Appellants were ineligible to hold the posts of 'Principal'. The relied-upon Issue No. 64 reads as under: SI. No. Issue Clarification 64. Whether Ph.D is an essential qualification for the Post of Principal in Diploma Level Technical Institutions. Yes 23. The Appellants as well as the AICTE have drawn our attention to Issue No. 48 in the same table of 2016 AICTE Notification which, they contend, depicts a contrary picture. The relevant part of the 2016 Notification which has not been noticed by the High Court reads as under: SI. No. Issue Clarification 48. Whether a faculty of Engineering & Technology with minimum 10 years relevant experience in teaching/research out of which 3 years is in the same grade Pay (i.e. Rs. 9000) at par with HOD is eligible for the post of Principal in Polytechnic. Yes, provided the person also has an administrative experience of at least 3 years. 24. After going through the contents of the 2016 AICTE Notification in its entirety, we are of the opinion that the conclusion drawn by the High Court is erroneous for a variety of reasons. At the very ....
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....estates what has already been made explicit in the 2010 AICTE Regulations. There seems to be no intent to alter the position of law but instead only to simplify what the AICTE had resolved through its original Regulation. The 2016 AICTE Notification is a response to the doubts put forth to AICTE by the public. This is evident from the stand put forth by AICTE before us in its reply as well as during the course of hearing, namely, that there is no retrospective alteration in the qualification prescribed for the post of Principal. 27. Even if the 2016 AICTE Notification was clarificatory, it must be demonstrated that there was an ambiguity in the criteria for appointment to the posts of Principal, which needed to be remedied. Clarificatory notifications are distinct from amendatory notifications, and the former ought not to be a surreptitious tool of achieving the ends of the latter. If there exists no ambiguity, there arises no question of making use of a clarificatory notification. Hence, in the absence of any omission in the 2010 AICTE Regulations, the 2016 AICTE Notification despite being generally clarificatory must be held to have reiterated the existing position of law. ....
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.... an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing Rule is arbitrary, discriminatory and violative of the rights guaranteed Under Articles 14 and 16 of the Constitution.... 32. The aforestated principle would apply with equal force on the outcome of judicial review also and any new meaning given to a set of Rules/Regulations by the court of law would not ordinarily unsettle the settled appointments or conferment of other service benefits. We are, nevertheless, fully conscious of the legal position that appointment of a candidate who has erroneously secured public employment without fulfillment of minimum qualifications can always be annulled upon discovery of mistake. An appointment which is erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions. 33. There is no quarrel that the Appellants herein do not possess Ph.D. However, they satisfied the requirement of having fifteen years' experience (of which at least three years was as HOD) under the 2014 Chhattisgarh Rules an....