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The Societies Registration Act, 1860
Article 14 in The Constitution Of India 1949
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Madras High Court
S.Palanivel vs The Principal on 26 November, 2009

DATED:26.11.2009

CORAM

THE HON'BLE MR. JUSTICE N.KIRUBAKARAN

W.P.No.10049 of 2004

S.Palanivel ... Petitioner

vs

1.The Principal

Pondicherry Engineering College,

Pondicherry-605 014.

2.The All India Council for Technical

Education rep. by its Member Secretary,

Indira Gandhi Sports Complex, I.P.Estate,

New Delhi-110 002. ... Respondents

This petition is filed under Article 226 of the Constitution of India praying for the issuance of Certiorarified Mandamus to call for the records relating to the order No.PEC/Estt./E11/Per/2004/No.1389 dated 23.3.2004 passed by the first respondent and quash the same as being illegal, arbitrary and unconstitutional and consequently direct the Ist respondent to grant the benefit of career advancement to the petitioner by counting his past equal/equivalent benefits, including seniority and monetary benefits and award costs.

For Petitioner ... Mr.V.Perumal

For Respondents ... Mrs.N.Mala

Government Advocate (P) for R1

Mr.N.Muralikumaran

Standing counsel for R2

ORDER

The writ petitioner is before this court challenging the order passed by the first respondent regarding counting of petitioner's past service in equal/equivalent posts for the purpose of career advancement scheme which is kept in abeyance for want of approval from Ministry of Human Resources Development (MHRD) and that his past services rendered in the post equivalent would be considered for reception of approval from the Ministry.

2. The case of the petitioner is that he is a post graduate in Structural Engineering and he joined in the first respondent engineering college as a lecturer on 26.11.1999 in civil engineering department and continue to work their. Previously he was working as a lecturer in the Regional Engineering College, Warangal from 5.8.2003 to 18.3.1997 and as Scientist Grade-IV (1) at the Structural Engineering Research Centre CSIR, Chennai from 19.3.97 to 25.11.1999 and put more than six years of service in a grade which is equal/equivalent to the grade of Lecturer in the first respondent college. It is the further contention of the petitioner under the guidelines issued by the the second respondent, minimum length of service for eligibility to move into the grade of lecturer (Senior scale) is four years for those with Ph.D and five years for those with M.Phil/M.E./M.Tec. and to get benefits under the carrier advancement scheme. The second respondent issued guidelines to count past service of the candidate rendered in a equivalent post out side the institution in respect of Diploma Level Technical Institution. It is stated in regulation 2.00 of "Carrier Advancement Scheme in the University Grants Commission" (minimum qualifications required for appointment of teachers in Universities, colleges and other Institutions affiliated to it). The counting of past service has been stated in regulation 8.0.0 of "U.G.C. notification on revision of pay scales, minimum qualifications for appointment of teachers in Universities & colleges and other measures for the maintenance of standards 1998", which is extracted as follows: "Previous service, without any break as a Lecturer or equivalent, in a university, college, national laboratory, or to her scientific organisations, i.e. CSIR, ICAR, DRDO, UGC, ICSSR, ICHR and as a UGC Research Scientist, should be counted for placement of lecturer in Senior Scale/Selection Grade provided that: 8.1.0 The post was in an equivalent grade/scale of pay as the post of lecturer,

8.2.0 The qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of lecturer,

8.3.0 The candidates who apply for direct recruitment should apply through proper channels;

8.4.0 The concerned Lecturers possessed the minimum qualifications prescribed by the UGC for appointment as Lecturers,

8.5.0 The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/Central/Institution's regulations; 8.6.0 The appointment was not ad-hoc or in a leave vacancy of less than one year duration. Ad hoc service of more than one year duration can be counted provided-- (a) the ad hoc service was of more than one year duration;

(b) the incumbent was appointed on the recommendation of duly constituted Selection committed; and

(c) the incumbent was selected to the permanent post in continuation to the ad hoc service, without any break. "

3. The petitioner contends that he is eligible for carrier advancement Scheme and his past services rendered as a lecturer in Warangal Regional Engineering College and as a scientist in Structural Research Centre (CSIR) totally about six years, have to be taken as past services which are equivalent to the post of lecturer. The petitioner represented to the first respondent to count his past services and the same was not considered. Hence the petitioner was compelled to obtain an order from this court on 19.12.2002 in W.P.No.45552 of 2002 directing the first respondent to consider the petitioner's representation. By an order dated 5.2.2003 the petitioner was informed by the first respondent that there was no provision to count his past service and grant him senior scale under the Carrier Advancement Scheme for the faculty of the first respondent, which has been framed under the guidelines of UGC and that the petitioner's services from 1999 alone would be considered for "Carrier Advancement Scheme".

4. Pursuant to the order passed in W.P.No.28963 of 2003 filed by the petitioner, the second respondent issued the communications dated 19.11.2003 and 11.2.2004 stating that the second respondent decided to adopt the guidelines framed by UGC in Clause 8.0.0 for counting past services of teachers of Degree Level Technical Institution. On receipt of the said communications from the second respondent, the petitioner represented to the first respondent on 3.12.2003 requesting it to count petitioner's past services as per AICTE guidelines and the first respondent issued a reply dated 7.1.2004 reiterating the original stand that service rendered in pondicherry college above is considered for placing lecturers in senior scale/selection grade under advancement scheme and the petitioner's representation would be considered by placing the same before the General Body. Though the petitioner got admission for Ph.D. under the Quality Improvement Programme by the Indian Institute of Technology, Madras and was selected for the Quality Improvement Programme (QIP) in the Indian Institute of Science, Bangalore, he was not permitted to go on study. AICTE by letter dated 11.2.2004 informed the petitioner that it adopted the guide lines framed by UGC (Clause 8.0.0) for counting of past service to teachers of Degreee level Technical Institution.

5. When things stand so, the first respondent issued the impugned order dated 24.3.2004 stating that the counting of past service for other equivalent post is still continued to be kept in abeyance for want of approval from the Ministry of Human Resource Developments. Aggrieved by that the petitioner has come before this court by way of filing this writ petition.

6. The first respondent college filed counter statement stating that the college is run by a Society registered under the Societies Registration Act and sponsored by Government of Union Territory Pondicherry and stated that the first respondent college is governed by an administrative body of the college, which has framed its own regulations relating to the conditions of service of the employees viz. both the members of teaching faculties as well as administrative staff. Regarding the claim of the petitioner placement to senior scale and selection grade scale, it is stated that the college is bound to take only the service of the employee in the first respondent, and that first respondent was not intimated about the adoption of UGC guidelines issued by AICTE for counting of past service in other institutions. It is further stated in para 6 of the counter affidavit that even if the said communication is received from AICTE, it is not binding on the college and it cannot accept any recommendations of AICTE, unless it is approved by the Governing Body.

7. In para 8 of the counter affidavit it is categorically stated that UGC itself pointed out that even in para 8.0.0 it is stated it is the guideline and not a direction which is mandatory. In para 17 of the counter affidavit, it is stated that ACTE guidelines are not mandatory in respect of service conditions of the first respondent institution and AICTE has no jurisdiction to the service matters of the employees of technical institution as could be seen in Section 10(1) of the AICTE Act 1987. With regard to the service matter of the employees of the college including the teachers the decision of the Governing Body will be binding on the college and not the guidelines of the AICTE or UGC.

8. Mr.V.Perumal, learned counsel appearing on behalf of the petitioner submitted that the petitioner is qualified for considering his past experience as lecturer as per regulation 8.0.0 of UGC notification on Revision of Pay Scale. His past service is proved by service certificate dated 15.4.1997 issued by the Regional Engineer College, Warangal as lecturer in Civil Engineering Department for the period from 5.8.1993 to 18.3.1997 and by the certificate dated 23.3.2000 issued by the Structural Engineering Research Centre (CSIR) as Scientist Grade IV (1) from 19.3.1997 to 25.11.1999 and if the first respondent has considered the past service of the petitioner as per the UGC notification referred to above, he is entitled to be considered for Carrier Advancement Scheme as per regulation 2.0.0 of University Grants Commission Regulation 2000 and he is eligible for accelerated promotion by virtue of seniority to the post of lecturer (senior scale) and thereafter by virtue of seniority he can be promoted as lecturer (Selection grade). He further submitted that the petitioner is eligible to be appointed as lecturer pursuant to decision to implement the recommendations of VI Pay Commission.

9. Mr.Perumal, further submitted that the Universities and colleges in the country are governed by UGC Act and without recognition from the UGC, no university can confer any degree to students. Moreover learned counsel for the petitioner submitted that the first respondent institution is a Technical Higher Education Institution and is governed by All Indian Council for Technical Education, which has been formed pursuant to enactment of AICTE 1987 Act. The council is entrusted to form programmes for co-ordinated development of technical education in the country. When the parliament passed UGC and AICET Acts, the first respondent has no exception under the Act and the same is bound by the Acts and it cannot be exempted from the Act.

10. Apart from that petitioner's counsel submitted that by an order dated 26.11.2006, the Ministry of Human Resources Development Department informed that guidelines of UGC were approved by the Ministry of Human Resources Development to count past service for the purpose of promotion under the Carrier Advancement Scheme (CAS) of UGC in the cadre of Lecturer i.e. from the Lecturer to Senior Grade Lecturer/Selection Grade Lecturer. When the Ministry of Human Resources Development already approved the UGC guidelines, the reasons cited by the first respondent institution are of no avail. In that event, the petitioner is entitled to the relief as prayed for. He further submitted that this is a classic case of discrimination by the first respondent by which the petitioner alone was isolated, whereas the other lecturers similarly placed like petitioner, whose past services were taken into consideration by the first respondent institution. The following persons' past services rendered in other institutions were taken into consideration for Senior Scale. The said information was obtained by the petitioner under right to information Act by communication dated 29.11.2006. DETAILS OF LECTURERS WHOSE PAST SERVICES CONSIDERED FOR SENIOR SCALE

Sl.No.

Name

Name and address of the institution

Designation

Period from to

1

2

3

4

5

1

Dr.R.Sekar

Nil

2

Dr.S.Nagarajan

SRM College of Engg.,

Chengalpet

Lecturer

5.10.85 to

30.6.88

3

S.Chandramathy

C.I.T.,

Associate Lecturer

6.8.84 to

1.4.87

4

S.Kothandaraman

C.I.T., Coimbatore

Associate Lecturer

20.9.82 to 17.7.86

5

Dr.P.A.Padmanabhan

D.B.Jain College, SRM Eng.College

Asst. Professor Lecturer

27.7.83-14.8.87

5.10.85- 31.3.87

The past services rendered in other institution was taken into consideration for granting of Senior Scale.

10. Petitioner's counsel relied upon a judgement of the Hon'ble Supreme Court with regard to on the ground of discrimination in the case of Food Corporation of India and others Ashis Kumar Ganguly and others reported in 2009 (7) SCC 734 and in State of Haryana and others versus Gurcharan Singh and others reported in (2004) 12 SCC 540. Learned counsel for the petitioner also relied upon a judgement of the Division Bench of this court in Secretary, Kamaraj College, Thoothukudi versus D.S.Arulmani, Reader and Head of Department of Tamil, Kamaraj College, Thoothukudi and others reported in (2008) 2 MLJ 593. wherein UGC regulations were challenged and this court held that the universities and colleges affiliated to the universities are bound to follow UGC regulations; Learned single judge of this court in Jeevarathinam(Ms.) and others versus Government of Tamilnadu represented by Secretary to Government, Law Department, Chennai and others reported in (2008) 7 MLJ 1074 has held that when UGC regulations has been accepted by the government, there cannot be any direct recruitment for the post of lecturers (senior scale) and such status is given under accelerated promotion after six years of service as lecturer. By relying upon the said judgement, learned counsel pointed out that UGC regulation and guidelines for appointment in the first respondent institution have already been approved by the Ministry of Human Resources Development, the petitioner is entitled to have his past service to be counted for Carrier Advancement Scheme.

12. On the other hand Mrs.Mala, learned counsel for the first respondent reiterating the counter filed by the first respondent submitted that governing body of the institution has to pass resolution with regard to adopting guidelines for its employees. "AICTE notification on revision of pay scales and associated terms and conditions of service of Teachers, Librarians and Physical Education personnel of Degree level Technical Institutions" which states in clause 15.1 that the implementation of the revised scale of pay would be subject to acceptance of all the conditions mentioned in the scheme as well as other terms and conditions issued by the AICTE in this behalf. By relying upon the said terms, he submitted that AICTE itself has accepted the importance of the decision to be taken by the institutions. When such is the position only after getting approval from the general body, the instructions could be implemented by the first respondent.

13. Mr.N.Muralikumaran, learned Assistant Central Government Standing counsel submitted that the UGC guidelines as well as AICTE guidelines are binding on all the universities and the institutions/colleges affiliated to the universities. The aforesaid fact has been recognised by various judgements of the Hon'ble Supreme Court as well as of this court. He further submitted the higher education comes within the purview of the Central Government under Entry 66 of List I to the VII schedule of the Constitution of India. Even the State Government has got no power to frame rules with regard to higher education. For Development of Higher Education, the Central Government Council ACT was formed and therefore the institution has no exception and is bound to follow the guidelines issued by the AICTE. This position has been recognised by the Hon'ble Supreme Court in Prof.Yashpal and another P.Chattisgar versus State of Chhattisgarh and others reported in (2005) 5 SCC 420 and in Jaya Gokul Education Trust versus Commissioner & Secretary to Government Higher Education Department, Thiruvananthapuram and another reported in AIR 2000 SC 1614.

14. It is not in dispute that the petitioner had worked as lecturer in Regional Engineering College Warangal and as a scientist Grade IV at Structural Engineering Research Centre, CSIR, Chennai for more than six years. When UGC and AiCTE regulations unequivocally stated that past services of the candidates have to be considered for Career Advancement Scheme to move into cadre of Senior scale, the first respondent institution is bound to follow the same. As rightly pointed out by Mr.V.Perumal, learned counsel for the petitioner as well as Mr.N.Muralikumaran, learned Central Government Standing counsel, the first respondent institution cannot insist the guidelines from the second respondent. The regulations are subordinate legislation and they are to be treated as statute. When such is the position, the stand of the second respondent that guidelines are to be approved by a resolution of first respondent's general body has no leg to stand and it has to be negatived. If such a stand is to be approved, it would be ultravires of UGC Act and AICTE and it will not be in the interest of development and acceleration of Career Advancement scheme for higher education in this country. It is seen from petitioner's typed set of papers that Anna University, Chennai counted past service of one Mr.R.Bhuvaneswaran for career advancement as early as on 10.8.1999. When that is the position, there cannot be any prohibition for the first respondent to follow the same.

15. The courts have recognised the importance of All India Councils for higher education namely medical council in the medical field and technical council for technical education. These councils are expert bodies and they are alone competent to give guidelines in the respective fields. When such is the position, the stand taken in the counter affidavit filed by the first respondent that AICTE regulations are not mandatory in respect of service condition and that the State has no jurisdiction on service matters are all without any substance and such contention should not be allowed to be raised by the institution, which will go against the intention of the legislature/parliament and it has to be discourage and condemned.

16. As rightly pointed out by Mr.Perumal, learned counsel for the petitioner that the first respondent institute itself has taken into consideration the past services of Dr.Nagarajan, Mr.S.Gothandaraman and Dr.Paramanandan for senior scale. Subsequently in 57th governing body of the Engineering college (Pondicherry) Society held on 16.2.2006 adopted the revised Career Advancement Scheme issued by the AICTE by the first respondent college. In view of the above subsequent development also, the petitioner has to succeed in the writ petition. Even otherwise, by G.O.Ms.No.103 dated 22.9.2009, the government of Pondicherry implemented VI Pay Commission recommendation and thereby the petitioner is eligible to be appointed as lecturer. There is no reason available for the first respondent to deny the said right to the petitioner, which only go to show that the petitioner alone was subject to discriminatory treatment for no fault on his part. Violating Article 14 of the Constitution of India as held by the Hon'ble Supreme Court, in (2009) 7 SCC 734 and 2004 (12) SCC 540 there cannot be discrimination between similarly situated. Therefore the petitioner should be extended the same benefit given to the aforesaid similarly placed persons.

17. For the reasons stated above, this court includes that non-consideration of petitioner for movement to the higher scale is arbitrary and the impugned order passed by the first respondent is liable to be quashed and the first respondent is directed to grant the benefits of Career Advancement Scheme to the petitioner by taking his past service as per the guidelines of the second respondent with all benefits including seniority and monetary benefits. This case is a fittest case to award heavy cost against the first respondent for taking a stand which is against the Acts and guidelines framed by UGC and AICTE and also against settled position of law laid down by the Supreme Court as well as this court. However this court is not slapping any cost due to judicial restraint. Accordingly the writ petition is allowed. 26.11.2009

Internet : Yes

Index : Yes

vk

To

1.The Government of Tamil Nadu

rep. by the Secretary to the

Government, Education Department,

Fort St.George, Chennai-600 009.

2.The Director of School Education,

College Road, Chennai-600 006.

3.The Assistant Elementary Educational

Officer, Avanasi, Coimbatore District.

S.KIRUBAKARAN, J.

vk

W.P.No.10049 of 2004

26.11.2009