Gelus Ram Sahu and Others v. Dr. Surendra Kumar Singh and Others
JUDGMENT
1. Leave Granted.
2. The appellants are aggrieved by the order dated 28.09.2016 of
the High Court of Chhattisgarh through which the writ petition filed by
Surendra Kumar Singh (Respondent No. 1) seeking declaration of Ph.D.
being an essential qualification for the post of Principal at the Polytechnic
colleges was allowed and consequently appointment of the appell ants
were quashed for want of the said qualification.
Facts
3. Respondent No. 1 started teaching as a lecturer of electr ical
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 appel lants
herein) too participated in the selection process. Wherea s Appellants
No. 1 to 7 were declared successful through notification dated 25.06.2014,
the 1 st 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 Teachers and other Academic Staff in Technical
Institutions (Diploma) Regulations, 2010’ (hereinafter, “2010 AI CTE
Regulations”). These regulations were framed by All India Council for
Technical Education (Respondent No. 3, hereinafter “ AICTE”) in
exercise of its powers conferred under the AICTE Act, 1987 which has
been enacted by Parliament with reference to Entry 66 of the Union
List contained in Schedule VII of the Constitution; and is thus binding on
the State of Chhattisgarh (Respondent No. 2). The ‘C hhattisgarh
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA
KUMAR SINGH AND OTHERS
Technical Education (Teaching cadre-Polytechnic) (Gazetted) Service
Recruitment Rules, 2014’ (hereinafter, “2014 Chhattisgarh Rules”), in
so far as they allow candidates without Ph.D to be appointed as Principals,
were contended to be illegal for being in contravention of the 2010 AICTE
Regulations whereunder, according to respondent No. 1, Ph.D degree
was a mandatory qualification for the post of Principal.
5. Respondent No. 1 butressed his superior claim highlighting that
he had the requisite three-year HOD experience and the re was no
complaint or disciplinary enquiry pending against him. On the other hand,
he urged that the appellants had been promoted though none of the m
was having Ph.D qualification. He further alleged s everal other
irregularities in the selection process, including the below-specification
ACR gradings possessed by certain candidates. Accordingly, Respondent
No. 1 sought quashing of the 2014 Chhattisgarh Rules and the promotion
order dated 25.06.2014; review of the proceedings conducted by the
Departmental Promotion Committee and the grading awarded to him in
his Annual Confidential Reports of 2012 and 2013, and further sought
resultant reconsideration of his case for promotion from HOD to Principal.
6. The High Court viewed that the 2010 AICTE Regulations were
binding, and relying upon a decision of the High Court of Keral a in
B Ajith Kumar v. State of Kerala 1, it held that the State Government
could not lower the qualification threshold . Further, the High Court
interpreted the AICTE criteria to imply that Ph.D was man datory for
appointment/promotion as ‘Principal’ and any ambiguity which could
plausibly have existed in the initial formulation of 2010 AICTE
Regulations, had been clarified through the ‘All India Council for Technical
Education (clarifications on certain issues/anomalie s pertaining to
Qualifications, Pay Scales, Service Conditions, Career Adva ncement
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,
1 (2009) 3 KLJ 563
803
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 conver ted
“or” into “and”. It was further submitted that even if any ambiguity
existed, it was not open for the AICTE to retrospectively introduce an
eligibility condition in a manner which would expropriate the appellants
of their vested rights.
9. Highlighting how seven out of nine positions would remain
vacant in case a Ph.D degree was mandated as an essential qualification
for the posts of Principal in polytechnic colleges in C hhattisgarh, the
appellants vociferously sought intervention of this Court. They further
urged that having participated in the process of promotion, Respondent
No. 1 had acquiesced to the interpretation and understanding of the
Rules made by Respondent No. 2, and the former was now estoppe d
from challenging the validity of the selection-process or of the 2014
Chhattisgarh Rules.
10. Respondent No. 1, on the other hand, reiterated that the AICTE
is a statutory body established by the Parliament through the All India
Council for Technical Education Act, 1987, and thus enjoys complete
supremacy and superintendence over determination of standar ds for
technical education. All technical institutions across the country are obliged
to adhere to the minimum standards laid down by AICTE. Supporting
the High Court’s interpretation, he maintains that since the 2010 AICTE
Regulations mandated ‘Ph.D in Engineering’ as one of the essentia l
qualification for the post of Principal, the 2014 Chhattisgarh Rules were
ultra vires for having impermissibly relaxed mandatory qualifications.
The 1 st Respondent adverts to certain other procedural irregularities in
framing and publication of the 2014 Chhattisgarh Rules, and additionally
alleges that Respondent No. 2 not only violated the Chhattisgarh Public
Service Promotion Rules, 2003 but also arbitrarily altered the minimum
grading requirement to favour certain candidates.
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA
KUMAR SINGH AND OTHERS
11. Respondent No. 3 (AICTE) has submitted that it was not
their case that candidates who had already been promoted to the posts
of Principal despite not possessing Ph.D, should be removed. Drawing
attention to various relevant provisions of the 2010 AICTE Regulations
read with the 2016 AICTE Notification, learned counsel for AICTE urged
that any interpretation by this Court holding Ph.D mandatory ought only
be prospective in application, and not retrospective.
Analysis
12. The AICTE Act, 1987 has been enacted, as 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 educat ion 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 St ate of
Chhattisgarh. The foremost question which thus aris es for our
consideration is whether the 2010 AICTE Regulations, in fact, make it
mandatory for candidates vying for the post of Principal to pos sess 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 extracted below:
Post Qualifications Experience
PRINCIPAL
Qualification as above for the
post of Head of Department
and Ph.D in Engineering
OR
Qualification as above for the
post of Head of Department
Minimum of 10 years relevant
experience in
teaching/research/industry out of
which at least 3 years shall be at
the level of head of department or
equivalent.
In case of Architecture,
professional practice of 10 years
as certified by the Council of
Architecture shall also be
considered valid.”
805
14. Since the above reproduced clause enables a ‘He ad of
Department’ to occupy the next higher post of Principal `with’ or `without’
Ph.D qualification, it is necessary to find out the eligibility conditions laid
down for appointment of different Heads of Department. The releva nt
extracts of HOD criteria are thus illustratively reproduced hereunder:
Post Qualifications Experience
Head of Department
Engineering / Technology Bachelor’s and Masters degree of
appropriate branch in
Engineering / Technology with
First Class or equivalent either
Bachelor’s or Master’s level
OR
Bachelor’s degree and Master’s
degree of appropriate branch in
Engineering / Technology with
First Class or equivalent either
Bachelor’s or Master’s level and
Ph. D or equivalent, in
appropriate discipline in
Engineering / Technology
Minimum of 10 years relevant
experience in teaching /
research / industry.
Minimum of 5 years relevant
experience in teaching /
research / industry
NOTE: Since the qualifications and experience for the post of Heads of Pharmacy, Hotel
Management & Catering Technology and Architecture Departments are also identical except that
the qualification and experience must be only in th e relevant subjects, the same have not been
reproduced to avoid multiplicity.
15. A perusal of the qualification table makes it obvious that there
can be multiple HODs for different departments (like E ngineering,
Architecture, Hotel Management, Pharmacy etc). In order to be HOD
of any such Department, a prospective candidate needs to have both
Master’s and Bachelor’s degrees in the relevant fie ld. Whereas
candidates with a Ph.D must have had 5 years of experience in the
allied field, others without it must have worked for 10 years. Phr ased
differently, Ph.D is not mandatory for HOD, and instead results 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 Governme nt to
make Ph.D optional, and that the higher of the two alternate cri teria
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
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA
KUMAR SINGH AND OTHERS
Ph.D, specifically in ‘Engineering’ only, would be compulsory f or 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 candidate s
other than from the field of ‘Engineering’ eligible for appoin tment as
Principal. Secondly, such a contention would be iniquitous in so far as it
disenfranchises HODs from multiple recognised depart ments from
applying to the posts of Principal, and arbitrarily restr icts the zone of
consideration to Engineering HODs only. Such seems to be neither the
intent of the 2010 AICTE Regulations nor is it supported by any cogent
reasoning.
17. We are also not inclined to read down the rules to omit the ‘in
Engineering’ part and only selectively insist upon a ‘P h.D’, for in the
present facts it would amount to crossing the fine line between
interpretation and legislation. Hence, the only permissible way to read
the AICTE criteria would be to lay emphasis on the phrase “or” and
hence interpret ‘Ph.D in Engineering’ as being optional and it be ing
discretionary upon the adopting institution/State Government to specify
either of the two criteria.
18. This does not mean that we have not given due weightage to
Ph.D degree while interpreting the 2010 AICTE Regulations. A candidate
with Ph.D degree can become HOD with merely 5 years of work
experience, whereas candidates without Ph.D need to work for 10 years.
Although, requirement of experience for becoming Principal is 10 years
uniformly, it comes with a stipulation that 3 years must have been spent
as HOD or in an equivalent position. Thus, a candidate without Ph.D
would compulsorily need 10 years’ experience for HOD and would need
to work further 3 years in that capacity, i.e. for minimum of 13 years’
experience to become Principal. Those with a Ph.D on the other hand,
can apply for principal-ship within 10 years, as they would have become
eligible for HOD with 5 years experience, and could have completed the
further 3 years term as HOD in the interregnum. Hence, hypothetically,
there is a 5-year eligibility relaxation granted under AICTE Regulations
to those with a Ph.D.
19. The afore-stated advantage is only further exacerbated under
the 2014 Chhattisgarh Rules, where those without a Ph.D need 15 years’
experience and those with such higher degree, can be appointed within
10 years. This can be well demonstrated from the following extracts of
2014 Chhattisgarh Rules:-
807 GELUS RAM SAHU AND OTHERS v. DR. SURENDRA
KUMAR SINGH AND OTHERS
Sl.
No.
Name of posts
included in
service
Minimum age
limit
Maximum age
limit
Prescribed educational
education
Remarks
1 2 3 4 5 6
1 Principal - 58 years (1) Bachelor and Master
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.
(2) Minimum of 15 years
relevant experience in
teaching/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/Electronics/ Information
Technology/
Instrumentation/Metallurgy/Mining/Chemical/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 equivalent
in appropriate
discipline in
Engineering/
Technology from a
recognized
University/Institute.
Minimum
of 10
years
relevant
experience
in
teaching/
research/
industry.
Minimum
of 05
years
relevant
experience
in
teaching/
research/
industry.
xxx xxx xxx
20. Additionally, construction of 2010 AICTE Regulations this way,
avoids conflict with the 2014 Chhattisgarh Rules, as extract ed above.
Even otherwise, given a choice between two interpretations, one which
restricts the pool of applicants for public employment and another which
enfranchises many, it would befit the spirit of Article 16 that the expansive
interpretation is adopted. Such a recourse would b oth provide
opportunities to a wider meritorious class, will increase competition and
concomitantly ensure meritorious selections.
(ii) Does the 2016 AICTE Notification retrospectively ‘clarify’
eligibility conditions for appointment as ‘Principal’?
809
21. The next question which logically arises is whether the
notification issued by the AICTE in 2016 changes the eligibility conditions
which are explicit in the 2010 AICTE Regulations, as discussed above.
22. The 2016 AICTE Notification has made a significant impact
upon the High Court’s determination of the present dispute. The High
Court has held that the said Notification, clearly specified through Issue
No. 64 that Ph.D was compulsory for all Principals. As the notification
was ‘clarificatory’, it was held applicable retrospectively which would
remove any ambiguity created 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.
Iss ue Clarification
64. Whether Ph.D is an essential qualification for the P ost 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 Notificati on which,
they contend, depicts a contrary picture. The relevant part of the 2016
Notification which has not been noticed by the High Court reads a s
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 sa me
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 draw n by the
High Court is erroneous for a variety of reasons. At the very outset, no
attempt appears to have been made to determine the nature of the 2016
AICTE Notification, as to whether it supplements an obvious omission
in the 2010 AICTE Regulations and most importantly its effect on those
who have meanwhile acquired vested rights.
25. ‘Clarificatory’ legislations are an exception to the general rule
of presuming prospective application of laws, unless given retrospective
effect either expressly or by necessary implication.In order to attract
this exception, mere mention in the title or in any provisi on that the
legislation is ‘clarificatory’ would not suffice. Instead, it must substantively
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA
KUMAR SINGH AND OTHERS
be proved that the law was in fact ‘clarificatory’, as noted by this Court
in Virtual Soft Systems v. CIT 2:
“50. It may be noted that the amendment made to Section 271
by the Finance Act, 2002 only stated that the amend ed
provision would come into force with effect from 1-4 -2003.
The statute nowhere stated that the said amendment was eithe r
clarificatory or declaratory. On the contrary, the statute state d
that the said amendment would come into effect on 1-4-2003
and therefore, would apply only to future periods and not to
any period prior to 1-4-2003 or to any assessment year prior
to Assessment Year 2004-2005. It is the well-settled legal
position that an amendment can be considered to be
declaratory and clarificatory only if the statute itself expressly
and unequivocally states that it is a declaratory a nd
clarificatory provision. If there is no such clear statem ent in
the statute itself, the amendment will not be considered to be
merely declaratory or clarificatory.
51. Even if the statute does contain a statement to the effe ct
that the amendment is declaratory or clarificatory, that is not
the end of the matter. The Court will not regard itself as being
bound by the said statement made in the statute but will
proceed to analyse the nature of the amendment and then
conclude whether it is in reality a clarificatory or declara tory
provision or whether it is an amendment which is intended to
change the law and which applies to future periods.”
(emphasis supplied)
26. The present case is one where except for the title, nothin g
contained therein indicates that the 2016 AICTE Notifi cation was
clarificatory in nature. The said Notification is framed i n a question-
answer style and merely restates what has already been m ade 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.
2 (2007) 9 SCC 665.
811
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. Clarif icatory
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 .
28. As discussed earlier, there were no two interpretations possible,
and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in no
uncertain terms, reprised the substance of 2010 AICTE Regulations.
(iii) Whether retrospective changes in qualificator y requirements
can affect the existing appointments?
29. Having held that the 2016 AICTE Notification is only
complementary to what the AICTE had laid down in 2010, we may
hasten to add that even in a situation where eligibility conditi ons are
clarified from an anterior date, it may not be prudent to affect the
appointments which had been made on the basis of a possible
understanding of the eligibility conditions.
30. This Court in a range of decisions including TR Kapur v.
State of Haryana 3, K Ravindranath Pai v. State of Karnataka 4 and
K Narayanan v. State of Karnataka 5, has opined that vested rights
cannot be impaired by enacting law with retrospective eff ect and that
such statutory rules ought not to result in any discrimination or violation
of constitutional rights.
31. The law on vested rights in service matters has exhaustively
been elaborated in Railway Board v. Rangadhamiah, 6 wherein it has
been stated:
“20. It can, therefore, be said that a rule which operates in futuro
so as to govern future rights of those already in servi ce cannot be
assailed on the ground of retroactivity as being violative of Articles
14 and 16 of the Constitution, but a rule which see ks to reverse
from an anterior date a benefit which has been granted or avai led
of, e.g., promotion or pay scale, can be assailed as being violative
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA
KUMAR SINGH AND OTHERS
3 1986 Supp SCC 584.
4 1995 Supp (2) SCC 246.
5 1994 Supp (1) SCC 44.
6 (1997) 6 SCC 623
of Articles 14 and 16 of the Constitution to the exten t it operates
retrospectively.
xxx
24. In many of these decisions the expressions “vested rig hts”
or “accrued rights” have been used while striking down t he
impugned provisions which had been given retrospect ive
operation so as to have an adverse effect in the ma tter of
promotion, seniority, substantive appointment, etc. , of the
employees. The said expressions have been used in the contex t
of a right flowing under the relevant rule which was sought
to be altered with effect from an anterior date and thereby
taking away the benefits available under the rule in force at
that time. It has been held that such an amendment having
retrospective operation which has the effect of taking away a
benefit already available to the employee under the existi ng
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 with out
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 indefeas ible
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 20 14
Chhattisgarh Rules and were found suitable for promo tion by the
Departmental Promotion Committee on the basis of var ious other
material. They have also been found in possession of one of the eligibility
criteria prescribed under the 2010 AICTE Regulations. We are, thus, of
the considered opinion that the appellants’ appointments ought to remain
undisturbed in any eventuality.
813
34. This takes us to the last objection taken by the High C ourt
regarding ‘conflict of interest’. It is not in disp ute that the State
Government had inducted Appellant No. 1 in a Commit tee which
submitted the draft service rules. It is, however, difficult to accept (nor
has it been alleged) that the said appellant held a position through which
he could influence the rule-making authority to exercise its powers under
Proviso to Article 309 of the Constitution as per his wi shes. He was
holding too small a position that no inference of his dominance in the
decision making process can be drawn.
Conclusion
35. In the light of the above discussion, the appeals are allowed.
The judgment of the High Court is set aside and the writ petition filed by
Respondent No. 1 challenging the promotion of appellants is dismissed
but without any order as to costs.
Nidhi Jain Appeals allowed
GELUS RAM SAHU AND OTHERS v. DR. SURENDRA
KUMAR SINGH AND OTHERS