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2019 Supreme(Gau) 951
IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, J.
Ratan Kumar Ghosh And Others - Appellants
Vs.
State of Assam And Others - Respondents
Writ Petition (Civil) No. 348 of 2016, 1721 of 2016
Decided On : 28-08-2019
D. Das, Adv., P.K. Deka, Adv., I.H. Laskar, Adv., K. Gogoi, Adv., S.K. Talukder, Adv., P. Kakati, Adv., S. Chutia, Adv., K. Mohammad, Adv., D. Mazumder, Adv., J.H. Laskar, Adv., K.N. Choudhury, Adv., J. Patowary, Adv., M. Barman, Adv., S. Saikia, Adv.
Headnote:
PHD REQUIREMENT - PRINCIPAL POST - AICTE REGULATIONS - ASSAM TECHNICAL EDUCATION SERVICE RULES - APPLICABILITY - INTERPRETATION - COURT ANALYSIS AND CONCLUSION: 1. Requirement of Ph.D. for appointment to the post of Principal in Government Polytechnic Colleges under the Directorate of Technical Education Department, Assam, is governed by AICTE Regulations and Assam Technical Education Service Rules. 2. AICTE Regulations, being a Parliamentary enactment, prevail over State Rules. State Government can't delay or prevent implementation of AICTE norms. 3. AICTE Regulations of 2010 requiring Ph.D. for Principal post became effective from the date of notification (05.03.2010), not from any subsequent date decided by the State Government. 4. Vacancies arising after 05.03.2010 require Ph.D. and other AICTE qualifications; vacancies before 05.03.2010 can be filled without Ph.D. subject to other Assam Rules conditions. 5. State Government can't substitute AICTE's experience criterion (10 years, including 3 years as HOD) with a lower alternative (6 years as Lecturer Selection Grade). 6. Appointments contrary to these directions must be recalled, and fresh consideration for promotion/appointment must be made accordingly. 7. Vacant posts may be filled temporarily from eligible candidates in lower grades based on seniority till regular appointments are made.
Fact of the Case:
Petitioners, serving as Heads of Departments (HODs) in various Government Polytechnics, challenged the requirement of Ph.D. for appointment to the post of Principal, arguing that it was not a requirement under the relevant rules in Assam. The State Government had adopted AICTE regulations in 2016, making Ph.D. mandatory for the post.
Finding of the Court:
The court held that the requirement of Ph.D. for appointment to the post of Principal became effective from the date of notification of AICTE Regulations in 2010, not from any subsequent date decided by the State Government. Vacancies arising after 05.03.2010 require Ph.D. and other AICTE qualifications, while vacancies before that date can be filled without Ph.D. subject to other Assam Rules conditions. The State Government cannot substitute AICTE's experience criterion with a lower alternative. Appointments contrary to these directions must be recalled, and fresh consideration for promotion/appointment must be made accordingly.
Issues: 1. Whether the requirement of Ph.D. for appointment to the post of Principal in Government Polytechnic Colleges under the Directorate of Technical Education Department, Assam, is governed by AICTE Regulations and Assam Technical Education Service Rules? 2. Whether AICTE Regulations prevail over State Rules in this matter? 3. From which date does the requirement of Ph.D. become effective? 4. How should vacancies arising before and after the effective date be filled? 5. Can the State Government substitute AICTE's experience criterion with a lower alternative?
Ratio Decidendi: 1. AICTE Regulations, being a Parliamentary enactment, prevail over State Rules. State Government can't delay or prevent implementation of AICTE norms. 2. AICTE Regulations of 2010 requiring Ph.D. for Principal post became effective from the date of notification (05.03.2010), not from any subsequent date decided by the State Government. 3. State Government can't substitute AICTE's experience criterion (10 years, including 3 years as HOD) with a lower alternative (6 years as Lecturer Selection Grade).
Final Decision: 1. Requirement of Ph.D. for appointment to the post of Principal in Government Polytechnic Colleges under the Directorate of Technical Education Department, Assam, is governed by AICTE Regulations and Assam Technical Education Service Rules. 2. AICTE Regulations, being a Parliamentary enactment, prevail over State Rules. State Government can't delay or prevent implementation of AICTE norms. 3. AICTE Regulations of 2010 requiring Ph.D. for Principal post became effective from the date of notification (05.03.2010), not from any subsequent date decided by the State Government. 4. Vacancies arising after 05.03.2010 require Ph.D. and other AICTE qualifications; vacancies before 05.03.2010 can be filled without Ph.D. subject to other Assam Rules conditions. 5. State Government can't substitute AICTE's experience criterion (10 years, including 3 years as HOD) with a lower alternative (6 years as Lecturer Selection Grade). 6. Appointments contrary to these directions must be recalled, and fresh consideration for promotion/appointment must be made accordingly. 7. Vacant posts may be filled temporarily from eligible candidates in lower grades based on seniority till regular appointments are made.
JUDGMENT :
N. Kotiswar Singh, J.
Heard Mr. D. Das, learned senior counsel assisted by Mr. P. K. Deka, learned counsel for the petitioners in both the petitions. Also heard Mr. K. Gogoi, learned Standing Counsel, Higher Education (Technical Department), Assam for respondent Nos. 1 to 4 and Mr. K. N. Choudhury, learned senior counsel assisted by Mr. J. Patowary for the private respondent Nos. 5, 7, 9 and 10 in WP(C) No. 1721/2016.
2. The core issue involved in these petitions relates to requirement of possession of Ph.D. for appointment to the post of Principal in the Government Polytechnic Colleges under the Directorate of Technical Education Department, Assam and if so required, as to whence. Accordingly, these two petitions, WP(C) 348/2016 and WP(C) 1721/2016 are heard together and disposed of by this common judgment.
3. All the petitioners are presently serving as Heads of Department (HODs) in Bongaigaon Polytechnic, Nagaon Polytechnic, Electrical Engineering Department, Assam Engineering Institute, Chandmari, Electrical Engineering Department, Nagaon Polytechnic respectively.
All the petitioners claim to have been discharging their duties as Heads of Departments (HODs) for more than ten years.
The petitioner Nos. 1 and 2 were also appointed as In-Charge Principals of Bongaigaon Polytechnic and the Nagaon Polytechnic respectively.
4. According to the petitioners, even though they are not Ph.D. holders, they are all eligible for promotion to the posts of Principal of the Government Polytechnics but they have been now denied the opportunity of being considered for promotion/appointment to the posts of Principal by the State authorities only on the ground that, as per the essential qualifications prescribed by All India Council for Technical Education (AICTE) for appointment to the post of Principal, one must possess Ph.D. in Engineering/equivalent field, which the petitioners do not possess.
5. In the State of Assam, the service conditions of the employees working in the Technical Institutes are governed by the Assam Technical Education Service Rules, 1981, hereinafter referred to as the "Assam Rules".
It is the case of the petitioners that appointment to the post of Principal is governed by the aforesaid Assam Rules read with the rules or regulations as may be framed by the All India Council for Technical Education and to the extent the same are adopted by the State of Assam as provided under Rule 12(4) of the Assam Technical Education Service Rules as amended in 2008 vide Assam Technical Education Service (Amendment) Rules, 2008. Rule 12(4) of the amended Assam Rules provides that,
"Subject to suitability, an officer shall be eligible for promotion if he possesses the qualification and experience as prescribed by the AICTE from time to time as adopted by the State of Assam".
6. The focused submission of the petitioners is that as provided under Rule 12(4) of Assam Rules as amended in 2008, the rules or regulations prescribing qualifications and experience by the AICTE will become operative only when these are adopted by the State of Assam.
7. According to the petitioners, for appointment to the post of Principal by way of promotion, possession of Ph.D. by a prospective candidate was not a requirement under the relevant rules as applicable in the State of Assam. The same became part of the recruitment rules for the post of Principal in Assam only after the relevant provisions of the AICTE were adopted by the State Government only in the year 2016 vide Office Memorandum issued by the State Government dated 18.01.2016. The aforesaid Office Memorandum dated 18.01.2016 adopted the qualifications and experience as prescribed by the AICTE for direct recruitment and promotion of officers in Polytechnics in Assam. Thus, possession of Ph.D. became a necessary qualification for appointment to the post of Principal in Engineering/Technical Inst
