WP(C) 5777/2004 BEFORE HON’BLE TMR JUSTICE AMITAVA ROY The petitioner in essence, seeks a writ of mandamus to the State respondents for considering him for promotion to the post of Principal, Polytec hnic in the Assam Technical Education Service(hereafter for short as ’Service’ ). 2. I have heard Mr S.Shyam, learned counsel for the petitioner, Mr UK Goswami, learned Standing Counsel, Education Department and Mr S. Dutta, lear ned counsel for the Indian Council of Technical Education, New Delhi(hereinafter referred to as the ’Council’). 3. The petitioner’s pleaded case in short is that, he was initially appointed as a Lecturer on 29.12.1982 under Regulation 3(f) of the Assam Public Service Commission( Limitations of Functions) Regulation,1951 whereafter he joi ned the Assam Textile Institute , Guwahati on the next day. His service as a L ecturer was regularized thereafter and in the year 1996 he was promoted as a Sen ior Lecturer. He rose further in the ranks tobe promoted as the Head of the Dep artment in December,1997 and during 25.1.1999 to 30.10.99, discharged the dutie s of Principal Incharge of the Residential Girls Polytechnic, Golaghat. He is pr esently posted as the Head of the Department of Assam Textile Institute at Guwah ati. In addition to his academic qualification of Bachelor of Textile Technolog y, he has put in more than 21 years of teaching experience which includes 6 yea rs as the Head of the Department. According to him, therefore under the Assam Te chnical Education Service Rules,1987 (hereafter referred to as the ’Rules’) whic h relate to the recruitment and conditions of service of persons appointed to t he Service , he is eligible for being promoted to the post of Principal. 4. The Council through its letter No.F.6-6/89-T.5/TD.IV dated 20.9. 1989 recommended the revision of pay scales of teachers of technical institutes (Polytechnics) laying down therein the qualification of the incumbents of vario us posts in such institutes. The essential academic qualification and experien ce for the post of Principal and Head of the Department , Polytechnic as enumer ated therein were Ist Class Master’s Degree in Engineering/Technology/Technical Education or Ph. D. Degree in appropriate branch for teaching posts in humanitie s and science together with 5 years experience in teaching, industry and resear ch at the appropriate levels. 5. By a subsequent communication No.F.47-3/91-AICTE dated 10.9.1993 of the Council as well, which contained the guidelines for career advancement of Lecturers in Polytechnics, it was inter alia provided that all existing sta ff who were eligible for grant of revised scales/benefits of career advancement were exempted from the essentiality of the revised qualifications of the ci rcular dated 20.9.1989 which were to be applicable to the new entrants recruited after that date. The Government of Assam by its Notification No.TEC.42/95/Pt/9 2-A dated 30.8.1997 extended the revised scales of pay recommended by the Counc il by its circular dated 20.9.1989 with effect from 1.1.1986 to all existing tea ching staff. The exemption conveyed by the communication dated 10.9.1993 hereina bove mentioned was reiterated. 6. According to the petitioner, he being a recruitee of the year 19 82, was thus exempted from the operation of the revised qualifications and exper ience of the aforesaid notification dated 20.9.89 . All promotions to various po sts in the Polytechnics were thereafter made in accordance with the Rules as wel l as guidelines of the Council and he too in terms thereof was duly promoted to the post of Head of the Department in the month of December,1997 7. Following the recommendations of the 5th Central Pay Commission, th e Council in its circular No.F.No.1-65/CD/NEC/98-99 dated 30.12.1999 proposed r evision of pay scales and the service conditions of teachers of Diploma Level T echnical Institutions . While suggesting the date of effect for the revised pa y scales , career advancement scheme and incentives by higher qualification tobe 1.1.96, it prescribed fresh qualifications and experience for the teaching pos t in the diploma level for the technical institutions. Master’s Degree in appr opriate branch of Engineering/Technology with Ist Class at Masters or Bachelor l evel or Ph D in appropriate branch of Engineering /Technology / Technical Educat ion with teaching and administrative experience as mentioned therein were pres cribed for the post of Principal. Clause-5 of the circular, according to the pet itioner, exempted the existing incumbents from the rigour of the revised academi c qualifications and experience for a period of 5 years from the date of issue thereof. 8. The Govt. of Assam by Office Memorandum No.TEC.42/95/Pt/12 dated 20.5 .2004 adopted the Council’s recommendations postulating that the relaxation con templated in the circular dated 30.12.1999 would be available upto to 31.12.2004 . The benefit of revised pay scales to the teachers of the government polytechni cs in the State was thereby accorded with effect from 1.1.1996. 9. The petitioner has maintained that in view of the relaxation in the Council’s recommendations as accepted by the Government of Assam, he was eligib le and qualified for promotion to the next higher post of Principal, Polytechnic . Five vacancies in the aforementioned rank having occurred at the relevant tim e, a Selection Board was constituted to undertake the process which in fact was initiated in the month of April/May,2004. According to the petitioner, cases of ten eligible candidates including him were forwarded to the Selection Board f or recommendation. However, his name was dropped in between along with two other officers from the zone of consideration on the plea of want of post graduate de gree by them. On enquiry, the petitioner learnt that in terms of the Council’s l atest recommendations , a Bachelor Degree holder was not eligible for considerat ion for such promotion. The petitioner has insisted that in terms of the gradation list reflecting the cadre of the Heads of the Department of Polytechnics as on 1.6.2003 he is at Sl No.4 in order of seniority and therefore, considering the number of vacancies he was well within the zone of consideration for promotion. He has cited instanc es of promotion of existing incumbents to the post of Principal in various Poly technics and Diploma Institutes , the incumbents being Bachelor Degree holders like him. He has therefore pleaded unfair and arbitrary denial of his right to be considered for promotion to the post of Principal, Polytechnics. 10. This Court while issuing Rule on 16.8.2004 by its order of the eve n date, had directed consideration of the petitioner’s case also for the post of Principal, Polytechnics and to keep the decision in a sealed cover to abid e by further orders. Appointment to the said post pursuant to the selection was also ordered to be subject to the out come of the writ petition. The petitioner by his additional affidavit inter alia has brought on record a notification dated 26.8.2004 whereby 5 Heads of Department (T) ,Polytechnics had been promote d to officiate as Principal under Regulation 4(d) of the Assam Public Service Co mmission ( Limitation of Function) Regulations,1951 alleging that the incumbents at Sl Nos 4 and 5 were ineligible in terms of the relevant guidelines/norms of the council. 11. The State Respondents through their affidavit affirmed by the Joint Secretary to the Govt. of Assam, Education (CTM), Department has in substance c ontended that as per the revised conditions of eligibility prescribed by the Co uncil and accepted by the Education Department of the State by its Office Memora ndum dated 20.5.2004, a Master’s Degree in the appropriate branch of engineeri ng/technology with Ist Class at the Master’s or Bachelor level was indispensabl y essential and therefore as the petitioner is a Second Class Bachelor of Tech nology , he was not eligible tobe considered for promotion to the post of Princi pal, Polytechnics. The State respondents, however admitted that the petitioner otherwise was within the zone of consideration ,but was not recommended by the S election Boards being deficient in the eligibility norms. 12. The Council in its affidavit while referring to its authority u nder the All India Technical Education Act,1987 (hereafter referred to as the ’A ct’) to lay down the norms and standards for courses, curricula, staff pattern, staff qualification, assessment and examination of staff pattern etc. asserted that any institution imparting technical education( Degree or Diploma) in India has to be recognized by it and has to comply with its Rules and Regulations for the continuance of its recognition . It therefore asserted that the Assam T extile Institute too was governed by its Rules and Regulations. It reiterated the qualifications and experience as communicated by its circular dated 30.12.1 999 to be essential to hold the posts mentioned therein and to avail the revise d pay scales recommended by it. The relaxation referred to in its notification dated 10.9.1993 according to it was limited to the aspect of entitlement of an e xisting teacher in any post to the revised scale of pay then suggested and did n ot signify exemption from the prescribed essential qualification for the post. I n terms of Clause 5 of the notification dated 30.12.1999 as well, according to i t, an existing teacher in any post was required to possess the qualifications an d experience stipulated before the issue thereof. The Council stressed upon the fact that the relaxation clause in the notification dated 30.12.1999 notwithst anding, the petitioner ought to possess the qualification prescribed by the not ification dated 20.9.1989 being construable a new entrant qua, the post of Pr incipal. It reiterated that the relaxation was not to denote dilution of the essential conditions of eligibility prescribed for the post of Principal. As the petitioner was a graduate and was not possessed of the Master’s Degree , he was not qualified to hold the post of Principal. 13. In his affidavit in reply, the petitioner has sought to contend th at Sri HK Bhattacharya and Smti Paramita Kakati (promotee Nos 4 and 5 in the not ification dated 20.6.2004) promoted to officiate as Principal in Polytechnics di d not have the prescribed period of experience as the Head of the Department. T hereby the petitioner has endeavoured to insist that the conditions of eligibil ity ordained by the Council are not inflexible and had already been departed therefrom. He has also brought on record a corrigendum No.TEC.42/95/pt/15 dated 20.5.2004 occasioning some corrections in the length of experience. 14. Mr Shyam has urged that as the petitioner is qualified under the R ules as well as the recommendations/guidelines of the Council, non consideration of his case for promotion to the post of Principal is ex facie illegal, arbitra ry and discriminatory. Referring to the relaxation contained in the circulars o f the council dated 10.9.1993 and 30.12.1999 as adopted by the State government on 30.8.1997 and 20.5.2004 respectively, the learned counsel has urged that the impugned action of disqualifying him for not possessing the Master’s degree is p er se unfair, unreasonable and unjust. It being apparent on the face of the rec ords that the Council’s norms are being deviated from to accommodate the person s of choice , insistence therefor vis a vis the petitioner, has rendered the imp ugned action arbitrary, discriminatory and nontransparent and is thus liable to be adjudged unconstitutional , null and void. 15. The learned Standing Counsel, Education Department in reply, has argued that the petitioner being ineligible in terms of the stipulations of eli gibility prescribed by the council for the post of Principal , Polytechnics, his grievance is misconceived and he is thus not entitled to the relief prayed for. 16. Mr Dutta while confirming the above has contended that as the petitioner in any view of the matter is required to possess the Master’s Degree in Engineering/ Technology/ Technical Education as prescribed by circular date d 20.9.1989, relaxation by the subsequent notification notwithstanding, he is no t qualified for the post of Principal and therefore all assertions to the contra ry are unsustainable in law. The learned counsel reiterated that the exemption i n the notifications dated 10.9.93 and 13.12.99 do not connote relaxation of the essential norms of eligibility for the post mentioned therein and the petitione r has totally misconstrued the same. 17. The rival pleadings and the documents advanced have received t he due consideration of this Court. Significantly, the applicability of the cir culars/notifications of the council and those of the government of Assam adopti ng the same is not in dispute . On the other hand, the controversy raised permi ts its resolution on an interpretation of the said documents. 18. The petitioner’s service conditions are governed by the Rules fra med by the Govt. of Assam in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Thereunder, the post of Principal, Polytechni c is to be filled up by promotion in accordance with Rules 12 and 13 ,the feede r post being the Head of the Department of the concerned institute. The qualific ations and experience are as set forth in Schedule II. The academic qualificati on prescribed in the schedule for the post of Principal , Polytechnic is Bachel or of Degree in Engineering or Technology or the other alternative as mentioned therein. Master’s Degree is not prescribed as an academic qualification under t he Rules. The Rules, however, have since been amended by the Assam Technical Se rvice (Amendment) Rules,2008 by notification No.ETE.158/2008/5 dated 21.7.2008 published in the Assam Gazette, Extra Ordinary, whereby amongst others, Schedule II stands modified in terms of the notification No.ETE.42/95/Pt/15 dated 20.5. 2004 . In effect thereby the criteria , norms and standards prescribed by the c ouncil in its notification dated 30.12.1999 stands incorporated in the said sch edule. 19. A plain reading of the circular dated 20.9.1989 of the Council dem onstrates that the same dealt with the issue of revision of pay scales of teach ers of Technical Institutes (Polytechnics) and the qualification mentioned ther ein required to be possessed by the incumbent to be eligible to avail the said pay scales. The root of the dissension being lodged in the said circular, it wou ld be appropriate to extract the conditions of eligibility prescribed thereby for the post of Principal of Polytechnics. Principal Essential Principal Ist Class Master ’s Degree In engineering/t echnology /technical educa tion. Or Ph. D Degree in a ppropriate Branch for teac hing posts In humanities and sciences. NOTE : Candidates from Industry/professi on with Recognized profes sional Work equivalent to Master’s Degree or Ph .D Degree as the case May be, will al so be Eligible. Desirable Administrative e xperience In a responsible position. This circular does not admit of any relaxation. 20. Clause 2 of the notification dated 10.9.1993 of the Council ha s a note appended to it . Sub clause (v) thereof reads as hereunder :- The revised scales of pay circulated by the AICTE vide circul ar dated 20.09.89 are applicable with effect from 1.1.86 to all the existing tea ching staff such as Principal, Heads of Department. Senior Lecturers and Lecture rs who were appointed by the Competent authority. All the existing staff who are eligible for grant of revised scales/benefits or Career Advancement, are exempt ed from the application of revised qualifications of AICTE’s circular dated 20.9 .89 and such qualifications shall be applicable to new entrants recruited after 20.09.1989. It is obvious from the quoted excerption that the existing staff who are othe rwise eligible for grant of revised scale/benefit of career advancement are exem pted from the rigidity of the norms of eligibility prescribed by circular dated 20.9.1989 intended to be applied to the entrants to be recruited after that d ate. Noticeably, the exemption does not indicate any time limit therefor. A read ing of this notification does not proclaim that the exemption comprehends onl y the aspect of revision of pay scale and excludes from its purview the career advancement of the members of the service. To the contrary, the tone and tenor of the said notification suggest that the guidelines contained therein are domi nantly addressed to the aspect of career advancement in Polytechnics. The Sta te notification dated 30.8.1997 adopting guidelines of the Council as containe d in the circular dated 10.9.93 also reiterates the exemption of the existing staff of Polytechnics otherwise eligible for grant of revised pay scales or bene fits of career advancement from the application of revised qualification. On a conjoint reading of the notifications dated 20.9.89, 10.9.93 and 30.8.97 , the plea that the relaxation only relates to the issue of revision of pay scales d oes not commend for acceptance. 21. The notifications dated 10.9.93 and 30.8.97 therefore exempted the exi sting staff of the Polytechnics from the enjoinment of the revised qualification s and experience mentioned in the circular dated 20.9.89 both for the purpose o f revised pay scales and career advancement in service. 22. The notification dated 30.12.1999 introducing the revised scales of pay following the 5th Central Pay Commission’s recommendations communicating t hereby the qualification and experience for the teaching posts in Technical Inst itutes mandated the following conditions of eligibility for the post of Principa l. Principal - Qualification & Experience 15 years experience in Master’s degree in appro- teaching out of which at priate branch of Engineering the level of Head of /Technology with First Class Department or equival- at Master’s or Bachelor’s ent. level OR Ph.D. in appropriate branch 10 years experience in Of Engineering/Technology teaching out of which Technician Education atleast 3 years shall be at the level of head of Department or Equivalent Note : Candidates from Industry with First Class Bachelor’s degree in Appropriate branch of Engineering/ Technology and with industrial Experience which is equivalent to Master’s degree, with total 15 years Of experience of which at least 5 years would be at a level comparable with Head of Department will also be eligible. 23. Master’s Degree in the appropriate branch of Engineering/Technology with First class at Master’s or Bachelor’s level or Ph. D. Degree in the appropriate branch of Engineering/Technology etc. was thus insisted upon as an imperative academic qualification. Clause 5 of this notification having a determinative be aring on the course of the adjudication deserves extraction as well :- 5. QUALIFICATIONS 1. The prescribed minimum qualifications and experience requirements for te aching posts in diploma level technical institutions are given in (Appendix-B). 2. Where qualifications and experience prescribed for a post in this pay re vision are higher than the qualifications and experience prescribed by AICTE f or that post prior to this revision. i) the revised qualifications and experience will be required only for fre sh appointee to that post and will not be insisted on for existing incumbents wo rking on these positions. ii) for open selection to a higher cadre position through advertisement inte rnal candidates presently working in a lower position will be exempted from the prescribed higher qualifications and experience to the extent that they will be required to possess only the qualifications and experience prescribed by AICTE prior to this pay revision. This relaxation will be available only for a peri od of 5 years from the date of issue of this notification. Thereafter internal candidates must also possess the qualifications and experience prescribed in this notification. Whereas, paragraph 2(i) of the above excerpt makes it explicit that the revised qualifications and experience would be required only for fresh appointees to th at post and would not be insisted upon for the existing incumbents,(ii) thereof, posits that for open selection to higher grade position through advertisement , the internal candidates working in a lower position would be exempted from the prescribed higher qualification and experience to the extent that they would be required to possess only the qualifications and experience prescribed by the Council prior to pay revision effected by that notification. The period of rela xation is limited to 5 years from the date of issue thereof, whereafter the in ternal candidates should also possess the qualifications and experience prescrib ed thereunder. Thereby two categories of existing incumbents have been contemplated. Fi rstly, those who await their progression to the higher post by availing the no rmal avenue(s) of promotion prescribed by the Rules and secondly, who intend t o participate in a joint selection for higher post in a public process to be in itiated by an advertisement . The existing incumbents of the first category a re exempted from the rigour of the revised qualifications and experience and would have to be considered for promotion to the higher post as per the procedur e prescribed by the Rules. Exemption from the new qualifications and experience prescribed to the existing incumbents competing for higher post in a joint sel ection is limited for a period of 5 years from the date of issue of the notifica tion i.e. 30.12.1999 on the expiry whereof, they would also be required to acqu ire the same. 24. The government of Assam by the Office Memorandum dated 20.5.2004 vis a vis the recruitment/promotion/confirmation of the incumbents in service reiterated the clauses of exemption/relaxation designed by the council. It how ever, clarified that such relaxation/exemption would be available upto 31.12.20 04. The existing incumbents not intending to participate in any op en selection for appointment to a higher post were exempted from the requireme nt of the revised qualifications upto 31.12.2004. As a matter of fact, the restr iction on the period of exemption for the existing incumbents not participating in any open selection for higher grade post was not intended by the council a nd is an appendage imposed by the notification dated 20.5.2004. Be that as it may, an existing incumbent willing to avail the normal channel of promotion to the higher post as contemplated by the Rules would stand relieved of the indis pensability of the revised qualifications and experience prescribed by the co uncil’s notification dated 30.12.1999 till 31.12.2004. 25. On the above touchtone, in the opinion of this Court, the peti tioner could not have been rendered ineligible for not possessing the Master’s D egree in Engineering/ Technology at the selection admittedly conducted before 31 .12.2004 for promotion to the post of Principal, Polytechnics. As he was an exis ting incumbent, possessed of the essential conditions of eligibility prescribed by the Rules and exempted from the exigency of the revised qualifications and experience prescribed by the Council at that point of time, he could not have b een excluded from the process of consideration for such promotion. 26. In view of the above determination, I am of the unhesitant opini ng that the action of the state respondents in not considering the petitioner for promotion to the post of Principal, Polytechnics in the selection held bef ore 31.12.2004 is patently untenable in law and is adjudged as such. In absence of any conceivable justification in support of the arbitrary exclusion of the p etitioner in the matter of his consideration for promotion as above , a writ of mandamus is warranted to redress his grievance. 27. The petition is thus allowed with a direction to the State respond ents to attend to the case of the petitioner for promotion to the post of Pri ncipal, Polytechnics as on the date on which he ought to have been considered al ong with other similarly placed in accordance with the Rules, if necessary by co nducting a review selection process. Needless to say that the exercise would be administered in terms of the Rules and the aforementioned notifications and depending on the outcome thereof, if the petitioner is found suitable for promo tion , he would be favoured therewith. While passing this order, this Court is conscious of the fact that in the meantime regular promotions to the posts in volved might have been made. However, as by order dated 16.8.2004 passed by th is Court the