* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On:141 July, 2010 Judgment Delivered On:61h August, 2010 + W.P.(C) 13199/2009 UNION OF INDIA AND ORS .....Petitioners Through: Mrs. Avnish Ahlawat, Ms. Latika Chaudhary, Advs. Versus ASHOK KU MAR Respondent Through: Nemo. CORAM: HON BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, I. For orders, see W.P.(C) No.10640/2009. (PRADEEP NANDRAJOG) JUDGE M 0 (1 AUGUST 06, 2010 mm W.P.(C) N0.13199/2009 Page 1 of 1 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified * IN THE HIGH COURT OF DELHI AT NEW DELHI % judgment Reserved On:l4mh july, 2010 judgment Delivered On:6tl August, 2010 + W.P.(C) 10640/2009 GOVT OF NCT OF DELHI ... ..... Petitioner Through: Mr.V.K. Tandon, Ms. Marnta Tandon, Advs. 4 Versus lb SURESH CHAND VASHIST & ORS. .....Respondent:s Through: Mr. Arun Bhardwaj, Mr. Piyush Gaur, Ms. Ruchika, Advs. W.P.(C) 1325/2010 GOVERNMENT OF NCT OF DELHI .....Petitioner Through: Mr. V.K. Tandon, Ms. Mamta Tandon, Advs. Versus PARMANAND Respondent Through: Mr.Arun Bhardwaj, Mr. Piyush Gaur, Ms. Ruchika, Advs. W.P.(C) 1326/201.0 GOVERNMENT OF NCT OF DELHI . ... Petitioner Through: Mr. V.K. Tandon, Ms. Marnta Tandon, Advs. Versus SMT.SWATANTRA NAYYAR . .....Respondent Through: Nemo. W.P,(C) 1358/2010 GOVERNMENT OF NCT OF DELHI . ..... Petitioner Through: Mr. V.K. Tandon, Ms. Mamta Tandon, Advs. W.P.(C) No.10640/2009 & Conrected Matters Page 1 of 28 0 M, Versus SHEO RAJ SINGH Respondent Through: Mr. Harish Kumar Mehra, Adv. W.P.(C) 1375/2010 GOVERN MENT OF NCT OF DELHI Petitioner Through: Mr. V.K. Tandon, Ms. Mamta Tandon, Advs. Versus ASHOK KUMAR Respondent Through: Mr. Harish Kumar Mehra, Adv. W.P.(C) 1767/2010 GOVERNMENT OF NCT OF DELHI Petitioner Through: Mr. V.K. Tandon, Ms. Mamta Tandon, Advs. Versus SHIV RAM SUMAN Respondent Through: Mr. Sanjoy Ghose, Adv. W.P.(C) 13199/2009 UNION OF INDIA AND ORS Petitioners Through: Mrs. Avnish Ahlawat, Ms. Latika Chaudhary, Advs. Versus ASHOK KUMAR Respondent Through: Nemo. W.P.(C) 13200/2009 UNION OF INDIA AND ORS .....Petitioners Through Mrs. Avnish Ahlawat, Ms. Latika Chaudhary, Advs. W.P.(C) No.10640/2009 & Connected Matters Page.2 of 28 FAI In Versus DHANESH KUMAR S Respondent Through: Nemo. W.P.(C) 13213/2009 UNION OF INDIA AND ORS .....Petitioners Through: Mrs. Avnish Ahlawat, Ms. Latika Chaudhary, Advs. ,44 Versus DRAUPADI Respondent Through: Nemo. W.P.(C) 13238/2009 GOVT OF NCT OF DELHI AND ORS .....Petitioner Through Mrs. Avnish Ahlawat, Ms. Latika Chaudhary, Advs. Versus PARAMJEET KAUR DHILLON .....Respondent Through: Nemc. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. On 23.12.1987, All India Council for Technical Education Act, 1987 (hereinafter referred to as the "AICTE Act") was enacted by the Parliament by virtue of its powers under Entry 66 of Union List wherein exclusive power is vested with the Central Government with regard to technical education. The Preamble to AICTE Act reads as under:- wP.(C) No.10640/2009 & Connected Matters Page 3 of 28 "An Act to provide' for the establishment of an All India Council for Technical Education with a view to proper planning and co-ordinated development of the technical education system throughout the country, the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith." 2. Under Section 3 of the AICTE Act, the Central Government has the power to appoint a Council called All India Council of Technical Education (hereinafter referred to as "AICTE"). Relevant would it be to note that Section 10 of AICTE Act enumerates the powers and functions of the Council and, reads as under:- "10. Functions of the Council - it shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance of standards and for the purpose for performing its functions under this Act, the Council may- undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education; coordinate the development of technical education in the country at all levels; (C) allocate and disburse out of the Fund of the Council such grants on such terms and conditions as it may think fit to- (I) technical institutions, and (ii) Universities imparting technical' education in coordination with the Commission; (d) promote innovations, research and development in established and new ' technologies, generation, adoption and adaptation of new technologies to meet W.P.(C) No.10640/2009 & Connected Matters Page 4 of 28 17, fL developmental requirements and for overall improvement of educational processes; formulate schemes for promoting technical education for women, handicapped and weaker sections of the society; promote an effective link between technical education system and other relevant systems including research and development organisations, industry and the community; evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporation norms and mechanisms for enforcing accountability; formulate schemes for the initial and in-service training of teachers and identify institution or centres and set up new centres for offering staff development programmes including continuing education of teachers; (I) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations; fix norms and guidelines for charging tuition and other fees; grant approvals for starting new technical institutions and for introduction of new courses or programmes in consultation with agencies concerned; (I) advise the Central Government in respect of grant of charter to any professional body or institution in- the field of technical education conferring powers, rights and privileges on it for the, promotion of such profession in its field including conduct of examinations and awarding of membership certificates; lay down norms for granting autonomy to technical institutions; take all necessary steps to prevent commercialisation of technical education; W.P.(C) No.10640/2009 & Connected Matters Page 5 of 28 N KIN (0) provide guidelines for admission of studies to technical institutions and Universities imparting technical education; inspect or cause to inspect any technical institution; withhold or discontinue grants in respect of courses, programmes to such technical institutions which fail to comply with the directions given by the Council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the Council; take steps to strengthen the existing organisations, and to set up new organisationS to ensure effective discharge of the Council's responsibilities and to create positions of professional, technical and supporting staff based on requirements; declare technical institutions at various levels and types offering courses in technical education fit to receive grants; advise the Commission for declaring any institution imparting technical education as a deemed University; set up a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it and to make recommendation to it, or to the Council, or to the Commission or to other bodies, regarding recognition or de-recognition of the Institution or the programme; perform such other functions as may be prescribed." (Emphasis Supplied) 3. Consequent upon revision of pay scales of Central Government employees on the recommendations of 51h Central Pay Commission, Ministry of Human Resource and Development, Government of India issued orders dated 09.10.1998 and 14.09.1999 directing AICTE to frame a scheme fOr revision of pay scales of teachers employed in Technical Institutions pursuant to which AICTE framed such a scheme. AICTE issued notification dated 30.12.1999 relating to revision W.P.(C) No.10640/2009 & Connected Matters Page 6 of 28 of pay scales and service conditions of teachers, librarians and physical education personnel employed in diploma level Technical Institutions. The relevant portion of the said notification reads as under:- 'AICTE NOTIFICATION FOR REVISION OF PAY-SCALES AND ASSOCIATED TERMS AND CONDITIONS. OF SERVICE OF TEACHERS, LIBRARIANS AND PHYSICAL EDUCATION PERSONNEL FOR DIPLOMA LEVEL TECHNCIAL INSTITUTIONS 1.0 PREAMBLE The Government of India, Ministry of Human Resource Development, Department of Education has issued orders vide letter No.37-104/95-TS-11. dated October 9, 1998 and of even No. dated January 14, 1999 implementing a scheme of revision of pay scales of teachers of degree level Technical Institutions, following revision of pay scales of Central Government employees on the recommendation of Fifth Central Pay Commission. The Government orders require that AICTE notify other terms and conditions of service of such teachers with the approval of Ministry of Human Resource Development. In line with the revised pay-scales of teachers of degree level technical institutions and the associated service conditions, AICTE has now revised the pay- scales and associated service conditions of teachers, librarians and physical education personnel in diploma level technical institutions, with the concurrence of Ministry of Human Resource Development. These revised pay scales and associated service conditions are given in this notification. 2.0 COVERAGE 2.1 Scope: The provisions of this notification apply to teachers, librarians and physical education personnel in diploma level technical institutions, covered under the AICTE Act. 2.2 Date of Effect: w.P.(C) No.10640/2009 & Connected Matters Page 7 of 28 t. The revised pay-scales, Career Advancement Scheme and incentives for higher qualification given in this notification shall be effective from January 1, 1996. All other terms and conditions come into force with effect from date of this notification. 2.3 State Government Institutions and Private Aided Institutions: Taking into account the local conditions, a State Government may implement the revised pay-scales from a date later than lanuary 1, 1996 and/or implement pay-scales other than those given in this notification, but which are not higher than the pay- scales given in Tables (Appendix A 1, 2 and 3). In such cases, the details of the modification proposed either to the scales of pay or the date from which the Scheme is to be implemented, should be furnished to the All India Council for Technical Education for its approval. 4.0 PAY-SCALES The revised pay-scales for teachers of diploma level technical institutions are given in Tables (Appendix A- 1 and 2). 5.0 QUALIFICATIONS The prescribed minimum qualifications and experience requirements for various teaching posts in diploma level technical institutions are given (Appendix - B) Where qualifications and experience prescribed for a post iii this pay revision are higher than the qualifications and experience prescribed by AICTE for that post prior to this revision, the revised qualifications and experience will be required only for fresh appointees to that post and will not be insisted on for existing incumbents working on those positions. for open selection to a higher cadre position through advertisement internal candidates presently working.in a lower position will be exempted from the prescribed higher qualification and experience to the extent that they will be required to possess only the W.P.(C) No.10640/2009 & coimected Matters Page 8 of 28 ' P qualifications and experience prescribed by AICTE prior to this pay revision. This relaxation will be available only for 'a period 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. 3. Teachers already in service prior to January 1, 1996 and who at the time of their recruitment possessed only a second class in their degree at Bachelor's level (but met all the qualification requirements prescribed by AICTE at the time of their recruitment) shall be exempted from the requirement of First Class for the degrees they had at the time of their recruitment. 12.0 SUPERANNUATION AND RE-EMPLOYMENT The age of superannuation of teachers in diploma level technical institutions would be 62 years and thereafter no extension of service shall be given...... The age of superannuation of Librarians, Physical Education Personnel and such other employees of technical institutions who are treated at par with the teachers and whose age of superannuation was 60 years, will now be 62 years...... TABLE A-i SCALES OF PAY FOR TEACHERS FOR DIPLOMA LEVEL TECHNICAL INSTITUTIONS S. Category Existing Pay-Scales Proposed Pay- No. ' (Rs.) Scales (Rs.) Lecturer 2200-75-2800-100- 8000-275- 4000 13500 Senior 3000-100-3500-125- 10000-325- Lecturer 5000 ' 15200 Head of 3700-125-4950-150- 12000-420- Deptt. 5700 18300 Principal 4500-150-5700-200- 16400-450' 6300 ' ' 20000 w.P.(C) N0.10640/ 2009 & Connected Matters Page 9 of 28 4 22 TABLE A-2 S. No Category Existing Pay-Scales (Rs) Proposed Pay- Scales (Rs) Lecturer 3000-100-3500-125- 1000-325- 5000 15200 (Senior Scale) Lecturer 3700-125-4950-150-. 12000-420- 5700 18300 (Selection Grade) The revised scales of pay for Librarians and Physical Education Personnel are given in Table A-3. TABLE A-3 SCALES OF PAY FOR LIBRARIANS AND PHYSICAL TRAINING INSTRUCTORS (PEl) FOR DIPLOMA LEVEL TECHNICAL INSTITUTIONS S. No Category Proposed Pay-Sc&es (Rs.) Libraria n/Lecturer 8000-275-13500 Physical Training instructors (P.E.I.) Librarian (Senior 10000-325-15200 Scale)/Lecturer (Senior Scale)/Physical Education Instructor (Senior Scale) Librarian (Selection 12000-420-18300 Grade)/Lecturer (Selection Grade)/Physical Education Instructor (Selection Grade) "(Emphasis Supplied) Relevant would it be to note that the notification dated 30.12.1999 prescribed higher qualifications and experience than previously required for appointment to various teaching posts in the diploma level technical institutes but w.P.(c) No.10640/2009 & Connected Matters Page 10 of 28 lê correspondingly did not provide for any change in the qualifications and experience required for appointment to the posts of librarians and physical training instructors in the said institutes. A period of 5 years was granted to the existing incumbents on the said posts to acquire revised qualifications and service experience. 5 The matter regarding the revision of pay scales of teachers, librarians and physical education personnel in diploma level technical institutions as prescribed in the notification dated 30.12.1999 issued by AICTE was submitted by Department of Training and Technical Education (hereinafter referred to as "DUE") to the cabinet, government of National Capital Territory, Delhi for consideration. The relevant portion of the note submitted by DUE to the cabinet dealing with revision of pay scales and age of superannuation of librarians and physical education personnel in diploma level technical institutions reads as under:- "5.3 PAY SCALES OF LIBRARIANS & PHYSICAL EDUCATION PERSONNEL Besides the teachers, AIcTE has also recommended revised pay scales for Librarians and Physical Education Personnel as under:- FOR COLLEGES 1' 1. Librarian/Directors, Physical Education 2.1-ibrarian (Sr. Scale)! Director, Physical Education (Sr. Scale) 3.1-ibrarian (Selection Grade)/Director, W.P.(C) No.10640/2009 & Connected Matters Rs.8,000-275- 13500/- Rs. 10,000-32 5- 15200/- Rs12,000-420-18300/- Page 11 of 28 Physical Education (Selection Gr.) FOR POLYTECHNICS 1. Librarian/Physical Rs.8,000-275- 13500/- Education Instructor 21ibrarian (Sr. Scale)! Rs.10,000-325- 15200/-, Physical Education (Sr. Scale) 3.1-ibrarian (Selection Rs12,000-420- 18300/- Grade)! Physical Education (Selection Gr.) 9.1 (viii) AICTE recommendations on pay scales may be accepted for implementation for eligible categories of employees of Government Polytechnics and implementation may be w.e.f 1.1.96. As in the case of colleges like Delhi College of Engineering, the do retirement age will continue to be 60 years and benefits under the Pay Commission over and above the AICTE/MHRD recommendations may not be available and will have to be adjusted. 11.0 As regards the revised pay scales recommended by AICTE for colleges and polytechnic Librarians and Physical Education personnel, at present there is a post of Librarian in Delhi College of Engineering in the pay scale of Rs, 8000-13,500 but in College of Pharmacy and College of Art the post of Librarian exists in a lower pay scale of Rs. 5000-8000. Similarly, in polytechnics also the posts exist in the pay scale of Rs. 5000-8000. In so far as Physical Education personnel are concerned there is a post of Director, Physical Education in Delhi College of w.P.(c) No.10640/2009 & connected Matters Page 12 of 28 2,0 Engineering and College of Art in the pay scale of Rs. 8000-13,500. There is no, post of Director, Physical Education in College of Pharmacy but a post of PTI exists in the pay scale of Rs. 5000-8000., In Polytechnics there are posts of PTls. So, where the posts exist in lower pay scale the incumbents cannot be straightaway placed in revised pay scales as posts will have to be created in higher scales and eligibility of existing Librarians and PTIs will have to be seen in terms of qualifications recommended by AICTE for these posts. These issues need to be examined in consultation by the Finance Department separately before implementing the recommendations of AICTE in their cases. It is, therefore, proposed that for these categories of employees-viz-Librarians and PTls the implementation of AICTE recommended pay scales may be carried out after the issue of qualifications and upgradation of existing posts is settled in consultation with Finance Department and their cases examined separately in consultation with Finance Department. 14.1 As regards Librarians and Physical Education Personnel, they are not being denied the benefit. It is only certain issues relating to upgradation of the existing posts and educational qualifications that needs to be sorted out in consultation with Finance Department before their case can be considered for implementation of AICTE pay scales" 6. Vide cabinet decision No.841 dated 23.09.2003, the Government of NCT of Delhi approved the grant of revised pay scales to the teachers teaching in diploma level technical institutions under DUE. However, the cabinet did not take a decision with respect to revision of pay-scales of librarians and physical education personnel employed in technical institutions under DUE. The reason for the same is that in the notification dated 30.12.1999 AICTE recommended scales of pay for lecturers, librarians and physical educational persons at par with same post holders in degree colleges, but enhance the requirement of a highereducational qualification only for W.P.(C) No.10640/2009 & Connected Matters Page 13 of 28 7 ) 2 ¶ 0 lecturers and bring it at par with lecturers in degree colleges but did not recommend similar enhancement in the educational qualifications for librarians and physical educational persons and the Government of NCT Delhi thought it not advisable to pay same scale of pay to those having higher qualifications and those with lesser qualifications. On 02.08.2004 the DTTE issued letter No.F.123/19/2000/TE/AD/1217 to AICTE seeking clarifications regarding the revision of pay scales of librarians and physical training instructors. The relevant portion of the said letter reads as under:- "....AICTE vide its notification No.1-65/CD/NCE/98-99 dated 20th December, 1999 has given the pay scales and Career Advancement scheme for Librarian and Physical Training Instructors for Diploma Level Technical Institutions at table A-3. Kindly clarify whether these scales are linked with the qualifications of the Librarian and Physical Training Instructors or to be given to all irrespective of their qualifications. In case the pay scales are linked with the qualification, you are requested to convey the qualifications for Librarians/Physical Training Instructors attached to each grade as the same is not reflected in your notification..... In response thereto, AICTE issued letter No.2004-05/50 dated 23.08.2004 to DUE, the relevant portion whereof reads as under:- The normal practice to give revised pay scales to the existing faculty members (including Librarians/Physicai Training Instructors) for the post they are holding at the time of revision of the pay scales i.e. 01.01.1996 in the present cadre. The revised qualifications, and experience, if any, w.P.(c) No.10640/2009 & Connected Matters Page 14 of 28 prescribed with the revised scales are to be made applicable for fresh recruitment only. The only consideration for giving the revised pay scales to the existing faculty should be that the person concerned was appointed in the date of cadre prior to the date of revision i.e. 01.01.1996..... Vide cabinet decision No.1024 dated 16.12.2005, Government of NCT of Delhi accepted the AICTE's recommendation pertaining to enhancement of age of superannuation from 60 to 62 years for teachers of degree and diploma level technical institutions under DTTE and further decided to not to extend the said benefit to librarians and physical training instructors at diploma level technical institutions. Feeling aggrieved by the inaction of Government of NCT of Delhi in respect of revision of pay-scales of librarians and physical education persons at diploma level technical institutions under DUE, a few librarians and physical training instructors working in various polytechnics under DUE filed applications under Section 19 of Administrative Tribunals Act, 1985 before Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the "CAT") inter-alia seeking issuance direction against the government to revise the pay-scales of librarians and physical instructors in polytechnics under DUE in terms of the notification dated 30.12.1999 issued by AICTE. The details of the applications filed before CAT are being noted herein under:- S. No. Number of Name of the Details of the the applicant applicant application (OA No.) i. 2451/2006 Suresh Chander Librarian in Vashisht Kasturba Gandhi Polytechnic W.P.(C) No.10640/2009 & Connected Matters Page 15 of 28 IN-- ii. 2297/2006 Sheo Ram Suman Librarian in Parmanand Institute of Business Studies 2298/2006 Parmanand Librarian in Parmanand Institute of Business Studies iv. 2232/2006 Ashok Kumar Librarian in Parmanand Institute of Business Studies V. 2338/2006 Sheo Raj Singh Librarian in Parmanand Institute of Business Studies 2339/2006 Swatantra Nayyar Librarian in Parmanand Institute of Business Studies 2020/2008 Ashok Kumar Physical Training Instructor in Arya Bhatt Polytechnic 2021/2008 Draupadi Physical Training Instructor in GBP Polytechnic 2022/2008 Dhanesh Kumar Physical Training Instructor in Guru Nanak Dev So Ed Polytechnic X. 2023/2008 Paramjeet Kaur Physical Training Dhillon Instructor in Meera Bai Polytechnic 11. A perusal of the pleadings filed by Government of NCT of Delhi before CAT reveals that the stand taken by the W.P.(C) No.10640/2009 & Connected Matters Page 16 of 28 2L government was that since the effect of AICTE's recommendations was that the pay-scales of the librarians and physical education persons in diploma level technical institutions were upgraded to the level of their counterparts in degree level technical institutions it was necessary that the qualifications and service experience requtred for appointment in the cadre of librarians and physical education persons in - diploma level technical institutions should have also been upgraded in the same manner and that there is a fallacy in the recommendations of AICTE inasmuch as AICTE upgraded the qualifications and service experience required for appointment for various teaching posts in diploma level technical institutions while revising the pay-scales of teachers in diploma level technical institutions but ignored said aspect of the matter while revising pay-scales of librarians and physical training instructors in diploma level technical institutions. Thus, the Government of NCT Delhi justified its decision to implement a different pay-scale for librarians and physical education persons in diploma institutes in Delhi. 12. Before the aforesaid matters could be decided by the CAT, a significant development took place. In the year 2006, one Mr.K.R. Mann, who was working as a librarian in Arya Bhatt Polytechnic under DUE of Government of NCT of Delhi filed an application under Section 19 of Administrative Tribunal Act, 1985 before CAT challenging the decision of Government of NCT of Delhi not to enhance age of superannuation of librarians in polytechnics under DUE of Government of NCT of Delhi from 60 to 62 years in terms of notification dated 30.12.1999 issued by AICTE. In the said proceedings the stand taken by the Government of NCT Delhi was two-fold: - (i) notification dated 30.12.1999 issued by AICTE is W.P.(C) No.10640/2009 & Connected Matters Page 17 of 28 / 1' recommendatory and not mandatory in nature; (ii) though in the notification dated 30.12.1999 recommendation has been made for enhancement of age of superannuation of librarians and physical training instructors in diploma level technical institutions, who are at par with teachers from 60 to 62 years, the said notification nowhere states that librarians are to be treated at par with the teachers. Vide order dated 30.04.2007, CAT allowed the aforesaid application filed by Mr.K.R.Mann. It was held that the recommendations of AICTE Contained in notification dated 30.12.1999 are mandatory