Case: NATIONAL INSTITUTE OF TECHNOLOGY &amp; ANOTHER Vs. OM PRAKASH RAHI &amp; OTHERS

followed, neither selection committee was constituted nor their suitability was adjudged and also there is no approval of the Board of Governors which is the requirement of law under the Act 2007. 24. The Director who is not even the authority competent under the provisions of the Act, 2007 straightaway, on its own discretion, without following the procedure prescribed by law, passed orders in favour of each of the respondent teachers on mere completion of three years service in the AGP Rs.8000 and placed them in the higher pay band of Rs.37400--67000 with AGP Rs.9000 and re- designation of Associate Professor. One of the specimens (copy of the order passed by the Director), has been reproduced hereinabove, which in itself, depicts that the Director, who is not the authority competent under the Act, 2007 passed orders without due compliance of the procedure prescribed under the Office Memorandum dated 14th March, 2012 and that was the reason for which MHRD declined to approve such appointments by its communication dated 12th February 2018. 25. The statute was later enacted vide notification dated 23rd April, 2009 in exercise of powers under sub--section (1) of Section 26 of the Act 2007. Under Section 13(1)(d), the Board is the appointing authority for the academic staff in the post of Lecturer or above. At the same time, the Central Government, with the prior approval of the visitor, in exercise of power under sub--section (1) of Section 26 of the Act 2007, framed the first statute for NITs and Director, as an Officer of the Institute, has been empowered under clause 17 of the statute to employ teaching supporting staff and discharge all other administrative functions delegated by the authority. 26. Indisputedly, under the present scheme of the Act 2007, the first statute came to be introduced by notification dated 23rd April, 2009 followed by later amendments made vide notification dated 21st July, 2017. The power for appointment of teacher is vested only with the Board of Governors obviously on the recommendations made by the selection committee. In the present scheme of the Act, 2007 of which a reference has been made, the orders passed by the Director of placing the higher pay band of Rs. 37400--67000 with AGP Rs.9000 and re--designated as Associate Professor to each of the respondent teachers cannot be said to be in accordance with the procedure prescribed for CAS in terms of the guidelines issued by MHRD dated 14th March, 2012 and 18th March, 2013 having not been followed by the Officer of the institution, i.e. Director, in passing orders which were impugned before the High Court that indeed cannot be approved by this Court. 27. The Division Bench of the High Court has proceeded on the premise that after the Act, 2007 has come into force, MHRD is not competent to issue circulars/guidelines of which a reference has been made dated 14th March, 2012 and 18th March 2013, which is completely misplaced for the reason that after the Act, 2007 came into force, the appellant--institution was taken over by the Central Government and being fully funded institution by the Central Government, the CAS was introduced by MHRD only for accelerated promotion and was not in contradistinction to the scheme for appointment available to the teachers under the provisions of the Act 2007. At the same time, the respondent teachers were granted the benefit of AGP Rs.8000 under the same guidelines issued by the MHRD dated 14th March, 2012 and 18th March, 2013 that too on the recommendations of the selection committee and with the approval of the Board of Governors of NIT, Hamirpur, in the given facts and circumstances, to hold that the benefits once availed under the guidelines dated 14th March, 2012 and 18th March, 2013 by the respondent teachers while seeking revision of AGP Rs.8000, the very scheme will not be applicable while considering for AGP Rs.9000 and for re--designation as Associate Professor is otherwise not sustainable in law. 28. The Division Bench has further committed an error in recording a finding that since the statute pursuant to which the eligibility conditions for appointment have been introduced by notification dated 21st July, 2017 is prospective in character and earlier appointments made thereto have to be in terms of the guidelines issued by MHRD dated 31st December 2008 for the reason that the guidelines issued by the MHRD dated 31st December, 2008 are not applicable so far as the NITs are concerned and this fact was clarified by the MHRD in its later guidelines dated 18th August, 2009 followed by 14th March, 2012 and this fact has been completely overlooked by the Division Bench while placing reliance on the guidelines dated 31st December, 2008. 29. We would like to observe that the guidelines issued by the MHRD from time to time for revision of pay structure and re- designation of the teachers in NITs are in the form of accelerated promotions, remain co--terminus with the person and are not related to post based promotions under the relevant recruitment rules, however, such scheme is not available under the Act, 2007 and after the amendment notification dated 21st July, 2017, Schedule E has been appended in exercise of power under the clause 23(5)(a) of the statute laying down the qualifications and other terms and conditions of appointment of academic staff to be made through open advertisement on the recommendations of the selection committee until exempted under the scheme of these rules. 30. To clarify it further, CAS scheme by its very nomenclature called Career Advancement Scheme introduced for teachers like Assured Career Progression Scheme (ACP), later called MACP for Central Government employees to overcome the problem of stagnation and hardship faced due to lack of adequate promotion avenues, it nowhere tinker with the conditions of eligibility for appointment to the cadre posts included in schedule E annexed to the statute pursuant to which qualifications and other terms and conditions of appointment of academic staff are included vide notification dated 21st July 2017.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]21. It will be relevant to note that eligibility has been prescribed under the relevant directives issued by MHRD dated 18th August, 2009 followed by 14th March, 2012 with a clear stipulation that financial upgradation in terms of 6th Central Pay Commission shall be extended co--terminus to the teacher, after going through the formal selection process, in terms of the formation of the selection committee provided under the Act, 2007 and the statutes of NITs to examine the candidature and ensure overall suitability of the teacher on fulfilment of the relevant conditions for grant of upgradation of pay/higher AGP/re-designation, as the case may be.22. It is not disputed that each of the respondent teachers was granted financial benefit of the AGP Rs.8000 in terms of MHRD guidelines dated 14th March, 2012 followed by 18th March, 2013 based on the recommendations of the selection committee constituted followed with interview and approval of Board of Governors to the post of Lecturer(Selection Grade) vide Office order dated 25th June, 2013 and 12th November, 2013 in the pay scale of Rs. 12000-18300(corresponding to AGP Rs.8000 in 6th Central Pay Commission).23. But while placing in the higher pay band of Rs. 37400--67000 with AGP Rs.9000 and re--designation as Associate Professor, no procedure was followed, neither selection committee was constituted nor their suitability was adjudged and also there is no approval of the Board of Governors which is the requirement of law under the Act 2007.24. The Director who is not even the authority competent under the provisions of the Act, 2007 straightaway, on its own discretion, without following the procedure prescribed by law, passed orders in favour of each of the respondent teachers on mere completion of three years service in the AGP Rs.8000 and placed them in the higher pay band of Rs.37400--67000 with AGP Rs.9000 and re- designation of Associate Professor. One of the specimens (copy of the order passed by the Director), has been reproduced hereinabove, which in itself, depicts that the Director, who is not the authority competent under the Act, 2007 passed orders without due compliance of the procedure prescribed under the Office Memorandum dated 14th March, 2012 and that was the reason for which MHRD declined to approve such appointments by its communication dated 12th February 2018.26. Indisputedly, under the present scheme of the Act 2007, the first statute came to be introduced by notification dated 23rd April, 2009 followed by later amendments made vide notification dated 21st July, 2017. The power for appointment of teacher is vested only with the Board of Governors obviously on the recommendations made by the selection committee. In the present scheme of the Act, 2007 of which a reference has been made, the orders passed by the Director of placing the higher pay band of Rs. 37400--67000 with AGP Rs.9000 and re--designated as Associate Professor to each of the respondent teachers cannot be said to be in accordance with the procedure prescribed for CAS in terms of the guidelines issued by MHRD dated 14th March, 2012 and 18th March, 2013 having not been followed by the Officer of the institution, i.e. Director, in passing orders which were impugned before the High Court that indeed cannot be approved by this Court.27. The Division Bench of the High Court has proceeded on the premise that after the Act, 2007 has come into force, MHRD is not competent to issue circulars/guidelines of which a reference has been made dated 14th March, 2012 and 18th March 2013, which is completely misplaced for the reason that after the Act, 2007 came into force, the appellant--institution was taken over by the Central Government and being fully funded institution by the Central Government, the CAS was introduced by MHRD only for accelerated promotion and was not in contradistinction to the scheme for appointment available to the teachers under the provisions of the Act 2007. At the same time, the respondent teachers were granted the benefit of AGP Rs.8000 under the same guidelines issued by the MHRD dated 14th March, 2012 and 18th March, 2013 that too on the recommendations of the selection committee and with the approval of the Board of Governors of NIT, Hamirpur, in the given facts and circumstances, to hold that the benefits once availed under the guidelines dated 14th March, 2012 and 18th March, 2013 by the respondent teachers while seeking revision of AGP Rs.8000, the very scheme will not be applicable while considering for AGP Rs.9000 and for re--designation as Associate Professor is otherwise not sustainable in law.28. The Division Bench has further committed an error in recording a finding that since the statute pursuant to which the eligibility conditions for appointment have been introduced by notification dated 21st July, 2017 is prospective in character and earlier appointments made thereto have to be in terms of the guidelines issued by MHRD dated 31st December 2008 for the reason that the guidelines issued by the MHRD dated 31st December, 2008 are not applicable so far as the NITs are concerned and this fact was clarified by the MHRD in its later guidelines dated 18th August, 2009 followed by 14th March, 2012 and this fact has been completely overlooked by the Division Bench while placing reliance on the guidelines dated 31st December, 2008.29. We would like to observe that the guidelines issued by the MHRD from time to time for revision of pay structure and re- designation of the teachers in NITs are in the form of accelerated promotions, remain co--terminus with the person and are not related to post based promotions under the relevant recruitment rules, however, such scheme is not available under the Act, 2007 and after the amendment notification dated 21st July, 2017, Schedule E has been appended in exercise of power under the clause 23(5)(a) of the statute laying down the qualifications and other terms and conditions of appointment of academic staff to be made through open advertisement on the recommendations of the selection committee until exempted under the scheme of these rules.30. To clarify it further, CAS scheme by its very nomenclature called Career Advancement Scheme introduced for teachers like Assured Career Progression Scheme (ACP), later called MACP for Central Government employees to overcome the problem of stagnation and hardship faced due to lack of adequate promotion avenues, it nowhere tinker with the conditions of eligibility for appointment to the cadre posts included in schedule E annexed to the statute pursuant to which qualifications and other terms and conditions of appointment of academic staff are included vide notification dated 21st July 2017.