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

3. The facts in brief have been taken note from Civil Appeal @ SLP(Civil) No. 31892 of 2018, culled out from the record and relevant for the purpose are that the appellant--institution, was initially the Regional Engineering College(REC) (H.P.), Hamirpur. Consequent upon conversion of 14 NITs and 3 RECs including the present institution at Hamirpur as National Institute of Technology with deemed university status, they were taken over as fully funded institutions of Central Government by notification dated 14th May, 2003 wherein it was decided with the approval of the competent authority to implement Career Advancement Scheme(CAS) in NITs after approval of the recommendations of the Selection Committee by the Board of Governors(BOGs) of the NIT concerned by Office Memorandum dated 15th September, 2003 and prescribed service conditions of the teachers/employees of the then RECs upon conversion as NITs with deemed university status by later notification dated 9th November, 2003.4. Later, Parliament enacted the National Institute of Technology Act, 2007 w.e.f. 6th June, 2007 wherein the appellant institution finds place in the first Schedule appended to the Act at Serial No. 5 in the list of central institutions incorporated and correspondingly became the NIT, Hamirpur and later by the NIT (Amendment) Act, 2012 vide notification dated 8th June 2012, it became the National Institute of Technology(Science, Education and Research) Act, 2007(hereinafter being referred to as the Act 2007).5. The respondent--teachers were initially appointed as a Lecturer in their respective Engineering Department in the then REC, Hamirpur(now NIT Hamirpur) on 28th June 2000. Later, on the recommendations of the staff selection committee, respondent teachers were designated as Lecturers(Sr. Scale) in the pay scale of Rs.10000--15200 with the approval of Board of Governors w.e.f. 25th July, 2005 vide order dated 30th December, 2005 and later pursuant to the recommendations of the 6th Central Pay Commission notified by letter dated 18th August, 2009, respondent teachers were placed as Assistant Professors in AGP Rs.6000 w.e.f. 1st January, 2006 and granted AGP Rs.7000 w.e.f. 1st July, 2006 vide pay fixation order dated 20th January 2010. Further, on the recommendations of the selection committee in terms of directives of Ministry of Human Resource Development (hereinafter being referred to as the MHRD) dated 14th March, 2012 and 18th March 2013 and with due approval of the Board of Governors, NIT, Hamirpur, they were fixed in the AGP Rs.8000 vide orders dated 25th June, 2013 and 12th November, 2013 respectively. The orders passed by the competent authority granting AGP of Rs.8000 are not the subject matter of challenge.6. It may be noticed that earlier, such of the Assistant Professors and Lecturers (Selection Grade) who had completed the requisite period of service in the appropriate pay scale with the approval of the competent authority, were re--designated as Associate Professor in the pay scale/pay band PB--4 (Rs.37400--67000) with AGP Rs.9000 by an order dated 22nd June 2010 as per the MHRD guidelines dated 18th August, 2009 and letter dated 31st December, 2008.7. But this time, the Director of the NIT, on its own, on mere completion of three years in the AGP Rs.8000, without undergoing the process of selection or the recommendations being made with the approval of the Board of Governors, granted benefit of AGP Rs.9000 with re--designation as Associate Professor to all the six respondent teachers and one of the orders for the purpose of reference is reproduced hereunder:-NATIONAL INSTITUTE OF TECHNOLOGYConsequent upon the completion of 03 years of service in AGP 8000(6th CPC) by Dr. O.P. Rahi on 24/07/2013, he is hereby placed in the higher pay band of Rs. 37400--67000 with AGP 9000 and designated as Associate Professor w.e.f. 25/07/2013 in term with para 2 (a)(x) of Govt. of India, Ministry of HRD, New Delhi letter No. 1--32/2006--U.I(i) dated 31st December 2008.The above incumbent will be entitled to draw the basic pay of 12400+AGP 9000 w.e.f. 19/10/2013 subject to verification by audit and subsequent direction, if any, received from MHRD in this regard.1. Above named officer through HOD, MED2.Dy. Registrar(Accounts), NIT Hamirpur(HP)3.PF of the individual8. Since it was not approved by MHRD as it was held to be in contravention to the guidelines dated 14th March, 2012 and 18th March 2013, that became the cause of grievance to approach the High Court by filing the writ petitions under Article 226 of the Constitution.9. The High Court, under the impugned judgment, held that MHRD was not the authority competent to issue guidelines after the Act, 2007 came into force and since the statute, for the first time, was incorporated/enacted in 2017, laying down the recruitment rules relating to the promotion of teachers in NIT having been incorporated by an amendment to the statute by clause 23(5)(a) on 21st July, 2017 whereby schedule E has been appended providing qualifications and other terms and conditions for academic staff of NITs which may be applicable prospectively and accordingly upheld their placement in the higher pay band of Rs. 37400--67000 with AGP Rs.9000 and their re--designation as Associate Professor with a further direction for their consideration to the post of Professor in accordance with the guidelines which have now been enforced in the year 2017.

Reasoning:
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.