Case: GELUS RAM SAHU AND OTHERS Vs. DR. SURENDRA KUMAR SINGH AND OTHERS

3. Respondent No. 1 started teaching as a lecturer of electrical engineering at the Govt Polytechnic College, Ambikapur on 10.11.1993 and was promoted as the Head of Department (hereinafter, HOD) of electrical engineering at the Govt Polytechnic, Durg from 03.03.2009. He is presently working at Govt. Polytechnic, Kabirdham with additional responsibility of Principal-in-charge. Having completed three years of service as HOD on 01.01.2012, Respondent No. 1 applied for the post of Principal in response to the process of promotion initiated by the State of Chhattisgarh (Respondent No. 2) in 2014. Along with Respondent No. 1, numerous other serving HODs (including the seven appellants herein) too participated in the selection process. Whereas Appellants No. 1 to 7 were declared successful through notification dated 25.06.2014, the 1 st respondent did not figure in the selection list4. Respondent No. 1 being aggrieved approached the High Court, complaining that his fundamental rights stood violated as the promotion process was in contravention of the Pay Scales, Service conditions and Qualifications for the Teachers and other Academic Staff in Technical Institutions (Diploma) Regulations, 2010 (hereinafter, 2010 AICTE Regulations). These regulations were framed by All India Council for Technical Education (Respondent No. 3, hereinafter AICTE) in exercise of its powers conferred under the AICTE Act, 1987 which has been enacted by Parliament with reference to Entry 66 of the Union List contained in Schedule VII of the Constitution; and is thus binding on the State of Chhattisgarh (Respondent No. 2). The Chhattisgarh Technical Education (Teaching cadre-Polytechnic) (Gazetted) Service Recruitment Rules, 2014 (hereinafter, 2014 Chhattisgarh Rules), in so far as they allow candidates without Ph.D to be appointed as Principals, were contended to be illegal for being in contravention of the 2010 AICTE Regulations whereunder, according to respondent No. 1, Ph.D degree was a mandatory qualification for the post of Principal5. Respondent No. 1 butressed his superior claim highlighting that he had the requisite three-year HOD experience and there was no complaint or disciplinary enquiry pending against him. On the other hand, he urged that the appellants had been promoted though none of them was having Ph.D qualification. He further alleged several other irregularities in the selection process, including the below- specification ACR gradings possessed by certain candidates. Accordingly, Respondent No. 1 sought quashing of the 2014 Chhattisgarh Rules and the promotion order dated 25.06.2014; review of the proceedings conducted by the Departmental Promotion Committee and the grading awarded to him in his Annual Confidential Reports of 2012 and 2013, and further sought resultant reconsideration of his case for promotion from HOD to Principal6. The High Court viewed that the 2010 AICTE Regulations were binding, and relying upon a decision of the High Court of Kerala in B Ajith Kumar v. State of Kerala (2009) 3 KLJ 563, it held that the State Government could not lower the qualification threshold. Further, the High Court interpreted the AICTE criteria to imply that Ph.D was mandatory for appointment/promotion as Principal and any ambiguity which could plausibly have existed in the initial formulation of 2010 AICTE Regulations, had been clarified through the All India Council for Technical Education (clarifications on certain issues/anomalies pertaining to Qualifications, Pay Scales, Service Conditions, Career Advancement Schemes (CAS) etc. for Teachers and other Academic Staff of Technical Institutions Degree/Diploma), 2016 (hereinafter, 2016 AICTE Notification) which although published on 04.01.2016 would operate retrospectively being clarificatory in nature.Consequently, the High Court quashed the incongruous parts of 2014 Chhattisgarh Rules7. The High Court further observed how Appellant No. 1 was Chairman of the very Committee which drafted the 2014 Chhattisgarh Rules, making him an interested party. Noting yet other infirmity regarding the date of publication of 2014 Chhattisgarh Rules in the official gazette, the High Court quashed the order promoting Appellant Nos. 1 to 7 to the posts of Principal of the Polytechnic Colleges.

Reasoning: It is not a matter of dispute that AICTE is a creation of the said statute and the Regulations framed by it in exercise of the powers under the AICTE Act, 1987 carry the force of law. Indeed, it has been accepted by learned counsel for the parties that the 2010 AICTE Regulations would be the governing law, holding the field, and would bind all parties, including the State of Chhattisgarh15. A perusal of the qualification table makes it obvious that there can be multiple HODs for different departments (like Engineering, Architecture, Hotel Management, Pharmacy etc). In order to be HOD of any such Department, a prospective candidate needs to have both Masters and Bachelors degrees in the relevant field. Whereas candidates with a Ph.D must have had 5 years of experience in the allied field, others without it must have worked for 10 years. Phrased differently, Ph.D is not mandatory for HOD, and instead results in a 5- year relaxation in requisite work experience. In other words, Ph.D has been treated equivalent to 5 years teaching experience16. The interpretation as propounded by Respondent No. 1 would necessarily mean that there is no power with a State Government to make Ph.D optional, and that the higher of the two alternate criteria specified under the 2010 AICTE Regulations would be binding on all. We find such a plea is problematic on two counts. Firstly, it implies that Ph.D, specifically in Engineering only, would be compulsory for all principals. This creates an inconsistency as such a restriction would be in conflict with the nature of experience specified by the AICTE, like recognition of Experience Certificate granted by the Council for Architecture, which undoubtedly shows that there can be candidates other than from the field of Engineering eligible for appointment as Principal. Secondly, such a contention would be iniquitous in so far as it disenfranchises HODs from multiple recognised departments from applying to the posts of Principal, and arbitrarily restricts the zone of consideration to Engineering HODs only. Such seems to be neither the intent of the 2010 AICTE Regulations nor is it supported by any cogent reasoning17. We are also not inclined to read down the rules to omit the in Engineering part and only selectively insist upon a Ph.D, for in the present facts it would amount to crossing the fine line between interpretation and legislation. Hence, the only permissible way to read the AICTE criteria would be to lay emphasis on the phrase or and hence interpret Ph.D in Engineering as being optional and it being discretionary upon the adopting institution/State Government to specify either of the two criteria18. This does not mean that we have not given due weightage to Ph.D degree while interpreting the 2010 AICTE Regulations. A candidate with Ph.D degree can become HOD with merely 5 years of work experience, whereas candidates without Ph.D need to work for 10 years. Although, requirement of experience for becoming Principal is 10 years uniformly, it comes with a stipulation that 3 years must have been spent as HOD or in an equivalent position. Thus, a candidate without Ph.D would compulsorily need 10 years experience for HOD and would need to work further 3 years in that capacity, i.e. for minimum of 13 years experience to become Principal. Those with a Ph.D on the other hand, can apply for principal-ship within 10 years, as they would have become eligible for HOD with 5 years experience, and could have completed the further 3 years term as HOD in the interregnum. Hence, hypothetically, there is a 5-year eligibility relaxation granted under AICTE Regulations to those with a Ph.D19. The afore-stated advantage is only further exacerbated under the 2014 Chhattisgarh Rules, where those without a Ph.D need 15 years experience and those with such higher degree, can be appointed within 10 years20. Additionally, construction of 2010 AICTE Regulations this way, avoids conflict with the 2014 Chhattisgarh Rules, as extracted above. Even otherwise, given a choice between two interpretations, one which restricts the pool of applicants for public employment and another which enfranchises many, it would befit the spirit of Article 16 that the expansive interpretation is adopted. Such a recourse would both provide opportunities to a wider meritorious class, will increase competition and concomitantly ensure meritorious selections(ii) Does the 2016 AICTE Notification retrospectively clarify eligibility conditions for appointment as Principal?24. After going through the contents of the 2016 AICTE Notification in its entirety, we are of the opinion that the conclusion drawn by the High Court is erroneous for a variety of reasons. At the very outset, no attempt appears to have been made to determine the nature of the 2016 AICTE Notification, as to whether it supplements an obvious omission in the 2010 AICTE Regulations and most importantly its effect on those who have meanwhile acquired vested rights25. Clarificatory legislations are an exception to the general rule of presuming prospective application of laws, unless given retrospective effect either expressly or by necessary implication. In order to attract this exception, mere mention in the title or in any provision that the legislation is clarificatory would not suffice26. The present case is one where except for the title, nothing contained therein indicates that the 2016 AICTE Notification was clarificatory in nature. The said Notification is framed in a question- answer style and merely restates what has already been made explicit in the 2010 AICTE Regulations. There seems to be no intent to alter the position of law but instead only to simplify what the AICTE had resolved through its original regulation. The 2016 AICTE Notification is a response to the doubts put forth to AICTE by the public. This is evident from the stand put forth by AICTE before us in its reply as well as during the course of hearing, namely, that there is no retrospective alteration in the qualification prescribed for the post of Principal27. Even if the 2016 AICTE Notification was clarificatory, it must be demonstrated that there was an ambiguity in the criteria for appointment to the posts of Principal, which needed to be remedied. Clarificatory notifications are distinct from amendatory notifications, and the former ought not to be a surreptitious tool of achieving the ends of the latter. If there exists no ambiguity, there arises no question of making use of a clarificatory notification. Hence, in the absence of any omission in the 2010 AICTE Regulations, the 2016 AICTE Notification despite being generally clarificatory must be held to have reiterated the existing position of law28. As discussed earlier, there were no two interpretations possible, and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in no uncertain terms, reprised the substance of 2010 AICTE Regulations(iii) Whether retrospective changes in qualificatory requirements can affect the existing appointments?29. Having held that the 2016 AICTE Notification is only complementary to what the AICTE had laid down in 2010, we may hasten to add that even in a situation where eligibility conditions are clarified from an anterior date, it may not be prudent to affect the appointments which had been made on the basis of a possible understanding of the eligibility conditions32. The aforestated principle would apply with equal force on the outcome of judicial review also and any new meaning given to a set of Rules/Regulations by the court of law would not ordinarily unsettle the settled appointments or conferment of other service benefits. We are, nevertheless, fully conscious of the legal position that appointment of a candidate who has erroneously secured public employment without fulfillment of minimum qualifications can always be annulled upon discovery of mistake. An appointment which is erroneous or illegal from the very inception does not clothe the appointee with any indefeasible right and such appointment is always subject to correctional decisions33. There is no quarrel that the appellants herein do not possess Ph.D. However, they satisfied the requirement of having fifteen years experience (of which at least three years was as HOD) under the 2014 Chhattisgarh Rules and were found suitable for promotion by the Departmental Promotion Committee on the basis of various other material. They have also been found in possession of one of the eligibility criteria prescribed under the 2010 AICTE Regulations. We are, thus, of the considered opinion that the appellants appointments ought to remain undisturbed in any eventuality34. This takes us to the last objection taken by the High Court regarding conflict of interest. It is not in dispute that the State Government had inducted Appellant No. 1 in a Committee which submitted the draft service rules. It is, however, difficult to accept (nor has it been alleged) that the said appellant held a position through which he could influence the rule-making authority to exercise its powers under Proviso to Article 309 of the Constitution as per his wishes. He was holding too small a position that no inference of his dominance in the decision making process can be drawn.