SH K R MANN RETIRED AS LIBRARIAN & ORS. vs GOVT. OF NCT OF DELHI & ANR.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 04, 2024
+ W.P.(C) 10855/2021 & CM APPL. 33484/2021
SH K R MANN RETIRED AS LIBRARIAN & ORS.
….. Petitioners
Through: Mr. D.N. Goburdhan, Sr. Adv. with Mr. Rajkumar Maurya, Ms. Gauri Goburdhan and Mr. Aakash, Advs.
versus
GOVT. OF NCT OF DELHI & ANR.
….. Respondents
Through: Mrs. Avnish Ahlawat, Standing Counsel, GNCTD (Services) with Mrs. Taniya Ahlawat, Mr. Nitesh Kumar Singh, Ms. Laavanya Kaushik, Ms. Aliza Alam and Mr. Mohnish Sehrawat, Advs.
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
J U D G M E N T
V. KAMESWAR RAO, J
1. The challenge in this petition is to an order dated July 16, 2021, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (Tribunal, for short) in Original Application being No. 4427/2017 (OA, for short) challenging the order dated October 16, 2017 passed by the respondent No.2 / department, wherein the prayer for grant of Senior Scale to the petitioners was rejected.
2. The facts as noted from the petition are that the petitioners worked under respondent No.2, the Directorate of Training and Technical Education as Librarians and Physical Training Instructors (PTIs, for short), which is guided by the instructions of All India Council for Technical Education (AICTE, for short). The contention of the petitioners before the Tribunal was that, similarly situated employees who worked as Librarians and PTIs under respondent No.2, were given Senior Scale by the Courts, which the petitioners are also entitled to.
3. The case of the petitioners before the Tribunal was that the Librarians and PTIs of the respondent No.2 herein, claimed parity in pay scale with Teachers in all respects. In the context of extending the benefit of Senior Scale, the petitioners cases were put before the Screening Committee. The cases of 21 Librarians and PTIs were considered by the Committee but it did not find anyone fit for extension of the benefit of Senior Scale. In that regard, an order was passed on November 16, 2017. It was the said order which was challenged before the Tribunal, in the OA.
4. It was also the case of the petitioners that, once they are treated at par with Teachers, and some Librarians and PTIs were extended the benefit of Senior Scale without any selection process, there was absolutely no basis for the respondents in subjecting the petitioners to selection, much less denying the benefit by treating them as unfit. It was also their case that the respondents have granted the part benefit of the order dated January 23, 2014 but has refused to give the benefit of the remaining part of the said order, to the extent of grant of Senior Scale and Selection Grade.
5. The petitioners have also challenged the decision of the respondent No.2, dated October 16, 2017 being violative of order of the Tribunal dated January 19, 2016 in OAs 3088-90/2015 & statement made before this Court in W.P.(C) 46, 48 & 49/2017. They sought directions against the respondents to implement the order dated January 23, 2014.
6. The case of the respondents before the Tribunal was that, even though the petitioners were treated at par with the Teachers, the Senior Scale can only be granted by the Screening Committee. The Screening Committee assigned reasons in respect of the petitioners as well as other Librarians and PTIs for rejection of their claim. It was also their case that the order dated January 23, 2014 was issued in special circumstances to comply with the order of this Court in the Contempt Case No.533/2012, and it is because of the threat of contempt proceedings, the department had issued the order dated March 27, 2017, to five employees. The respondent submitted that the power to relax the mandatory condition of undergoing Orientation Course / Induction Training for grant of Senior Scale rests with the AICTE and the said power has been upheld by various judgments of various High Courts. In the case of petitioners, the Screening Committee had considered the petitioners, but they were not found fit for grant of Senior Scale as they did not undergo Orientation Course / Induction Training. The Tribunal after hearing the parties has in paragraphs 9 to 13 held as under:-
9. A perusal of the same discloses that it was not a relief which was granted straightway or unconditionally. The actual relief would depend upon several steps to be taken by the AICTE and by the Government. Obviously for that reason, the contempt cases filed in relation to that, also did not yield any tangible results. Some of the Librarians and PTIs filed OA No. 3088/2015 and two others, before this Tribunal. Extensive discussion was undertaken and the OAs were allowed, in a way granting relief far exceeding the one that was granted in the Writ Petition. What made the things a bit serious was that in the contempt case filed by the applicants therein, arrest warrant was issued. Obviously under panic, the officials of the respondents therein, approached the Honble High Court so much so they gave an undertaking not to challenge the order in the OA. Be that as it may, the benefit was extended to those persons. Without waiting further, the respondents have brought parity of pay scales of all the Librarians and PTIs on par with those of Teachers. The issue in this OA is about the senior scale.
10. The senior scale is part of the Career Advancement Scheme (CAS). On completion of stipulated length of service, a Teacher becomes eligible to be considered for senior scale on being found suitable, by the Screening Committee. A selection process is involved and mere completion of length of service is not sufficient.
11. The impugned order dated 16.10.2017 discloses that cases of quite large number of Librarians and PTIs were considered and none of them were found fit for the benefit. In the counter affidavit, the reasons on account of which the applicants herein were not found fit for the senior time scale are mentioned. They read as under:
Name Reason for Non recommendation
S.R. Suman Not completed 8 weeks orientation course/Induction training and one refresher course or industrial training, which is the mandatory condition for grant of senior scale as per AICTE guidelines/clarification.
K.R. Mann Do
S.P. Nasa Not completed 8 weeks orientation course/Induction training and one refresher course or industrial training, which is the mandatory condition for grant of senior scale as per AICTE guidelines/clarification. In addition she is only passed in B. Libs and do not have second division.
S.S. Gautam Not completed 8 weeks orientation course/Induction training and one refresher course or industrial training, which is the mandatory condition for grant of senior scale as per AICTE guidelines/clarification.
Sheo Raj Singh do
Om Prakash Jatav do
Usha Johar Do
12. Once the Screening Committee took the view and assigned reasons for not recommending the case of the applicants, no exception can be taken to it.
13. It is argued that some of the Librarians and PTIs were extended the benefit without subjecting them to selection process. Even if that is true, the applicants cannot avoid or bypass the process of selection which is part of the Scheme itself. There cannot be precedents for committing wrongs.
7. Mr. D.N. Goburdhan, learned Senior Counsel appearing for the petitioners stated that, as per order dated January 23, 2014, the petitioners are entitled to the Senior Scale of ?10,000-325-15200/- and Selection Grade of ?12000-420, 18300/-. He also stated that the persons like the petitioners appointed prior to January 01, 1996, were granted the benefits by the Tribunal and this Court, whereas the petitioners were denied the same as their cases were not put before the Screening Committee in proper perspective.
8. He stated that similarly situated employees like the petitioners herein, whose pleas were rejected by the Screening Committee, have been accepted by the Tribunal. In support of his submission, he has relied upon the judgment/order of the Tribunal dated January 19, 2016, in OA 3088/2015 in Paramjeet Kaur Dhillon & Anr. v. GNCT of Delhi & Ors. and connected matters, wherein the Tribunal had directed the respondents therein to grant updated pay scales with all consequential pecuniary benefits to the applicants therein.
9. Mr. Goburdhan submitted that the petitioners were appointed before January 01, 1996. The government ought to have acted like a model employer and granted the said prayer automatically. He stated that the respondents vide orders dated January 23, 2014 and January 04, 2017, have granted the benefit of Senior Scale and Selection Grade to the similarly situated persons (Librarians and PTIs). The said orders issued by the respondent No.2 were approved by the government i.e., the Lieutenant Governor of Delhi (Lt. Governor., for short). He also stated that the revised scale(s) of pay will be applicable irrespective of the qualification to the existing incumbents, to those who were appointed on or before January 01, 1996. He also stated that, on the order issued on January 04, 2017, the respondents have only, granted Entry Level scale of ?8,000-275-13500/-, but denied the benefit of other two levels (Senior Scale & Selection Grade Level).
10. According to him, the respondents have issued an order dated February 03, 2017, whereby one Librarian, Swantantra Nayar, who was similarly situated and identically placed like the petitioners, was given benefit of the order dated January 23, 2014. He contended that the respondent No.2 had made a turnaround from its own order dated March 27, 2017, as approved by the Lt. Governor, wherein all Librarians and PTIs were given the pay scale under Career Advancement Scheme (CAS, for short). w.e.f. their respective date.
11. He stated that the respondents have arbitrarily declared the 21 candidates as ineligible for grant of Senior Scale on the ground that they did not undergo the 8 weeks Short Term Course (STC, for short), knowing that the STC would not be applicable to those who were employed prior to January 01, 1996. Therefore, the purported action of the Screening Committee is arbitrary, irrational and capricious and is patently contrary to the orders passed and approved by the Lt. Governor, Delhi.
12. He stated that the Selection Committee and the Tribunal has mixed up the facts of the candidates appointed prior to January 01, 1996 and those appointed post January 01, 1996. He also stated that, it erroneously held the petitioners do not hold the STC eligibility whereas, the petitioners were employed prior to January 01, 1996, and as such the STC would not applicable to them. He also stated that this Court having granted relief to similarly situated persons, who were junior to the petitioners, the respondents ought to have granted the reliefs voluntarily to all the petitioners in view of the judgments of the Supreme Court in State of Karnataka v. C. Lalitha, 2006 (2) SCC 747 and Prem Devi v. Delhi Admn., 1989 Supp. (2) SCC 330. He also contended, the inaction of the respondents is patently arbitrary and violative of Article 14 and 21 of the Constitution of India.
13. Mr. Gouburdhan on an issue with regard to extending the reliefs to the similarly situated employees has stated that the respondents had asked UPSC and the UPSC stated that, it being an administrative issue, the respondent No.2 / Department itself should decide and act upon it.
14. He stated that, all the orders issued by the respondent No.2 and the order issued by this Court dated July 15, 2015, unequivocally reiterated the case of the petitioners that they are entitled to the relief as sought in the prayer clause.
15. Mr. Goubhardhan has submitted that, this Court vide order dated March 15, 2022 had asked the respondents, whether the persons whose name appears at page no.48 of the paper book, who were juniors to the petitioners, were given relief by the respondents without asking the juniors to qualify for the extra qualification whereas the petitioners were denied the relief and infact asked the respondents to file affidavit.
16. He submitted that the only consideration for the grant of Revised Pay scale to the existing staff is that the person should be appointed in the cadre prior to January 01, 1996. He also submitted that AICTE is the sole Authority to prescribe the benefits and the Delhi Government is bound to follow it. Moreso, the letter dated August 08, 2011, the AICTE has categorically stated that the revised qualification is applicable only to the fresh recruits. In support of the same, he has relied on the order dated July 15, 2015 of this Court in Cont. Case No. 139/2015. He seeks the prayers as made in the petition.
17. Mrs. Avnish Ahlawat, learned Standing Counsel for the GNCTD, has stated that this Court vide order dated March 15, 2022 had directed the Department to file an affidavit as to whether or not the juniors to the petitioners were granted Senior Scale / Selection Grade, without qualifications. She submitted that, though the petitioners in OA Nos. 3088/2015, 3089/2015 & 3090/2015, were juniors to the petitioners herein, they were granted Senior Scale / Selection Grade in view of the order of this Court, in contempt jurisdiction, under the following circumstances:-
1. The Tribunal in the matter of Ms. Paramjeet Kaur Dhillon in OA No. 3088/2015, Ms. Swatantra Nayyar in OA No. 3089/2015 and Ms. Raj Dulari Gupta in OA No. 3090/2015, vide its order dated January 19, 2016, had directed to grant upgraded pay scale of 8000-13500/- (Entry Level, 10000- 15200/- Senior Scale and 12000-18300/- Selection Grade) to the applicant therein, from the due date under the facts and circumstances of the case, however, the following facts were not placed before the Tribunal in aforesaid OAs.
2. The AICTE mandated criteria for the consideration of suitability for grant of Senior Scale and Selection grade, was not placed before the Tribunal as stipulated in AICTE Notification 1999. The AICTE legal advice dated August 8, 2011 has no binding force as the same was contrary to the Regulations, therefore, it cannot supersede the AICTE clarification dated September 20, 2004. The AICTE letter dated August 8, 2011 stipulates, only relaxation of qualification. It does not provide further relaxation for the grant of higher pay scale under CAS. As per Recruitment Rules, the Librarians and PTIs were not recruited as Teachers and their duties and responsibilities are not at par with Teachers, as job evaluation was decided in OA No. 1728/2004 titled Smt. Shanta Jindal v. GNCTD.
3. The Supreme court in S.L.P. (C) No. 25682 of 2008 titled State of Madhya Pradesh & others v. Ramesh Chandra Bajpai, which was on similar lines as present one, that is for extending UGC pay scales to PTIs by considering them at par with Lecturers held that the proposition laid down in that case should not have been automatically extended to other case, like the present one, where employees are governed by different sets of rules.
18. She stated that, in compliance of the direction of the Tribunal in OA Nos. 3088/2015, 3089/2015 & OA No. 3090/2015 and the order dated January 05, 2017, Departmental Selection committee was held on January 11, 2017 to consider the cases of petitioners in aforesaid OAs for grant of Senior Scale and Selection Grade. The Committee found only one applicant fit for grant of Senior Scale, rejecting the others, as they had not completed Refresher Courses of 8 weeks as directed by AICTE. The office order dated February 03, 2017, was passed in this regard.
19. She stated that the Tribunal disagreeing with the said order of the department, passed an order in Contempt Petition bearing CP No.100/231/2016 filed in OA No. 100/3088/2015, in which the Tribunal time and again directed the implementation of the order dated January 19, 2016 passed in OA No. 3088/2015. In the same order the Tribunal directed the presence of Ms. Puniya Salila Shrivasta, Secretary, Department of Training and Technical Education, by issuing bailable warrants of ?2000 to secure her presence. By again disagreeing with the office order dated February 03, 2017, Tribunal called for the presence of the then Secretary, DTTE on the next date. The answering respondents therein, under the fear of contempt, passed the order dated March 27, 2017, granting the Senior Scale and Selection Grade to the petitioners therein.
20. She stated that, it was explicitly mentioned towards the end of the order dated March 27, 2017, that the said order is passed in the facts and circumstances of that present case(s). Therefore, the order dated March 27, 2017, cannot rightly be treated as a precedent in the instant case on which the petitioners have relied on.
21. Mrs. Ahlawat stated that the grant of Senior Scale under CAS is on merit basis and not based on seniority. The same is granted with effect from the date of meeting minimum eligibility as per AICTE Norms, which aspect has been examined by the High Court of Assam in WP No. 578/2013 titled Sri Bhabesh Goswami & Ors. V. State of Assam and Ors. She also stated that, it is settled position of law that, an order made in fear of contempt cannot be treated as a precedent/law. In support of her submission, she has relied on the Judgment of the High Court of Patna in the case of Prof. Dr. Arun Kumar v. The State of Bihar & Ors. decided on 27 February, 2015 in Civil Writ Jurisdiction Case No.1052 of 2014, wherein the Court, while dealing with an Advertisement issued by Bihar Public Service Commission, inviting applications for appointment on two posts of Principal in Government Engineering Colleges, has held that:
“The Court, further, has no hesitation in recording that whatever has been done with regard to Dr. Achintya may not hold true for the present petitioner, because even that recommendation seems to be vulnerable. If the authorities out of fear of contempt have made an offer to Dr. Achintya, the same position does not stand for the petitioner.”
22. Furthermore, she stated that, if a wrong has been done once, the same cannot be continued to be repeated, as the mistake or wrong is open for correction, this being the universal law, she submitted that, it is the settled law that, no court can traverse beyond the statutory rules and regulations as also explanatory instruction thereon, as held by the Supreme court in Ramesh Chandra Bajpai(supra).
23. She has relied upon the following judgments :-
a. Chandigarh Administration and another v. Jagjit Singh & Another, (1995) 1 SCC 745,
b. State of Harcana v. Charanjit Singh (2006) 9 SCC 321,
c. Writ Appeal No. 45262/2015 titled Smt. Geeta Dixit & Ors. v. The Seey, Govt. of U.P. and ors.
24. She submitted that, this Court in another case, Contempt case No. 762/2015 titled as Dhanesh Kumar v. Puniya Salila Srivastava, has clearly mentioned that the Director of the department will consider the cases after placing before Screening Committee, in consonance with AICTE Notification of 1999. She submitted that, accordingly the department placed all the cases before screening / Selection Committee including that of the petitioners and their cases were rejected for not meeting AICTE criteria for grant Senior Scale. She also stated that the department passed the order dated January 04, 2017, after suitability assessment by UPSC for entry level pay scale for Senior Scale, wherein, the petitioners were not fount fit by the committee.
25. She in reply to the order seeking relaxation in STC / Orientation Course etc., stated that the GNCTD had referred the matter to the AICTE vide letter dated September 07, 2017 and subsequent reminders dated October 25, 2017, January 30, 2018 & July 17, 2018 were sent to the AICTE. In this respect AICTE vide letter dated October 27, 2017, informed the GNCTD, that:-
“the issue raised by you is proposed to be placed before the Apex Committee meeting when it meet next for deliberation. The decision taken in this regard will be communicated to you”.
However, no response is received by AICTE specifically on the issue further.
26. She, on the issue of relaxation, stated that the power of relaxation to the conditions for the grant of higher pay scales rests with the AICTE, a Statutory Body of Government of India established by an Act of Parliament (No.52 of 1987). She has also stated that, in general the AICTE vide clarification dated May 20, 2020, has not given the specific clarification with regard to the relaxation. As per records, there is no mention that the order dated January 23, 2014 has been withdrawn/ modified in absence of AICTE clarification.
27. She contended that the office order dated January 23, 2014, was issued in special circumstances in reference to order dated January 20, 2014 of this Court in CP 533/2012 titled Paramjeet Kaur Dhillon v. Malswama & ors., which is in reference to the extension of retirement age to 62 years. The office order dated January 23, 2014 also shows, the order was passed to implement the AICTE Pay Scales in general, which was in compliance with order dated January 23, 2014. She also stated that, in the said order, there is no relaxation of the mandatory requirement of AICTE guidelines and procedure for the assessment of suitability for entry level pay scale (through UPSC) and grant of Senior Scale and Selection grade through Screening/Selection Committee.
28. She stated that, in compliance to order in CP No. 762/2015, the case of the petitioners were placed before the Screening/ Selection Committee and were rejected. Therefore, the petitioners were not granted Senior/ Selection grade. She also stated that this Court in CP No. 762/2015, 770/2015 &771/2015 vide order dated May 05, 2017 directed the department, as under: –
“
.petitioners have been granted pay scale of Rs. 8000-275-13500 at entry level in pursuance to the suitable assessment conveyed vide letter dated 29th December, 2016 issued by Union Public service Commission. Learned counsel for respondent assures this Court that the suitability of the petitioners for senior scale shall be considered by the Selection Committee in accordance with AICTE letter dated 27th August, 2014 within a period of four weeks.
The statement made by learned counsel for respondent is accepted by this Court and respondent is held bound by the same-…”
29. Accordingly, the department placed all the cases before Screening / Selection Committee including the petitioners and their cases were rejected for not meeting AICTE criteria. The department passed the order dated January 04, 2017 after suitability assessment by UPSC for Entry Level pay scale. She also stated that the respondents are bound by AICTE regulations and have no power to relax the mandatory requirement and the same has been held in judgment of CWP No. 1613 of 2001 in Mr. Sanjeev Lodhan Gupta & Ors. v. Govt. of NCT of Delhi & Ors. and upheld by the Supreme Court in the case of Govt. of NCT of Delhi & Ors v. Sanjeev Lochan Gupta & Ors, C.A. No. 4026 of 2003 decided on March 16, 2012, which is reiterated as: –
“the respondent (i.e. Govt. of NCT of Delhi & Ors) are directed to strictly comply with the direction of the AICTE as contained in the said Notification”.
30. She seeks dismissal of the present petition.
31. Having heard the learned counsel for the parties, the short issue which arises for consideration is whether the Tribunal is justified in rejecting the OA filed by the petitioners herein for grant of Senior Scale of ?10,000-325-15,200/- and Selection Grade of ?12,000-420-18,300/-.
32. There is no dispute that, in terms of the notification issued by the AICTE, the petitioners have been granted the Entry Level Scale of ?8,000-275-13,500/- w.e.f January 1, 1996. The Tribunal in the impugned order has rejected the prayer for Senior Scale by noting the stand of the respondents that the petitioners are not found fit for being granted the Senior Scale as they have not undergone the 8 weeks Orientation Course / Induction Training and one Refresher Course or Industrial Training which is mandatory (Course) for the grant of Senior Scale as per AICTE Notification, 1999.
33. It is to be noted that the notification issued by the AICTE dated December 30, 1999, was in respect of revised pay-scales and service conditions of Teachers, Librarians and PTIs in Diploma Level Technical Institutions. The said notification insofar as the Cadre Structure is concerned, reads as under:
34. Clause 5 of the notification refers to qualifications for Teaching posts, which reads as under:
5.0 QUALIFICATIONS
1. The prescribed minimum qualifications and experience requirements for various teaching posts in diploma level technical institutions are given (Appendix-B).
2. Where qualifications and experience prescribed for a post in this pay revisions are higher than the qualifications and experience prescribed by ACITE for that post prior to this revision.
(i) 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.
(ii) For open selection to a higher cadre position through advertisement internal candidates presently working in lower position will be exempted form the prescribed higher qualification and experience to the extent that they will be required to possess only the qualifications and experience prescribed by ACITE 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 January1, 1996 and who at the time of their recruitment possessed only a second class in their degree at Bachelors or Masters Level (but met all the qualification requirement prescribed by ACIET at the time of their recruitment) Shall be exempted from the requirement of First Class for the Degree they had at the time of their recruitment.
(emphasis supplied)
35. As per, sub-clause 3 of clause 5 of the said notification, a Teacher already in service prior to January 1, 1996 at the time of his / her recruitment possessed only second class in his / her, Degree of Bachelors or Masters level shall be exempted from the requirement of first class in the Degree they had at the time of his / her recruitment. Having said that, the grant of Senior Scale which has been introduced in terms of the notification of the AICTE dated December 30, 1999, mandates that a Lecturer must have participated in one Orientation Course / Induction Training and one Refresher Course or Industrial Training of aggregate duration of 8 weeks. Those who have Ph.D. Degree shall be exempted from the Courses / Training requirement. The above is clear from Clauses 8.1, 8.2 and 8.3 under the heading General which reads as under:
8.1 General:
(a) Career Advancement provided for movement of Career to Lecturer (Senior Scale)
(ii) Senior Lecturer /Lecturer (senior scale) to Lecturer (Selection Grade)
(b) For promotion under Career Advancement Scheme,
(i) The candidate must have consistently satisfactory performance appraisal reports.
(ii) Assessment and selection would be made by a selection committee, as required for normal selection by the respective institution.
(iii) The prescribed teaching/ contact hours of a teacher selected promoted under the Career Advancement Scheme shall remain the same as that of the substantive post he / she is occupying.
ACITE, would in due course, specify the guidelines for the selection process and the composition of the selection Committee for promotion under Career Advancement Scheme. Until the ACITE scheme is announced, Selection Committees same as prescribed for direct recruitments to the corresponding posts may be used for such promotions.
8.2 Lecturer (Senior Scale) :
A Lecturer will be eligible for placement as Lecturer (senior Scale), through a process of selection if he / she has:
(i) Completed 6 years of service after regular appointment as a Lecturer, with relaxation of 2 years for these with Ph. D. and one year for those with M. Phil / M.E./M.Tech.,
(ii) Participated in one orientation course / induction training and one refresher course or industrial training of aggregate duration of 8 weeks, or has undertaken other appropriate continuing education or training programmes of comparable quality and duration as may be specified or approved by ACIET. Those with ph. D. degree would be exempted from these course/ training requirements.
8.3 Lecturer (Selection Grade) :
A Senior Lecturer / Lecturer (Senior Scale) who has a Masters degree and 5 years experience as senior Lecturer of Lecturer (Senior Scale), and has consistently satisfactory performance appraisal reports will be eligible to be placed as Lecturer (Selection Grade), subject to the recommendation of the Selection Committee.
36. We may state that the petitioners herein have been found unfit for not undergoing the mandatory 8 weeks Orientation Course / Induction Training and one Refresher Course or Industrial Training, as per the CAS of AICTE Notification, 1999.
37. It appears that the case of the petitioners was primarily that the employees who are junior to them like Swatantra Nayyar, Abha Lata Srivastava, Raj Dulari and Paramjeet Kaur Dhillon etc. were granted the benefit of Senior Scale and Selection Grade in terms of the notification.
38. In this regard, much reliance has been placed by the counsel for the petitioners on the stipulation that the Teachers who are already in service prior to January 1, 1996 are exempted from such requirement of Short-Time Course / Induction Training.
39. We are not in agreement with this plea of the counsel for the petitioners for the reason that the said condition (s) is a part of the notification issued by the AICTE for grant of Senior Scale. Admittedly the petitioners do not possess the said condition (s). They could have undertaken the Course / Training being of 8 weeks, i.e., 2 months. So, it follows without the said Course / Training, the petitioners cannot get the Senior Scale. If the petitioners cannot get Senior Scale they cannot be given the Selection Grade as well, as it pre-supposes on completion of 5 years of service Senor Lecturers of Senior Scale / the Librarian / the PTI shall get Selection Grade Scale. In fact, the AICTE has issued a clarification on September 10, 2003 wherein the AICTE has stated as under:
2. Relaxation in Orientation and Refresher Courses till year 2002.
There is no relaxation in Orientation Course, Refresher Courses and Short Term Courses. It remains a mandatory requirement for promotion to the next higher cadre.
For people from Basic Sciences and Humanities, attending a four-week orientation course is not compulsory, instead, it can be replaced by Summer School/Winter School of equivalent duration.
40. In fact, it appears that, on September 7, 2017, the respondents in its communication to the Member Secretary, AICTE, had sought relaxation of the said stipulation. It is the case of the respondents that, no response was received from the AICTE.
41. In any case, the fact that the stipulation was put under the CAS in terms of AICTE notification 1999, no relaxation can be given. It follows that the said requirement is mandatory and Librarians / PTIs appointed prior to January 1996 would not get exemption from the Orientation Course, Refresher Course / Short Term Course.
42. The counsel for the petitioners has relied upon certain communications issued by the AICTE to contend, the existing incumbents like the Librarians and PTIs being eligible to draw revised pay-scales w.e.f January 1, 1996, i.e., they are also eligible for Senior Scale / Selection Grade as per the AICTE Notification, 1999. Similarly, they have relied upon the communication dated August 23, 2004 of the AICTE to state that the revised qualifications and experience even if prescribed with revised scales are to be made applicable for fresh recruitment only.
43. According to them, the AICTE clarification is, the consideration for giving revised pay-scales to the existing faculty should be that the persons concerned were appointed in the cadre prior to the date of revision, i.e., January 1, 1996. Similarly, in the communication dated August 8, 2011, the revised scales of pay will be applicable and the revised qualification will not be applicable to the incumbents appointed prior to January 1, 1996. They have also relied upon the order dated January 23, 2014 issued by the respondents, wherein a reference has been made seeking clarification to order dated August 8, 2011 to the extent that revised scales of pay will be applicable, however the qualifications will not be applicable to the existing incumbents appointed prior to January 1, 1996.
44. We are not in agreement with the submissions made by the learned counsel for the petitioners. The clarifications issued by the AICTE is to the extent of qualifications, as mentioned in its notification dated December 30, 1999, and the same is only in respect of higher qualifications as prescribed in terms of the said notification. Though, the petitioners have not placed before the Court as to which higher qualifications have been prescribed with regard to Librarians and PTIs, be that as it may, the denial of Senior Scale to the petitioners is not because they do not possess higher qualifications but because they do not meet the mandatory requirement of Orientation/ Refresher Course / Industrial Training / STC.
45. In other words, the grant of Senior Scale presupposes undergoing Orientation/ Refresher Course / Industrial Training / STC which is different from an incumbent possessing higher qualifications. It is not the case of the respondents that the petitioners must possess higher qualification as prescribed under the notification.
46. The plea of the counsel for the petitioners seeking parity is misplaced. It is the case of the respondents that the benefit of Senior Scale / Selection Grade granted to the petitioners in OAs. 3088/2015, 3089/2015 and 3090/2015, is because of fear of contempt proceedings pending / initiated before this Court. In support of her submission, Mrs. Ahlawat is justified by relying upon the judgment in the case of Ramesh Chandra Bajpai (supra) to contend that two wrongs will not make one right. She has relied upon paragraph 17 of the judgment, wherein the Supreme Court has held as under:
17. It is also well settled that Article 14 of the Constitution carries with it a positive concept of equality. That Article cannot be invoked for perpetuating illegality. To put it differently, an illegal or wrong order passed in one case cannot be made the basis for compelling a public authority to pass similar order in other cases. Even if the State implements an erroneous order passed by the court, it cannot be precluded from challenging similar order passed in another case, simply because appeal was not preferred in the earlier case. In Government of West Bengal (supra), the Court upon noticing a large number of decisions, observed:-
25. In a case of this nature, the courts are required to determine the issue having regard to larger public interest. It is one thing to say that in a given case the High Court or this Court may not exercise an equitable jurisdiction under Article 226 or Article 136 of the Constitution of India, but it is another thing to say that the courts shall grant a relief to a party only on the ground that a contention which is otherwise valid would not be raised on the ground that the same was not done in earlier proceedings.
xxx xxx xxx
28. In the aforementioned situation, the Division Bench of the Calcutta High Court manifestly erred in refusing to consider the contentions of the appellants on their own merit, particularly, when the question as regards difference in the grant of scale of pay on the ground of different educational qualification stands concluded by a judgment of this Court in Debdas Kumar. If the judgment of Debdas Kumar is to be followed a finding of fact was required to be arrived at that they are similarly situated to the case of Debdas Kumar which in turn would mean that they are also holders of diploma in Engineering. They admittedly being not, the contention of the appellants could not be rejected. Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits (See State of Maharashtra v. Digambar).
(emphasis supplied)
47. Similarly in the case of Prof. Dr. Arun Kumar (supra), the High Court at Patna, has held as under:
The Court, further, has no hesitation in recording that whatever has been done with regard to Dr. Achintya may not hold true for the present petitioner, because even that recommendation seems to be vulnerable. If the authorities out of fear of contempt have made an offer to Dr. Achintya, the same position does not stand for the petitioner.
The writ application, therefore, is devoid of merit. It is dismissed, accordingly.
48. She is also justified in relying upon the following judgments:
a. In the case of Jagjit Singh & another (supra), wherein it was held that:-
..Generally speaking, the mere fact that the respondent- authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of this case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent- authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose.”
b. In Charanjit Singh (supra), wherein the Supreme Court has held that:
“We would, however, before parting make an observation, that the submission at the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour is not illegal. It has a positive concept.”
c. In Smt. Geeta Dixit & Ors. (supra), wherein the High Court of Allahabad has held as under:-
The petitioners have contended that their right had accrued in the past in their favour and as such, they were entitled for absorption according to their status but as indicated above at no point of time the petitioners were given any certificate to indicate that they were the retrenched employees contrary their engagement was purely temporary in nature and was liable to be terminated at any time without any prior information. The petitioners are claiming that they may be absorbed according to their status whereas the writ jurisdiction is meant to enforce the rule of law and not to violate the law. Once the State Government had framed the Rules of 1991, which was eventually rescinded by means of Rules of 2003 and admittedly the case of petitioners did not fall under the category of retrenched employees, no directive can be issued in violation to the Rules merely because some incumbents have been offered appointment, under the cover of the orders passed by this Court will not improve the case of the petitioners as two wrongs will not make a thing right, and equality in illegality, is totally against the rule of fair play and demand of petitioners, if accepted would be clearly violative of Articles 14 and 21 of Constitution of India.”
49. In so far as the judgments relied upon by Mr. Goburdhan in the cases of C. Lalitha (supra) and Prem Devi (supra) are concerned, the same are not applicable to the facts of this case.
50. In view of the above finding, we state that there cannot be a negative equality, more so, when the Career Advancement Scheme issued by the respondents clearly mandates the requirement of Orientation, Refresher and Short Term Course / Training for an incumbent to be given Senior Scale and thereafter Selection Grade, which admittedly the petitioners did not undertake.
51. In view of our above discussion, the Tribunal is justified in dismissing the OA. The writ petition is dismissed. No costs.
CM APPL. 33484/2021
As the writ petition has been dismissed, the instant application is also dismissed as infructuous.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J
MARCH 04, 2024/aky
W.P.(C) 10855/2021 Page 26 of 26