Judgment & Order:

1. The brief facts of the case are that the petitioner a holder of a First Class Master of Science Degree in Physics, was appointed as a Lecturer at the Shillong Polytechnic School in 09.01.1995. At the time of appointment, her service conditions were governed by State Government Rules but subsequently the pay scales and service conditions prescribed by the All-India Council for Technical Education (AICTE) for the faculty of the Institute were adopted with notional effect from 01.01.1996, as notified on 27.10.2009 and 26.11.2012. On this adoption, the petitioner began drawing pay in accordance with the AICTE pay scale and during her tenure in service was duly placed in the Senior Scale Lecturer position with Academic Grade Pay (AGP) of Rs. 7000/- under the Career Advancement Scheme (CAS) w.e.f. 09.01.2003. Thereafter, the petitioner was given further promotion under CAS to Lecturer (Selection Grade) in the pay band of Rs. 15,600-39,100/- with AGP of Rs. 8000/- w.e.f. 09.01.2008.

2. The petitioner’s grievance has arisen from the denial to her claim for subsequent promotion to the Higher Grade of Lecturer (Selection Grade) in Pay Band 4 i.e. Rs. 37,400-67,000/- with AGP of Rs. 9000/- which normally would become due upon completion of 3(three) years’ service in AGP Rs. 8000/- grade. The denial of her promotion as contained in the impugned notification dated 16.01.2024, was on the sole ground of her lack of a PhD which as per the respondents was mandatory by application of AICTE Regulations of 2010. The petitioner then assailed this interpretation as being erroneous and contrary to the express provisions of the relevant AICTE Regulations and made representations to this effect, which were however, rejected by the respondents while reaffirming their position vide a communication dated 01.04.2024 and 18.06.2025. The petitioner is therefore, before this Court by way of the instant writ application alleging arbitrariness on the part of the respondents, and has prayed for appropriate directions and reliefs.

3. Mr. S. Sen, learned counsel for the petitioner has submitted that the respondents have fundamentally misconstrued the applicable AICTE Regulations, inasmuch as, the mandatory requirement of possessing a PhD for promotion to AGP Rs. 9000/- grade as introduced in the 2010 and 2012 Regulations is prospective in its application. It is submitted that the proviso in the Regulations has made this requirement mandatory only to those who joined service after 05.03.2010, thus the petitioner who joined service prior to that date i.e. 1995 was protected. It is further submitted that the respondents in their interpretation applied this new qualification criteria based on her date of promotion, which fell due on 2011, while ignoring her date of entry into service. The action of the respondents it is contended, which amounts to an impermissible retrospective application, has vitiated the very protection afforded to incumbents under paragraph 5.0 of the AICTE norms and the proviso of the Regulations 2010/2012. It is then argued that the impugned notification dated 16.01.2024, is patently discriminatory, inasmuch as, other faculty members including those from core Technical Department such as Mechanical Engineering have been granted promotion to AGP Rs. 9000/- grade despite not possessing the higher qualifications of PhD/M. Tech for Technical streams, whereas the petitioner a Science and Humanities Lecturer under an identical CAS has been denied.

4. The learned counsel then submits that the distinction made by the respondents between Technical and non-Technical faculty for the same application of CAS is without basis, inasmuch as, the AICTE Regulations governs the service conditions of all Teachers in Technical Institutions for the purpose of Pay and Career progression. The denial he submits, based solely on the lack of PhD, which is not a requirement in the petitioner’s case has resulted in grave discrimination being caused, inasmuch as, she possesses all the required conditions for promotion including 3 years in AGP Rs. 8000/- grade, maintenance of consistent and satisfactory service record and successful completion of the AICTE approved Refresher courses and training programmes as required under the Regulations. The petitioner it is submitted is due to retire on 28.02.2026, and the wrongful denial of her due promotion w.e.f 09.01.2011, has resulted in a continuing financial loss which will also have adverse consequences on her calculation of pension, gratuity and other terminal benefits.

5. On the respondent’s reliance on the clarification that has been issued in 2016 to deny the petitioner for promotion, it has been submitted that the AICTE Regulations clearly prescribed cutoff dates, such as 01.01.1996 in the notification of 1999 and 05.03.2010, in the notification of 2010-2012 under the CAS. The learned counsel has submitted that Regulation 3.8 of the AICTE Regulation of 2012 as amended by its corrigendum, has specifically provided that only those who joined service after 05.03.2010, are required to possess a PhD to move Level-4 AGP Rs. 9000/- grade. In support of his submissions, the learned counsel has placed reliance in the case of Gelus Ram Sahu vs. Surendra Kumar Singh (2020) 4 SCC 484, wherein he submits that the Hon’ble Supreme Court has cautioned that a clarificatory notification ought not to be a surreptitious tool of achieving the ends of amendment and that any rule which retrospectively takes away or nullifies the benefit already granted or accrued, such as a promotion, can be challenged as being violative or Articles of 14 and 16 of the Constitution, to the extent of such retrospectivity.

6. In conclusion the learned counsel has submitted that the petitioner having entered service in 1995, is expressly protected under Regulation 3.8 of the un-amended Regulation, and by applying the requirement of a PhD based on the date when her promotion had become due in 2011, while ignoring the date of entry into service is arbitrary and impermissible. He therefore, prays that the petitioner on these clear grounds be allowed the reliefs as claimed.

7. Mr. N.D. Chullai, learned AAG assisted by Mr. E.R. Chyne, learned counsel for the respondents No. 1 to 6 & 9 has submitted that promotion under a CAS, is not a matter of vested right but a conditional benefit strictly contingent upon the fulfilling of eligibility criteria prescribed by the governing AICTE Regulations on the date the benefit accrues. The learned AAG then submits that the petitioner’s case, has to be examined in the light of the corrigendum to the AICTE Regulations of 2012, particularly clause 3.8, and has read out the said provision by contending that the term ‘incumbent’ used in the Heading to clause 3.8 is applicable to all the existing faculty members including the petitioner and that it has prescribed a condition that all incumbents moving to Level-4 AGP Rs. 9000/- grade require a PhD, except for those who can claim the specific exception of having joined service before 05.03.2010. It is argued that while the petitioner is an incumbent, she became due for placement to Lecturer (Senior Grade) in Level-4 AGP Rs. 9000/- on 09.01.2011, and as her due date for promotion falls after 05.03.2010, as per the AICTE Regulation of 2010, her placement or promotion was not permissible. This position it is submitted, is reinforced on the requirement being clarified by clarification of 2016.

8. Great emphasis on points 10 and 43 of the AICTE Clarification Notification dated 04.01.2016, which has clarified stream-based qualifications have been submitted by the learned AAG, to make a point that the petitioner belongs to Humanities and Science faculty and as per the clarification, PhD is an essential qualification. It is also submitted that the petitioner’s reliance on the earlier AICTE Notifications of 1999 etc. is of no assistance as these older provisions have been superseded by the subsequent and comprehensive Regulations of 2010 onwards and more particularly, the 2016 Clarifications. It is further submitted there is a valid classification inherent in the AICTE regulatory framework itself, which explains that a faculty member promoted without a PhD belong only to core Engineering stream i.e. Civil, Mechanical etc., wherein the essential higher qualification prescribed is an M. Tech and not a PhD and as such, the 2016 clarifications regarding M. Phil/PhD is not applicable to them, whereas the petitioner being from the Science (Physics) stream is governed by points 10 and 43 of the AICTE Clarification Notification dated 04.01.2016

9. The learned AAG submits that apart of the lack of a PhD, the petitioner has not fulfilled the requirement of completion of 2 AICTE approved 2(two) weeks refresher programmes and two 1(one) week TEQIP programmes for any advancement, and on this ground also it is submitted the petitioner has failed satisfactorily to prove compliance with this condition. The action of the respondents it is submitted is not arbitrary or discriminatory but has been strictly in accordance with the binding statutory AICTE Regulations, and as such the relief claimed by the petitioner is untenable and the writ petition is liable to be rejected.

10. Mr. S. Pandey, learned counsel for the respondent No. 12, (AICTE) has endorsed the submissions made by the learned AAG and further submits that with the clarification issued on 04.01.2016, the petitioner was required to possess a PhD to be eligible to be placed at Level- 4 AGP Rs. 9000/- grade.

11. Having heard the learned counsel for the parties, and on an overview of the case of the petitioner, it appears that the entire issue revolves around the interpretation of the applicable Regulations, whether a PhD was a mandatory requirement to allow the advancement, or placement at AGP Rs. 9000/- grade. In order to examine the matter in its correct perspective, it would be expedient to reproduce the relevant clauses of:-

                   i) AICTE Notification – Revised Pay Scales and Service Conditions (Diploma Level) dated 30.12.1999

                   ii) (AICTE (Pay Scales, Service Conditions and Qualifications) Regulations, 2010 (Diploma) dated 05.03.2010

                   iii) AICTE (Career Advancement Scheme for Teachers and Academic Staff) Regulations, 2012 (Diploma) dated 08.11.2012

                   iv) Clarification on certain issues/anomalies pertaining to Qualifications, Pay Scales, Service Conditions, Career Advancement Scheme (CAS) etc. for Teachers and other Academic Staff of Technical Institutions (Degree/Diploma)

                   v) Corrigendum in AICTE Regulations, 2012 (Diploma) in respect of Para-3 and Table II (A)

                  

                  

                  

                  

                  

12. A perusal of the above quoted provisions in the considered view of this Court for promotion under the CAS, would be governed by the date of entry into service and that the PhD requirement is purely prospective. This observation is made in view of the fact that on a plain reading of the AICTE Clarificatory Notification of 2016, Point No. 10, would only clarify the entry level qualification for Lecturers for Humanities and Sciences, as the 2010 Regulations, lack clarity on this aspect that PhD, as an essential qualification, would refer only to the cases of new entrants. Similarly, the clarification at Point No 43, on which heavy reliance has been placed by the State respondents, would be of no assistance as this also is only a distinction made as to the eligibility prescribed by the 1999 notification, and thus refers to new entrants and cannot change the substantive position contained in Clause. 3.8 of AICTE CAS Regulation of 2012. Further, at Regulation 1.3 of the Regulations dated 08.11.2012, it has been provided that promotions on or after 05.03.2010, would be governed by the said Regulations, and vide a corrigendum to the AICTE Regulations of 2016, has clearly made the distinction of the requirement of a PhD, applicable to only those who joined service after 05.03.2010. In the instant case, the petitioner had entered service on 09.01.1995, and therefore, would not fall within the category requiring this additional qualification. The ground taken by the State respondents that the date due for promotion would be the date to be taken for consideration, and that the petitioner being due for promotion in 2011, would fall beyond the cutoff date of 05.03.2010, is also unsustainable in view of the clear condition give in clause 3.8 of the 2012 Regulations, that only a Lecturer entering service after the cutoff date i.e. 05.03.2010, would require a PhD. The distinction sought to be made between Lecturers from Humanities and Sciences and those from technical subjects also does not hold any water as they are placed in the same pay scale with same opportunity for Career Progression.

13. A harmonious reading of a Lecturer’s movement from Level-3 to Level-4 would show that the requirement of a PhD, operates only as an additional condition for those who entered service after 05.03.2010. As such, it would follow that for incumbents such as the petitioner who had been appointed prior to the said date, their eligibility to advance to Level-4, would be governed by the completion of 3 years in Level-3 AGP Rs. 8000/- grade, fulfillment of API-PBAS credit requirement and assessment by a duly constituted Selection Committee.

14. In the light of the discussions made hereinabove, it would be useful to refer to the judgment cited by the petitioner i.e. Gelus Ram Sahu vs. Surendra Kumar Singh (supra) with regard to the import and purport of the clarificatory notification of 2016, which is not an amendatory notification and other related issues such as whether retrospective changes in eligibility requirements, can affect existing appointments, the relevant paragraphs being Paras 25 to 30, are reproduced hereinbelow:-

                   “25. 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 Principal.

                   26. 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 law.

                   27. As discussed earlier, there were no two interpretations possible, and hence Issues 48 and 64 of the 2016 AICTE Notification have, in no uncertain terms, reprised the substance of the 2010 AICTE Regulations.

                   (iii) Whether retrospective changes in qualificatory requirements can affect the existing appointments?

                   28. 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 conditions.

                   29. This Court in a range of decisions including T.R. Kapur v. State of Haryana [T.R. Kapur v. State of Haryana, 1986 Supp SCC 584] , K. Ravindranath Pai v. State of Karnataka [ 1995 Supp (2) SCC 246 : and K. Narayanan v. State of Karnataka [1994 Supp (1) SCC 44], has opined that vested rights cannot be impaired by enacting law with retrospective effect and that such statutory rules ought not to result in any discrimination or violation of constitutional rights.

                   30. The law on vested rights in service matters has exhaustively been elaborated in Railway Board v. C.R. Rangadhamaiah [ (1997) 6 SCC 623] wherein it has been stated : (SCC pp. 637-38, paras 20 & 24)

                   “20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.

                   ***

                   24. In many of these decisions the expressions “vested rights” or “accrued rights” have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution.”

15. Though by way of affidavit the State respondents have also raised other questions of eligibility of the petitioner as to the non fulfilment of the requirement of completion of 2 AICTE approved 2(two) weeks refresher programmes and two 1(one) week TEQIP programmes, a perusal of the impugned notification would show that the rejection of the petitioner’s case for AGP Rs, 9000, was only for not having a PhD. However, notwithstanding this, the learned counsel for the petitioner, to demonstrate as to how this requirement has been met, has referred to the table appended to paragraph 12 of the writ petition, as also the certificates annexed as Annexures 12 to 18. A perusal of these materials without dwelling on the fine details, would show that the petitioner has completed a total of 4 oneweek programmes and 2 (two) two-week programmes, which is as per the requirement of the AICTE guidelines and the concerned Academic institution. The table which is relevant is reproduced hereinbelow :

                  

                  

16. Reference to paragraph 1.3 (xvi) of the Regulations of 2010 provides for all advancement to higher grade pays in various cadres be effected subject to completion of 2 AICTE approved refresher programmes not less than 2 weeks duration each and 2(two) one week each TEQIP sponsored programmes. As such, as set down by the Table above and also in view of the fact that it has been clarified by the AICTE that 2 programmes of each of one week duration shall be considered as 1(one) programme of two weeks duration for CAS, the writ petitioner as is also evident from the certificates attached, has met this requirement.

17. As such, in the considered view of this Court and in the facts, and circumstances and discussions made hereinabove, no valid ground exists to deny the promotion of the petitioner to Level-4 (Pay Band Rs. 37,400- 67,000/- with AGP of Rs. 9000/- grade).

18. The writ petition is allowed and accordingly the part of the impugned Notification dated 16.01.2024, as far as it relates to the petitioner is set and aside and quashed.

19. The writ petition stands disposed of.