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An appointment which is erroneous or illegal from the very inception does not clothe the appointee w

Gelus Ram Sahu and others Vs Dr. Surendra Kumar Singh and others, CIVIL APPEAL NO.1667 OF 2020 – 18 February, 2020.

The judgment was pronounced by the Hon’ble CJI S.A. BOBDE, Hon’ble Justice B.R. GAVAI and Hon’ble Justice SURYA KANT .

Facts

Respondent who is currently working as HOD at government polytechnic, Kabirdham with additional responsibility of Principal­in­charge. He applied for the post of principle but he did not get selected in the selection process. Whereas appellants 1 to 7 where declared successful. 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’ The ‘Chhattisgarh Technical Education (Teaching cadre­Polytechnic) (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 where under, according to respondent No. 1, Ph.D degree was a mandatory qualification for the post of Principal seeking declaration of Ph.D. being an essential qualification for the post of Principal at the Polytechnic colleges was allowed and consequently appointment of the appellants were quashed for want of the said qualification. The appellant being aggrieved by the order of the High Court the appellant filed the appeal before the Apex court.

The distressed appellants contended before court that there existed no ambiguity in the 2010 AICTE Regulations. These regulations clearly mention “or” between two sets of qualifications, one in which Ph. D was specified and the other without such prescription. It is submitted that the High Court could hence not have read it in a manner which converted “or” into “and”. It was further submitted that even if any ambiguity existed, it was not open for the AICTE to retrospectively introduce an eligibility condition in a manner which would expropriate the appellants of their vested rights.

Respondent on the other hand reiterated that, all technical institutions across the country are obliged to adhere to the minimum standards laid down by AICTE. Supporting the High Court’s interpretation, he maintains that since the 2010 AICTE Regulations mandated ‘Ph.D. in Engineering’ as one of the essential qualification for the post of Principal, the 2014 Chhattisgarh Rules were ultra vires for having impermissibly relaxed mandatory qualifications.

After hearing both sides court framed the issues


Is Ph.D. mandatory for appointment to the post of ‘Principal’ under the 2010 AICTE Regulations?

Does the 2016 AICTE Notification retrospectively ‘clarify’ eligibility conditions for appointment as ‘Principal’?

Whether retrospective changes in qualificator requirements can affect the existing appointments?

The Court observed that,

 The prerequisite requirement for the post of principle has been provided under the 2010 AICTE Regulations. 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 criteria.

The 2016 AICTE Notification has made a significant impact upon the High Court’s determination of the present dispute. The High Court has held that the said Notification, clearly specified through Issue No. 64 that Ph. D was compulsory for all Principals.

As the notification was clarificatory’, it was held applicable retrospectively which would remove any ambiguity created by the 2010 AICTE Regulations and consequently the appellants were ineligible to hold the posts of ‘Principal’. ‘Clarificatory’ legislation 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 suffice. Instead, it must substantively be proved that the law was in fact ‘clarificatory’, as noted by this Court in Virtual Soft Systems v. CIT. The afforested 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.

The Court stated that ;

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 decisions.

In the light of the above discussion, the appeals are allowed. The judgment of the High Court is set aside and the writ petition filed by Respondent No. 1 challenging the promotion of appellants is dismissed but without any order as to costs.

–  Aarthy K

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