Full Text
HIGH COURT OF DELHI
Judgement pronounced on: 02.03.2023 Review Petition 533/2019 in W.P(C) 11336/2017
GOVT. OF NCT OF DELHI & ORS. ......Petitioners
Through: Ms Avnish Ahlawat, Standing Counsel (GNCTD) with Mrs Tania
Ahlawat, Mr Nitesh Kumar Singh and Ms Palak Rohemetra, Advs.
Through: Mr Sourabh Ahuja, Advocate.
HON'BLE MR. JUSTICE TALWANT SINGH TALWANT SINGH, J.:
JUDGMENT
1. The present review petition has been filed by the original petitioners seeking review of order dated 05.11.2019 in W.P.(C) No. 11336/2017, whereby the writ petition filed by the petitioners against an order passed by the learned Central Administrative Tribunal (hereinafter referred as ‘CAT’) dated 15.12.2016 was dismissed with the following observations:-
3. Arguments were heard again in revision petition from both the sides.
4. The petitioners have pleaded that this Court inadvertently did not consider the fact about the requirement of Master’s Degree with 1st Class either at Bachelor’s or Master’s level for grant of Selection Grade to Lecturer, which was introduced as per the AICTE’s directions. It has been RANI submitted that when the petitioners was recruited, AICTE Notification dated 30.12.1999 was applicable, which had provided as under:- “Para 8.[3] Lecturer (selection Grade), Scale of Rs. 12000-183000: “A senior lecturer / Lecturer (Senior Scale) who has a Master’s 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.” 4.[1] The respondent is stated to be possessing Diploma (1st Division) and B.Sc. (2nd Division). She does not meet the qualification criteria for grant of revised pay-scale as provided in para 8.[3] quoted hereinabove, as she is not having a Master’s Degree. The review petitioners have also referred to judgement of High Court of Bombay in W.P.(C) No.8493/2004 titled Sh. Salunkhe Jayawant Vishnu & Ors. v. State of Maharastra & Ors. decided on 16.08.2018 and judgement of Hon’ble Supreme Court in the matter of Civil Appeal No. 1272/2011 titled State of Orissa & Anr. v. Mamata Mohanty. 4.[2] It is further mentioned that the clarification issued by AICTE on 05.03.2010 mentions that for being eligible to Lecture Selection Grade, an M.E./M.Tech. qualification is also required.
AICTE has also clarified the same point vide letter dated 18.10.2012. Reliance is also placed on a decision of Hon’ble High Court of Guwahati in W.P.(C) No. 578/2013, titled Sri Bhabesh Goswami & Ors. v. State of Assam & Ors. 4.[3] It has been further submitted by the review petitioners that the following institutes are offering two years’ Master Degree Programme in Cosmetology/Health.
(i) Sandip University, Nashik
(ii) ISAS International beauty school, Pune/Ahmedabad
(iii) PG Degree available in Naturopathy
(iv) PG degree available in Yoga.
4.[4] It has also been submitted by review petitioners that this Court has inadvertently overlooked the conditions stipulated in the order dated 29.07.2010, which mentioned that requirements fixed by AICTE/State Government are required to be fulfilled for moving to the higher grade. It is also the stand of the petitioners that the conditions stipulated in order dated 29.07.2010 mentioning about ‘other requirements’ were with reference to Master’s Degree. Moreover, the respondent has also not completed TEQIP sponsored programme. A reference has also been made to decision of Hon’ble Supreme Court in C.A.No. 4026/2003 titled Govt. of NCT of Delhi v. Sanjeev Lochan Gupta & Ors., whereby the present petitioners were directed strictly to comply with the directions of AICTE. Petitioners have also referred to a decision of High Court of Kerala in W.A. No. 2706/2009 in W.P.(C) 31862/2018 titled Anandavally MK v. P.G. Jairaj & Ors., where the relaxation for promotion to post of Professor without Ph. D. qualification was given by the Government but the same was quashed by the Hon’ble High Court. 4.[5] On these grounds the petitioners have prayed that the review petition may be allowed and the judgement and order dated 05.11.2019 be recalled in so far as it dismisses the petition and directed payment of salary for the entire period to the respondent.
5. Notice was issued. The respondent has filed a counter affidavit. It has been submitted that the review petitioners never urged the point regarding requirement of Master’s Degree and five years’ experience as set out in AICTE notification dated 30.12.1999 before this Court. The claim of the respondent for promotion was turned down by the petitioners on RANI 07.01.2016 on the ground that her case was premature and the same could not be processed till AICTE Guidelines 2012 were approved by Delhi Cabinet. Copy of the order dated 07.01.2016 has been annexed as Annexure CR-4. The said order was challenged by the respondent before CAT in O.A.No. 590/2016 as being discriminatory because vide order dated 05.09.2013, Selection Grade to similarly situated Lecturer was granted. In those cases, the due date of promotion falls after 05.03.2010, so, while granting the said promotions, petitioners applied AICTE Notification dated 05.03.2010 r/w Office Order dated 29.07.2010 and Order dated 08.10.2010, subject to clarification sought from AICTE relating to AICTE Notification dated 08.11.2012. 5.[1] It is further submitted by respondent in her counter affidavit that the review petitioners took a different stand before the CAT. The Hon’ble CAT vide judgement dated 15.12.2016 allowed O.A.No. 590/2016 and since the said judgment was not complied with, respondent preferred a Contempt Petition before the CAT. During pendency of the Contempt Petition, the present petitioners passed an order dated 18.08.2017, wherein it was mentioned that as the respondent was not possessing M.Phil. Degree, therefore, the respondent’s case for grant of Selection Grade- I & II was deferred. The review petitioners again changed their stand and submitted that since respondent did not possess Master’s Degree in Beauty Culture, therefore, she cannot be granted Selection Grade- I & II while passing the order dated 23.11.2017. The review petitioners are changing goal-posts in every other proceeding, which is not permissible in the eyes of law.
6 As per the respondent, clause 1.[3] (ix) of AICTE notification dated 05.03.2010 stipulates that Lecturers with complete service of five years with AGP of Rs.7,000/- shall be eligible to be moved up to the AGP of Rs.8,000/- RANI and similarly after three years of teaching with AGP of Rs.8,000/-, the Selection Grade Lecturer shall be eligible to move to AGP of Rs.9,000/- as per Clause 1.3(xii). The candidates were required to complete two AICTE approved refresher programmes of not less than two weeks’ duration and two one week’s duration programme of TEQIP. This notification dated 05.03.2010 was approved by Delhi Cabinet on 12/14.07.2010, and subsequently an Office Order dated 29.07.2010 was issued. In terms of Clause 12.01 (ix) (xii) and (xvi), the respondent is entitled for grant of Selection Grade-I with AGP of Rs.8,000/- w.e.f. 20.09.2011 and Selection Grade-II with AGP of Rs.9,000/- w.e.f. 20.09.2014. This notification does not mention anywhere that Master’s Degree is required for grant of Selection Grade- I & II by the Lecturers. The respondent has completed two AICTE/State Government programmes of not less than two weeks and two one week each TEQIP sponsored programmes. Similarly, AICTE Notification dated 08.11.2012 in Clause 3.[8] stipulates that Lecturer completing three years of teaching experience in the Grade of Rs.7,000/shall be eligible, subject to qualifying conditions and the API based PABAS requirements prescribed by these regulations to move to the higher grade of Rs.8,000/- with the designation of Lecturer (Selection Grade). 6.[1] It is further submitted by the respondent that a corrigendum dated 04.01.2016 was issued by AICTE in respect of Clause 3.[7] and 3.[8] AICTE Notification dated 08.11.2012. This Notification has specified that those joining the service after 05.03.2010 are required to have completed Ph. D. in addition to the earlier mentioned requirements to move to Lecturer (Selection Grade). Clause 38 of AICTE notification dated 04.01.2016 stipulates that relaxation in API score is applicable for three years from the date of issue of AICTE Regulation of 2012, meaning thereby that it shall not RANI be applicable to the Lecturers whose promotion due dates fall till 07.11.2015. The due date for grant of Selection Grade- I and II to the respondent falls prior to 07.11.2015, so the conditions regarding API based requirements for the next higher AGP do not apply to her. The AICTE notification dated 08.11.2012 and 04.01.2016 were approved by Delhi Cabinet on 16.06.2016 and as a consequence thereto an office order dated 29.07.2016 was issued. 6.[2] It is also submitted that the petitioners had never disputed the applicability of Office Order dated 29.07.2010 while considering the claim of the respondent for grant of Selection Grade-I and Selection Grade-II but before the Hon’ble Supreme Court they have taken up the issue regarding applicability of AICTE Notification dated 30.12.1999 while considering the claim of respondent for grant of Selection Grade. The petitioners cannot be allowed to set up a new case to reagitate the entire matter again. The petitioners are required to apply AICTE notification dated 05.03.2010 read with Office Order dated 29.07.2010 while considering the claim of respondent as they did in similar circumstances vide order dated 05.09.2013 in respect of other Lecturers. The Hon’ble Supreme Court has requested this Court only to re-examine the matter to the limited extent as to whether Clause 8.[3] of AICTE Guidelines dated 30.12.1999 or Clause 12.[1] (ix), (xii) and (xvi) of Office Order dated 29.07.2010 read with Clause 1.[3] (ix) (xii) and (xvi) of AICTE notification dated 05.03.2010 is to be applied while considering the case of the respondent for grant of Selection Grade I & II. The due date for grant of Selection Grade I & II qua the respondent falls after 05.03.2010, so AICTE Notification dated 05.03.2010 read with Office Order dated 29.07.2010 is to be applied, which mentions Master’s Degree is not a pre-requisite for grant of Selection Grade I & II to the respondent. RANI 6.[3] Moreover, there is no Technical Institute affiliated to AICTE or any other University affiliated by UGC in India, which offers Master’s Degree in the discipline of Beauty Culture, so there is no opportunity for the respondent to obtain the said degree. 6.[4] No grounds have been mentioned by petitioners, on which this Court can review its judgment dated 05.11.2019. There is no mistake or error apparent on the face of law has been mentioned in the review petition. The review petitioners are trying to reagitate/reargue the entire matter; hence no review is permissible in the eyes of law as the review of the judgment has to be confined to the grounds enumerated in the Order XLVII Rule 1 Code of Civil Procedure, 1908. 6.[5] The detailed para wise reply is also on the same lines. It has been denied that any Institute in India is offering two years’ Master Degree programme in Beauty Culture. The Sandip University is offering M.Sc. in Cosmetic Science based on preparation of cosmetic formulation and its quality assurance etc., The said course is focused for individuals concerned with production of cosmetics and it is not related to the course of Beautician and Beauty Culture. The ISAS School is not affiliated to UGC or AICTE and moreover it is only offering two years Diploma in Cosmetology. The PG course in Naturopathy and PG programme in Yoga are not relating to the course of Beautician and Beauty Culture. It has been denied that respondent has not completed TEQIP sponsored programme. The judgments cited by the petitioners are not relevant to the present case.
7. After hearing arguments from both sides, our view confined to the review petition is as under: - 7.[1] We are in agreement with the submissions of the respondent that since no University/College/Institute is offering a Masters (Postgraduate) Degree RANI in the course of Beautician/Beauty Culture in India, so, the respondent cannot be put to perform an impossible task. 7.[2] The review petitioners have rereferred to two years Master’s programme offered by the Sandip University, Nashik. The respondent had written to the said University. An email was received from University, which details the course offered by Sandip University is M.Sc. in Cosmetic Science, where the following subjects are being taught: - Theory Paper/Practical Concepts of Cosmetic Chemistry – I Concepts of Quality Assurance – I Concepts of naturals and ayurceuticals Concepts of Research Methodology– I Concepts of Cosmetic Chemistry-I-L Concepts of Quality Assurance-I-L Theory Paper/Practical Concepts of Cosmetic Chemistry – II Concepts of Quality Assurance – II Concepts of naturals and ayurceuticals -II Concepts of Research Methodology– II Concepts of Cosmetic Chemistry-II-L Concepts of Quality Assurance-II-L RANI 7.[3] In our view, none of these subjects have anything to do with Beauty Culture/Beautician course, which is being taught by the present respondent. 7.[4] The second Institute mentioned by the petitioners is ISAS, International Beauty School, Pune/Ahmedabad. The respondent in a connected writ petition bearing No. W.P. (C) 11316/2017, namely, Ms. Sangeeta Jain has approached the said school, which had responded vide their e-mail dated 19.12.2019 as under: - “Dear Sangeeta ji, As discussed this is Vocational Education Institute. This is NOT a MScCosmetology Degree course. This is just two year Diploma course which also offers International Beauty Diploma from Cidesco and VTCT. We have written it as "Master Program in Cosmetology" and not "Masters in Cosmetology". We intend to give make student Master is all related skills. Similar courses from our competitors are
1. "Masters in Cosmetology" from "Orane International". https://www.oranebeautyinstitute.com/masters-in-cosmetology/
2. "Grand Master in Cosmetology" from VLCC Institute. https://www.vlccinstitute.com/course/grand-master-cosmetology/ All these institutes are part of the Skill India initiative and affiliated to NSDC and BWSSC. Our Director Ms. Bhakti Sapke is also Governing Council member with BWSSC and also a Jury for India Skills. for any further queries please contact me directly. Thanks and Regards Santosh S 7507985007” 7.[5] The above e-mail makes it clear that the course offered by ISAS is not M.Sc. in Beauty Culture/Beautician, rather, it is a two year Diploma Course. 7.[6] The third option provided by the petitioners is to obtain a PG Degree in Naturopathy. Even a layman can make out a difference between the study of Beauty Culture and Naturopathy. 7.[7] The fourth option of obtaining a PG Degree in Yoga. The Beauty RANI Culture/Beautician course has substantially nothing to do with a PG degree in Yoga, although basic yoga steps are being taught in these courses. Even otherwise, no such course offered by any University affiliated to UGC or any Institute affiliated to AICTE has been mentioned, which were available at the relevant time, when the respondent was due for her promotion to Selection Grade I &II.
8. The Hon’ble Supreme Court has remanded the matter back for reconsideration of the review petition for considering the recommendation of the AICTE available on page 43 and 61 of the petition filed before the Hon’ble Supreme Court. The respondent has annexed a copy of page No. 61 of the said SLP filed by the present petitioners, annexed by the present respondent as Annexure CR-1, which is reproduced hereunder:- “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 Master's 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.
9.0 COUNTING OF QUALIFYING SERVICE FOR CAREER ADVANCEMENT 9.[1] Counting of Service within the present Institution: The duration of service in temporary capacity / contract appointment / ad-hoc appointment/ leave” 8.[1] The page No. 61 of the SLP pertains to Clause No. 8.[3] of AICTE notification dated 30.12.1999, which provides for having a Master’s Degree with five years’ experience as Senior Lecturer for being promoted to Senior Lecturer (Selection Grade). The case of the respondent is that she is not covered by the above Notification. Rather she claims to be covered by the recommendations given in AICTE Notification dated 05.03.2010, which RANI provides as under:- “(ix) Lecturers with completed service of 5 years with shall be eligible, subject to the AGP of Rs, 7000 other requirements laid down by the AICTE to move up to the AGP of Rs..8000.
(x) Incumbenţ. Lecturers (Selection Grade) who have completed 3 years In the pre-revised pay scale of Ks. 12000-18300 on 1.1.2006 shall be placed in Pay Band of Rs. 37400-67000 with AGP Pay of Rs. 9000 and shall be continued tobe designated as Lecturers (Selection Grade)”
9. The case of the respondent before the CAT was that she was to be granted Selection Grade-I with AGP of Rs.8,000/- w.e.f. 20.09.2011. At the relevant time, the Office Order dated 29.07.2010 had already been issued by the Department of Training Technical Education, GNCTD, which covers the scope of promotion to the post of Selection Grade-I in term of AICTE Notification dated 05.03.2010. This Office Order is annexed as Annexure CR-11 with the response filed by the respondent to the revision petition and the relevant portion of the same at page 116 is reproduced hereunder: “(ix) Lecturers with completed service of 5 years with the AGP of Rs.7000 shall be eligible, subject to other requirements laid down by the All India Council for Technical Education / State Government to move up to the APG of Rs. 8000.
(x) Incumbent Lecturers (Selection Grade) who have completed 3 years in the pre-revised pay scale of Rs.12000-18300 on 1.1:2006 shall be placed in Pay Band of Rs.37400-67000 with AGP of Rs.9000 and shall be continued to be designated as Lecturers (Selection Grade).” 9.[1] This was the Office Order which was field at the relevant time of promotion of the present respondent. The same was issued on 29.07.2010, so there was no occasion to refer back to Notification of 1999 or to some other notification as the prevailing Office Order dated 29.07.2010 was to be duly implemented, by which the AICTE notification dated 05.03.2010 was made applicable to the institutes run by the GNCTD. There was no requirement of Post Graduate Degree or a Bachelor’s Degree with 1st Class as per this RANI Office Order for claiming Selection Grade-I or Selection Grade-II.
10. In view of the above, the Notification dated 30.12.1999 has no relevance and as such we do not find any fault with the judgement dated 05.11.2019 as petitioners have failed to point out any illegality or mistake in the said judgment.
11. In our view, there is no mistake or error apparent on the face of record of judgment dated 05.11.2019 and as such the present review petition is not maintainable and the same is hereby dismissed.
TALWANT SINGH (JUDGE)
RAJIV SHAKDHER (JUDGE) MARCH 02, 2023 RANI