# Ram Pratap Singh & Anr v. Union of India & Ors

- **Citation:** (2024) 4 ILRA 476
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-11
- **Case number:** Writ A No. 19126 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pratap-singh-anr-v-union-of-india-ors-51824
- **Pages:** 11

## Headnote

A. Service Law - Institute of Technology
Act, 1961 - Sections 13(1), 13(2)(c) &
33(1)(b) - Recruitment and Promotion
Rules, 2018, as modified on 28.05.2021 -
Rule 6 - Post of Executive Engineer -
Advertisement
for
direct
recruitment
issued - Power of Board of Governor to
frame Rules was challenged - Held, Board
has been vested with power to provide for
direct recruitment even U.P.on post that
are prescribed not at entry level but by
way of lateral entry - Residuary power
lies with Board, which is not provided
elsewhere - Taking recourse to the
harmonious
constructions
of
the
provisions as contained under Section
13(1) and 13(2)(c) and 33(1)(b) and 38(c)
of the IT Act, 1961, it can safely be
concluded that Board of Governors being
Apex Body of the IIT Kanpur under the
Act, 1961 is fully empowered to frame
recruitment and promotions rules. (Para
16, 21 and 22)

B.
Service
Law
-
Recruitment
and
Promotion Rules, 2018, as modified on
28.05.2021 - Rule 6 - Post of Executive
Engineer
-
Departmental
promotion
claimed
-
Petitioner
possessed
no
eligibility
-
Entitlement
to
claim
promotion - Held, Rules vide P-19 to the
schedule make post of Executive Engineer
at pay matrix level- 11 in the GroU.P.-A to
be filled U.P. by promotion only from
Assistant Executive Engineer, pay matrix
level 10 - Petitioners cannot question the
advertisement as far as post of Executive
Engineer is concerned because they have
nothing to put on stake, being not eligible
even by way of promotion U.P.on the
posts in question. (Para 26 and 27)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

476 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 4 ILRA 476
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 19126 of 2023

Ram Pratap Singh & Anr. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Avneesh Tripathi

Counsel for the Respondents:
A.S.G.I., Sri Rohan Gupta, Sri Vijay Kuamr
Mishra

A. Service Law - Institute of Technology
Act, 1961 - Sections 13(1), 13(2)(c) &
33(1)(b) - Recruitment and Promotion
Rules, 2018, as modified on 28.05.2021 -
Rule 6 - Post of Executive Engineer -
Advertisement
for
direct
recruitment
issued - Power of Board of Governor to
frame Rules was challenged - Held, Board
has been vested with power to provide for
direct recruitment even U.P.on post that
are prescribed not at entry level but by
way of lateral entry - Residuary power
lies with Board, which is not provided
elsewhere - Taking recourse to the
harmonious
constructions
of
the
provisions as contained under Section
13(1) and 13(2)(c) and 33(1)(b) and 38(c)
of the IT Act, 1961, it can safely be
concluded that Board of Governors being
Apex Body of the IIT Kanpur under the
Act, 1961 is fully empowered to frame
recruitment and promotions rules. (Para
16, 21 and 22)

B.
Service
Law
-
Recruitment
and
Promotion Rules, 2018, as modified on
28.05.2021 - Rule 6 - Post of Executive
Engineer
-
Departmental
promotion
claimed
-
Petitioner
possessed
no
eligibility
-
Entitlement
to
claim
promotion - Held, Rules vide P-19 to the
schedule make post of Executive Engineer
at pay matrix level- 11 in the GroU.P.-A to
be filled U.P. by promotion only from
Assistant Executive Engineer, pay matrix
level 10 - Petitioners cannot question the
advertisement as far as post of Executive
Engineer is concerned because they have
nothing to put on stake, being not eligible
even by way of promotion U.P.on the
posts in question. (Para 26 and 27)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Dr. Thingujam Achouba Singh & ors. Vs Dr.
H. N. Nabachandra Singh & ors.; (2020) 20 SCC
312

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Avneesh Tripathi,
learned counsel for the petitioners, Sri
V.K.Mishra, learned counsel for the Union
of India and Sri Rohan Gupta, learned
counsel for respondents nos. 2,3 4.

2. The petitioner no. 1 who is
presently working as Senior Assistant
Engineer (Special Grade) in a pay band-2
with Grade Pay 5400/- at pay matrix level 9
and petitioner no. 2 who is working as
Senior Assistant Engineer, pay band-2 with
grade Pay- 4800/- at pay matrix level-8 in
the Indian Institute of Technology, Kanpur
(IIT, Kanpur) seek to challenge an
advertisement
issued
by
IIT
Kanpur
advertising 5 posts of Executive Engineer
of which three posts are in unreserved
category, vide advertisement no. 1 of 2023.

3. Both the petitioners claim that they
deserved promotion at much earlier point
of time to a higher post of Assistant
Executive Engineer, pay band-3 with grade
pay 5400/- at pay matrix level 10 as the
4 All. Ram Pratap Singh & Anr. Vs. Union of India & Ors.
477
feeding cadre for promotion was either
Senior Assistant Engineer, pay band-2,
with grade pay 4800/- at pay matrix level 8,
or Senior Assistant Engineer (S.G.) in pay
band-2 with grade pay 5400/- at pay matrix
level-9. According to them, the post of
Assistant Executive Engineer with grade
pay 5400/- at pay matrix level-10 is not
only post for direct recruitment at entry
level of Group-A post, but is equally a
promotional post from Group-B to Group
A as per rules, and therefore, according to
them they would have been entitled to be
promoted as Executive Engineer, pay band
3 with grade pay 6600/- at pay matrix
level-11, a Group-A post, which is subject
to advertisement by direct recruitment.
Their basic contention is that post of
Executive
Engineer
advertised,
is
a
promotional post and not a post meant for
direct recruitment. It is submitted that as
per recruitment and promotion rules that
have come to be notified and reframed on
27th November, 2018 in suppression to
2013 Rules by the Board of Governors, the
Apex Body of the institute with further
modification in the year 2021.

4. According to learned Advocate Mr.
Tripathi, appearing for the petitioners, the
post in the field of engineering like from
Junior Engineer upto Executive Engineer
fall in the maintenance staff category of the
Institute and are non faculty position. P-19
of the schedule appended to the rules
provide for only two positions at entry
level. In Group-A, it is the Assistant
Executive Engineer which is an entry level
post whereas in the Group-B category post
of Junior Engineer provided at entry level
and all other posts at higher level,
therefrom should be filled up by promotion
except otherwise provided under the Rules.
He emphatically submits that as far as post
of Executive Engineer in the category of
Group-A with pay band 3 and 4 are
concerned, these posts are only meant to be
filled up by promotion whereas the post of
Assistant Executive Engineer which is a
group-A post can be filled up both by way
of direct recruitment as well as promotion
with 50 per cent quota each, vide P-40 of
the schedule to the rules.

5. Mr. Tripathi also submits that in
view of P-33 of the schedule, post of
Assistant Engineer pay band-2 is also to be
filled
up
by
promotion
and
direct
recruitment with 50 percent quota each. He
further submits that even earlier also the
IIT Kanpur had committed this error of
advertising the post of Executive Engineer
under the advertisement issued on 16th
September, 2023 being advertisement no. 1
of 2023, but upon correct facts being
brought to the notice, the said post was
withdrawn from the advertisement vide
Corrigendum issued on 20.09.2023 by
recruitment section, copy of which has
been brought on record as Annexure 16 to
the writ petition.

6. Mr. Tripathi in support of his
argument
has
also
relied
upon
the
recruitment and promotion policy issued by
the Indian Institute of Technology Ropad,
dated 20th November, 2016 in which post
of Executive Engineer in the engineering
cadre is shown to be 50 per cent by
promotion.
He
asserts
that
similarly
Administrative Section of IIT Bombay has
issued its recruitment and promotion policy
on 22nd September, 2017 that provide for
only post of Junior Engineer at entry level,
the higher post of Assistant Engineer and
Assistant Executive Engineer are for the
purposes of first and second advancement.

7. Mr. Tripathi, has next submitted
that as per guidelines issued by the
478 INDIAN LAW REPORTS ALLAHABAD SERIES
Ministry
of
Human
Resources
and
Development,
Department
of
Higher
Education dated 20th February, 2019, the
post of Executive Engineer was suggested
to be filled up 75 percent by direct
recruitment and 25 percent by promotion.
So in any view of the matter, according to
him, some promotion quota was liable to be
assigned to the post like Executive
Engineer if not all and since now IIT
Kanpur has proceeded to fill up this post by
direct recruitment, petitioners would be
denied their chance of further progress in
the establishment. It is submitted that in the
above regard, petitioners had earlier moved
a
representation
before
the
Higher
Authority, but instead of taking any action
to consider the claim of petitioners for
providing promotional avenues, respondent
Director of Institute proceeded to pass an
order dated 28.2.20222 to the effect that
petitioner may apply as and when posts are
advertised, however this order remained
illusive for the simple reason, according to
Mr. Tripathi, as post advertised for the
purpose of direct recruitments provides for
such qualification which ousts petitioners
from eligibility zone. According to him,
respondents while have put a bar of
maximum age of 55 years on one hand, on
the other hand the essential qualification is
that one should have three years of regular
clear
service
at
Assistant
Executive
Engineer level whereas petitioners are only
working
as
Assistant
Engineer
and
Assistant Engineer (SG).

8. In view of above, the writ of
certiorari is prayed for quashing the
advertisement so far as post of Executive
Engineer is concerned.

9. Countering the above submissions
raised on behalf of the petitioner, Mr.
Rohan Gupta, learned counsel for the IIT
Kanpur has made two fold arguments:

(i) In 2018 recruitment promotion
rules notified on 27th November, 2018 as
amended and modified on 28.5.2021 do
provide
for
direct
recruitment
upon
vacancies falling even in lateral entries by
external candidates in both A and B groups,
inasmuch as, new vacant positions can be
created by the Board of Governors, the
Apex body, by adopting resolution if
contingency so arises as is in the present
case, it was a mission mode recruitment
drive to expedite a dedicated task. This
power, according to Mr. Gupta, the board
enjoys both under the recruitment rules and
under the provisions of Institutes of
Technology Act, 1961 that governs all the
IITs in the country including IIT Kanpur in
question;

(ii) The relevant rule under the
recruitment and promotion rules that gave
such power to the Apex Body, namely
Board of Governors and relevant provisions
of the institutes of Technology Act, 1961
and consequential resolution adopted by the
Board of Governors dated 23rd December,
2022 have not been challenged, and
therefore, in the absence of any challenge,
the rules and resolution, the consequential
advertisement issued for direct recruitment
on the post of Senior Superintending
Engineer, Executive Engineer, therefore,
cannot be faulted with.

10. Yet another argument has been
advanced by Mr. Gupta that prescribing
essential qualifications and age falls within
the domain of the employer and the
recruiting authority as employer is in a best
position to assess the suitability for the job
for which selection and appointments have
to be made and, the Court cannot embark
upon any enquiry by way of judicial review
4 All. Ram Pratap Singh & Anr. Vs. Union of India & Ors.
479
to prescribe which qualifications would be
better qualification for the employer to
provide as an essential qualification for the
post upon which selection and appointment
has to be made. This area according to Mr.
Gupta, is an area of Technical Experts of
field and the Court does not have those
expertise and skills to assess exact
suitability
and
eligibility
vis-a-vis
requirement for which selection and
appointments have to be made.

11. In the above regard, Mr. Gupta
has heavily relied upon the authority of the
Supreme Court in the case of Dr.
Thingujam Achouba Singh and Others
v. Dr. H.N.Nabachandra Singh and
Others, (2020) 20 SCC 312.

12. Having heard learned counsel
appearing for the respective parties and
noticing arguments advanced on behalf of
the respective parties to the lis, I find there
to be arising following points and issues to
be addressed:

a). Whether Board of Governors,
IIT Kanpur is justified in adopting
resolution dated 23rd December, 2022 to
hold direct recruitment drive in respect of 5
posts of Executive Engineer to the
disadvantage of the petitioners who claim
departmental promotion;

b). Whether in absence of any
challenge to the rules taking aid of which
resolution dated 23rd December, 2022 has
been adopted and whether in the absence of
challenge to the resolution, the same can be
held bad; and

c).
Whether
five
posts
of
Executive
Engineer
advertised
by
respondents do fall under promotion quota.

13. The first and second points are
interrelated in the sense that, if there is an
authority vested under the rules with the
Board of Governors, whether challenge or
no challenge, the resolution will be valid
and conversely if the Court finds there to
be no such power under the rules vested
with Board of Governors, resolution would
get rendered null and void and the Court
even in the absence of any challenge hold
that to be so and consequential action even
if not under challenge would become bad
and can be struck down.

14. I proceed to examine the relevant
recruitment and promotions rules to record
findings as to the claim of the petitioners
that there lies no such power with Board of
Governors. Both the learned Advocates
appearing for the respective parties do
agree that recruitment and promotion rules,
2018, modifying earlier Rules, 2013
notified on 27th November, 2018 are the
rules in existence and parties do agree that
these rules came to be further modified and
notified on 28th May, 2021 brought on
record as Annexures CA 1,2 and 3
respectively).

15. The plea taken in the rejoinder
affidavit is that Board of Governors is
responsible
only
for
general
Superintendence and Control qua affairs of
the institute but is not vested with powers
to formulate or approve rules including
rules and regulation for recruitment and
laying down accordingly eligibility criteria
etc. for selection and appointment upon
faculty and non-faculty positions in the
institute. A further plea taken in the
rejoinder affidavit is that recruitment and
Career Progression Scheme floated by the
IIT Council, the top composite body for
different IITs, wayback in the year 1999,
would prevail as this authority is superior
to the Board. Thus, it is pleaded that neither
rules framed by the Board of the
480 INDIAN LAW REPORTS ALLAHABAD SERIES
Governors, nor its resolution is enforceable.
However, interestingly, in the writ petition,
there is no such plea as to the validity of the
rules and powers of the Board of Governors
even though reliance has been placed and
reference has been made to the Promotion
Committee and chart of maintenance Staff of
IWD (P-19), which is provided under the
schedule of the promotion rules. It is equally
important to notice that 2018 Rules have been
only modified in a minor way vide
notification issued on 28th May, 2021. The
rules as notified on 28th May, 2021 vide its
Rule 6 gives power to the Board to make
direct recruitment upon posts falling in lateral
entries both in Group-A and B category.
Rules 6 of the rules referring to the
'vacancies' runs as under :

"6. Vacancies: All the non-
teacher/ non-academic posts in the institute
are categorized into three groups (Group A,
Group B and Group C). Categorization of
various post into different groups is as given
in Schedule-1. Under each group there will
be a number of cadres, each cadre having a
ladder with multiple levels of posts. The
lowest post in a ladder will be called the
ent4ry post and the remaining posts within a
ladder will be called selection posts. The
direct recruitment will normally be done at
the entry post in a ladder. However, in the
interest of Institute work, lateral entry of
external candidates may sometimes be
permitted by Board for special needs under
Groups A and B posts. Promotions of
institute employees can be done to both
entry
and
selection
posts.
However,
promotions of institute employees to entry
level posts will be vacancy based."
(emphasis added)

16. Upon bare reading of the
aforesaid provisions, I find that Board has
been vested with power to provide for
direct recruitment even upon post that are
prescribed not at entry level but by way of
lateral entry. In this connection, it is
necessary to refer to P-19 of the schedule
of the Rules. The chart is reproduced:

MAINTENANCE STAFF (IWD)
ENT
RY
LEV
EL

Asst.
Exe.
Engg
PB-3
Rs.
1560
03910
0)
Grad
e Pay
5400
Pay
Matri
x
Level
- 10

Execut
ive
Engg
PB-3
(Rs.
1560039100)
Grade
Pay
6600
Pay
Matrix
Level
11
Executi
ve
Engg
PB-3
(Rs.156
0039100)
Grade
Pay
7600
Pay
Matrix
Level
12

PAY
BAND
CHAN
GE
Execut
ive
Eng
PB-4
(Rs.
3740067000)
Grade
Pay
8700
Pay
Matrix
Level
13

Execut
ive
Eng
PB-4
(Rs.
3740067000)
Grade
Pay
8900
Pay
Matrix
Level
13 A
Group-A
Group-A

ENT
RY
LEV
EL

Junior
Engin
eer
PB-2
(Rs.
930034800
)
Grade
Pay
4200
Pay
Matri
x
Level
6

Senior
Assist
ant
Engin
eer
(SG)
PB-2
(Rs.
930034800
)
Grade
Pay
5400
Pay
Matrix
Level
9
Senior
Assist
ant
Engin
eer
PB-2
(Rs.
930034800
)
Grade
Pay
4800
Pay
Matrix
Level
8
OR
Senior
Assist
ant
Engin
GROU
P
CHAN
GE
(FRO
M
B
TO A)
Asst.
Exe.En
gg PB3
Rs.
1560039100)
Grade
Pay
Rs.
5400
Pay
Matrix
Level
10

Execut
ive
Engg.
PB-3
(Rs.
1560039100)
Grade
Pay
6600
Pay
Matrix
Level
11
4 All. Ram Pratap Singh & Anr. Vs. Union of India & Ors.
481
eer
(SG)
PB-2
(Rs.
930034800
)
Grade
Pay
5400
Pay
Matrix
Level
9
Grou
p B

Group
A

17. The above chart shows that in
Group-A category, the only entry level
post is Assistant Executive Engineer, pay
band 3, grade pay, 5400/- at pay matrix
Level 10, and likewise in Group- B
category, the Junior Engineer post at pay
matrix level-6 is the post provided for
entry level. The chart makes it clear that
while Junior Engineer Level post is
exclusively filled up by direct recruitment
but post of Assistant Executive Engineer,
which is an entry level post at pay matrix
level-10 in group A can also be filled up
by promotion from Group-B post. This is
further supported by P-40 of the first
schedule of the rules that provides for 50
per cent of the vacancies of Assistant
Executive Engineer at pay matrix level 10
to be filled up by way of promotion from
those Senior Assistant Engineers working
at pay matrix level-8/9 with grade pay
4800/5400- respectively. Both these posts
of Senior Assistant Engineer and Senior
Assistant
Engineer
(SG)
which
are
occupied by the petitioners presently, fall
in pay band-2 category. One more thing is
very clear from P-33 to the first schedule
that even post of Assistant Engineer which
is a lateral entry of Group-B category at
pay matrix level -7 shall also be filled up
both by way of direct recruitment and by
way of promotion from lower grade. The
chart does not show that post of Executive
Engineer of pay band 3 at pay matrix level
11 and onwards upto pay matrix level 13A are to be filled up by direct recruitment
under the rules. Thus, in order to fill up
these
vacancies,
if
otherwise
than
promotion, the Board has to adopt a
resolution in suppression to the rules for
which power is very much prescribed
under rule 6 (supra). Board has adopted
resolution on 23rd December, 2022 to fill
up 5 posts of Executive Engineer by direct
recruitment. The power very much lies
with Board and there should be no quarrel
about. The only question is whether these
rules framed are valid or not.

18. In support of his argument
questioning competence of the Board of
Governors to frame rules, learned counsel
for the petitioner Mr. Tripathi has heavily
relied upon Section 33 1 (b) of the IT Act,
1961 which is reproduced hereunder:

"33. (1) It shall be the general
duty of the Council to co- ordinate the
activities of all the Institutes.

(2) Without prejudice to the
provisions of sub. section (1), the Council
shall perform the following functions,
namely: -

a) to advise on matters relating to
the duration of the courses, the degrees and
other academic distinctions to be conferred
by the Institutes, admission standards and
other academic matters;

b) to lay down policy regarding
cadres,
methods
of
recruitment
and
conditions
of
service
of
employees,
institution of scholarships and freeships,
levying of fees and other matters of
common interest;

c) to examine the development
plans of each Institute and to approve such
of them as are considered necessary and
482 INDIAN LAW REPORTS ALLAHABAD SERIES
also to indicate broadly the financial
implications of such approved plans;

d) to examine the annual budget
estimates
of
each
Institute
and
to
recommend to the Central Government the
allocation of funds for that purpose;

e) to advise the Visitor, if so
required, in respect of any function to be
performed by him under this Act; and

f) to perform such other functions
as are assigned to it by or under this Act."
(emphasis added)

19. The above provisions as contained
under section 33-(1)(b) do provided for
laying down policy regarding entries
methods of recruitment conditions of
service of employees etc. but question is
what would be the legal position, if there
are no such policies laid down.

20. I may here refer to Section 10,11
and 13 of the IT Act, 1961 that provide for
Board of Governors, Senate and such other
authorities as may be prescribed and
declared by statutes. The constitution of
Board and powers of Board under the
relevant
provisions
are
reproduced
hereunder:

10. The following shall be the
authorities of an Institute,

a) a Board of Governors;

b) a Senate; and

c) Such other authorities as may
be declared by the Statutes to be the
authorities of the Institute.

11. The Board of an Institute
shall consist of the following persons,
namely:-

a) the Chairman, to be nominated
by the Visitor;

b) the Director, ex officio,

(c) one person to be nominated by
the Government of each of the States
comprising the zone in which the Institute
is situated, from among persons who, in the
opinion
of
that
Government,
are
technologists or industrialists of repute;

(d) four persons having special
knowledge or practical experience in
respect
of
education,
engineering
or
science, to be nominated by the Council;
and

(e) two professors of the Institute,
to be nominated by the Senate.

Explanation:- In this section, the
expression "zone" means a zone as for the
time being demarcated by the All-India
Council for Technical Education for the
purposes of this Act.

13. (1) Subject to the provisions
of this Act, the Board of any Institute shall
be
responsible
for
the
general
superintendence, direction and control of
the affairs of the Institute and shall exercise
all the powers of the Institute not otherwise
provided for by this Act, the Statutes and
the Ordinances, and shall have the power to
review the acts of the Senate.

(2) Without prejudice to the
provisions of sub- section (1), the Board of
any Institute shall-

(a) take decisions on questions of
policy relating to the administration and
working of the Institute;

(b) institute courses of study at
the Institute;

(c) make Statutes;

(d) institute and appoint persons
to academic as well as other posts in the
Institute;

(e) consider and modify or cancel
Ordinances;

(f) consider and pass resolutions
on the annual report, the annual accounts
and the budget estimates of the Institute for
the next financial year as it thinks fit and
submit them to the Council together with a
statement of its developments plans;
4 All. Ram Pratap Singh & Anr. Vs. Union of India & Ors.
483

(g) exercise such other powers
and perform such other duties as may be
conferred or imposed upon it by this Act or
the Statutes.

(3) The Board shall have the
power to appoint such committees as it
considers necessary for the exercise of its
powers and the performance of its duties
under this Act.
(emphasis added)

21. According to aforesaid provisions,
residuary power lies with Board, which is
not provided elsewhere. The first statute
and ordinances have to be framed vide
Section 6(1) of the IT Act, 1961 and that
power lies with both the Board and the
Council both. Section 38-(c) provides that
so long as statutes and ordinances are not
framed for each of the institutes of
colleges, the statute and ordinance of the
Indian Institute of Technology, Kharagpur
will prevail.

22. In total circumspect of the
provisions as discussed above, it is clear
that either rules are framed by the council
as Apex Body on all India basis or Board
for the IIT Kanpur, the provisions of the
IIT Kharagpur provide for such conditions
to which Rule 6 of the recruitment and
promotion rules can be said to be
repugnant, the rules as famed by the Board
of Governors exercising power under
Section 13(1) would prevail. 13(2)-c also
empower the Board to frame statutes,
therefore,
taking
recourse
to
the
harmonious constructions of the provisions
as contained under Section 13(1) and 13(2)
c and 33(1) (b) and 38-(C) of the IT Act,
1961, it can safely be concluded that Board
of Governors being Apex Body of the IIT
Kanpur under the Act, 1961 is fully
empowered to frame recruitment and
promotions rules and since it has framed
such rules right from 2013 onwards as
amended Rules 2021, such rules are held to
be valid.

23. As the argument has been
advanced that All India Council has the
general powers over and above institutes of
Technology and the Act, 1961 does vest
power in the IITs to inform Ministry of
Human Resources and Development to
create post by virtue of delegated power,
executing this power a resolution as
adopted by All India Council as item no.
40.4 placed before the Board date 19th
October, 2009 is reproduced hereunder:

"Item No. 40.4: Autonomy of the
Institutes
-
financial,
functional
and
managerial:

The issue of autonomy is closely
linked with the capacity of the institutions
to raise their own resources. In order to
suggest ways and means of achieving more
autonomy, it was decided to constitute a
Committee comprising Dr. Anil Kakodkar,
Chairman, BoG, lIT Bombay and four
other members to be nominated by the
Chairman to suggest a roadmap for the
autonomy and future of the lITs. The
Committee would inter alia examine the
issue of increase in fees by the IITS in a
gradual manner. While doing so, the
interest of weaker sections of society i.e.
SCs/STs/OBCs would be taken care of. It
should be ensured that any student entering
the IIT system should be able to avail
educational loan and the same must be
facilitated by the Institutes. The Committee
could suggest an interest loan waiver
scheme for students who continue to do
research and take up teaching assignments.
In fact a portion of the loan could be even
considered for being written off for every
year of teaching in a publicly funded
institution in such a way that the entire loan
484 INDIAN LAW REPORTS ALLAHABAD SERIES
could be written off if one has served in
publicly funded institutions for more than
30 years or so. Any person who does Ph.D.
must be supported. The Non Plan grants to be
given to the lITs, which are in the process of
being raised through the Block Grant scheme,
should be linked to the actual students'
strength. The ratio of B.Tech

Post
Graduate
and
Research
students
in
the
Institutes
should
be
maintained at optimum levels, while affecting
increase in students' strength. The Institutes
should be entitled for matching grants from
the Government in case they generate more
resources through research projects from the
industry, consultancy, donations from alumni
and others etc. All these issues will be
examined by the above Committee which
will submit its report within 4 months and
will also follow up on the implementation of
its recommendations.

It was also decided that flexibility
would be given to the IITs for creation of
posts. ITs may be delegated the power to
create posts subject to the ratio of 10:1:1.1
between students, faculty and non-faculty.
However the ITs would be required to inform
the Ministry while creating the posts under
these deligated powers. Addl. Secretary
(MHRD) was asked to get this processed for
issue of appropriate orders in this regard,
after obtaining the approval of the Ministry of
Finance.

The Directors of Ilts expressed that
there was a need for more laboratory staff.
AS & FA stated that clarifications have been
issued to the ITs that requirement of
increased number of technical staff due to
OSC expansion only could be allowed even if
the ratio exceeds the norms of 1:1.1 between
faculty to non-faculty staff.

It was also clarified that for the
purpose of new cars for the Directors of
new ITs, the BoG of the concerned Institute
was competent to approve.

It was also decided that every II'T
would present its vision document at the
Retreat proposed in January, 2010."

24. Mr. Gupta, has argued that rules
does not provide post of Superintendent
Engineer under, and therefore, resolution
was rightly adopted by the Board to create
a post as required. He has argued that
besides there being residuary power with
the Board by virtue of which it provided
resolution dated 23rd December, 2022
there being residuary power with the
Council under the IT Act, 1961, by virtue
of Section 2-b of Section 33 of the IT Act,
1961 and so it rightly adopted resolution.
So even creation of post of Superintending
Engineer under the resolution adopted by
the Board of Governors is a valid act within
the ambit and scope of powers vested in it.

25. In view of above, in respect of
both point nos. 1 and 2, I hold that Board of
Governors of IIT Kanpur is justified in
framing
recruitment
Rules
2018
as
modified/ amended in 2021 and since Rule
6 of rules provides for powers for the direct
recruitment even upon post falling in lateral
entries (P-19) that includes post of
Executive Engineer, the resolution adopted
by it to make a direct recruitment upon
such post dated 23rd December, 2022 is
also valid. Besides the above, I also find
that petitioners are not eligible for the post
of Executive Engineer for the simple
reason that they are not working as
Assistant Executive Engineer .

26. So for the post of Executive
Engineer is concerned, there should be no
quarrel because Rules vide P-19 to the
schedule make post of Executive Engineer
at pay matrix level- 11 in the Group- A to
be filled up by promotion only from
Assistant Executive Engineer, pay matrix
4 All. Ram Pratap Singh & Anr. Vs. Union of India & Ors.
485
level 10 and the essential qualification
under the advertisement is also three years
of regular clear service at Assistant
Executive Engineer, level- 10 or equivalent
level. So essential qualification prescribed
under the advertisement, rules are same.

27.

Under
the
circumstances,
therefore, petitioners cannot question the
advertisement as far as post of Executive
Engineer is concerned because they have
nothing to put on stake, being not eligible
even by way of promotion upon the posts
in question. There is no prayer in the writ
petition seeking promotion to the post of
Assistant Executive Engineer, so no relief
as such can be granted to promote them
first as Assistant Executive Engineer if
lying vacant then to direct to consider their
claim for the post of Executive Engineer.

28. The question of consideration of
age would have arisen had petitioners been
working at pay matrix level-10 which is not
a case in hand even otherwise prescribed
qualification is a pure administrative policy
decision of employer either by framing
rules or otherwise by executing instructions
to be meet requirements as per suitability
required.

29. In my above view, I find support
from paragraph 16 of the judgment of the
Supreme Court in the case of Dr.
Thingujam Achouba Singh and Others
(Supra) Paragraph 16 runs as under:

"16. So far as relaxation of upper
age-limit, as sought by the petitioners in
one of the writ petitions is concerned, the
High Court has directed the competent
authority and Executive Council of the
Society to consider for providing such
relaxation clause. We fail to understand as
to how such direction can be given by the
High Court for providing a relaxation
which is not notified in the advertisement.
While it is open for the employer to notify
such criteria for relaxation when sufficient
candidates are not available, at the same
time nobody can claim such relaxation as a
matter of right. The eligibility criteria will
be within the domain of the employer and
no candidate can seek as a matter of right,
to provide relaxation clause."

30. Admittedly, there is no challenge
to the rules. The pleading in the writ
petition are absolutely silent about validity
of these rules. In fact these rules have
though been not annexed with writ petition
but a particular table has been annexed
which is P-19, which is provided under the
schedule of the recruitment and selection
Rules 2018 amended in 2021. This table
has been relied upon by the petitioner to
take the plea that post in question is a
promoted post.

31. In the rejoinder affidavit although
plea has been taken vide paragraph 8 that
IIT Council shall be laying down the rules
of recruitment shall be providing for
conditions of service as per Institutes of
Technology Act, 1961, but neither any
policy has been annexed or even referred to
by the petitioner in the rejoinder affidavit,
nor
even
recruitment
and
Career
Progression Scheme as referred to in
paragraph 8 of the rejoinder affidavit has
been brought on record.

32. In the same judgment of Dr.
Thingujam Achouba Singh and Others
(Supra), the Court has held merely because
rules are not in public domain notifying it,
cannot itself be a ground to challenge and
further if the rules are not challenged the
Court will not embark upon an enquiry as
to the validity of such rules. Vide
486 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraph 13 and 14, the Court has held
thus:

"13. At the outset, it is to be
noticed that though, in none of the writ
petitions, Rules governing appointment to the
post of Director was under challenge, the
High Court has gone into the validity of the
Rules,
as
amended,
and
held
that
amendments to the Rules were not carried out
by following the Rules, Regulations and Byelaws of the Society. The specific plea of the
respondent authorities in the writ petitions,
that there is no challenge to validity of the
Rules but same has been brushed aside by the
High Court by merely stating that such an
objection is of technical nature. At this stage,
it is relevant to note that such objection raised
should not have been brushed aside by the
High Court by holding that such objection is
of a technical nature. In all these writ
petitions in which common order [H.
Nabachandra Singh v. Union of India, 2017
SCC OnLine Mani 52] is passed by the High
Court, validity of advertisement dated 16-82016 alone was under challenge. We are of
the view that the High Court has committed
an error in going into the validity of the
Rules, in absence of any challenge to the
same. In any event, it was the case of the
respondent
authorities
that
the
Rules
governing appointment were amended by
following the Rules and such amendment
was also approved by the competent
authority, of Ministry of Health & Family
Welfare.

14. Further,
the
fact
of
not
notifying the amended Rules has also been
made basis for grant of relief by the High
Court. In this regard, the High Court has held
that not notifying the amended Rules would
strike at the root of the amendment process of
the recruitment rules, as such, unless such
Rules are notified, the same cannot be
enforced. It appears from the impugned order
itself that it was the specific plea in the
counter-affidavit filed before the High Court
that the said Rules were not framed under
Article 309 of the Constitution of India and
further there is no specific provision in the
Rules, Regulations and Bye-laws of RIMS
for notifying the same. It is true that in a
public institution, rules are required to be
made available, but at the same time not
notifying to public at large cannot be the
ground to invalidate the notification, in the
absence of any provision to that effect in the
Bye-laws of the Society or the Rules and
Regulations framed for recruitment to the
post of Director."

33. Coming to second point as to
whether these five posts would have fallen in
promotion quota, suffice it to say that since
these are lateral positions and the Board of
Governors is vested with power to fill up
within vacancies by direct recruitment
regarding, under rule 6, even if these
vacancies were meant to be filled up by
promotion, the resolutions adopted by the
Board to meet special exigency cannot be
faulted with.

34. Thus, I do not find any good ground
to quash the advertisement in question. Writ
petition fails and is accordingly dismissed
with no order as to cost.
----------
(2024) 4 ILRA 486
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 19256 of 2023

Prem Kumar Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents