# Ram Pratap Singh v. Union of India & Ors

- **Citation:** (2024) 5 ILRA 2430
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** Special Appeal No. 345 of 2024
- **Bench:** Mahesh Chandra Tripathi, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pratap-singh-v-union-of-india-ors-52095
- **Pages:** 21

## Headnote

Civil Law - Service Matter- Appellant-
appointed as Junior Engineer (Trainee) on
adhoc basis - for a period of two years -
extended
further
for
six
months
-
Appellant applied again - selected on the
post of Assistant Engineer (Civil) on
regular basis - He was accorded the first
financial upgradation and later on was
promoted to the post of Senior Assistant
Engineer (SG) - Board of Directors had
approved the Recruitment and Promotion
Rules in respect of non-academic staff-
Appellant
claims
that
his
right
to
promotion got affected by the new policy
- represented the matter - Institute Level
Grievance Redressal Committee and the
Board-Sub Committee refused - Appellant
filed Writ - Rejected - Hence, appellant
preferred Special Appeal - Dismissed
(Para - 3,4,5,9,49)

HELD: The suitability for the job, for which the
selection and appointment is to be made, is an
5 All. Ram Pratap Singh Vs.Union Of India & Ors.
2431
area of technical experts of the field and
generally the Court does not inhere such
expertise and skills to assess the suitability and
eligibility vis-a-vis selection & appointment had
to be made. The Court cannot embark upon any
enquiry by way of judicial review to prescribe,
which qualifications would be better qualification
for the employer to provide as an essential
qualification for the post. Prescription of
qualifications and other conditions of service
pertains to the field of policy is within the
exclusive discretion and jurisdiction of the
authority. In the instant appeal there was no
challenge to the Rules/Regulations, which were
duly adopted by the Competent Authority,
therefore, the recruitment process which was
adopted by the employer cannot be held to be
an arbitrary exercise. (Para - 30, 31, 46)

Appeal is dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,834 of 71,742. This is a partial read: ask again with offset=39834 for what follows._

2430 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra) will not be applied in the present
case. Even otherwise, the applicant can
raise all his defence during trial.

11. Hon'ble Apex Court in the case
of NEPC Micon Ltd. vs. Magma Leasing
Ltd.; 1999 (4) SCC 253, observed that it is
the duty of court to interpret Section 138
N.I. Act consistent with the legislature
intent and purpose so as to suppress the
mischief
and
advance
the
remedy.
Therefore,
second
complaint
by
impleading the company is not barred for
bouncing of the cheque in question issued
by the company M/s Prerana Construction
Pvt. Ltd.

12. Even otherwise, the drawer of
the cheque in the case of Himanshu vs.
B. Shivamurthi (supra) deposited the
cheque amount before Hon'ble Supreme
Court, showing his bone fide. However,
in the present case order sheet shows that
though the complaint was filed in the year
2018, the applicant as well as his
company tried their best to avoid facing
trial, despite issuance of summons and
bailable warrant, therefore, such type of
drawer of cheque should not be allowed
to take benefit of technicality at the cost
of justice.

13. In view of the above legal
position, the present complaint is not
maintainable as the company M/s
Prerana Construction Pvt. Ltd. was not
impleaded as a party. In view of the
above, the proceeding of Complaint
Case No. 14 of 2018 (Smt. Manju
Sharma vs. Jitendra Mangala), u/s 138
N.I. Act, P.S. Tajganj, District Agra is
hereby quashed.

14. Accordingly, the application is
allowed.
15. However, opposite party No.2
is permitted to filed fresh complaint by
impleading the company, namely, M/s
Prerana Construction Pvt. Ltd., within a
period of one month.
----------
(2024) 5 ILRA 2430
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2024
BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Special Appeal No. 345 of 2024

Ram Pratap Singh ...Appellant
Versus
Union of India & Ors. ...Respondents

Counsel for the Appellant:
Avneesh Tripathi

Counsel for the Respondents:
A.S.G.I., Rohan Gupta

Civil Law - Service Matter- Appellant-
appointed as Junior Engineer (Trainee) on
adhoc basis - for a period of two years -
extended
further
for
six
months
-
Appellant applied again - selected on the
post of Assistant Engineer (Civil) on
regular basis - He was accorded the first
financial upgradation and later on was
promoted to the post of Senior Assistant
Engineer (SG) - Board of Directors had
approved the Recruitment and Promotion
Rules in respect of non-academic staff-
Appellant
claims
that
his
right
to
promotion got affected by the new policy
- represented the matter - Institute Level
Grievance Redressal Committee and the
Board-Sub Committee refused - Appellant
filed Writ - Rejected - Hence, appellant
preferred Special Appeal - Dismissed
(Para - 3,4,5,9,49)

HELD: The suitability for the job, for which the
selection and appointment is to be made, is an
5 All. Ram Pratap Singh Vs.Union Of India & Ors.
2431
area of technical experts of the field and
generally the Court does not inhere such
expertise and skills to assess the suitability and
eligibility vis-a-vis selection & appointment had
to be made. The Court cannot embark upon any
enquiry by way of judicial review to prescribe,
which qualifications would be better qualification
for the employer to provide as an essential
qualification for the post. Prescription of
qualifications and other conditions of service
pertains to the field of policy is within the
exclusive discretion and jurisdiction of the
authority. In the instant appeal there was no
challenge to the Rules/Regulations, which were
duly adopted by the Competent Authority,
therefore, the recruitment process which was
adopted by the employer cannot be held to be
an arbitrary exercise. (Para - 30, 31, 46)

Appeal is dismissed. (E-13)

List of Cases cited:

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

2. P.U. Joshi Vs Accountant General, 2003 2 SCC 632

3. Maharashtra Public Service Commission Vs
Sandeep Shriram Warade, (2019) 6 SCC 362

4. Chief Manager, Punjab National Bank Vs Anit
Kumar, (2021) 12 SCC 80

5. Deepak Singh Vs St. of U.P, 2019 SCC Online
ALL 4471 (FB)

6. Vincent Nirmala Vs U.O.I.& ors (W.P. (C)
2742/2021)

7. P.Chitranjan Menon & ors. Vs A. Balakrishnan
& ors, AIR 1977 SC 1720

8. Roshan Lal & ors. Vs International Airport
Authority of India & ors, AIR 1981 SC 597

9. Edukanti Kistamma Vs S. Venkatareddy, AIR
2010 SC 313

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Sri Avneesh Tripathi,
learned counsel for the appellant-petitioner
and Sri Rohan Gupta, learned counsel for
the opposite party nos.2 to 4.

2. Present Special Appeal has arisen
from a judgment and order of the learned
Single Judge dated 11th March, 2024
passed in Writ A No.19126 of 2023 (Ram
Pratap Singh and another vs. Union of India
and 3 others) by which the writ petition
filed by the appellant-petitioner has been
dismissed.

FACTS

3. The facts giving rise to this appeal
in a nutshell are that the Indian Institute of
Technology, Kanpur1 is an engineering
institute. Initially, it was a society and
subsequently, it was incorporated by the
Central Government under the Institutes of
Technology Act, 19612. Initially, the
appellant-petitioner was appointed as a
Junior Engineer (Trainee) in the pay scale
of Rs.1400-2600 in IIT-Kanpur on April 27,
1988 on temporary and adhoc basis for a
period of two years from the date of his
joining and the said period was extended
for a further period of six months vide
Office
order
dated
10.05.1990.
Subsequently, his pay scale of Rs.14002600 was changed to Rs.5000-8000/-. In
January,
1991
the
IIT-Kanpur
had
published
an
advertisement
for
appointment on the post of Junior Engineer
and finally, the appellant was selected on
the said post.

4. Thereafter, the appellant applied
against the advertisement No.2/2005 and he
was duly selected on the post of Assistant
Engineer (Civil) on regular basis with effect
from 14.12.2005 (F/N) or the date of
assumption of charge on the position of
2432 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant Engineer (Civil), whichever is
later. He was accorded the first financial
upgradation in the Grade Pay of Rs.4600/-
vide Office Order dated 08.05.2014 and
later on was promoted to the post of Senior
Assistant Engineer (SG) in the pay scale of
Rs.33100-187800 Level-9 with Grade Pay
of Rs.5400/-, with effect from 01.01.2018,
vide Office Order dated 30.01.2019. The
pay scale of Rs.33,100-1,87,800/- was the
same pay scale as given to the promoted
Senior
Assistant
Engineer/Assistant
Engineer.

5. Meanwhile, the Board of Directors
in its 227th meeting dated 11.10.2018 had
approved the Recruitment and Promotion
Rules in respect of non-academic staff. The
IIT Kanpur decided to adopt and implement
the Recruitment and Promotion Rules as
per procedures approved by the Board.
Thereafter, the promotion policy was
notified
vide
Office
Order
dated
27.11.2018. The appellant claims that his
right to promotion got affected by the new
policy and as such, he represented the
matter
before
the
IIT
Kanpur
on
14.06.2019. The same was examined by the
Institute
Level
Grievance
Redressal
Committee and the Board-Sub Committee,
constituted for grievance examinations,
wherein it was found that there is no merit
in the claim set up by the appellant and he
was advised to apply for the promotion as
and when the post is advertised, subject to
meeting the eligibility criteria. Therefore,
the Board of Governors in its 244th meeting
dated 12th January, 2022 had refused to
accept his request and the same was
communicated to him vide letter dated
28.02.2022 issued by the Deputy Registrar
(Admin.) of IIT Kanpur.

6. It is claimed that the appellant
possessed all the essential qualifications
required
for
being
considered
for
appointment on the post of Executive
Engineer. It transpires that in the earlier
advertisement dated 25.05.2015 at serial
no.3 the posts of Executive Engineer
(Electrical) (reserved for OBCs) & Airconditioning (UR) were mentioned and the
applications
were
invited
from
the
Assistant Executive Engineer with 5 years
service in the grade; or Graduate Assistant
Engineers with 8 years service in the grade
or Diploma holders Assistant Engineers
with outstanding records & ability and 10
years service in the grade. Thereafter, the
IIT Kanpur had published an advertisement
no.1/2023
dated
16.9.2023
inviting
applications for recruitment on various
posts including five posts of Executive
Engineer,
wherein
the
essential
qualification for the post of Executive
Engineer were changed and now the
qualification was added that the applicants
holding the rank of Assistant Executive
Engineer at Level-10 would alone be
eligible for the recruitment.

7. The appellant and other similarly
situated employees represented the matter
before
IIT
Kanpur
on
25.9.2023.
Consequently, a corrigendum was issued on
20.9.2023 whereby the recruitment process
for the post of Executive Engineer was kept
in abeyance. Meanwhile, the Director of IIT
Kanpur had retired from service and the
charge of the Director was given to Seniormost Professor, who is now acting as
Officiating Director. He had published the
advertisement dated 04.09.2023 for various
posts including five posts of Executive
Engineer at serial no.18, wherein the
incumbents were required to possess the
essential qualifications, (i) Master's Degree
in Civil Engineering from a recognized
University/Institute with at least 55% in the
5 All. Ram Pratap Singh Vs.Union Of India & Ors.
2433
qualifying degree; (ii) At least eight years
relevant experience out of which at least
three years of regular clear service at
Assistant Executive Engineer level or
equivalent (Level 10, 7th CPC) OR (i) A
first-class degree in Civil Engineering from
a recognized University/Institute; (ii) At
least ten years relevant experience out of
which at least 5 years of regular clear
service at Assistant Executive Engineer
level or equivalent (Level 10, 7th CPC).

8. Aggrieved with the aforesaid
advertisement, the appellant had filed Writ
A No.19126 of 2023 praying for the
following reliefs:-

"i) to issue a writ, order or
direction in the nature of certiorari
quashing
the
advertisement
dated
04.09.2023 bearing Advertisement No.1/23
issued by the Recruitment Section of the
respondent no.2 in so far as it relates to the
selection on the post of Executive Engineer
at Serial No.18 (Annexure-1 to the instant
writ petition);

ii) to issue a writ, order or
direction in the nature of mandamus
directing respondent No.2 to allow the
petitioner to participate in the recruitment
process.

(iii) to issue any other suitable
writ, order or direction which the Hon'ble
Court may deem fit and proper in the facts
and circumstances of the instant case.

(iv) to award costs of this petition
to the petitioner."

9. The learned Single Judge after
extensively considering the pleadings;
submissions of the parties and the import of
judgement & order passed by Hon'ble
Supreme Court in the case of Dr.
Thingujam Achouba Singh and Others v.
Dr.
H.N.Nabachandra
Singh
and
Others3, proceeded to dismiss the writ
petition vide order dated 11.3.2024, which
is under challenge in the present Special
Appeal.

SUBMISSION ON BEHALF OF THE
APPELLANT

10. Sri Avneesh Tripathi, learned
counsel for the appellant vehemently
argued that the impugned judgement and
order dated 11.3.2024, passed by the
learned Single Judge suffers from manifest
error of law and accordingly, the same is
liable to be set aside. He submitted that the
appellant had approached to this Court and
asked for the relief to participate in the
selection process and not for promotion on
the post in question. The petitionerappellant
had
also
questioned
the
proprietary and legality of the conditions
imposed in the impugned advertisement
and
submitted
that
the
impugned
advertisement is made just to preclude the
appellant from appearing in the direct
recruitment for the post of Executive
Engineer. He submitted that learned Single
Judge has
failed
to
appreciate
the
controversy in hand. Even though the issues
were framed in paragraph 12 of the
judgement but the same were contrary to
the assertions made in the writ petition and
in particular, the reliefs, which were sought
in the writ petition. Learned Single Judge
has also failed to appreciate the core issue
of arbitrariness of the Board of Governors
while putting the conditions in the
advertisement,
which
were
nowhere
prescribed in any other IITs. He submitted
that learned Single Judge has heavily relied
upon the fact that the petitioner had not
questioned the power of the Board of
Directors in adherence to which the
impugned conditions of the advertisement
were prescribed. He submitted that the
2434 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order on this score is also
unsustainable as the specific pleading has
been set up by the petitioner in paragraph
Nos.18, 25, 36, 37, 41 & 42 of the writ
petition.

11. It was further argued by Sri
Tripathi that the order impugned is also
unsustainable as the learned Single Judge
has expressed an opinion that in absence of
challenge being made to the Recruitment &
Promotion Rules, 2018 of IIT Kanpur4 and
also without challenge to the resolution of
the Board of Governors dated 23.12.2022,
no relief can be accorded to the petitioner.
He submitted that in fact, Rules, 2018
would have no bearing or relevance as the
same do not talk about the post in question
i.e. Executive Engineer. Neither, the same
has prescribed the qualification for the post
in question nor the resolution of the Board
of Governors prescribes as such, and for the
first time, the alleged Rules, 2018 had been
brought on record alongwith the counter
affidavit
with
an
endorsement
as
confidential document and the same was
not available in public domain. Therefore,
in absence of relevant resolution available
in public domain, the same could not be
challenged by the applicant. Moreover, in
most arbitrary manner the qualifications
were imposed through the advertisement in
question.

12. Sri Avneesh Tripathi vehemently
submitted that learned Single Judge had
taken note of Section 33 (2) (b) of the IT
Act, 1961 which provides to lay down the
policy regarding cadres, methods of
recruitment and conditions of service of
employees but in most arbitrary manner,
learned Single Judge has failed to
appreciate that the Board of Governors
prescribed qualifications in the impugned
advertisement without any authority. He
had also stated that in most arbitrary
manner, the Board of Governors had taken
note of resolution of the IIT Council dated
19.10.2009, wherein it is manifestly clear
that no such power inheres the Board of
Governors
to
determine
the
service
conditions, rather it is only limited to
creation of new posts. Learned Single
Judge had also utterly failed to take note of
this very submission that the impugned
conditions were imposed in such arbitrary
manner solely for the reason that the
rightful claim of the petitioner appellant
could be denied. The precise observation of
learned Single Judge to the extent, that in
absence of any challenge to the Rules or
resolution passed by the Board of
Governors, no relief could be accorded to
the petitioner, is also misconceived as the
said document had been placed by the IIT
Kanpur alongwith counter affidavit with a
note that the said document is confidential
and the same is not in public domain.

SUBMISSION ON BEHALF OF
RESPONDENTS

13. Replying to the aforesaid
submission made by the learned counsel
representing the appellant-petitioner, Shri
Rohan Gupta, learned counsel for the IIT
Kanpur has strenuously argued that the
appellant is working as Senior Assistant
Engineer (Special Grade), which is Level-9
post and he cannot be promoted to the post
of Executive Engineer, which is a Level-11
post. Admittedly, the age of the appellant is
59 years while the maximium age in the
advertisement was given as 55 years,
therefore the appellant is not eligible for
direct recruitment. The advertisement in
question further prescribes the essential
qualifications as determined by the Board
of Governors of the IIT-Kanpur in the
meeting dated 11.12.2022. Both the
5 All. Ram Pratap Singh Vs.Union Of India & Ors.
2435
prescriptions i.e. age as 55 years, and the
eligibility criteria as laid down by the
Board, had not been assailed in the writ
petition. He has placed reliance on the
judgement in the case of Dr. Thingujam
Achouba Singh and others vs. Dr. H.
Nabachandra Singh and others5, in
which it was held that in absence of
challenge to the Rules laying down the
eligibility
criteria,
the
consequential
advertisement could not be challenged.

14. Sri Rohan Gupta further submitted
that the Writ Court has proceeded to decide
the matter on the basis of the fact that Rule
6 of the Rules, 2018 clearly provides that
the direct recruitment would generally be
done at the entry level posts and it also
prescribes the eligibility criteria for the
entry level posts. The post of Executive
Engineer is, therefore, a promotional post.
Rule 6 itself further provides that lateral
entry of external candidates may sometimes
be permitted by the Board for special needs.
Rules, 2018 do not prescribe the eligibility
criteria for the post of Executive Engineer.
However, the Board has the powers to
permit lateral entry and has done so in its
meeting dated 11.12.2022. Rule 6 of the
Rules, 2018 empowers the Board to permit
lateral entry of external candidates even on
the post of Executive Engineer, which is to
be normally filled up by promotion. It was
essential for the petitioner to have
challenged the Rules, 2018 and the
resolution of the Board of Governors dated
11.12.2022
prescribing
the
essential
qualifications for the post of Executive
Engineer and as such, any claim, in absence
of challenge, is not tenable in the eyes of
law.

15. It was further submitted that the
petitioner has not challenged the eligibility
criteria as prescribed by the Board and
therefore, this question was not considered
by the Writ Court. The petitioner had set up
his claim in the writ petition that the CPWD
Rules for direct recruitment would apply to
IIT Kanpur and the ground qua the
competence of the Board to frame the rules
was only taken in the rejoinder affidavit
without
moving
any
amendment
application to challenge the Rules or the
Resolution of the Board dated 11.12.2022.
The IIT Council is a separate entity and it
was not made a party in the writ petition
and as such, the Union of India could not
clarify the stand of the IIT Council.

16. We have carefully considered the
rival submissions placed by the learned
counsels representing the respective parties
at the bar and perused the record.

FINDINGS OF THE LEARNED
SINGLE JUDGE

17. Learned Single Judge after
noticing the arguments advanced on behalf
of the parties formulated three categorical
points and issues to be addressed namely
(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.

18. Learned Single Judge in his
wisdom had taken the first and second
points together as both were interrelated.
2436 INDIAN LAW REPORTS ALLAHABAD SERIES
Firstly, he had considered whether 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, the 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. Learned Single
Judge had considered the petitioner's
argument to the effect that there lies no such
power with Board of Governors and during
the argument, the Advocates appearing for
the respective parties do agree that the
Rules, 2018, which were adopted by
modifying earlier Rules, 2013, notified on
27th November, 2018 were the rules in
existence and they had also accepted that
these rules came to be further modified and
notified on 28th May, 2021, which had been
brought on record alongwith counter
affidavit filed by the respondents.

19. Learned Single Judge has also
taken into consideration the objection of the
petitioner that the Board of Governors is
responsible
only
for
general
superintendence and control qua affairs of
the institute but is not vested with the powers
to formulate or approve rules and regulations
for recruitment and laying down accordingly
eligibility criteria etc. for selection and
appointment upon faculty and non-faculty
positions in the institute. The objection,
which was taken in the rejoinder to the extent
that Recruitment and Career Progression
Scheme, which was floated by the IIT
Council, the top composite body for different
IITs, way back in the year 1999, would
prevail as this authority is superior to the
Board. Learned Single Judge has considered
Section 33 (2) (b) of the IT Act, 1961 and
accepted that Section 33 (2) (b) provides for
laying down policy regarding cadres,
methods of recruitment and conditions of
service of employees etc. The learned Single
Judge had also considered the relevant
question qua the legal position, if there are no
such policies laid down. Section 33 of the IT
Act, 1961 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 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 supplied)

20. For considering the aforesaid
provisions learned Single Judge has
5 All. Ram Pratap Singh Vs.Union Of India & Ors.
2437
considered Sections 10, 11 and 13 of the IT
Act,
1961,
which
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;

(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."

21. As far as the submission of the
counsel for the appellant-petitioner that the
power of the Board of Governers is limited ,
we are in consonance with the view taken
by the Learned Single Judge, as the
Sections 25, 26 and 27 of the IT Act 1962
explicitly lays down the power of the Board
which are repoduced hereunder:-

" 25 - Appointments

All appointment on the staff of
any Institute, except that of the Director,
shall be made in accordance with the
procedure laid down in the Statutes, by----
2438 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) the Board, it the appointment
is made on the academic staff in the post of
Lecturer or above or if the appointment is
made on the non-academic staff in any
cadre the maximum of the pay-scale for
which exceeds six hundred rupees per
month;

(b) by the Director, in any other
case."

" 26 - Statutes

Subject to the provisions of this
Act, the Statutes may provide for all or any
of he following matters, namely:---

......

(e) the term of office and the
method of appointment of officers of the
Institute;

(f) the qualifications of teacher of
the Institute;

(g) the classification, the method
of appointment and the determinations of
the terms an conditions of service of,
teachers and other staff of the Institute;

(h) the constitution of pension,
insurance and provident funds for the
benefit of the officers, teachers and other
staff of the Institute;

(I) the constitution, powers and
duties of the authorities of the Institute;

..."

" 27 - Statutes how made

(1) The first Statutes of each
Institute shall be framed by the Council
with the previous approval of the Visitor
and a copy of the same shall be laid as soon
as may be before each House of Parliament.

(2) The Board may, from time to
time, make new or additional Statutes or
may amend or repeal the Statutes in the
manner hereafter in this section provided.

(3) Every new Statute or addition
to the Statutes or any amendment or repeal
of a Statute shall require the previous
approval of the Visitor who may assent
thereto or withhold assent or remit it to the
Board or consideration.

(4) A new Statute or a Statute
amending or repealing an existing Statute
shall have no validity unless it has been
assented to by the Visitor."

22. Heavy reliance has also been
placed by learned counsel for the appellantpetitioner before learned Single Judge that
All India Council for Technical Education
has the general powers over and above the
Institutes of Technology and the IT 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
at item no. 40.4, was placed before the
Board on 19th October, 2009, wherein it
was decided that flexibility would be given
to the IITs for creation of posts. IITs 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 IITs
would be required to inform the Ministry
while creating the posts under these
delegated powers. This aspect of the matter
has also been considered by the learned
Single Judge. The relevant paras 21, 22 and
23 of the judgement is extracted below:-

"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.
5 All. Ram Pratap Singh Vs.Union Of India & Ors.
2439

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 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
2440 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
(emphasis supplied)

23. Learned Single Judge has
considered the objection of the counsel for
IIT, Kanpur that the Rules do not provide
the post of Superintending Engineer and in
such situation the resolution was adopted
by the Board of Governors to create a post
as required as the Board inheres the
residuary powers and in view of the
provisions contained under Section 2 (b) of
Section 33 of IT Act, 1961, the Board had
passed the resolution on 23.12.2022 and the
resolution of the Board of Governors was a
valid act within the ambit and scope of
powers vested in it. Learned Single Judge
has exhaustively considered the first and
second issues and rejected the relief to the
appellant-petitioner while answering the
points (a) and (b). Learned Single Judge has
also considered the additional ground,
which was taken at the time of argument
qua the question of consideration of age and
had opined that even otherwise, prescribed
qualification is a pure administrative policy
decision of employer either by framing
rules or otherwise by executing instructions
to meet the requirements as per suitability.
Relevant paragraph nos.25, 26, 27, 28, 29,
30, 31 & 32 of the judgement are
reproduced hereunder:-

"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
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
5 All. Ram Pratap Singh Vs.Union Of India & Ors.
2441
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 paragraph
13 and 14, the Court has held thus: