R.R.K.Trivedi, J. - (1.) IN this petition counter and rejoinder affidavits have been exchanged and learned counsel for the parties are agreed that the petition may be disposed of finally at this stage. It may also be mentioned that so far as respondents nos. 3 and 4 are concerned, notice was accepted by the learned Senior Standing Counsel of the Union of INdia. However, no counter affidavit has been filed inspite of time granted nor any body put in appearance on behalf of respondents nos. 3 and 4 at the time of hearing of this petition on any date.
(2.) THIS petition has been filed by 33 Assistant professors of Indian Institute of Technology, Kanpur (hereinafter referred to as the Institute) questioning the legality and propriety of restructuring of the cadres of academic staff and revision of pay scales introduced by order dated 19-4-1990 (Annexure V to the writ petition). Petitioners have also challenged the resolutions of the Board of Governors dated 9-5-1990 (Annexure VI), 23-5 1990 (Annexure IX) and 25-8-1990 (Annexure XI) by which the Board of Governors has accepted and adopted the revised pay scales and the restructuring of the cadres after considering the objections raised by Ministry of Human Resource Development dated 13-8-1990 (Annexure X), which has also been sought to be quashed. Before entering into the facts which gave rise to the aforesaid controversy it would be appropriate to refer, in brief, the functioning of the Indian Institute of Technology which is one of the premier engineering institute of the country run and controlled under the provisions of the Institutes of Technology Act, 1961 (Act No. 59 of 1961) (hereinafter referred to as the Act) and the Statutes and Ordinances framed thereunder. A close scrutiny of the provisions of the Act will show that the Institutes have been conferred maximum autonomy for managing their affairs obviously with a view to achieve maximum excellence in imparting the engineering education and to produce brilliant scholars in the field which ultimately forms the back-bone of the industrial and economic structure of the country. The Board of Governors constituted under section 11 of the Act is the supreme Body to manage the affairs of the Institute. Section 9 (1) provides that the President of India shall be the Visitor of every Institute. The Chairman of the Board is nominated by the Visitor, Other members of the Board are the Director, the persons nominated by the Government of each of the State falling within the zone in which the Institute is situate from amongst the persons who, in the opinion of the Government, are technologists of repute. Four persons having special knowledge or practical experience in respect of Education, Engineering or Science to be nominated by the Council and two professors of the Institute to be nominated by the Senate. There are other bodies also for purposes of running the Institute but their reference is not very relevant for the present controversy. Section 13 of the Act provides that subject to the provisions of this Act the Board of any Institute shall be responsible for general superintendence, direction and control of the affairs of the Institute and shall exercise all the powers of the Institute not otherwise provided by this Act, the Statutes and the Ordinances and shall have the power to review the acts of the Senate. Clause (d) of sub-section (2) of Section 13 confers power on the Board to institute and appoint persons to academic as well as other posts in the Institute. Another Body which is important for the present controversy is the Council established under Section 31 (1) of the Act. The composition of the Council is provided under section 31 (2) of the Act. Section 33 provides the duties of the Council. Sub-section (1) says that it shall be the general duty of the Council to coordinate the activities of all the institutes. Sub-section (2) of section 31 specifies other functions, Clause (b) whereof confers on the Council, power to lay down policy regarding cadres, method of recruitment, conditions of service of employees, institution of scholarship and freeship, levying of fees and other matters of common interest. Thus a perusal of section 13 read with section 33 makes it clear that the intention of the legislature was to keep uniformity in various activities of all the five Institutes of the Country. The Board of Governors have to function within the policy laid down by the Council The composition of the Council shows that it is headed by Minister-In-charge of Technical Education in the Central Government as Chairman, Chairman of each Institute, Director of each Institute, Chairman of University Grants Commission, Director General, Council of Scientific and Industrial Research, Chairman of the Council of Indian Institute of Sciences, Bangalore, and Director of Indian Institute of Sciences, Bangalore are 14 Ex. Officio members. An officer of the Ministry of Central Government concerned with technical education is to be nominated by that Government to act as Secretary of the Council. Rest of the members are nominated from different sources as provided under section 31 (2) of the Act. The financial aspect of the Institutes has been dealt with by sections 21, 22, 23, and 24 of the Act. The entire financial burden is on the Central Government. Section 26 of the Act contemplates to provide the Statutes in the matters enumerated thereunder. Clause (g) provides for the classification, the method of appointment and the determination of terms and conditions of service of teachers and other staff of the Institutes. Now for appreciating the actual controversy, it would be appropriate to mention certain facts. In the Institute at Kanpur. the cadre structure of the academic staff originally was lecturer, then Assistant Professor, the Associate Professor and then Professor. However, the Board by its resolution dated 4-2-1974 decided to dispense with the post of Associate professor. Thus thereafter the post of Associate Professor was discontinued and in the Indian Institute of Technology at Kanpur it was a three-tier Cadre, namely lecturer, Assistant Professor and then Professor. The petitioners' case is that in other four Institutes the post of Associate Professor continued which was disputed by the respondents but It is needless to be detained for this disputed fact so far as the present controversy is concerned. The Government of India by its letter dated 5-5-1989 (Annexure III to the writ petition) proposed to revise the pay scales as mentioned in Annexure I to the letter. This letter was considered by the Board of Governors on 22nd and 23rd May, 1989. A copy of the resolution has been filed as Annexure IV. The move regarding revision of the pay scales was criticised as an attack on the autonomy of the Institute. The Board requested the Ministry of Human Resource Development (hereinafter referred to as MHRD) to refer the matter to 1IT Council for detailed discussion and satisfactory resolution. This forms the background in which the impugned order dated 19-4-1990 (Annexure V to the writ petition) was passed. It provided for restructuring of the cadres of the academic staff and also for the revision of the pay scales. The Board by its resolution dated 9-5-1990 accepted and adopted the policy laid down by letter dated 19-4-1990. It also resolved that the IIT Kanpur will have a new cadre of Associate Professor as communicated by the Government. This resolution also provided that the Chairman of the Board along with some members shall meet the executive committee of the faculty forum on May 22, 1990 to assess the difficulties apprehended by the faculty of IIT Kanpur and to consider the anomalies in the matter of implementation of the new scheme with particular reference to existing Assistant Professors at IIT Kanpur. It appears that in pursuance of the aforesaid resolution a meeting of the representatives of the Board and Faculty Forum took place on May 22, 1990 and a sort of understanding was reached for consideration of the Board of Governors in its meeting on 23-5-1990. The understanding has been filed as Annexure VIII to the writ petition. On 23-5-1990 the meeting of the Board took place and it decided not to make any appointment of lecturers in future in the Institute. Resolutions 3 (ii), 3 (iii) and 3 (iv) are relevant for present controversy. The Board resolved to consider all existing permanent lecturers and all existing permanent Assistant Professors for being considered for promotion as Assistant Professors and Associate Professors respectively, through Selection Committee constitute under Statute 12 (3) (b). This resolution of 23-5-1990 has been filed as Annexure IX to the writ petition. Resolution 3 (iii) deals with Assistant Professors which is being quoted below : "(iii) All existing permanent Assistant professors will be considered for promotion as Associate Professors through Selection Committee constituted as per Statutes 12 (3) (b). This will be a one time selection process. The updated bio-data submitted by the prospective candidates will be presented before the Selection Committee for consideration. The candidates will be given the option of personal appearance before the Selection Committee. The effective dates of promotion as Associate Professors will be decided by the selection committee case by case, based on qualifications, experience, academic attainments and tenure as Assistant Professors. Any case of salary fixation prior to April 19, 1990 if recommended by the selection committee but not prior to January 1, 1986, will be referred to the Finance Committee. Those who are not recommended to be promoted as Associate Professors through this one time exercise will continue as Assistant Professors and will be considered for promotion in future through open recruitment."
(3.) THE Secretary of the Council of IITs vide letter dated 13-8-1990 (Annexure X to the writ petition) suggested modifications in respect of the resolution dated 23-5-1990. THE suggestion was in respect of the lecturers as well as Assistant Professors. THE Board by its resolution dated 25-8-1990 (Annexure XI to the writ petition) rejected the suggestions regarding lecturers and stuck to its earlier decision of considering the selection of all the existing permanent lecturers as Assistant Professors with effect from 19-4-1990 by Selection Committee constituted. However, in case of Assistant Professors the Board rescinded its earlier resolution and decided to fill the posts of Associates Professors by normal recruitment process of open selection, i. e. by advertisement and not by internal assesment as done In respect of lecturers. Thus aggrieved, the Assistant Professors have filed the present writ petition. We have heard Shri Sudhir Chandra, learned Senior Advocate who along with Shri Janardan Sahai appeared for petitioners and shri S. N. Verma, learned Senior Advocate who along with Shri Dinesh Kakkar and others appeared for respondents Nos. 1 and 2.;