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2020 DIGILAW 1085 (KER)

Sujith Kumar K. v. VS Vinod M. S.

2020-12-22

A.M.SHAFFIQUE, GOPINATH P.

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JUDGMENT Gopinath, J. These Original Petitions have been filed challenging the common order dated 9.12.2019 in Original Application Nos.1417 and 1578 of 2019 on the file of the Kerala Administrative Tribunal. The applicants before the Tribunal were persons included in a ranked list prepared by the Kerala Public Service Commission for selection to the post of Lecturers in Technical streams in Polytechnics under the Technical Education Department. They had approached the Tribunal contending that in terms of the AICTE Regulations on Pay Scales, Service Conditions and Minimum Qualifications For Appointment of Teachers and Other Academic Staff such as Library and Physical Education Personnel in Technical Institutions and Measures for the Maintenance of Standards in Technical Education – (Diploma) Regulation, 2019, (the 2019 Regulations) Lecturers in Polytechnic could be appointed only through direct recruitment in spite of the fact that the Special Rules namely, Kerala Technical Education Service Rules, 1967, after its amendment through the Kerala Technical Education Service (Amendment) Special Rules, 2010, provided that the post of Lecturer in Engineering/Technology could be filled up by direct recruitment and through appointment by transfer from the categories mentioned in those Rules in a specified ratio. The Tribunal accepted the contentions of the applicants before it and held that the recruitment to the post of Lecturer could only be by direct recruitment. This finding of the Tribunal is under challenge before us. 2. We have heard Sri. Elvin Peter P.J and Sri.Ayyappan Sankar, learned counsel appearing for the petitioners, Sri. Raghul Sudheesh for the party respondents (applicants before the Tribunal), Sri. V. Sajith Kumar, learned Standing Counsel for All India Council for Technical Education, Sri. B. Vinod, learned Senior Government Pleader appearing for the Government of Kerala and Sri. P.C. Sasidharan, learned Standing Counsel appearing for the Kerala Public Service Commission. 3. The learned counsel appearing for the petitioners would submit inter alia that the finding of the Tribunal is absolutely unsustainable in law. They would contend with reference to the provisions of the All India Council for Technical Education Act, 1987 (the AICTE Act) that the provisions of that enactment make it clear that while AICTE has the power to fix the qualifications required for appointment to the teaching posts in Technical Institutions, that power does not extend to specifying the source from which such recruitment is to be made. They contend that such stipulations in the AICTE Regulations must not be taken to be binding or mandatory and cannot, at any rate, operate in the face of the Special Rules which have been framed in terms of Article 309 of the Constitution of India r/w provisions of the Kerala Public Services Act, 1968. They contend further that the applicants before the Tribunal, relying on a Regulation issued on 1.3.2019, which admittedly has no retrospective operation, cannot contend for the position that all vacancies must be filled up from the Rank List when the notifications inviting applications was issued much prior to that date. In other words, they contend that at the time when the notifications were issued by the Kerala Public Service Commission pursuant to which the applicants before the Tribunal were selected and included in the rank list, the Rules clearly provided that the appointment to the post of Lecturer would be by direct recruitment and also by transfer from categories mentioned in the Rule in the ratio of 13:7. According to then, at any rate, vacancies which arose prior to 1.3.2019 have to be filled up in accordance with the stipulations in the Special Rules. Sri. Elvin Peter P.J places a specific reliance on the judgment of the Supreme court in Jagadish Prasad Sharma and others v. State of Bihar and others; (2013) 8 SCC 633 and contends that the law laid down therein makes it clear that the terms and conditions in the Special Rules framed under Article 309 of the Constitution of India cannot be automatically overridden by a stipulation in the UGC Regulations. He would submit that the position in law insofar as the AICTE Regulations are concerned is no different. 4. Sri. Raghul Sudheesh, learned counsel appearing for the contesting respondents/applicants before the Tribunal would however vehemently contend with reference to the provisions of the AICTE Act and in particular to Section 10(i) of that Act that the AICTE was authorized to stipulate that the appointment to the post of Lecturer can only be by way of direct recruitment. He would also refer us to the Regulations to contend that even in respect of the Head of the Department, the Regulations prescribed direct recruitment and these stipulations have a clear bearing on the prescription of standards and the maintenance of standards of Technical Education. He would also refer us to the Regulations to contend that even in respect of the Head of the Department, the Regulations prescribed direct recruitment and these stipulations have a clear bearing on the prescription of standards and the maintenance of standards of Technical Education. He would refer to the judgments in State of Tamil Nadu v. Adhiyaman Educational and Research Institute; (1995) 4 SCC 104 , Ajith Kumar B. v. State of Kerala and others; 2009(3) KLJ 563 and the judgment of the Madras High Court in P.Jothiswaran v. Chairman, Teachers Recruitment Board, Government of Tamil Nadu and the judgment of this Court in P.O. Boben v. Rajasekharan V.M in O.P.(KAT) No.40 of 2018 and connected cases and submit that notwithstanding any contrary stipulation in the Special Rules framed under Article 309 of the Constitution of India r/w provisions of the Public Services Act, Lecturers in Polytechnic can now be appointed only by direct recruitment and stipulation regarding appointment by transfer in the Special Rules is of no effect as the same is in violation of the AICTE Regulations of 2019. 5. The learned Standing Counsel for All India Council for Technical Education also supports the stand taken by the contesting respondents. The learned Senior Government Pleader, on the other hand, supports the stand taken by the petitioners in these cases and contends that the posts of Lecturers can be filled up only in accordance with the Special Rules and the stipulations in the AICTE Regulations of 2019 cannot have the effect of rendering those provisions null and void. 6. We have anxiously considered the submissions on either side. At the outset, it is to be noticed that the applicability of the AICTE Regulations vis-a-vis the stipulations in the Special rules came up for consideration before this Bench in O.P.(KAT) Nos.133/2019 and connected cases, in which we have held as follows:- “14. The AICTE Act is a piece of legislation which can be traced to Entry 66 of List-I of the 7th Schedule to the Constitution of India. The AICTE Act is a piece of legislation which can be traced to Entry 66 of List-I of the 7th Schedule to the Constitution of India. Regulation of education including Technical and Medical Education and Universities also finds place in Entry 25 of List-III (the Concurrent List) and this entry is expressly made subject to Entry 66 of List-I. It is settled law that the All India Council for Technical Education can in exercise of the power under the provisions of the AICTE Act, regulate the qualifications, method of appointment etc. of teaching staff in Engineering Colleges. Section 10 under Chapter III of the Act deals with the powers and functions of the AICTE. Under Section 10(1) of the AICTE Act “It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical and management education and maintenance of stands and for the purposes of performing its functions under this Act; ….................... (i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations.” ……………. In this regard reference may also be made to the decision of a Constitution Bench of the Supreme Court in Preeti Srivastava (Dr.) v. State of M.P.; (1999) 7 SCC 120 ; State of T.N. and another v. Adhiyaman Educational and Research Institute and others; (1995) 4 SCC 104 ; Prof. Yashpal and another v. State of Chhatisgarh and others, (2005) 5 SCC 420 and to the Full Bench Judgment of this Court in Radhakrishna Pillai v. Travancore Devaswom Board and others; 2016 (2) KHC 119 (F.B). 15. In the light of the above, there cannot be even an iota of doubt that the Rules framed by the State under Article 309 of the Constitution read with the provisions of the Kerala Public Services Act, 1968 will be subject to Regulations framed by the AICTE regarding the qualifications, method of appointment etc. and the Rules framed by the State would, to the extent it is repugnant to the Central Act/Regulations, be void and inoperative.” We see no reason to take a different view in this case. 7. Then the question to be considered is whether the method of appointment or the source from which the appointment can be made is a part of the mandatory stipulation in the AICTE Regulations. 7. Then the question to be considered is whether the method of appointment or the source from which the appointment can be made is a part of the mandatory stipulation in the AICTE Regulations. In Jagadish Prasad Sharma and others (supra) on which considerable reliance was placed by Sri. Elvin Peter. P.J., the Supreme Court had considered the effect of a Regulation made under the University Grants Commission Act, 1956 which is also a piece of legislation relatable to Entry 66 of List I of the Seventh Schedule of Constitution of India (as in the case of the AICTE Act). Noticing the terms of Entry 25 of List III of the Seventh Schedule, Articles 309, 246 and 254 of the Constitution of India and has, in paragraphs 69 and 70 of the judgment, held as follows:- “69. To some extent there is an air of redundancy in the prayers made on behalf of the respondents in the submissions made regarding the applicability of the Scheme to the State and its universities, colleges and other educational institutions. The elaborate arguments advanced in regard to the powers of UGC to frame such regulations and/or to direct the increase in the age of teachers from 62 to 65 years as a condition precedent for receiving aid from UGC, appears to have little relevance to the actual issue involved in these cases. That the Commission is empowered to frame regulations under Section 26 of the UGC Act, 1956, for the promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research, cannot be denied. The question that assumes importance is whether in the process of framing such regulations, the Commission could alter the service conditions of the employees which were entirely under the control of the States in regard to State institutions? 70. The authority of the Commission to frame regulations with regard to the service conditions of teachers in the Centrally-funded educational institutions is equally well-established. As has been very rightly done in the instant case, the acceptance of the Scheme in its composite form has been left to the discretion of the State Governments. The concern of the State Governments and their authorities that UGC has no authority to impose any conditions with regard to its educational institutions is clearly unfounded. As has been very rightly done in the instant case, the acceptance of the Scheme in its composite form has been left to the discretion of the State Governments. The concern of the State Governments and their authorities that UGC has no authority to impose any conditions with regard to its educational institutions is clearly unfounded. There is no doubt that the Regulations framed by UGC relate to Schedule VII List I Entry 66 to the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States under Article 309 of the Constitution. Under List III Entry 25, the State is entitled to enact its own laws with regard to the service conditions of the teachers and other staff of the universities and colleges within the State and the same will have effect unless they are repugnant to any Central legislation.” It is no doubt true that the judgment states that legislation relatable to Entry 66 of List I of the VIIth schedule to the Constitution cannot tinker with the terms and conditions of enactments by the state under article 309 of the Constitution of India. We must however distinguish between cases where questions such as the age of retirement etc. are in question and cases where the stipulation relates to the maintenance of standards. As we’ve already noticed and held, any stipulation in the Rules framed by the State under Article 309 read with the provisions of the Public Services Act cannot operate against the stipulations of the AICTE if such stipulation relates to the maintenance of standards of education. In Jagadish Prasad Sharma and others (supra), the question was whether the retirement age prescribed by the UGC should operate notwithstanding a contrary stipulation in the State Rules. Here we are concerned with the stipulation that selection to the post of lecturer in polytechnics should only be by way of direct recruitment. As pointed out by the learned counsel appearing for the contesting respondents, the stipulation regarding direct recruitment can be construed as a requirement relating to maintenance of standards for through the prescription of direct recruitment, the AICTE would have intended that fresh graduates and others qualified for the post would be better suited and equipped to impart technical education than others who would come to occupy that post through promotion. We, therefore, have no hesitation to reject the contention of the learned counsel appearing for the petitioners that the stipulation in the 2019 Regulations of the AICTE is beyond the scope of the power conferred on the AICTE in terms of the AICTE Act. We find that such stipulation is within the powers of the AICTE under the AICTE Act. 8. The next question is whether the stipulation in the 2019 Regulations which were brought into force only on 1.3.2019 can have any retrospective operation. In other words, the question is whether the stipulations in those Regulations can apply to vacancies of lecturers which arose prior to 1.3.2019. It is settled law that subordinate legislation cannot have any retrospective operation unless two conditions are satisfied. The 1st condition is that the parent statute must authorise the delegate to frame subordinate legislation with retrospective effect. The 2nd condition is that the subordinate legislation must itself declare that the same will have retrospective effect. In Mahabir Vegetable Oils (P) Ltd. v. State of Haryana, (2006) 3 SCC 620 it was held: - “41. We may at this stage consider the effect of omission of the said note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main Act. The rule-making power is a species of delegated legislation. A delegatee therefore can make rules only within the four corners thereof. 42. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. (See West v. Gwynne [(1911) 2 Ch 1 : 104 LT 759 (CA)].)” The conditions noticed above are to be cumulatively satisfied if we are to hold that the 2019 regulations have retrospective operation. No provision has been pointed out from the AICTE Act to suggest that the AICTE could frame regulations with retrospective effect. The regulations themselves do not declare that they are retrospective in operation. We, therefore, have no hesitation to hold that all vacancies of lecturers in polytechnics which arose prior to 1.3.2019 can be filled up without reference to the 2019 regulations. The regulations themselves do not declare that they are retrospective in operation. We, therefore, have no hesitation to hold that all vacancies of lecturers in polytechnics which arose prior to 1.3.2019 can be filled up without reference to the 2019 regulations. However, all vacancies which arose after the date on which the 2019 regulations came into force shall be filled up only by direct recruitment in accordance with the stipulations contained in those regulations. 9. Therefore, in modification of the orders issued by the Tribunal, we dispose of these Original Petitions directing the competent authority to ensure that the vacancies in the post of Lecturers in Technical streams in Polytechnics under the Technical Education Department are filled up in accordance with the stipulations in the Kerala Technical Education Service Rules, 1967, after its amendment through the Kerala Technical Education Service (Amendment) Special Rules, 2010 and any other regulation of the AICTE which was applicable at the relevant time in respect of all vacancies which arose prior to 1.3.2019 and further to ensure that all vacancies which arose in that post (Lecturers in Technical streams in Polytechnics) after 1.3.2019 be filled up strictly in accordance with the stipulations in the AICTE Regulations on Pay Scales, Service Conditions and Minimum Qualifications For Appointment of Teachers el in Technical Institutions and Measures for the Maintenance of Standards in Technical Education – (Diploma) Regulation, 2019.