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2025 DIGILAW 2640 (KER)

Kanjana G. v. State Of Kerala

2025-10-08

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. The petitioners in W.P.(C)No.7028 of 2019 are before this Court with this writ appeal filed under Section 5(i) of the Kerala High Court Act, 1958, challenging the judgment dated 11.09.2024 passed by the learned Single Judge in the writ petition filed by them under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P5 proceedings dated 22.01.2019 issued by the 2 nd respondent Director, LBS Centre for Science and Technology; to issue a writ of mandamus commanding respondents 1 to 3 to continue payment of advance increment already granted to the appellants with usual allowance thereof, so long as Exts.P1 to P3 orders are in force; and to direct the respondents 2 and 3 to refund the amount already recovered from the appellants. 2. Going by the averments in the writ petition, the appellants were appointed as Lecturers in the Electronics and Communication Department of LBS Institute for Women, Poojappura, Trivandrum, on 16.01.2008 in the pre-revised pay scale of Rs.8000-13500/-. Their pay was subsequently revised to Rs.15600-39100/-. The minimum eligibility for appointment to the post of Lecturer at that time was B.Tech degree with first class. The post of Lecturer was subsequently redesignated as Assistant Professor. While in service, the appellants acquired M.Tech degree. By virtue of Ext.P1 AICTE Regulations dated 22.01.2010, which was implemented by the Government of Kerala by Ext.P2 order dated 07.12.2010, one advance increment for those employees possessing M.Tech/M.Phil degree was granted. Subsequently, by Ext.P3 clarification order dated 16.06.2017, it was clarified by the Government that the advance increment for M.Tech degree is limited to the employees working in the pay band-3, i.e., pay scale of Rs.15600-39100. According to the appellants, by misconstruing the orders in Exts.P1 to P3, the audit wing of the Government raised Ext.P4 objection, presumably taking redesignation of the post of Lecturers as Assistant Professors as an upgradation of the post of Lecturer. Without properly considering the correct position, the 2 nd respondent issued Ext.P5 proceedings dated 22.01.2019 for refixation of pay of the appellants by deleting the advance increment legally granted to them, and for recovery of about Rs.1/- Lakh from each of the appellants. Pursuant to Ext.P5 proceedings, recovery of Rs.14,000/- each from appellants 1 and 2 was effected from the salary of February 2019 and Rs. 6000/- each from appellants 3 and 4. Pursuant to Ext.P5 proceedings, recovery of Rs.14,000/- each from appellants 1 and 2 was effected from the salary of February 2019 and Rs. 6000/- each from appellants 3 and 4. Therefore, the appellants filed W.P.(C)No.7028 of 2019 under Article 226 of the Constitution of India seeking the necessary reliefs. 3. The learned Single Judge considered W.P.(C)No.7028 of 2019 along with some other writ petitions filed by persons similarly placed as that of the appellants herein, and by the common judgment dated 11.09.2024, the learned Single Judge allowed those writ petitions, except that of the claim of the appellants. Paragraphs 12 to 14 and the last paragraph of that judgment read thus: “12. The issue arises only subsequent to the 2010 Regulations. The respondents have placed reliance on the notification dated 04.01.2016. A reference to the said notification would show that two paragraphs that are made applicable as against the petitioners, are paragraphs 5 and 6. As regards paragraph 5, the same would get attracted only in a situation where the concerned persons were working with ‘lower qualification’ when the qualification required was a higher one. The said paragraph may not apply as against the petitioners herein for the simple reason that as on the date of joining the service of the 2 nd respondent itself, the petitioners claim that they were having B.Tech/M.Tech. The second paragraph (Para 6) would become applicable only in a situation where the incumbents had acquired higher qualification ‘while in service’. Here also, as noticed earlier, the petitioners claim that as on the date of joining the service of the 2 nd respondent, they were having the higher qualification. Therefore, the notification dated 04.01.2016, in my opinion, would not apply to the facts and circumstances of the case at hand. 13. In this connection, a reference to the affidavit dated 30.07.2024 of the 5 th respondent would be beneficial. In the said affidavit also, which is extracted earlier, the AICTE has specifically pointed out that the respondents were not justified in relying on the notification dated 04.01.2016 as well as 2010 Regulations, so as to deny the benefits of two advance increments to the petitioners. 14. In that view of the matter, I am of the opinion that the impugned proceedings initiated against the petitioners would not be justifiable. 14. In that view of the matter, I am of the opinion that the impugned proceedings initiated against the petitioners would not be justifiable. However, I notice that Smt. Shameena has a specific contention to the effect that some of the petitioners have acquired the higher qualification only subsequent to 2010 Regulations. I make it clear that those of the petitioners who have so attained higher qualifications subsequent to 2010 Regulations, would not be entitled for the benefit of this judgment. In such circumstances, I allow these writ petitions as under; (i) The impugned orders in these writ petitions would stand quashed. (ii) There would be a declaration to the effect that, as regards those of the petitioners who had B.Tech as well as M.Tech on the date of joining the service of the 2 nd respondent, that is, prior to 2010 Regulations, would be entitled for the two advance increments under the 2000 Regulations. (iii) Those of the petitioners, who have acquired the higher qualification of M.Tech only subsequent to 2010 Regulations, would not be entitled for the benefits flowing out of this judgment.” 4. Since, by the common judgment, no relief was granted to the appellants, they filed the instant writ appeal. 5. Heard the learned counsel for the appellants /writ petitioners, the learned Senior Government Pleader and the learned Standing Counsel for LBS. 6. The learned counsel for the appellants would submit that at the time of appointment of the appellants as Lecturers, the basic qualification required for that post was B.Tech degree. Though the nomenclature of the post of Lecturer was redesignated as Assistant Professor, the appellants continued in pay band-3, since while changing the nomenclature, the post was not upgraded. The appellants were not promoted to the post of Associate Professor, which is in pay band-4. Subsequently, the appellants acquired M.Tech qualification and were granted an advance increment, as stipulated in Exts.P1 AICTE regulations 2010 and Ext.P2 Government Order. M.Tech was made the basic qualifications for the post of Assistant Professor, by AICTE Regulation 2010. However, 7-years period was granted to acquire that qualification. Similarly placed persons as those of the appellants were granted one increment by Annexure-B order dated 17.11.2023 of the Directorate of Technical Education. M.Tech was made the basic qualifications for the post of Assistant Professor, by AICTE Regulation 2010. However, 7-years period was granted to acquire that qualification. Similarly placed persons as those of the appellants were granted one increment by Annexure-B order dated 17.11.2023 of the Directorate of Technical Education. In such circumstances, denial of one increment for the higher qualification of M.Tech acquired by the appellants is not justifiable, and the learned Single Judge failed to consider these aspects in its proper perspective. 7. On the other hand, the learned Standing Counsel for the LBS would submit that as per serial No.25 of Annexure A, AICTE notification dated 04.01.2016, there shall be no advance increments for acquiring M.Tech/M. Phil or Ph.D degree to those who are already working as regular faculty with lower qualification, and where such higher basic qualifications are /were essential for the post. By AICTE Regulation 2010, the basic qualification for the post of Assistant Professor was made M.Tech. The Government of Kerala implemented the Regulation with retrospective effect from 01.01.2006. A period of seven years was also allowed to acquire that qualification by the Lecturers who entered service at the time when the basic qualification was B.Tech. All the appellants acquired M.Tech qualification after the implementation of the AICTE Regulations 2010 by the Government. The learned Standing Counsel invited our attention to the judgment of the Apex Court in SLP (C)No.4787 of 2025 dated 01.04.2025, wherein based on the AICTE notification dated 15.03.2000 it was held that a candidate could be appointed as Assistant Professor after 15.03.2000, only if he/she had a Ph.D degree with first class at bachelor's or master's level in their appropriate branch of Engineering and two years of teaching experience. Therefore, according to the learned Standing Counsel, the appellants cannot claim the benefit of one non- compounded advance increment for acquiring the master's degree while in service, since the basic qualification for the post of Assistant Professor was made M.Tech by the 2010 notification. 8. The learned Senior Government Pleader also supported the arguments of the learned Standing Counsel for LBS. 9. The appellants entered service as Lecturers in the Electronics and Communication Department of the LBS Centre for Science and Technology at the time when the basic qualification for the post was B.Tech degree with first class. 8. The learned Senior Government Pleader also supported the arguments of the learned Standing Counsel for LBS. 9. The appellants entered service as Lecturers in the Electronics and Communication Department of the LBS Centre for Science and Technology at the time when the basic qualification for the post was B.Tech degree with first class. Subsequently, by AICTE Regulations 2010, the nomenclature of the post of Lecturer was made as Assistant Professor and the basic qualification was enhanced as M.Tech. By Ext.P2 order dated 07.12.2010, the Government of Kerala implemented the same with retrospective effect from 01.01.2006. The appellants are claiming the benefit of Ext.P1 AICTE Regulations pertaining to incentives for M.Tech/Ph.D and other higher qualifications and also Ext.P2 Government order dated 07.12.2010, which says that a Teacher who acquires M.Tech degree in a relevant branch/discipline recognised by a statutory university while in service, shall be entitled to one advance increment. However, the said benefit was denied to the appellants for the reason that after the AICTE Regulations 2010, which made the basic qualification for Assistant Professor as M.Tech with retrospective effect from 01.01.2006, these advance increments are not admissible to those persons who are holding a lesser qualification and acquired the higher qualification essential for the post. 10. To acquire the basic qualification prescribed in AICTE Regulations 2010, a 7-year time period was granted to the existing Lecturers. In paragraph 20 of the judgment of the Apex Court in Civil Appeal No.4787 of 2025 by referring the judgment in Christy James Jose and others v. State of Kerala and others [2016 SCC Online SC 1817] it was held that while interpreting Clause 53 of the 2016 clarification, the failure to acquire Ph.D within seven years can result in stoppage of increments but cannot result in termination of services. Therefore, it is clear that the consequence of non-acquisition of basic qualification of M.Tech by the appellants within the stipulated period of 7 years will have the consequence of stoppage of payment of increment and not of termination of service. The appellants acquired the higher qualification of M.Tech prior to the introduction of the basic qualification as M.Tech for the post held by them, and were granted one advance increment from 2013, 2014 and 2015 respectively as mentioned in a table in paragraph 9 of the impugned judgment of the learned Single Judge. The appellants acquired the higher qualification of M.Tech prior to the introduction of the basic qualification as M.Tech for the post held by them, and were granted one advance increment from 2013, 2014 and 2015 respectively as mentioned in a table in paragraph 9 of the impugned judgment of the learned Single Judge. It is true that the appellants are admittedly working in pay band-3. They were not upgraded to pay band-4. The qualification for the post held by the appellants as on the date of their entering into service was B.Tech with first class. But, the basic qualification for the post was prescribed as M.Tech y 2010 AICTE Regulations, and the appellants acquired the said basic qualification, only after the implementation of AICTE Regulations by the Government. Therefore, by referring to clause (ii) in Sl.No.25 of Annexure A clarifications dated 04.01.2016, the benefit of one non compounded advance increment granted to the appellants were cancelled by the 2 nd respondent. When the appellants are not entitled for advance increment for higher qualification, since the said qualification obtained by them is the basic qualification for the post held by them in view of clarification in Annexure A notification, the appellants cannot claim the benefit of advance increment by relying on Annexure B order, which is only an executive order issued by the Director of Technical Education. Therefore, we find no illegality in the impugned judgment of the learned Single Judge. 11. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no ground to interfere with the impugned judgment of the learned Single Judge. The appeal is therefore liable to be dismissed. In the result, the appeal stands dismissed.