IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 4468 of 2005(F) ------------------------------------- PETITIONER: ------------------- DR. B. AJITH KUMAR, ASSISTANT PROFESSOR IN ELECTRICAL ENGINEERING, GOVERNMENT ENGINEERING COLLEGE, WAYANAD, PIN-670 645. BY MR.K.P.DANDAPANI, SENIOR ADVOCATE. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. *ADDL. RESPONDENTS 4 TO 14 IMPLEADED: 4. SMT. REJI JOHN, PROFESSOR, DEPARTMENT OF MASTER OF COMPUTER APPLICATIONS (MCA), COLLEGE OF ENGINEERING, TRIVANDRUM – 695016. 5. SRI. S. KRISHNAN KUTTY, PROFESSOR DEPARTMENT OF ELECTRICAL ENGINEERING, COLLEGE OF ENGINEERING, TRIVANDRUM – 695 016. W.P.(C). NO.4468/2005-F: 6. SMT. K.M. LIZZY, PROFESSOR, DEPARTMENT OF ELECTRICAL ENGINEERING, COLLEGE OF ENGINEERING, TRIVANDRUM. 7. SRI. M.T. RAJAPPAN PILLAI, PROFESSOR, GOVERNMENT ENGINEERING COLLEGE, TRICHUR -680 009. 8. SMT. P.C. LOVELY, PROFESSOR, DEPARTMENT OF ELECTRICAL ENGINEERING, RAJIV GANDHI INSTITUTE OF TECHNOLOGY, KOTTAYAM – 686 501. 9. SMT. S. LYIA, PROFESSOR, DEPARTMENT OF ELECTRICAL ENGINEERING, COLLEGE OF ENGINEERING, TRIVANDRUM – 695 016. 10. SRI. D.P. BALACHANDRAN, PROFESSOR, DEPARTMENT OF ELECTRICAL ENGINEERING, GOVERNMENT ENGINEERING COLLEGE, PAINAV, IDUKKI – 685 603. 11. SRI. A.S. SHAJILAL, PROFESSOR, DEPARTMENT OF ELECTRICAL ENGINEERING, GOVERNMENT ENGINEERING COLLEGE, KANNUR – 670 563. 12. SRI. V.V. BABU, ASSISTANT PROFESSOR, DEPARTMENT OF ELECTRICAL ENGINEERING, GOVERNMENT ENGINEERING COLLEGE, TRICHUR – 680 009. 13. SMT. AMAR DUTT, ASSISTANT PROFESSOR, DEPARTMENT OF ELECTRICAL ENGINEERING, COLLEGE OF ENGINEERING, TRIVANDRUM – 695 016. 14. SRI. JOSE JACOB, ASSISTANT PROFESSOR, DEPARTMENT OF ELECTRICAL ENGINEERING, GOVERNMENT ENGINEERING COLLEGE, TRICHUR 680 009. *ADDL. RESPONDENTS 4 TO 14 ARE IMPLEADED AS PER ORDER DATED 05/09/2007 IN I.A.NO.11681/07. R1 TO R3 BY GOVERNMENT PLEADER MR. T.B. HOOD, R4 BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009, ALONG WITH W.P.(C). NO. 27289/2008 AND CONNECTED CASES, THE COURT ON 06/10/2009 DELIVERED THE FOLLOWING:- W.P.(C). NO.4468/2005-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REVISED PAY SCALES AND SERVICE CONDITIONS WITH RESPECT TO ALL DEGREE LEVEL TECHNICAL INSTITUTIONS ISSUED BY THE AICTE. EXT.P.2: COPY OF THE GOVERNMENT ORDER NO. G.O.(P).NO.68/2000/H. EDN. DTD. 18/05/2000. EXT.P.3: COPY OF THE NOTIFICATION, VIDE NO. G.O.(P).NO.6/2003/H. EDN. DTD. 24/01/2003 ISSUED BY GOVT. OF KERALA. EXT.P.4: COPY OF THE REPRESENTATION DTD. 04/09/2003 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.5: COPY OF THE JUDGMENT DTD. 25/05/2004 IN O.P. NO. 27445/2000 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE NOTIFICATION, VIDE NO. G.O.(P).NO.122/20043/H. EDN. DTD. 18/09/2004 ISSUED BY GOVT. OF KERALA. EXT.P.7: COPY OF THE NOTIFICATION NO. 28281/G1/2004/H. EDN. DTD. 20/11/2004 ISSUED BY THE R.2. EXT.P.8: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR APPOINTMENT TO THE POST OF PROFESSORS IN GOVERNMENT ENGINEERING COLLEGES IN KERALA. EXT.P.9: COPY OF THE SELECT LIST BEARING NO. G.O.MS.115/05/H. EDN. DTD. 02/08/2005 ISSUED BY THE HIGHER EDUCATION DEPARTMENT. EXT.P.10: COPY OF THE NOTIFICATION BEARING NO. 23433/G1/2001/H. EDN. DTD. 15/04/2008 ISSUED BY THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 4468/2005, 31502/2007, 20544, 23490, 27289, 31862 & 31886/2008 & Cont. Case (C) No. 689 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th October, 2009. J U D G M E N T Common issues arise in these writ petitions and connected contempt case and hence they are disposed of by this common judgment. 2. The main issue arising in all these cases except W.P(C) No. 31502/2007, is as to whether the State Government can frame rules regulating qualifications for appointment to the posts of Professor and Assistant professor in Engineering Colleges in Kerala, in exercise of powers under Article 309 of the Constitution of India, which qualifications are lower than those stipulated by the All India Council of Technical Education (AICTE for short), in exercise of the powers conferred on them by the All India Council of Technical Education Act, 1987 (the AICTE Act for short). Facts necessary for disposal of these cases may be summarised as under. I shall refer to the ranks of parties and Exhibits as obtaining in W.P(C) No. 20544/2008, unless indicated otherwise. 3. Prior to 27-3-1990, the qualifications and method of appointment of teachers of Government Engineering Colleges in the State of Kerala were governed by the Special Rules for Kerala Technical Education Service, 1967. The Government of Kerala, by G.O (P) 8/90/H.Edn. Dated 27-3-1990, implemented the AICTE Scheme for revision of pay scales and associated terms and conditions of service of teachers in the degree level in Engineering Colleges in the State. The scheme envisaged central financial assistance for implementation of pay revision of the teachers on condition that the State Government makes necessary changes in their statutes to incorporate the provisions of the scheme. One of the conditions of W.P.C. No. 4468/2005 etc. -: 2 :- the scheme was that the teaching staff should possess the minimum educational qualifications and experience requirements as stipulated in the scheme. Therefore, when the Government implemented the AICTE Scheme, availing of the financial assistance offered by the Central Government, they were required to amend the Special Rules applicable to the teachers of Engineering Colleges incorporating the qualifications and experience stipulated in the scheme. But despite availing of the financial assistance from the Central Government, which was offered subject to fulfilment of the other conditions in the scheme as a package, the State Government did not comply with the condition regarding amendment of the qualifications and experience of the teaching staff of the Engineering Colleges by amending the Special Rules applicable to them in tune with the AICTE norms. Again, with the approval of the Central Government, the AICTE formulated Ext. P7 scheme for revision of scales of pay on the basis of the recommendations of the Vth Central Pay Commission, which again envisaged central financial assistance for four years for implementing the same as a package, which again included the requirement of amending the State rules regarding qualifications of teachers in tune with those stipulated in the Scheme. This scheme was communicated by the Government of India to the State Government by letter No. F.37.104/95. TS II dated 9-10-1998. By G.O.(P) 68/2000/H.Edn. dated 18-5-2000, the Government decided to implement the AICTE scheme availing of the financial assistance offered by the Central Government. This time although belatedly, as required under the scheme, the Government of Kerala, by Ext. P2 amendment Rules dated 24-1-2003, amended the Special Rules for the Kerala Technical Education Service, incorporating the qualifications stipulated in the AICTE scheme for appointment to various teaching posts in the Engineering Colleges in the State. As per the amended Special Rules, for W.P.C. No. 4468/2005 etc. -: 3 :- appointment as Professor and Assistant Professor in Engineering Colleges, Ph.D. degree with first class degree at Bachelors or Masters level in the appropriate branch of Engineering/Technology was an essential qualification. But, by Ext. P3 dated 18-9-2004, the Government again amended the Special Rules adding Rule 6A to the Special Rules, whereby candidates appointed as lecturers in Engineering Colleges on or before 27-3-1990 and who had completed 45 years of age, are exempted from acquiring Ph.D. degree for becoming eligible for appointment as Professor, Joint Director (Engineering College Stream) and Director of Technical Education and candidates applying for the post of Assistant professor are exempted from possessing Ph.D degree subject to the condition that they acquire Ph.D. degree within seven years of appointment. W.P(C) No. 4468/2005 was filed immediately thereafter challenging Rule 6A of the amended Rules, by a teacher. While that writ petition was pending, by Ext. P4 dated 15-4-2008, the Government invited applications from Assistant Professors of Government Engineering Colleges in the State of Kerala for appointment to the post of Professor. Qualifications stipulated were those as per the Special Rules with the relaxation as per Rule 6A. The petitioners and individual respondents applied. Ext. P5 list of qualified candidates were published and later Ext. P8 select list was published, in which the party respondents were ranked above the petitioners. The individual respondents do not possess the qualification of Ph.D prescribed by the AICTE as an essential qualification for appointment as Professor, whereas the petitioners do possess all the qualifications stipulated as per the norms of the AICTE. Out of the individual respondents, the 8th respondent did not possess the qualifications even with the relaxation, although he possessed Ph.D. Yet, all of them were included in the select list, that too, above the petitioners. It is W.P.C. No. 4468/2005 etc. -: 4 :- under the above circumstances, the petitioners have approached this Court with these writ petitions. In W.P(C) Nos. 4468/2005, 20554, 31862 and 31886 of 2008, the petitioners are challenging the validity of Rule 6A and in all the writ petitions except W.P(C) No. 31502/2007, the petitioners are challenging the select list prepared for appointment also. W.P(C) No. 31502/2007 deals with a different issue, but a decision in the other cases in favour of the petitioners therein would automatically result in that writ petition being dismissed. Therefore, I shall deal with that writ petition separately, after deciding the issue involved in the other writ petitions. 4. Before going into the validity of the amended Rule 6A, I note that the Government themselves have cancelled the select list, apparently realising the fact that at least one person who does not possess even the relaxed qualifications has been included in the select list. 5. The contention of the petitioners is that the All India Council of Technical Education Act, 1987, being a legislation enacted by the Parliament in exercise of their powers under Entry 66 of List I of the VIIth Schedule to the Constitution of India, on the subject of “Co- ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”, the norms stipulated by the AICTE prescribing minimum qualifications for the teaching faculty in Engineering Colleges, in exercise of powers conferred on them under sub sections (i), (k) and (u) of Section 10 of the AICTE Act, would override the qualifications prescribed by a State legislation, in view of Articles 246 and 254 of the Constitution of India. The petitioners would submit that Rule 6A of the Special Rules framed by the State of Kerala in respect of qualifications of teaching staff of Engineering Colleges on a subject enumerated in list II of the VIIth schedule being repugnant to the qualifications prescribed by the W.P.C. No. 4468/2005 etc. -: 5 :- AICTE in exercise of their powers under the AICTE Act is constitutionally invalid. They further point out that respondents 4 to 7 and 9 to 10 have ceased to be even qualified to hold the post of Assistant Professor since they were promoted as such with the condition that they shall acquire the qualification of Ph.D within 7 years as stipulated in the Special Rules and although those 7 years are long over, they are yet to acquire the qualification of Ph.D. According to the petitioners, candidates who are not qualified to continue in the feeder category for promotion to the post of Professor is not entitled even to be considered for such promotion. They point out another anomaly in the two sub rules of Rule 6A. In sub rule (1) of Rule 6A applicable to the post of professor, persons without Ph.D are made eligible for consideration for promotion, whereas in sub rule (2) of Rule 6A, even though candidates who do not possess Ph.D. are made eligible for consideration for appointment to the post, they have to acquire the qualification of Ph.D. within 7 years of appointment to the post. According to the petitioners, the Government have decided to implement the AICTE Scheme as a package in the State, and as required under the Scheme amended the Special Rules also in tune with the norms regarding qualifications of faculty prescribed by the AICTE, availing of the financial benefits offered by the Central Government as part of the package. After availing of the financial assistance which is part of the package, they cannot dilute the qualifications against the norms, which would amount to a fraud on the AICTE and the Government of India, the petitioners contend. They also rely on various decisions of the Supreme Court, which upholds the Central legislations like AICTE Act on the subject under Entry 66 of List I and its overriding effect on State legislations affecting the standards of education in institutions for higher education or research and scientific and technical institutions. W.P.C. No. 4468/2005 etc. -: 6 :- 6. In answer, the State of Kerala would contend that the legislative competence of the State legislature to frame Rule 6A is traceable to Entry 41 in List II of the VIIth schedule and Article 309 of the Constitution of India. According to them, in exercise of powers conferred on the State by the Constitution of India, the State legislature enacted the Public Services Act, 1968 to regulate the recruitment and conditions of service of persons to public services and posts in connection with the affairs of the State of Kerala. Section 2 of the Act confers power on the Government to make Rules and Exts. P2 and P3 Special Rules have been framed in exercise of that power, which is not curtailed by Entry 66 of list I. According to the State, the stipulations in Ext. P7 Scheme is, in any event, not a statutory mandate, but is only a recommendation, which is not binding on the State. They would further contend that such recommendations would become a law only if the same is incorporated in a Regulation framed by the AICTE in exercise of their powers under Section 23 of the AICTE Act, which has not yet happened. They also rely on two Supreme Court decisions in relation to similar rules in respect of medical education and dental education as also a Madras High Court decision in respect of Technical Education itself. 7. Originally, the AICTE, although they were included as 11th respondent in the writ petition, had not filed any counter affidavit. Since the applicability of the norms stated to be prescribed by them under the AICTE Act was the issue involved in the writ petition, by order dated. 31-7-2009, this Court directed the AICTE to file a counter specifically addressing themselves to the 6 questions formulated by the Court. They have filed a counter affidavit in which they have stated thus: '”2) All India Council for Technical Education (AICTE) was W.P.C. No. 4468/2005 etc. -: 7 :- established by an Act of Parliament (Act 52 of 1987), hereinafter called the Act only, with a view to proper planning and co- ordinated development of the Technical Education System throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and regulation and proper maintenance of norms and standards in the Technical Education System and for matters connected therewith. Section 10 reads as follows: “It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical and management education and maintenance of standards and for the purpose of performing its function under this Act, the Council may: (j) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualification, quality instructions, assessment and examinations; (k) grant approval for starting new technical institutions for introduction of new courses or programmes in consultation with the agencies concerned”. In accordance with the above provisions of the Act, the Council also notified Regulations under Section 23 of the Act read with 10 (b), (g), (i), (k), (p) and (r) and Section 11 of the Act vide Notification No. 37-3/Legal/2006 dated 14.9.2006, prescribing the procedures, conditions for grant of approval to technical institutions in the country. Para 2.7.1.7(a) of the said Regulations stipulates that technical institutions are expected to submit a compliance report in the prescribed format along with mandatory disclosure information providing complete details of infrastructural, instructural and other facilities, including faculty, based on which the Council considers for grant of extension of approval, starting of additional courses, increase in intake in the existing AICTE approved institutions. The details of insfrasturctural and instructional facilities and faculty along with faculty norms and their qualifications have been prescribed in the Approval Process Handbook, which is being duly published by the Council even now as a legal document as per the above referred Notification dated 14.9.2006. Photocopy of relevant pages of Notification No. F-37-3/Legal/2006 dated 14.9.2006 is produced herewith and marked as Exhibit R5(a). 3) Further, the Council has been empowered under Section 10(i) of the Act to prescribe norms and standards, staff pattern and staff qualifications as part of the norms and standards in technical institutions. In accordance with these provisions, the Council has prescribed staff qualifications along with the revised pay scale based on V Pay Commission vide Notification No.1- 65/CD/NEC/98-99 dated 15.3.2000 and 3.5.2000 separately for W.P.C. No. 4468/2005 etc. -: 8 :- Government Institutions and Private Self-financing Institutions. 4) In the light of the above background, the questions raised by this Honourable Court are answered hereunder:- Q.1 Whether the qualifications contained in Exhibit P7 have been prescribed as Regulations? A. Yes. The staff regulations are included in the Approval Process Handbook as a legal document as per AICTE Notification No. 31-3- Legal/2006 dated 14.9.2006 under Section 23 of AICTE Act for grant of approval to Technical Institutions, additional Courses etc. Therefore the staff qualifications prescribed by AICTE are issued as part of norms and standards to be complied by all Technical Institutions coming under the purview of AICTE. Q.2. Whether the qualifications prescribed by Exhibit P7 are statutory in nature? A. The AICTE has been empowered under Section 10(i) i.e. to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examination. Therefore, the Qualifications prescribed by AICTE for various faculty positions as part of norms and standards to be complied by all technical institutions, coming under the purview of AICTE. Q3. Whether the norms prescribed by Exhibit P7 are binding on State Government and the College? A. Yes. The qualifications issued by AICTE for appointment of faculty positions at various levels are binding on all Technical Institutions of State Government as well as Self-financial Technical Institutions. Q4. Whether the Government is bound by the norms prescribed by Exhibit P7 in view of the agreement stated to have been executed by the Government for implementing the AICTE Scheme? A. Yes Q5. Whether, if Government does not follow the stipulations in Exhibit P7 regarding the qualifications prescribed for the Teachers, any sanction is contemplated? A. The letters of approval issued to Technical institutions by AICTE provide a specific condition that the teaching faculty shall be appointed in accordance with the norms prescribed by the Council. The Technical Institutions not conforming to the staff norms prescribed by AICTE are liable for action, including withdrawal of approval. W.P.C. No. 4468/2005 etc. -: 9 :- Q6. Whether, if the Government prescribes qualifications other than Exhibit P7, AICTE has any powers to enforce the norms in Exhibit P7? A. Since AICTE is a statutory body set up under a Central Act (Act 52 of 1987) has overriding effect over State Government in the matters concerning norms and standards, the State Government have no authority to prescribe different qualifications; other than those prescribed by AICTE. The Council may withdraw its approval to Technical Institutions, if these Institutions fail to abide by the faculty norms and qualifications prescribed by the Council.” 8. The party respondents have chosen to adopt the contentions of the State. 9. I have heard arguments on both sides. 10. Before going into the legal aspects involved, I am constrained to state that I am thoroughly disappointed with the attitude of the State in the matter. It is not any more a secret that standards of education, particularly in the field of professional courses, are going down in the State or perhaps in the country as a whole. It is to safeguard the standards of professional education in the country that the Parliament has enacted various central legislations creating expert central bodies in the matter of professional education clothing them with the power to prescribe norms and standards for professional education in the country. The State of Kerala is also duty bound to take all steps to enhance the standards of professional education in the State. I am dismayed to find that in order to give service benefits to a few teachers in Engineering Colleges in the State, who could not admittedly enhance their professional competence by acquiring Ph.D degree in their discipline, is prepared to sacrifice the standards of education in Engineering Colleges, that too, defying the central expert body, namely, the AICTE. According to me, this is unbecoming of a State W.P.C. No. 4468/2005 etc. -: 10 :- Government. To add to that, the Government has, after finding that the 8th respondent is not qualified even going by the exemption granted by the amended Rule 6A of the Special Rules, included him in the select list. They had the temerity to publish such an unsustainable select list even after the writ petitions were filed. It was only when the writ petition was amended challenging the select list also, they cancelled the select list. I wonder where the priorities of the Government lie. Is it in the enhancement of the standards of professional education in the State and the welfare of the students or is it with a few teachers who have proved themselves to be not up to the task of obtaining the requisite qualifications, although they were aware of the requirement at least in 2000? I am of opinion that if we are to enhance the standards of education in the country very strict implementation of prescribed standards are called for, regardless of the loss of service benefits to a few teachers. Instead, the Government are vehemently advocating the necessity to confer undeserved service benefits on a few teachers, at the expense of standards of education in the State and welfare of the students, which should have been their first preference. 11. I am also dismayed to find that the Government is prepared to go back on their commitment to the AICTE and the Government of India in the matter of implementation of the AICTE Scheme merely to confer some benefits to a few teachers, who could not secure the qualification of Ph.D prescribed by the AICTE. They had decided to implement Ext. P7 scheme of the AICTE as a package, availing of the financial benefits offered by the Central Government, for availing of which they had undertaken to make amendment to their Special Rules regarding qualification in tune with those prescribed by Ext. P7. They had, in fact, amended the Special Rules accordingly, by Ext. P2. Thereafter, after the 4 year period of the financial benefit W.P.C. No. 4468/2005 etc. -: 11 :- offered by the Central Government was over, they had gone back on their promise and diluted the qualifications merely to give service benefits to a few teachers. While doing so, in their additional counter affidavit dated 20-8-2009, they had the temerity to disown Ext. P7 by stating that the State has not executed any agreement for implementing the AICTE Scheme. That is downright dishonest on the part of the State. That may even be described as a fraud on the AICTE and the Central Government and consequently on the Constitution of India and the people of the country. I am of opinion that this attitude of the State Government should be condemned in the strongest terms. 12. I shall now deal with the legal questions involved. First, I shall deal with the contentions of the State on the basis of the decisions of the Supreme Court in Government of Andhra Pradesh and another v. Dr. R. Murali Rao and another, (1988) 2 SCC 386, and Dr. Sandhya Jain