A R Peter and G. Nandakumar v. State of Kerala and Others (W.A. Nos. 2276/2015 & 2374/2015; WP(C) No.16471/2012)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938 WA.No. 2276 of 2015 IN WP(C).16471/2012 AGAINST THE JUDGMENT IN WP(C) 16471/2012 of HIGH COURT OF KERALA DATED 29-09-2015 APPELLANTS/RESPONDENTS 7&9: ---------------------------- 1. A R PETER - ASSOCIATE PROFESSOR (SINCE THEN PROMOTED AS PROFESSOR), DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 2. G. NANDAKUMAR ASSOCIATE PROFESSOR (SINCE THEN PROMOTED AS PROFESSOR), DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY RESPONDENTS/RESPONDENTS 1 TO 6, 8 & 10: ------------------------------------------ 1. DR.SANTHOSH KUMAR N ASSOCIATE PROFESSOR ,DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 2. DR. SUDHIR KUMAR R ASSOCIATE PROFESSOR (NC),DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING, PALAKKAD-678 008 3. DR. JOLLY K.G ASSOCIATE PROFESSOR (NC),DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 4. DR. SURESH K.S ASSOCIATE PROFESSOR (NC),DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 5. DR. SHAJI MOHAN B ASSOCIATE PROFESSOR, DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 6. STATE OF KERALA RERPESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT , GOVERNMENT SECERETARIAT, TRIVANDRUM-695 001 7. CALICUT UNIVERSITY RERPESENTED BY REGISTRAR, UNIVERSITY CAMPUS, THENJHIPALAM, CALICUT-673 635 8. THE DIRECTOR OF TECHNICAL EDUCATION TRIVANDRUM-695 001 9. N.S.S. COLLEGE OF ENGINEERING , PALGHAT, REPRESENTED BY ITS CHAIRMAN, GOVERNING BODY, NAIR SERVICE SOCIETY, PERUNNA, CHANGANASSERY-686 102 10. H. THAJUDHIN PROFESSOR, DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 11. JACOB P. GEORGE ASSOCIATE PROFESSOR,DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 12. DR. PRAKASH ASSOCIATE PROFESSOR,DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 13. E. JOHN THOMAS - ASSOCIATE PROFESSOR ,DEPARTMENT OF MECHANICAL ENGINEERING, N.S.S. COLLEGE OF ENGINEERING , PALAKKAD-678 008 (EXPIRED) R6,R8 BY ADV. SRI.BABU VARGHESE, ADDL. ADVOCATE GENERAL BY GOVT. PLEADER SRI PAUL ABRAHAM VAKKANAL R10 BY ADV. SRI.N.A.SHAFEEK R7 BY ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY R BY SRI.M.R.ANISON R BY SRI.P.GOPAL R BY SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27-10-2016, ALON G WITH W.A. NO. 2374 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY V.,JJ.** ## **==============================** ## **W.A. Nos. 2276 & 2374 of 2015** **============================== Dated this the 20[th] day of October, 2016** ## **JUDGMENT** ## **Antony Dominic, J.** W.A. No.2276 of 2015 is filed by respondents 7 and 9 in W.P.(C)No. 16471 of 2012 and W.A. No. 2374 of 2015 is filed by the petitioners in the said writ petition. The writ petition was filed by the appellants in W.A. No. 2374 of 2015, mainly seeking to quash clause 5.7 of Ext.P9, Government Order dated 7.12.2010 and directing respondents 1 to 4, the State of Kerala, Calicut University, Director of Technical Education and the management of N.S.S. College of Engineering, Palakkad, to fill up all the existing and future vacancies of Professors and Associate Professors in the Mechanical Engineering Department only WA 2276 & 2374/2015 2 by persons having Ph.D. in the concerned discipline. Consequential directions were also sought for. By the judgment under appeal, following the judgment of this Court in W.A. No. 692 of 2012 dated 16.12.2013 whereby Rule 6A of the Special Rules for the Kerala Technical Education Services Rules (hereinafter referred to as 'the Special Rules') was invalidated by this Court, the learned single Judge quashed Clause 5.7. Proceeding further, and taking note of the fact that the University of Calicut had by Ext.R8 (c) amended its Regulations with effect from 30.7.2013, the learned single Judge interferred with the promotions made subsequently to the post of Professor in violation of the Regulations read with, the All India Council for Technical Education Regulations, 2010 (hereinafter referred to as 'AICTE Regulations') (Ext.P8). It is this judgment which is under challenge before us. 2. Since the facts of the case are narrated in detail in WA 2276 & 2374/2015 3 the judgment under appeal itself, we do not think it necessary to refer to the background of facts in detail once again. In W.A. No. 2276 of 2015, respondents 7 and 9 in the writ petition are challenging the judgment in its entirety. On the other hand, the writ petitioners, who have filed W.A. No. 2374 of 2015, contend that having regard to the Full Bench decision of this Court in **Radhakrishnan Pillai v. Travancore Devaswom Board (2016 (2)KLT 245),** the learned single Judge should have given effect to the judgment at least with effect from 7.12.2010 when by Ext.P9 order, the Government of Kerala adopted Ext.P8, the AICTE Regulation, 2010. 3. The first issue in the appeal is whether the judgment to the extent it interferes with clause 5.7 of Ext.P9, the Government adopted AICTE Regulations is illegal. Clause 5.7 of Ext.P9 reads thus: “5.7. No one shall be eligible to be appointed, promoted or designated as Professor, unless he or she possesses a WA 2276 & 2374/2015 4 Ph.D. and satisfies other academic conditions, as laid down by the All India Council for Technical Education (AICTE) from time to time and/or notified by Government. This shall, however, not affect those who are already designated as 'Professor' and those who were appointed from PSC Lists/Selection Lists which were live as on 27.03.1990 (Date of 1986 AICTE Order) in the case of appointments to Government College/Private Aided Colleges respectively.” 4. The judgment under appeal itself shows that the only reason stated by the learned single Judge to interfere with clause 5.7 of Ext.P9 is that in the judgment in W.A. No.692 of 2012, Rule 6A of the Special Rules, a comparable provision incorporated in Kerala State Technical Education Services (Amendment) Rules has been quashed by this Court. Insofar as this finding of the learned single Judge is concerned, in the course of hearing, the parties have made available to us the judgment of the Apex Court in Civil Appeal Nos. 4604 of 2016 to 4610 of 2016, which were filed WA 2276 & 2374/2015 5 against the judgment in writ appeal mentioned above. By the said judgment, the Supreme Court has set aside the judgment of the Division Bench and the relevant part of the judgment reads thus: 11. In the course of their submissions, learned counsel for the appellants brought to our notice a vital document, namely, notification dated 18.0.2003 by which AICTE revised the eligibility conditions for the post of Assistant Professor. Though Ms. V.P.Seemanthani, Shri S. Radhakrishnan and other counsel appearing for the private respondents attempted to argue as to the validity of the said notification or certain other notifications followed by it and issued by AICTE, as the same were not subject matter of challenge before the learned single Judge or the Division Bench or even referred to before the High Court, we are not inclined to entertain any such submissions in there appeals, which submissions are however left open for being raised in accordance with law if so advised. We find that the same came to be issued under Section 10(i) of the AICTE Act, 1987, which empowers the AICTE to lay down among other things, the staff qualifications in order to maintain the standard of education in the technical institutions. Therefore, it will have to be held that when it comes to the prescription of qualification, the power vests with the AICTE under Section 10(i) by which AICTE can WA 2276 & 2374/2015 6 alone prescribe or modify the qualifications in order to ensure that the standard of education in the institutions are appropriately maintained. Therefore, by notification dated 18.02.2003, the AICTE itself prescribed a Ph.D degree along with First Class Degree at Bachelor's or Master's level in the appropriate branch of Engineering/Technology with 3 years experience in teaching etc. and held further that the acquisition of Ph.D. Degree can be made within a period of 7 years from the date of appointment as Assistant Professor. Therefore the question arise whether the prescription of the various qualification under Special Rule 6A(2) by the State Government can be held to be in any way contrary or conflicting with the prescription made by the AICTE. 12. Unfortunately, the said notification dated 18.02.2003 was not placed before the High Court, either by the writ petitioners or by the AICTE or by the State Government, which apparently seem to have misled the High court to conclude that such a prescription found in the Special Rule 6A was not in consonance with the prescription made by the AICTE. Inasmuch as, now it has been brought to our notice that the said prescription found in notification of the AICTE dated 18.02.2003 came to be made in exercise of the AICTE's power under Section 10(1)(i) of the AICTE Act, 1987, it must be held that there is no counter prescription in Special Rule 6A(2). In fact the prescription of the WA 2276 & 2374/2015 7 qualification made in the AICTE notification dated 18.02.2003 was bodily lifted and incorporated in Rule 6A (2) and thereby it was brought in tune with the prescription made by the AICTE. Having regard to the said position, the striking down of Rule 6A insofar as Sub Rule (2) was concerned, it was uncalled for and to that extent, the impugned judgments of the High Court are liable to be set aside in these appeals.” In the light of the above, the judgment under appeal to the extent it has interfered with clause 5.7 of Ext.P9 cannot be sustained. 5. The other issue that arises for consideration is regarding the judgment to the extent it has interfered with the promotions of appellants in W.A. No. 2276 of 2015, as Professors with effect from 1.11.2013. Insofar as this aspect of the matter is concerned, the reason stated by the learned single Judge is that they do not possess the essential qualification of Ph.D. and that in the absence thereof, their promotion is in violation of the AICTE WA 2276 & 2374/2015 8 Regulations and Ext.R8(c), amendment by the University. According to the appellants, having regard to the various provisions that are incorporated in Ext.R8(c), the teachers in the feeder category post of Associate Professors stand exempted from the prescriptions contained in Ext.P8. Therefore, according to them, irrespective of the provisions contained in AICTE Regulations, 2010, which are adopted by the Government of Kerala, the teachers in service are entitled to be promoted to the higher post of Professors. 6. Having considered the submissions, we confess our inability to accept the same. It is true that on a reading of Ext.R8(c), the amendment made by the University with effect from 30.7.2013, we are inclined to think that there is force in the contention of the appellants that they stand exempted from the qualifications prescribed in Ext.P8, the AICTE Regulations. However, admittedly as per Ext.P8 Regulations, which were adopted by the Government on WA 2276 & 2374/2015 9 7.12.2010, vide Ext.P9, Ph.D. is an essential qualification for promotion to the post of Professors. Once Ph.D has been prescribed as an essential qualification for promotion to the post of Professors by the AICTE Regulations, law is trite that even if the prescriptions for qualification to the said post by the University is varied with AICTE Regulations, the AICTE Regulations alone will prevail. In this connection see the Full Bench of this Court in **Radhakrishnan Pillai's** case ( _supra_ )wherein it has been held as follows: “14. According to us, this judgment cannot, in any manner, dilute the principles laid down in the aforesaid judgments for the reason that the State of Kerala itself has adopted the U.G.C. Regulations vide Government Order dated 10.12.2010, which has been extracted in the earlier part of this judgment. Once the U.G.C. Regulations were adopted by the State Government and implemented with effect from 18.9.2010, the Regulations are mandatorily to be complied with by the Universities in the State. It is also clarified that anything that is in conflict with the Central law and the subordinate legislation made thereunder, will be void and inoperative. WA 2276 & 2374/2015 10 17. Therefore, irrespective of whether the University Acts enacted under Entry 25 of List III or the Statutes framed thereunder are amended in line with the U.G.C. Regulations or not, in view of its adoption by the State of Kerala with effect from 18.9.2010 as per Government Order dated 10.12.2010, the Universities and affiliated colleges in Kerala State are bound to comply with the U.G.C. Regulations, 2010. Viewed in that manner, the natural consequence is that the principles laid down by this Court in Raveendran's case cannot be sustained and is overruled. 22. W.A.1676/13 arises from the judgment in W.P(C). 3685/12. That writ petition was filed by the appellant who had applied in response to the notification for the post of Professor in Botany. The main prayer in the writ petition was to declare that the action of the University in proceeding with the selection to the post of Professor in Botany pursuant to the notification by awarding marks in terms of the University Order No. GAII/C1/3128/08(1) dated 6.11.2008, instead of awarding score as indicated in the Academic Performance Indicator in terms of U.G.C. Regulations, 2010, is illegal and unconstitutional. The petitioner also sought for an order quashing Exts.P12 to P15, by which, selection and appointment of the additional 4th respondent as Professor in Botany was made. Consequential directions were also sought for. The WA 2276 & 2374/2015 11 writ petition was dismissed by the learned single Judge on the ground that at the time when the notification was issued, it was the guidelines dated 6.11.2008 which were in force and that the U.G.C. Regulations, 2010 was not approved by the University even at the time when the interview was held on 25.1.2012. According to the learned Judge, without making any amendment to the University Act or the Statutes, it is not possible for the appellant to insist that the University should follow the U.G.C. Regulations, 2010 for the selection notified. However, as we have already concluded, the U.G.C. Regulations, 2010 having been adopted by the Government of Kerala vide G.O(P).No.392/2010/H.Edn dated 10.12.2010 with effect from 18.9.2010, the selections held thereafter can only be in compliance with the said Regulations. That apart, having regard to the law laid down by the Apex Court in _Kalyani Mathivanan_ extracted supra, in the event of a repugnancy between the U.G.C. Regulations and the Regulations framed thereunder and the University enactments and the statutes, the latter will be void. Therefore, the fact that the University Statutes were not amended is inconsequential. For that reason, the judgment under appeal requires to be set aside.” Reading of the above shows the supremacy of the AICTE WA 2276 & 2374/2015 12 Regulations and that such regulations will prevail, irrespective of whether the University amends its regulation or not. This will lead to the situation that from 7.12.2010, the qualifications for promotion to the post of Professors are those prescribed in Ext.P8, the AICTE Regulations, 2010. Although the University amended the regulations only with effect from 30.7.2010, it is the admitted case that the promotion of the appellants in W.A. No.2276 of 2015, as Professors were made with effect from 1.11.2013 and 1.4.2014 respectively. These promotions could not have been sustained and to have rightly set aside by the learned single Judge. 7. In such circumstances, we do not find any reason to interfere with the judgment under appeal to the extent it interferes with the case of the appellants in W.A. No.2276 of 2015. WA 2276 & 2374/2015 13 The appeals are accordingly dismissed. No costs. **Sd/ANTONY DOMINIC JUDGE** **Sd/SHIRCY V. JUDGE** **ks.** True copy P.S. (Hr.Gr.)To Judge WA 2276 & 2374/2015 14