OP No. 3016 of 2002 (H)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **WEDNESDAY, THE 16TH DAY OF AUGUST 2017/25TH SRAVANA, 1939** **OP.No. 3016 of 2002 (H) ------------------------** **PETITIONERS:** - **------------** **1. MATHEW BENEDIC K.A, AGED 61 YEARS, S/O LATE AUGUSTINE K.T., RETIRED PROFESSOR, MECHANICAL DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM, RESIDING AT KAVALAKKAL HOUSE, EDAKOCHI P O, KOCHI - 682 010** **2. SRI.K.U.ABRAHAM, RETIRED PROFESSOR, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM, RESIDING AT KUNNATH HOUSE, MUDAVOOR P O, MUVATTUPUZHA.** **3. SRI.RAMAN NAMPOOTHIRY N., RETIRED PROFESSOR, M A COLLEGE OF ENGINEERING,KOTHAMANGALAM, RESIDING AT THURUTHI ILLAM, TRIVENI NAGAR, 130 JUNCTION, MUVATTUPUZHA** **4. SRI.JOSEPH KUNJU PAUL.C., ASSOCIATE PROFESSOR (CADRE), MECHANICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **5. SRI.ROY N.MATHEWS, ASSOCIATE PROFESSOR (CADRE), MECHANICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **6. SRI.M.A.ABRAHAM, ASSOCIATE PROFESSOR (CADRE), MECHANICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **7. SRI.REJI MATHEW, ASSOCIATE PROFESSOR (CADRE), MECHANICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **8. SRI.DEVI PRASAD VARMA P.N., ASSOCIATE PROFESSOR (CADRE), MECHANICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **9. SRI.BINU C.YELDOSE, ASSOCIATE PROFESSOR (CADRE), MECHANICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** - **10.SRI.KEMTHOSE P.PAUL, RETIRED ASSOCIATE PROFESSOR(CADRE), M A COLLEGE OF ENGINEERING, KOTHAMANGALAM. RESIDING AT PATHICKAL HOUSE, PALAMUDY PO, KOTHAMANGALAM** ## **OP.No. 3016 of 2002 (H)** ## **------------------------** **11. DR.C.J.JOSEPH, RETIRED PROFESSOR, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **RESIDING AT CHILAMPUMKUNNEL HOUSE, BHARANANGANAM P O.** **12. SRI.M.M.PAULOSE, RETIRED ASSOCIATE PROFESSOR, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM. RESIDING AT MANNARAPRAYIL HOUSE, MUTTATHUPARA P.O., KOTHAMANGALAM** **13. SMT.B.GEETHA, ASSOCIATE PROFESSOR (CADRE), ELECTRICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **14. SRI.PAUL ANTONY, RETIRED PROFESSOR, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **RESIDING AT POTHANIKKATTU HOUSE, NEAR KSRTC, KOTHAMANGALAM** **15. SRI.M.L.PAUL, RETIRED PROFESSOR, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **RESIDING AT MUDANMANI HOUSE, NEAR MORNING STAR COLLEGE, ANGAMALI** **16. SRI.K.RADHAKRISHNAN, ASSOCIATE PROFESSOR (CADRE), ELECTRICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM** **17. SMT.SALICE PETER, ASSOCIATE PROFESSOR (CADRE), ELECTRICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM** **18. SMT.SHEELA JOSEPH, ASSOCIATE PROFESSOR (CADRE), ELECTRICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM** **19. SMT.ELIZABETH SEBASTIAN, ASSOCIATE PROFESSOR (CADRE), ELECTRICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM** **20. SRI.RAJAN.P.THOMAS, ASSOCIATE PROFESSOR (CADRE), ELECTRICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM** **21. SMT.ALICEKUTTY PHILIP, RETIRED PROFESSOR, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM.** **RESIDING AT MEENATHUMALIL HOUSE, RAYAMANGALAM P O, KURUPAMPADY.** **22. SRI.PAULSON JOHN, ASSOCIATE PROFESSOR (CADRE), ELECTRICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM** **23. SMT.LEENA THOMAS, ASSOCIATE PROFESSOR (CADRE), ELECTRICAL ENGINEERING DEPARTMENT, M A COLLEGE OF ENGINEERING, KOTHAMANGALAM** ## **OP.No. 3016 of 2002 (H)** ## **------------------------** ## ***Addl. 24. RUBY VARGHESE, AGED 49 YEARS,** - **W/O PROF.PAULSON JOHN, RESIDING AT PAYYANICKAL HOUSE, RIVER ROAD, MATHIRAPPILLY, KOTHAMANGALAM.** - ***Addl. 25. BASIL JOHN P, AGED 22 YEARS,** - **S/O PROF. PAULSON JOHN, RESIDING AT PAYYANICKAL HOUSE, RIVER ROAD, MATHIRAPPILLY, KOTHAMANGALAM.** - ***Addl. 26. MINU MARY .P , AGED 18 YEARS,** - **D/O PROF.PAULSON JOHN, RESIDING AT PAYYANICKAL HOUSE, RIVER ROAD, MATHIRAPPILLY, KOTHAMANGALAM.** - **(ADDL. R24, R25 & R26 IMPLEADED IN IA NO.1133 OF 2017 DATED** **11.07.2017)** **BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH** **RESPONDENTS:** - **------------** **1. SECRETARY TO GOVT. HIGHER EDUCATION (C) DEPARTMENT, GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM.** **3. THE REGIONAL DIRECTOR OF TECHNICAL EDUCATION, KOTHAMANGALAM.** **4. MAHATMA GANDHI UNIVERSITY,KOTTAYAM, REPRESENTED BY ITS REGISTRAR.** **5. M.A.COLLEGE OF ENGINEERING, KOTHAMANGALAM, REPRESENTED BY ITS SECRETARY AND, CHAIRMAN.** **R,BY ADV. SRI.V.K.MUHAMMAD YOUSUF, SC, M.G.UTY. R,R4 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY R1,R3 BY ADV. GOVERNMENT PLEADER R4 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY R4 BY ADV. SRI.VIVEK VARGHESE P.J., SC, M.G. UNIVERSITY R4 BY ADV. DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY R4 BY ADV. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11.07.2017, THE COURT ON 16-08-2017 DELIVERED THE FOLLOWING:** ## **OP.No. 3016 of 2002 (H)** ## **------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** ## **---------------------** |**EXHIBIT**|**P1**|**TRUE COPY OF GO (P) NO.68/2000/H.EDN DATED**| |---|---|---| |||**18.5.2000**| |**EXHIBIT**|**P2**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 1ST PETITIONER**| |**EXHIBIT**|**P3**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 2ND PETITIONER**| |**EXHIBIT**|**P4**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 3RD PETITIONER**| |**EXHIBIT**|**P5**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 4TH PETITIONER**| |**EXHIBIT**|**P6**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 5TH PETITIONER**| |**EXHIBIT**|**P7**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 6TH PETITIONER**| |**EXHIBIT**|**P8**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 7TH PETITIONER**| |**EXHIBIT**|**P9**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 8TH PETITIONER**| |**EXHIBIT**|**P10**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 9TH PETITIONER**| |**EXHIBIT**|**P11**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 10TH PETITIONER**| |**EXHIBIT**|**P12**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 11TH PETITIONER**| |**EXHIBIT**|**P13**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 12TH PETITIONER**| |**EXHIBIT**|**P14**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 13TH PETITIONER**| |**EXHIBIT**|**P15**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 14TH PETITIONER**| |**EXHIBIT**|**P16**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 15TH PETITIONER**| |**EXHIBIT**|**P17**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 16TH PETITIONER**| |**EXHIBIT**|**P18**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 17TH PETITIONER**| ## **OP.No. 3016 of 2002 (H)** ## **------------------------** |**EXHIBIT**|**P19**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |---|---|---| |||**ISSUED OT THE 18TH PETITIONER**| |**EXHIBIT**|**P20**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 19TH PETITIONER**| |**EXHIBIT**|**P21**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 20TH PETITIONER**| |**EXHIBIT**|**P22**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 21ST PETITIONER**| |**EXHIBIT**|**P23**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 22ND PETITIONER**| |**EXHIBIT**|**P24**|**TRUE COPY OF THE PROMOTION ORDER DATED 4.10.2001**| |||**ISSUED OT THE 23RD PETITIONER**| |**EXHIBIT**|**P25**|**TRUE COPY OF ORDER NO.DP2/118/2002 DATED 19.1.2002**| |||**ISSUED BY THE REGIONAL DIRECTORATE OF TECHNICAL**| |||**EDUCATION**| |**EXHIBIT**|**P26**|**TRUE COPY OF THE ORDER NO.GO 61 TO 62 (RT)**| |||**1598/11/H.EDN DTD 3.10.2011**| |**EXHIBIT**|**P27**|**TRUE COPY OF THE CERTIFICATE DATED 12.12.2011**| |||**ISSUED BY THE PRINCIPAL, MA COLLEGE OF ENGINEERING**| **RESPONDENTS EXHIBITS: NIL --------------------** **//TRUE COPY//** **PA TO JUDGE** **bng** ## **A.MUHAMED MUSTAQUE, J.** ========================= **O.P.No.3016/2002** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16[th] day of August, 2017 ## **J U D G M E N T** The petitioners are teachers of the Mar Athanecious College of Engineering, (hereinafter referred to as the “M.A.College of Engineering”) Kothamangalam. This original petition was filed in the year 2002. Some of the teachers are retired now and one of the teachers, namely, the 22[nd] petitioner died, and his legal heirs are brought on record. 2 In this original petition, the petitioners challenge rejection of approval of promotion given to them by the Management following the All India Council for Technical Education Scheme of cadre pattern in 1:2:4 ratio. M.A.College of Engineering is a private aided engineering college. The original petition was earlier allowed by judgment dated 12.7.2007. Thereafter, the State filed an R.P.No.1328 of 2008 against the above judgment which was allowed by order dated 8.11.2011 and the jugdment dated 12.7.2007 was vacated. In the meanwhile, on 3.10.2011, the ``` OP 3016/2002 ``` ## **-:2:-** Government took a decision not to allow the staff pattern for Professors, Assistant Professors and Lecturers in the ratio 1:2:4 as adopted by the Management of M.A.College of Engineering. The above decision is also under challenge by way of an amendment in the original petition. 3. The case of the petitioners is that the AICTE norms being framed by the AICTE with reference to the source of power referable to Entry 66 of List I of Schedule VII of the Constitution, that norms will have to be followed and the State Government by virtue of any power referable to Entry 25 of List III of Schedule VII cannot dilute such norms of AICTE. It is the case of the petitioners that the staff pattern as prescribed by the AICTE was with an objective to achieve higher standards in the stream of Engineering education. The petitioners relied upon the judgment of the Hon'ble Supreme Court in **Secretary, Mahatama Gandhi Mission an Another v. Bhartiya Kamgar Sena and others (2017) 4 SCC 449** as well as the judgments of this court in **Radhakrishnan Pillai D.(Dr.) v. Travancore Devaswom Board and Others [2016 (2) KHC 119 (FB)]; Anandavally v. Jairaj [2014 (2) KLT SN 38 (C.No.54);** and **State of Kerala v. Anitha Thomas [2016 (3) KLT 151]** . ``` OP 3016/2002 ``` ## **-:3:-** 4. On the other hand, the stand of the State is that it is prerogative of the State to sanction posts to aided Engineering colleges and that the State has not accorded recommendation of AICTE staff pattern in the ratio of 1:2:4 to the M.A.College of Engineering. Therefore, without prior approval and without the posts being sanctioned, the Management of M.A.College of Engineering could not have effected promotion. It is the case of the State that the Government being the pay Master, it has every power to decide whether the AICTE staff pattern will have to be followed or not. It is further submitted that if the AICTE norms as such are followed, the State will incur huge financial liability. Therefore, the Management of M.A.College of Engineering cannot implement AICTE norms unilaterally without the Government taking a decision for implementing the AICTE staff pattern. The M.A.College of Engineering is affiliated to the University. The University cannot approve the promotions without sanction of the Government. The University's stand is that the University had not implemented AICTE staff pattern, as the Rules in that regard have not been amended by the Syndicate. The University also pointed out that as per Statute 21(2) of Chapter 45 of the M.G. University Statutes, 1997, the ``` OP 3016/2002 ``` ## **-:4:-** educational agencies which have entered into written agreements with the Government for direct payment of salary to their staff by Government, are bound by the Government directives in the matter of creation of posts. 5. The Full Bench of this Court in **Radhakrishnan Pillai's** case **[2016 (2) KHC 119 (FB)]** held that once the UGC regulations were adopted by the State Government and implemented, the regulations therein had to be complied and implemented mandatorily by Universities in the State. In fact, another Division Bench of this Court in **Anandavally v. Jairaj [2014 (2) KLT SN 38 (C.No.54),** while striking down Rule 6A of the Kerala Technical Education Services Special Rules (as amended in 2010), observed as follows: “In the light of the above discussions and reasonings State Government was under the obligation to implement the revised scheme of A.I.C.T.E. in toto which initially was implemented by the State Government, however, it was not justified in inserting R.6A to the Special Rules. R.6A is arbitrary and unreasonable as it creates a classification among the similarly situated persons rather benefits a group of persons who are not having better qualification than the other group who have acquired better educational qualification.” ``` OP 3016/2002 ``` ## **-:5:-** 6. This Court in **Anitha Thomas's** case **[2016 (3) KLT 151]** . took the view that the University cannot dilute the provisions prescribed by the UGC in respect of qualifications. It is now settled proposition of law that if the field is occupied by the Central Legislation for Higher Education for achieving higher standards, the State cannot make any law contrary or repugnant to the Central Legislation which would result in diluting standards.[ 7. It is to be noted that AICTE prescribes ratio 1:2:4 taking note of the workload of the teachers. The fixation of ratio as above is to achieve higher standards in education. The Government issued Ext.P1 order for revision of scale of pay of teachers in Engineering Colleges in the State. In the government order itself it is referred that it is desirable to have the ratio of 1:2:4 as per the norms of the AICTE. The only reason for non implementation of the ratio is based on financial obligation. The State cannot postpone implementaton of the government order on the ground of financial implication. In such circumstances, this court is of the view that the impugned orders are to be set aside. Accordingly, I do so. The Government shall take a decision for implementing the ratio 1:2:4 as per the ``` OP 3016/2002 ``` ## **-:6:-** AICTE norms within a period of three months. The promotion granted to the petitioners would be subjection to the decision of the Government. The original petition is disposed of as above. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ms