Srinath S.S. v. Cochin Port Trust and Others

WP(C).No.14888 OF 2020(I) 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942** ## **WP(C).No.14888 OF 2020(I)** ## **PETITIONER:** **SRINATH S.S. AGED 59 YEARS STAFF NO.667, SAFETY OFFICER, MECHANICAL ENGINEERING DEPARTMENT, COCHIN PORT TRUST, WELLINGDON ISLAND, COCHIN-682009.** **BY ADVS. SRI.VINAY KUMAR VARMA SRI.KIRAN PETER KURIAKOSE SRI.S.SHYAM** ## **RESPONDENTS:** |**1**|**COCHIN PORT TRUST,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, WELLINGDON ISLAND,**| ||**COCHIN-682009.**| |**2**|**CHAIRMAN,**| ||**COCHIN PORT TRUST, WELLINGDON ISLAND, COCHIN-**| ||**682009.**| |**3**|**SECRETARY,**| ||**COCHIN PORT TRUST, WELLINGDON ISLAND, COCHIN-**| ||**682009.**| ||**R1-3 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR**| ||**R1-3 BY ADV. SRI.K.JOHN MATHAI**| ||**R1-3 BY ADV. SRI.JOSON MANAVALAN**| ||**R1-3 BY ADV. SRI.KURYAN THOMAS**| ||**R1-3 BY ADV. SRI.PAULOSE C. ABRAHAM**| ||**R1-3 BY ADV. SRI.RAJA KANNAN**| |**OTHER PRESENT**<br>**:**|| ||**SR. ADV. E.K. NANDAKUMAR FOR RESPONDENT**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1609-2020, THE COURT ON 28-09-2020 DELIVERED THE FOLLOWING:** WP(C).No.14888 OF 2020(I) 2 ## **JUDGMENT** **Dated this the 28[th] day of September 2020** 1. This writ petition is filed with the following prayers:- - “A. Call for the records relating to Exhibits P1 to P8 from the respondents. B. Issue a Writ of mandamus or any other appropriate writ, order or direction setting aside Exhibits P6 and P7 orders of the respondents. C.Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 and 2 to permit the petitioner to continue in the post of Safety Officer till this Writ Petition is heard and disposed of by this Hon'ble Court.” 2. Heard the learned counsel for the petitioner and the learned Senior Counsel appearing for the respondents. 3. The petitioner has entered service as Junior Engineer in the first respondent on 16.1.1997. The post was later re-designated as Assistant Engineer in the year 2001. It is stated that in the year 2000, the petitioner had availed due permissions and had acquired Diploma in Industrial Safety from the Annamalai University through distance education. It is stated that the post of Safety Officer was manned by one Mr.R.S.Ajay Kumar, who also possessed a Diploma in Industrial Safety from Annamalai WP(C).No.14888 OF 2020(I) 3 University acquired through distance education. When Sri.R.S.Ajay Kumar retired from service, the petitioner was appointed as Safety Officer by Ext.P1 order dated 10.1.2017. 4. While so, Ext.P2 notice dated 20.2.2020 was issued by the third respondent stating that a complaint had been received that the petitioner does not possess the exact qualification prescribed in the recruitment rules for appointment to the post. It was stated that the vigilance department of the first respondent had investigated the matter and it was found that the Diploma course in Industrial Safety of Annamalai University through distance education mode does not have the approval of the AICTE. The petitioner was required to submit his explanation. He submitted Ext.P3 explanation stating that the earlier incumbent also had the very same qualification and that the Annamalai University being a statutory University, no formal orders recognising degrees/diploma by the AICTE are necessary. It is stated that the Diploma in Industrial Safety awarded by the Annamalai University through distance education is approved by the Central/State Government and the letter of approval was produced as Ext.P5. Ext.P4 letter of the Education Department of the Tamilnadu Government stating that the Annamalai WP(C).No.14888 OF 2020(I) 4 University is a statutory University and that its diplomas/degrees do not require any further recognition was also produced. However, by Exhibit P6 proceedings, the 1[st] respondent held as follows:- “11. Further, as per MHRD vide OM F.No. 6-20/2010-DL dated 16.05.2013, it was declared that the Distance Education Council of the IGNOU stands dissolved and that all matters relating to distance education in future shall be dealt with by the UGC and AICTE. 12. On enquiry by Cochin Port Trust, AICTE. vide letter dated 25/04/2019 has clarified that they have not granted any approval for conducting Diploma in Industrial Safety through Distance Education mode to Annamalai University. Further, it was also informed that as per the policy of AICTE. AICTE does not approve Distance Education programs at Diploma, Bachelors and Masters level in Engg. &Tech. etc. 13. Shri. S.S Srinath has submitted a document stating that the Distance Education Council (present Distance Education Bureau) has accorded recognition to Annamalai University for offering Diploma programme in Industrial Safety through distance mode. However, this is subject to condition that in case of technical/professional programmes offered by the university is concerned, wherever required, approval from the concerned apex bodies in the country such as AICTE, NCTE, etc. is required to be obtained for which the responsibility vests with the university concerned. In the subject issue the Diploma course has not been approved by AICTE and hence the said contention does not sustain. WP(C).No.14888 OF 2020(I) 5 14. In the light of the above facts, I am of the considered opinion that the Diploma Certificate in Industrial Safety obtained by Shri. S.S Srinath through Distance Education from Annamalai University is not valid for want of recognition by AICTE.” 5. Pursuant thereto, Ext.P7 order of reversion was passed stating that it was found that the qualification obtained by the petitioner does not have the approval of the AICTE and hence the petitioner is ineligible to hold the post. 6. The learned counsel for the petitioner submits that the recruitment rules specify that a Diploma in Industrial Safety or equivalent recognised by the Central Government is sufficient qualification for appointment to the post of Safety Officer. It is contended that since the Annamalai University is a statutory University and since Section 2(h) of the AICTE Act specifically refers to technical institutions, except universities, the very premise on which Exhibit P2 notice was issued that the qualification of the petitioner requires sanction from the AICTE is incorrect. The learned counsel relies on the decisions of the Apex court in **Bharathidasan University and another v. All India Council for Technical Education and others** [(2001) 8 SCC 676] and **Jawaharlal Nehru Technological University Registrar v. the Chairman and Managing Director,** WP(C).No.14888 OF 2020(I) 6 ## **Transmisson Corporation of Telangana** [(2019) 13 SCC 620]. It was held that the degrees and diplomas awarded by universities to candidates admitted up to the academic year 2009-2010 shall be valid. It is submitted that these directions were issued after considering the contention that distance learning is not permitted at all in Technical Education and that even in case no approval is necessary for a technical course conducted by the University, the AICTE norms have to be adhered to by the universities as well. It is further submitted by the learned counsel that the Apex Court in **Mukul Kumar** **Sharma and others v. All India Council for Technical** **Education and others** dated 30.7.2018 in W.P.(C).No.382/2018 had held that AICTE norms have to be adhered strictly by the universities, but the AICTE's approval for the course is not necessary. The learned counsel also placed before me a decision of the Central Administrative Tribunal Hyderabad Bench dated 26.4.2019 in Original Application No.353 of 2018 where the decisions of the Apex Court have been followed and it was held that persons who had acquired degrees/diplomas through distance learning from statutory and other universities till the academic year 2009 -2010 are to be treated as being fully qualified for appointment under the Centre and the State. Later WP(C).No.14888 OF 2020(I) 7 communications issued by the AICTE on 11.12.2018 and 13.2.2019 are also relied on by the learned counsel for the petitioner. 7. A detailed counter affidavit has been placed on record by the respondents. It is submitted therein as follows:- - “In light of the facts that the Diploma Certificate in Industrial Safety obtained by the petitioner through Distance Education from Annamalai University is not valid for want of recognition by AICTE, the 2[nd] Respondent decided to revert the Petitioner from the post of Safety Officer to the post of Asst. Engineer (M), the post he was holding before being promoted as Safety Officer and the decision had been conveyed to the petitioner, vide Exhibit P6 order dated 18.07.2020. Accordingly, the Petitioner was reverted to the post of Asst. Engineer (M), vide order Exhibit P7 order dated 20.07.2020. In compliance of the above order, the petitioner joined duty as Asst. Engineer (M) w.e.f. 24.07.2020. Further, the duties of Safety Officer has also been entrusted to another. Offlcer w.e.f. 27.07.2020 vide order No. A4/S.O/2020/S dated 27.07.2020. 8. The essential contention of the respondents is that a complaint had been received as against the promotion given to the petitioner and the entire issue was considered after making due investigation and verification and it was found that the qualification acquired by the petitioner through distance education did not have the approval of AICTE. It is contended by WP(C).No.14888 OF 2020(I) 8 the learned senior counsel appearing for the respondents that in **Orissa Lift Irrigation Corportion Ltd.and others v. Rabi Sankar Patro and others** [(2018) 1 SCC 544] it was specifically held that Engineering degrees acquired through ODL mode are illegal. It was held that AICTE is the sole repository of power to lay down parameters of qualitative norms for technical education and that degrees or diplomas in technical education through the distance mode are impermissible in law. It is contended that it is for the petitioner to establish before this Court that the Central Government approves the qualification of the petitioner at present and that since the post of safety Officer is a pivotal post, the lack of qualification is to be considered strictly. 9. I have considered the contentions advanced on either side. It is not in dispute before me that the Annamalai University is a statutory University and that the petitioner had acquired the qualification of Diploma in Industrial Safety from the Annamalai University through distance education prior to 2002. The qualification for appointment of Safety Officer in the first respondent is as follows:- WP(C).No.14888 OF 2020(I) 9 ## Essential: i.Degree or equivalent Mechanical/Electrical Engineering from a recognised University/Institution, ii)Diploma or higher qualification in Industrial safety or equivalent recognised by the Central Government. iii) two year experience in relevant discipline in supervisory capacity in an Industiral/Commercial/Government undertaking. iv) Adequate knowledge of the language spoken by the majority of the workers in the Port. 10.The only dispute is with regard to the Diploma In Industrial Safety possessed by the petitioner. Ext.P2 notice would show that the allegation in the notice is specifically that the diploma course in Industrial Safety of the Annamalai University through distance education mode does not have approval of the AICTE which is the approving authority of the technical qualifications. The Apex court in **Bharathidasan University** 's case (supra) had specifically held that a University does not require the approval of the AICTE to start a department or commence a new course of programme in technical education. However, it was held that the University should conform to the standards and norms laid down by the AICTE for the purpose of ensuring coordinated and integrated development of technical deviation and maintenance of standards. WP(C).No.14888 OF 2020(I) **==> picture [15 x 9] intentionally omitted <==** 11. The petitioner has produced Exts.P4 and P5 letters to show that the diploma granted by the Annamalai University stands automatically recognised for the purpose of employment under the Central Government. The learned counsel also relies on the decision in **Jawaharlal Nehru Technological University Registrar (supra)** where it was specifically held that while directing that the norms must be followed in future, the degrees and diplomas in question already granted by the University to candidates admitted up to the academic year 2009-2010 may be left undisturbed. Following the said order, an order was passed on 30[th] July, 2018 by the Apex Court stating that since the Apex Court by its order dated 10.4.2008 had already held that AICTE approval is not necessary for a course conducted by a statutory University and that all that is required is that AICTE norms must be adhered by the institution in question. This has been followed by the CAT, Hyderabad Bench and it was held that where technical qualifications are acquired from statutory Universities before 2009-2010 they are declared to be valid. - 12.In view of the fact that the only contention raised against the petitioner was that his diploma acquired through distance education mode did not have AICTE approval and since the petitioner has succeeded in establishing that the approval of the WP(C).No.14888 OF 2020(I) 11 AICTE was not required, at least at the relevant time, and that the degrees awarded by the statutory universities till 2009-2010 even through distance mode have been directed to be treated as valid for the purpose of employment under the State or Central Governments, I am of the opinion that the finding that the petitioner is not qualified in terms of the recruitment rules is completely fallacious. The recruitment rules having specified that the qualification is a Diploma in Industrial Safety recognised by the Central Government and since the respondents have absolutely no case that the qualification of the petitioner is not the one so recognised, I am of the opinion that the entire proceedings against the petitioner is illegal. - 13.Exts.P6 and P7 orders are, therefore, set aside. There will be a direction to the respondents to promote the petitioner as Safety Officer and to grant him all attendant benefits after following due procedure in accordance with the law. Necessary shall be done within a period of two months from the date of receipt of a copy of the judgment. Writ petition is ordered accordingly. sd/- **ANU SIVARAMAN, JUDGE** sj WP(C).No.14888 OF 2020(I) 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF 3RD RESPONDENT'S ORDER NO.A4/PROMOTIONS/S.O/2017-S DATED 10.1.2017.** **EXHIBIT P2 TRUE COPY OF 3RD RESPONDENT'S NOTICE NO.A4/SO/VIG/2020-S DATED 20.2.2020.** - **EXHIBIT P3 TRUE COPY OF EXPLANATION DATED 26.2.2020 SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF LETTER NO.94873/HI/91-1 DATED 17.12.1991 OF JOINT SECRETARY, EDUCATION DEPARTMENT GOVERNMENT OF TAMIL NADU.** - **EXHIBIT P5 TRUE COPY OF LETTER NO.F.1-1'88T.13 DATED 25.11.1988 OF MINISTRY OF HUMAN RESOURCES DEVELOPMENT GOVT. OF INDIA.** - **EXHIBIT P6 TRUE COPY OF PROCEEDINGS NO.A4/S.O/VIG/2020/S DATED 18.7.2020 OF 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF ORDER NO.A4/S.O/VIG/2020/S DATED 20.7.2020 OF 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF RELEVANT PORTION OF THE RECRUITMENT REGULATIONS OF THE 1ST RESPONDENT ORGANIZATION.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R3 A** **TRUE COPY OF THE NOTIFICATION NO.44 DATED 10.03.1995 ISSUED BY THE DEPARTMENT OF EDUCATION, MINISTRY OF HUMAN RESOURCE DEVELOPMENT.** WP(C).No.14888 OF 2020(I) 13 **EXHIBIT R3 B TRUE COPY OF THE OFFICE MEMORANDUM DATED 16.05.2013 BEARING NO.F NO. 6/20/2010 DL ISSUED BY THE DEPARTMENT OF HIGHER EDUCATION ,MINISTRY OF HUMAN RESOURCE DEVELOPMENT. EXHIBIT R3 C TRUE COPY OF THE LETTER DATED 25.4.2019** TRUE COPY PS TO JUDGE