WA Nos. 523 and 531 of 2023 (The High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** ## **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **MONDAY, THE 27[TH] DAY OF MARCH 2023 / 6TH CHAITHRA, 1945** ## **WA NO. 523 OF 2023** **AGAINST THE JUDGMENT DATED 23.02.2023 IN WP(C) 14545/2022** ## **OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** ## **K.J.SUDHIR,** **AGED 56 YEARS, S/O JAGESWARAN P V, HEAD OF THE DEPARTMENT, DEPARTMENT OF CIVIL ENGINEERING, SN POLYTECHNIC COLLEGE, KOTTIYAM P O, KOLLAM - 691571, NOW RESIDING AT NIDHINAM, RUBBER VALLEY CLASSIC VILLAGE, RUBBER BOARD PO, KOTTAYAM, PIN - 686009** **BY ADVS. R.REJI KUMAR P.R.JAYAKRISHNAN** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE SECRETARY TO GOVERNMENT FINANCE (EXPENDITURE) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **3 UNION OF INDIA REPRESENTED BY: THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF HIGHER EDUCATION, SHASTRI BHAWAN, NEW DELHI, PIN - 110001** - **4 THE DIRECTOR DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASOM STREET, FORT P O, THIRUVANANTHAPURAM, PIN - 695023** - **5 THE ALL-INDIA COUNCIL FOR TECHNICAL EDUCATION: REPRESENTED BY ITS SECRETARY, NELSON MANDELA MARG, VASANT KUNJ, NEW DELHI, PIN - 110070** - **6 THE REGIONAL OFFICER & ASSISTANT DIRECTOR THE ALL-INDIA COUNCIL FOR TECHNICAL EDUCATION, SWRO CAMP OFFICE, COLLEGE OF ENGINEERING CAMPUS, THIRUVANANTHAPURAM, PIN - 695016** Writ Appeal Nos.523 & 531 of 2023 -: 2 :- - **7 THE CHAIRMAN SN POLYTECHNIC COLLEGE, KOTTIYAM P O, KOLLAM – 691571.** - **8 THE PRINCIPAL SN POLYTECHNIC COLLEGE, KOTTIYAM P O, KOLLAM, PIN - 691571** - **9 THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** **BY ADVS . SRI.SAJITH KUMAR V., SC SRI.MANU S, ASG SRI.K.B.RAMANAND, SPECIAL GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.03.2023, ALONG WITH WA.531/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal Nos.523 & 531 of 2023 -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 27[TH] DAY OF MARCH 2023 / 6TH CHAITHRA, 1945** **WA NO. 531 OF 2023** **AGAINST THE JUDGMENT DATED 23.02.2023 IN WP(C) 30088/2022** **OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **HARIHARAN.B AGED 55 YEARS, S/O BHASKARAN PILLAI .N, LECTURER IN MECHANICAL ENGINEERING, CARMEL POLYTECHNIC COLLEGE, ALAPPUZHA- 686004, NOW RESIDING AT MANGALATHU VEEDU, PAZHAVEEDU P O., ALAPPUZHA ., PIN - 688009** **BY ADVS. R.REJI KUMAR P.R.JAYAKRISHNAN** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA: REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE SECRETARY TO GOVERNMENT, FINANCE (EXPENDITURE) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **3 UNION OF INDIA REPRESENTED BY: THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF HIGHER EDUCATION, SHASTRI BHAWAN, NEW DELHI PIN - 110001** - **4 THE DIRECTOR DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASOM STREET, FORT P O, THIRUVANANTHAPURAM., PIN - 695023** - **5 THE ALL-INDIA COUNCIL FOR TECHNICAL EDUCATION: REPRESENTED BY ITS SECRETARY, NELSON MANDELA** Writ Appeal Nos.523 & 531 of 2023 -: 4 :- **MARG, VASANT KUNJ, NEW DELHI., PIN - 110070** - **6 THE REGIONAL OFFICER & ASSISTANT DIRECTOR, THE ALL-INDIA COUNCIL FOR TECHNICAL EDUCATION, SWRO CAMP OFFICE, COLLEGE OF ENGINEERING CAMPUS, THIRUVANANTHAPURAM, PIN - 695016** - **7 THE CHAIRMAN CARMEL POLYTECHNIC COLLEGE, ALAPPUZHA, PIN - 686004** - **8 THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001** **BY ADVS . SRI.SAJITH KUMAR V., SC SRI.MANU S, ASG SRI.K.B.RAMANAND, SPECIAL GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.03.2023, ALONG WITH WA.523/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal Nos.523 & 531 of 2023 -: 5 :- ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** **----------------------------------------------Writ Appeal Nos.523 & 531 of 2023 ----------------------------------------------Dated this the 27[th] day of March, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** These appeals are preferred challenging the common judgment in two writ petitions namely W.P.(C) Nos.14545 and 30088 of 2022. The appellants were the petitioners in the writ petitions. Parties and documents are referred to in this judgment, unless otherwise mentioned, as they appear in W.P.(C) No.14545 of 2022. 2. The matter relates to the age of superannuation of teachers in aided Polytechnics in the State. 3. As per Ext.P1 Regulations issued by All India Council for Technical Education (the AICTE) on 22.01.2010 in terms of sub-section (1) of Section 23 of the All India Council for Technical Education Act, 1987 (the AICTE Act), the age of superannuation of teachers in technical institutions shall be 65 years. Even though the State Government implemented Ext.P1 Writ Appeal Nos.523 & 531 of 2023 -: 6 :- Regulations in Government as also in aided Polytechnics in the State in terms of Ext.P2 order, it was subject to the condition that the age of superannuation of teachers shall be in accordance with the rules applicable to the State Government employees. Ext.P3 is the Regulations issued by the AICTE on 01.03.2019 revising Ext.P1 Regulations. Ext.P3 Regulations also contains identical provisions as contained in Ext.P1 Regulations as regards the age of superannuation of teachers in technical institutions. In terms of Ext.P4 order, the State Government implemented Ext.P3 Regulations also in Government and aided Polytechnics in the State. Even though there was no stipulation in Ext.P4 order concerning the age of superannuation of teachers made mention of in Ext.P3 Regulations, on 03.07.2022, in terms of the order produced in in W.P.(C) No.30088 of 2022 as Ext.P8, the Government modified Ext.P4 order also, clarifying that the age of superannuation of teachers in Government and aided Polytechnics in the State shall be in accordance with the rules applicable to the State Government employees. 4. The petitioners in the writ petitions were teachers in different aided Polytechnics in the State. According to them, insofar as the Regulations are issued by the AICTE Writ Appeal Nos.523 & 531 of 2023 -: 7 :- under the AICTE Act for maintaining the standards of technical education, the State Government is bound to implement the provisions therein, including the provisions relating to the age of superannuation of teachers in the institutions of technical education inasmuch as the AICTE Act being a legislation relatable to Entry 66 of List I of the Seventh Schedule to the Constitution, the prescriptions in the Regulations will prevail over the rules framed by the State Government prescribing the age of superannuation of the State Government employees. The petitioners, therefore, sought in the writ petitions a declaration that they are entitled to continue in service until they attain the age of 65 years. They have also sought directions to the respective institutions where they work, to permit them to continue in service on the basis of the prescriptions contained in the Regulations issued by AICTE as regards the age of superannuation. 5. Counter affidavits were filed on behalf of the State Government in the writ petitions contending that the AICTE does not have power to prescribe the conditions of service of State Government employees including their age of superannuation under the AICTE Act and that the age of superannuation of the employees of the State Government is a Writ Appeal Nos.523 & 531 of 2023 -: 8 :- matter of policy of the concerned State Government. 6. Placing reliance on the decision of the Division Bench of this Court in O.P.(KAT) No.542 of 2019 and the decision of the Apex Court in **Jagdish Prasad Sharma v. State of Bihar** , (2013) 8 SCC 633, the learned Single Judge dismissed the writ petitions holding that prescription of age of superannuation of the employees of the State Government is a matter of policy of the State Government and would not fall within the scope of coordination and determination of standards of education for AICTE to frame Regulations in respect of the same and the Regulations framed by the AICTE as regards the age of superannuation of the State Government employees would not, therefore, prevail over the rules applicable to the State Government employees as regards their age of superannuation. In order to come to the said conclusion, the learned Single Judge has also taken note of the fact from the recitals in Ext.P1 Regulations that a prescription has been made in the AICTE Regulations as regards the age of superannuation of teachers in technical institutions having regard to the dearth of qualified hands being available for appointment in the country. It is aggrieved by the said decision of the learned Single Judge that these writ appeals are Writ Appeal Nos.523 & 531 of 2023 -: 9 :- preferred. 7. Heard the learned counsel for the appellants, the learned Government Pleader as also the learned Standing Counsel for AICTE. 8. The learned counsel for the petitioners contended that as Regulations are made by the AICTE under the AICTE Act for maintenance of standards of technical education, the State Government is bound to implement the provisions therein _in toto_ and not in piecemeal. The learned counsel relied on Section 24 of the AICTE Act to reinforce the said contention. It was asserted by the learned counsel that the view taken by the learned Single Judge that the age of superannuation has nothing to do with the maintenance of standards of technical education is unsustainable in law. It was also argued by the learned counsel that in Writ Petition No.3125 of 2020, the High Court of Bombay upheld identical claims of teachers of technical institutions in the State of Maharashtra, and the Special Leave Petitions preferred against the said decision of the Bombay High Court have been dismissed by the Apex Court. 9. The learned Standing Counsel for the AICTE supported the claim of the petitioners, placing reliance on the Writ Appeal Nos.523 & 531 of 2023 -: 10 :- decision of the High Court of Punjab and Haryana in C.W.P. No.20447 of 2020 dated 1.3.2021. It was pointed out by the learned Standing Counsel that the said judgment was rendered after distinguishing the decision of the Apex Court in **Jagdish Prasad Sharma** . 10. The learned Government Pleader supported the impugned judgment, contending that the issue against the petitioners is covered by the decision of the Apex Court in **Jagdish Prasad Sharma** . 11. We have bestowed our attention to the arguments advanced by the learned counsel for the parties on either side. We have also perused the various judgments relied on by the learned counsel. 12. It is seen that in O.P.(KAT) No.133 of 2019 and connected cases, this Court has held that the provisions in the Special Rules for the Kerala Technical Education Service framed under the Kerala Public Services Act under Article 309 of the Constitution applicable to teachers of Government and aided Polytechnics in the State will not prevail over the Regulations framed by the AICTE insofar as it relates to the qualifications, method of appointments etc. of the members of the service and the provisions in the said Special Rules to the extent the Writ Appeal Nos.523 & 531 of 2023 -: 11 :- same is repugnant to the Regulations framed by the AICTE would be void and inoperative. In O.P.(KAT) No.542 of 2019, the question that arose for consideration was whether the method of appointment or the source from which appointment could be made to the post of lecturers in technical streams in Polytechnics as prescribed in the Regulations framed by the AICTE would prevail over the relevant provisions contained in the Special Rules for the Kerala Technical Educational Service. After referring to the decision in O.P.(KAT) No.133 of 2019 and connected cases as also the decision of the Apex Court in **Jagdish Prasad Sharma** , this Court took the view that a distinction has to be drawn between cases where the stipulation in the Regulations relates to maintenance of the standards of technical education and cases where the stipulation relates to the age of superannuation of teachers and other staff of Technical Institutions, and held that the stipulation in the Regulations framed by the AICTE as regards the method of appointment to the post of lecturer being a requirement relating to maintenance of standards of technical education, the same will prevail over the corresponding provisions in the Special Rules. 13. One of the questions considered by the Apex Writ Appeal Nos.523 & 531 of 2023 -: 12 :- Court in **Jagdish Prasad Sharma** was whether the Regulations framed by the University Grants Commission(UGC) under the University Grants Commission Act (UGC Act) which relate to Entry 66 of List I of the Seventh Schedule to the Constitution, could alter the conditions of service of teachers and other staff of the Universities and colleges affiliated to the Universities prescribed by the State in terms of enactments under Article 309 of the Constitution and the said question was answered by the Apex Court in the negative, holding that Under Entry 25 of List III of the Seventh Schedule to the Constitution, the State is entitled to enact its own laws with regard to the service conditions of teachers and other staff of universities and colleges within the State and the same will have effect unless they are repugnant to any Central legislation. Paragraph 70 of the judgment in **Jagdish Prasad Sharma** dealing with the said question reads thus: “70. The authority of the Commission to frame regulations with regard to the service conditions of teachers in the Centrally-funded educational institutions is equally well established. As has been very rightly done in the instant case, the acceptance of the Scheme in its composite form has been left to the discretion of the State Governments. The concern of the State Governments and their authorities that UGC has no authority to impose any conditions with regard to its educational institutions is clearly unfounded. There is no doubt that the Regulations framed by UGC relate to Schedule VII List I Entry 66 to the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States under Article 309 of the Constitution. Under List III Entry 25, the State is entitled to Writ Appeal Nos.523 & 531 of 2023 -: 13 :- enact its own laws with regard to the service conditions of the teachers and other staff of the universities and colleges within the State and the same will have effect unless they are repugnant to any Central legislation.” (underline supplied) It is seen that it was contended before this court in W.P.(C) Nos.10257 and 11511 of 2016 instituted by a few private college teachers that in view of the adoption of the Regulations issued by the UGC under the UGC Act by the State of Kerala, the Universities and affiliated colleges in the State are bound to comply with the same in its entirety including the provision therein as regards the age of superannuation of teachers, and sought identical reliefs as claimed by the petitioners in the present writ petitions. This court rejected the said contention and dismissed the said writ petitions, placing reliance on **Jagdish Prasad Sharma,** holding that the Regulations framed by the UGC under the UGC Act, which relate to Entry 66 of List I of the Seventh Schedule to the Constitution cannot alter the conditions of service of persons serving a State prescribed in terms of the enactments under Article 309 of the Constitution. The said decision was affirmed by the Division Bench, and Civil Appeal No.5037 of 2022 preferred against the decision of the Division Bench before the Apex Court was dismissed on 02.08.2022, holding that the principles laid down by the Apex Court in **Jagdish Prasad Sharma** still hold the field. In the Writ Appeal Nos.523 & 531 of 2023 -: 14 :- light of the decisions of the Apex Court in **Jagdish Prasad Sharma** and Civil Appeal No.5037 of 2022, there cannot be any doubt to the proposition that the Regulations framed under enactments which relate to Entry 66 of List I of the Seventh Schedule to the Constitution cannot alter the conditions of the employees of the State Government prescribed in terms of enactments under Article 309 of the Constitution. Of course, those are judgments rendered in the context of the Regulations issued by the UGC under the UGC Act. As we are dealing with the Regulations issued by the AICTE under the AICTE Act in the cases on hand, the question to be considered is as to whether there exists any reason to take a view different from the view taken by the Apex Court in **Jagdish Prasad Sharma** . 14. Even though the power to legislate on all matters relating to State Public Services is included in Entry 41 of List II of the Seventh Schedule to the Constitution read with Article 246 of the Constitution, it is now settled that Article 309 is a special provision in respect of two specific matters namely, recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or the State. As such, there cannot be any doubt that in Writ Appeal Nos.523 & 531 of 2023 -: 15 :- terms of enactments issued under Article 309 of the Constitution, the State is entitled to make rules regulating recruitment and conditions of service its employees, including the age of superannuation. As noted, the question considered by the Apex Court in **Jagdish Prasad Sharma** was whether the Regulations framed by the UGC under the UGC Act which relate to Entry 66 of List I of the Seventh Schedule to the Constitution could alter any of the conditions of service of teachers and other staff of the Universities and colleges within the State prescribed in terms of the enactments under Article 309 of the Constitution. As already noticed, in **Jagdish Prasad Sharma,** the Apex Court answered the said question in the negative. In other words, the provisions in the Regulations framed under the Statutes relatable to Entry 66 of List I of the Seventh Schedule to the Constitution, to the extent the same encroach upon the power of the State Government to prescribe the conditions of service of its employees in terms of Article 309 of the Constitution, would be invalid. We do not find any reason why the said proposition cannot be applied in the context of the Regulations issued by the AICTE under the AICTE Act. Needless to say, the principles laid down by the Apex Court in **Jagdish Prasad Sharma** would squarely apply to the Writ Appeal Nos.523 & 531 of 2023 -: 16 :- Regulations issued by the AICTE under the AICTE Act as well. 15. Let us now deal with the arguments advanced by the learned counsel for the petitioners. One of the arguments advanced by the learned counsel for the petitioners placing reliance on the decisions of the Apex Court in **Parshvanath Charitable Trust v. All India Council for Technical Education** , (2013) 3 SCC 385 and **Pramod v. State of Maharashtra** (Civil Appeal No.14735 of 2015) is that the Regulations framed by the AICTE have the force of law and are binding on all concerned. There cannot be any doubt to this proposition. The question which we are called upon to decide, however, is not as to whether the Regulations issued by the AICTE under the AICTE Act have the force of law and are binding on all concerned. On the other hand, the question is as to whether the provisions in the Regulations issued by the AICTE under the AICTE Act as regards the age of superannuation of teachers of technical institutions would prevail over the corresponding provisions in the rules framed by the State Government in terms of the enactments under Article 309 of the Constitution. 16. Another argument advanced by the learned counsel for the petitioners is the argument based on the Writ Appeal Nos.523 & 531 of 2023 -: 17 :- decision of the Bombay High Court in writ petition No.3125 of 2020. We have perused the judgment of the Bombay High Court in the said case and we find that the said judgment was rendered without considering the fundamental question namely, whether the Regulations framed by the AICTE under the AICTE Act could alter the conditions of service of employees of State Governments prescribed in terms of enactments under Article 309 of the Constitution. With due respect, we disagree with the view expressed by the Bombay High Court in the said case. 17. What remains to be considered is the argument advanced by the learned Standing Counsel for the AICTE based on the decision of the High Court of Punjab and Haryana in C.W.P.No.20447 of 2020 dated 1.3.2021. We have perused the judgment in the said case also. Though there is a reference to **Jagdish Prasad Sharma** in the said judgment, it is seen that **Jagdish Prasad Sharma** was distinguished in the said judgment on the ground that the same is rendered in the context of the Regulations issued by the UGC under the UGC Act and having regard to the fact that it was not obligatory for the State Governments to implement the provisions of the Regulations framed by the UGC under the UGC Act. With due Writ Appeal Nos.523 & 531 of 2023 -: 18 :- respect, we disagree with the view expressed by the Punjab and Haryana High Court in C.W.P.No.20447 of 2020 also, as according to us, the fundamental question is not whether the State Government is obliged to implement the Regulations issued by the UGC under the UGC Act, but whether the enactments relatable to Entry 66 of List I of the Seventh Schedule could alter the conditions of service of State Government employees prescribed under the enactments under Article 309 of the Constitution. 18. In the light of the discussion aforesaid, we do not find any reason to interfere with the decision of the learned Single Judge. The writ appeals, in the circumstances, are dismissed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **SOPHY THOMAS, JUDGE.** ds 25.03.2023