Karnataka High Court
Sharan vs The State Of Karnataka And Ors on 11 August, 2023
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NC: 2023:KHC-K:6569
WP No. 204935 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO. 204935 OF 2018 (S-RES)
BETWEEN:
SHARAN
S/O CHANDRASHEKHAR PADASHETTY
AGE:56 YEARS, OCC:ASSOCIATE PROFESSOR,
WORKSHOP SUPERINTENDENT IN THE DEPARTMENT
OF MECHANICAL ENGINEERING, PDA ENGINEER
COLLEGE, AIWAN-E-SHAHI AREA, KALABURAGI-
585102.
...PETITIONER
(BY SRI. K. DIWAKAR SENIOR COUNSEL FOR
SRI.ADITYA D,ADVOCATE)
AND:
Digitally signed
by VARSHA N
RASALKAR
1. THE STATE OF KARNATAKA
Location: High
Court Of
THROUGH ITS PRL. SECRETARY
Karnataka
DEPARTMENT OF HIGHER EDUCATION
M.S.BUILDING, DR.B.R.ABEDKAR VEEDHI,
BANGALORE-560009.
2. DIRECTOR OF TECHNICAL EDUCATION
TANTRIK SHIKSHANA BHAVAN
PALACE ROAD, BANGALORE - 560041.
3. THE PRINCIPAL ACCOUNTANT GENERAL (A & E)
KARNATAKA
PARK HOUSE ROAD, BENGALURU-560001.
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WP No. 204935 of 2018
4. THE HEKS PDA ENGINEER COLLEGE
(AUTONOMOUS BODY OF GOVERNMENT OF
KARNATA)
AIWAN-E-SHAHI AREA, KALABURAGI-585102.
THROUGH ITS PRINCIPAL
5. THE HYDERABAD KARNATAKA EDUCATION SOCIETY
THROUGH ITS PRESIDENT,
PDA ENGINEERING COLLEGE CAMPUS,
AIWAN-E-SHAHI AREA,
KALABURAGI-585102.
6. THE REGIONAL COMMISSIONER
KALABURAGI
7. THE CHAIRMAN
GOVERNING BODY
PDA ENGINEERING COLLEGE CAMPUS
AIWAN-E-SHAHI AREA, KALABURAGI-585102.
...RESPONDENTS
(BY SRI. RAJKUMAR A. KORAWAR HCGP FOR R1 TO R3 & R6;
SRI. AMARESH S. ROJA, ADVOCATE FOR R4 & R5;
R-7 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI FOR QUASHING THE IMPUGNED
ORDER VIDE NO. HKES/A8/EST/2018-19/3264 DATED-
05.11.2018 OF RESPONDENT NO.7 WHICH IS AT ANNEXURE-A
WHICH IS ALLEGEDLY PASSED ON THE BASIS OF AUDIT
OBJECTIONS RAISED BY RESPONDENT NO.3 WITH ALL
CONSEQUENTIAL BENEFITS, AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-K:6569
WP No. 204935 of 2018
ORDER
In this writ petition, the petitioner is assailing the order dated 05.11.2018 issued by respondent No.7 (Annexure-A) based on the audit objection raised by the respondent No.3 inter alia sought for quashing the order of approval issued by the respondent No.2 dated 14.11.2006 imposing condition of completing Ph.D., within seven years at Sl.No.3 as per Annexure-D to the writ petition.
2. It is the case of the petitioner that, petitioner is a Graduate in Mechanical Engineering and thereafter, pursuing Ph.D., since 2007. The petitioner contended that, the withdrawal of the appointment of the petitioner by the respondent-institution (Annexure-A) is contrary to law as the petitioner has made all the efforts to complete the Ph.D., within the stipulated period. Feeling aggrieved by the order dated 05.11.2018 issued by respondent No.7 based on the audit objection raised by the respondent No.3, the petitioner has filed this writ petition.
3. Heard Sri Diwakar, learned Senior Counsel appearing for Sri Aditya D, for the petitioner and Sri Raj -4- NC: 2023:KHC-K:6569 WP No. 204935 of 2018 Kumar A. Korwar, learned High Court Government Pleader appearing for respondents 1 to 3 and 6 and Sri Sri.Amresh S. Roja, learned counsel appearing for the respondents 4 and 5.
4. Learned Senior Counsel, Sri Diwakar, argued that, the respondents have appointed the petitioner on 14.11.2006 (Annexure-D) whereby, the condition imposed that, the petitioner shall complete the Ph.D within seven years in terms of the G.O. dated 30.11.2002. In these aspects, he emphasized on the notification dated 04.01.2016, issued by AICTE and refers to Sl No.53 and argued that, in the event if candidate has not completed Ph.D in 7 years from the date of joining, the only option left with the respondents is to stop increment until such candidate possess Ph.D Degree. Therefore, he contended that, issuance of Annexure-A by the respondent-authorities is based on recommendation made in the audit report which cannot be a ground to deny relief to the petitioner. In this regard, he places reliance on the order dated 18.02.2016 passed by the Division Bench of this Court in W.P.No.51205- 252 of 2015 and argued that, the ratio laid down in the -5- NC: 2023:KHC-K:6569 WP No. 204935 of 2018 aforementioned judgment is squarely applicable to the facts on record and further the order passed by the Division Bench has been confirmed by the Hon'ble Supreme Court in SLP No.5495-72 of 2017 and accordingly, he sought for allowing the prayer made in the writ petition.
5. Per contra, Sri Rajkumar A Korwar, learned High Court Government Pleader appearing on behalf of the respondent-Government reiterated the submission made in the statement of objections. It is his categorical argument that, the appointment of the petitioner was objected by the auditor of Director of Technical Education in their audit report dated 12.06.2014 for the Financial Year 2011-12 and therefore, he submitted that, withdrawing the appointment order is just and proper which cannot be interfered with in this writ petition.
6. Sri.Amresh S. Roja, learned counsel appearing for the respondent-Institution favours the arguments advanced by the learned High Court Government Pleader. -6-
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7. Having taken note of the arguments advanced by the learned counsel appearing for the parties, the core question to be answered in this writ petition is whether the termination of the appointment of the petitioner interalia direction to recover the amount as per the audit observations by the respondents is just and proper?
8. It is not in dispute that, the petitioner was appointed by the respondent No.5-Society, and thereafter, promoted as Assistant Professor (PG) as Production Engineer with effect from 01.07.1999 and thereafter, an order of confirmation was made on 14.11.2006 (Annexure-D). The said confirmation was subject to the condition that the petitioner shall obtain Ph.D degree within seven years in terms of the G.O. dated 30.11.2002. It is also not in dispute that, the petitioner is governed by the Regulations of AICTE. In this regard, notification dated 04.01.2016, issued by the AICTE wherein, Item No. 53, reads as under:
Whether, Asst. Professor (Re- Such candidates will be required designated as Associate to complete Ph.D within seven Professor w.e.f 1-1-2006), who years from the date of Joining, -7- NC: 2023:KHC-K:6569 WP No. 204935 of 2018 are not able to complete the failing which increments shall Ph.D in seven years from the be stopped until Ph.D is earned. date of Joining (Direct/CAS) will be reverted back.
9. Perusal of the said notification would indicate that, in the event such Associate Professor/ Teaching faculty fails to complete Ph.D within seven years from the date of their joining, the option open for the respondents is to stop the increments till such candidate acquire Ph.D Degree and except that, the respondents have no authority under law to pass order of termination interalia sought for recovery of any due. In this regard, submission of learned Senior Counsel is justified. In the judgment passed by this Court in Lakshmidevamma (W.P.Nos.51205-51252/2015) supra, wherein, the Division Bench of this Court, has considered an identical cases in detail and following the declaration of law made by the Hon'ble Supreme Court in the case of STATE OF PUNJAB AND OTHERS VS. RAFIQ MASIH (WHITE WASHER) reported in (2015) 4 SCC 334, and also taking into consideration the provisions of AICTE, has arrived a conclusion that, the recovery proceedings that may be -8- NC: 2023:KHC-K:6569 WP No. 204935 of 2018 initiated against such candidate who have not possessed Ph.D degree within seven years of their entry into service is bad in law. Paragraphs 29 and 30 of the judgment passed in Lakshmidevamma supra, reads as under:
29. Sofar as it relates to the next important aspect that, whether the petitioners are entitled to the same pay scale.
For the subsequent period has to be looked into. The learned Government Pleader has brought to our notice with regard to the qualification for the post of Assistant Professor as quoted in the notification dated 06.09.2008 by Government of Karnataka i.e. Ph.D First Class in any Bachelor Degree or Master Degree level or first class Master Degree in appropriate branch of engineering with five years of experience and that, he required to obtain Ph.D degree within a period of seven years from the date of their appointment. Obtaining of Ph.D within seven years though it is made as a mandate. In the notification dated 04.01.2016 issued by AICTE, at Item No.53, it is clarified that what would be the consequence if the candidate (Associate Professors) of different Departments do not earn Ph.D degree within seven years, which reads as follows:
Whether, Asst. Professor (Re- Such candidates will be designated as Associate Professor required to complete Ph.D w.e.f 1-1-2006), who are not within seven years from the able to complete the Ph.D in date of Joining, failing which seven years from the date of increments shall be stopped Joining (Direct/CAS) will be until Ph.D is earned. reverted back.-9-
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30. In view of the above said clarification even if the candidates do no earn Ph.D within seven years, they only lose increments until they earn Ph.D. Therefore, the designation and pay scale will not be impaired. Even otherwise, as could be seen from the records, the petitioners were appointed to the said posts of Assistant Professors during September, October and November of 2010 and they are entitle for time from September to November, 2017 to earn their Ph.D. Therefore, this is too premature to draw an inference against the petitioners in this regard. Therefore, the argument of the learned Government Pleader sofar as this aspect is concerned, it not tenable.
10. It is also pertinent to mention herein that, aforesaid judgment are of this Court is confirmed by the Hon'ble Supreme Court in SLP No.5495-5572 of 2017 dated 28.01.2020. In that view of the matter, following the declaration of law made by this Court and the provisions contained under AICTE notification, referred to above, the impugned order dated 05.11.2018 issued by respondent No.7 (Annexure-A) is set aside and as the petitioner herein has attained the age of superannuation on 31.08.2022, the petitioner is entitled for all retiral benefits and such other benefits accrued under the conditions of service from the respondent No.2. Respondent No.7-Institution being aided
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NC: 2023:KHC-K:6569 WP No. 204935 of 2018 and working under the instructions of respondent No.2 insofar as releasing pay scale, pension and such other emoluments, respondent No.2 is directed to pay the arrears of salary if any including all retiral benefits as mentioned above, within an outer limit of three months from the date of receipt of certified copy of this order. Accordingly, the writ petition is allowed.
Sd/-
JUDGE SB List No.: 1 Sl No.: 62