Kerala High Court
Dr. B. Ajith Kumar vs The State Of Kerala on 6 October, 2009
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4468 of 2005(F)
1. DR. B. AJITH KUMAR, ASSISTANT PROFESSOR
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. THE PRINCIPAL SECRETARY TO GOVERNMENT
3. THE DIRECTOR OF TECHNICAL EDUCATION,
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent :SRI.V.G.ARUN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :06/10/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) Nos. 4468/2005, 31502/2007,
20544, 23490, 27289, 31862 & 31886/2008
& Cont. Case (C) No. 689 of 2009
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Dated this, the 6th October, 2009.
J U D G M E N T
Common issues arise in these writ petitions and connected contempt case and hence they are disposed of by this common judgment.
2. The main issue arising in all these cases except W.P(C) No. 31502/2007, is as to whether the State Government can frame rules regulating qualifications for appointment to the posts of Professor and Assistant professor in Engineering Colleges in Kerala, in exercise of powers under Article 309 of the Constitution of India, which qualifications are lower than those stipulated by the All India Council of Technical Education (AICTE for short), in exercise of the powers conferred on them by the All India Council of Technical Education Act, 1987 (the AICTE Act for short). Facts necessary for disposal of these cases may be summarised as under. I shall refer to the ranks of parties and Exhibits as obtaining in W.P(C) No. 20544/2008, unless indicated otherwise.
3. Prior to 27-3-1990, the qualifications and method of appointment of teachers of Government Engineering Colleges in the State of Kerala were governed by the Special Rules for Kerala Technical Education Service, 1967. The Government of Kerala, by G.O (P) 8/90/H.Edn. Dated 27-3-1990, implemented the AICTE Scheme for revision of pay scales and associated terms and conditions of service of teachers in the degree level in Engineering Colleges in the State. The scheme envisaged central financial assistance for implementation of pay revision of the teachers on condition that the State Government makes necessary changes in their statutes to incorporate the provisions of the scheme. One of the conditions of W.P.C. No. 4468/2005 etc. -: 2 :- the scheme was that the teaching staff should possess the minimum educational qualifications and experience requirements as stipulated in the scheme. Therefore, when the Government implemented the AICTE Scheme, availing of the financial assistance offered by the Central Government, they were required to amend the Special Rules applicable to the teachers of Engineering Colleges incorporating the qualifications and experience stipulated in the scheme. But despite availing of the financial assistance from the Central Government, which was offered subject to fulfilment of the other conditions in the scheme as a package, the State Government did not comply with the condition regarding amendment of the qualifications and experience of the teaching staff of the Engineering Colleges by amending the Special Rules applicable to them in tune with the AICTE norms. Again, with the approval of the Central Government, the AICTE formulated Ext. P7 scheme for revision of scales of pay on the basis of the recommendations of the Vth Central Pay Commission, which again envisaged central financial assistance for four years for implementing the same as a package, which again included the requirement of amending the State rules regarding qualifications of teachers in tune with those stipulated in the Scheme. This scheme was communicated by the Government of India to the State Government by letter No. F.37.104/95. TS II dated 9-10-1998. By G.O.(P) 68/2000/H.Edn. dated 18-5-2000, the Government decided to implement the AICTE scheme availing of the financial assistance offered by the Central Government. This time although belatedly, as required under the scheme, the Government of Kerala, by Ext. P2 amendment Rules dated 24-1-2003, amended the Special Rules for the Kerala Technical Education Service, incorporating the qualifications stipulated in the AICTE scheme for appointment to various teaching posts in the Engineering Colleges in the State. As per the amended Special Rules, for W.P.C. No. 4468/2005 etc. -: 3 :- appointment as Professor and Assistant Professor in Engineering Colleges, Ph.D. degree with first class degree at Bachelors or Masters level in the appropriate branch of Engineering/Technology was an essential qualification. But, by Ext. P3 dated 18-9-2004, the Government again amended the Special Rules adding Rule 6A to the Special Rules, whereby candidates appointed as lecturers in Engineering Colleges on or before 27-3-1990 and who had completed 45 years of age, are exempted from acquiring Ph.D. degree for becoming eligible for appointment as Professor, Joint Director (Engineering College Stream) and Director of Technical Education and candidates applying for the post of Assistant professor are exempted from possessing Ph.D degree subject to the condition that they acquire Ph.D. degree within seven years of appointment. W.P(C) No. 4468/2005 was filed immediately thereafter challenging Rule 6A of the amended Rules, by a teacher. While that writ petition was pending, by Ext. P4 dated 15-4-2008, the Government invited applications from Assistant Professors of Government Engineering Colleges in the State of Kerala for appointment to the post of Professor. Qualifications stipulated were those as per the Special Rules with the relaxation as per Rule 6A. The petitioners and individual respondents applied. Ext. P5 list of qualified candidates were published and later Ext. P8 select list was published, in which the party respondents were ranked above the petitioners. The individual respondents do not possess the qualification of Ph.D prescribed by the AICTE as an essential qualification for appointment as Professor, whereas the petitioners do possess all the qualifications stipulated as per the norms of the AICTE. Out of the individual respondents, the 8th respondent did not possess the qualifications even with the relaxation, although he possessed Ph.D. Yet, all of them were included in the select list, that too, above the petitioners. It is W.P.C. No. 4468/2005 etc. -: 4 :- under the above circumstances, the petitioners have approached this Court with these writ petitions. In W.P(C) Nos. 4468/2005, 20554, 31862 and 31886 of 2008, the petitioners are challenging the validity of Rule 6A and in all the writ petitions except W.P(C) No. 31502/2007, the petitioners are challenging the select list prepared for appointment also. W.P(C) No. 31502/2007 deals with a different issue, but a decision in the other cases in favour of the petitioners therein would automatically result in that writ petition being dismissed. Therefore, I shall deal with that writ petition separately, after deciding the issue involved in the other writ petitions.
4. Before going into the validity of the amended Rule 6A, I note that the Government themselves have cancelled the select list, apparently realising the fact that at least one person who does not possess even the relaxed qualifications has been included in the select list.
5. The contention of the petitioners is that the All India Council of Technical Education Act, 1987, being a legislation enacted by the Parliament in exercise of their powers under Entry 66 of List I of the VIIth Schedule to the Constitution of India, on the subject of "Co- ordination and determination of standards in institutions for higher education or research and scientific and technical institutions", the norms stipulated by the AICTE prescribing minimum qualifications for the teaching faculty in Engineering Colleges, in exercise of powers conferred on them under sub sections (i), (k) and (u) of Section 10 of the AICTE Act, would override the qualifications prescribed by a State legislation, in view of Articles 246 and 254 of the Constitution of India. The petitioners would submit that Rule 6A of the Special Rules framed by the State of Kerala in respect of qualifications of teaching staff of Engineering Colleges on a subject enumerated in list II of the VIIth schedule being repugnant to the qualifications prescribed by the W.P.C. No. 4468/2005 etc. -: 5 :- AICTE in exercise of their powers under the AICTE Act is constitutionally invalid. They further point out that respondents 4 to 7 and 9 to 10 have ceased to be even qualified to hold the post of Assistant Professor since they were promoted as such with the condition that they shall acquire the qualification of Ph.D within 7 years as stipulated in the Special Rules and although those 7 years are long over, they are yet to acquire the qualification of Ph.D. According to the petitioners, candidates who are not qualified to continue in the feeder category for promotion to the post of Professor is not entitled even to be considered for such promotion. They point out another anomaly in the two sub rules of Rule 6A. In sub rule (1) of Rule 6A applicable to the post of professor, persons without Ph.D are made eligible for consideration for promotion, whereas in sub rule (2) of Rule 6A, even though candidates who do not possess Ph.D. are made eligible for consideration for appointment to the post, they have to acquire the qualification of Ph.D. within 7 years of appointment to the post. According to the petitioners, the Government have decided to implement the AICTE Scheme as a package in the State, and as required under the Scheme amended the Special Rules also in tune with the norms regarding qualifications of faculty prescribed by the AICTE, availing of the financial benefits offered by the Central Government as part of the package. After availing of the financial assistance which is part of the package, they cannot dilute the qualifications against the norms, which would amount to a fraud on the AICTE and the Government of India, the petitioners contend. They also rely on various decisions of the Supreme Court, which upholds the Central legislations like AICTE Act on the subject under Entry 66 of List I and its overriding effect on State legislations affecting the standards of education in institutions for higher education or research and scientific and technical institutions. W.P.C. No. 4468/2005 etc. -: 6 :-
6. In answer, the State of Kerala would contend that the legislative competence of the State legislature to frame Rule 6A is traceable to Entry 41 in List II of the VIIth schedule and Article 309 of the Constitution of India. According to them, in exercise of powers conferred on the State by the Constitution of India, the State legislature enacted the Public Services Act, 1968 to regulate the recruitment and conditions of service of persons to public services and posts in connection with the affairs of the State of Kerala. Section 2 of the Act confers power on the Government to make Rules and Exts. P2 and P3 Special Rules have been framed in exercise of that power, which is not curtailed by Entry 66 of list I. According to the State, the stipulations in Ext. P7 Scheme is, in any event, not a statutory mandate, but is only a recommendation, which is not binding on the State. They would further contend that such recommendations would become a law only if the same is incorporated in a Regulation framed by the AICTE in exercise of their powers under Section 23 of the AICTE Act, which has not yet happened. They also rely on two Supreme Court decisions in relation to similar rules in respect of medical education and dental education as also a Madras High Court decision in respect of Technical Education itself.
7. Originally, the AICTE, although they were included as 11th respondent in the writ petition, had not filed any counter affidavit. Since the applicability of the norms stated to be prescribed by them under the AICTE Act was the issue involved in the writ petition, by order dated. 31-7-2009, this Court directed the AICTE to file a counter specifically addressing themselves to the 6 questions formulated by the Court. They have filed a counter affidavit in which they have stated thus:
'"2) All India Council for Technical Education (AICTE) was W.P.C. No. 4468/2005 etc. -: 7 :- established by an Act of Parliament (Act 52 of 1987), hereinafter called the Act only, with a view to proper planning and co- ordinated development of the Technical Education System throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and regulation and proper maintenance of norms and standards in the Technical Education System and for matters connected therewith. Section 10 reads as follows:
"It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical and management education and maintenance of standards and for the purpose of performing its function under this Act, the Council may:
(j) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualification, quality instructions, assessment and examinations;
(k) grant approval for starting new technical institutions for introduction of new courses or programmes in consultation with the agencies concerned".
In accordance with the above provisions of the Act, the Council also notified Regulations under Section 23 of the Act read with 10
(b), (g), (i), (k), (p) and (r) and Section 11 of the Act vide Notification No. 37-3/Legal/2006 dated 14.9.2006, prescribing the procedures, conditions for grant of approval to technical institutions in the country. Para 2.7.1.7(a) of the said Regulations stipulates that technical institutions are expected to submit a compliance report in the prescribed format along with mandatory disclosure information providing complete details of infrastructural, instructural and other facilities, including faculty, based on which the Council considers for grant of extension of approval, starting of additional courses, increase in intake in the existing AICTE approved institutions. The details of insfrasturctural and instructional facilities and faculty along with faculty norms and their qualifications have been prescribed in the Approval Process Handbook, which is being duly published by the Council even now as a legal document as per the above referred Notification dated 14.9.2006. Photocopy of relevant pages of Notification No. F-37-3/Legal/2006 dated 14.9.2006 is produced herewith and marked as Exhibit R5(a).
3) Further, the Council has been empowered under Section 10(i) of the Act to prescribe norms and standards, staff pattern and staff qualifications as part of the norms and standards in technical institutions. In accordance with these provisions, the Council has prescribed staff qualifications along with the revised pay scale based on V Pay Commission vide Notification No.1- 65/CD/NEC/98-99 dated 15.3.2000 and 3.5.2000 separately for W.P.C. No. 4468/2005 etc. -: 8 :- Government Institutions and Private Self-financing Institutions.
4) In the light of the above background, the questions raised by this Honourable Court are answered hereunder:-
Q.1 Whether the qualifications contained in Exhibit P7 have been prescribed as Regulations?
A. Yes. The staff regulations are included in the Approval Process Handbook as a legal document as per AICTE Notification No. 31-3- Legal/2006 dated 14.9.2006 under Section 23 of AICTE Act for grant of approval to Technical Institutions, additional Courses etc. Therefore the staff qualifications prescribed by AICTE are issued as part of norms and standards to be complied by all Technical Institutions coming under the purview of AICTE.
Q.2. Whether the qualifications prescribed by Exhibit P7 are statutory in nature?
A. The AICTE has been empowered under Section 10(i) i.e. to lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examination. Therefore, the Qualifications prescribed by AICTE for various faculty positions as part of norms and standards to be complied by all technical institutions, coming under the purview of AICTE.
Q3. Whether the norms prescribed by Exhibit P7 are binding on State Government and the College?
A. Yes. The qualifications issued by AICTE for appointment of faculty positions at various levels are binding on all Technical Institutions of State Government as well as Self-financial Technical Institutions.
Q4. Whether the Government is bound by the norms prescribed by Exhibit P7 in view of the agreement stated to have been executed by the Government for implementing the AICTE Scheme?
A. Yes Q5. Whether, if Government does not follow the stipulations in Exhibit P7 regarding the qualifications prescribed for the Teachers, any sanction is contemplated?
A. The letters of approval issued to Technical institutions by AICTE provide a specific condition that the teaching faculty shall be appointed in accordance with the norms prescribed by the Council. The Technical Institutions not conforming to the staff norms prescribed by AICTE are liable for action, including withdrawal of approval.W.P.C. No. 4468/2005 etc. -: 9 :-
Q6. Whether, if the Government prescribes qualifications other than Exhibit P7, AICTE has any powers to enforce the norms in Exhibit P7?
A. Since AICTE is a statutory body set up under a Central Act (Act 52 of 1987) has overriding effect over State Government in the matters concerning norms and standards, the State Government have no authority to prescribe different qualifications; other than those prescribed by AICTE. The Council may withdraw its approval to Technical Institutions, if these Institutions fail to abide by the faculty norms and qualifications prescribed by the Council."
8. The party respondents have chosen to adopt the contentions of the State.
9. I have heard arguments on both sides.
10. Before going into the legal aspects involved, I am constrained to state that I am thoroughly disappointed with the attitude of the State in the matter. It is not any more a secret that standards of education, particularly in the field of professional courses, are going down in the State or perhaps in the country as a whole. It is to safeguard the standards of professional education in the country that the Parliament has enacted various central legislations creating expert central bodies in the matter of professional education clothing them with the power to prescribe norms and standards for professional education in the country. The State of Kerala is also duty bound to take all steps to enhance the standards of professional education in the State. I am dismayed to find that in order to give service benefits to a few teachers in Engineering Colleges in the State, who could not admittedly enhance their professional competence by acquiring Ph.D degree in their discipline, is prepared to sacrifice the standards of education in Engineering Colleges, that too, defying the central expert body, namely, the AICTE. According to me, this is unbecoming of a State W.P.C. No. 4468/2005 etc. -: 10 :- Government. To add to that, the Government has, after finding that the 8th respondent is not qualified even going by the exemption granted by the amended Rule 6A of the Special Rules, included him in the select list. They had the temerity to publish such an unsustainable select list even after the writ petitions were filed. It was only when the writ petition was amended challenging the select list also, they cancelled the select list. I wonder where the priorities of the Government lie. Is it in the enhancement of the standards of professional education in the State and the welfare of the students or is it with a few teachers who have proved themselves to be not up to the task of obtaining the requisite qualifications, although they were aware of the requirement at least in 2000? I am of opinion that if we are to enhance the standards of education in the country very strict implementation of prescribed standards are called for, regardless of the loss of service benefits to a few teachers. Instead, the Government are vehemently advocating the necessity to confer undeserved service benefits on a few teachers, at the expense of standards of education in the State and welfare of the students, which should have been their first preference.
11. I am also dismayed to find that the Government is prepared to go back on their commitment to the AICTE and the Government of India in the matter of implementation of the AICTE Scheme merely to confer some benefits to a few teachers, who could not secure the qualification of Ph.D prescribed by the AICTE. They had decided to implement Ext. P7 scheme of the AICTE as a package, availing of the financial benefits offered by the Central Government, for availing of which they had undertaken to make amendment to their Special Rules regarding qualification in tune with those prescribed by Ext. P7. They had, in fact, amended the Special Rules accordingly, by Ext. P2. Thereafter, after the 4 year period of the financial benefit W.P.C. No. 4468/2005 etc. -: 11 :- offered by the Central Government was over, they had gone back on their promise and diluted the qualifications merely to give service benefits to a few teachers. While doing so, in their additional counter affidavit dated 20-8-2009, they had the temerity to disown Ext. P7 by stating that the State has not executed any agreement for implementing the AICTE Scheme. That is downright dishonest on the part of the State. That may even be described as a fraud on the AICTE and the Central Government and consequently on the Constitution of India and the people of the country. I am of opinion that this attitude of the State Government should be condemned in the strongest terms.
12. I shall now deal with the legal questions involved. First, I shall deal with the contentions of the State on the basis of the decisions of the Supreme Court in Government of Andhra Pradesh and another v. Dr. R. Murali Rao and another, (1988) 2 SCC 386, and Dr. Sandhya Jain (MRS) v. Dr. Subhash Garg and another, (1999) 8 SCC 449. The contention raised is that in that decision, the Supreme Court has held that promotions in service are to be made in accordance with the rules framed under the proviso to Article 309 and not in accordance with recommendations of an expert body such as Indian Medical Council, and that rules framed under the proviso to Article 309 would override conflicting recommendations made to the Government by any expert body. The argument is that going by the ratio of that decision, the qualifications prescribed in the Special Rules framed by the State in exercise of powers under Article 309 of the Constitution of India would override the stipulations regarding qualifications made by the AICTE and therefore Rule 6A would hold good notwithstanding the norms prescribed by the AICTE regarding qualifications, especially since the norms have not become law through Regulations framed under Section 23 of the AICTE Act. W.P.C. No. 4468/2005 etc. -: 12 :-
13. Although, at first blush, the argument may appear attractive, I am of opinion that the ratio of that decision has to be understood in the backdrop of the provisions of the Indian Medical Council Act, 1956 and the powers of the Medical Council. Under the India Medical Council Act, unlike the AICTE Act, the powers of the Medical Council are very limited. The Council can prescribe minimum standards of medical education under Section 19A of the Act which reads thus:
"19A. Minimum standards of medical education.- (1) The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than post-graduate medical qualifications) by Universities or medical institutions in India.
(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or any amendment thereof, as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(3) The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit."
But under the said provision, the Medical Council has no powers to enforce the minimum standards prescribed by them. They cannot on their own take action against colleges who do not implement the minimum standards. They can only recommend action to the Government against erring colleges under Section 19 of the Act, which reads thus:
"19. Withdrawal of recognition.- (1) When upon report by the Committee or the visitor, it appears to the Council-
(a) that the courses of study and examination to be undergone in, or the proficiency required from candidates at any examination, held by, any University or medical institution, W.P.C. No. 4468/2005 etc. -: 13 :- or
(b) that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such University or medical institution or in any college or other institution affiliated to that University, do not conform to the standards prescribed by the Council, the Council shall make a representation to that effect to the Central Government.
(2) After considering such representation, the Central Government may send it to the State Government of the State in which the University or medical institution is situated and the State Government shall forward it along with such remarks as it may choose to make to the university or medical institution, with an intimation of the period within which the University or medical institution may submit its explanation to the State Government.
(3) On the receipt of the explanation or, where no explanation is submitted within the period fixed, then on the expiry of that period, the State Government shall make its recommendations to the Central Government.
(4) The Central Government, after making such further inquiry, if any, as it may think fit, may, by notification in the Official Gazette, direct that an entry shall be made in the appropriate Schedule against the said medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date or that the said medical qualification if granted to students of a specified college institution affiliated to any University shall be a recognised medical qualification only when granted before a specified date or, as the case may be, that the said medical qualification shall be a recognised medical qualification in relation to a specified college or institution affiliated to any University only when granted after a specified date."
In Sandhya Jain's case (supra), although Dr. R. Murali Babu Rao's case (supra) was referred to, it was not necessary to apply the ratio of that decision since in that case, no stipulations of the Dental Council were violated as is clear from the following sentences in paragraph 8 of the judgment:
" . . . . . That apart, no provisions of the Dental Council's Regulations were placed before us to indicate that there is an embargo for appointing two Readers from the same discipline in a W.P.C. No. 4468/2005 etc. -: 14 :- particular dental college. If there is no provision in the Dental Council Regulations prohibiting appointment of two Readers in a particular discipline in a dental college and the Recruitment Rules framed under Article 309 of the Constitution being also silent inasmuch as it does not indicate as to how the fifth post of Reader will be filled up, then the same can be filled up by an administrative decision of the Government and such a decision cannot be held to be repugnant to the provisions of the Dental Council Regulations. . . . . ."
In that decision, an argument was also raised that Murali Babu Rao's case was no longer good law in view of the Constitution Bench decision in the case of Preeti Srivastava (Dr) v. State of M.P (1999) 7 SCC 120. But, the Supreme Court did not pronounce on the said contention, since, according to the Court, in Sandhya Jain's case, there was no conflict between the rule under Article 309 and the norms fixed by the Central body. Therefore, that decision is not relevant for our purpose.
14. I am of opinion that Murali Babu Rao's case is clearly distinguishable insofar as there is no comparison between the provisions of the Indian Medical Council Act and the AICTE Act. As is clear from the Indian Medical Council Act, it is a recommendatory body and the Council does not have powers to take any action against an erring institution who do not conform to the minimum standards prescribed by them. Under Section 10A of the Act, which itself was introduced in 1992, the permission required to establish a medical college or to start new courses or increase admission capacity is that of the Central Government and not that of the Council. There also, it can recommend to the Government of India to withdraw recognition granted to the institution. On the other hand, under the AICTE Act, the Council has definite and wide powers of their own in the matter of enforcing the provisions of the Act and the norms prescribed by them. It is not merely a recommendatory body at all. The Act makes it the duty of the Council to take all such steps as are W.P.C. No. 4468/2005 etc. -: 15 :- necessary for ensuring co-ordinated and integrated development of technical education and maintenance of standards. The functions of the Council are enumerated in Section 10 of the Act. Sub sections (i),
(k) and (u) are relevant for our purposes, which read thus:
"10. Functions of the Council.-- (1) It shall be the duty of the Council to take all such steps as it may think fit for ensuring co- ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may,--
xx xx xx
(i) lay down norms and standards for courses, curricula,
physical and instructional facilities, staff pattern, staff
qualifications, quality instructions, assessment and examinations;
xx xx xx
(k) grant approval for starting new technical institutions and
for introduction of new courses or programmes in consultation with the agencies concerned;
xx xx xx
(u) set up a National Board of Accreditation to periodically
conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it and to make recommendation to it, or to the Council, or to the Commission or to other bodies, regarding recognition or de- recognition of the institution or the programme;
xx xx xx"
Unlike in the case of medical colleges, in the case of technical institutions the authority to grant approval for starting new technical institutions and for introduction of new courses or programmes is the Council itself and not the Government. The power to grant approval includes the power to withdraw the approval also. In fact, Regulation 12 of the AICTE (Grant of approval for starting new Technical institutions, introduction of courses or programmes and approval of intake capacity for the courses or programmes) Regulations, 1994, W.P.C. No. 4468/2005 etc. -: 16 :- recognises the power to withdraw approval. The said regulation reads thus:
"12. Withdrawal of approval:- If any technical institution including University, University Department or deemed University or College contravenes any of the provisions of these regulations, the Council may, after making such inquiry as it may consider appropriate and after giving the technical institution concerned an opportunity of being heard, withdraw the approval granted under these regulations."
The very same power has been incorporated in Regulation 11 of the successor to the said Regulations, namely, the All India Council for Technical Education (AICTE) Grant of Approval for Starting New Technical Institutions, Introduction of Courses or Programmes and Increase/Variation of Intake Capacity of Seats for the Courses or Programmes and Extension of Approval for the Existing Technical Institutions Regulations, 2006. Therefore, the powers of the AICTE are not comparable to that of the Medical Council and therefore the ratio of the decision in Murali Babu Rao's case based on the powers of the Medical Council under the Indian Medical Council Act cannot be applied to AICTE.
15. In any event, I am of opinion that the ratio of Murali Babu Rao's case is no longer good law in view of the Constitution Bench decision in Preeti Srivastava (Dr) v. State of M.P, (1999) 7 SCC
120. In Murali Babu Rao's case, a two Judge bench of the Supreme Court held that recommendations made by the Indian Medical Council or the Regulations made by it are only recommendatory and not mandatory. But in Preeti Srivastava's case, after noting the decision in Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401, wherein it was held that the power of Indian Medical Council to prescribe the minimum standards of W.P.C. No. 4468/2005 etc. -: 17 :- medical education at post-graduate level was only advisory and not of a binding nature, a Constitution Bench of the Supreme Court has held thus:
"55. We do not agree with this interpretation put on Section 20 of the Indian Medical Council Act, 1956. Section 20(1) (set out earlier) is in three parts. The first part provides that the Council may prescribe standards of postgraduate medical education for the guidance of universities. The second part of sub- section (1) says that the Council may advise universities in the matter of securing uniform standards for postgraduate medical education throughout. The last part of sub-section (1) enables the Central Government to constitute from amongst the members of the Council, a Postgraduate Medical Education Committee. The first part of sub-section (1) empowers the Council to prescribe standards of postgraduate medical education for the guidance of universities. Therefore, the universities have to be guided by the standards prescribed by the medical council and must shape their programmes accordingly. The scheme of the Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council. For example, the medical qualifications granted by a university or a medical institution have to be recognised under the Indian Medical Council Act, 1956. Unless the qualifications are so recognised, the students who qualify will not be able to practise. Before granting such recognition, a power is given to the Medical Council under Section 16 to ask for information as to the courses of study and examinations. The universities are bound to furnish the information so required by the Council. The Postgraduate Medical committee is also under Section 17, entitled to appoint Medical Inspectors to inspect any medical institution, college, hospital or other institution where medical education is given or to attend any examination held by any university or medical institution before recommending the medical qualification granted by that university or medical institution. Under Section 19, if a report of the Committee is unsatisfactory the Medical Council may withdraw recognition granted to a medical qualification of any medical institution or university concerned in the manner provided in Section 19. Section 19-A enables the Council to prescribe minimum standards of medical education required for granting recongised medical qualifications other than postgraduate medical qualifications by the universities or medical institutions, while Section 20 gives a power to the Council to prescribe minimum standards of postgraduate medical education. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act. We, therefore disagree with and overrule the finding given in Ajay Kumar Singh v. State of Bihar W.P.C. No. 4468/2005 etc. -: 18 :- to the effect that the standards of postgraduate medical education prescribed by the Medical Council of India are merely directory and the universities are not bound to comply with the standards so prescribed.
56. In State of M.P. v. Nivedita Jain the provisions of the Indian Medical Council Act and the regulations framed for undergraduate medical courses were considered by the Court. The Court siad that while Regulation I was mandatory, Regulation II was only recommendatory and need not be followed. We do not agree with this line of reasoning for the reasons which we have set out above.
57. In the case of Medical Council of India. v. State of Karnataka a Bench of three Judges of this Court has distinguished the observations made in Nivedita Jain. It has also disagreed with Ajay Kumar Singh v. State Bihar and has come to the conclusion that the Medical Council regulations have a statutory force and are mandatory. The Court was concerned with admissions to the MBBS course and the regulations framed by the Indian Medical Council relating to admission to the MBBS course, The Court took note of the observations in State of Kerala v. T.P. Roshana (SCC p.580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observances. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent sub-standard entrance qualifications for medical courses. These observations would apply equally to postgraduate medical courses. We are in respectful agreement with this reasoning."
(underlining supplied)
16. Of course, in that decision, the Supreme Court was dealing with the qualifications prescribed for admission to post-graduate medical courses and in Murali Babu Rao's case, the Supreme Court was dealing with qualifications prescribed by the State for appointment as teachers in exercise of powers under Article 309 of the Constitution of India. But, in Preeti Srivastava's case itself, the Supreme Court held that standards of education in an institution or college depend upon various factors including the caliber of the teaching staff. This is what the Court said in paragraphs 36 and 37 of W.P.C. No. 4468/2005 etc. -: 19 :- that decision:
"36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of education in the given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds available to each student;
(5) the calibre of the students admitted to the institution;
(6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges;
(7) adequate accommodation for the college and the attached hospital; and (8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.
37. While considering the standards of education in any college or institution, the calibre of students who are admitted to that institution or college cannot be ignored. If the students are of a high calibre, training programmes can be suitably moulded so that they can receive the maximum benefit out of a high level of teaching. If the calibre of the students is poor or they are unable to follow the instructions being imparted, the standard of teaching necessarily has to be lowered to make them understand the course which they have undertaken; and it may not be possible to reach W.P.C. No. 4468/2005 etc. -: 20 :- the levels of education and training which can be attained with a bright goup. Education involves a continuous interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much as on the calibre of the students as on the calibre of the teachers and the availability of adequate infrastructural facilities. That is why a lower student- teacher ratio has been considered essential at the level of higher university education, particularly when the training to be imparted is a highly professional training requiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their postgraduate courses."
(underlining supplied) Therefore, if standards of education depend upon the quality of the teachers as well, the minimum qualifications prescribed for appointment as teachers would form an integral part of the standards of education. If that be so, the above decision would be equally applicable in the case of prescription of qualifications for teachers in medical colleges prescribed by the Indian Medical Council. Resultantly, the qualifications prescribed by the Medical Council for teachers in medical colleges would be mandatory and binding on the State Governments. Therefore, the decision in Murali Babu Rao's case (supra) is no longer good law in view of the decision of the Constitution Bench in Preeti Srivastavas case (supra).
17. The learned Government Pleader would contend that the ratio of the decision in Preeti Srivastava's case cannot be relied upon in cases relating to fixation of qualifications of teachers. He would submit that that decision was considering laws made on the subject of "co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" enumerated in Entry 66 of List I of the 7th Schedule to the Constitution vis-a-vis legislation by the State on the subject of 'Education, including technical education, medical education and universities' enumerated in Entry 25 of List III thereof. W.P.C. No. 4468/2005 etc. -: 21 :- He points out that Entry 25 in List III is expressly made subject to the provisions of Entry 66 of List I. According to him, under Entry 41 of List II, the State has power to legislate on the subject of State Public Services', which is not qualified by the words 'subject to entry 66 of List I', unlike Entry 25 of List III' and therefore the State's power to legislate on qualifications for appointment of teachers in colleges under the State is not curtailed by Entry 66 of List I. He further points out that Article 309 of the Constitution further recognises the power of the State to frame rules regulating the recruitment and conditions of service of persons appointed to State services, which cannot be curtailed by Entry 66 of List I or legislation made thereunder. While considering this argument, it is necessary to look at the scope of Articles 246, 254 and 309. The three Articles read thus:
"246. Subject-matter of laws made by Parliament and by the Legislatures of States.- (1) Notwithstanding anything in clauses (2) and (3) Parliament has exclusive power to make laws with respect of any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule ( in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2) the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule in this Constitution referred to as the 'State List').
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.
xx xx xx W.P.C. No. 4468/2005 etc. -: 22 :-
254. Inconsistency between laws made by Parliament and laws made by the Legislature of States. - (1) if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
xx xx xx
309. Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of services of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
Article 309 starts with the words 'Subject to the provisions of this Constitution". Therefore, Article 309 is subservient to Articles 246 and 254. I do not have to labour much for finding out the law on the W.P.C. No. 4468/2005 etc. -: 23 :- subject, since the same is covered by many decisions of the Supreme Court. Suffice it to quote some paragraphs from one of the comparatively recent decisions, viz. Government of A.P. and another v. J.B. Educational Society and another, (2005) 3 SCC 212, in which the Supreme Court held thus in paragraphs 9 to 12:
"9. Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I, notwithstanding anything contained in clauses (2) and (3) of Article 246. The non obstante clause under Article 246(1) indicates the predominance or supremacy of the law made by the Union Legislature in the event of an overlap of the law made by Parliament with respect to a matter enumerated in List I and a law made by the State Legislature with respect to a matter enumerated in List II of the Seventh Schedule.
10. There is no doubt that both Parliament and the State Legislature are supreme in their respective assigned fields. It is the duty of the court to interpret the legislations made by Parliament and the State Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable and the two enactments are irreconcilable, then by the force of the non- obstante clause in clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State List.
11. With respect to matters enumerated in List III (Concurrent List), both Parliament and the State Legislature have equal competence to legislate. Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State Legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such conflict.
12. Thus, the question of repugency between the parliamentary legislation and the State legislation can arise in two ways. First where the legislations though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the second, by reason of Article 254(1). Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a W.P.C. No. 4468/2005 etc. -: 24 :- legislation to override even such State legislation."
Therefore, if a legislation made by the State on the subject enumerated in Entry 41 of List II overlaps and conflicts with a legislation by the Parliament on the subject enumerated in Entry 66 of List I, then the law made by the Parliament would prevail. Since Article 309 also is subject to the provisions of the Constitution, a rule made under the proviso to Article 309 also has to give way to a legislation made by the Parliament if the rule overlaps and conflicts the central legislation, by virtue of Article 254.
18. Therefore, the question is whether a rule prescribing qualifications of teachers in engineering colleges in the State on the subject of State Public Services or in exercise of powers under the proviso to Article 309 of the Constitution is repugnant to a legislation made on the subject of "co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions". In K.S.E.B. v. Indian Aluminium Cio. Ltd., (1976) 1 SCC 446, the Supreme Court held that when an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect, notwithstanding the entry in List II. Entry 41 in List II viz, "State public services; State Public Service Commission" is in general terms and Entry 66 in List I is in specific terms forming part of Entry 41 in List II insofar as service in Engineering Colleges under the State Government is concerned as discussed above and therefore Entry 66 of List I would prevail over Entry 41 of List II. The fact that the AICTE Act was enacted by virtue of powers under Entry 66 of the Union List is settled by decisions of the Supreme Court of India. In paragraph 5 of J.B. Educational Society's case, the Supreme Court held thus:
W.P.C. No. 4468/2005 etc. -: 25 :-
"5. The AICTE Act was enacted by Parliament by virtue of the powers under Entry 66 of the Union List wherein exclusive power is vested with the Central Government with regard to technical education. The AICTE Act was enacted with the object of regulating and coordinating the development of technical education throughout the country and also for establishment of proper and uniform norms and standard of technical education in India. Under Section 3, the Central Government shall appoint a Council called All India Council for Technical Education and under Section 10 of the Act, the Council has the following powers and functions:"
After examining he various provisions of the AICTE Act, the Supreme Court has, in the decision of State of T.N. and another v. Adhiyaman Educational and Research Institute and others, (1995) 4 SCC 104 held thus in paragraph 22:
"22. The aforesaid provisions of the Act including its preamble make it abundantly clear that the Council has been established under the Act for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. The Council is also required to regulate and ensure proper maintenance of norms and standards in the technical education system. The Council is further to evolve suitable performance appraisal system incorporating such norms and mechanisms in enforcing their accountability. It is also required to provide guidelines for admission of students and has power to withhold or discontinue grants and to de-recognise the institutions where norms and standards laid down by it and directions given by it from time to time are not followed. This duty and responsibility cast on the Council implies that the norms and standards to be set should be such as would prevent a lopsided or an isolated development of technical education in the country. For this purpose, the norms and standards to be prescribed for the technical education have to be such as would on the one hand ensure development of technical educational system in all parts of the country uniformly; that there will be a coordination in the technical education and the education imparted in various parts of the country and will be capable of being integrated in one system; that there will be sufficient number of technically educated individuals and that their growth would be in a planned manner; and that all institutions in the country are in a position to properly maintain the norms and standards that may be prescribed by the Council. The norms and standards have, therefore, to be reasonable and ideal and at the same time, adaptable, attainable W.P.C. No. 4468/2005 etc. -: 26 :- and maintainable by institutions through the country to ensure both quantitative and qualitative growth of the technically qualified personnel to meet the needs of the country. Since the standards have to be laid down on a national level, they have necessarily to be uniform throughout the country without which the coordinated and integrated development of the technical education all over the country will not be possible which will defeat one of the main objects of the statute. This country as is well known, consists of regions and population which are at different levels of progress and development or to put it differently at differing levels of backwardness. This is not on account of any physical or intellectual deficiency but for want of opportunities to develop and contribute to the total good of the country. Unnecessarily high norms or standards, say for admission to the educational institutions or to pass the examinations, may not only deprive a vast majority of the people of the benefit of the education and the qualification, but would also result in concentrating technical education in the hands of the affluent and elite few and in depriving the country of a large number of otherwise deserving technical personnel. It is necessary to bear this aspect of the norms and standards to be prescribed in mind, for a major debate before us centred around the right of the States to prescribe standards higher than the one laid down by the Council. What is further necessary to remember is that the Council has on it representatives not only of the States but also of the State Universities. They have, therefore, a say in the matter of laying down the norms and standards which may be prescribed by the Council for such education from time to time. The Council has further the Regional Committees, at present, at least, in four major geographical zones and the constitution and functions of the Committees are to be prescribed by the regulations to be made by the Council. Since the Council has the representation of the State and the professional bodies on it which have also representation from different States and regions, they have a say in the constitution and functions of these Committees as well. What is further important to note is that the subject covered by this statute is fairly within the scope of Entry 66 of List I and Entry 25 of List III. Further, these regulations along with other regulations made by the Council and the rules to be made by the Central Government under the Act are to be laid before Parliament. Hence, on the subjects covered by this statute, the State could not make a law under Entry 11 of List II prior to the Forty-second Amendment nor can it make a law under Entry 25 of List III after the Forty-second Amendment. If there was any such existing law immediately before the commencement of the Constitution within the meaning of Article 372 of the Constitution, as the Madras University Act, 1923, on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution."W.P.C. No. 4468/2005 etc. -: 27 :-
Again in paragraph 32 of the same decision, the Supreme Court held thus on the scope of Entry 66 in List I:
"32. As pointed out earlier, so far as technical institutions are concerned, the norms and standards and the requirements for their recognition and affiliation respectively that the State Government and the University may law down, cannot be higher than or be in conflict and inconsistent with those laid down by the Council under the Central Act. Once it is accepted that the whole object of the Central Act is to determine the coordinate the standards of technical education throughout the country, to integrate its development and to maintain certain standard in such education, it will have to be held that such norms, standards and requirements etc. will have to be uniform throughout the country. Uniformity for the purposes of coordinated and integrated development of technical education in the country necessarily implies a set of minimum standards the fulfilment of which should entitle an institution and its alumni, titles, degrees and certificates to recognition anywhere in the country. It is true that the higher than the minimum standard implies compliance with the minimum standard. But as has been aptly pointed out by Justice Rau while dealing with the meaning of repugnancy in G.P.Stewart v. Brojendra Kishore Roy Chaudhury, AIR 1939 Cal. 628 which is a decision approved by this Court in Tika Ramji v. State of U.P., AIR 1956 S.C 676.
"It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says "do" and the other "don't", there is no true repugnancy, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test; there may well be cases of repugnancy where both laws say "don't" but in different ways. For example, one law may say "No person shall sell liquor by retail, that is, in quantities of less than five gallons at a time" and another law may say, "No person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time." Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely the second one; yet it is equally obvious that the two laws are repugnant, for to the extent of which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified. This was the type of repugnancy that arose for consideration in Attorney General for Ontario v. Attorney General for the Dominion of Canada. 1896 AC 348."
In that decision, the Supreme Court again held in paragraph 41(i) W.P.C. No. 4468/2005 etc. -: 28 :- thus:
"(i) The expression 'coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention."
From the above, it is abundantly clear that in order to achieve the objects envisaged in Entry 66 of List I and the AICTE Act, the power to prescribe the qualifications of teachers of technical institutions have to be exclusively on the AICTE to the complete exclusion of the State notwithstanding the power of the State Government to frame rules under the proviso to Article 309 or Entry 41 of list I in respect of public services under the State.
19. The remaining question then is as to whether the fixation of qualifications of teachers in engineering colleges has any relation to standards of education in institutions for higher education. To my mind, this issue is also more or less settled by the decisions of the Supreme Court. In the decision of Prof. Yashpal and another v. State of Chhatisgarh and others, (2005) 5 SCC 420, the Supreme Court held thus in paragraphs 31 to 33.
"31. In Osmania University Teachers' Assn. v. State of A.P, (1987) 4 SCC 671, the Court reiterated that it was the exclusive responsibility of the Central Government to determine the standards for higher education and the same should not be lowered at the hands of any particular State as it was of great importance to national progress. After referring to the Constitution Bench decision in Kerala SEB v. Indian Aluminum Co.
Ltd., (1976) 1 SCC 446, where it was held that when an entry is in general terms in List II and part of that entry is in specific terms W.P.C. No. 4468/2005 etc. -: 29 :- in List I, the entry in List I takes effect notwithstanding the entry in List II, the Court as under in para 14 of the Report : (SCC p.676).
"14. Entry 25 List III relating to education including technical eduction, medical eduction and universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher eduction in the country is maintained. The standard of higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to coordinate and determine the standards for higher eduction. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a coordinate action in higher eduction with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to 'education' has been distributed between List I and List III of the Seventh Schedule."
32. The interplay of Entry 66 List I and Entry 25 List III was again examined by a Constitution Bench in Preeti Srivastava (Dr.) v. State of M.P. (1999) 7 SCC 120 in the context of lowering of standards by the State for admission to a postgraduate course in a medical college and it was held that the State cannot while controlling education in the State impinge on standards in institutions for higher education because this is exclusively within the purview of the Union Government. While considering the question whether norms for admission have any connection with the standards of education and that they are only covered by Entry 25 of List III, it was observed that any lowering of the norms of admission does have an adverse effect on the standards of education in the institutions of higher education. The standard of education in an institution depends on various factors like (I) the calibre of teaching staff (ii) a proper syllabus designed to achieve a high level of education in a give span of time; (iii) the student- teacher ratio;' (iv) equipment and laboratory facilities; (v) calibre of the students admitted; (vi) adequate accommodation in the institution; (vii) the standard of examinations held including the manner in which the papers are set and examined; and (viii) the evaluation of practical examinations done. It was pointed out that education involves a continuous interaction between the teachers and the students. The base of teaching, level to which teaching can rise and the benefit which the students ultimately receive depends as much on the calibre of the students as on the calibre of the teachers and the availability of adequate infrastructural facilities.
33. The consistent and settled view of this Court, therefore, is that in spite of incorporation of universities as a W.P.C. No. 4468/2005 etc. -: 30 :- legislative head being in the State List, the whole gamut of the university which will include teaching, quality of education being imparted, curriculum , standard of examination and evaluation and also research activity being carried on will not come within the purview of the State Legislature on account of a specific entry on coordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which Parliament alone is competent. It is the responsibility of Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained."
(underlining supplied) If the standards of education depends on the caliber of teaching staff, then the qualifications prescribed for appointment of teachers would have a direct relation to standards of education. Therefore, if a legislation made by the State Government on the qualifications of teachers of engineering colleges is in conflict with a prescription regarding such qualifications under the AICTE Act, the prescription under the AICTE Act would prevail.
20. The Government Pleader raises another contention that there is no legislative prescription regarding qualifications of teachers in engineering colleges under the AICTE Act, insofar as such qualifications have not been incorporated in Regulations framed under Section 23 of the AICTE Act. According to him, qualifications incorporated in Regulations framed under Section 23 only would be binding on the State Government. He submits that mere instructions by the AICTE would not constitute a binding law.
21. Before going into that question, I would like to dwell upon another aspect of the matter, which has direct relation to that issue. The AICTE Scheme was implemented in the State by G.O.(P) No. 81/90/H.Edn. dated 27-3-1990, which is produced as Ext. P2 in W.P(C) No. 31886/2008, which reads thus:
W.P.C. No. 4468/2005 etc. -: 31 :-
"In the Government Orders read above, Government have ordered, inter alia, to implement the scheme recommended by A.I.C.T.E and approved by Government of India in the letter read above to the teaching staff of Engineering Colleges in Kerala with effect from 1.1.1986.
2. After having examined the scheme in detail, Government are pleased to order that, as recommended by the AICTE and approved by Government of Kerala, the scheme as appended herewith will be made applicable to the teachers of Engineering Colleges in the state with effect from 1.1.1986 on the following terms and conditions.
(i) The Central Government will provide assistance to the State Governments to the extent of 80% of additional expenditure involved in giving effect to the scheme of revision of scales of pay.
(ii) The Central Assistance to the extent indicated above will be available for the period from January 1, 1986 to March, 31, 1990.
(iii) The State Government will meet the remaining 20% of the expenditure from their own resources and will not pass on the responsibility or any portion thereof to the institutions.
(iv) The State Government will take responsibility for maintaining the revised pay scales with effect from April 1, 1990.
(v) Central Assistance will be restricted to the revision of pay scales of the posts which were in existence on January, 1, 1986.
3. The arrears due to revision of pay scales will be credited to the GPF Account of the individuals concerned as laid down in G.O.(P) 480/89/Fin. dated 1.11.1989.
4. Those who come under the scheme will not be eligible for any pay revision made by State Government.
5. The retirement age of those coming under AICTE Scheme will however be continued as per existing rules in the State.
6. Teachers in Humanities and Sciences working in Private Engineering Colleges in the State will be governed by U.G.C norms. (wide pars 22 of Appendix).
7. Academic staff who are occupying administrative posts in the Department of Technical Education will also come under the purview of this order (wide para 24 of appendix and annexure VI). They will be eligible for the corresponding scales of pay from 1.4.1990. These posts will be treated as additions to the respective cadres of academic posts.
W.P.C. No. 4468/2005 etc. -: 32 :-
8. The Director of Technical Education will form a Pay Fixation Cell in the Directorate for clearing anomalies in the revision of scales of pay and publish a ready reckoner.
9. Posts which have been created after 1.1.1986 will also come under the purview of the scheme.
10. All appointments to the Engineering Colleges after 1.4.1990 will be made only according to the qualifications prescribed by A.I.C.T.E.
11. The Director of Technical Education will take appropriate action to get central assistance in accordance with the guidelines fixed by A.I.C.T.E forthwith.
12. Rest of the matters covered in the Appendix will be considered separately and orders issued by Government in due course."
(underlining supplied) At that time itself, the Government had realised that there are some teachers in the Engineering Colleges who did not possess the qualifications prescribed by the AICTE, and made separate provision for them in the Appendix to that order. Clause 6 of the Appendix reads thus:
"6. The existing teachers in Engineering Colleges shall have an option to continue to be governed by the provisions of the existing State Government rules, provided that they exercise that option in writing prior to their pay fixation under the AICTE schemes.
Existing teachers who were either not qualified as per AICTE norms for the posts they were occupying on 1.1.1986 or who were non-cadre professors or non-cadre Asst. Professors as on 1.1.1986 shall have an option to be governed by the provisions of the revised scheme on the following conditions provided that they exercise that option in writing prior to their pay fixation under the AICTE Scheme. They will be entitled to the designation which they were holding on1.1.1986, but their scales of pay will be the lower scales of pay recommended by the AICTE for staff opting to continue under the Merit Promotion Scheme. These scales are;
(i) Lecturer - Rs. 2200-4000
(ii) Assistant - Rs. 3000-5000
professor
W.P.C. No. 4468/2005 etc. -: 33 :-
(iii) Professor - Rs. 3700-5700
(iv) Principal - Rs. 4500-7300
Existing designations of non-cadre professor and non-cadre Asst. professor will cease to exist under this scheme."
Again, in G.O (P) No. 303/90/H. Edn. dated 3-12-1990, the Government ordered thus:
"On the basis of the recommendations of the Committee for the redressal of grievances and rectification of anomalies constituted as per the G.O. read as paper two above, Government are pleased to issue the following further orders in the matter of implementation of the AICTE scheme to the teaching staff of the Engineering Colleges in the State.
1. The appointments/promotions made up to 28-2-1989 viz. the date of issue of orders relating to the AICTE Scales of pay, will be protected. This is subject to the specific condition that the scale of pay on the basis of which their salary in the AICTE scales is to be fixed will be the 1983 pay scales of the State, and that the benefit of the 1988 pay revision will not be available to them. In the case of those promoted from 1.1.1986 to the date of issue of orders by the AICTE the benefit of revision will be available only from the date of promotion.
2. Those who are occupying cadre posts as well as non-cadre posts (both Professors and Assistant professors) as on 28-2-1989 will retain their designations and will be eligible for the AICTE scales of pay, viz. Rs. 4500 - 7300 to Professors and Rs. 3700 - 5700 to Assistant professors irrespective of their qualifications. The scales under para 6 in the Appendix to the G.O. dt. 27-3-1990 will stand modified to the above extent. In the case of the later viz. non-cadre posts, the scales will be treated as personal and the posts should be downgraded as those of Assistant professors/Lecturers as the case may be, as and when the existing incumbents vacate the posts. All existing non-cadre posts as on 28- 2-1989 will become regular supernumerary posts.
3. The professors who are not qualified as per the AICTE scheme will be given a higher scale of Rs. 4500 - 7300 as against the scale of Rs. 3700-5700, prescribed in Para 6 of the Appendix to the G.O. read as 1st paper above.
4. The academic staff who are occupying administrative posts (wide para 7 of the G.O. Dated 27-3-1990) will be eligible for the corresponding scales of pay with effect from 1.1.1986 instead of W.P.C. No. 4468/2005 etc. -: 34 :- 1.4.1990 as laid down therein.
5. The Director of Technical Education will be allowed a starting pay of Rs. 5700/- in the scale of Rs. 5100-7300.
6. All future promotions should be made only under the AICTE scheme.
7. The following foot note will be added to Annexure-III of the G.O first cited - qualifications and experience for the teaching posts.
"Wherever First Class Degree is indicated it means First class with a minimum of 60% marks or equivalent grade".
xx xx xx"
(underlining supplied)
Still later, in Ext. P4, G.O.(P) 68/2000/H.Edn. dated 18-5-2000, the Government again stated thus:
"(a) The Central Government will provide financial assistance to the State Governments which have opted for these revised pay scales to the extent of 80% of the additional expenditure involved in the implementation of the revision.
(b) The State Government will meet the remaining 20% of the expenditure from their own sources.
(c) The financial assistance, indicated above would be provided for the period from 1.1.1996 to 31.3.2000.
(d) The entire liability on account of revision of pay scales, etc., of teachers of degree-level technical institutions would be taken over by the State Government w.e.f. 1.4.2000.
(e) The Central assistance would be restricted to revision of pay scales in respect of only those posts which were in existence and filled up as on 1.1.1996.
(f) The entire schemes of revision of pay scales, together with all the conditions to be laid down in this regard by the AICTE is implemented by the State Government as a composite scheme.
xx xx xx 3.10.5. Qualifications and method of recruitment.
In G.O.(P) 81/90/H.Edn. dated 27.3.1990, the AICTE W.P.C. No. 4468/2005 etc. -: 35 :- scheme 1986 was ordered to be implemented in the State. Even though the benefit of new pay scales was given to the teachers the stipulations regarding qualification and method of appointment to the various posts could not be enforced till date because of the failure of Government to amend the existing Technical Education Special Rules, 1967 in line with the AICTE scheme, 1986. The AICTE scheme was envisaged as a package to bring over all improvement in standards of technical education with high incentives by way of better pay scales and also higher qualifications and direct recruitment to higher level posts to ensure healthy competition among teachers for better performance. The failure to adopt the stipulations on qualifications and recruitment in State Government service has resulted in higher emoluments without corresponding level of improvement in standards of technical education. The AICTE scheme should be implemented as a package only and the stipulations on qualification and method of recruitment should be strictly enforced by suitable amendment of the special rules and University statutes wherever necessary and Government will invoke special powers to over rule the objections of P.S.C. This will be done within a period of three months from the date of the order accepting the new scales of pay."
(underlining supplied) The explanatory note to Ext. P2 amendment to the Special Rules reads thus:
"In G.O. (P) No. 81/90/H.Edn. dated 27-3-1990 Government have ordered the Introduction of All India Council for Technical Education Scheme and the scales of pay to the teachers in the Engineering Colleges in the State with effect from 1-1-1986. The details of the qualifications prescribed for various categories of posts have also been ordered therein as per the orders of the Government of India letter No. F-61/88/T5 dated 28-2-1989. As per the provisions contained in the letter, appointment/placement to various categories of posts shall be by open selection through the Staff Selection Committee constituted according to the stipulations of the AICTE and qualifications prescribed by them. Though steps have been taken for the amendment of Special Rules the same has not so far been issued by Government. Now in G.O. (P) No. 68/2000/H.Edn. dated 18-5-2000 the revision of scales of pay of teachers in Engineering Colleges have been ordered with effect from 1st January, 1996. In para No. 3, 10, 5 of the G.O, it was ordered that "the AICTE scheme should be implemented as a package only and the stipulations on qualification and method of recruitment should be strictly enforced by the suitable amendment of the Special Rules and University statutes wherever necessary." Therefore, it is necessary to make suitable changes in W.P.C. No. 4468/2005 etc. -: 36 :- the Special Rules for the Kerala Technical Education Service to incorporate the updated provisions of the scheme. This amendment is intended to achieve the above purpose."
(underlining supplied) Therefore, the facts, that the AICTE had prescribed qualifications for teachers, that the Scheme which contained the qualifications of teachers was to be implemented as a package and that deviation therefrom was not permitted by the AICTE and the Government of India, were clearly and certainly in the knowledge of the Government of Kerala. In fact, the central assistance for implementation of the Scheme was subject to that specific condition. That condition was reiterated while the Scheme for grant of revised pay scales was implemented as per Ext. P7, in which also central assistance was offered on the following condition stated in Appendix-B to Ext. P7:
"5. Recruitment Direct recruitment to all cadre posts should be based strictly on merit, by open selection through open advertisement at National level. However, temporary vacancies at the level of lecturers may be filled through campus selection on contract basis. These selections may be subject to the following conditions:
(a) There will be no relaxation of the prescribed educational qualifications, experience etc.
(b) The person appointed temporarily may not be continued beyond a period one year.
6. INCENTIVES FOR HIGHER QUALIFICATIONS.
(a) At the time of recruitment, as lecturers, four and two advance increments will be admissible to those of the science/humanities faculty who hold Ph.D and M. Phil degrees respectively; and to those of the technical faculty who hold Ph.D and M.E/M.Tech. degrees respectively.
(b) One increment will be admissible to those science/Humanities teachers with M.Phil and to those technical faculty with M.E/M.Tech. Who acquired Ph.D within two years of recruitment. W.P.C. No. 4468/2005 etc. -: 37 :-
(c) A lecturer with Ph.D will be eligible for two advance increments when he moves into selection grade as assistant professor.
(d) A teacher will be eligible for two advance increments as and when he requires a Ph.D degree in his service career."
(underlining supplied) Paragraph 16 of the Scheme of the AICTE (Ext. P7) reads thus:
"16. CENTRAL ASSISTANCE TO STATE GOVERNMENTS
1. The Central Government has decided to provide financial assistance to the State Governments who wish to adopt and implement the scheme of revision of pay scales subject to the following terms and conditions.
(a) The Central Government will provide financial assistance to the State Governments which have opted for these revised pay scales to the extent of 80% of the additional expenditure involved in the implementation of the revision.
(b) The State Government will meet the remaining 20% of the expenditure from their own sources.
(c) The financial assistance, indicated above, would be provided for the period from January 1, 1996 to March 31, 2000, or from the actual date of implementation to March 31, 2000 as the case may be.
(d) The entire liability on account of revision of pay scales, etc., of teachers of degree-level technical institutions would be taken over by the State Government w.e.f. April 1, 2000.
(e) The Central assistance would be restricted to revision of pay scales in respect of only those posts which were in existence and filled up as on 01.01.1996.
2. The State Government, after taking local conditions into consideration, may also decide in their discretion, to introduce scales of pay different from those mentioned in the Scheme, and may give effect to the revised scale of pay from January 1, 1996, or a later date. In such cases, the details of the modification proposed either to the scales of pay or the date from which the Scheme is to be implemented, should be furnished to the Government of India for its approval and, subject to the approval being accorded to the modifications, Central assistance on the same terms and conditions as indicated above will be available to the State W.P.C. No. 4468/2005 etc. -: 38 :- Government for implementation of the Scheme with such modifications, provided that the modified scale of pay are not higher than those approved under the Scheme.
3. The payment of Central assistance for implementation of the Scheme is also subject to the condition that the entire Scheme of revision of pay scales, together with all the conditions to be laid down in this regard by AICTE, including revised qualification requirements and recruitment procedures, is implemented by the State Governments as a composite scheme without any modification except to the date of implementation and scales of pay as indicated above.
4. The State Governments/Technical Institutions shall make necessary changes in their Statutes, Memorandum of Association, Rules/Scheme, Regulations, Bye-laws etc, as the case may be, to incorporate the provisions of this Scheme.
5. The detailed proposals for implementation of the Scheme on the lines indicated above may kindly be formulated immediately and sent to the Government of India, Ministry of Human Resource Development, Department of Education for examination so that Central assistance to the extent indicated above can be sanctioned for the implementation of revised scales of pay."
(underlining supplied) It is in accordance with these conditions that Ext. P2 amendments were incorporated in the Special Rules making the qualifications of teachers of Government colleges on par with those prescribed by the AICTE. It is not disputed before me that the State Government has availed of the Central assistance, for which only the conditions in the AICTE Scheme have been complied with. Now, after the period of Central assistance is over, the Government had the temerity to go back upon the promise and dilute the qualifications in order to give benefits to a handful of teachers who do not possess the qualifications prescribed by the AICTE. This clearly amounts to double talk and blowing hot and cold at the same time. This is also downright dishonest and unbecoming of a democratic Government who should be committed to safeguard the educational standards in the State, which arguably is not in a healthy state at present. W.P.C. No. 4468/2005 etc. -: 39 :-
22. Now, I shall deal with the question as to whether for the qualifications stipulated by the AICTE to be binding, it is necessary to have them incorporated in Regulations framed under Section 23 of the AICTE Act. Nowhere in the Act is it stated that laying down of norms and standards under Section 10(i) of the said Act has to be by Regulations. Section 23, which confers on the AICTE the power to make Regulations, reads thus:
"23. Power to make regulations:- (1) The Council may, by notification in the Official Gazette, make regulation not inconsistent with provisions of this Act, and the rules generally to carry out the purposes of the Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:-
(a) regulating the meetings of the Council and the procedure for conducting business thereat;
(b) the terms and conditions of service of the officers and employees of the Council;
(c) regulating the meetings of the Executive Committee and the procedure for conducting business thereat;
(d) the area of concern, the constitution, and powers and functions of the Board of Studies;
(e) the region for which the Regional Committee be established and the constitution and functions of such Committee."
That Section also does not indicate that the norms and standards under Section 10(i) shall be laid down only through Regulations. Since the power to lay down norms and standards regarding staff pattern and staff qualifications has been specifically conferred on the AICTE by Section 10(i), I am of opinion that the same can be laid down either by Regulations or by executive orders. It is also settled law that executive orders can be issued in respect of matters which are not covered by rules. The fact that the qualifications of teachers W.P.C. No. 4468/2005 etc. -: 40 :- have been laid down by the AICTE through executive orders is beyond doubt in view of the above discussion as also the very fact that the same has been incorporated by the State Government in the Special Rules by amendment, which is expressly for complying with the stipulations by the AICTE. Since the qualifications incorporated by Ext. P2 amendment rules are those laid down by the AICTE in exercise of powers under Section 10(i), the State has no legislative competence to dilute the same by Ext. P3 further amendment granting exemption from qualifications to some of the teachers, which is a legislation which encroaches into the legislative powers of the Union under Entry 66 of List I of the Seventh Schedule to the Constitution of India.
23. It is true that a Division Bench of the Madras High Court, in D. Gopalaswamy, Asst. Professor of Civil Engineering v. Thiagarajas College of Engineering, 1997 Writ. L.R. 549 has taken a different view that since the qualifications prescribed by the AICTE have not become law by Regulations under Section 23 of the Act, the State Rules framed under Article 309 would prevail. For the reasons given hereinabove, I respectfully disagree with that decision.
24. In view of my above findings, all the writ petitions except W.P(C) No. 31502/2007 are allowed on the following terms:
(a) Rule 6A of the Special Rules for the Kerala Technical Education Service (Amendment) 2004 is declared as without legislative competence and unconstitutional;
(b) All appointments to the posts of Professor and Assistant Professor in the Engineering Colleges of the Kerala Technical Education Service shall be made strictly in accordance with the qualifications prescribed by the W.P.C. No. 4468/2005 etc. -: 41 :- AICTE, without taking into account the relaxation provided in Rule 6A of the Special Rules for the Kerala Technical Education Service (Amendment) 2004.
(c) The respondents 1 to 3 shall cause to prepare a fresh select list of candidates eligible for promotion as Professor in accordance with the qualifications prescribed by the AICTE, pursuant to Ext. P4 notification from among those who applied for the post in response to the notification, and make appointments therefrom to the vacancies available, within two months from the date of receipt of a copy of this judgment.W.P(C) No. 31502/2007
The petitioner is a lecturer in the 1st respondent-L.B.S Centre for Science and Technology, Trivandrum. She is aggrieved by the action of respondents 1 to 3 in not considering her for promotion to the post of Assistant Professor. She possesses B. Tech. Degree with First Class and pass in M.Tech degree. She was not considered for promotion because she did not possess M. Tech. Degree with First Class. According to her, going by rule 6 read with Rule 6A of the Special Rules for the Kerala Technical Education Service (Amendment), 2004, which has been adopted by the 1st respondent as per Ext. P8 minutes with the modification that the relaxation would be applicable to staff who came into service of the college under the Centre before 19-3-2005, she is entitled to be considered for appointment as Assistant Professor, since the qualification required is 1st class degree at Bachelor's or Master's level. The contention of the petitioner cannot be accepted for more than one reason. First is that the 1st respondent is bound by the qualifications prescribed by the AICTE as per which Ph.D degree is mandatory for appointment as W.P.C. No. 4468/2005 etc. -: 42 :- Assistant Professor. Secondly, the 1st respondent has no powers to relax the qualifications prescribed by the AICTE. Thirdly, in view of the judgment in the other writ petitions declaring amended Rule 6A as unconstitutional, in any event, the petitioner does not possess the required qualifications.
Accordingly, W.P(C) No. 31502/2007 is dismissed. Cont. Case (C) No. 689/2009.
This contempt case is filed alleging violation of the interim order dated 8-4-2009 in W.P(C) No. 23490/2008. Since I have disposed of the writ petition itself, I do not think it necessary to continue proceedings in this contempt case. Accordingly, the contempt case is closed.
Before parting with these cases, I may also observe that the AICTE would do well to take prompt and decisive action in strictly enforcing compliance with the norms and standards prescribed by them. Whenever transgressions are noticed by any technical institution, prompt action should follow to see that the violators are appropriately dealt with to make them conform to the norms. They should see that the norms are properly and clearly defined incorporating them in appropriate Regulations to put the matter beyond any doubt. In this case, they could have very well incorporated the minimum qualifications for the faculty in technical institutions in the Schedule to the AICTE Grant of Approval for Starting New Technical Institutions Introduction of Courses or Programmes and Increase/Variation of Intake Capacity of Seats for the Courses or Programmes and Extension of Approval for the Existing Technical Institutions Regulations, 2006. In fact, I am surprised to note that the condition that "staff shall be recruited as W.P.C. No. 4468/2005 etc. -: 43 :- per the norms and standards specified by the Council from time to time" included in Regulation 6(v) of the AICTE (Grant of Approval for Starting New Technical Institutions, Introduction of Courses or Programmes and Approval of Intake Capacity of Seats for the Courses or Programmes) Regulations, 1994 and other similar conditions have been omitted from the corresponding 2006 Regulations mentioned above. I am of opinion that the AICTE would do well to incorporate these faculty norms also in the Regulations putting the requirements beyond shadow of any doubt, in order to safeguard the standards of technical education in the country, so that there would be no scope for such transgressions in future, taking advantage of the lack of absolute clarity, necessitating judicial interpretation as in this case.
S. Siri Jagan, Judge.
Tds/