2020 Supreme(Ker) 933

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M.SHAFFIQUE, GOPINATH P., JJ.
Dr.Suresh K, S/o. R. Kamakshy - Appellant
Versus
State Of Kerala - Respondent
OP (KAT) Nos.133 of 2019, 133, 135, 232, 236, 239, 250, 258, 260, 271, 309 & 347/2020
Decided on : 03-12-2020

Important points:
The Career Advancement Scheme (CAS) of the AICTE is an independent scheme which is also governed by Regulations. It provides for placement is a higher grade/grades on completion of prescribed periods of residency. Since the issue has not been agitated before the Tribunal, we do not wish to examine the question of eligibility of persons concerned to obtain higher grade/designation under CAS. The Government has to determine the issue of eligibility for placement/redesignation under CAS strictly in accordance with the AICTE Regulations

Headnote:

The All India Council for Technical Education Act, 1987;; The KS&SSR - Rules 6A(i) ,6A(ii) , Rule 10(ab) , Rule 28(b)(iA) , Rule 31(a)(i) of Part-II , AICTE notification of 18-2-2003 and the provisions of Rule 6A (ii) of the State Rules-Valid by the Supreme Court-The persons who got the benefit of the AICTE notification of 18-2-2003 by being regularly promoted as Assistant Professor before 5-3-2010 can count experience from the date of their original promotion though they did not have Ph.D on the date of such promotion

Statement of facts:

Qualifications required for the posts of Assistant Professors (now designated as Associate Professors), Professors and Principals in the Government Engineering Colleges in the State of Kerala. These posts are those borne on a service known as the Kerala Technical Education Service and are governed by the Special Rules for the Kerala Technical Education Service issued as per G.O (MS) No.784/67/PD dated 02-09-1967 as amended from time to time - Challenging the common order dated 05-03-2020 in OA (EKM) No.500/2019 and connected cases on the file of the Kerala Administrative Tribunal.

Finding of the court:

• The Kerala Technical Education Service Rules framed by the State under Article 309 of the Constitution of India read with the provisions of the Kerala Public Services Act, 1968 will be subject to Regulations framed by the AICTE regarding the qualifications, method of appointment etc. and the Rules framed by the State would, to the extent it is repugnant to the Central Act/Regulations, be void and inoperative. The AICTE Regulations have to be followed even in the absence of any enabling Rule or Regulation in the State Rules;

• Those persons who were promoted on regular basis as Professors prior to 5-3-2010 are not required to have the qualification of Ph.D to be promoted as such in view of the law laid down by the Supreme Court in the judgment in Civil Appeal No.4502/2016 and connected cases;

• Rules 6A(i) and 6A(ii) have no application beyond 5-3-2010, the date on which “Pay Scales, Service Conditions and Qualifications for The Teachers And Other Academic Staff In Technical Institutions Degree Regulations, 2010” were issued by the AICTE. In other words, after 5-03-2010, the qualification of Ph.D is mandatory for the posts of Principals, Professors and Associate Professors (re-designated post of Assistant Professor);

• The clarifications issued by the AICTE in a question-answer format on 4-01-2016 relate only to those Assistant Professors (Re-designation as Associate Professors was only after 5-3-2010) who were promoted on regular basis between 18-2-2003 and 5-3-2010

• Those promoted on regular basis as Assistant Professor (now Associate Professor) between 18-2-2003 and 5-3-2010 will be entitled to count their service from the date of promotion as Associate Professor for the purpose of determining experience for further promotions notwithstanding the fact that they did not have the qualification of Ph.D on the date of their promotion and notwithstanding the stipulations in Rule 10(ab) of Part-II of the KS&SSR

• The posts of Principals, Professors and Assistant Professors (now redesignated as Associate Professor), being selection posts in respect of which a select list, has to be prepared in accordance with the provisions of Rule 28(b) of Part-II of the KS&SSR, the stipulation in Rule 28(b)(iA) that the person concerned must be qualified on the date of occurrence of the vacancy is applicable in the matter of promotion to these posts;

• Since regular selections to the posts of Associate Professors (earlier Assistant Professor), Professors and Principals have been held up for quite some time (the notification issued in 2004 for selection to the posts of Professors, the notification issued in 2014 for selection to the posts of Associate Professors (earlier Assistant Professor), Professors and Principals, and the notification issued in 2016 for selection to the posts of Associate Professors (earlier Assistant Professor), Professors and Principals were all cancelled or the process stopped midway) and since the State Government has issued orders granting provisional/temporary promotions under Rule 31(a)(i) of Part-II of the KS&SSR without understanding the scope and intent of the judgments rendered by the Tribunal and the Supreme Court, we hold that persons who are found entitled to regular promotion but were not granted such promotion will also be treated as if they had been granted regular promotion from the date on which they are found so entitled. For example:-a person found entitled to regular promotion as Professor prior to 5-3-2010 will be entitled to such promotion without having the qualification of Ph.D and a person found entitled to promotion as Assistant Professor/Associate Professor prior to 5-3-2010 will be entitled to the benefit of the 7 year period to obtain the qualification of Ph.D and will also be entitled to count their service from the date of promotion in view of our finding that the stipulation in Rule 10(ab) that experience must be one gained after acquisition of qualification will not be applicable to persons who are promoted between 18-2-2003 and 5-3-2010. This direction/this finding is only on account of the fact that regular promotions have been held up for quite some time and there may be persons who were not promoted either provisionally or on a regular basis from the date of their actual entitlement. These directions will apply only if such a situation exists.

• The Government shall while ordering regular promotions in accordance with the directions contained in this judgment will also determine the issue of eligibility for placement/redesignation under the Career Advancement Scheme (CAS) strictly in accordance with the applicable AICTE Regulations. If the acquisition of any qualification is mandatory for such placement/redesignation under CAS the same shall be insisted upon

Result: Original petitions shall stand disposed of.