Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 114

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANU SIVARAMAN, J.
K.J.Sudhir, S/o Jageswaran P V – Appellant
Versus
State Of Kerala – Respondent
W.P.(C).Nos.14545 & 30088 of 2022
Decided on : 23-02-2023

Advocates:
Advocate Appeared:
For the Appellant : R.REJI KUMAR
For the Respondent: Sajith Kumar V., ADDL.AG.ASHOK M CHERIAN

Point of Law: AICTE Act is enacted to provide for establishment of an All India Council for Technical Education with a view to proper planning and co-ordinated development of technical education system throughout country.

Headnote:
Constitution of India, 1950 - Article 309, 254, 246, 249, 248 - All India Council For Technical Education Act 1987 – Kerala Public Services Act, 1968 - Kerala Technical Education Services Rules, 2010 - Rule 6A - Service - Retirement age - Entitled to continue in service - Seeking a declaration that they are entitled to continue in service till they attain age of 65 years – It is found that fixing of retirement age of teachers is prerogative of State Government - Para 13.
Finding of the Court :
Conditions prescribed in AICTE regulations with regard to all matters concerning co-ordination and determination of standards of technical education have been complied with by State - Question would, therefore, only be whether prescriptions of a uniform retirement age comes within ambit of co-ordination and determination of standards of education - It is found that fixing of retirement age of teachers is prerogative of State Government and a policy decision which State has to adopt taking note of prevailing factual situations available in State – Court notice that AICTE Regulations also proceed on basis of lack of qualified hands being available for appointment as teachers - State is on record stating that there is absolutely no such dearth in State and that it would not be in interest of maintaining standards of education to deny opportunity to fully qualified youngsters to be appointed as teachers - In above factual situation, Court is of opinion that prayers, as sought for, in writ petitions cannot be granted.
Result: Petitions dismissed.

JUDGMENT :

1. The petitioners are teachers working in aided polytechnic colleges. They are due to retire from service on attaining the age of 56 years. They have preferred these writ petitions seeking a declaration that they are entitled to continue in service till they attain the age of 65 years, since the All India Council For Technical Education (AICTE for short) Regulations mandate such continuance. Directions are also sought for to the respondents to permit the petitioners to continue in service on the basis of the regulations.

2. Heard the learned counsel for the petitioners as well as the learned counsel appearing for the respondents.

3. The petitioner in W.P.(C).No.14545/2022 joined the respondent polytechnic college on 13.08.1987 and was promoted to the post of Head of the Department (Civil Engineering) on 01.06.2012, whereas the petitioner in W.P(C).No.30088/22 is presently working as a Lecturer in Mechanical Engineering in the college. The grievance of the petitioners is that they will be forced to retire from service at the age of 56 years instead of 65 years, as stipulated under the AICTE. It is contended that AICTE, by Exhibit P1 notification has mandated that the age of superannuation of teachers in technical institutions throughout the country shall be 65 years. It is further contended that even though by Exhibit P2 Government Order dated 20.02.2014, Exhibit P1 regulations were implemented in diploma level technical institutions in Kerala, by sub clause (iii) of Clause X of Exhibit P2 Government Order, the age of superannuation was fixed as applicable to State Government employees. It is stated that the said clause is illegal and arbitrary. It is submitted that Ext.P3 revised regulations were notified by AICTE. In pursuance of Ext.P3 regulations Ext.P4 Government order was also passed stating that the revised AICTE pay is applicable to academic staff of Government as well as Polytechnic colleges, who are qualified as per AICTE norms. It is thus contended that Ext.P2 Government order has become infructuous and thus the petitioners will retire from service only on attaining the age of 65 years. It is contended that Exhibit P4 order does not stipulate the age of superannuation, but G.O.dated 03.07.2022 was issued during the pendency of W.P(C) No.14545/22 stating the age of superannuation would be as applicable to State Government employees. The said Government Order is produced as Exhibit P8 in W.P.(C).No.30088/2022 and is also subjected to a challenge in the said writ petition. It is contended that since AICTE Act was enacted and regulations were made to maintain standards of technical education throughout the country, the provisions of KSR are no longer applicable to the petitioners. It is contended that since there is a conflict between the Rule made under Article 309 of the Constitution and Regulation made under the AICTE Act, the provisions of AICTE Act will prevail under Article 254 of the Constitution of India. It is submitted that several State Governments have implemented the AICTE regulations and also enhanced the age of superannuation and that the petitioners had also preferred a representation seeking enhancement of age of superannuation. The learned counsel for the petitioner places reliance on the decisions of the Apex Court in State of Punjab and others v.Kailash Nath etc. [1989 AIR SC 558 and the Bench decisions of this Court in OP(KAT) No.133 of 2019 and W.A.No.2706 of 2009. Reliance is also placed on the decisions in State of Tamil Nadu and another v. Adhiyaman Educational and Research Institute and others [(1995) 4 SCC 104], Jaya Gokul Educational Trust v. Commissioner and Secretary to Government [AIR 2000 SC 1614], Parshavanath Charitable Trust and others v. AICTE and others [(2013) 3 SCC 385], Amrutraj Pratabji Vyas v. Hind Sewa Mandal Kusavalal [2018 MHLJ (2) 615] and Pramod v. State of Maharashtra [(2016) 14 SCC 505].

4. A counter affidavit has been placed on record by the Government stating tha