The Kerala High Court has recently passed a judgment holding that the All India Council for Technical Education (AICTE) has the power to prescribe mode of recruitment for maintenance of standards of technical education but it is not empowered to bring in regulations with retrospective effect.
The division bench of Justice A.M. Shaffique and Justice Gopinath P. was hearing petitions challenging the common order dated 9.12.2019 of the Kerala Administrative Tribunal, which had held that direct recruitment is the only mode of recruitment to the post of Lecturer in Polytechnic Colleges under the Government of Kerala.
The applicants before the Tribunal were persons included in a ranked list prepared by the Kerala Public Service Commission for selection to the post of Lecturers in Technical streams in Polytechnics under the Technical Education Department. They had approached the Tribunal contending that in terms of the AICTE Regulations on Pay Scales, Service Conditions and Minimum Qualifications For Appointment of Teachers and Other Academic Staff such as Library and Physical Education Personnel in Technical Institutions and Measures for the Maintenance of Standards in Technical Education – (Diploma) Regulation, 2019, (the 2019 Regulations) Lecturers in Polytechnic could be appointed only through direct recruitment in spite of the fact that the Special Rules namely, Kerala Technical Education Service Rules, 1967, after its amendment through the Kerala Technical Education Service (Amendment) Special Rules, 2010, provided that the post of Lecturer in Engineering/Technology could be filled up by direct recruitment and through appointment by transfer from the categories mentioned in those Rules in a specified ratio. The Tribunal accepted the contentions of the applicants before it and held that the recruitment to the post of Lecturer could only be by direct recruitment. This finding of the Tribunal is under challenge before the Kerala High Court.
Elvin Peter P.J. and Ayyappan Sankar, counsel appearing for the petitioners, submitted that the finding of the Tribunal is absolutely unsustainable in law. They would contend with reference to the provisions of the All India Council for Technical Education Act, 1987 (the AICTE Act) that the provisions of that enactment make it clear that while AICTE has the power to fix the qualifications required for appointment to the teaching posts in Technical Institutions, that power does not extend to specifying the source from which such recruitment is to be made.
They further contend that such stipulations in the AICTE Regulations must not be taken to be binding or mandatory and cannot, at any rate, operate in the face of the Special Rules which have been framed in terms of Article 309 of the Constitution of India r/w provisions of the Kerala Public Services Act, 1968.
Raghul Sudheesh, counsel appearing for the contesting respondents/applicants before the Tribunal, contended with reference to the provisions of the AICTE Act and in particular to Section 10(i) of that Act that the AICTE was authorized to stipulate that the appointment to the post of Lecturer can only be by way of direct recruitment.
He refered to the judgments in State of Tamil Nadu v. Adhiyaman Educational and Research Institute (1995) 4 SCC 104, Ajith Kumar B. v. State of Kerala and others; 2009(3) KLJ 563 and the judgment of the Madras High Court in P. Jothiswaran v. Chairman, Teachers Recruitment Board, Government of Tamil Nadu and the judgment of this Court in P.O. Boben v. Rajasekharan V.M in O.P.(KAT) No.40 of 2018 and connected cases and submit that notwithstanding any contrary stipulation in the Special Rules framed under Article 309 of the Constitution of India r/w provisions of the Public Services Act.
The counsel for AICTE also supported the stand taken by the contesting respondents. The senior government Pleader, on the other hand, supported the stand taken by the petitioners in these cases and contended that the posts of Lecturers can be filled up only in accordance with the Special Rules and the stipulations in the AICTE Regulations of 2019 cannot have the effect of rendering those provisions null and void.
While the High Court agreed with the central premise of the argument, the Court refused to allow a retrospective interpretation to be given to the AICTE Regulations.
“It is settled law that subordinate legislation cannot have any retrospective operation unless two conditions are satisfied. The first condition is that the parent statute must authorise the delegate to frame subordinate legislation with retrospective effect. The second condition is that the subordinate legislation must itself declare that the same will have retrospective effect. No provision has been pointed out from the AICTE Act to suggest that the AICTE could frame regulations with retrospective effect. The regulations themselves do not declare that they are retrospective in operation,” the Court stated.
The Court also noted that no provision has been pointed out from the AICTE Act to suggest that the AICTE could frame regulations with retrospective effect. The regulations themselves do not declare that they are retrospective in operation. Therefore, the Bench held that all vacancies of lecturers in polytechnics which arose prior to 1.3.2019 can be filled up without reference to the 2019 regulations.
However, all vacancies which arose after the date on which the 2019 regulations came into force shall be filled up only by direct recruitment in accordance with the stipulations contained in those regulations.
“Therefore, in modification of the orders issued by the Tribunal, we dispose of these Original Petitions directing the competent authority to ensure that the vacancies in the post of Lecturers in Technical streams in Polytechnics under the Technical Education Department are filled up in accordance with the stipulations in the Kerala Technical Education Service Rules, 1967, after its amendment through the Kerala Technical Education Service (Amendment) Special Rules, 2010 and any other regulation of the AICTE which was applicable at the relevant time in respect of all vacancies which arose prior to 1.3.2019 and further to ensure that all vacancies which arose in that post (Lecturers in Technical streams in Polytechnics) after 1.3.2019 be filled up strictly in accordance with the stipulations in the AICTE Regulations on Pay Scales, Service Conditions and Minimum Qualifications For Appointment of Teachers el in Technical Institutions and Measures for the Maintenance of Standards in Technical Education – (Diploma) Regulation, 2019,” the order reads.