PADMINI A K Vs. STATE OF KERALA

JUDGEMENT

(1.) Common issues arise in these writ petitions and connected contempt case and hence they are disposed of by this common judgment. 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.PCC) No. 20544/2008. unless indicated otherwise.

(2.) 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 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 fulfillment 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 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 under the above circumstances, the petitioners have approached this Court with these writ petitions. In W.PCC) 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.

(3.) Before going into the validity of the amended Rule 6 A, 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.