AICTE has power to prescribe mode of recruitment but regulations cannot have retrospective effect: Kerala High Court [Read Judgment]

The Court, however, emphasized, that the AICTE has the power to prescribe mode of recruitment for maintenance of standards of technical education.
AICTE has power to prescribe mode of recruitment but regulations cannot have retrospective effect: Kerala High Court [Read Judgment]
Justices AM Shaffique and Gopinath P

A Division Bench of the Kerala High Court comprising of Justices AM Shaffique and Gopinath P recently held that the All India Council for Technical Education (AICTE) is not empowered to bring in regulations with retrospective effect.

The Court, however, emphasized that the AICTE has the power to prescribe mode of recruitment for maintenance of standards of technical education.

The Kerala High Court was hearing petitions challenging an order 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 rank list prepared by the Kerala Public Service Commission for selection to the post of Lecturers in Technical streams in Polytechnic 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 (Diploma) Regulation, 2019 (2019 Regulations), lecturers in polytechnic institutions could be appointed only through direct recruitment.

The regulation would apply in spite of the Kerala Technical Education Service Rules, 1967 (Kerala Rules) and its 2010 amendment providing that the post of Lecturer in Engineering/Technology could be filled up by direct recruitment and through appointment by transfer from certain specified categories, they had argued.

Accepting these contentions, the Tribunal had agreed that the recruitment to polytechnic colleges could only be by direct recruitment, in terms of the AICTE Regulations.

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 1st condition is that the parent statute must authorise the delegate to frame subordinate legislation with retrospective effect. The 2nd 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.

Therefore, the Division Bench held that only those vacancies that arose after the commencement of 2019 AICTE regulations could be filled up by direct recruitment in accordance with the stipulations contained in those regulations.

The other contentions pertained to whether the AICTE Regulations went beyond the purview of the AICTE Act and whether it could operate over the Kerala Rules.

The counsel for the petitioner in-service candidates contended that the AICTE Regulations could not operate in the face of the Kerala Rules framed.

On the other hand, the respondents' counsel argued that the AICTE could prescribe regulations of the sort under challenge, as they related to the maintenance of technical standards, one of the AICTE's aims.

Agreeing with this submission, the Division Bench held,

“the stipulation regarding direct recruitment can be construed as a requirement relating to maintenance of standards for through the prescription of direct recruitment".

Rejecting the contention that the 2019 AICTE Regulations were beyond the scope of the AICTE Act, the Court emphasized that it was within the purview of the legislation to prescribe conditions for recruitment.

On the applicability of the AICTE Regulations vis-à-vis the stipulations in the Kerala Rules, the High Court noted that the Kerala Rules would be subject to the Regulations prescribed by the AICTE as regards the qualifications, method of appointment and the like. In so holding, the Court relied on its previous decision in Dr Suresh K. v. State of Kerala.

The Court additionally clarified that the Rules framed by the State would, to the extent it is repugnant to the Central Act/Regulations, be void and inoperative.

On these terms, the matter was disposed.

Advocates Elvin Peter PJ and Ayyappan Sankar appeared for the petitioners (in-service candidates). Advocates Raghul Sudheesh and Lakshmi J appeared for the party respondents (applicants before the Tribunal/PSC rankholders). AICTE Standing Counsel, advocate V Sajith Kumar and Senior Government Pleader advocate B Vinod appeared for the Government of Kerala. Advocate PC Sasidharan, Standing Counsel, appeared for the Kerala Public Service Commission.

[Read Judgment]

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