Karnataka High Court
Dr. K. P. Ravikumar vs State Of Karnataka on 14 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 20487 of 2023
C/W WP No. 20488 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION No. 20487 OF 2023 (S-RES)
C/W
WRIT PETITION No. 20488 OF 2023 (S-RES)
IN W.P.No:20487/2023
BETWEEN:
DR.M.K.RAVISHANKAR,
S/O LATE DR.M.C.KAMALAKAR,
AGED ABOUT 51 YEARS,
HASIRU, 1ST FLOOR,
BEHIND J.J.DEAF SCHOOL,
GOWRIKOPPALLU,
HASSAN-573 202.
...PETITIONER
(BY SMT. VAISHALI HEGDE., ADVOCATE)
AND:
Digitally 1. STATE OF KARNATAKA
signed by
KIRAN REPRESENTED BY ITS SECRETARY,
KUMAR R DEPARTMENT OF HIGHER EDUCATION,
Location:
HIGH M.S.BUILIDNG, DR.AMBEDKAR ROAD,
COURT OF BANGALORE-560 001.
KARNATAKA
2. VISVESHWARAIAH TECHNOLOGICAL
UNIVERSITY
REP. BY ITS REGISTRAR,
JNANA SANGAMA,
VTU MAIN ROAD, MACHHE,
BELGAUM-590 018.
3. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
NELSAN MANDELA MARG,
VASANTH KUNJ,
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WP No. 20487 of 2023
C/W WP No. 20488 of 2023
NEW DELHI-110 070.
REP BY ITS CHAIRMAN.
4. MALNAD COLLEGE OF ENGINEERING
REP. BY ITS AUTHORISED SIGNATORY
P.B.No.21, SSALAGAME ROAD,
HASSAN-573 202.
...RESPONDENTS
(BY SRI.B.RAVINDRANATH, AGA FOR R-1;
SRI.P.N.MANMOHAN, ADVOCATE FOR C/R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
MANDAMUS RESTRAINING THE R-4 FROM TERMINATING THE
SERVICES FOT EH PETITIONER ON THE GROUND OF CLOSURE
OF DEPARTMENT OF AUTOMOBILE ENGINEERING, ETC.
IN W.P.No.20488/2023:
BETWEEN:
DR.K.P.RAVIKUMAR
S/O LATE PUPPANNA,
AGED 52 YEARS,
R/O 3RD MAIN, 12TH CROSS,
SHANTHI NAGAR, HASSAN-573 202.
PROFESSOR,
DEPARTMENT OF AUTOMOBILE ENGINEERING
MALNAD COLLEGE OF ENGINEERING
HASSAN-573 202.
...PETITIONER
(BY SMT. VAISHALI HEGDE., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF HIGHER EDUCATION,
M.S.BUILIDNG, DR.AMBEDKAR ROAD,
BANGALORE-560 001.
2. VISVESHWARAIAH TECHNOLOGICAL
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WP No. 20487 of 2023
C/W WP No. 20488 of 2023
UNIVERSITY
REP. BY ITS REGISTRAR,
JNANA SANGAMA,
VTU MAIN ROAD, MACHHE,
BELGAUM-590 018.
3. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
NELSAN MANDELA MARG,
VASANTH KUNJ,
NEW DELHI-110 070.
REP BY ITS CHAIRMAN.
4. MALNAD COLLEGE OF ENGINEERING
REP. BY ITS AUTHORISED SIGNATORY
P.B.No.21, SSALAGAME ROAD,
HASSAN-573 202.
...RESPONDENTS
(BY SRI.B.RAVINDRANATH, AGA FOR R-1;
SRI.P.N.MANMOHAN, ADVOCATE FOR C/R-4))
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO RESTRAIN THE R-
4 FROM TERMINATING THE SERVICES OF THE PETITIONER ON
THE GROUND OF CLOSURE OF DEPARTMENT OF AUTOMOBILE
ENGINEERING, ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 27.09.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. Dr. M.K. Ravishankar (petitioner in W.P.
No.20487/2023) was appointed as a Lecturer on
11.04.1997. He was, thereafter, sent on deputation to
I.I.T. Madras to join the Ph.D. programme for a period of
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three years, and after he completed his Ph.D., he reported
to the College on 01.08.2007. He was, thereafter,
appointed as Assistant Professor pursuant to an
application made by him, by an order dated 29.08.2005.
On completion of three years of service as an Assistant
Professor, as provided under 6th revised All India Council
for Technical Education ("the AICTE", for short) pay scale,
he was re-designated as an Associate Professor. The
petitioner was, thereafter, promoted as a Professor by an
order dated 14.05.2015 and was discharging his duties as
a Professor.
2. Dr. K.P. Ravikumar (petitioner in W.P.
No.20488/2023) was appointed as a Lecturer on
28.08.2005 and he was, thereafter, appointed as a Senior
Lecturer on 01.09.2010. His post was then re-designated
to that of an Associate Professor on 01.01.2012, after
which, the petitioner was promoted as a Professor under
the Career Advancement Scheme on 16.05.2015 and has
since been discharging his duties as a Professor.
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3. Both petitioners have filed these petitions seeking a
mandamus to restrain the respondent-College from
terminating their services on the ground that the
Department of Automobile Engineering was being closed.
They are also challenging the resolution passed by the
Management of the College dated 27.03.2021, whereby
approval was granted for progressive closure of the
Department of Automobile Engineering.
4. The petitioners are also seeking a direction to the
Visvesvaraya Technological University (hereinafter referred
to as "the VTU") and the AICTE to ensure that the AICTE
Guidelines are strictly adhered to; a direction is also
sought against respondent No.4 for grant of benefits of the
7th Pay Scale; and lastly, a prayer is made to release the
arrears of salary and Dearness Allowance.
5. It is the case of the petitioners that they were
appointed to the respective posts of the College and have
been rendering services to the institution in accordance
with the terms of their appointment, and the College, on
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the basis that they were closing the Course of Automobile
Engineering, had decided to terminate the services of the
petitioner, which was wholly illegal.
6. It is their case that they have a right to continue till
they attain the age of superannuation and therefore, there
cannot be an order of termination passed against them on
the ground that the Course of Automobile Engineering was
being shut down. It is their case that the conditions of
service of an employee of a Technical Institution
(approved and recognized by the AICTE) is governed by
the statutory Regulations framed by the AICTE and these
statutory Regulations do not provide for termination of an
employee on the ground that a Course run by an affiliate
institution was being shut down. It is contended that even
if a particular Course in the Technical Institution is shut
down, the service of the petitioners will have to be
continued.
7. It is, however, the case of the Management that the
Board had taken a decision to progressively close two
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Courses and this decision was taken having regard to the
fact that very few students were getting admitted to this
Course and the running of these Courses was, thus,
financially unsustainable.
8. It is their case that this decision to close the Course
was communicated to the VTU and the VTU had, in turn,
given its No Objection Certificate for closure of the Course
and thereafter, they have also obtained the approval of
the AICTE for closure of the Courses. The College had
applied for closure of the Automobile Engineering, and
Industrial and Production Engineering from the academic
year 2021-22, and the same was also approved by the
AICTE and therefore, they had the right to close down that
particular Course, as a consequence of which, the faculty
posts which existed for running the Courses also stood
abolished. Resultantly, the petitioners who were working
in the Department had to be naturally dispensed with.
9. It is contended that closure of a particular Course
which directly leads to an abolition of the post can never
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be construed as a termination and hence, the petitioners
cannot have any grievance. It is argued that the abolition
of posts, which results in termination of the services of the
employee holding the post, was permissible in law and an
employee whose post was abolished would have no right
to challenge the abolition of such posts. It is, thus,
contended that creation or abolition of posts is the
exclusive prerogative of the employer and that an
employee cannot be permitted to contend that the
abolition of such post is illegal.
10. In light of the above submissions, the point which
arises for consideration in these Writ Petitions is -
"Whether the persons employed by a
Technical Institution can be terminated on the
ground that VTU and the AICTE had approved
the closure of the Course in which they were
rendering their services?"
11. In order to answer this question, an examination of
the All India Council for Technical Education Act, 1987
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(hereinafter referred to as, "the AICTE Act", for brevity)
and the Regulations therein will be necessary.
12. The AICTE Act was enacted for establishing an All
India Council with a view to have a proper Planning and
Co-ordinate Development of Technical Education System
in the Country and also for the promotion of qualitative
improvement of such education in relation to a planned
quantitative growth and also to regulate and properly
maintain the norms and standards adopted by technical
educational institutions.
13. The Council that is established consists of a Multi-
member Body of Experts and they have been entrusted
with taking all steps as they may think fit for ensuring
coordinated and integrated development of Technical
Education and maintenance of standards. They have also
been empowered for this purpose to formulate Schemes,
lay down norms and standards for Courses, curricula,
physical and instruction facilities, staff pattern, staff
qualifications, quality institution and assessment of
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examination. The Council has been empowered to make
grants or discontinue grants to Technical Institutions if
they fail to comply with the directions given by it. The
AICTE Act contemplates an Execution Committee of the
Council to be constituted, along with a Board of Studies
and also Freezing Committees.
14. The Council is empowered under Section 22 to make
Rules and under Section 23 to make Regulations. Thus,
the AICTE is the authority to ensure that certain standards
of education are maintained in the field of Technical
Education, and in this regard, they have been empowered
to implement norms and standards, including the
qualifications required for the staff employed in the
institutions, by framing appropriate Rules or Regulations.
The Council, in exercise of the powers conferred under
Sections 10 and 23, has been framing Regulations in the
matter of approval of the Technical Educational
Institutions.
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15. For the first time, on 22.01.2010, the Council framed
the 'All-India Council for Technical Education (Pay Scales,
Service Conditions and Qualifications for the Teachers and
Other Academic Staff in Technical Institutions (Degree))
Regulations, 2010' (hereinafter referred to as "the 2010
Regulations", for brevity).
16. Thus, by virtue of Section 23(1) read with Section
10(1) of the AICTE Act, these Regulations applied to all
Technical Institutions and Universities, including deemed
Universities imparting Technical Education and also such
other Courses / Programs and as are notified by the
Council.
17. General condition No.3 of the said Regulations
stipulates that the pay of Teachers and equivalent
positions in Technical Institutions would be fixed according
to their designations in two pay bands and each pay band
would have different stages of Academic Grade Pay which
would ensure that the teachers and other equivalent
cadres are covered under the Scheme. The Regulations
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also made it clear that there are only three designations in
respect of the Teachers in Universities and Colleges,
namely - Assistant Professors, Associate Professors and
Professors.
18. Under these 2010 Regulations - revised pay scales,
service conditions, and Career Advancement Scheme for
teachers and equivalent positions were enacted.
Incentives for Ph.D./Masters in M.Tech. and other higher
qualifications were also prescribed. The Regulations also
provide for granting of Increments, Pay Fixation Formula,
Allowances, Study Leave, Sabbatical Leave and Research
Promotion Grant.
19. The 2010 Regulations also provided for the age of
superannuation (necessary for the purpose of this Writ
Petition) and the relevant provision is reproduced as
hereunder-
"Age of Superannuation:
(i) In order to meet the situation arising out of shortage
of teachers in Technical Institutions and the
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consequent vacant positions therein, the age of
superannuation for teachers in Technical Institutions
has been enhanced to sixty five years, vide the
Department of Higher Education letter No.F.No.l-
19/2006-U.II dated 23.3.2007, for those involved in
class room teaching in order to attract eligible
persons to the teaching career and to retain teachers
in service for a longer period.
(ii) Subject to availability of vacant positions and fitness,
teachers shall also be reemployed on contract
appointment beyond the age of sixty five years up to
the age of seventy years. Reemployment beyond the
age of superannuation shall, however, be done
selectively, for a limited period of 3 years ie the first
instance and then for another further period of 2
years purely on the basis of merit, experience, area
of specialization and peer group review and only
against available vacant positions without affecting
selection or promotion prospects of eligible teachers.
(iii) Whereas the enhancement of the age of
superannuation for teachers engaged in class room
teaching is intended to attract eligible persons to a
career in teaching and to meet the shortage of
teachers by retaining teachers in service for a longer
period, and whereas there is no shortage in the
categories of Librarians, the increase in the age of
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superannuation from the present sixty two years
shall not be available to the categories of Librarians."
20. It is, therefore, clear that the statutory Regulations
framed by the AICTE which govern the service conditions
of employees of the Technical Institutions, recognizing the
fact that it was imperative for the tenure of teachers in the
institutions to be assured and the Regulations, in fact,
state that in order to encourage the people to get into the
teaching career and to retain them, the age of
superannuation had been enhanced to 65 years. The
Regulations also provide for payment of pension, family
pension, provident fund etc., thereby indicating that the
service conditions of an employee in a Technical Education
institution are clearly stipulated and which are obviously
required to be in accordance with the said Rules.
21. On 01.03.2019, the AICTE framed a fresh set of
Regulations called 'the AICTE Regulations on Pay Scales,
Service Conditions and Minimum Qualifications for the
Appointment of Teachers and Other Academic Staff such
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as Library, Physical Education and Training & Placement
Personnel in Technical Institutions and Measures for the
Maintenance of Standards in Technical Education -
(Degree) Regulations, 2019' (hereinafter referred to as
"the 2019 Regulations", for brevity). These Regulations
were to apply to all degree level Technical Institutions and
Universities.
22. The date of effect of the said Regulations, insofar as
it related to pay scales and Dearness Allowance, was
stated to be effective from 01.01.2016 and in respect of
other allowances, the regulations as applicable to Central
Government employees, was made applicable. These
Regulations also created an effective date for application
of service conditions. It was stated that all service
conditions including Qualifications, Experience,
Recruitment, Promotions publications, etc., would come
into force with effect from the date of the Gazette
Notification. It is also stated that the Qualifications,
Experience and Recruitment during the period 01.01.2016,
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till the issue of a Gazette Notification, would be governed
by the 2010 Regulations.
23. The 2019 Regulations were brought into effect but in
respect of revised pay scales, it was made effective from
01.01.2016. The Regulations also stated that those who
were eligible for promotions after the date of publication of
the 2019 Regulations would have to meet the necessary
conditions prescribed therein and for this purpose, they
were permitted to acquire the necessary qualification(s) by
31.07.2022. It was also stated that for the incumbent
faculty members, the date of eligibility up to 31.07.2022
was to be allowed according to the 6th CPC Notification and
the benefit of promotion to such candidates was permitted
retrospectively. It was also made clear that no further
extension to acquire the qualification prescribed would be
given beyond 31.07.2022.
24. Thus, under the 2019 Regulations, a fresh set of
service conditions was prescribed to employees of
Technical Institutions. These Regulations also revised the
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designations and also the mode of appointments. As
against the earlier pay structure, a new pay structure was
prescribed which subsumed the pay band and Grade pay
that was provided for in the earlier Regulations. Regarding
the manner in which pay fixation has to be done, the date
on which increment has to be given and the annual
process of promotion etc., were also prescribed.
25. The 2019 Regulations stated that the Age of
Superannuation of all faculty members including Principals
/ Directors of institutions will be 65 years and an extension
of five years could be given to those members who were
physically fit and had written books in the technical field,
published papers and had an average of 360˚ feedback of
more than 8 out of 10, which indicated that they were
active during the last preceding 3 years of service.
26. Thus, a decade after the 2010 Regulations, a fresh
set of Regulations also prescribed the age of
superannuation as 65 years, extendable up to 70 years,
under Clause 2.12 as produced hereunder:
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"2.12 Age of Superannuation: The age of
superannuation of all faculty members and Principals /
Directors of institutions shall be 65 years. An extension
of 5 years (till the attainment of 70 years of age) may
be given to those faculty members who are physically
fit, have written technical books, published papers and
has average 360˚ feedback of more than 8 out of 10
indicating them being active during last 3 preceding
years of service."
27. This indicates that it was the intent of the Council
which had been established under a statute and which had
the power to frame regulations which were statutory, that
teachers and faculty members of Technical Institutions
should have an assured tenure of 65 years, which was
extendable up to 70 years depending on certain
conditions. These Regulations also provided for other
service conditions such as Health Insurance Scheme,
pension, gratuity, etc. It is evident that the Regulations
also prescribe a cadre structure to be followed and the
manner in which inter se seniority between directly
recruited teachers and promotees were to be governed. It
also indicated the minimum qualifications which were
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necessary for recruitment and also the mode of
recruitment. Thus, the 2019 Regulations was a
comprehensive set of Regulations which covered all
aspects of the service conditions of a Teacher in a
Technical Education Institution.
28. It is to be borne in mind here that for the grant of
approvals, Regulations have been framed by the AICTE
and the procedure provided for granting approvals for
starting a Course, continuing a Course and also closure of
a Course are provided in a Hand Book published as
provided under the Regulations. If there were statutory
Regulations which provided for closure of a Course, there
necessarily must have been a clause which provided for
the future of the employees in respect of those Courses
which were permitted to be closed. However, though a
provision was made for the closure of a Course, no
corresponding provision has been made under the
Regulations governing the service conditions of an
employee which permitted the Management to terminate
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them under the guise of closure of such Course. Thus,
there is no power available to the institution to discharge
the services of a teacher if a Course is permitted to be
discontinued.
29. Since a comprehensive set of Regulations have been
framed governing the service conditions of an employee of
a Technical Institution, the rights and privileges of the
employees would have to be necessarily governed by
those set of Regulations. The 2019 Regulations provided
for the age of superannuation, which means that an
employee of a Technical Institution is entitled to discharge
his duties till he attains the age of superannuation unless,
in the interregnum, his services are terminated for
misconduct after an enquiry is held in that regard.
30. The intent of the Regulations of 2010 as well as that
of 2019 is clear that a person of the teaching faculty
should be encouraged to remain in service and an option
is, in fact, given to grant an extension till he/she attains
the age of 70 years. If the normal age of retirement (60
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years) for a civil servant is taken into consideration, the
fact that an employee of a Technical Institution is given
the age of superannuation as 65 years indicates that the
statutory mandate is to provide an assured tenure to a
member of a teaching faculty until he attains the age of 65
years.
31. Viewed from this background, the contention of the
College that they are entitled to terminate the services of
a member of the teaching faculty in view of the closure of
a particular course, cannot be accepted. Once a college
imparting Technical Education decides to start a Course of
study after obtaining the approval of the AICTE, it is
required to maintain the prescribed faculty and the
student-teacher ratio. If the College is unable to attract
the requisite number of students, it is empowered to seek
the approval of the Council to close such course. It is,
however, to be borne in mind that the objective of
Regulations and of the Council in this regard is to ensure
that in the case of a closure, the students who were
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admitted to a Course are not affected. Measures have to
be taken by the College to accommodate the already
admitted students to other colleges and this indicates that
the priority, as far as Council is concerned, is the well-
being of the students who have been admitted to such
Course of Study. The Council, by not making a provision in
relation to the faculty of a College which has been granted
approval to close a course, only intended that the
Management will have to continue the services of the
faculty attached to such course and bear the expenditure
in that regard, if it is not aided.
32. If a College starts a course knowing fully well that it
is not aided, it runs the risk of becoming financially
unviable and merely because it becomes financially
unviable, the College cannot proceed to retrench the
faculty members. In fact, if this argument is accepted,
then every College would have the right to pay a lesser
salary than what is prescribed by the AICTE on the ground
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that the running of a course or the running of the
institution was not financially viable.
33. The Hon'ble Apex Court has, in fact, held in the case
of Secretary, Mahatma Gandhi Mission and Ors.1 that
the burden of running an institution and raising finances
would be its own responsibility, and on the basis of this,
the institution cannot fall back upon the reasons pertaining
to its solvency to absolve itself of the liability to pay the
prescribed salary.
34. Another fact which has to be borne in mind in the
instant case is that the petitioners were appointed in the
year 1997 and 2005, and both of them have rendered two
decades of service to the institution. The petitioners are, in
fact, aged 51 years and 52 years (respectively) and to
expect them to secure an employment at the fag end of
their academic careers would not only be unfair, but also
be unethical. Once an institution has recruited persons to
Secretary, Mahatma Gandhi Mission and Ors. v. Bharatiya Kamgar Sena
and Ors., AIR 2017 SC 505.
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its teaching faculty, it goes without saying that it
undertakes the liability of taking care of their salaries till
they attain the age of superannuation. An institution is
expected to arrange for its finances much before it starts
the Course and it cannot, after starting a course, take a
decision to close such course to the detriment of the
faculty.
35. It is also to be noticed here that in the present case,
the petitioners were recruited in the year 1997 and 2005,
and their course was viable for more than 20 years. Merely
because the course did not attract any students, the
College cannot disown its responsibility and contend that it
is entitled to retrench them.
36. The argument that is advanced by the College is that
the closure of their course (with approval) vis-à-vis the
faculty associated with the course would tantamount to
abolition of the posts and since it was settled law that it is
the absolute prerogative of the employer to abolish a
Course, they were entitled to discharge the services of the
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petitioners. I am afraid that this argument, in the context
of a Technical Institution, cannot be acceptable. It is, no
doubt, true that it is settled law that in service
jurisprudence that an employer has the absolute
prerogative to abolish a post and if this results in the
termination of an employee, the employee cannot have
any grievance. However, it is to be noticed here that a
Technical Institution approved by the AICTE is governed
by statutory Regulations and if these statutory Regulations
prescribe all aspects of the conditions of service including
the aspect of retirement of a teaching employee of the
Institution, then the Technical Institution cannot go
beyond the Regulations and discharge the services of an
employee in contravention of the regulations.
37. As already stated above, the Regulations are silent
about the fate of the teaching faculty when a course is
permitted to be closed, given the context of the conditions
of service prescribed by way of statutory regulations are
designed to safeguard the employees of Technical
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institutions, it will have to he held the law does not permit
retrenchment of staff on closure. It, therefore, necessarily
follows that the members of the Teaching faculty are
required to be in continued in service till they attain the
age of superannuation.
38. It is also admitted in the present case that the
Management has made an attempt to accommodate the
petitioners in other Departments. This, by itself, indicates
that the Management was also aware of its obligation to
have the petitioners on their employment, and it could not
summarily discharge the services of the petitioner. It is to
be stated here that even if the institution cannot
accommodate the petitioners in other Departments, their
responsibility to continue them in service and
consequentially, pay them their salaries would still remain.
It is, however, open for the Institution to arrive at a
mutually agreed arrangement with the teaching staff
regarding their continuance, if it finds them to be
unnecessary, but unless the teaching faculty mutually
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agree to part ways, the Institution will have the obligation
to continue them and pay them their salaries by utilising
their services in other courses.
39. Learned counsel for the petitioner has produced the
proceedings of the Committee meeting held on
10.05.2021, in which it is stated that in the Mechanical
Engineering Department, the Post Graduate admission was
less than 10 in the last three years and the required
number of faculty was 38, but the faculty available at the
present was 30 and therefore, 8 additional faculty
members were required. She, therefore, contends that the
petitioners could be easily accommodated in the
Mechanical Engineering Department. She also submits a
letter dated 07.04.2021, in which the College had
informed the VTU that it had constituted a committee
which examine the possibilities of accommodating the
teaching staff on a case-to-case basis and make
recommendations to the Board of Governors. She also
relied upon another extract of the proceedings held on
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19.11.2022, wherein the Management has resolved to
reduce the intake to the Mechanical Engineering Program
and as a consequence, had resolved that the faculty and
staff in the department of Mechanical Engineering would
be relocated in the multi-disciplinary undergraduate and
Post Graduate programs.
40. Learned counsel for the College, per contra, sought
to place reliance on the Committee Report dated
17.08.2023 (produced as Annexure-R8 to the Additional
Statement of Objections). This Committee Report is,
however, contrary to the proceedings held on 19.11.2022.
41. For the sake of clarity, the proceedings of
19.11.2022, insofar as it relates to accommodating the
faculty of the Department Mechanical Engineering is
reproduced and the same reads as follows -
"Further, it is resolved that
The faculty and staff in the department of
Mechanical Engineering will be relocated in
multidisciplinary UG/PG programs and also some
of the senior faculty members are going to retire
from service in the years to come."
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42. However, the Committee Report (Annexure-R8)
states as follows, in relation to Recommendations of the
Committee -
"3. Recommendations:
a) Taking into account the expertise, diversity,
specialization and various other factors, the
faculty members of Industrial and Production
Engineering branch have already been
accommodated in the vacancies in the
Mechanical Engineering branch in the year 2022
and there is no vacancy to further accommodate
the faculty members. Another three faculty
members are proposed to be shifted to CS & BS
Branch due to their management expertise. The
final batch of students of Industrial and
Production Engineering have completed their
course in the year 2022-23.
b) There is no vacancy available at Assistant
Professor, Associate Professor and Professor
Level in the Mechanical department as on date
and therefore, it is not possible to accommodate
the existing faculty of Automobile Engineering
Department in the Aided Mechanical
Department. The total teaching faculty strength
in Mechanical Engineering is already 34, which is
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sufficient and considered as high as per the
norms of AICTE with reference to student/staff
ratio (20:1). Further the admissions of students
to Mechanical department is decreasing
continuously from past three years and in the
previous admission year only 44 candidates
were admitted. Therefore the committee has
decided to reduce the intake of Mechanical
Engineering from 180 to 120 from the academic
year 2023-24 onwards. There are no vacancies
in Mechanical Engineering department and the
work load in the said department has also
reduced considerably. Therefore it is not possible
to accommodate all the Automobile branch
faculty members in Mechanical Engineering
branch.
c) The final batch of Automobile Engineering will
pass out in the year 2023-24. The faculty
members required for final year batch of 10
students (academic year 2023-24 begins in
September 2023) is less and 2 faculty members
of the rank of Assistant Professor are sufficient
for the purpose of the final batch. There is no
work load for the existing 6 faculty members in
Automobile Engineering (i.e. 4 Professors and 2
Assistant Professor). In view of the abolition of
the course the Institution will have to abolish the
post of Professor and Assistant Professors in
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Automobile Engineering branch and relieve the
Professors and retain 2 Assistant Professors for
one more year until the final batch passes out.
d) As there is excess of teaching faculty already
present in the Mechanical department and
Automobile falls under Mechanical sciences as
per VTU norms, the courses of final year
Automobile branch can be handled by few
mechanical faculty members as the syllabus is
similar and 2 Assistant Professors from
Automobile Engineering .Therefore, in the
interest of the Institution, it would be
appropriate to abolish the faculty posts of 4
Professors in Automobile Engineering branch and
continue 2 posts of Assistant Professors for one
year and therefore abolish the post of Assistant
Professors.
e) Hence in these circumstances, the expert
committee recommends abolition of 4 posts of
professors in Automobile Engineering branch
immediately before the commencement of
seventh semester classes from September 2023
and to continue 2 posts of Assistant Professors
for one year and to thereafter abolish the 2
posts Assistant Professors."
43. These proceedings establish that though the Board of
Management had decided to accommodate the members
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of the Mechanical Engineering in various other under
graduate and post graduate programs, the Committee,
nevertheless, appears to be of the view that it was not
possible to accommodate the existing faculty of
Automobile Engineering in the aided Mechanical
Department. The Committee has stated that it had decided
to reduce the intake in the Mechanical Department from
180 to 120 and that there are no vacancies in the
Mechanical Department.
44. In my view, this Committee report is ambiguous
because the Management, itself, in its meeting held on
19.11.2022, had already decided that the faculty and staff
in the department of Mechanical Engineering would be
relocated in multi-disciplinary programs, but in the
meeting held on 10.05.2021, it was stated by a Committee
comprising of Dr.N.C.Shivaprakash, Dr.C.V.Venkatesh and
Dr.N.S.Jyothi that the required number of faculty for
Mechanical Engineering was 38, whereas the number of
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faculty present was 30 and an additional faculty of 8 was
required.
45. In light of the proceedings of the Committee meeting
held on 10.05.2021, the subsequent recommendations of
another Three-Men Committee on 17.08.2023 becomes
suspect. If the material on record indicates that the
Mechanical Engineering Department did have a shortfall of
faculty, the Management ought to have ensured that the
faculty of the Automobile Engineering were accommodated
in the Mechanical Engineering Department. However, the
Committee report dated 17.08.2023 is sought to be relied
upon by the College to fortify its contention that the post
itself is required to be abolished. In my view, this
contradictory approach of the Management cannot be
accepted.
46. The College has also placed reliance on a plethora of
judgments to contend that it is the prerogative of the
employer to abolish posts and if such a decision is taken,
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the employees have no right to challenge the same. The
citations relied on are as follows:
a) M. Ramanatha Pillai v. the State of Kerala, (1973) 2
SCC 650;
b) Notified Area Council, Pipili and Anr. V. Gahar
Mohammad and Anr., (2003) 11 SCC 784;
c) Official Liquidator v. Dayanand and Ors., (2008) 10
SCC 1;
d) Institute of Hotel Management Catering Technology
and Applied Nutrition (Karnataka) Society,
Bangalore and Ors. v. Smt. Hemalatha V. Reddy,
2005 (2) LLM 469;
e) Indian Drugs and Pharmaceuticals Ltd. v. Workmen
Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC
408;
f) State of Haryana v. Navneet Varma, (2008) 2 SCC
65.
47. As far as this argument is concerned, as already
stated above, the petitioners are employees of a Technical
Institution which is governed by the statutory Regulations,
which promises them a tenure till they attain the age of
superannuation. The judgments rendered by the Apex
Court are in the context of Service Rules which would not
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be applicable or relatable to a Technical Institution
governed under the Regulations framed by the AICTE. The
Service Rules of an organisation cannot be equated with
the regulations framed regarding teaching staff to a
technical institution and would have to be viewed. It is
also to be noticed here that the judgments on which
reliance is placed were in relation to temporary posts in
which the petitioners therein were working, and in that
context, the Apex Court had stated that it is the
prerogative of the employer to abolish posts.
48. Be that as it may, since the College has a legal
obligation to ensure that its teaching faculty continue in
service till the age of superannuation under the AICTE
Regulations, the Management cannot be permitted to
contend that it is entitled to retrench the petitioners.
Resultantly, the prayer of the petitioner requiring the
respondents to be restrained from terminating their
services will have to be granted.
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49. An argument was also sought to be advanced that
the petitioners had been relieved from service and that
they had since been terminated.
50. In light of the above observations, since the
petitioners had the right to continue to their service until
they attain the age of superannuation, the order of
termination is declared as non est and the Management is
directed to continue the services of the petitioners till they
attain the age of superannuation and pay them salaries in
accordance with the AICTE regulations. It is open for the
Management to accommodate the petitioners in any other
Department of its College and extract work from them.
The Writ Petitions are, accordingly, allowed.
51. An oral request for stay of this order is rejected.
Sd/-
JUDGE
hnm
*Page No.36 retyped and replaced vide chamber order
dated:18.01.2024.
