The Hon’ble High Court of Madras comprising a bench of Hon’ble Mr. Justice V. Parthiban was posed with a question whether the AICTE regulations are mandatory to follow on the Universities / technical institutions which are following the rules framed by the State Government in the case of Dr. S. Kothandaraman v. Pro Chancellor, Puducherry Technological University & Ors., WP Nos. 17918 and 17929 of 2021. The Madras High Court has held that the AICTE regulations are mandatory on the universities / institutions and they will have to follow the regulations in letter and spirit and accordingly will have to increase the retirement / superannuation age to 65.
In the instant case, the Petitioners were given premature retirement on their completing the age of 62 years, in complete contravention to the AICTE regulations and accordingly approached the Madras High Court.
The Parliament had established an All India Council for Technical Education by way of the AICTE Act, 1987. This act was enacted “with a view to the proper planning and coordinated development of the technical education system throughout the country, the promotion of qualitative improvements in such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith.”
Section 2(g) of the act defines “technical education” and Section 2(h) defines “technical institution”, which is as follows:
“2. Definitions – In this Act, unless the context otherwise requires –
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(g) “technical education” means programmes of education, research and training in engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare;
(h) “technical institution” means an institution, not being a University, which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions;”
Section 23 of the AICTE Act empowers the Council to make regulations, which is as follows:
“23. Power to make regulations.—(1) The Council may, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act, and the rules generally to carry out the purposes of this Act.
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In pursuance to the power to frame regulations under Section 23 of the Act, the AICTE Regulations, 2010 were notified on 22.01.2010 by the Ministry of Human Resource Development, Department of Higher Education, Government of India. According to these regulations, the age of superannuation / retirement was 65 years with a provision for re-employment on contract appointment beyond the age of 65 years up to the age of 70 years, on the fulfilment of certain conditions.
Subsequently, in 2019, the AICTE Regulations, 2019 (All India Council for Technical Education Pay Scales, Service Conditions and Minimum Qualifications for Appointment of Teachers and Other Academic Staff such as Library, Physical Education and Training & Placement Personnel in Technical Institutions and Measures for the Maintenance of Standards in Technical Education – (Degree) Regulation, 2019) were issued by the Ministry of Human Resources Development, Department of Higher Education, Government of India vide Notification dated 01.03.2019.
These AICTE Regulations, 2019 in view of Regulation 1.2 are applicable to all degree level technical institutions and universities including deemed to be universities imparting technical education, etc.
As per Regulation 2.12 of AICTE Regulations, 2019, the age of superannuation / retirement of all faculty members and Principals / Directors of institutions shall be 65 years, with an extension of 5 years (till the age of 70 years) may be given for those faculties who are physically fit, have written technical books, published papers and has average 360 degree feedback of more than 8 out of 10 indicating them being active during last 3 preceding years of service.
Accordingly, the Petitioners had filed the instant matter before the Madras High Court with a prayer for direction to the university to increase the age of superannuation / retirement from 62 years to 65 years in view of the AICTE Regulations, 2019.
The Petitioners submitted that the AICTE regulations, being enacted by the AICTE being the apex body, its regulations are automatically applicable across the spectrum and there is no option provided to any individual institution or university to have its own service conditions, outside the framework of AICTE regulations.
Reliance was placed on the judgment of the Hon’ble Supreme Court of India in the case of State of Tamil Nadu and Anr. V. Adhiyaman Educational & Research Institute and Ors., 1995 (4) SCC 104 whereby the Hon’ble Supreme Court was considering the applicability of the AICTE Act as against the State enactments looking after the Higher Education in Tamil Nadu. The Hon’ble Supreme Court observed that while the AICTE Act was drafted under Entry 66 of Union List and the State enactments were drafted under entry 25 of the Concurrent List and if there is a conflict in the two legislations, the legislation enacted by the Parliament under Entry 66 of the Union List will get primacy with respect to the conflicting provisions. The Supreme Court observed that,
“41.What emerges from the above discussion is as follows:
(i) The expression “coordination” used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make “coordination” either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.
(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause [2] of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.”(Emphasis and underline supplied)
Therefore the Hon’ble Supreme Court, while interpreting Entry 66 of Union List vis-a-viz Entry 25 of the Concurrent List of the Seventh Schedule of the Constitution has observed that to the extent the State Legislation is in conflict with the Central Legislation, the same will be void and inoperative,
Further, a Division Bench of the Punjab and Haryana High Court in the case of Dr. Jogender Pal Singh and Ors. v. Union of India and Ors., CWP 20447 – 2020 was posed with a similar question regarding the applicability of the AICTE Regulations or the Rules framed by the Union Territory of Chandigarh will be applicable. While placing reliance on two judgments of the Hon’ble Apex Court in the case of Parshavanath Charitable Trust vs. All India Council for Technical Education, 2013 (2) SCT 163 and in the Foundation for ORE Fore School of Management vs. AICTE, 2019 (3) SCT 307, the High Court observed that,
“It cannot be disputed that the regulations issued by the AICTE, the UGC and the Council of Architecture are binding upon the colleges and institutions covered under these Acts…Thus, it can clearly be said that the regulations issued under the Statute, which have come into force under the Central Act, would be operative qua the colleges/ institutions which would fall within the said regulations and the rules framed under the proviso to Article 309 would, therefore, have to give way to the regulations in case of there being any conflict.
In view of the above, the answer to the above posed question in para 8 would be that AICTE Regulations 2010/2019 and Architecture Regulations 2017 shall apply in case of conflict with the 1992 Rules.”
It is pertinent to mention herein that the abovementioned Judgment of the Punjab and Haryana High Court was challenged before the Hon’ble Supreme Court, however, the same was withdrawn by the State and thus the order of the High Court attained finality.
It is pertinent to mention herein that the Karnataka High Court in the case of Dr. G.R. Bharat Sai Kumar vs. State of Karnataka, W.P.No.15421/2020 decided on 24.05.2021 also decided a similar question and the High Court observed as follows:
“13. The mandatory nature of the Regulations notified by the AICTE applicable to degree level institutions is considered by the Apex Court in the case of Parshvanath Charitable Trust v. All India Council for Technical Education reported in (2013) 3 SCC 385, which reads as follows:
“25. It is also a settled principle that the regulations framed by the Central authorities such as AICTE have the force of law and are binding on all concerned. Once approval is granted or declined by such expert body, the courts would normally not substitute their view in this regard. Such expert views would normally be accepted by the court unless the powers vested in such expert body are exercised arbitrarily, capriciously or in a manner impermissible under the Regulations and the AICTE Act.”(emphasis supplied)
14. The emphasis in the afore-extracted Regulations of the AICTE is that it regulates service conditions of faculty members of the Institutes regulated by AICTE. Regulation 1.2 mandates that it applies to all degree level Technical Institutes and Universities. Regulation 2.12 unequivocally depicts that age of superannuation of all faculty members, Principals and Directors of the Institutes which would mean degree level technical institutes shall be 65 years and discretion is vested with the Institutes to extend it up to 70 years. The mandatory nature of the direction is with regard to the age of superannuation being 65 years and the directory nature of the Regulations is an extension to 70 years from 65 years. Therefore, any Institute being regulated in terms of Regulation 1.2 would be bound by the service conditions stipulated in the Regulations.
It is not in dispute that norms and standards prescribed by the AICTE regulate the service conditions of the faculty of the 4th respondent/Institute.”
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20. The Apex Court clearly holds that there is no compulsion to accept or adopt the UGC scheme which enhanced the age of superannuation from 62 to 65 years. The Regulations of the AICTE applicable to the case at hand are mandatory in nature and do not leave any discretion to the degree level institutions to implement it or otherwise, as it is couched in such language that following mandate of the Regulations would be in consonance with the maintenance of minimum standards of teaching and appointment of faculties in all the degree level technical institutions. Therefore, the judgment in the case of Jagdish Prasad Sharma, in my considered view, would be inapplicable to the facts obtaining in the case at hand.” (emphasis supplied)
Therefore, even the High Court of Karnataka in the abovementioned matter reaffirmed the mandatory nature of the applicability of the AICTE Rules and in all institutions where the AICTE Act applies, the superannuation / retirement age should be 65 years, irrespective of whatever may be contained in the State / local rules, as the Hon’ble Apex Court has time and again held that the AICTE Regulations are mandatory to be followed.
In fact, recently, the Division Bench of the Madras High Court in the case of V. Lekha v. Chairman UGC & Ors., 2021 SCC OnLine Mad 2946 answered the question whether the Central Legislation, enacted under Entry 66 of List I will prevail over the State enacted legislation enacted under Entry 25 (List III) and observed that the legislation drafted by the Parliament under Entry 66 of List I will prevail over an enactment by the State enacted under Entry 25 of List III.
Further, a Single Judge of the Madras High Court in the case of S. Palanivel v. Principal, Pondicherry Engineering College, WP No. 10049 of 2004 has also conferred with the abovementioned judgments.
A recent decision of the Bombay High Court in the case titled Lalit Rajendra Gajanan v. Vidyavardhani, through its Secretary, 2021 SCC OnLine Bom 3649, the Bombay High Court has yet again observed and held that the AICTE Regulations will prevail over the State enactment.
In view of the abovementioned judgments of the Hon’ble Supreme Court as well as various High Courts, the Madras High Court in the instant matter titled Dr. S. Kothandaraman v. Pro Chancellor, Puducherry Technological University & Ors., WP Nos. 17918 and 17929 of 2021, held as follows:
27. In the teeth of the mandatory nature of AICTE regulation and also the decision of the Courts which have clearly and categorically clarified the legal position as to the mandatory nature of the AICTE regulations, yet the stand adopted by the third respondent University that unless the regulations are specifically adopted by the University, the same cannot have automatic application is nothing but advancing a specious case on behalf of the university. In the opinion of this Court, the university appears to be blissfully oblivious to the constitutional scheme and also various case laws which have consistently held that the AICTE regulations are mandatory in nature. The warped interpretation of regulation 2.11 by the University to wriggle out of its legal obligation in regard to the prescription of age of superannuation, is to be discountenanced as being downrightly vexatious.
28. For all the above stated reasons, this Court is of the considered view that the age of superannuation as prescribed under regulation 2.12 is binding on the third respondent University and any other prescription of age of superannuation repugnant to the AICTE regulation is to be held void and inoperative and it cannot be enforced in law.
29. The trajectory of the above judicial discourse would only lead to an inexorable conclusion that these petitioners have made out a peremptory case for grant of relief as prayed for by them.
30. In the said circumstances, there will be a direction to the third respondent University to reinstate the petitioners in service forthwith and continue them in service till they attain the age of 65 years, as prescribed by AICTE regulations, 2019.”
Therefore, the Madras High Court observed in the instant matter that the AICTE Act as well as the Regulations that are enacted by the AICTE (which are to be treated as subordinate legislation), will always prevail over any state enactments with respect to the superannuation / retirement age and as such in all the technical institutions / universities including deemed universities, wherever the AICTE Regulations, 2019 apply, the superannuation / retirement age for teaching faculty should mandatorily be 65, with an option of extension on contract basis till the age of 70.
