Sri D. Sivakumar v. The State of Telangana

Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue Writ Order or Direction more preferably in the nature of Mandamus declare the relieving order dt.30.03.2019, bearing reference No. MVSREC/BI1/19 as illegal, arbitrary, violative of regulations of A.l.C,T.E and also Telangana Admission and Fee Regulatory Committee (TAFRC) guidelines and consequently set aside the relieving order dt.30.03.2019 bearing reference No. MVSREC/Bl 1/19. As per Court order dated 10.12.2024 vide l'A'No'1 ot 2024 n W'P'No'5433 of 2019. Prayer is amended. IA NO: 1 OF 2019 PetitionUnderSectionl5lCPCprayingthatinthecir]UmstancesStated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondents to forthwith withdraw he notice No MVSREC/B-11/19' faled 23-2-2019 and continue the Petitioner in service till he attains the Age of 65 yearsasperthenotificationofA|CTEpublishedintheGaz:tteoflndiadated 1 3.2019 , pending Disposal of this Writ Petition' Counsel for the Petitioner: SRI SURENDER RAO, Sr' COUNS iL' REP' FOR SRI T.S.PRAVEEN KUMAR Counsel for the Respondent No.1: GP FOR HIGHER EDUCATION Counsel for the Respondent No'2: SRI RAMESH BABU VISH\ruANATHULA' SC FOR UGC Counsel for the Respondent No'3: SRI MALIPEDDI SRINIVAS' REDDY' SC FOR OU Counsel for the Respondent No.4: Ms. MEGHA RANI AGAWIIRL' SC FOR AICTE Counsel for the Respondent No.S & 6: SRI SRINIVAS REDDY' The Court made the following: ORDER ,4 1 wp_5433_2019 NBK, ] THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITIO N No.5433 of 2019 ORDER: The case of the petitioner, as per the writ afftdavit, is that he was appointed as a Lecturer in 1984 in 6th respondent-MVSR Engineering College, Nadergul, Hyderabad, and later promoted to Associate Professor under the Merit Promotion Scheme w.e.f. 3 l-12-1993. He filed the present Writ Petition aggrieved by the notice issued by the Principal vide Rel'. MVSRECIB-l1l19 dated23.02.2Ol9 intbrming that hc would attain superannuation on 20.03.2019 and would be relieved on 3i'03'2019' despite the All India Council for Technical Education (AICTtr) Notification dated 01.03.20 19 explicitly prescribing the superannuatior.t age of all faculty members as 65 years under Clause 2-1.2,with a possible extension to 70 years based on fitness and academic contributiotrs. Though the Petitioner obtained a copy of the said Notification only orl Og .03 .2019 and immediately submitted a representation dated 1 1 .03 .20 I 9 requesting withdrawal of the superannuation notice, no action was taken by the respondents. The petitioner earlier faced discrirnir.ratory pa1' fixation despite his 1993 promotion, and led to his filing W.P. No.23767 ot2o)Zwhich was allowed by this court, and similar issues were upheld in W.P. Nos. 5426 and36492 of 1998 by the High Courl of A.P', reported in 2001 (6) AUf 757, directrng pariry between promoted and directly tl' Pay Revision Commission recruited Associate Professors, based on -5 recommendations; however, pay anomalies remained unaddressed, and juniors were promoted to Professors in 2007 ignoring the petitioneq I I 7 wp _5433-20]9 NBK, J compelling him to file W.P. No. 101 of 2007 and the saroe is pending, and no counter has been filed by the College yet. The pelitiorrer is eligible, healthy and willing to serve till 65 years, and any pre rature retirement would deprive him of five years' service and related 'rencfits including salary, PF, and gratuity. The College, affrliated to AICI E, is bound by its sen,ice regulations under Clause 1.2 and 1.4 of the said Notification. The petitioner therefore seeks a Writ of Mandamus, declarirrg the notice dated 23.02.2019 as illegal and violative of AICTE Notiflcation dated 01.03.2019, and to consequently direct respondent Nos.5 and 6 to continue him in service till he attains the age of 65 years.

2. No counter affidavit has been filed by respondent Nos.l. 2 and 3 in spite of several opportunities granted by this Court. Corrnter allldavit has been filed by respondent No.4. Counter affrdavit and zrdditional counter affidavit has been filed by respondent Nos.5 and 6.

3. Heard lr4r'. Surender Rao, leamed Senior Couusel appearing on behalf of Mr. 'I.S. Praveen Kumar, leamed counsel for t:le petitioner; and Mr. Srinivas l{cddy, Iearned counsel for respondent No: .5 and 6. Pelused the record.

4. Learned counsel for the petitioner would essentially contend that the petitioner, who was appointed as Lecturer in 1984 and promoted as Associate Professor with effect from 31.01.1993, was illegally retired by the 5ti' respondent college through the impugned notice t lated 23 .02.2019, stating that he would attain the age of superannuatiorr on 31.03.2019, despite being entitled to continue in service till the age of 65 years as per Regulation 2.12 oltheAICTE Regulations, 2019, whicl carne into effect n 3 wp_5433_2019 NBK, I from 01.03.2019. It is submitted that the writ petition is maintainable against the private unaided institution as per settled law and precedenls including S. Triveni vs Andhra Mahila Sabha, Vasavi College of Engineering vs A. Surnarayana, and Marwari Balika Vidyalaya vs Asha Srivastava, which recognize writ jurisdiction over private educational institutions discharging public functions and govemed by statutory obligations. It is argued that the impugned action is not a private dispute but a violation of binding statutory regulations, and the college being a technical institution approved and affrliated by AICTE, is mandatorily bound by its regulations under Sections 10 ar-rd 23 o1-the AICTEAct,

1987. The contention of Respondents No.5 and 6 that such regulations require adoption by the State Govemment is untenable, as the applicability ofAICTE Regulations is neither discretionary nor dependent on State adoption, as consistently held by this Court and also the Hon'ble Supreme Court in Pramod vs State of Maharashtra, GR Bharath Sai Kumar vs State of Karnataka, and W.P. No. 1 9447 of 20 I 6. It is further submitted that the constitutional scheme under Entry 66 of List I prevails over any contrary provision under Entry 25 of List III or Entry 41 of List II, and therefore the service conditions of faculty in technical institutions fall within the exclusive domain of Parliament. lt is also submitted that the petitioner, having been wrongfully terminated at 60 years and not being gainfully employed thereafter, is entitled to full back wages till the age of 65 years, in light of decisions such as Deepali Gundu Surwase, Dayanand Chakrawarthy, Pradeep Jttin, and Katuri Rambabz, wherein it was held that the principle of 'no work no pay' does not apply when an employee is prevented from discharging duties due to iliegal action of the 4 wp_5433_2019 NBK,,] i lI-':, employer. The petitioner, not being an employee of the State, University, or an aided institution, but of a private technical instit rtion governed by AICTE Regulations. is entitled to the benefit of superarrnuation age of 65 years and all consequential relief's, including salary an( service benefits.

5. A counter afficlavit is filed by respondent No.4 - A.ssistant Director and Regional Coordinator of All India Council for -[e,:hnical Education (AfCTE). lt is stated that AICTE, a statutory body con;tituted under Act 57 of 1987, is lesponsible for the coordinated developm:nt and regulation of technical education across India, with powers under Section l0 of the AICTE Act including granting approvals for neu' institutions and programs r-rndcr Section 10(k), and rvithholding granls fiom non- cornpliant institrLtions under Section 10(q). The petitiot rer challenges the impugned notice issued by respondents No.5 and 6, rel1,ing on the AICIE Notification dated 0l -03-2019, rnherein Clause 2.2 specifies the superannuation age for taculty as 65 years; hence. rer iring any faculty menrber belbrc attaining this age is contrary to said \otification. The Notification canre into tbrce upon publication in thc Gazefle on 01.03.2019 and remains applicable to the petitioner, who has not yet reached the prescribed age of retirement. making the notice issued by respondent No.6 unsustainable. 'lhe petitioner has already placed a oopy of this Notification on record. The AICTE has historica ly issued several Notifications dctailing service conditions, pay scales, a nd qualifications for technical education fbculty, and in light of ml merous disputes regarding retircmerit age, including the judgment ltassed in CWp No.17643 of 2003 by the Hon'ble High Court of punjalr and Haryana in Dr. S.C. Dhay,an & Others v. Llnion of India & Others. AICTE was o 5 wp 5433_2019 NBK, J directed to amend its regulations to clarifo that service condition regulations, including superannuation age, are optional for State Governments unless specifically adopted. Pursuant to this directive, AICTE proposed an amendment to its Notification dated 01.03'2019, inserting a note below Clause 2.12 (Degree) and Clause 2.9 (Diploma) stating that the age of superannuation in State-owned or aided institutions shall be govemed by the policy of the respective state Government. This amendment was approved by the Executive Committee on 28'll'2023 and is pending publication in the Gazette, to take effect thereafter'

6. A counter affidavit, and an additional counter a{fidavit. has been filed by respondent No. 5 and 6, stating that the writ petition filed against these respondents-being a private, unaided, self-financed educational institution-is not maintainable since the respondents do not fatl within the ambit of ..State" under Article 12 0f the constitution of India. The petitioner is not entitled to relief under Clause 2.12 of the AICI'E Notification dated 01.03.2019, which was issued in pursuance of UGC Letter dated 30-01-2018 and the Govemment of lndia, Ministry of Human Resource Development, Department of Higher Education's Letter dated O2-ll-2ol'7. The said documents clari8' that the scheme of revision of pay ofteachers and related benefits, including superannuation, apply only to Clentral Universities, Colleges under them, and Institutions Deemed to be Universities receiving UGC funding, and that the implementation of the scheme by State universities and colleges is contingent upon adoption by the respective State Governments. Pursuant to the 2010 AIC'I'E Regulations dated22-Ol-2010, the State Govemment ofAndhra Pradesh constituted a Committee and subsequef.rtly'' issued G.O.Ms.No' I 4 dated 1 6 wp*5433_2019 NBK, J 20-02-20 l0 and G.O. Ms.No.40 dated 28 -06 -20 1 2, spe,:ifi cally decl ining to adopt the A ICTE rule on superannuation. instea< maintaining the retirement age as 60 years for university teachers and 5li years for college staff. Notwithstanding this, the petitioner was allowed to serve till 60 year-s, although thc institution had the authority to relier e him at 58 years. The said AICItr Notilication dated 0l-03-2019, based on 7th Pay Comrnission recommendations, is not binding on t lese respondents unless adopted b1, the State through an express Gor,emrnent Order- similar to G.O.Ms.No.l4 dated 20-02-2010 which imf,lemented 6th Pay Cornmission norms. 'fhe petitioner's appointment was purely private and contractual, govcrned by, the institution's Service Rule;, especially Rule I 5 which prescribes superannuation at 60 years, in lirre rvith the State Govemment norrns, and not allected by any increase in retirement age applicable to public emplol,ees under The Telangana Public Employment (Regtrlation of A-ue of Superannuation) Act, I984. TIte relieving order dated 30-03-20I !t was cornmunicated to the petitionr.:r effective fron.r

31.03.2019 and lras rrot been challenged, therebl, rcndering the writ infructuous. Adclitionally, the petitionel accepted ret relnent benelrts, indicating acquicscence. 'the TAFRC guidelines d,ted 27-10-2021 referred to by thc petitioner are non-binding, as TAFRC lacks authority to prescribe age o1- superannuation. Further, AICTE's pou,,:r under Sections 23(l), 10(g), 10(h), and l0(i) of theAICTE Act, 1987 dces not extend to prescribing service conditions like retirement age for unaided private institr-rtions such as the respondents; and therefore rhe writ petition deserves to bc disrnissed. 4 7 wp_5433_2019 NBK, I Leamed counsel for respondent Nos'5 and 6 would contend that the 7 . writ petition is not maintainable, as Respondent No' 5 is a private unaided educational institution, and the petitioner's employment was purely contractual; that the appointment and service conditions of the petitionel are governed exclusively by the institutional byelaws and not by any statutory framework; that no element of public law is involved in the dispute; tlrat the Hon'ble Supreme Court held in St Mary's Educatiott Society v. Rai endra Prasad Bhargava, private unaided institutions are not "State" or "public authorities" within the meaning of Article 12' and disputes concerning private employment cannot be adjudicated under writ .iurisdiction unless a public duty is involved; that the petitioner was employed on a contractual basis, and the service rules frarned by Respondent No. 5 prescribed the age of superannuation as 60 years; that the petitioner was relieved on 30'03'2019 vide upon attaining the said age' and he accepted the relieving order without protest and drew all post- retirement benefits; that the petitioner is therefore estopped from challenging his retirement at this stage; that the AICTE Regulations dated 01.03.2019, prescribing the age of superannuation as 65 years' are not applioable to unaided private institutions like respondent No' 5 unless specifically adopted by the State Government; that in the instant case' the State of Telangana has not adopted these regulations nor issued any Govemment Order extending their applicability to private unaided technical institutions; that the regulations are thus not binding on Respondent No. 5; that AICTE is not empowered under Sections 10(g)' t0(h), lO(i), orSection 23(l) of theAICTEAct' 1987 to frame binding regulations goveming service conditions such as the age of 1 8 wp_5433_2019 NBK, J superannuation ibr institutions that do not receive an./ government aid. Courts have consistently held that such regulatory over."each is ultra vires the AIC'IE Act, and this is supporled by judicial decisi,tns including Kl Sudhir v. State qf Kerala (Kerala High Court), Vidarl,ha youth Welfure Socieh,v. Dr LIir Saclique,4/i (Nagpur Bench, BonLbay. High Court) wherein both the judgments both the judgments afllrr:.r that prescribing the age o1' superannuation is a matter \^.ithin the exclusive domain of the State Govemment; that determination of age of retir()ment is a policy matter to be decided by the respective State Govemm< nts: that even for State-run or aided institutions, AICTE regulations are ir applicable unless specifically adopted by the State; that the petitioler has failed to demonstrate any' such adoption by the Government ol Telangana in the context of unaided private institutions; that The Telangarra Admission and Fee Regulatory (lornmittee (TAFRC) is a regulatory body concemed solely with fee structures and adrnissions, and it has rro jurisdiction or statutory authoritv to prescribe or enforce service con<litions, including the age of retirement, and this position is well-settled in G. pulla Reddy v. State o/ A P, ,lfanam Sankara Rao v. State of Andlt.a pradesh; that even assuming without admitting that the AICTE's 2019 regulations were applicable, the rvrit petition has become infructuous as t re petitioner was relieved on 30.03.2019 after attaining rhe age of 6) years and by 31 .03.2024, he rould have attained the age of 65 years rrnd therefore, no relief of reinstatement or continuation in service su rvives; that the Govemment Order (G.O.Ms.No.3 dated ZB.O!.2O25) enhancing the superannuation age to 65 years, applies exclusively to regular teaching staffof State Uni'ersities under the administrative control of the Higher 9 wp_5433_2019 NBK, J Education Department; that the petitioner, being an employee of a private unaided institution, is not covered under the said G.O., which is also prospective in operation and cannot be retrospectively applied to benefit the pctitioner, who would have already retired; that the AICTE has proposed an amendment to Clause 2.12 of the 2019 Regulations pursuant to the judgment of the Punjab and Haryana High Court n C.Ilt P. No. 17643 o/' 2003, clarifying that the age of superannuation shall be determined by respective State Govemments for State-owned or aided institutions; that the AICTE Executive Committee approved the amendment on 28.11.2023, and it is in the process of being notified, and this confirms the position that even the AICTE does not claim autholity to fix superannuation ages for private unaided institutions; that the petitioner's reliance on the order in L/'.P. No. 8552 of 2022 is misconceived, as that decision did not consider the binding Supreme Court clarificationin Pramodv. State of Maharashtra,which held that no law was laid do*'n regarding superannuation, and failed to examine the St Mctryb Education Society case. The recent judgment of the Hon'ble Supreme Court in Dr. P.J. Dharmaraj v. Church of South India further aflinn s the inapplicability of centrally prescribed retirement ages to institutions govemed by State-specific policies.

8. Having considered the respective contentions and perused the record, it may be noted that the essential grievance of the petitioner is about his premature retirement from MVSR Engineering College, Hyderabad, on 31.03.2019, at the age of 60, despite the AICTE Notification dated 01.03.2019 prescribing a superannuation age of 65 years for faculty members. The petitioner contends that the college, being 10 wp_5433_2019 NBK, J ',-.J affiliated with AICTE, is bound by its regulations, and thus his retirement was illegal. ln St. Mary's Education Society v. Ir'.ajendra Prasad Bhargava, the Suprerne Court held that private unaid:d institutions are not "State" under Article l2 of the Constitution, and wl t petitions are not maintainable against thern unless they pertbrm public fi rnctions or duties. The Court emphasized that for a writ to be maintainable, the action complained of must have a public law element. ln the present case, the petitioner's employment and retirement are govemed by the college's intemal service rules, specifically Rule 15, whioh prescribes a superannuation age of 60 years. There is no statut )ry provision or government ordel extending the AICTE's prescribed 'etirement age to private unaided institutions in the State. Furthermi re, the AICTE's authority to enfbrce service conditions like retiremer I age on private unaided institutions is limited. In Vidarbha Youth rr\elfare Society v. Dr. Mir Sadique Ali, the Bombay High Court l-eld that AICTE regulations regarding servicc conditions are not bir Lding on private unaided institutions unless adopted by the State Gover'-rmcnt. Similarly, in K.J. Sudhirv. State of Kerala, the Kerala High Ccurt observed that AICTE's role is advisory concerning service con ditions, and its regulations do not have binding force on private unaide,.l institutions.

11. The petitioner also relies on Marwari Balika Vidyalaya v. Asha Srivastava, wl.rere the Supreme Court held that a writ petition is maintainable against a private unaided institution pt,rforming public functions. However, this case is distinguishable as the s,:hool in question was receiving sovemment aid, and the appointment and removal of teachers required approval fiom the State Govemm:nt. In contrast, _t1 wp_5433_2019 NBK, J MVSR Engineering College is a self-hnanced institution with no such governmental control over its intemal affairs.

12. Regarding the petitioner's claim for back wages, the principle laid down in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya is not applicable to the facts of the present case, as in Deepali Gundu (supra), the Supreme Court awarded back wages to an employee who was illegally tenninated without following due process' In the present case, the petitioner's retirement was in accordance with the college's service rules, and there is no evidence of any illegality or violation of due process. I 3. It is relevant to refer to the j udgment of the Hon' bie Division tsench of this Court in W.P.Nos.20542 and20547 of 20l0, wherein the matter was conceming with Chaitanya Bharathi Institute of Technology (CBIT) and the vires of AICTE Regulations, 2010 was the subject matter before the I'lon'ble Division Bench. The Division Bench, while disposing of the writ petitions, observed as follows: "There is no material on record to show that the CBIT is notified by the All lndia Counctl for Technical Education tobe either a University or a technical institution which is governed by the provisions of the 2010 Regulations. Therefore, the provisions of the 2010 Regulations do not apply to the petitioner No.2. ln any case, the petitioners being private unaided educational institutions, have a right to appoint teachers/staff and to prescribe the service conditions, including the salaries Thus, it is evident that the provisions of the 2010 Regulations do not apply to the petitioner No.2..". I I I L2 wp_5433_2019 NBK, J \ .. t

14. Further, a sipiiar issue conceming retirement agc, as the one in the present writ petition, came up before the High Courl lf Kerala in K.J. Sudhir (supra), wherein it was held as follows: "15. ln the instant case also, it is an admitted fact that t le conditions prescribed in the AICTE regulations with regard to all rnatte s concerning the co-ordination and determination of standards of techni:al education have been complied with by the State. The question wolld, therefore, only be whether the prescriptions of a uniform retiremeni age comes within the ambit of co-ordination and determination of standards of education. Though the learned counsel for the petitioner places reliance on several decisions ofthe High Court of Punjab and Haryana as well as the High Court of [\Iaharashtra. in view of the fact that the question has been specifically considered by Division Benches of this Ccurt and since there are no binding decisions of theApex Court specificaily on the point, I am bound by the judgments of this Court. The Divisiorr Bench has specifically considered whether the prescription of age >f retirement would fall within the scope of "co-ordination and det€ rmination of standards of education" and has been specifically held thal it would not. It is found that the fixing of retirement age of teachers is thr:r prerogative of the State Government and a policy decision which the State has to adopt taking note of the prevailing factual situations availing in the State. I notice that the AICTE Regulations also proceed on the basis of lack of qualified hands being available for aopointment as teachers The State is on record stating that there is absolutely no such dearth in the State of Kerala and that it would not be in lhe interest of maintaining standai.ds of education to deny opportunity to fully qualified youngsters to be appointed as teachers. ln the above factual situation, I am c f the opinion that the prayers. as sought for, in the writ petitions cannoi be granted. The writ petitions fail and the sarne are accorrJingly dismissed."

16. In that vie,r,of the matter, this Court is of the view lhat the rationale in the Common Order dated 06.09.2024 passed by the I lon, ble Division 13 wp_5433_2019 NBK, J Benclr of this Court in W.P.Nos.20542 and 20547 of 2010, and the rationale in the judgment in K. J. Sudhir (supra) of the High Court of Kerala, is applicable to the facts of the present case, and hence the writ petition, being devoid of merit, is liable for dismissal.

17. Accordingly, the writ petition is dishtissed. No costs. Miscellaneous petitions pending, if any, shall stand closed. \ To, //TRUE COPY// SD/.MOHD. ISMAIL DEPUTY REGISTRAR I I sEcTtoN OFFTCER I 1 J

4. PUC] One CC to SRI T S.pRAVEEN KUMAR Adv One CC to SRI SR|N|VAS REDDY, Advocate IOPUCI One CC to SRt MALtpEDDt SR|N|VAS REDDY, SC FOR OU [OPUC] One CC to Ms. MEGHA RAN| AGAWARL, SC FOR ATCTE tOpUCl One CC to SRI RAtvtESH BABU VTSHWANATHULA, SC FOR UGC tOpUCl 6. Iwo CCs to cp FOR iil^q[qR EDUCATTON, High Court for the State of 7. Two CD Copies Telangana at Hyderabad [OUT] - . - '! I ,:

5. BSR BS HIGH COURT DATED:2810512025 \ I ORDER WP.No.5433 of 2019 ( oR THE S: 4 o o (c 13 JU|l m5 i oeSo416., DISMISSING THE WRIT PETITION, WITHOUT COSTS e{ 5b\