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WP No. 204935 of 2018

IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 11TH DAY OF AUGUST, 2023

BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH

WRIT PETITION NO. 204935 OF 2018 (S-RES)

BETWEEN:

SHARAN
S/O CHANDRASHEKHAR PADASHETTY
AGE:56 YEARS, OCC:ASSOCIATE PROFESSOR,
WORKSHOP SUPERINTENDENT IN THE DEPARTMENT
OF MECHANICAL ENGINEERING, PDA ENGINEER
COLLEGE, AIWAN-E-SHAHI AREA, KALABURAGI-
585102.

…PETITIONER
(BY SRI. K. DIWAKAR SENIOR COUNSEL FOR
SRI.ADITYA D,ADVOCATE)

AND:
Digitally signed
by VARSHA N
RASALKAR
1. THE STATE OF KARNATAKA
Location: High
Court Of
THROUGH ITS PRL. SECRETARY
Karnataka
DEPARTMENT OF HIGHER EDUCATION
M.S.BUILDING, DR.B.R.ABEDKAR VEEDHI,
BANGALORE-560009.

2. DIRECTOR OF TECHNICAL EDUCATION

TANTRIK SHIKSHANA BHAVAN
PALACE ROAD, BANGALORE - 560041.

3. THE PRINCIPAL ACCOUNTANT GENERAL (A & E)

KARNATAKA
PARK HOUSE ROAD, BENGALURU-560001.
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4. THE HEKS PDA ENGINEER COLLEGE

(AUTONOMOUS BODY OF GOVERNMENT OF
KARNATA)
AIWAN-E-SHAHI AREA, KALABURAGI-585102.
THROUGH ITS PRINCIPAL

5. THE HYDERABAD KARNATAKA EDUCATION SOCIETY

THROUGH ITS PRESIDENT,
PDA ENGINEERING COLLEGE CAMPUS,
AIWAN-E-SHAHI AREA,
KALABURAGI-585102.

6. THE REGIONAL COMMISSIONER

KALABURAGI

7. THE CHAIRMAN
GOVERNING BODY
PDA ENGINEERING COLLEGE CAMPUS
AIWAN-E-SHAHI AREA, KALABURAGI-585102.

…RESPONDENTS

(BY SRI. RAJKUMAR A. KORAWAR HCGP FOR R1 TO R3 & R6;

SRI. AMARESH S. ROJA, ADVOCATE FOR R4 & R5;
R-7 IS SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI FOR QUASHING THE IMPUGNED
ORDER VIDE NO. HKES/A8/EST/2018-19/3264 DATED-
05.11.2018 OF RESPONDENT NO.7 WHICH IS AT ANNEXURE-A
WHICH IS ALLEGEDLY PASSED ON THE BASIS OF AUDIT
OBJECTIONS RAISED BY RESPONDENT NO.3 WITH ALL
CONSEQUENTIAL BENEFITS, AND ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING

IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER

In this writ petition, the petitioner is assailing the order

dated 05.11.2018 issued by respondent No.7 (Annexure-A)

based on the audit objection raised by the respondent No.3

inter alia sought for quashing the order of approval issued by

the respondent No.2 dated 14.11.2006 imposing condition of

completing Ph.D., within seven years at Sl.No.3 as per

Annexure-D to the writ petition.

2. It is the case of the petitioner that, petitioner is a

Graduate in Mechanical Engineering and thereafter, pursuing

Ph.D., since 2007. The petitioner contended that, the

withdrawal of the appointment of the petitioner by the

respondent-institution (Annexure-A) is contrary to law as the

petitioner has made all the efforts to complete the Ph.D.,

within the stipulated period. Feeling aggrieved by the order

dated 05.11.2018 issued by respondent No.7 based on the

audit objection raised by the respondent No.3, the petitioner

has filed this writ petition.

3. Heard Sri Diwakar, learned Senior Counsel

appearing for Sri Aditya D, for the petitioner and Sri Raj
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Kumar A. Korwar, learned High Court Government Pleader

appearing for respondents 1 to 3 and 6 and Sri Sri.Amresh S.

Roja, learned counsel appearing for the respondents 4 and 5.

4. Learned Senior Counsel, Sri Diwakar, argued

that, the respondents have appointed the petitioner on

14.11.2006 (Annexure-D) whereby, the condition imposed

that, the petitioner shall complete the Ph.D within seven

years in terms of the G.O. dated 30.11.2002. In these

aspects, he emphasized on the notification dated

04.01.2016, issued by AICTE and refers to Sl No.53 and

argued that, in the event if candidate has not completed

Ph.D in 7 years from the date of joining, the only option left

with the respondents is to stop increment until such

candidate possess Ph.D Degree. Therefore, he contended

that, issuance of Annexure-A by the respondent-authorities

is based on recommendation made in the audit report which

cannot be a ground to deny relief to the petitioner. In this

regard, he places reliance on the order dated 18.02.2016

passed by the Division Bench of this Court in W.P.No.51205-

252 of 2015 and argued that, the ratio laid down in the
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aforementioned judgment is squarely applicable to the facts

on record and further the order passed by the Division Bench

has been confirmed by the Hon'ble Supreme Court in SLP

No.5495-72 of 2017 and accordingly, he sought for allowing

the prayer made in the writ petition.

5. Per contra, Sri Rajkumar A Korwar, learned High

Court Government Pleader appearing on behalf of the

respondent-Government reiterated the submission made in

the statement of objections. It is his categorical argument

that, the appointment of the petitioner was objected by the

auditor of Director of Technical Education in their audit

report dated 12.06.2014 for the Financial Year 2011-12 and

therefore, he submitted that, withdrawing the appointment

order is just and proper which cannot be interfered with in

this writ petition.

6. Sri.Amresh S. Roja, learned counsel appearing for

the respondent-Institution favours the arguments advanced

by the learned High Court Government Pleader.

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7. Having taken note of the arguments advanced by

the learned counsel appearing for the parties, the core

question to be answered in this writ petition is whether the

termination of the appointment of the petitioner interalia

direction to recover the amount as per the audit observations

by the respondents is just and proper?

8. It is not in dispute that, the petitioner was

appointed by the respondent No.5-Society, and thereafter,

promoted as Assistant Professor (PG) as Production Engineer

with effect from 01.07.1999 and thereafter, an order of

confirmation was made on 14.11.2006 (Annexure-D). The

said confirmation was subject to the condition that the

petitioner shall obtain Ph.D degree within seven years in

terms of the G.O. dated 30.11.2002. It is also not in dispute

that, the petitioner is governed by the Regulations of AICTE.

In this regard, notification dated 04.01.2016, issued by the

AICTE wherein, Item No. 53, reads as under:

Whether, Asst. Professor (Re- Such candidates will be required

designated as Associate to complete Ph.D within seven
Professor w.e.f 1-1-2006), who years from the date of Joining,
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are not able to complete the failing which increments shall

Ph.D in seven years from the be stopped until Ph.D is earned.
date of Joining (Direct/CAS) will
be reverted back.

9. Perusal of the said notification would indicate

that, in the event such Associate Professor/ Teaching faculty

fails to complete Ph.D within seven years from the date of

their joining, the option open for the respondents is to stop

the increments till such candidate acquire Ph.D Degree and

except that, the respondents have no authority under law to

pass order of termination interalia sought for recovery of any

due. In this regard, submission of learned Senior Counsel is

justified. In the judgment passed by this Court in

Lakshmidevamma (W.P.Nos.51205-51252/2015) supra,

wherein, the Division Bench of this Court, has considered an

identical cases in detail and following the declaration of law

made by the Hon'ble Supreme Court in the case of STATE

OF PUNJAB AND OTHERS VS. RAFIQ MASIH (WHITE

WASHER) reported in (2015) 4 SCC 334, and also taking

into consideration the provisions of AICTE, has arrived a

conclusion that, the recovery proceedings that may be

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initiated against such candidate who have not possessed

Ph.D degree within seven years of their entry into service is

bad in law. Paragraphs 29 and 30 of the judgment passed in

Lakshmidevamma supra, reads as under:

29. Sofar as it relates to the next important aspect that,

whether the petitioners are entitled to the same pay scale.
For the subsequent period has to be looked into. The learned
Government Pleader has brought to our notice with regard to
the qualification for the post of Assistant Professor as quoted
in the notification dated 06.09.2008 by Government of
Karnataka i.e. Ph.D First Class in any Bachelor Degree or
Master Degree level or first class Master Degree in
appropriate branch of engineering with five years of
experience and that, he required to obtain Ph.D degree
within a period of seven years from the date of their
appointment. Obtaining of Ph.D within seven years though it
is made as a mandate. In the notification dated 04.01.2016
issued by AICTE, at Item No.53, it is clarified that what
would be the consequence if the candidate (Associate
Professors) of different Departments do not earn Ph.D
degree within seven years, which reads as follows:

Whether, Asst. Professor (Re- Such candidates will be

designated as Associate Professor required to complete Ph.D
w.e.f 1-1-2006), who are not within seven years from the
able to complete the Ph.D in date of Joining, failing which
seven years from the date of increments shall be stopped
Joining (Direct/CAS) will be until Ph.D is earned.
reverted back.
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30. In view of the above said clarification even if the

candidates do no earn Ph.D within seven years, they only
lose increments until they earn Ph.D. Therefore, the
designation and pay scale will not be impaired. Even
otherwise, as could be seen from the records, the petitioners
were appointed to the said posts of Assistant Professors
during September, October and November of 2010 and they
are entitle for time from September to November, 2017 to
earn their Ph.D. Therefore, this is too premature to draw an
inference against the petitioners in this regard. Therefore,
the argument of the learned Government Pleader sofar as
this aspect is concerned, it not tenable.

10. It is also pertinent to mention herein that,

aforesaid judgment are of this Court is confirmed by the

Hon'ble Supreme Court in SLP No.5495-5572 of 2017 dated

28.01.2020. In that view of the matter, following the

declaration of law made by this Court and the provisions

contained under AICTE notification, referred to above, the

impugned order dated 05.11.2018 issued by respondent

No.7 (Annexure-A) is set aside and as the petitioner herein

has attained the age of superannuation on 31.08.2022, the

petitioner is entitled for all retiral benefits and such other

benefits accrued under the conditions of service from the

respondent No.2. Respondent No.7-Institution being aided

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and working under the instructions of respondent No.2

insofar as releasing pay scale, pension and such other

emoluments, respondent No.2 is directed to pay the arrears

of salary if any including all retiral benefits as mentioned

above, within an outer limit of three months from the date of

receipt of certified copy of this order. Accordingly, the writ

petition is allowed.

Sd/-
JUDGE

SB
List No.: 1 Sl No.: 62