All Kerala
Pvt. College Teachers Assn. Vs. Nair Service Society [1994] INSC 362 (12 July 1994)
Kuldip
Singh (J) Kuldip Singh (J) Yogeshwar Dayal (J)
CITATION:
1995 AIR 2407 1994 SCC (5) 479 1994 SCALE (3)176
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by KULDIP SINGH, J.- The three universities
in the State of Kerala, namely, Kerala University, Calicut University and
Mahatma Gandhi University, have been incorporated by the Kerala University Act,
1974, Calicut University Act, 1975 and Mahatma Gandhi University Act, 1985 (the
1985 Act). The provisions of the Kerala University Act, 1974 and the Calicut
University Act, 1975 (the two Acts) are identical.
The Kerala
Government, purporting to exercise the powers under Section 83 of the two Acts
and under Section 100 of the 1985 Act issued the Kerala University
(Intra-University Transfer of Teachers of Colleges under Corporate Management
having Colleges Affiliated to the Kerala University) First Statutes, 1990 (the Kerala
Statutes), the Calicut University (Intra-University Transfer of Teachers of
Colleges under Corporate Management having Colleges Affiliated to the Calicut
University) First Statutes, 1990 (the Calicut Statutes) and Mahatma Gandhi
University (Intra-University Transfer of Teachers of Colleges under Corporate
Management having Colleges Affiliated to the Mahatma Gandhi University) First
Statutes, 1990 (Gandhi Statutes). The Nair Service Society, Respondent 1 in the
appeal herein, challenged the validity of the Kerala Statutes, Calicut Statutes
and the Gandhi Statutes by way of a writ petition before the Kerala High Court,
inter alia, on the ground that the State Government, having already framed
First Statutes in respect of the three universities, it had become functus
officio and, as such, had no authority to issue the First Statutes once over
again. A learned Single Judge of the High Court dismissed the writ petition. A
Division Bench of the High Court, however, allowed the appeal of the Nair
Service Society, set aside the judgment of the learned Single Judge and struck
down the three statutes on the short ground that the State Government 482 had
no jurisdiction to frame and issue the impugned statutes. This appeal by way of
special leave by the Kerala Private College Teachers' Association is against
the judgment of the Division Bench of the High Court.
2. We
may briefly examine the relevant provisions of the two Acts. The primary
object, of establishing a university by an Act of the State Legislature, is to
make the institution an independent autonomous authority with a view to minimise
the outside interference in its functioning. Dr S. Radhakrishnan, in the
University Education Commission's Report, 1950 observed as under:
"We
must resist, in the interest of our democracy, the trend towards the
governmental domination of the educational process.... Higher education is
undoubtedly an obligation of the State but State aid is not to be confused with
State control over academic policy and practices. Our Universities should be
released from the control of politics......" The avowed object with which
the two Acts and the Gandhi Act have been enacted by the Kerala Legislature, is
to leave the pursuit of higher education under the control and management of
various academic bodies of the universities. Even the framing of the statutes
and the ordinances which have the force of law are left to the Senate and the
Syndicate of the respective universities.
3. We
may have a look at the scheme of the two Acts.
Section
5 enumerates various powers of the university.
Clause
(xiii) of Section 5 specifically empowers the university to regulate the
emoluments and prescribe the duties and conditions of service of the teaching
and non- teaching staff in the private colleges with the previous sanction of
the Government. Section 16 names various authorities of the university
including the Senate, Syndicate, Academic Council and other bodies. Section 19
provides for the powers and functions of the Senate. Sub- section (2) of
Section 19, to the extent it is relevant, is reproduced hereunder:
"Save
as otherwise expressly provided in this Act, the Senate shall have following
powers, namely (a) * * * (b)to make, amend or repeal statutes either of its own
motion or on the motion of the Syndicate;
(c) *
* * (d) * * * (e) * * * (g) * * * (h)with the previous concurrence of the
Government, to regulate the emoluments and prescribe the duties and conditions
of service of teachers and non-teaching staff in private colleges;
483 (Kuldip
Singh, J.)
4.
Section 34 enumerates various subjects in relation to which statutes can be
framed by the Senate. Clause (k) of Section 34 further provides that statutes
can be made for all other matters which, under the two Acts, are to be or may
be prescribed by the statutes. Section 35 specifically provides that the
statutes have to be framed and passed by the Senate. Section 57 provides that
the appointments/promotions in a private college shall be made by the
educational agency. Section 60 provides that the conditions of service of
private college teachers shall be such as may be prescribed by the statutes.
Section 64 provides for inter-university transfers of the private college
teachers where an educational agency has colleges under the jurisdiction of
more than one university/universities. Section 83 of the two Acts with which we
are primarily concerned in this appeal is as under:
"Notwithstanding
anything contained in this Act, the first statutes and the first ordinances of
the University shall be made by the Government." It is thus obvious from
the various provisions of the two Acts referred to above that the conditions of
service of the private college teachers are to be prescribed by the statutes.
The power to frame and issue the statutes is vested in the Senate. The State
Government has, however, a limited power to make and issue the "First
Statutes" under Section 83 of the two Acts.
5. The
State Government had already issued statutes in the years 1976, 1979 and 1988
regulating the conditions of service of the teachers. The 1976 Statutes provide
for pension etc. of the teachers of private colleges. The 1979 Statutes are in
respect of conditions of service other than pension etc. relating to the
teaching and non-teaching staff of the private colleges. The 1988 Statutes are
in respect of transfer of teachers to other universities. All these three
statutes have been termed as "First Statutes" by the State Government
and have been framed under Section 83 of the two Acts.
6.
What is meant by the expression "First Statutes" under Section 83 of the
two Acts is the crucial question to be determined. According to the appellant
every time the State Government frames statutes in respect of a subject on
which there are no statutes in existence, it makes "First Statutes"
under Section 83 of the two Acts. The precise argument is that the expression
"First Statutes" does not mean the ones which are first in point of
time but it means every statutes framed in relation to a subject on which there
are no statutes in existence. It was contended that on different subjects
pertaining to conditions of service of teachers the State Government framed
statutes in 1976, 1979 and 1988 and all the three statutes were the "First
Statutes" because they were made to operate in different virgin fields.
7.
Learned counsel for Respondent 1 on the other hand contended that the
Legislature has delegated the power to frame statutes to the Senate of the
university. The Senate consists of elected as well as nominated members. The
constitution of the Senate by holding elections and by making nominations from
various sources is a time-consuming process. The 484 argument is that till the
time the Senate, the Syndicate and other authorities of the university are
constituted, a 'one- time' power has been given to the State Government under
Section 83 of the two Acts to make the "First Statutes" to regulate
the process of bringing into existence the various university authorities and
also for other necessary purposes. It is argued that once the Senate comes into
existence, it is only the Senate which can frame the statutes and make
necessary amendments thereto.
8. We
have given our thoughtful consideration to the rival contentions raised by the
parties. We are inclined to agree with the contentions raised by the learned
counsel for Respondent 1. The universities were incorporated and brought into
existence on the date the two Acts were enforced, but the Senate and other
bodies of the universities were yet to be constituted. The provisions of the
two Acts are not exhaustive. The fields which are left to be covered by the
statutes have been enumerated under Section 34 of the two Acts. The
universities could not have started functioning unless there were statutes in
existence immediately after the enforcement of the two Acts providing for the
constitution of the Senate/other bodies of the universities and other
regulatory provisions necessary for the functioning of the universities. To
meet this eventuality, the Legislature has given 'one-time' power to the State
Government to frame the "First Statute" under Section 83 of the two
Acts. When the Senate is constituted and becomes functional then it is the only
authority under the two Acts to frame the statutes. We fail to understand how
the State Government can frame the statutes when the Senate is functioning.
There cannot be two parallel authorities to make subordinate legislation on the
same subject-matter. In view of the scheme of the two Acts it is not possible
to contend that the Senate has no power to make statutes on a subject for the
first time. We do not agree with the learned counsel for the appellant that the
State Government has the power to keep on making "First Statutes"
till it exhausts all the subjects/topics on which statutes could be framed
under the two Acts. This argument goes contrary to the very object and purposes
of the two Acts.
9. We,
therefore, hold that the State Government has only one-time power to frame
"First Statutes" under Section 83 of the two Acts. The statutes
framed by the State Government may be in respect of one subject or various
subjects but once the State Government has framed the statutes its power under
Section 83 gets exhausted and it cannot frame the statutes for the second time.
We make it clear that the interpretation given by us to Section 83 of the two
Acts is prospective, except in relation to the impugned statutes, and will be
operative from the date of this judgment.
10. In
view of the interpretation given by us to the provisions of Section 83 of the
two Acts even the 1979 and the 1988 Statutes framed by the State Government
would be invalid but we do not hold so because this judgment has been made to
operate prospectively. The 1979 and 1988 Statutes would be, thus, considered to
be valid and operative.
485 (Kuldip
Singh, J.)
11.We
may now deal with the provisions of the Gandhi Act.
The
provisions under this Act are somewhat different than the provisions under the
two Acts. Under Section 5(xiii) of the Gandhi Act, the power to lay down the
conditions of service of teaching and non-teaching staff vests in the
university. Under Section 23(ii) the power to make statutes and ordinances and
to amend and repeal the same vests in the Syndicate of the university. The
Syndicate, under Section 23(xxviii) has the powers to frame the statutes laying
down the duties and the conditions of service of the teachers in the private
colleges. Section 36 provides for the procedure for making statutes by the
Senate and Section 59 gives powers of appointment of teachers to the
management.
Section
62 provides that the conditions of service of private college teachers shall be
prescribed by the statutes and Section 68 deals with the inter-university
transfers.
Section
99(2) of the Gandhi Act provides that all the statutes and ordinances made
under the Kerala Act and in force on the date of commencement of the Gandhi Act
shall continue to be in force in respect of the area which comes under the
operation of the university under the Gandhi Act.
Section
100 confers power on the State Government to issue the First Statutes and
ordinances. The said section is reproduced hereunder:
"Notwithstanding
anything contained in this Act, the first statutes and the first ordinances of
the University shall be made by Government in consultation with the University
Grants Commission within a period of one year from the date of commencement of
the Mahatma Gandhi University (Amendment) Act, 1988." (emphasis
supplied)
12.
The Mahatma Gandhi University (Amendment) Act, 1988 came into force on 17-2-1988. Section 100(1) reproduced above specifically
provides that the First Statutes can be made by the Government in consultation
with the University Grants Commission within a period of one year from
17-2-1988. The simple language of the section makes it clear that the power to
make the First Statutes is a one-time power. The time- limit of one year has
been prescribed because by that time the Syndicate of the university would have
started functioning and would have taken up the matter of framing the statutes
under the amended Act. The learned Single Judge fell into patent error in
holding that the period of one year provided under Section 100(1) of the Gandhi
Act was directory. The Division Bench of the High Court rightly reversed the
finding of the learned Single Judge. For the reasons given by us while
interpreting Section 83 of the-two Acts and also agreeing with the reasoning of
the Division Bench of the High Court, we hold that the State Government could
make the "First Statutes" only within a period of one year from
17-2-1988. In this case the First Statutes were issued on 25-9-1990 much beyond the period of one year. The statutes
were on the face of it in violation of the mandatory provisions of Section
100(1) of the Gandhi Act and, as such, have been rightly quashed by the
Division Bench of the High Court. While upholding the judgment of the Division
Bench of the High Court, we make it clear that the judgment of the Division
Bench of 486 the High Court shall be read in the light of the interpretation
given by us to Section 83 of the two Acts.
13. It
would be open to the Senate/Syndicate of the respective universities to take up
the matter of Intra- University transfers of teachers of colleges under corporate
managements and frame the necessary statutes in case they wish to do so.
14.
The appeal is, therefore, dismissed. No costs.
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