ALL KERALA PRIVATE COLLEGE TEACHERS ASSOCIATIONversusTHE NAIR SERVICE SOCIETY AND ORS.

A    ALL KERALA PRIVATE COLLEGE TEACHERS ASSOCIATION
                                        v.
                 THE NAIR SERVICE SOCIETY AND ORS.

                                  JULY 12, 1994

B            [KULDIP SINGH AND YOGESHWAR DAYAL, JJ.]

          Universities-Kera/a University Act, 1974/Ca/icut University Act,
    1975/Mahatma Gandhi University Act, 1985-Sections 83/83/10(}-Power of
    State Government to make First Statutes-Scope and limitation of
c
          The three Universities in the State of Kerala, were incorporated by
    the Kerala University Act, 1974, Calicut University Act, 1975 and Mahatma
    Gandhi University Act, 1985. The provisions of the Kerala University Act
    and Calicut University are identical. The State Government issued the
    Kerala University (intra University transfer of teachers of Colleges under
D   Corporate meanagement having colleges affiliated to the Kerala Univer-
    sity) First Statutes 1990. Similarly it issued First Statutes in respect of
    Calicut University and Mahatma Gandhi University.

          Respondent No. 1 challenged the validity of these three Statutes by
E   way of a Writ Petition before the High Court inter a/ia on the ground that
    the State Government having already framed First Statutes in respect of
    the three universities, had become functus officio and as such had no
    authority to issue the First Statues once over again. The Writ Petition was
    dismissed by a Single Judge. On appeal, the Division Bench struck down
    the three statutes on the ground that the State Government had no
F   jurisdiction to frame and issue the statutes. Hence this appeal.

          Dismissing the appeal, this Court

          HELD : 1.1. It is obvious from the various provisions of the Kerala
G University Act, 1974 and Calicut University Act, 1975 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. [440-H, 441-A]

H         1.2. The universities were incorporated and brought into existence
                                        436




                                                                                   •
             TEACHERS ASSN. v. NAIR SERVICE SOCIETY                  437

on the date the two Acts were enforced, but the Senate and other bodies of A
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 Acts providing for the constitu-
                                                                             B
tion 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 Govern-
ment 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. The State Government C
can not frame the statutes when the Senate is functioning. There cannot
be two parallel authorities to make subordinate legislation on the same
subject-matter. The State Govt. does not have 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. That would be contrary to the very D
object and purposes of the two Acts. [442-A-E]

      1.3. In view of the interpretation now given 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 it cannot be so because this
judgment has been made to operate prospectively. The 1979 and 1988 E
Statutes would be, thus, considered to be valid and operative. [442-H]

       2. The provisions under the Mahatma G;ndhi University Act, 1985
(Gandhi Act) are somewhat different than the provisions under the other
two Acts. S.100 of the Gandhi Act confers power on the State Government F
to issue the First Statutes and ordinances. The Mahatama Gandhi Univer-
sity (Amendment) Act, 1988 came into force on 17 February, 1988. Section
100(1) 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 February 17, 1988. The simple language
of the section makes it clear that the power to make the First Statutes is G
a one time power. The time limit or one year has beeu 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 Single Judge fell into patent error in holding that the
period of one year provided under Section 100(1) of the Gandhi Act was H
    438                  SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.

A   directory. The Division Bench of the High Court rightly reversed the said
    finding. The State Government could make the "First Statutes" only within
    a period of one year from February 17, 1988. In this case the First Statutes
    were issued on September 25, 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
B   by the Division Bench of the High Court. [443-B, F-H, 444-A·B]

          CNIL APPELLATE JURISDICTION : Civil Appeal No. 5409/92.

          From the Judgment and Order dated 7-4-92 of the High Court of
C Kerala at Ernakulam in Writ Appeal No. 380 of 1991.

          P.S. Poti and EMS Anam for the Appellants.

         AS. Naimbiar, R. Sasiprabhu, R.F. Nariman and K.V. Mohan for the
    Respondents.
D
          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.
E Calicut University Act, 1975 and Mahatma Gandhi University Act, 1985
  (the 1985 Act). The provisions of 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
F University (intra university transfer of teachers of colleges under corporate
  management having colleges affiliated to the Kerala University) First
  Statutes 1990 (the Kerala Statute), the Calicut University (intra university
  transfer of teacher of colleges under corporate management having col-
  leges affiliated to the Calicut University) First Statutes 1990 (the Calicut
  Statutes) and Mahatma Gandhi University (intra university transfer of
G teacher 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
H ground that the State .Government, having already framed First Statutes in
  TEACHERS ASSN. v. NAIR SERVICE SOCIETY [KULDIP SINGH, J.] 439

respect of the three universities, it had become functus officio and, as such,   A·
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 had no
                                                                                 B
juriadiction 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.

       We may briefly examine the relevant provisions of the Two Acts. The
primary object, of establishing a university by an Act of the-State Legisla-     C
ture, 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        D
         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 ........... "                              E
The avowed object with which the Two Acts and the Gandhi Act have been
enacted by the Kerela Legislature, is to leave the pursuit of higher educa-
tion under the control and management of vario•1s 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          F
respective universities.

      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- G
teaching staff in the private colleges with the previous sanction of the
Government. Section 16 names various authorities of the university includ-
ing 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:-        H
    440                             SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A           "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
B            on the motion of the Syndicate:

             (c) ············

             (d) ........... .

c            (e) ............


          • (f) ············
             (g) ············
D            (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;

             (1.) ........... . "

E       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
F 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
  jurisdication of more than one university/universities. Section 83 of the Two
G 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. 11

H    It is thus obvious from the various provisions of the Two Acts referred to
  TEACHERS ASSN. v. NAIR SERVICE SOCIETY [KULDIP SINGH, J.] 441

above that the conditions of service of the private college - teachers are to A
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.

       The State Government had already issued statutes in the years 1976,
1979 and 1988 regulating the conditions of service of the teachers. The 1976
                                                                                   B
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             c
Government and have been framed under Section 83 of the Two Acts.

      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          D
subject on which there are no statutes in existence, it makes 11 First Statutesn
under Section 83 of the Two Acts. The precise argument is that the
                           11
expression "First Statutes does not mean the one which are frrst 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 Govern-         E
men! framed statutes in 1976, 1979 and 1988 and all the three statutes were
the "First Statutes11 because they were made to operate in different virgin
- fields.

      Learned counsel for respondent 1 on the other hand contended that F
the Legislature has delegated the power to frame statutes to the Senate of
the university. The Senate consists of elected as well as nominated mem-
bers. The constitution of the Senate by holding elections and by making
nominations from various sources is a time consuming process. The argu-
ment 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 G
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 L..e statutes and make necessary amendments tltereto.                   H
    442                    SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A        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 incor-
  porated and brought into existence on the date the Two Acts were en-
  forced, 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
B 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/l)ther bodies of the universities and other regulatory provisions
C 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
D 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
E "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.

          We, therefore, hold that the State Government has only one time
F 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
G   impugned statutes, and will be operative from the date of this jndgrnent.

           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
H   has been made to operate prospectively. The 1979 and 1988 Statutes would
  TEACHERS ASSN. v. NAIR SERVICE SOCIETY [KULDIP SINGH, J.] 443

be, thus, considered to be valid and operative.                                A

       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
                                                                               B
ordinances and to amend and repeal the same vests inJhe Syndicate of th_e
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      C
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          D
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    E
        and the first ordinances of the University shall be made by Govern-
        ment 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."
                                                                               F
       The Mahatma Gandhi University (Amendment) Act, 1988 came into
force on February 17,.1988. Section 100(1) reproduced above specifically
provides that the First Statutes can be made by the Government in con-
sultation with the University Grants Commission within period of one year
from February 17, 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 G
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 H
    444                   SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R.

A   Division Bench of the High Court rightly reversed the finding of the
    learned single J udgc. 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 February 17, 1988.
    In this case the First Statutes were issued on September 25, 1990 much
B   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 the
c   High Court shall be read in the light of the interpretation given by us to
    Section 83 of the Two Acts.                                            ·

           It would be open to the Senate/Syndicate of the respective univer-
    sities to take up the matter of intra university transfers of teachers of
    colleges under corporate managements and frame the necessary statutes in
D case they wish to do so.
           The appeal is, therefore, dismissed. No costs.

    G.N.                                                      Appeal dismissed.