"8. S. 57 of the Kerala University Act stipulates that conditions of service of teachers of the affiliated colleges are to be prescribed by the University. As per S. 58 of the Kerala University Act, teachers of colleges shall possess such qualifications as may be prescribed by regulations by Academic Council. As has already been indicated the said scheme was brought in by the Regulations of the Kerala University as per amendment made in the Regulation by academic council on 10.12.1990 which has not been amended yet in line with UGC Scheme. In fact in CCC 721/2000 which was filed in connection with O.P. 12665/2000 State Government filed a statement stating that UGC Scheme was introduced from 1.1.1986 based on the directions from the Government of India. The qualification for the post of Lecturers/Principals etc. of Univerities and Colleges were prescribed by the U.G.C. and Government passed GO(P)171/99/H.Edn. dated 21.12.1999 for implementation of the said scheme. Unless and until amendments are effected in the University statutes the same would not be applicable to the private colleges. Management of private colleges are not bound to follow the same.

9. The Apex Court in 

University of Delhi v. Raj Singh & Ors. (AIR 1995 SC 336) 

upheld that the validity of the University Grants Commission (Qualifications required of a person to be appointed to the teaching staff of a University and Institutions affiliated to it) Regulations, 1991. It was ordered that the Delhi University was obliged under law to comply with the provisions contained therein and was directed selection of Lecturers strictly in accordance with the said Regulations. While holding so, Apex Court also considered the consequences of non-complying with the U.G.C. Regulations. In this connection it is profitable to refer para. 21 of the said judgment. We may extract the relevant para. 21 of the said judgment. 

“The provisions of clause of the said Regulations are, therefore, recommendatory in character. It would be open to a University to comply with the provisions of clause 2 by employing as lecturers only such persons as fulfil the requirement as to qualification for the appropriate subject provided in the schedule to the said Regulations. It would also be open, in specific cases, for the University to seek the prior approval of the U.G.C. to relax these requirements. Yet again, it would be open to the University not to comply with the provisions of clause 2, in which case, in the event that it failed to satisfy the U.G.C. that it had done so for good cause, it would lose its grant from the U.G.C. The said Regulations do not impinge upon the power of the University to select its teachers. The University may still select its lecturers by written test and interview or either. Successful candidates at the basic eligibility test prescribed by the said Regulations are awarded no marks or ranks and, therefore, all who have cleared it stand at the same level. There is, therefore, no element of selection in the process. The University's autonomy is not entrenched upon by the said Regulations." 

We may also refer to para. 24 of the judgment wherein Apex Court held as follows : 

"Put shortly, the Delhi University is mandated to comply with the said Regulations. As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said regulations. Or it may seek prior approval for the relaxation of this requirement in a specific case, or it may appoint as lecturer one who does not meet this requirement without having first obtained the UGC's approval, in which event it would, if a failed to show cause for its failure to abide by the said Regulations to the satisfaction of the U.G.C. forfeit its grant from the U.G.C. If however, it did show cause to the satisfaction of the U.G.C. it not only would not forfeit its grant but the appointment made without obtaining the U.G.C.'s prior approval would stand regularised." 

We may indicate it is entirely for the State Government and the University authorities to regulate their affairs and face the consequences of noncompliance with the U.G.C. Regulations, as held by the Apex Court, which we have extracted herein before. We may also indicate since necessary amendments have not been incorporated in the University statutes it cannot be held that the management of affiliated colleges are bound to follow the same. They are governed by the University Act and Statutes. In this connection we may also refer to the decision of the Division Bench of this Court in Joykutty v. State of Kerala, 2000 (3) KLT SN P. 32 wherein this court held that U.G.C. Scheme does not become applicable because of any statutory mandate making it obligatory for the Government and the University to follow the same. It is for the State Government and University Authorities to take steps to carry out necessary amendments in the University Act and Statutes and issue orders accordingly. Since the qualifications prescribed by the U.G.C. were not incorporated in the Statutes the Tribunal was not justified in holding that the selection conducted by the Management on the basis of the existing provisions of the University Act and Statutes is bad in law.

10. The selection and appointment of the second respondent as Principal in S.N. College, Alathur was the subject matter of W.A. 2042/98. Petitioner was not a party to the said judgment but management was a party. So long as that judgment stands management is bound by that judgment. On the basis of that judgment University of Calicut vide its order dated 20.4.1999 has already approved the appointment of second respondent as Principal of S.N. College, Alathur with effect from 16.11.1992. The approval has not been challenged. This Court in this case is not justified in examining the validity or otherwise of those proceedings especially since the said order was passed in pursuance of the order of the Division Bench. Under the above mentioned circumstances we are inclined to allow both these Writ Petitions. We do so." 

“4. We may clarify the scheme referred to UGC (University Grants Commission) Scheme of 1986 framed by the Government pursuant to the Malhotra Committee’s Report. We may further point out that it is clear from paragraph 4 of the circular dated 17th June, 1987, addressed by the Ministry of Human Resources Development, Department of Education, to the Education Secretary of all States/UTs (Union territories) that the adoption of the scheme was voluntary, and the only result which might follow from the State Government not adopting the scheme might be that it may not get the benefit of the offer of reimbursement from the Government to the extent of 80 per cent of the additional expenditure involved in giving effect to the revision of pay scales as recommended by the Scheme.

5. We may further point out that the teachers in Universities are governed in respect of their conditions of service and the age of retirement by the separate statutes made by the Universities concerned. On the other hand the teachers in private colleges or affiliated colleges are governed in respect of their conditions of service by regulations or rules framed by the Government (separate state of statutes). In these circumstances, the two classes of Universities teachers and teachers in private colleges cannot be regarded as similar for purposes of conditions of service as to bring the case under Art. 14 of the Constitution. 

“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.

4. THE State Government had already issued statutes in the year 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. 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 one which is first in point of time but it means every statute 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. 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 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.

5. 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.

6. 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. 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. 

7. THE Mahtma Gandhi University (Amendment) Act, 1988 came into force on 17/02/1988., 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 17/02/1988. 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 17/02/1988. In this case the First Statutes were issued on 25/09/1990 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 the High Court shall be read in the light of the interpretation given by us to Section 83 of the Two acts." 

“11. The 1976 statutes (S.R.O. No. 377 of 1976) deal with pension, provident fund, gratuity, insurance and age of retirement of teachers of private colleges. The statutes of 1979, the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statute, 1979 is in respect of the conditions of service “other than” pension, provident fund, gratuity, insurance and age of retirement of teachers and members of the non-teaching staff in private colleges. The 1988 statutes are in respect of transfer of teachers to other Universities. The first statutes issued in 1979 and 1988 are not under challenge before us. It can be seen that the power of the government to issue first statutes, conferred under S. 83 of the Act, has already been exercised thrice by the government in regard to the very same subjectcondition of service. S. 13 of the Interpretation and General Clauses Act, 1125, which is applicable to Kerala (corresponding to S.14 of the General Clauses Act) states that where by any Act any power is conferred then, unless a different intention appears, the power may be exercised from time to time as occasion arises. In the present case, the provisions in S.83 of the University Act, in the light of the other provisions already referred to, certainly evinces an intention to the contrary that the power under S. 83 can be exercised only once and not from time to time. That power having been already exercised by the Government in relation to conditions of service of private college teachers by issuing statutes in 1976 and 1979 got itself exhausted and cannot be utilised after a period of fifteen years from the date of its first exercise. We are supported, in the above view, by two decisions of the Supreme Court, reported in Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC331) and Lachmi Narain v. Union of India and others (AlR 1976 SC 714)." 

"20. We find it difficult to agree with this conclusion of the learned single Judge. Lachmi Narain’s case (AIR 1976 SC 714), the Supreme Court has laid down the test to find out whether a section is mandatory of directory, in the following manner: 

“The primary key to the problem whether a statutory provision is mandatory or directory is the intention of the lawmaker as expressed in the law itself. The reason behind the provision may be a further aid to the ascertainment of that intention”. 

We have already said, while construing the provisions in the Kerala and Calicut University Acts, that the object of the University Acts is to give autonomy to the Universities in academic and other educational matters. The same will hold good in respect of Mahatma Gandhi University also. The authorities like the Senate, Syndicate, etc. are to be constituted under the Act and primarily the conditions of service of teachers have to be made by the Syndicate, by means of a statute. As stated earlier, it may take some time for the constitution of these bodies, which consist of ex-officio members, elected members and nominated members. It is only to avoid a stalemate during the interragnum that an enabling provision is made in S. 100(l) of the Mahatma Gandhi University Act, by which, authority is given to the Government to make first statutes in respect of matters which are to be provided for in the statutes. It is with that object in mind that a period of one year was provided for in S. 100(l) of the Act and it cannot be said to be only directory. It is not as if the University is powerless, even if the period of one year mentioned in S. 100(1) is over, for, the power is vested in the Syndicate to make statutes in regard to the conditions of service of teachers. That power is not at all affected in any way by the expiry of the period of one year and the authorities constituted under the Act will have the power to make statutes in regard to the conditions of service of teachers. Accordingly we hold that the power of the Government to issue first statutes conferred on them under S. 100(l) of the Act will cease to have operation on the expiry of the period of one year from the date of commencement of the Mahatma Gandhi University (Amendment) Act, 1988. In that view of the matter, Ext. P3 statute issued by the Government in respect of private college teachers coming under the Mahatma Gandhi University Act is also equally without jurisdiction and is inoperative." 

“57(1) Appointments to the posts eligible to receive salary from the Government shall be made only against the posts sanctioned by the Government or by such officers as may be authorised by the Government. 1A) Appointments to the lowest grade of teachers in each department of a private college shall be made by the educational agency by direct recruitment on the basis of merit.” 

“3. Appointment of Teachers.- 

Teachers of the University shall be appointed by the Syndicate after advertisement inviting applications. In making appointments by direct recruitment to posts in any class or category in each department under the University, the University shall observe the provisions of clauses (a), (b) and (c) of rules 15, 16 and 17 of the Kerala State and Subordinate Service Rules, 1958 as amended from time to time. It shall however be competent for the Syndicate to appoint in exceptional cases Professors and Associate Professors and Readers without advertisement, if it is satisfied that persons already in the service are suitable for the post.” 

“2. Applicability of the Kerala Service Rules etc., to the non-teaching staff.- 

(1) Subject to the provisions of the Act and the Statutes issued thereunder, the Kerala State and Subordinate Services Rules, 1958, the Kerala Services Rules, 1959 and the Government Servants Conduct Rules 1960 as amended from time to time in so far as may be applicable and except to the extent expressly provided for in these Statutes shall apply in the matter of all the service conditions of the University employees in the University service: Provided that the said rules shall, in their application to the members of the University service, be construed as if the employer were the Kerala University instead of the Kerala State Government.” 

“39. Application of the Kerala Service Rules to the teachers.- 

(1) Subject to the provisions of the Kerala University Act, 1974 and the Statutes issued thereunder, the rules contained in Parts I and II of the Kerala Service Rules for the time being in force, except those mentioned below, shall, so far as may be, apply to the teachers of private colleges. 

(2) All orders, Government decisions, rulings and notifications issued by the Government with reference to any provision in Parts I and II of the Kerala Service Rules which are applicable to the teachers of private colleges, shall also so far as may be, apply to them, subject to such modification as the context may require.” 

“Appointment of teachers by direct recruitment - for making appointment to the post of teachers by direct recruitment, the post shall be advertised in two English and two Malayalam daily newspapers approved by the University for a minimum period of 30 days for the aspirant to apply”. 

“1A: The educational agency shall have the option to have all the members of the teaching staff selected purely on the basis of merit from candidates of all communities or reserve every alternate vacancy of 50% of the vacancies for being filled up on the basis of merit from among candidates of any particular community to be specified by the educational agency.” 

“68. Application of the Kerala Service Rules to the non-teaching staff:- 

Subject to the provisions of the Kerala University Act, 1974 and the Statutes issued thereunder, the Rules contained in Part I and II of the Kerala Service Rules, for the time being in force, except those mentioned below, shall so far as may be, apply to the members of the non-teaching staff of private colleges. All orders, Government decisions, rulings and notifications issued by the Government with reference to any provision in Parts I and II of the Kerala Service Rules which are applicable to the members of non-teaching staff of private colleges shall also, so far as may be, apply to them, subject to such modification, as the context may require.” 

“284. Article 16 deals with equality of opportunity in matters of public employment. The kind of backwardness which is required to attract the special provisions protecting the backward classes of citizens under Article 16 in respect of public employment is identical to the social and educational backwardness mentioned in Article 15(4). M.R. Balaji v. State of Mysore; Janki Prasad Parimoo v. State of J & K. These two articles are facets of equality specially guaranteed to citizens, while Article 14 prohibits the State from denying to any person equality before the law or the equal protection of the laws. State of Kerala v. N.M. Thomas. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preferences in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. Clause (2) prohibits discrimination against any citizen in respect of any public employment ‘on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them’. Article 16 thus guarantees equality of opportunity and prohibits discrimination of any kind solely on any one or more of the grounds mentioned in clause (2). Nevertheless, clause (4) of this article provides that it is open to the State to make ‘any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State’. It is an enabling provision conferring a discretionary power on the State; an ameliorative harmonisation of conflicting norms to stretch to the utmost extent the frontiers of equality; an emphatic assertion of equality between equals and inequality between unequals so as to achieve the maximum degree of qualitative and relative equality by means of affirmative action even to the point of reservation. It is in the nature of an exception or a proviso to the general rule of equality

xxxxx 

285. The twin conditions to warrant reservation under Article 16(4) are: backwardness of the chosen classes of citizens and their inadequate representation in the public services. The backwardness of the classes of citizens mentioned in Article 16(4) is, as stated earlier, of the same degree and kind of social and educational backwardness as postulated in Article 15(4). Article 16 (4) is meant for the protection of the Scheduled Castes and the Scheduled Tribes and other comparably backward classes of citizens who are the unfortunate victims of continuing ill-effects of identified prior discrimination. (emphasis supplied) 289. Articles 15(4) and 16(4) refer to the same classes of backward citizens. But they do not refer to identical remedies. While Article 15(4) speaks of special provisions for the advancement of backward classes, Article 16(4) expressly permits the State to make reservation of appointments or posts in public services in favour of such classes. It is true that both are enabling provisions allowing the State to adopt such affirmative action programmes as are necessary including reservation of seats or posts. But, unlike Article 16(4), Article 15(4) is not so worded as to suggest that it is exclusionary in character. The ‘special provision’ contemplated in Article 15(4) is an emphatic reference to the affirmative action which the State may adopt to improve the conditions of the disadvantaged members of the backward classes of citizens. Significantly, Article 15(4) does not specifically speak of reservation, but it has been generally understood to include that power. M.R. Balaji v. State of Mysore. While the State may adopt all such affirmative action programmes as it deems necessary for all disadvantaged persons, any special provision amounting to reservation and consequent exclusion from consideration of all the others in respect of the reserved quota in matters falling outside Article 16(4) must be subjected to even greater scrutiny than in the case of those falling under it.

290. The concept of equality is not inconsistent with reservation in public services because the Constitution specially says so, but, in view of its exclusion of others irrespective of merits, it can be resorted to only where warranted by compelling State interests postulated in Article 16. The State must be satisfied that in order to achieve equality in given cases, reservation is unavoidable by reason of the nature and degree of backwardness. Reservation must be narrowly tailored to that end, and subjected to strict scrutiny.” 

“295. The object of the special protection guaranteed by Articles 15(4) and 16(4) is promotion of the backward classes. Only those classes of citizens who are incapable of uplifting themselves in order to join the mainstream of upward mobility in society are intended to be protected. The wealthy and the powerful, however socially and educationally backward they may be by reason of their ignorance, do not require to be protected, for they have the necessary strength to lift themselves out of backwardness. The rich and the powerful are not the special favourites of the Constitution. Backward they may be socially and educationally, but that is a shame which they have the steam to remove and the Constitution does not extend to them the special protection of reservation. It is not sufficient that the persons meant to be protected are backward merely by reason of illiteracy, ignorance social backwardness. If they have, in spite of such handicaps, the necessary financial strength to raise themselves, the Constitution does not extend to them the protection of reservation. The chosen classes of persons for whom reservation is meant are those who are totally unable to join the mainstream of upward mobility because of their utter helplessness arising from social and educational backwardness and aggravated by economic disability.” 

“302. Article 335 requires that “in the making of appointments to services and posts in connection with the affairs of the Union or of a State” the claims of the members of the Scheduled Castes and the Scheduled Tribes must be considered ‘consistently with the maintenance of efficiency of administration’. If that is the constitutional mandate with regard to the Scheduled Castes and the Scheduled Tribes, the same principle must necessarily hold good in respect of all backward classes of citizens. The requirement of efficiency is an overriding mandate of the Constitution. An inefficient administration betrays the present as well as the future of the nation.

303. ‘Reservation of appointments or posts’ mentioned in Article 16(4) is with reference to appointments ‘in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State’. The condition precedent to making any such reservation is the satisfaction of the State as to the inadequate representation of any backward class of citizens in the services under the State. In respect of any such class, it is open to the State to make ‘any provision for the reservation of appointments or posts’.” 

“306. The object of reservation is to maintain numerical and qualitative or relative equality by ensuring sufficient representation for all classes of citizens. In whichever service a backward class of citizens is inadequately represented, it is open to the State to create sufficient number of posts for direct appointments. No matter whether the appointment is made to a cadre post or an ex-cadre post, the State action is beyond reproach so long as the constitutional objective of numerical and qualitative equality of opportunity is maintained by making direct appointments at the appropriate levels whenever inadequate representation of any backward class in the services is noticed by the State.” 

“311. Reservation is the extreme limit to which the doctrine of affirmative action can be extended. Beyond the strict confines of clause (4) of Article 16, reservation in public employment has no warrant in the law for it then becomes the very antithesis of equality. While reservation is impermissible for appointment to higher posts by promotion from lower posts, any other legitimate affirmative action in favour of disadvantaged classes of citizens by means of valid classification is perfectly in accordance with the mandate of Article 16(1). It is within the discretion of the State to extend to all disadvantaged groups, including any backward class of candidates, preferences or concessions such as longer period of minimum time to pass qualifying tests etc. (see N.M. Thomas). 

“319. Reservation should be avoided except in extreme cases of acute backwardness resulting from prior discrimination as in the case of the Scheduled Castes and the Scheduled Tribes and other classes of persons in comparable positions. In all other cases, preferential treatment short of reservation can be adopted. Any such action, though in some respects discriminatory, is permissible on the basis of a legitimate classification rationally related to the attainment of equality in all its aspects.”