JUDGMENT

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 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 Statute), 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 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 Commissions 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......"

3. 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.

4. 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 repe