Koshy, J.

In the writ appeal and the original petition the appellant and the petitioner challenge Clause 4(a) of the Mahatma Gandhi University Ordinances. The questions involved are two. They are as follows:

i) Whether the Government can interfere with the right of the educational agencies to appoint and make promotions to teaching posts and constitute screening/selection committee with Govt. Secretary and the Director of Collegiate Education?

ii) Whether the University can make Ordinances against the provisions of the University Act and incorporate a new provision for the selection and appointment of the Head of the Department?

It is stated that in view of the subsequent Government Order no decision is required on the first issue. The only question now to be decided is regarding the correctness of Clause 4(a) of Ordinance in so far as it prescribes that the post of Head of the Department can be filled up only on the basis of seniority alone.

2. It is not disputed that Ordinances are made by the University on the basis of the powers given by the Act. Section 59 of the Mahatma Gandhi University Act deals with appointment of teachers in private Colleges. Section 59 (1), (2) and (4) are relevant for the purpose of deciding this case, which read as follows:

359. Appointment of teachers in private Colleges;

(1) Appointment to the lowest grade of teacher in each department of a private college shall be made by the educational agency by direct recruitment on the basis of merit.

(2) Appointments of principles shall be made by the educational agency by promotion from among the teachers of the college or of all the colleges, as the case may be or by direct recruitment.

(4) Appointments to the posts, other than those referred to in sub sections (1) and (2) shall be made by the educational agency by promotion from among the teachers of college or of all the colleges, as the case may be, on the basis of seniority-cum-fitness, or, if none among them is fit for promotion, by direct recruitment.”

Therefore, except the lowest grade of teacher and the Principal, promotion in all other posts have to be effected on the basis of seniority-cum-fitness. It is stated that similar provision is there in Kerala University Act also. No change regarding conditions of promotion are made by the Ordinance. Section 37 of the Mahatma Gandhi University Act enables the Syndicate to make Ordinance subject to the provisions of the Act and the Statutes.

3. Section 37 of the Act reads as follows:

“37. Ordinance:- Subject to the provisions of this Act and the Statutes the Syndicate shall have power to make Ordinances providing for all or any of the following matters namely:-

(a) the levy of fees in colleges and other institutions, by the University;

(b) the residence and discipline of students:

(c) the workload and pattern of teaching staff in colleges:

(d) the fixation of the scales of pay of various posts in the University and the terms and conditions of service of officers of the University:

Provided that no special pay or allowance or extra remuneration of any description whatsoever including ex-gratis payment or other benefits having financial implication shall be granted to any officer, teacher or other employee of the University without the prior approval of the Government:

Provided further that no such prior approval of the Government shall be necessary for incurring any such expenditure of a non recurring nature subject to a maximum of ten thousand rupees in the aggregate in a financial year.

(e) all other matters which by this Act or the Statutes are to be, or may be provided for by the Ordinances.”

It is clear that the Syndicate can pass Ordinance subject to the provisions of the Act only. In the guise of fixing staff pattern they cannot override the provisions of the Act. It is true that under Section 37 (c) workload and pattern of teaching staff in Colleges can be made by the Syndicate by Ordinance.

4. In Ext. P3 Ordinance. Staff pattern for the colleges were mad