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2012 Supreme(Mad) 1752
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
The Madras University Staff Association, represented by its President, University of Madras
Versus
State of Tamil Nadu, rep.by Secretary to Government, Higher Education Department & Another
W.P.Nos.49, 1287, 1518, 1575, 3843, 11579 of 2007 & 11430 of 2008
Decided On : 04-04-2012
For the Petitioners:K.M. Vijayan, Senior Counsel for M/s. La Law, M. Muthupandian, D. Sukumar, V. Ajay Khose, S. Namasivayam, Advocates.
For the Respondents:A. Navaneethakrishnan, Advocate General, assisted by L.P. Shanmugasundaram, Addl. Government Pleader, Manisundaragopal, S. Sethuraman, Mrs. N. Kavitha, Govardhan for M/s.Row & Reddy, R. Subramanian, Mrs. D. Geetha, Advocates.
Ratios
a. State Government could issue direction in exercise of its power under Art.162 of the Constitution of India only when there was no law or statutory rules to the contrary.
b. Mere funding of the State to the Universities does not confer any privilege on the State to issue executive orders, so as to interfere with the administration of the Universities.
c. When a law empowers a particular authority to exercise a particular power, the State could not use its power under Art.162 of the Constitution of India in that matter.
Headnote:(A)Constitution of India-Art.162-Madras University Act,1923(7 of 1923)-Sec.19-Education-University-Staff-Service condition-Category-Cadre-Modification-State-Regulation-Interference-Jurisdiction-On the recommendation of the committee constituted by the State Government regarding the categories of the staffs of the University, cadres and their service conditions, the State Government had issued notification to implement them by all the universities in the State-When the number of cadres were reduced from 50 to 6 and their pay scales were fixed at par with the Secretariat Service, the employees association challenged the Government order-While the petitioners contended that only the Senate of the University would be competent to prescribe the service conditions and the State Government had no authority to issue such notification, the State justified it by taking protection under Art.162 of the Constitution of India-Held, the State Government could issue directions under Art.162 only when there was no law governing the matter- As Sec.19 of the Madras University Act,1923 specifically empowered the senate of the University to deal with the service conditions of the staffs, the State Government could not issue any direction in that regard-Writ petition was allowed and the order impugned was declared as ultra vires.
(B)Constitution of India-Art.162-Madras University Act,1923(7 of 1923)-Sec.19-Education-University-Staff-Service condition-Category-Cadre-Modification-State-Regulation-Interference-Jurisdiction- State Government could issue direction in exercise of its power under Art.162 of the Constitution of India only when there was no law or statutory rules to the contrary- Mere funding of the State to the Universities does not confer any privilege on the State to issue executive orders, so as to interfere with the administration of the Universities-When a law empowers a particular authority to exercise a particular power, the State could not use its power under Art.162 of the Constitution of India in that matter.
(i) As the law has been made by the State legislature conferring the power of regulation of service conditions of non-teaching staff of the universities on Syndicate, the executive is not empowered to pass the impugned order in regard to that matter in exercise of his executive power under Article 162 of the Constitution nor can he exercise such power with reference to that matter through the officers subordinate to him.
(ii) A law having occupied the field, it is not open for the State, in exercise of its executive power, to prescribe the same field, by an executive order.
(iii) Executive power of the State cannot be repugnant to the enactment of the legislature.
(iv) Executive order of the State can be issued only when the statutes or enactments are having gaps and do not cover the area by the existing rules.
(v) Mere funding of the State to the Universities does not confer any privilege on the State to issue executive orders, so as to interfere with the administration of the Universities.
(vi) Executive order i.e., the impugned order of the first respondent in G.O.Ms.No.402, Higher Education (H2) Department, dated 13.12.2006, is inoperative and it is, accordingly, declared ultra vires to the provisions of the Acts. Para 32
1. What is sought for in all these Writ Petitions is a declaration, declaring that the impugned order of the first respondent in G.O.Ms.No.402, Higher Education (H2) Department, dated 13.12.2006, in so far as it seeks to amend the service conditions of the University employees of the second respondent University, is ultra vires to the provisions of the second respondents' Universities Acts, particularly the provisions relating to Regulation of Service Conditions of the Staff of Universities, and without competence of executive power of the first respondent under Article 162 of the Constitution of India.
2. Since all these Writ Petitions subsume a common question of law, they are being disposed of in common. For the sake of disposal, let me take the facts in W.P.No.49 of 2007.
2.1. Petitioner is a registered association of staff of Madras University and approved by the Syndicate of the Madras University. Madras University is one of the oldest universities functioning in the State of Tamil Nadu by an Act of legislature from the year 1923. The entire service regulations including remuneration and classification of various services are governed by the ordinances and statutes enacted by the Syndicate of the Madras University in its statutory power under Section 19 of The Madras University Act,1923, in short, "the Act". As per the financial estimate for the year 2006-2007, there are as many as 1376 sanctioned strength of establishment of non-teaching staff of the University. Their remuneration and functions and classification of the cadres are regulated by the Act.
2.2. While so, the first respondent, seeking to bring uniformity in respect of the service conditions of the University employees with the State Government services, issued the impugned G.O., thereby restricting the classification of University employees to six categories as against more than 50 categories of Administrative, Technical and other staff functions, under the establishment of the University. The G.O. also proposed to change the salary and other benefits of the University employees in tune with the Government employees.
2.3. The first respondent has no competence to pass such Government Order under Article 162 of the Constitution of India, overlooking the existing statutes of the University and Ordinances relating to conditions of service of the employees of the University, which vest with the University authorities. Hence, this Writ Petition.
3. First respondent has filed a counter affidavit, stating as follows:
3.1. The Universities in Tamil Nadu are adopting different scales of pay to their nonteaching staff. In some Universities, non-teaching staff association demanded higher scales of pay citing the Universities which have allowed higher scales of pay to their non-teaching staff and the Universities which are not sound in financial position find it difficult to overcome their demands due to heavy financial burden.
3.2. To evolve a common pattern of scales of pay to non-teaching staff of Universities, the Government, in G.O.(2D) No.2, Higher Education Department, dated 05.02.1997, constituted a Committee under the Chairmanship of Dr.S.Muthukrishnan and the terms of references of the said Committee were :
(1) to study the existing pattern of non-teaching staff in various Universities in the State to evolve a common pattern for all of them. If necessary, different pattern may be considered for affiliated Universities, Unitary, Technical and Deemed Universities;
(2) to suggest uniform scales of pay for such of those categories of non-teaching staff in the Universities which are similar in nature of work and have the same educational qualification etc.but have different scales of pay in different Universities at that time and the recommendation shall be within the ambit of the structure of the V Pay Commission recommendations of Tamil Nadu; and
(3) to check whether the existing Acts require amendments for implementing the report of the O&M Commi
