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S. Rama Rao and ors. Vs. the Jawaharlal Nehru Technological University, Hyderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 911 of 1977
Judge
Reported inAIR1978AP264
ActsJawaharlal Nehru Technological University Act, 1972 - Sections 23, 24 and 24(1); Constitution of India - Article 14
AppellantS. Rama Rao and ors.
RespondentThe Jawaharlal Nehru Technological University, Hyderabad and anr.
Appellant AdvocateS. Venkata Reddy and ;D.S.R. Krishna, Advs.
Respondent AdvocateGovt. Pleader for Commercial Taxes
Excerpt:
constitution - validity of statute - sections 23, 24 and 24 (1) of jawaharlal nehru technological university act, 1972 and article 14 of constitution of india - validity of statute issued under act challenged on ground that it violated article 14 - statute specified two different ages of superannuation one of teaching and technical staff and other for administrative and ministerial staff - both categories were different - open to university or government to fix different age of retirement for different categories of staff - held, statute not violative of article 14. - - provided that the university shall have the right to retire an employee who has attained the age of fifty five years for reasons of inefficiency, ill-health and the like. ' it is this provision of law that is impugned.....lakshmaiah, j. 1. the validity of statute no. xiv-25 (i) and (ii) of the first statutes of the jawaharlal nehru technological university made and notified by the governor of andhra pradesh in exercise of the powers conferred by sub-s. (1) of s. 24 of the jawharlal nehru technological university act, 1972 (referred to hereinafter merely as 'the act') is assailed in this writ petition filed under art. 226 of the constitution of india on the ground that it is violative of art. 14 of the constitution in india.2. during the course of arguments on the basis of what is contained in reply affidavit the validity of the classification in statute xiv (1) and the categorisation in statute xiv-25 were also assailed on the ground that they are ultra vires.facts:3. the petitioners who were working in.....
Judgment:

Lakshmaiah, J.

1. The validity of Statute No. XIV-25 (i) and (ii) of the first statutes of the Jawaharlal Nehru Technological University made and notified by the Governor of Andhra Pradesh in exercise of the powers conferred by Sub-s. (1) of S. 24 of the Jawharlal Nehru Technological University Act, 1972 (referred to hereinafter merely as 'the Act') is assailed in this writ petition filed under Art. 226 of the Constitution of India on the ground that it is violative of Art. 14 of the constitution in India.

2. During the course of arguments on the basis of what is contained in reply affidavit the validity of the classification in Statute XIV (1) and the categorisation in Statute XIV-25 were also assailed on the ground that they are ultra vires.

FACTS:

3. The petitioners who were working in the Government Engineering Colleges prior the October 2, 1972 were transferred to the Jawaharlal Nehru Technological University (referred to hereinafter merely as 'the University') along with the engineering colleges on Oct 2, 1972. They were all working in different categories and posts such as Personal Assistants, Hostel Managers, Officer Superintendents, Managers, Upper Division Clerks, Lower Division Clerks, Stenographers and Typists in the Andhra Pradesh Technical Education Service and the Andhra Pradesh Ministerial Service and the Andhra Pradesh Ministerial Service in the Engineering Colleges at Anantapur, Kakinada. Nagarjunsagar Engineering college, Hyderabad and the College of Fine Arts and Architecture, Hyderabad. They were all referred in the counter affidavit as persons working 'in the Administrative and Ministerial category prior to their transfer to the University'.

4. A total staff of 535 persons belonging to various categories working in the said colleges was made over to the service of the University. Out of the said 535. only 45 belonged to the administrative and ministerial category to which the petitioners belong, and 19 belonged to Class IV in the Government Service whose age of superannuation was fixed at 60 years according to Government rules. But so far at the rest of the employees i.e. 516 are concerned, their age of superannuation, according to Government Service rules, was 55 years for all the categories. The 1st respondent herein, made the statute prescribing 60 years superannuation to 471 of them and prescribing the age of 55 years of superannuation to 45 of them belonging to the administrative and ministerial category to which the petitioners belong.

5. As per the impugned Statute XIV- 25, an employee of the University expecting the administrative and ministerial employees shall retire on superannuation when he attains the age of 60 years and an administrative and ministerial employee of the University shall retire on superannuation when he attains the age of 55 years. The petitioners contend that all the employees of the university were drawn from the same source and fixing the age of retirement to some at 60 years and to the petitioners at 55 years, is violative of the equality before the law and equal protection of laws clause of Article 14 of the constitution. It is under those circumstances, the above writ petition was filed by the petitioners seeking the issuance of an appropriate writ for a declaration that Statute No. XIV 25 (i) and XIV 25 (ii) issued in G. O. Ms. No. 1191 Education (J) dated 19th December 1974 is null and void being violative of Article 14 of the Constitution of India. The petitioners contended that they were promised by the University authorities that their age of superannuation would be fixed at 60 years but that was denied in the counter. The Registrar of the University in his counter contended that the impugned statues are not violative of Art. 14 of the constitution and the statutes are made on the 19th Dec. 1974 and their validity is sought to be attacked in the year 1977 and the writ petition is therefore a belated one. In reply affidavit, the plea of ultra vires was taken by the petitioners.

SCHEME OF THE ACT:

6. In an article by Stephen D'Isray 'Universities and Colleges' in Encyclopaedia of the Social Sciences Volume 15 at page 181 it is stated ----

'Universities and Colleges. The primary aim of universities is to spread higher learning and to provide both the foundations and the technical knowledge for the learned professions. Since propagation of true learning is impossible without original investigation, an equally important function of universities has been to conduct scientific research. On the other hand, colleges have been devoted to general education preparatory to advanced study; the emphasis on instruction has endowed them with certain of the characteristics of institutions of secondary education, Colleges have formed and still form component parts of Universities, but in many instances they are autonomous institutions.'

7. Jawaharlal Nehru Technological University Act, 1972 is enacted with a view to providing, as the preamble discloses, for the establishment and incorporation of a Technological University in the State of Andhra Pradesh and for matters connected therewith. The Jawaharlal Nehru Technological University is established in the State of Andhra Pradesh by sub-sec. (1) of S. 3 of the Act. The University shall be teaching University to function with the constituent colleges as its units and it consists of a Chancellor, a Pro-chancellor, a Vice - Chancellor, Executive Council and an Academic Development Board. It shall be a body corporate having perpetual succession and a common seal and shall sue and be sued by the said Corporate name. The Headquaters of the University shall be located at Warangal (S. 3).

8. Subject to such law as may be made by Parliament as to co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions or subject to such directions as may, from time to time be given in regard thereto by or on behalf of the Central Government, the objects of the University shall be '(i) to provide for the advancement of learning and knowledge in engineering, technology physical and social science, architecture and fine arts by teaching research, experimentation or practical training or by such other means as the University may deem fit;

(ii) to provide that form of education which allows students to spend periods of intramural learned associated with periods of extramural work so that upon graduation not only they possess a range of academic learning but know also of the relevance of that learning to the affairs of the State in general and the country of large ;

(iii) to promote ----

(a) thinking on new concepts, techniques, practices, in the relevant fields of knowledge and their application to indigenous condition;

(b) designing and organisation of new courses of study and training, evaluation and examination system;

(c) research relevant to the economic growth of the country;

(d) entrepreneurship among the students of the constituent; and

(e) industrial consultancy services in the different faculties of the colleges.' (Sec. 4 (1)).

9. The powers and functions of the University are enumerated in sub-s. (2) of S. 4.

10. The Chancellor, Pro-Chancellor, Vice - Chancellor, Registrar, Financial Advertiser-cum-Chief Accounts Officer, the Principals of the constituent colleges and such other persons in the service of the University as may be prescribed shall be the officers of the University. (S. 5).

11. The Executive Council, Academic Development Board, Finance Committee and such other bodies as may, from time to time, be prescribed by statues shall be the authorities of the University (S. 10).

DELEGATED LEGISLATION:

12. Chapter VI of the Act deals with the subject-matter of statutes. Ordinances, and Regulations, a kind of delegated or subordinate legislation.

13. The statues of the University with regard to the matters set out in S. 23 shall be made and notified by the Government. The Council subject to the prior approval of the Government may from time to time make any statute in addition to the first statutes referred to in sub-sec. (i) of S. 24 and may amend or repeal any statute in the manner provided therein (s. 24(1) and (2)). Subject to the provisions of this Act, the statute may provide for all or any of the matters enumerated in cls. (a) to (r) of which (h) deals with 'the qualifications of the teachers and other staff of the University including constituent college and (i) with 'the classification, the method of appointment and determination of the terms and conditions of service of teachers and other staff of the University'.

ORDINANCES:

14. It may not be out of place to mention under the heading of 'Subordinate or delegated Legislation' Ordinances under S. 26 of the Act which are required to be made by the Board which expression was defined under S. 2 (a) of the Act to mean 'the Academic Development Board constituted under S. 14'. These Ordinances of the University shall have to be made subject to the provisions of the Act and Statutes, to provide for the matters enumerated in cls. (a) to (h) of sub-sec. (i) of S. 26 of the Act.

REGULATIONS:

15. The third category of delegated or subordinate legislation comprises regulations which the council and the Academic Development Board were empowered to make consistent with the provisions of the Act, the statutes and the ordinances for all or any of the matters which by this Act and the statutes are to be provided for by regulations and also for any other matter solely concerning such authorities and not so provided (S. 27 (1)).

STATUES :

16. In exercise of the powers conferred by sub-sec. (1) of S. 24 of the Act, the Governor of Andhra Pradesh made the first statutes of the University as per G. O. Ms. No. 1191 Education J. Dt. 19th Dec. 1974. Statute XIV-1 impugned as ultra vires deals with services of the University. The members of the staff of the University were classified as (a) Academic Service (b) Administrative Service (c) Ministerial Service, (d) Supporting Services and (e) Last Grade Service; consisting of various categories mentioned under each service. Statute XIV-25 deals with Pension and Gratuity, which in so far as it is material reads thus:----

'(i) An employee of the University excepting the administrative and ministerial employees shall be retired on superannuation when he attains the age of sixty years.

Provided that the University shall have the right to retire an employee who has attained the age of fifty five years for reasons of inefficiency, ill-health and the like.

(ii) An administrative and ministerial employee of the University shall be retired on superannuation when he attains the age of fifty five years.'

It is this provision of law that is impugned both as ultra vires as well as for being violative of Art. 14 of the Constitution of India.

17. So far as the plea of ultra vires if concerned, we do not find the same being taken in the writ petition. Therefore, there is no occasion for the respondents to meet that plea in the counter-affidavit . But that plea in the was in the reply affidavit. As it is purely a legal plea not necessitating any adducing of evidence, we propose to deal with the same. Before we consider so, we shall advert to some of the principles of judicial review of delegated or subordinate legislation.

JUDICIAL REVIEW OR DELEGATED LEGISLATION :

18. S. A. De Smith in his work 'Judicial Review of Administrative Action' 'Third Edition which has already become a classic opens his third chapter 'Vires, Jurisdiction, Law and Fact' with the following sentence:

'Perhaps the dominant feature of English public law is that the limit of the powers of public authorities are determinable not by special administrative courts but by the ordinary courts of justice.'

19. The House of Lords has laid down the principle in Attorney General v. Great Eastern Rly. Co., 1880 A. C. 473 (H. L.). Speaking through the Lord Chancellor (Lord Selborne)----

'I assume that your Lordships will not now recede from anything that was determined in The Ashbury Railway Company v. Riche (Law Rep 7 HL 653). It appeals to me to be important that the doctrine of Ultra Vires, as it was explained in that case, should be maintained. But I agree with Lord Justice James that this doctrine ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised, ought not (Unless expressly prohibited) to be held, by judicial construction, to be ultra vires.'

20. That principle has been rendered applicable to the statutory powers of all public bodies, according to S. A. De Smith who said at page 83.

'........ a high proportion of the reported cases involving the vires of administrative action have been concerned with the question whether a transaction is to be regarded as reasonably incidental to the exercise of statutory powers expressly conferred.'

21. The expressly conferred powers, it follows, shall have to be construed as including within their ambit, such other powers as are reasonably necessary incidental and consequential for their effective exercise.

21-A. At page 85 the learned author observed: 'In almost every case, in which the vires of administrative action are challenged, the courts are faced with problems of statutory interpretation.' At page 86 :

'Two broad approaches to problems of interpretation have been followed by the courts. The first is a technological means of approach and the second is formally analytical. The former is based on the principle that a court should endeavour to give effect to the policy of a statute and to the intentions of those who made it; this principle is expressed in the mischief rule enunciated in Heydon's case, ((1584) 3 Co Rep 7a). The latter is based on the principle that a court's duty is to ascertain the true meaning of the words used by Parliament, and that the policy of the Act and the intentions of Parliament are irrelevant except in so far as they have been expressed in the words so used; this principle is expressed in the literal rule and its multifarious sub-rules.' Sri C. K. Allen in his 'Law and orders' Third Edition at page 209 observed under the heading 'Ultra Vires' thus:

'There can be no immutable test for determining whether a Statutory Instrument or a power exercised under it, falls within the 'true intent' of the parent statute. It is a matter of construction in each case and there is consequently much variation of judicial opinion about this aspect of the doctrine.......'

At page 210

'On the whole, the tendency of recent years has been to stretch statutory intention in favour of executive expediency.'

22. J. A. G. Griffith and H. Street in their book 'Principles of Administrative Law' Fourth Edition observed at page 102 under the heading 'Subordinate Legislation.'

'There are two principal forms of judicial control over delegated legislation. The first relates to the procedure which the Administration is required to follow in making subordinate laws and includes the laying before Parliament of these laws. The second relates to the Subordinate laws themselves. It is, in the absence of statutory words to the contrary, always possible to challenge these laws on the ground that the Act under which they are made does not in fact give the necessary authority. These two forms of control are sometimes referred to as the doctrines of procedural and substantive ultra vires or as defects of procedure and substance.'

23. Dealing with the Subject-matter of 'Substantive Ultra vires' with which we are concerned the learned authors stated at page 109 :----

'The doctrine of ultra vires depends for the extent of its application on two separate factors. It depends on the generality or otherwise of the empowering provisions and it depends on the attitude which the courts adopt.'

24. Garner in his 'Administrative Law' Fourth Edition under the heading 'Controls over Subordinate Legislation........III....... Judicial' observed at page 76 thus :

'Any form of subordinate legislation is liable to question in the Courts on the ground that it is ultra views, that it goes beyond the powers conferred by the enabling statute on the rule-making agency ............

The doctrine that subordinate legislation is invalid if it is ultra vires, is based on the principle that a Minister or other subordinate agency has no power to legislate, other than such as may have expressly been conferred by the Legislature. It has three distinct applications in practice, namely procedural, substantive, and its effect on the construction of an instrument.' Under the heading 'Substantive ultra vires' the learned author observed at page 78 thus:

'In other circumstances subordinate legislation may be ultra vires simply because the subordinate law-making authority has gone outside or beyond the powers conferred on him by the enabling statute...........

The Courts will examine subordinate legislation strictly and confine it precisely within the limits of the enabling legislation..........

Following Carltona Ltd. v. Commissioners of Works (1943) 2 All Er 560) it was held by the majority in the House of Lords that the court will only interfere if the Minister is shown to have gone outside the four corners of the Act or has acted in bad faith.'

25. Dealing with the 'Construction of delegated Legislation' at page 79 the learned author observed thus:----

'Thus ordinary rules for the construction of statutes will be applied also to delegated legislation, and the courts will give full force and effect to delegated legislation that cannot be shown to be ultra vires the parent legislation. There is not question of statutory instrument being declared to be void because it is unreasonable or uncertain in operation, although the courts will (as they would with a statute) endeavour to give it such a construction that it will not have that effect.'

The Court of Appeal speaking through Lord Greene, Master of Rolls in Carltona Ltd. v. Commrs. of Works, (1943) 2 All ER 560 at p. 564: observed thus :

'All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense or any other aspect of the transaction.'

26. The following passage occurring in para 745 under 'Interpretation', at page 493 of Halsbury's Laws of England ---- Third Edition ---- Volume 36 under the heading 'Statutes' is instructive:

'The overriding principle in the interpretation of legislation made under power conferred by statute is that it should be construed in the light of the enabling statute generally and in particular, so s to be consistent with its substantive provision at any rate where it is not authorised to repeal or amend them and otherwise in conformity with the terms of the enabling power.......

Subject to the foregoing principle, subordinate legislation must be construed in accordance with the general rules as those which govern the interpretation of statutes.'

27. Speaking about Subordinate Legislation. Justice Khanna in Hukum Chand v. Union of Indian, : [1973]1SCR896 , observed thus :

'The underlying principle is that unlike sovereign legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled 'See Craies on Statute Law P. 297 Sixth Edition.'

28. Justice Grover in T. S. Mankad v. State of Fujarat, : [1970]1SCR244 thus :

'It is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid.'

29. It has been recognised by the Supreme Court in I.T.O. Sitapur v. Bhagawandas, : [1964]52ITR335(SC) , that the power of classification includes the power of sub-classification also.

30. This part of the discussion may be summed up thus :----

(1) The dominant feature of English Public Law which have inherited is that the limits of the powers of public authorities are determinable not by special administrative courts but by the ordinary courts of justice.

(2) The Principles of interpretation or construction as are applicable to Direct Legislation are equally applicable to Delegated Legislation as well, teleological approach towards public law being one such.

(3) There is a presumption in favour of validity or constitutionality of delegated legislation as there is one in favour of direct legislation.

(4) The power to make delegated or subordinate legislation is derived from the enabling act and it is fundamental that the delegate on whom such power is conferred has t act within the limits of authority conferred by the Act.

(5) Whenever questions of vires of administrative action are raised, the courts are faced with problems of statutory interpretation or construction.

(6) The doctrine of substantive ultra vires can be invoked whenever the subordinate law-making authority has gone outside or beyond the powers conferred on them by the enabling statute. In other words, all that the court can do is to see whether the exercise or the purported exercise of the power by the delegate falls within the peripheral limits of power conferred by the enabling Act. The Court has no power at all to enquire into 'the' reasonableness or the policy, the sense or any other aspect of the transaction. The court should construe delegated or subordinate legislation in the light of enabling statute generally and in particular so as to be consistent with its substantive provisions and in conformity with the terms of the enabling power.

(7) If a provision contained in the delegated or subordinate legislation is susceptible of bearing more than one construction, the court shall have to prefer that which validates to the one that invalidates such delegated or subordinate legislation.

(8) The express grant of power shall have to be construed as including within its ambit or carrying along with it all other powers which are reasonably necessary, incidental and consequential for their effective exercise.

(9) The power of classification includes within its ambit the further power of sub-classification

(10) If the purpose or object or subject-matter of delegated or subordinate legislation is in any way related to the purpose or object or subject-matter of enabling Act, the validity of such subordinate or delegated legislation cannot be successfully questioned in a court of law.

31. In the light of the above principles, we shall examine the tenability or maintainability of the contention as forthcoming from the reply affidavit as regards the plea of ultra vires.

32. That contention is to the following effect:

The Act contemplates only tow categories of staff i.e., the teaching staff and the other staff of the University. Section 23 (h) speaks of the qualifications of the teachers and other staff of the University. Clause (i0 of the said statute provides for the classification, method of appointment and determination of the terms and conditions of service of teachers and other staff of the University Statute XIV-(1) made by the Government under S. 24 of the Act with regard to matters set out in S. 23 provides for the classification of the members of the staff of the University. The classification made therein is not in accordance with S. 23 (i) and is therefore ultra vires of the Act. While the Act lays down that the University staff should be divided into two categories of teaching and other staff, Statute XIV-(1) divides the University staff into five categories and the division is not based on the broad categorisation viz., the teaching staff and the other staff contemplated by sub-cls. (h) and (i) of S. 23.

33. Referring to Statute XIV-25, it is said that it categorises the employees of the University into Administrative and Ministerial employees and other employees. This categorisation is not contemplated by the Act. Therefore, Statute XIV-25 is also ultra vires of the Act.

34. The Jawaharlal Nehru Technological University Act, 1972 was enacted with a view to providing for the establishment and incorporation of 'Jawaharlal Nehru Technological University'. The primary aim of the Universities is to spread higher learning and to provide both the foundations and the technical knowledge for the learned professions. Since propagation of true learning is impossible without original investigation, an equally important function of universities has been to conduct scientific research. That is the reason why this University was established with a view to securing the fulfilment of the objects or providing for the advancement of learning and knowledge in Engineering, technology, physical and social sciences etc., by teaching research, experimentation or practical training or by such other means as the University may deem fit.

35. The Act by Chapter III provided for the officers of the University and by Chapter IV for the authorities of the University including the Executive Council and the Academic Development Board.

36. For the purpose of sub-serving the main purpose and objects of direct legislation contained in the Act, Chapter VI of the Act was devoted to delegated or subordinate legislation in form of statutes to be made by the Government under S. 23 read with S. 24, Ordinances by the Academic Development Board under S. 26 and Regulations by the Executive Council and Academic Development Board under S. 27 of the Act.

37. So far as the first statutes of the University are concerned, the Government has been given the power under S. 24 to make and notify the same with regard to matters set out in S. 23. 'The Qualifications of the teachers and other staff of the University including constituent colleges' under Cl. (h) and 'the classification the method of appointment and determination of the terms and conditions of service of teachers and other staff of the University' are some of the matters set out in S. 23.

38. The Governor of Andhra Pradesh in exercise of the powers conferred by sub-s. (1) of S. 24 of the Act made and got notified the first statutes of the University.

39. Statute XIV-(1) deals with the services of the University and provides for the classification of the members of the staff of the University into (a) The Academic Service consisting of 13 categories (b) The Administrative Service consisting of 7 categories 4 categories (d) The Supporting Services consisting of 9 categories; and (e) The Last Grade Service consisting of 5 categories.

40. These services may consist of such other posts as may from time to time be decided by the council.

41. This categorywise classification pertains to members of the entire staff of the University consisting of teachers and other staff. The Government has been given power to make and notify statues with respect to the subject-matter of 'classification of teachers and other staff of the University'. The use of the adjective 'other' before the noun 'staff' suggests that the framers of the Act consider teachers also as coming under the expressions 'staff'. The power to make classification includes the power to make further sub-classification in the form of categories also. The purpose or object of classification of teachers and other staff contained in the Act is merely carried into statutes made by the Government under the Act in the form of classification of the members of the staff of the University sub-dividing them into (a) to (e) series.

42. There remains then the question of vires of Statute XIV-25 (i) and (ii) as per which an employee of the University excepting the administrative and ministerial employees shall be retired on superannuation when he attains the age of 60 years and administrative and ministerial employee of the university shall be retired on superannuation when he attains the age of 55 years. The contention is that this statute categories the employees of the University staff into the Administrative and Ministerial employees and other employees and that categorisation is not contemplated by the Act and, therefore, it is ultra vires.

43. The Government has been given power to make statutes with respect to 'classification and determination of terms and conditions of teachers and other staff of the University'. Fixation of the age if superannuation is certainly one of the power to determine which was concededly conferred upon the Government under S. 24 read with S. 23 (1) of the Act.

44. The classification of employee of the University into administrative and ministerial employees and other employees is certainly comprehended within the power of classification conferred upon the Government under the aforesaid provision of law and that classification is based upon rational basis.

45. The Government as the delegate of the legislature made these statutes with respect to the subject-matter with respect to which it has been given power to make and notify, carrying thus the purpose of the Act into effect. Even otherwise, the power exercised by the Government is incidental, ancillary or consequential to the main express power which has conferred upon under S. 23 (h) and (i) read with S.24 of the Act. The court is not concerned with the policy, reasonableness and wisdom of the classification and categorisation. The Government therefore acted well within the limits of the authority conferred by the Act while making the impugned statute.

46. Even if a provision contained in subordinate or delegated legislation is susceptible of more than one interpretation then that interpretation that secures validity to it shall have be preferred.

47. The classification made in subordinate or delegated legislation is susceptible of more than one interpretation then that interpretation that secures validity to it shall have to be preferred.

48. For the aforesaid reasons we are satisfied that the impugned Statutes XIV- (1) and XIV- 25 (i) and (ii) are not afflicted with the infirmity of being beyond the power of the Government, They are therefore intro vires and valid.

ARTICLE 14 - STATUTE XIV -25:

49. That takes us to the consideration of the next ground of attack levelled against the validity of Statute XIV -25.

50. We have already negatived the contention of the learned counsel that the impugned statute is ultra vires the Act. We shall have to consider not the contention that the said statute is ultra vires the constitution particularly Article 14 thereof.

51. The principles of interpretation of Art. 14 are all well-settled by the Supreme Court but the difficulty as usual that is experienced is in the realm of their application to various facts and varying circumstances. We shall now advert to some of those principles.

52. We can start with the classic statement of Professor Willis in his learned treatise on Constitutional law at pages 579 and 580 which forms practically the substratum of the decisions of the Supreme Court of India.

'The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. 'It merely requires that all persons subject to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed'. 'The inhibition of the amendment ... ... ... was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation'.

'Mathematical nicety and perfect equality are not required. Similarity not identity or treatment is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon an reasonable basis.'

At Page 580:

'There is no rule for determining when classification for the police power is reasonable. It is a matter for judicial determination, but in determining the question of reasonableness the court must find some economic, political and other social interest to be secured, and some relation of the classification to the objects sought to be accomplished. In doing this the Courts may consider matters of common knowledge matters of common report, the history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time of legislation. The fact that only one person or one object or one business or one location is affected is not proof of denial of the equal protection of the laws. For such proof it must be shown that there is no reasonable basis for the classification.

Persons: Many different classification of persons have been upheld as constitutional. A law applying only to one person or one class of persons is constitutional of there is sufficient basis or reason for it.'

53. Justice Shah (as he then was) observed in Harikrishna v. Union of India : [1966]59ITR243(SC) thus:

' Art 14 of the constitution guarantees equality before the law, and equal protection of the laws. But thereby the power of the Legislature to make a reasonable classification of persons, objects or transactions for attaining certain objectives in not excluded. If a classification is based on some real and substantial distinction, bearing a just and reasonable relation to the objects sought to be achieved, it is valid'.

54. A test of permissible classification was laid down in Bhudhan Choudry v. State of Bihar, : 1955CriLJ374 by Justice S. R. Das (as he then was) which was practically followed by all the subsequent Supreme Court cases. At p. 137 (of Andh LT) (at P. 193 of AIR SC):

'... ... ... It is now well established that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however to pass the test of permissible classification two conditions must be fulfilled, namely,

(i) that the classification must be founded on an intelligible differntia which distinguishes persons or things that are grouped together from others left out of the group, and

(ii) that the differntia must have a rational to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be nexus between the basis of classification and the object of the Act under consideration'.

55. Chief Justice S. R. Das in Ram Krishna Dalmia v. S. R. Tendolkar, : [1959]1SCR279 sums up the position in the form of principles to be borne in mind by the Court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminative and violative of the equal protection of the laws of Art. 14.

'(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others that single individual may be treated as a class by himself;

(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of their constitutional principles;

(c) that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(d) that the legislature is free to recognise degrees of harm and many confine its restrictions to those cases where the need is deemed to be the clearest;

(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matter of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and

(f) that while good faith and knowledge of the existing conditions on the part of legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.'

56. Justice speaking for the majority in Devadasan v. Union of India : (1965)IILLJ560SC observed thus:-

'What is meant by equality in this Article is equality amongst equals. It does not provide that what is aimed at is an absolute equality of treatment to all persons in utter disregard in every conceivable circumstances of the differences such as age, sex, education and so on and so forth as may be found amongst people in general. Indeed, while the aim of this Article is to ensure that invidious distinction or arbitrary discrimination shall not be made by the State between citizen and citizen who answer the same description and the differences which may obtain between them are of no relevance for the purpose of applying a particular law reasonable classification is permissible. It does not mean anything more.'

57. Justice K. Subba Rao (as he then was) observed in Khandige Sham Bhat v. Agricultural Income-tax officer, : [1963]3SCR809 thus:

' ... ... ... It is not the phraseology of a statute that governs the situation but the effect of the law that is decisive. If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstances arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment'.

58. In Kedarnath v. State of West Bengal : 1953CriLJ1621 Chief Justice Patanjali Sastri said:

'Now it is well settled that the equal protection of the laws guaranteed by Art. 14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. If the classification in which the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, for, if the legislation were all embracing in its scope, no question could arise classification being base on intelligible differentia having a reasonable relation to the legislative purpose. The real issue, therefore, is whether having regard to the underlying purpose and policy of the Act as disclosed by its title, preamble and provisions as summarised above, the classification of the offences, for the trial of which the Special Court is laid down, can be said to be unreasonable or arbitrary and therefore, violative of the equal protection clause.'

59. In Charanjit Lal v. Union of India : [1950]1SCR869 Justice S. R. Das (as he the was) observed at p. 65 thus:

' It does not, however, mean that every law must have universal application, for all persons are not, by nature atttainment or circumstances, in the same position .... .... ... If law deals equally with all of a certain well-defined class it is not obnoxious and it is not open to the charge of a denial of equal protection on the ground that it has no application to other persons, for the class for whom the law has been made is different from other persons, and therefore, there is no discrimination amongst equals. It is plain that every classification is in some degree likely to produce some inequality; but mere production of inequality is not by itself enough. The inequality produced, in order to encounter the challenge of the Constitution, must be 'actually and palpably unreasonable and arbitrary.'

60. There is a summing up of the interpretation of Art. 14 of the Constitution in the form of propositions by Justice Fazl Ali in the case of State of Bombay V. F.N. Balsara, AIR 1951 SC 318 at page 326:

'1. The presumption is always in favour of the constitutionality of an enactment since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.

2. The presumption may be rebutted in certain cases by showing that on the face of the Statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class and yet the law hits only a particular individual or class,

3. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons often require separate treatment.

4. The principle does not take away from the State the power of classifying persons for legitimate purposes.

5. Every classification is in some degree likely to produce some inequality and mere production of inequality is not enough.

6. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on ground that it has no application to other persons.

7. While reasonable, classification is permissible such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the object sought to be attained and the classification cannot be made arbitrarily and without any substantial basis'.

61. Speaking about the approach to be made while applying Art. 14 of the Constitution to the facts of a particular case, Chief Justice Patanjali Sastri observed in Lachmandas v. State of Bombay : 1952CriLJ1167 thus:

'.... .... .... in applying the dangerously wide and vague language of the equality clause to the concrete facts of life, a doctrinaire approach should be avoided'.

62. Justice Mahajan (as he then was) observed in Harnam Singh v. R. T. A. Calcutta : [1954]1SCR371 thus:

'It has been repeatedly pointed our by this Court that in construing Art. 14 the courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible. A law applying to a class is constitutional if there is sufficient basis or reason for it. In other words, a statutory discrimination cannot be set aside as the denial of equal protection of the laws if any state of facts may reasonably be conceived to justify it.'

63. Justice Mudholkar was of the view in Income-tax officer, Sittapur v. M/s. Bhagawan Das : [1964]52ITR335(SC) that Art. 14 permits sub-classification for the purpose of legislation.

64. Referring to the applicability of Art. 14 of the Constitution of Universities, the Chief Justice Wanchoo said in Azeez Basha v. Union of India, : [1968]1SCR833 thus:-

'It seems that the charge of discrimination is based on the provisions of the Beneras Hindu University Act, which university is established by an Act of its own. We do not think that Art. 14 requires that the provisions in every University Act must always be the same. Each University has problems of its own and it seems to us that it is for the legislature to decide that it is for the legislature to decide what kind of constitution should be conferred on a particular university established by it. There can be no question of discrimination on the ground that some other University Acts provide for some different set up. Each University must be taken to be a class by itself, and the legislature has a right to make such provision for its constitution. The mere fact that certain provisions in a statute creating one University are different from provisions in another statue creating another university cannot mean that there is discrimination.'

65. What flows or follows from the aforesaid discussion is that :-

(a) Article 14 does not affect the power of that law-making body to make reasonable classification for the purpose of legislation, be it direct legislation or delegated legislation:

(b) The law-making body undoubtedly has a wide field and range of choice in determining and classifying the subject-matter of its laws.

(c) In applying Art. 14 to the facts of a particular case, a doctrinaire approach which would choke all beneficial legislation should be avoided. The demands of Art. 14 are never considered to be absolutistic in their nature. They are relative and relativistic.

(d) Having regard to the nature of the services to be rendered by the Jawaharlal Nehru Technological University to the Society at large, the University should be considered as a distinct class by itself. The terms and conditions of the service of the employees of the University and their classifications should necessarily and naturally be different and distinct from those of the employees of the Government as these two entities namely the University and the Government are also different and distinct.

(e) That was the reason why to a pointed reference made by My Lord the Chief Justice during the course of the arguments, the learned counsel for the petitioners fairly and frankly conceded that what is involved in this case is only work-wise classification.

(f) Any situation obtaining in any other University governed by different statutes may not furnish and appropriate parallel for solving the problem arising in this case.

66. The contention of the petitioners is that there is absolutely no basis whatsoever for fixing under the impugned statute two different ages of superannuation, one of the teaching staff and technical staff and the other for the administrative and ministerial staff and that there is no rational basis in making such a distinction.

67. It is stated in the counter affidavit that there is no question of any discrimination in fixing the age of superannuation for the administrative staff. ' It is always open to the University or the Government to fix different ages of retirement for different categories of staff. The teaching and the technical staff belong to one category of service. The administrative and ministerial staff belong to different category. The category is different, Their method of recruitment is different. Their qualifications for recruitment and promotion in the service are also different.' And as such there is no discrimination and therefore Art. 14 is not violative.

68. The contention put forth by the petitioners that all the personnel who were drawn to University service from the same source was denied. It is also said in the counter that 'it is not correct to say that the teaching, non-teaching technical and administrative staff discharge similar duties'.

69. The position was ultimately summed up in the counter in para 11 thus:-

' The Government can always fix different dates of retirement for different cadres of posts When the class of post, method of recruitment and qualifications prescribed for recruitment and promotion are different, the Government can always fix different ages for retirement. When there are two distinct and independent cadres of service, although in the same department, there is no question of any discrimination even if the Government prescribes different ages of superannuation to different cadres of service. The concept of equality is applicable only when the persons are from the same cadre. I therefore submit that there is no question of any discrimination and then the statute No. XIV -25 does not violate the provision of Art. 14 of the Constitution.

70. Having regard to the object of University to provide for advancement of learning and knowledge in engineering, technology, physical and social sciences, architecture and fine arts by teaching, research, experimentation or practical training or by such other means as the University may deem fit;

Having regard to the educational qualification and intellectual attainment, occupation and experience obtained in certain disciplines by the members of the staff and other kindred, cognate and related staff, and

Having regard to the social interest involved in securing to the society the services of such class of persons for a longer period.

71. The classification made by way of categorisation of the members of the staff of the University grouping them under academic service and subordinate service on the one hand and grouping others under administrative and ministerial service is rational, reasonable and justifiable and is founded on an intelligible differentia.

72. The teaching and the technical staff belong to one category of service. The administrative and ministerial staff belong to a different category. Their method of recruitment is different. Their qualifications for recruitment and promotion in the services are also different.

73. The dual test for permissible classification propounded by the Supreme Court of India for the applicabilty of Art. 14. Viz.,

( i ) That the classification must be founded on an intelligible differentia which distinguishes persons that are grouped together from those who are left out of the group.

(ii) that the differentia must have a rational relation to the object sought to be achieved by the Act is satisfied in the present case.

74. It is nobody's complaint that there is any invidious discrimination among the members of the same class founded by the impugned statute.

75. If any state of facts can reasonably be conceived to sustain a classification, this Court is entitled to assume the existence of such facts.

76. We are satisfied that the petitioners did not discharge the burden of showing that the classification in the impugned statute does not rest on any reasonable basis or that the classification has no rational nexus with the object of the Act.

77. Therefore, Statute XIV-25 (i) and (ii) providing for the employee of the University excepting the administrative and ministerial employees to retire on superannuation when he attains the age of 60 years and providing for an administrative and ministerial employees of the University to retire on superannuation when he attains the age of 55 years perfectly constitutional and valid and as such is not hit by Art. 14 of the constitution of India.

78. For the aforesaid reasons, we are satisfied that there are no merits in this writ petition. This writ petition is, therefore dismissed but, in the circumstances without costs, Advocate's fees Rs. 250/-

79. Petition dismissed


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