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Sree Sankara College Association Vs. University of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 1831 of 1972
Judge
Reported inAIR1974Ker118
ActsKerala University Act, 1969 - Sections 34 and 35; Kerala University Act, 1957 - Sections 27
AppellantSree Sankara College Association
RespondentUniversity of Kerala and ors.
Appellant Advocate S. Easwara Iyer and; E. Subramoni, Advs.
Respondent Advocate M.P.R. Nair,; V.R. Venkitakrishnan and; A.M. Meloth,
Excerpt:
.....act, 1969 and section 27 of kerala university act, 1957 - academic council exercised its power to prescribe qualifications for teachers by issuing regulations - such regulations given as appendix to notification - clause (1) (b) of regulation no. 5 deals with exemptions - third class master's degree holders appointed as junior lecturers before 24.05.1967 and continuing till 28.02.1969 shall be deemed to have requisite qualification to hold post of lecturer on completion of five years of service - respondents no. 4 to 7 would fall under clause (1) (b) - concerned respondents qualified to hold post of lecturers from 08.08.1972 - question of reversion does not arise. - - respondents 4 to 7 complained to the vice-chancellor against their reversion. exhibit r-l states that the..........act provides among other things, that subject to the provisions of this act and the statutes, the academic council shall have power to prescribe the qualifications of teachers. section 34 of this act would indicate that the powers mentioned thereunder, which includes the power to prescribe the qualifications of teachers, can be exercised only by making regulations: and section 35 contains the procedure for making regulations.4. the petitioner promoted one c. p, gopinnthan nair as professor in its college with effect from 16-10-1969. he did not have all the requisite qualifications prescribed under the ordinances made under the 1957 act: but he had applied to the syndicate for exemption. one p. v. krishnan nair filed an appeal before the vice-chancellor against that promotion contending.....
Judgment:
ORDER

M.U. Isaac, J.

1. The petitioner is a company registered under the Indian Companies Act. 1956. It owns and manages a college at Kaladv under the style Sree Sankara College. The management of the college was formerly governed by the Kerala University Act, 1957, This Act was repealed and replaced by the Kerala University Act, 1969, which came into force on 28-2-1969.

2. Section 27 of the 1957 Act empowers the syndicate of the University to make Ordinances: and Section 26 stated, among other things, that the Ordinances may provide for the qualification of teachers. The Syndicate had accordingly made Ordinances: and Chapter XV thereof prescribed the Qualifications of teachers. Ordinance 7 in this chapter empowered the Syndicate to grant exemptions from the prescribed qualifications subiect to the limitations mentioned therein.

3. Section 75 (2) of the 1969 Act provides that the Statutes, Ordinances, Rules and Bye-laws in force immediately before the commencement of this Act shall, in so far as they are not inconsistent with the provisions of this Act, continue to be in force until they are replaced by the Statutes, Ordinances. Rules or Bye-laws framed under this Act. Section 23 of this Act provides among other things, that subject to the provisions of this Act and the Statutes, the Academic Council shall have power to prescribe the qualifications of teachers. Section 34 of this Act would indicate that the powers mentioned thereunder, which includes the power to prescribe the qualifications of teachers, can be exercised only by making Regulations: and Section 35 contains the procedure for making Regulations.

4. The petitioner promoted one C. P, Gopinnthan Nair as professor in its college with effect from 16-10-1969. He did not have all the requisite qualifications prescribed under the Ordinances made under the 1957 Act: but he had applied to the Syndicate for exemption. One P. V. Krishnan Nair filed an appeal before the Vice-Chancellor against that promotion contending that the Syndicate was incompetent to grant any exemption after the 1969 Act came into force, and that the promotion of Gopinathan Nair was illegal, The Vice-Chancellor by his Order, Ext P-l dated 23-6-1971, upheld the above contention, quashed the promotion of Gopinathan Nair and directed the petitioner to promote a person having the prescribed qualifications.

5. Respondents 4. 5. 6 and 7 were junior lecturers in the college. They also did not have all the requisite qualifications prescribed by the Ordinances made Under the 1957 Act, nor had they been exempted therefrom by the Syndicate. The petitioner, however, promoted them as lecturers, in the manner it promoted Gopinathan Nair as professor. However, In the light of the Vice-Chancellor's decision in Gopinathan Nair's case, the petitioner passed orders. Exhibits P-2 (a), P-2 (b), P-2 (c) and P-2 (d) reverting respondents 4 to 7 as junior lecturers, since it was obvious from the above decision that, after the coming into force of 1969 Act, the Syndicate had no power to grant any exemption from the prescribed qualifications. Respondents 4 to 7 complained to the Vice-Chancellor against their reversion. On receipt of that complaint, he passed an order to the effect that his decision in Gopinathan Nair's case would apply only to matters heard and decided by him and that since it was not the intention of the University to disturb other teachers who had been granted exemption, the Principal of the college may be asked not to implement the reversion orders issued by the management until the Syndicate considered the matter. The above order is quoted in the letter. Exhibit P-3 dated 17-2-1972, sent by the Registrar of the University to the Principal qf the College. The Syndicate in its meeting held on 23-2-1972 considered the case of respondents 4 and 5, and ratified the decision of the Vice-chancellor contained in Exhibit P-3. The Syndicate also decided that if teachers concerned had been appointed before 24-5-1967, they should be deemed to have been exempted by virtue of the relevant decision of the Academic Council and that the question of exemption in their case did not arise. The above decisions of the Syndicate are contained in the letter, Ext, P-4 dated 8-3-1972 of the Registrar to the Principal of the College. by another letter. Exhibit P-5 dated 17-3-1972. the Registrar informed the Principal that the aforesaid decision of the Syndicate would apply to respondent No. 6 also, and that necessary action may be taken on that basis. It would appear from the counter-affidavit of the first respondent that the position is the same in respect of the 7th respondent also. This Original Petition was filed on 23-3-1972 to quash Exhibits P-3. P-4 and P-5 and to issue a writ of mandamus or other appropriate writ or direction declaring that respondents to 3. namely the University of Kerala, its Vice-Chancellor and Academic Council have no power under the 1969 Act to grant exemption from the prescribed) qualifications of teachers or to allow thecontinuance of unqualified teachers on the around of their being deemed to have been exempted by the Academic Council.

6. Respondents I, 4. 5 and 6 have entered appearance and filed counter-affidavits. I am constrained to remark that many of the averments contained in these counter-affidavits, particularly in those of respondents 4. 5 and 6 are irrelevant and to some extent evasive of the real issues. The first important question is whether the petitioner's averment that respondents 4, 5, 6 and 7 had not been exempted from the requisite qualifications before the 1969 Act came into force is true. Even the first respondent's counter-affidavit is not only evasive on this question but it is even misleading. On a careful perusal of the affidavits and Counter-affidavits it is clear that they had no exemption before the 1969 Act came into force. It is also clear that at the time of their promotion as lecturers they had not the requisite exemption. Then the question is whether they have been subsequently exempted, and if so whether the said exemption is retrospective. The stand taken up by the Vice-Chancellor that his decision in Gopl-nathan Nair's case to the effect that, after the 1969 Act came into force, the Syndicate has no power to grant exemptions in exercise of the power under Ordinance 7 in Chapter XV of the Ordinances made under the 1957 Act would apply only to matters heard and decided by him, and that it would not apply to other cases is to say the least ridiculous. In plain language he is saving that he would interpret the same law in its application to similar facts in entirely different manners. Nothing can be more dangerous to the proper administration of a University than such an attitude. It is regrettable that the University has chosen to endorse the above stand in its counter-affidavit. It appears to me that the decision taken by the Vice-Chancellor in Gopinathan Nair's case that after the 1969 Act came into force, the Syndicate has no power to grant exemptions from qualifications, seems to be right, since under the 1969 Act the power to prescribe qualifications is vested in the Academic Council, and that such power as rightly claimed by the first respondent would include the power to exempt from those qualifications.

7. There is no dispute that the Academic Council exercised its power to prescribe qualifications for teachers by issuing Regulations in that respect. The said Regulations are given as appendix to the Notification. Exhibit R-l dated 5-12-1972 issued by the Registrar of the University. Regulation No. 5 deals withexemptions. Clause (I) (b) of that Reguation reads:--

'(b) Third Class Master's Degree holders appointed as Junior Lecturers before 24-5-1967 and who continued as such on 28-2-4969 shall be deemed to have requisite qualification to hold the post of lecturer on completion of five years of service.'

Admittedly respondents 4. 5, 6 and 7 would fall under the above clause: and they stand exempted accordingly. Exhibit R-l states that the above Regulations shall come into force from 8-8-1972. It was not contended before me that this provision is bad. So these respondents have the qualification for holding the post of lecturers by virtue of the above exemption from 8-8-1972, and the question of their reversion does not now arise.

8. Then the next question for consideration is whether the exemption granted by the above clause is retrospective. What the Academic Council does by issuina Regulations is to exercise a delegated power. It is settled law that, in the absence of any express provision, a delegated power cannot be exercised with retrospective effect. In the counter-affidavit filed by the Universitv. It has made an attempt to justify the communications as per Exhibits P-3, P-4 and P-5 on the basis of a resolution passed by the Acade mic Council on 8-2-1972 more or less in terms of Clause (1) (b) of Regulation 5, which has been extracted above. That does not improve the situation. I may also point out that such a resolution is ineffective, since the power of the Academic Council to prescribe qualifications, and therefore necessarily to make exemptions therefrom, can be exercised onlv by making Regulations. This is clear from Sections 34 and 35 of the 1969 Act, as alreadv pointed out. So Exhibits P-3, P-4 and P-5 cannot be justified on the basis of the aforesaid resolution or subsequent resolution of the Academic Council.

9. In the result, I quash Exts. P-3, P-4 and P-5 on the ground that respondents 4. 5, 6 and 7 had no valid exemption from the prescribed qualifications when the said orders were issued. I also declare that the said respondents are qualified to hold the post of lecturers with effect from 8-8-1972 by virtue of Clause (1) (b) of Regulation 5 of the Regulations made by the Academic Council under the Kerala Universitv Act. 1969. This Original Petition is allowed to the above extent, and dismissed in other respects. In the circumstances of the case the parties will bear their own costs.


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