Special provisions in respect of unaided colleges

The Kerala High Court on July 12, 2011 in Kerala Arts & Science Unaided College Vs. Mahatma Gandhi University, 2011 (3) KLT 373, ILR 2011 (3) Ker. 718, 2011 (3) KHC 241 declared that the Centralized Allotment Process (CAP) Rules and Regulations, 2010 and the Centralized Allotment Process (CAP) for Under Graduate (UG) Courses Regulations are inapplicable in so far as the unaided colleges which are affiliated to the Mahatma Gandhi University are concerned.

The Hon’ble MR. Justice ANTONY DOMINIC made clear that it will be open to the Government to exercise their power under Section 73A of the Act, if they deem it appropriate.

Impugning the validity of the aforesaid regulations framed by the University, the learned counsel for the petitioners relied on Section 73A of the Mahatma Gandhi University Act, 1985, which reads as under.

# 73A – Special provisions in respect of unaided colleges –

Notwithstanding anything contained in this Act or statutes, ordinance, regulations, rules, bye-laws or orders,

(a). the scale of pay and other candidates of service of the teaching and non-teaching staff of unaided colleges; and

(b). the admission and selection of all the fees payable by, students in such colleges shall be determined, from time to time by the Government on the basis of the recommendations of a committee by the Government consisting of; and

(i). one of the Vice Chancellors of the Universities in the State nominated by the Government;

(ii). the Secretary to Government, Higher Education Department (who shall the Convener of the Committee and

(iii). the Director of Collegiate Education.

This Writ Petitions are filed by the Kerala Arts and Science Unaided College Management Association and Managers of two unaided colleges. These colleges are affiliated to Mahatma Gandhi University which is governed by the provisions of Mahatma Gandhi University Act, 1985.

The petitioners challenges the Centralized Allotment Process (CAP) Rules and Regulations, 2010, framed by the University for the purpose of Centralized allotment of students for Post Graduate Courses for the year 2010 and the Centralized Allotment Process (CAP) for Under Graduate (UG) Courses Regulations framed by the respondent University for Centralized allotment of students to colleges affiliated to the Mahatma Gandhi University.

The Court heard the learned counsel for the petitioners and Mr.M.R.Rajendran Nair, the learned senior counsel appearing for the University.

It was the contention of the learned counsel for the petitioners that in so far as the unaided colleges affiliated to the respondent University are concerned, power to make regulations governing admissions is only on the Government, which is to be exercised on the basis of the recommendations of a Committee appointed by the Government consisting of members mentioned in the Section in 73A of the Act.

It was contended that the Government have not so far appointed any Committee for the purpose of regulating admissions in the unaided colleges in the manner as provided in Section 73A. Therefore, the University which has not been conferred any power in this respect, acted without jurisdiction in making the aforesaid Regulations.

Per contra, the learned senior counsel placed reliance on Section 39 of the Act which reads as under :-

S.39 – Regulations can subject to the provisions of this Act, statutes and the ordinance, the Academic Council may make regulations providing for all or any of the following matters, namely –

(a). the courses of studies and the conduct of examinations;

(b). the admission of students to the various courses of study and to the examinations;

(c). the qualifications of teachers

(d). the appointment and prescription of duties of the Boards of Studies and Examiners;

(e). the recognition of examinations, degrees and diplomas of other Universities as equivalent to the examinations, degrees and diplomas of the University; and

(f). all other matters which under the provisions of this Act, the statutes and the ordinances are to be or may be prescribed by regulations.

According to him, in view of Section 39, the Academic Council is entitled to make regulations governing admission of students to various courses of study and that therefore, the regulations impugned herein are perfectly legal and valid.

While disposing the writ petitions after considering the submissions made by both sides the Court held that it is true as contended by the learned senior counsel, Section 39 of the Act confers power on the Academic Council of the Respondent University to make regulations providing for the matters enumerated in the Section. This includes regulations governing admission of students to various courses of study.

However, as far as unaided colleges are concerned, legislature has made a special provision in Section 73A of the Act. A reading of Section 73A shows that the regulations will have to be framed by the Government on the basis of the recommendations of a Committee consisting of the members, mentioned in Clauses (i), (ii) and (iii) of Section 73A(b).

It is the settled position of law that when a statute has prescribed something to be done in a particular manner, it shall be done in that manner alone. Therefore, so long as Section 73A remains in the statute, the University cannot fall back upon the general power under Section 39, and the University cannot draw any strength from Section 39.

When the case was initially taken up for hearing on 5.7.2011, after hearing both sides, in view of the absence of any counter affidavit filed by the State, it was adjourned to today in order to enable the learned Government Pleader to obtain instructions as to whether the Government have appointed any committee as contemplated in Section 73A of the Act, for the purpose of regulating admissions in the unaided colleges.

Today when the matter was taken up, on the basis of the instructions obtained, the learned Government Pleader submitted that such a committee has not been appointed. If that be so, what emerges is that the Government still have not exercised their power under Section 73A of the Act.

It is in the light of the above, that this Court has to examine whether power under the impugned regulations framed by the Mahatma Gandhi University Act, 1985, can be exercised for allotment of students in the unaided colleges affiliated to the respondent University.

In Mahaashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth (AIR 1984 SC, 1543), the Apex Court indicated a three-fold text for testing the constitutionality of subordinate regulations, in the following words.

“The constitutionality of the impugned regulations has to be adjudged only by a three- fold test, namely,

(1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate;

(2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly

(3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution.”

As already noticed, in so far as unaided colleges are concerned, Section 73A is the only enabling provision in the Act for framing regulations providing for matters mentioned therein. If that be so, the impugned regulations framed by the Mahatma Gandhi University exercising its power under Section 39, falls outside the scope and ambit of the power conferred by Section 73A of the Act.

Therefore, as far as unaided Colleges affiliated to the Respondent University are concerned, these Regulations fall beyond the scope and power conferred by the parent statute. For that reason, these Regulations can not be made applicable to such unaided Colleges.

Advocates Baby Issac Illickal, Isaac Kuruvilla Illickal appeared for the Petitioner and Senior Advocate M.R. Rajendran Nair, C.A. Majeed, K.H. Asif, T.A. Shaji (Standing Counsel M.G. University), T.K. Aravindkumar Babu appeared for the respondents.

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