Divia vs State of Kerala and Others

M. Jagannadha Rao, C.J.—This appeal is preferred by the writ Petitioner against the judgment of the learned Single Judge in O.P. No. 7799 of 1991 dismissing the writ petition.

The writ Petitioner-Appellant passed S.S.L.C. examination in 1984 and joined Group IV in Pre-degree course and completed the same in 1986. Thereafter she completed B. Com. degree course in 1989. She then wanted to undergo studies by taking Group II in the Pre- degree course so that she could ultimately seek to go for M.B.B.S. and become a doctor. Therefore she applied to various colleges under the second Respondent (Mahatma Gandhi University, Kottayam) seeking admission to Pre- degree course in Group II. She sent applications to various colleges. She received a memo from fourth Respondent (Principal, Sree Sankara Vidyapeedom College, Sree Sankarapuram, Varlayanchirangara) asking her to appear before him for an interview. She appeared for the interview with the certificates. She was told that she was not eligible to get admission to Pre-degree course in Group II. Thereafter she issued a notice to third Respondent (Vice Chancellor, Mahatma Gandhi University) and since no reply was received, she filed the writ petition.

In the writ petition, a counter-affidavit was filed by the fourth Respondent stating that there was some suppression of facts in the Petitioner''s application as to her passing B. Com. degree in 1989 and if she had mentioned die said fact she would not have been called for interview by the fourth Respondent. It is further stated that the relevant Regulations applicable to the writ Petitioner do not permit a B. Com. degree holder to join Pre-degree course and in a different subject. It was therefore prayed that the writ petition be dismissed.

The learned Single Judge, relying upon Section 99 of the Mahatma Gandhi University Act and, Section 23 of the Interpretation and General Clauses Act, 1125 (applicable to Kerala State) dismissed the writ petition. The position is that initially the area now coming under the Mahatma Gandhi University was within the jurisdiction of the Kerala University by virtue of the provisions of the Kerala University Act, 1974. It was only subsequently that the Mahatma Gandhi University Act was passed in 1985 prescribing the territorial limits in Section 4 of that Act. Section 99 of the Mahatma Gandhi University Act, 1985 permits continuance of statutes and ordinance made under the Kerala University Act, 1974 in so far as they are not inconsistent with the provisions of the 1985 Act in respect of the areas referred to in Sub-section (1) Of Section 99 until they are replaced by statutes and ordinances to be made under the 1985 Act. The learned Judge referred to Section 23 of the Interpretation and General Clauses Act, 1125 (applicable to Kerala State) and applied the said section on the basis that there is an implied repeal of Kerala University Act, 1974 by the Mahatma Gandhi University Act, 1985 to the extent of the territorial limits covered by the latter Act. The learned judge proceeded to state that the Regulations made under the Kerala University Act, 1974 would therefore continue to apply to the area covered by the Mahatma Gandhi University Act, 1985. He then referred to the Regulations made under the Kerala University Act restricting right of admission to Pre-degree course m Anr. subject to a person who had B.Sc. or B.Com. degree qualification. The relevant provision of the Regulation made under the provisions of the Kerala University Act, 1974 reads as follows:

No candidate who has passed the Pre-degree/B.A/B.Sc./B.Com. degree examination of thi6 University shall be permitted to rejoin the Pre-degree/B.A./B.Sc./B.Com. degree courses as the case may be, as a regular student or by private registration or by Correspondence course either in the subject in which he originally passed the examination or in any other subject, except as provided in the Regulations relating to the respective examinations.

The learned Judge come to the conclusion that in view of the above Regulation made under the provisions of the Kerala University Act, 1974, which according to him are applicable to candidates seeking admission to Mahatma Gandhi University, which was formed in 1985, admission to the Petitioner to Group II of Pre-degree course was rightly refused by the fourth Respondent. The writ petition was therefore dismissed.

It is against the said judgment that the present appeal is preferred. In this appeal it is contended by learned Counsel for the Appellant that there is no Regulation made under the provisions of the Mahatma Gandhi University Act, 1985, which prohibits a B.Com. degree holder seeking admission to Pre-degree course in a Science subject. If the Petitioner wants to study Science subject and ultimately seek admission to M.B.B.S. course, in the absence of regulation of this University, she cannot be denied admission. It is further contended that the Regulation made under the Kerala University Act, 1974 cannot be made applicable to the Mahatma Gandhi University Act- Neither Section 99 of the Mahatma Gandhi University Act nor Section 23 of the Interpretation and General Clauses Act, 1125 would apply to the facts of the case. Further, Section 39 of the Mahatma Gandhi University Act, 1985 prescribes a procedure for making Regulations, which is different from the procedure for making Regulations fixed under the Kerala University Act, 1974 and therefore it should be deemed that there is an inconsistency between the two statutes and for that reason the Regulations made under the Kerala University Act cannot be applied to candidates seeking admission to Mahatma Gandni University. On behalf of the Respondents it is submitted that the view taken by the learned Single Judge is correct and the Regulations of the Kerala University would apply to Mahatma Gandhi University, as stated by the learned Single Judge.

We have, gone through the Regulations made under the Kerala University Act, 1974. If those Regulations apply to the case of the Petitioner, it has to be said that the refusal of admission to the Petitioner to Pre-degree course in Science subject was perfectly justified, because she was already having a B. Com. degree qualification. But the question is whether the said Regulations would apply to her case. For the aforesaid purpose, it is necessary to refer to Section 99 of the Mahatma Gandhi University Act as also Section 23 of the Interpretation and General Clauses Act, 1125 (applicable to Kerala State): They read as follows:

Section 99 of the Mahatma Gandhi University Act:

Act 17 of 1974 not to apply.-(1) Subject to the provisions of this section the Kerala University Act, 1974 (17 of 1974), shall, with effect from the date of the commencement of this Act cease to apply in respect of the areas to which the jurisdiction of the Gandhiji University extends.

(2) Notwithstanding anything contained in Sub-section (1), all statutes and ordinances made under the Kerala University Act, 1974 (17 of 1974) and in force on the date of 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 in respect of the areas referred to in Sub-section (1) until they are replaced by the Statutes and Ordinances to be made under this Act.

(3) All property, whether movable or immovable, including lands, buildings, equipments, books and library and all rights of whatever kind owned by or vested in or held in trust immediately before the date of the commencement of this Act by the University of Kerala at the University Study Centres at Palai, Kottayam and Changanacherry as well as all liabilities legally subsisting against the University of Kerala at these centres shall stand transferred to and vested in the Gandhiji University.

(4) Nothing in this section shall be held to prejudice or affect the application of Sections 4 and 23 of the Interpretation and General Clauses Act, 1125 (VII of 1125).

Section 23 of the Interpretation and General Clauses Act:

Continuation of orders, etc. issued under enactments repealed art re- enacted. Where any act is repealed and re-enacted with or without modification then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule form or bye-law made or issued under the provisions so re-enacted.

So far as Section 99(2) of the Mahatma Gandhi University Act is concerned, it will be noticed that the Statutes and Ordinances made under the Kerala University Act, 1974, and which are in force on the date of the commencement bf the Mahatma Gandhi University Act, 1985, shall, in so far as they are not inconsistent with the provisions of the Mahatma Gandhi University Act, 1985, continue to be in force in respect of the areas referred to in Sub-section (1) until they are replaced by the statutes and Ordinances to be made under the Act. This provision would, therefore, apply to the continuance'' of the Statutes and Ordinances made under the Kerala University Act, 1974. In the present case we are not concerned with the continuance of any particular Statute or Ordinance made under the Kerala University Act. But we are concerned with the regulation made in exercise of the powers conferred by a statute made under the Kerala University Act, 1974.

In such a situation, we are of the view that it is Section 23 of the Interpretation and General Clauses Act, 1125, that is more important. If Section 23 should apply, the question would be whether there is any repeal. Learned Counsel for the Appellant submits that there is no repeal. We cannot agree. It is true that Section 102 of the Mahatma Gandhi University Act merely states that the Gandhiji University Ordinance, 1984 has been repealed. This is understandable because Kerala University Act still continues to apply in respect of the areas over which it remains to have jurisdiction. Out of the area originally within the jurisdiction of the Kerala University Act, 1974 a particular area has been carved out for the Mahatma Gandhi University Act. It is therefore, a clear case of implied repeal of the provisions of the Kerala University Act, 1974 to the extent the provisions of that Act were formerly applicable to the area now covered under the Mahatma Gandhi University Act. The Supreme Court in The Chief Inspector of Mines and Another Vs. Lala Karam Chand Thapar etc., has held that the corresponding section in the General Clauses Act namely, Section 24 not only applies to express repeal provision but to repeal by implication by reason of repugnancy or otherwise. It is therefore clear that Section 23 of the Interpretation and General Clauses Act, 1125 which corresponds to Section 24 of the Central General Clauses Act, 1857) applies as there is a repeal and re-enactment.

The next question is whether Section 23 applies to Regulations. Section 23 of the Interpretation and General Clauses Act, 1125, clearly states that a ''rule'' made or issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted. Section 2 (31) of the Interpretation of General Clauses Act, 1125 states that ''rule'' includes regulation. It is therefore clear that the regulations made under the provisions of the Kerala University Act, 1974 would come within the above said ''rule'' in Section 23 of the Interpretation and General Clauses Act, 1125.

The question then is whether there is any inconsistency between the Regulation of the Kerala University Act, which precludes a graduate to be admitted to a pre-degree course, and the provisions of the Mahatma Gandhi University Act. No provision of the new Act has been, brought to our notice by learned Counsel for the Appellant to say that it is inconsistent with the said Regulation. There is no express provision in the 1985 Act which goes contrary to the provisions of the Regulation in question extracted above and which can be said to permit admission of a graduate to a Pre-degree course. No provision of the New Act of 1985 has been brought to our notice which can be said to permit admission of a graduate to a Pre-degree course. Hence Section 23 of the Interpretation and General Clauses Act, 1125 allows the Regulations of the Kerala University Act, 1974 to govern the situation. If so, the Petitioner cannot seek admission to a Pre-degree course inasmuch as he is already a B.Com. degree holder.

Learned Counsel for the Appellant further contended that inasmuch as for making Regulations under the new Act of 1985 a different procedure has been prescribed u/s 39 of that Act, and it must, therefore, be held that there is an inconsistency. In our view, this submission is not correct. Merely because different procedure for making Regulations is provided in the Mahatma Gandhi University Act, 1985, it cannot be said that that would raise any inconsistency between the provisions of the said Act and the particular Regulation made under the Kerala University Act, referred to earlier.

For the aforesaid reasons, the writ appeal fails and is dismissed.