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Judgment
V. Dhanapalan, J.—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, insofar 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. 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.
1.1. 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 u/s 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.
1.2. 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.
1.3. 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.
First respondent has filed a counter affidavit, stating as follows:
2.1. The Universities in Tamil Nadu are adopting different scales of pay to their non-teaching 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.
2.2. 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 5.2.1997, 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 Committee of the Madurai Kamaraj
University and if so, which of recommendations of the Committee need such amendments.
2.3. The Committee had gone into the scales of pay of various posts viz., Junior Assistants, Assistants, Superintendents, Assistant Registrar,
Deputy Registrar, basic servants etc., and recommended uniform scales of pay.
2.4. The report of the Committee was examined by the Government and the following decisions were taken;
(i) The norms prescribed by the committee based on the number of teaching staff, student strength and the departments are not acceptable for the
reason that these factors are always variable as the strength of students and the number of departments may vary from time to time. Staff are not
usually retrenched in the case of reduction in student strength. So, it has been decided that the present level of staff in all the Universities may be
kept as frozen and any new recruitment of non-teaching staff in any category can be done only with the approval of the Government.
(ii) The Universities are having a different scales of pay and different cadres on non-teaching posts. To make uniform scales of pay, the following
cadres alone are to be adopted by the Universities:
Typists
Junior Assistants
Assistants
Superintendents
Assistant Registrar/Assistant Controller
Deputy Registrar/Deputy Controller
(iii) The scales of pay up to Superintendent may be as in the case of scales of pay available to the staff working in Heads of Department in the
Government of Tamil Nadu. For Assistant Registrar and Deputy Registrar, the scales of pay be Rs. 8,000-275-13,500 and 10,000-325-15,200
respectively.
(iv) Any non-teaching staff who draws presently in the scale different from the scales mentioned in item (iii) above shall be accommodated in the
above scale and the difference in pay would be given to him as Personal Pay and the same will be allowed to continue till his retirement or his
promotion to next cadre.
(v) Any non-teaching post below the rank of Junior Assistant other than the cadre available in the Government stands abolished with immediate
effect and all the staff working in those cadres shall be fit in any one of the above cadres and the difference in pay shall be paid as personal pay till
their retirement or promotion.
(vi) Regarding the staff below the rank of Record Clerk such as Watchman, Gardener, Sweeper etc., the scales of pay as applicable to the
Government servant alone shall be applicable and the filling up of these posts in future should be stopped and these works are to be attached to
private sector on contract basis in future.
(vii) The post of Typist shall be abolished in due course of time after the retirement of all the existing typists and these posts should be made as
Junior Assistants cum Typists and Office automation using computers shall be taken up immediately.
(viii) The appointment of staff such as senior/Deemed Superintendent/senior Assistant etc., prevailing in many Universities should be stopped and
there shall be only Selection Grade after 10 years in the same cadre and Special Grade after serving 20 years as in the case of Government
Servants.
2.5. Based on the report of Dr. S. Muthukrishnan Committee and the above decisions taken, the Government issued orders in G.O. Ms. No. 402,
Higher Education (H2) Department, dated 13.12.2006, which cannot be faulted with.
Second respondent has filed a counter affidavit, stating as below:
3.1. As per Section 19(g) of the Act, Syndicate alone is empowered to appoint the faculties, staff, servants etc., fix their emoluments, define their
duties and the conditions of service. As resolved by the Syndicate at its meeting held on 24.6.1989, a three member sub-committee was
constituted under the convenership of Justice P. VENUGOPAL to study the V Pay Commission Report of the Government of Tamil Nadu and
make recommendations to the Syndicate for applying the same to the Non-teaching staff of the University. The committee, after 14 sittings, had
recommended to the Syndicate, the scales of pay to be implemented for the staff of the University under various categories. While giving its
recommendation, the committee observed that they are fixing the scales of pay by following the same pattern as was done in 1984 Pay Revision by
fixing the same scale of pay applicable to the corresponding posts at the Secretariat.
3.2. From the report submitted by the above said committee, it could be seen that (i) the University, while adopting a revision of pay scales for its
employees, has constituted a Committee for fixing the pay scales; (ii) the Committee recommended corresponding pay scales to the University
staff, wherever such posts are available at the Secretariat and (iii) in cases where the University staff getting higher scales of pay, the Committee
recommended the lesser pay scale allowed to the Secretariat staff, to the University staff also. The same principle was followed for identifying the
scales of pay during the subsequent pay revisions. Now, in the recent revision of pay scales w.e.f. 1.1.2006, the University has adopted the
revision to its employees on scale to scale basis as was ordered in G.O. Ms. No. 234, Finance (Pay Cell) Department, dated 1.6.2009.
Learned senior counsel for the petitioner in W.P. No. 49 of 2007 would contend that the impugned order of the first respondent is without
competence and against the provisions of Section 19 of the Madras University Act and the Ordinances made to regulate the service conditions of
the employees of the University and it is a clear case of exercise of jurisdiction which is not vested with the first respondent under his executive
power under Article 162 of the Constitution of India. His further contention is that even the legislative power does not enable to alter the conditions
of service, disadvantageous to the existing employees, without due process of law. He would cite the following authorities:
(i) Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others,
The actual decision in University of Delhi was supported by another ground, namely, that the predominant activity of the University was
teaching and since teachers did not come within the purview of the Act, only the incidental activity of the subordinate staff could fall within its Akhil
Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association Vs. Union of India
(UOI) and Others, :
A technical point is taken in the counter-affidavit that Petitioner 1 is an unrecognised association and that, therefore, the petitioner to that
extent, is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of
persons with a common grievance exists and they have approached this Court under Article 32. Our current processual jurisprudence is not of
individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through ""class actions"", ""public interest
litigation"" and ""representative proceedings"". Indeed, little Indians in large numbers seeking remedies in Courts through collective proceedings,
instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in
holding that the narrow concept of ""cause of action"" and ""person aggrieved"" and individual litigation is becoming obsolescent in some jurisdictions.
It must fairly be stated that the learned Attorney-General has taken no objection to a non-recognised association maintaining the writ petitions.
(iii) V State of Sikkim Vs. Dorjee Tshering Bhutia and others,
The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled
law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory
provisions, is without jurisdiction and is a nullity. But in this case we are faced with a peculiar situation. The Rules, though enforced, remained
unworkable for about five years. The Public Service Commission, which was the authority to implement the Rules, was not in existence during the
said period. There is nothing on the record to show as to why the Public Service Commission was not constituted during all those five years. In the
absence of any material to the contrary we assume that there were justifiable reasons for the delay in constituting the Commission. The executive
power of the State being divided amongst various functionaries under Article 166(3) of the Constitution of India there is possibility of lack of co-
ordination amongst various limbs of the government working within their respective spheres of allocation. The object of regulating the recruitment
and conditions of service by statutory provisions is to rule out arbitrariness, provide consistency and crystallise the rights of employees concerned.
The statutory provisions which are unworkable and inoperative cannot achieve these objectives. Such provisions are non est till made operational.
It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field. When in a peculiar
situation, as in the present case, the statutory provisions could not be operated there was no bar for the State Government to act in exercise of its
executive power. The impugned notification to hold special selection was issued almost four years after the enforcement of the Rules. It was done
to remove stagnation and to afford an opportunity to the eligible persons to enter the service. In our view the State Government was justified in
issuing the impugned notification in exercise of its executive power and the High Court fell into error in quashing the same.
(iv) Rajasthan Agricultural University Vs. Ram Krishna Vyas,
The University being a body corporate having perpetual succession has got a separate legal entity and as such rules framed by the Government
shall not be applicable unless specifically adopted by the University in accordance with the provisions of the Act by which the University was
constituted.
(v) M. Aarthi (minor) v. State of Tamil Nadu, 2002 (4) CTC 449 : LNIND 2002 Mad 1198: (2003) 1 MLJ 1:
The executive power of the State under Article 162 of the Constitution is co-extensive with the legislative power and when the field of law is
occupied by a legislative Act, the exercise of executive power is not available. There is no dispute about the State''s power to provide reservation
even by executive order under Article 162 of Indian Constitution. But such power can be exercised only in the absence of a legislative Act. Of
course, if an aspect is not covered by the legislative Act, then the executive power can be resorted to. To put it precisely, if the power of
reservation is exhausted under Tamil Nadu Act 45 of 1994, then no power exists to invoke the executive power under Article 162 of the
Constitution.
(vi) R.S. Garg Vs. State of U.P. and Others,
Even the State cannot make rules or issue any executive instructions by way of regularisation of service. It would be in violation of the Rules
made under Article 309 of the Constitution of India and opposed to the constitutional scheme of equality clauses contained in Articles 14 and 16.
(vii) Union of India (UOI) and Another Vs. Central Electrical and Mechanical Engineering Service (CE and MES) Group ''A'' (Direct Recruits)
Association, CPWD and Others,
It is now a well-settled principle of law that an executive order must be passed in conformity with the rules. Power of the State Government to
issue executive instructions is confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing rules....
Such office orders must be subservient to the statutory rules.
Conversely, learned Advocate General, appearing for the first respondent, would contend that 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 5.2.1997, constituted a Committee
under the Chairmanship of Dr. S. Muthukumaran and, based on the report submitted by the said Committee, the impugned order was passed, by
which the scales of pay of existing staff were not affected, but only the categories of posts were regularised in all Universities. He would argue that
the impugned order is an executive order and the Universities or their staff have no say for that matter. He would rely on the following decisions:
(i) Sant Ram Sharma Vs. State of Rajasthan and Another,
We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection
grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in
the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the
principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this
behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to
selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent
on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already
framed.
(ii) P.H. Paul Manoj Pandian Vs. Mr. P. Veldurai,
Under Article 162 of the Constitution, the executive power of the State extends to matters with respect to which the State Legislature has
power to make laws. Yet the limitations on the exercise of such executive power by the Government are twofold; first, if any Act or law has been
made by the State Legislature conferring any function on any other authority, in that case the Governor is not empowered to make any order in
regard to that matter in exercise of his executive power nor can the Governor exercise such power in regard to that matter through officers
subordinate to him. Secondly, the vesting in the Governor with the executive power of the State Government does not create any embargo for the
legislature of the State from making and/or enacting any law conferring functions on any authority subordinate to the Governor.
Once a law occupies the field, it will not be open to the State Government in exercise of its executive power under Article 162 of the
Constitution to prescribe in the same field by an executive order. However, it is well recognised that in matters relating to a particular subject in
absence of any parliamentary legislation on the said subject, the State Government has the jurisdiction to act and to make executive orders. The
executive power of the State would, in the absence of legislation, extend to making rules or orders regulating the action of the executive. But, such
orders cannot offend the provisions of the Constitution and should not be repugnant to any enactment of the appropriate legislature. Subject to
these limitations, such rules or orders may relate to matters of policy, may make classification and may determine the conditions of eligibility for
receiving any advantage, privilege or aid from the State.
The powers of the executive are not limited merely to the carrying out of the laws. In a welfare State the functions of the executive are ever
widening, which cover within their ambit various aspects of social and economic activities. Therefore, the executive exercises power to fill gaps by
issuing various departmental orders. The executive power of the State is coterminous with the legislative power of the State Legislature. In other
words, if the State Legislature has jurisdiction to make law with respect to a subject, the State executive can make regulations and issue
government orders with respect to it, subject, however, to the constitutional limitations. Such administrative rules and/or orders shall be inoperative
if the legislature has enacted a law with respect to the subject. Thus, the High Court was not justified in brushing aside the Government Order
dated 16.11.1951 on the ground that it contained administrative instructions.
(iii) Dhananjay Malik and Others Vs. State of Uttaranchal and Others,
A Constitution Bench of this Court in Sant Ram Sharma v. State of Rajasthan (supra), has pointed out at AIR p. 1914 that the Government
cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill
up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
The aforesaid ruling has been reiterated in para 9 of the judgment by a three-Judge Bench of this Court in Union of India v. K.P. Joseph as
under:
Generally speaking, an administrative order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This
Court has held in Sant Ram Sharma v. State of Rajasthan (supra) that although Government cannot supersede statutory rules by administrative
instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and
supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.
I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and also gone through the records as
well as the authorities.
The sum and substance of the grievance of the petitioners is that their entire service conditions, including remuneration and classification of
various services, are governed by the ordinances and statutes made by the Syndicate under particular Acts and, therefore, issuance of impugned
Government Order under the guise of executive order in order to bring uniformity of the service conditions of the University employees with the
State Government services, overlooking the existing statutes of Universities, is uncalled for.
In the given situation, the question of law that arises for consideration in all these Writ Petition is, whether executive orders will prevail over the
laws or enactments made by the legislature ?
For deciding the above question, the relevant provisions are: (i) Section 19 of The Madras University Act, 1923; (ii) executive order and (iii)
Article 162 of the Constitution of India. Let me deal with the said provisions one after another.
Section 19: Powers of the Syndicate:
The Syndicate shall have the following powers, namely:
(a) to make Ordinances and amend or repeal the same;
(b) to hold, control and administer the properties and funds of the University;
(c) to direct the form, custody and use of the common seal of the University;
(d) to regulate and determine all matters concerning the University in accordance with this Act, the Statutes, the Regulations and the Ordinances;
(e) to frame the financial estimates of the University and submit the same to the Senate;
(f) to administer all properties and funds placed at the disposal of the University for specific purposes;
(g) to appoint the University Professors and Readers and Lecturers and the Teachers and servants of the University, fix their emoluments, if any,
define their duties and the conditions of their service; and provide for the filling up of temporary vacancies;
(h) - (y) xxxxx
While sub-section (a) of Section 19 empowers the Syndicate of the University, which, in addition to the Vice-Chancellor, consists of Secretary
to the Government in-charge of Education; Secretary to Government in-charge of Health and Family Welfare; Secretary to Government in-charge
of Law; Director of Higher Education, Madras; Director of Technical Education, Madras; Director of Medical Education and Director of Legal
Studies as its ex-officio members and six members elected by the Senate from among its members; five members elected by the Academic Council
from among its members of whom four shall be teachers of affiliated colleges and the remaining shall be a teacher of an approved college; three
members nominated by the Chancellor; three university professors from among the Heads of Departments of study and research, schools of
excellence or centres of advanced studies, nominated by the Chancellor on the recommendation of the Vice-Chancellor, by rotation among such
Departments, Schools and Centres; one University Reader nominated by the Vice-Chancellor by rotation according to seniority and one University
lecturer nominated by the Vice-Chancellor by rotation according to seniority, to make Ordinances and amend or repeal the same, sub-section (g)
whereof empowers the Syndicate to appoint the University Professors, Readers, Lecturers, Teachers and Servants of the University, fix their
emoluments, if any, define their duties and the conditions of their service and fill up temporary vacancies.
It is important to mention here that the above is the similar provision in case of other Universities involved in these Writ Petitions but by
different Sections viz., Section 20(7) for Madurai Kamarajar University Act, 1965; Sections 25(27)(a) and (b) and 44 for Bharathiar University
Act, 1981; Section 25(27)(a) and (b) for Bharathidasan University Act, 1981; Section 24(27)(a) and (b) for Manonmaniam Sundaranar
University Act, 1990; Section 22(18)(a) and (b) for Tamil University Act, 1982 and Section 22 for Annamalai University Act, 1943, which Acts
are altogether called ""the Acts"".
At this point, let me have a look at the executive order viz., G.O., which is impugned herein. The English translation of the said G.O. goes thus:
Government of Tamil Nadu
Abstract
Universities - Orders issued on the recommendations of Dr. S.Muthukumaran Committee - established to fix uniform salary and posts for the Non-
teaching Staff working in all the universities - reg.
Higher Education (H-2) Department
G.O. (RT)No. 402 Dated 13.12.2006
Read:
G.O. 2D, No.
2, Department of Higher Education, dated 5.2.1997. 2. D.O. Letters No. 137 of 1997 of the Member Secretary, Higher Education, State of
Tamil Nadu, dated 28.8.1997, 27.2.1998 and 6.8.1998.
Reports received from the Annamalai University, Bharathiar University, Manonmaniam Sundharanar University, Annai Teresa University,
Alagappa University, Bharathidhasan University, Madurai Kamarajar University and Madras University.
ORDER:
As per the G.O. 1st cited, a committee was appointed under the Presidentship of Dr. S. Muthukumaran, the former member - Secretary of Higher
Education, the State of Tamil Nadu, in order to scrutinize the fixation of uniform and common salary for the non-teaching staff in all the universities
and to create uniform non-teaching posts in all the universities.
2, This committee examined the following issues.
(a) The creation of non-teaching posts in all the universities as uniform and definite posts, if necessary, separate posts will be created in the
affiliated universities, unitary universities and deemed universities.
(b) To consider fixation of uniform and common salary amount for the same type of job and identical educational qualification for the non-teaching
staff in all the universities.
(c) To examine the necessity of modifying the rules of the existing universities so as to implement the recommendations of the committee of office
and management established for Madurai Kamaraj University.
The Member - Secretary of the Department of Higher Education, the State of Tamil Nadu had sent the letter mentioned in item No. 2 of the
reference, submitting the findings of the committee in three parts to the Government. The said committee has proposed that it is not necessary to
modify the rules of all the universities as per the findings of the office and management committee of the Madurai Kamaraj University and that the
salary of the Junior Assistants, Assistants and Superintendent shall be fixed on par with the salary of the Assistants, Assistant Section Officers and
Sections Officers of the Secretariat, in the pay scale of Rs. 2,500-4,200 and 3,700-5,000 and that, further, the posts of senior Grade
Superintendent/Chief Superintendents and senior Deputy Registrar/Deputy Registrar, may be abolished and that in those posts Selection Grade
and Special Grade posts may be created and that the salary of all the employees shall be within the parameters of the 5th Pay Commission.
The Government had examined the recommendation given by the committee headed by Dr. S. Muthukumaran. After elaborate examination, the
Government pass orders after deciding to implement the recommendations of the committee, which are as follows :-
(i) The opinion of the committee that the norms for creating the Non-teaching posts in universities should be on the basis of the strength of students,
teachers and departments, cannot be accepted. Because, these parameters tend to change quite often. The strength of the students and the strength
of the departments change now and then. When the strength of the students gets reduced generally, the employees are not removed from service.
Therefore, the posts of present non-teaching staff shall be kept frozen in all the universities and no new appointment shall be made in such non-
teaching posts, hereafter, in any university without the Government order. The proposals from the universities for creating the posts shall be
uniformly implemented by the Government.
(ii) Among the non-teaching staff in all the universities, several types of scales of pay and various types of non-teaching posts do exist. However, in
order to offer them a uniform and common scale of pay, the following non-teaching posts alone should be followed:
Typists.
Junior Assistants.
Assistants.
Superintendent.
Assistant Registrar/Controller.
Deputy Registrar/Controller.
(iii) The scales of pay of all the non-teaching staff upto the cadre of Superintendent in all the universities should be on par with the employees in the
same category in the Departments of the Government of Tamil Nadu. The salary of the Assistant Registrars shall be in the old scale of pay, (i.e.)
Rs. 2,500-4,200 (Presently from 1.1.1996, Rs. 8000-275-13,500) and for the Deputy Registrars as per the old scale of pay, (i.e.) Rs. 3,000 to
4,500 (At present, from 1.1.1996, Rs. 10,000-325-15,200).
(iv) If any of the non-teaching staff of the university are presently placed in the scale of pay as found in item No.iii above and the difference in their
salary, shall be paid as personal pay and the said salary shall be paid to them till their retirement or till they are promoted, on that basis.
(v) If there are non-teaching posts below the cadre of Junior Assistant in all the universities and if such posts do not exist in the Government
Departments, such posts shall be abolished. Those non-teaching staff shall be appointed in the posts equivalent to the posts, which exist in the
Government Department. The difference in their salaries shall be paid as personal pay, till they get promotion or till they retire.
(vi) For the posts, below the cadre of record clerk, such as, watchman, gardener, sweeper, the same salary, equivalent to that of the Government
employees, shall be paid. The appointment to the aforesaid posts shall be stopped in future. Those posts shall be filled up through private agencies
on contractual basis.
(vii) The existing posts of typists in universities shall continue, till the typists in those posts retire from service. After these typists retire, the post of
typist shall be converted into the post of Junior Assistant-cum-Typist. Moreover, steps shall be taken to improve the administration of the office by
computerisation.
(viii) In most of the universities, the appointment for the present senior Grade/Super Grade Superintendent among the non-teaching staff, shall be
stopped. These posts shall be converted as Selection Grade for those, who have put in 10 years of service in the same post and Special Grade for
those, who have put in 20 years of service in the same post.
While implementing the aforesaid order as in paragraph No.4, the universities shall take care to avoid additional expenditure. Even if additional
expenses are incurred, the Government shall deduct the said expenses from the amount of grant sanctioned by the Government. This shall be
confirmed by the Local Audit and Accounts Department. Even after this, if additional expenses are incurred, the Government Order that the
concerned universities shall bear such expenses.
This order issued with the concurrence of the Finance Department in A.Sa.Ku. No. 78355/Education 1/2006, dated 12.12.2006.
By order of the Governor
Sd/- K.Ganesan
Special Commissioner and Secretary to Government.
By virtue of the above executive order, the Government, namely, first respondent, in order to bring uniformity in respect of the service
conditions of non-teaching staff of the Universities with those of State Government, set the parameters with regard to their appointment, pay scales
and service conditions, which are evident from paragraphs 4 and 5 thereof. The said fact is also admitted by the first respondent in its counter,
stating that 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 5.2.1997, constituted a Committee under the Chairmanship of Dr. S.Muthukrishnan and, based on the
recommendations of the said Committee, the impugned order was passed. Though it is not cited anywhere in the said order as to under what
provision it is passed, it is stated by the learned Advocate General, during the course of his arguments before this Court, that the said order has
been passed, invoking the executive power of the State under Article 162 of the Constitution. Therefore, it is imperative for this Court to examine
the said Article, which reads as under:
Article 162: Extent of executive power of State.- Subject to the provisions of this Constitution, the executive power of a State shall extend to the
matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the
State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the
Union or authorities thereof.
Article 162 deals with the executive power of State. As per the said Article, the executive power of a State shall extend to the matters with
respect to which the Legislature of the State has power to make laws. The proviso clause to the said Article also states that in any matter with
respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and
limited by, the executive power expressly conferred by any law made by Parliament.
If the contention of the State that it is empowered to make laws with regard to any matters including the ones which are already covered by the
statutes is accepted and the impugned order, which regulates the service conditions of non-teaching staff of the Universities, which are autonomous
bodies governed by separate statutes and Acts, over which the State has no control at all, upheld, what shall be the effect of Section 19, though
the said Section differs in case of other Universities as indicated by me in paragraph 13 above, which confers exclusive powers, including the
definition of duties and service conditions of the staff of the University, on the Syndicate, and the existence of Senate, which is the supreme
governing body.
It is no doubt, the legislature has enacted the statutes, namely, the Acts of Universities. But, it is to be borne in mind that the legislature, while
enacting the Acts, has delegated all powers on the Syndicate with regard to whole affairs of the Universities. In other words, the Universities, being
body corporates having perpetual succession, have got a separate legal entity and, as such, the rules framed by the Government shall not be
applicable, unless specifically adopted by the Universities in accordance with the provisions of the Acts, by which the Universities are constituted.
If the State makes rules or issues any executive instructions by way of regularisation of services of the staff of Universities, it would be in violation
of the provisions contained in Article 309 of the Constitution of India and opposed to the constitutional scheme of equality clauses contained in
Articles 14 and 16.
Any executive order must be in conformity with the rules. Power of the State Government to issue executive instructions is confined to filling up
of the gaps or covering the area which otherwise has not been covered by the existing rules and such instructions or orders must be subservient to
the statutory rules. This is the law laid down by the Supreme Court in the case of Union of India v. Central Electrical & Mechanical Engineering
Service (Ce&Mes) Group ''A''(Direct Recruits) Assn.. CPWD (supra), relied upon by the learned counsel for the petitioners.
It is also held by the Apex Court in State of Sikkim v. Dorjee Tshering Bhutia (supra) case, referred to above, that the executive power of the
State cannot be exercised in the field which is already occupied by the laws made by the legislature and that any order, instruction, direction or
notification issued in exercise of the executive power of the State, which is contrary to any statutory provisions, is without jurisdiction and is a
nullity.
A Constitution Bench of the Supreme Court in Sant Ram Sharma v. State of Rajasthan (supra), has pointed out that the Government cannot
amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the
gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
It may be relevant to mention here that in the case of State of Sikkim v. Dorjee Tshering Bhutia (supra), stated above, the above principle was
not made applicable to it, the reason being that the Public Service Commission, which was the authority to implement the Rules, was not in
existence for a considerable period. It was held therein that when in a peculiar situation the statutory provisions could not be operated, there was
no bar for the State Government to act in exercise of its executive power. In those circumstances, the Apex Court upheld the impugned notification
of the State issued in exercise of its executive power, giving an opportunity to the eligible persons to enter the service. It is not the case here.
Also, a Five Judge Bench of this Court in the case of M. Aarthi (minor) v. State of Tamil Nadu (supra), cited above, has held that the
executive power of the State under Article 162 of the Constitution is co-extensive with the legislative power and when the field of law is occupied
by a legislative Act, the exercise of executive power is not available. It is further held therein that the executive power under Article 162 can be
exercised only in the absence of a legislative Act.
Even in P.H. Paul Manoj Pandian v. P. Veldurai (supra) case, relied upon by the learned Advocate General, the Supreme Court has held that
the exercise of executive power under Article 162 by the Government are subject to limitations, which are twofold. Firstly, if any Act or law has
been made by the State Legislature conferring any function on any other authority, in that case, the Governor is not empowered to make any order
in regard to that matter in exercise of his executive power nor can the Governor exercise such power in regard to that matter through officers
subordinate to him. Secondly, the vesting in the Governor with the executive power of the State Government does not create any embargo for the
legislature of the State from making and/or enacting any law conferring functions on any authority subordinate to the Governor. It is also held
therein that once a law occupies the field, it will not be open to the State Government in exercise of its executive power under Article 162 of the
Constitution to prescribe in the same field by an executive order. However, in matters relating to a particular subject, in absence of any
parliamentary legislation on the said subject, the State Government has the jurisdiction to act and to make executive orders. The executive power
of the State would, in the absence of legislation, extend to making rules or orders regulating the action of the executive. But, such orders cannot
offend the provisions of the Constitution and should not be repugnant to any enactment of the appropriate legislature. Subject to these limitations,
such rules or orders may relate to matters of policy, may make classification and may determine the conditions of eligibility for receiving any
advantage, privilege or aid from the State. In addition, the powers of executive are not limited merely to the carrying out of the laws. In a welfare
State, the functions of the executive are ever widening, which cover within their ambit various aspects of social and economic activities. Therefore,
the executive exercises power to fill up gaps by issuing various departmental orders. The executive power of the State is coterminous with the
legislative power of the State Legislature. In other words, if the State Legislature has jurisdiction to make law with respect to a subject, the State
executive can make regulations and issue government orders with respect to it, subject, however, to the constitutional limitations. However, such
administrative rules and/or orders shall be inoperative if the legislature has enacted a law with respect to the subject.
Keeping the above principles in mind, if we look at the order impugned, as already stated supra, it defines the service conditions, appointment
and pay scales of non-teaching staff of the Universities, which aspects are conspicuously covered by the existing rules of the statutes of the
Universities vide the Sections mentioned in paragraph 13 above. Therefore, the rules are not silent but are very sound on the particular point and,
as such, the question of filling up of the gaps or covering the area which otherwise has not been covered by the existing rules by means of the
impugned order, in my standpoint, does not arise at all, for the first respondent. If the administration of Universities is allowed to be interfered with
by the executive according to his whims and fancies, it would tantamount to usurping the powers of the authorities, which are vested with such
powers. Besides, if it so happens, it would defeat the very objects of the statutes. If at all, such a power can be so exercised only after making
suitable amendments to the statutes by the legislature.
It is true, as contended by the learned Advocate General, that the Universities are funded by the State with regard to their regular financial
transactions, including remuneration to the staff. But, that does not confer power on the State to issue executive instructions or orders so as to
interfere with the administration of the Universities, which are autonomous bodies. When the State has established the Universities in order to
afford education to the pupils under ''right to education'', it is a sine qua non for the former to fund the latter.
The constitutional framework underlined the power of the State under Article 162, as per which, subject to the provisions of this Constitution,
the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws, provided that
in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or
authorities thereof. Since the executive power of the State executive is co-extensive with that of the State legislature, it follows that the State
executive may make rules regulating any matter within the legislative competence of the State legislature, without prior legislative authority, except
where a law is required because the Rules so framed would violate any provision of the Constitution which requires legislation.
Generally, the Court would not exercise its power of judicial review to interfere with a policy made by the Government in exercise of its power
under Article 162, particularly where it involves technical, scientific or economic expertise, provided the executive power of the State expressly
conferred on it shall be exercised in the manner as provided.
In the instant case, the matters with respect to which legislature of the State has power to make laws having already been occupied and the
statutes brought into by the competent legislature even before the commencement of the Constitution which have been adopted by us and the said
statutes continue to be a rule of law and have a domain over the entire administration in respect of the universities, which statutes have specifically
mandated that the executive of the State viz., Governor of the State is the Chancellor of universities and he exercises the power regulating the
statutes with regard to all aspects of the universities including the service conditions of the employees, the present executive order, regulating the
service conditions of the employees of the universities and fixing their scales of pay, which takes away the rights of the Syndicate of the
Universities, where the Governor of the State himself is the head, is totally unwarranted. As a matter of fact, under Article 162, the power of the
executive shall extend to the matters with respect to which the legislature of the State has power to make laws, but it should not be repugnant to
the laws, which already occupied the field.
It is contended by the State that the petitioner association has no locus standi to come before this Court, when all the universities staff
associations have requested for a uniform policy. In this context, it is to be mentioned that when the associations have requested for uniform pay
scales, the authority of the State can very well ask the universities to look into the matter instead of making itself a regulatory mechanism by altering
the conditions of service and fixing the pay scales of staff of universities.
Even as the learned Advocate General has pointed out that because of the impugned Government Order, no prejudice or legal injury has been
caused to anyone, it is to be stated that though there may not be any legal injury, it is the legal principle that when the power of deciding a particular
matter has been vested with a particular authority, it is for that authority alone to look into that matter. In addition, despite the State having the
eminent domain over the entire issues, when the legislature intended a specific issue in a particular manner and the same is in existence for many a
decade, in my standpoint, it is, certainly, not for the State to come out with an executive order now for enforcing the altered service conditions
under the guise of maintaining uniformity.
In view of my elaborate discussions in the foregoing paragraphs, I would sum up the conclusions in the following terms:
(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.
The above conclusions of mine would give rise to the following answer to the question framed:
Executive orders of the State will prevail over the statutes or enactments made by the legislature only when the said statutes or enactments are
having gaps and do not cover the area by the existing rules whereof, but not otherwise.
Writ petitions are allowed. No costs. Consequently, the connected M.P. No. 1 of 2007 in W.P. Nos. 49,1287,1518,1575 of 2007; M.P. No. 2
of 2007 in W.P. Nos. 3843,11579 of 2007 and M.P. No. 2 of 2008 in W.P. No. 11430 of 2008 are closed.