KERALA ARTS & SCIENCE UNAIDED COLLEGE MANAGEMENT ASSOCIATION v MAHATMA GANDHI UNIVERSITY

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 WP(C).No. 22530 of 2010(M) -------------------------- PETITIONER(S): 1 ---------------- KERALA ARTS & SCIENCE UNAIDED COLLEGE MANAGEMENT ASSOCIATION (RE3G NO.K-84/08) REPRESENTED BY ITS PRESIDENT RAMAPURAM BAZAR PO, KOTTAYAM DIST PIN 686 576 BY ADV. SRI.BABY ISSAC ILLICKAL SMT.NIMMY K.ALILAKUZHYIL RESPONDENT(S): --------------- ## 1. MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, KOTTAYAM ## 2. VICE CHANCELLOR MAHATMA GANDHI UNIVERSITY, KOTTAYAM. ADV. SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE FOR R1-2 SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R1-2 SRI.C.A.MAJEED FOR ADDL.R3 SRI.K.H.ASIF FOR ADDL.R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2011, ALONG WITH W.P.(C).14553/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22530 of 2010 ## APPENDIX ## EXHIBITS EXT.P1PHOTOCOPY OF THE ORDER OF AFFILIATION ISSUED BY RESPONDENT TO COLLEGES UNDER IT DATED 9.10.2003 EXT.P2PHOTOCOPY OF THE ORDER DATED 9.6.2010 INTRODUING CAP FOR PG COURSE EXT.P3PHOTOCOPY OF THE LETTER DATED 10.6.2010 EXT.P4PHOTOCOPY OF REPRESENTATION DATED 17.6.10 EXT.P5PHOTOCOPY OF THE DRAFT PROSPECTUS EXT.P6PHOTOCOPY OF THE ORDER DATED 3.7.2010 EXT.P7PHOTOCOPY OF THE PRESS NOTE OF THE 1ST RESPONDENT EXT.P8PHOTOCOPY OF THE REGULATIONS BY 1ST RESPONDENT DATED 23.7.2010 EXT.P9PHOTOCOPY OF THE RELEVANT PAGES OF THE MINUTES OF ACADEMIC COUNCIL DATED 31.7.10 EXT.P10PHOTOCOPY OF THE UNIVERSITY ORDER DATED 27.8.2005 (True Copy) P.A. To Judge ## **ANTONY DOMINIC, J** .......................................... W.P.(C)s.22530/2010 & 14553/2011 .......................................... Dated this the 12[th] day of July, 2011 ## **JUDGMENT** W.P.(C).No.22530/2010 is filed by the Kerala Arts and Science Unaided College Management Association and W.P.(C). 14553/2011 is filed by the 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, (in short 'the Act'). 2. In W.P.(C).22530/2010, petitioner 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. 3. In W.P.(C).14553/2011, petitioners are challenging 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. W.P.(C)s.22530/10 & 14553/11 2 4. I heard the learned counsel for the petitioners and Mr.M.R.Rajendran Nair, the learned senior counsel appearing for the University. 5. 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; W.P.(C)s.22530/10 & 14553/11 3 (ii). the Secretary to Government, Higher Education Department (who shall the Convener of the Committee and (iii). the Director of Collegiate Education. 6. 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. 7. 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 W.P.(C)s.22530/10 & 14553/11 4 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. 8. I have considered the submissions made by both sides. It is true as contended by the learned senior counsel, Section 39 of the Act confers power on the Academic Council of the W.P.(C)s.22530/10 & 14553/11 5 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. 9. 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 W.P.(C)s.22530/10 & 14553/11 6 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. 10. 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 threefold 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 W.P.(C)s.22530/10 & 14553/11 7 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.” 11. 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. 12. In that view of the matter, the Centralized Allotment Process (CAP) Rules and Regulations, 2010, (Ext.P8 in W.P.(C). 22530/2010) and the Centralized Allotment Process (CAP) for Under Graduate (UG) Courses Regulations, (Ext.P2 in W.P.(C). W.P.(C)s.22530/10 & 14553/11 8 14553/2011) are declared inapplicable in so far as the unaided colleges which are affiliated to the respondent University are concerned. 13. It is 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. Both the writ petitions are disposed of as above. **ANTONY DOMINIC, Judge** mrcs