Judgment:
K. Bhaskaran, C.J.
1. The constitutional validity of the Andhra Pradesh Commissionerate of Higher Education Act, 1986 (Act 26 of 1986), for short 'the State Act', having been challenged in both the writ petitions, they were heard together, and are being disposed of by this common judgment. The petitioner in W. P. No. 15582/86 is the Osmania University Teachers' Association represented by its President, Sri M. Malla Reddy; and the petitioners in W. P. No. 15733/86 are Teachers-Professors, Heads of Departments, Readers and Lecturers working in the Osmania University. In the writ petitions, the State of Andhra Pradesh and the Commissionerate of Higher Education, Ministry of Education, Hyderabad, are respondents 1 and 2 respectively.
2. We have heard Sri K. G. Kannabiram for the petitioner in W. P. No. 15582/86, Sri K. Pratap Reddy for the petitioners in W. P. No. 15733/86 and the Advocate General for the respondents Sri P. Durga Prasad, stated to be the Convenor of Students' Association for Better Aministration and Accountability in Osmania University, who had filed a petition for permission to intervene, also was heard.
3. In February, 1986 the Government of Andhra Pradesh had appointed a five-man Committee consisting of four Vice-Chancellors and the Additional Secretary to the Government, Education Department, to study the higher education system in the State with special reference to curricula and courses of studies. Finance and Management in the higher education system. The Committee in its report submitted to the Government observed, inter alia, that there was no proper co-ordination and academic planning among the various bodies like Universities, the Directorate of Higher Education and the University Grants Commission etc.; there was no policy perspective in the development of higher education system in the State; and in order to streamline the general working of the higher education system in the State, there was need to constitute a Commission to advise the Government in matters relating to higher education in the State and to oversee its developments with perspective planning and improvement. The Government having examined the recommendations made by the Committee decided to constitute a Commissionerate of Higher Education; and the State Act, which came into force on 7-10-1986, was enacted pursuant to this decision.
4. The petitioners filed the writ petitions for the issue of a Writ of Mandamus declaring the State Act, more particularly, the provisions of Sections 11 to 19 thereof, to be unconstitutional, beyond legislative competence of the State Legislature; and, therefore, void, illegal and without jurisdiction.
5. According to the preamble, the State Act is to provide for the constitution of a Commissionerate to advise the Government in matters relating to Higher Education in the State and to oversee its development with perspective planning and for matters connected therewith and incidental thereto. The constitution of the Commissionerate and the composition thereof are as provided in Sections 3 and 4 of the Act, respectively. Section 11, which is the main target of attack in the writ petitions, deals with the powers and functions of the Commissionerate; and Section 13 confers power on the Commissionerate for conducting inspection of departments of Universities in the manner prescribed. Section 14 enjoins the Commissionerate to forward an annual report of its activities, which is to be laid before the Legislative Assembly of the State by the State Government. Section 15 provides for audit of accounts of the Commissionerate. Section 16, which also is an important target of attack in the writ petitions, provides that in the discharge of its functions the Commissionerate shall be guided by such directions on questions of policy relating to State purposes as may be given to it by the Government; and that in case of dispute between the Government and the Commissionerate, the decision of the Government thereon shall be final. Under Sec. 17 it is the duty of the Commissionerate to furnish to the Government such returns or other information with respect to its property or activities as the Government might from time to time require. Sections 18 and 19 empower the Government and the Commissionerate respectively to make rules and regulations.
6. Though in their pleadings the petitioners have raised various contentions, in essence and substance, what falls for our decision is whether the State Act is referable to entry 25 in the Concurrent List in the Seventh Schedule to the Constitution; and if so, whether it is ultra vires the Constitution on account of its being found violative of the provisions contained in clause (1) of Art. 254 of the Constitution. We say so, because the learned Advocate General did not contend (nor could he contend) that the legislature of the State was competent to legislate on the subject covered by entry 66 in the Union List. His submission, on the other hand, was that the legislative competence in regard to the State Act was referable to entry 25 (Concurrent List); and that no Central Legislation referable to that Entry (entry 25 in the Concurrent List) having been passed on matters covered by the State legislation it did not stand impliedly repealed wholly or in part, by the operation of clause (1) of Art. 254. One incidental point that might arise, on the pleadings of the parties, is whether the provisions of the State Act are so destructive of the autonomy of the Universities as to offend Articles 14, 19(1)(a) and 21 of the Constitution.
7. Before we proceed further to consider the relative merits of the contentions raised and arguments advanced for and against the sustainability of the State Act, it would be advantageous to have a glimpse into the relevant constitutional provisions on the distribution of legislative fields between the Centre and the States. Clause (1) of Art. 246 lays down that the Parliament has the exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution, referred to as the Union List, notwithstanding anything in clauses (2) and (3); and clause (2) is to the effect that notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III, referred to as the Concurrent List; under clause (3), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II, referred to as the State List, subject to clauses (1) and (2) referred to above. The Parliament has also power to make laws with respect to any matter for any part of the territory of Indian not included in a State notwithstanding that such matter is a matter enumerated in the State List in terms of Cl. (4) of this Article. Article 254 deals with the question as to which legislation is to prevail in case of inconsistency between the laws made by Parliament on the one hand, and laws made by the Legislature of the States on the other. Clause (1) of that Article provides that if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. An exception to this rule is provided by clause (2); where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State (Clause (2) of this Article may not have any application to the present case, inasmuch as admittedly the President's assent has not been sought or received in so far as the State Act is concerned). Entry 66, Union List, reads :
'66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.'
Entry 11, which has now been deleted from the State List by the 42nd Constitution Amendment Act, empowered the State Legislature to legislate on education including Universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III. Entry 25 in the Concurrent List provides :
'25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.'
8. Though the fields of legislation available to the Parliament and the States have been definite as stated above, more often than not, a certain amount of overlapping might become unavoidable; the Legislation which thus overlaps would not, however, be rendered invalid, if, in pith and substance, the legislation is on the subject reserved in favour of that Legislature. In order to enable the smooth functioning of the Federal structure of our Constitution, 'incidental encroachment' into or 'overlapping' of the field covered by one of the entries in the other List is permitted so long as it does not transgress the limit of legislation earmarked for the legislature making the law, judged by the standards fixed by the doctrine of 'pith and substance'. The question of repugnancy under Article 254(1) between a law made by Parliament and the law made by the State Legislature really arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List; and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy, become void. It is settled law that Article 254(1) has no application to cases of repugnancy due to overlapping between List II on the one hand and List I and List III on the other. In other words, the question of repugnancy arises only when both the legislatures are competent to legislate in the same field with respect to one of the matters enumerated in the Concurrent List. When the State Legislation transgresses, beyond the permissible limits, into the field covered by an Entry in the Union List, such State Legislation, to the extent of its transgression, would be invalid because of legislative incompetence, not because of repugnancy. The constitutional position, therefore, is that clause (1) of Art. 254 would not apply unless both the Union and the State laws relate to a subject specified in the Concurrent List; and they occupy the same field. When a question arises as to which entry the legislation under challenge is referable, the Court necessarily has to direct its mind to ascertain the scope and effect of the legislation, and also its pith and substance. Effect of the legislation under challenge, its object and purpose, its legislative history, its colourable nature, comparison of the conflicting entries, are some of the criteria which would afford useful clue to get at the core of the legislation.
9. Now, we would revert to the consideration of the constitutional validity of the State Act. The thrust of the argument of the learned counsel for the petitioners on the question of legislative competence is that the material provisions in the State Act are on matters covered by entry 66, Union List, and the University Grants Commission Act, 1956 (the Central Act) and, therefore, invalid by virtue of clause (1) of Art. 246 of the Constitution.
10. The constitutional validity of the State Act could be viewed from two different points of view, though the resulting position in either case might be the same; (i) Does the State Act, wholly or in part, trespass into the field covered by entry 66, Union List, over which the State Legislature has no legislative competence? and (ii) Is the State Act referable to entry 25, Concurrent List, to which both the Union Parliament and the State Legislatures have access? When we speak about competence of the State Legislature vis a vis legislation on a matter enumerated in the Concurrent List, it has to be understood to mean competence of the State Legislature subject to the provisions of Articles 246 (1) and 254(1) of the Constitution. As already noticed, on the facts, in this case clause (2) of Art. 254 may not have any relevance.
11. At the outset, it might be necessary for us to do a little of paraphrasing of the expression 'co-ordination and determination of standards' used in Entry 66, Union List, in an attempt to understand its depth and ambit, Are we to read 'determination' alone along with the word 'standards', or are we to read both 'co-ordination' and 'determination' along with that word? A reasonable way of construing the provision is to read the expression as it exists, in its natural setting; and assign to it the meaning thus conveyed. In our view, if 'co-ordination' alone is read with 'in the institutions for higher education', it may not carry much meaning as the objects to be co-ordinated in those institutions are not stated or known. In any event, co-ordination of or in the institutions for higher education is very much correlated to determination of standards in the institutions for higher education, and one cannot be considered in isolation from the other. An exposition of the connotation of 'co-ordination' in the context in which it is used in entry 66, Union 'co-List, is contained in the discussion by Shah, J., as he then was, who spoke for the Constitution Bench of the Supreme Court in Gujarat University case, : AIR1963SC703 (in paras 23 to 27 at pp. 714 to 717 of the report) which decision has been referred to by the Constitution Bench of the Supreme Court in D. A. V. College case, : AIR1971SC1731 . In that case (Gujarat University case) the question that arose for consideration was whether the University could prescribe one of the regional languages alone as the medium of instruction in institutions for higher education. By majority, the Supreme Court held that if adequate text books were not available, or competent instructors in the medium, through which instruction was directed to be imparted, were not available, or the students were not able to receive or imbibe instruction through the medium in which it was imparted, standards must of necessity fall, and legislation for co-ordination of standards in such matters would include legislation relating to medium of instruction; and if legislation relating to imposition of an exclusive medium of instruction in a regional language, having regard to the absence of text-books and journals, competent teachers and incapacity of the students to understand the subjects, was likely to result in the lowering of standards, that legislation would necessarily fall within item 66 of List I and would be deemed to be excluded to that extent from the amlitude of the power conferred by item No. 11 of List II (which existed during the material time before its being deleted by the 42nd Constitution Amendment Act). It was also pointed out that power of the State to legislate in respect of education, including Universities, must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not be deemed to be restricted; and that power to legislate in respect of medium of instruction, in so far as it has a direct bearing and impact upon the legislative head of co-ordination and determination of standards in institutions of higher education must also be deemed by item 66, List I, to be vested in the Union. What is stated at the beginning of paragraph 24 of that decision Gujarat University case is of considerable significance for gathering the meaning of the expression used; and it reads as follows :
'The State has the power to prescribe the syllabi and courses of study in the institutions named in entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co-ordination of such standards either on an All India or other basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable.'
We would also extract the following passage in paragraph 25 towards the end, which reads as follows :
'Item No. 66 is a legislative head and in interpreting it, unless it is expressly or of necessity found conditioned by the words used therein, a narrow or restricted interpretation will not be put upon the generality of the words. Power to legislate on a subject should normally be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in that subject. Again there is nothing either in item 66 or elsewhere in the Constitution which supports the submission that the expression 'co-ordination' must mean in the context in which it is used merely evaluation, co-ordination in its normal connotation means harmonising or bringing into proper relation in which all the things co-ordinated participate in a common pattern of action. The power to co-ordinate, therefore is not merely power to evaluate, it is a power to harmonise or secure relationship for concerted action.'
We dare not say that the amplitude of the expression 'co-ordination and determination of standards' admits of no doubt. The legislative history of entry 66, Union List, which corresponds to Entry 57-A in the Draft Constitution, would be of some assistance in understanding the reason which induced the Constitution makers to include this among the entries in the Union List. The speech made by Dr. Ambedkar who moved the entry for adoption in the Constituent Assembly is instructive and interesting. We would extract that portion of the debate in the Constituent Assembly.
'In dealing with institutions maintained by the provinces, entry 57-A proposes to give power to the Centre to the limited extent of co-ordinating the research institutions and of maintaining the standards in those institutions to prevent their being lowered.
Sir, I also move :
That in amendment No. 28 of List I (Sixth week) in the proposed new entry 57-A of List I, for the word 'maintenance' the word 'determination' be substituted.
Entry 57-A merely deals with the maintenance of certain standards in certain class of institutions, namely, institutions imparting higher education, scientific and technical institutions and institutions for research......... Obviously you cannot permit the results of these technical and scientific institutions to deteriorate from the normal standard and yet allow them to be recognised either for the Central purposes, for All-India purposes or the purposes of the State.
Consequently, apart from the question of financial aid, it is absolutely essential, both in the interest of the Centre as well as in the interests of the Provinces that the standards ought to be maintained on an all-India basis. That is the purpose of this entry, and in my judgment it is a very important and salutary provision, in view of the fact that there are many provinces who are in a hurry to establish research institutes or establish universities or likely to lower their standards in order to give the impression to the world at large that they are producing much better results than they did before.' (Underlying ours)
From the deliberations of the Constituent Assembly on the subject, it appears to be fairly clear that the object of making the provision (entry 66) was to ensure that in our institutions for higher education certain standards at national level are prescribed for the sake of uniformity and academic excellence. The co-ordination and determination are the two facets of the process for the realisation of that ideal. It might also be necessary to draw a distinction between 'determination of standards' on the one hand, and 'maintenance of standards' on the other. 'Determination of standards' must be presumed to precede 'maintenance of standards'. It would appear that in the scheme of the distribution of functions, as contemplated by the Constitution, determination of standards is to be done by a legislation referable to entry 66 by Union Parliament; and the maintenance of such standards determined would be the responsibility of those who establish and maintain such institutions by or under the (State) legislation in that behalf. The fact that the Constituent Assembly by an amendment changed the expression from 'maintenance' to 'determination' is of considerable significance, as it necessarily implies that the concern of the Union Parliament is not so much the 'maintenance of standards' in institutions for higher education as 'determination of standards' in such institutions. Co-ordination also has to be understood in relation to determination of standards, not with academic or other activities in the higher educational institutions. We are emphasising this aspect because, during the course of the submissions made in Court and in the notes of argument made available, the counsel for the petitioners contended for the position that while it might be open to the State legislature under entry 25 to legislate with reference to each individual University set up in the State, it was not open to the Legislature to pass a comprehensive enactment covering all the Universities in the State. According to them, the bringing about of a unified control over all the Universities in the State is an act of co-ordination and as such would appreciably abridge the Central field, and, therefore, the State Act was liable to be struck down. We would, for the moment, cast aside the question as to whether the State Act is intended to bring about a unified control over the Universities, and proceed to examine the more relevant question as to what the scope and meaning of the expressions 'co-ordination of the institutions for higher education' and 'co-ordination of standards determined in those institutions' are. We have already given expression to our opinion that 'co-ordination' is of the 'standards', not 'in the institutions', and, in that view, it might not be proper to take a view that any legislation by the States for the co-ordination of the universities would be invalid for the reason of its transgression into the field covered by entry 66, Union List.
12. Subba Rao, J. (as he then was) in paragraph 44 at page 721 of the Report had, in Gujarat University case : AIR1963SC703 , expressed his dissent to the majority view stating that no authority had gone so far as to hold that even if the pith and substance of an Act fell squarely within the ambit of a particular entry, it should be struck down on the speculative and anticipatory ground that it might come into conflict with a law made by a co-ordinated legislature by virtue of another entry; if the impact of a State law on a Central legislation was so heavy and devastating as to wipe out or appreciably abridge the central field, then it might be a ground for holding that the State law was a colourable exercise of power and in pith and substance it fell not under the State entry, but under the Union entry; and that the State law, therefore, did not warrant the acceptance of a new doctrine dehors that of pith and substance.
13. The observation of Shah, J. in the Gujarat University case : AIR1963SC703 was cited in Chitralekha's case, : [1964]6SCR368 to contend for the position that the State Government had no power to appoint a selection committee for admitting students to Colleges on the basis of higher and different qualifications than those prescribed by the University on the ground that co-ordination and determination of standards of a University was a Union subject and, therefore, the State Legislature had no constitutional capacity to make a law for maintaining the standards of University education. After having referred to the passage in paragraph 7 at pages 715-716 of the Report in Gujarat University case, Subba Rao, J. who spoke for the majority of the Constitution Bench in that case (Chandralekha's case) stated as follows :
'This and similar other passages indicate that if the law made by the State by virtue of entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislative power of the Parliament under the entry 'Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions' reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field, it may be struck down. But that is a question of fact to be ascertained in each case. It is not possible to hold that if a State Legislature made a law prescribing a higher percentage of marks for extra-curricular activities in the matter of admission to colleges, it would be directly encroaching on the field covered by entry 66 of List I of the Seventh Schedule to the Constitution. If so, it is not disputed that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law.'
The emphasis by Jaganmohan Reddy, J., who spoke for the Constitution Bench in D. A. V. College case, : AIR1971SC1731 was to the legal position that if the State Legislation interfered with the power of the Parliament under Item 66 of List I to co-ordinate and determine the standards in institutions for higher education, it would be without legislative competence. In this case also, the decision of the Supreme Court in Gujarat University case was referred to.
14. In a very recent case Dr. Ambesh Kumar's case, : [1987]1SCR661 the Supreme Court had clarified the position further. What fell for the decision of the Supreme Court was whether the notice dt. 15-12-1982 issued by the Government of Uttar Pradesh laying down the qualification regarding eligibility of a candidate to be considered for admission to the post-graduate degree in M. D., M. S. and diploma course in M. D., M. S., etc., on the basis of merit in accordance with the Regulations made under the Indian Medical Council Act was invalid as it trenched upon entry 66 of List I of the Seventh Schedule to the Constitution. Speaking for the Bench B. C. Ray, J., in paragraphs 18 and 22 at pages 405-406 stated as follows :-
'In the instant case the number of seats for admission to various post-graduate courses both degree and diploma in Medical Colleges is limited and a large number of candidates undoubtedly apply for admission to these courses of study. In such circumstances the impugned order laying down the qualification for a candidate to be eligible for being considered for selection for admission to the said courses on the basis of the merit as specified by Regulations made under the Indian Medical Council Act cannot be said to be in conflict with the said Regulations. It does not in any way encroach upon the standards prescribed by the said Regulations. On the other hand by laying down a further qualification of eligibility it promotes and furthers the standard in an institution.
On a consideration of the aforesaid decisions, we are unable to hold that the impugned order dated 15-12-1982 has in any way contravened or encroached upon the power of the Central Legislature to make laws or the Central Government to make orders in regard to matters provided in entry 66 of List I of Seventh Schedule to the Constitution. There is no conflict between the Regulations and also the order in question. The State Government by laying down the eligibility qualification namely the obtaining of certain minimum marks in the MBBS examination by the candidates has not in any way encroached upon the Regulations made under the Indian Medical Council Act nor does it infringe the central power provided in the entry 66 of List I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification.'
15. From what has already been noticed from the decisions cited, it could safely be concluded that it is wrong to entertain an opinion that either because of entry 66, Union List, or because of the Central Act, the State Legislature is deprived of its legislative competence in toto in regard to matters concerning higher education. It is important to bear in mind that though entry 11 in the State List has been deleted by 42nd Amendment of the Constitution, the legislature of the State is not totally left out from the field of education in relation to legislation. The correct position is that part of the subject of education which concerns with 'co-ordination and determination of standards in higher education', covered by entry 66, Union List, alone is the exclusive preserve of the Union Parliament. Here again, Dr. Ambedkar's statement in the Constituent Assembly that 'entry 57-A proposes to give power to the Centre to the limited extent of co-ordinating the research institutions.......' is pregnant with meaning. The balance of the subject (excluding the limited power given to the Union Parliament by entry 66, Union List) is available for legislation for both the Union parliament and the State Legislatures by virtue of entry 25, Concurrent List; and in case no legislation referable to entry 25, Concurrent List, has been made by the Union Parliament, the entire field covered by that entry is available for legislation unless it is impliedly repealed by the operation of clause (1) of Art. 254 or the proviso to clause (2) of that Article. In this case no legislation by Parliament with specific reference to entry 25, Concurrent List, is shown to have been made on the matter covered by the State Act; assuming for the sake of argument that the Central Act (UGC Act) is referable not only to entry 66, Union List, but also to entry 25. Concurrent List, in the ultimate analysis, it makes little difference, inasmuch as the very field of legislation under entry 25, Concurrent List, excludes the field covered by entry 66, Union List.
16. The argument of the petitioners appears to proceed on the assumption that it is for the first time by the State Act, an outside machinery sponsored by the Government is empowered to deal with the affairs connected with the Universities and the Colleges to any extent or in any manner. Some of the provisions in the various University Acts falsify the correctness of this contention. The submission of the learned Advocate General that the appointment of the Committee and the legislation based on the Committee's report were actuated by a desire for achieving better efficiency in regard to the discharge of the obligations of the State Government by transferring the functions concerning the subject hitherto taken care of by the Government Department to one body created separately for that purpose, appears to be substantially correct. From the National Policy on Education, 1986, it is seen that in India there are at present about 150 Universities and 5000 Colleges; and this statement speaks for itself the increase by leaps and bounds of the number of institutions for higher education throughout India during the post Independence era; and Andhra Pradesh is no exception to this phenomenal change, for, we believe, the number of colleges affiliated to the Osmania University has risen from 4 in 1947 to 174 in 1985. Correspondingly, undoubtedly the Governmental responsibilities for the maintenance and development must have also increased. That being the position, if the Legislature in its wisdom thought that in order to cope with the increasing burden of responsibilities it is necessary and expedient to entrust the task exclusively to a body constituted for that purpose, the legislation for the creation of such a body, without anything more, could not be considered to be one designed either to destroy the autonomy of the Universities or to usurp the functions of the Central Government or the Union Parliament. In our opinion, it would not be unreasonable to hold that, in order to effectively discharge the responsibilities with respect to the establishment and maintenance of Universities and Colleges, the State Government should have also adequate powers without, at the same time, destroying the autonomy of the Universities. Excellence of education, which is the highest object sought to be achieved by the establishment and maintenance of these institutions, would itself be the casualty if the Government's duty to establish and maintain institutions for higher education is completely divorced from its right to do whatever is necessary to discharge that duty effectively for the benefit of the student community, keeping in mind both the national interest and the need for utilisation of whatever resources that could be mobilised in a planned way to avoid waste and to derive the maximum advantage. Once it is conceded that the State Government has a key role to play in the affairs of the Universities, particularly for their growth and development, besides providing the necessary resources and inputs, does it stand to reason to deny to it the right to manage the affairs within the permitted limits?
17. We would extract below the provisions of Sections 8, 40-A, 43-A and 43-B of the Osmania University Act, 1959 (Act IX of 1959) to appreciate the extent of the power that is being already exercised in institutions for higher education by the Government.
'8. Inspection and inquiry :- (1) The Government shall have the right to cause an inspection to be made, by a committee of not less than two persons, of the University, its buildings, laboratories, libraries, museums, workshops and equipment, and of any college or institution, maintained by, or affiliated to, or recognised by the University, and also to cause an inquiry to be made, into the teaching and other work conducted or done by the University, or in respect of any matter connected with the University. The Government shall, in every case, give notice to the University of their intention to cause such inspection or inquiry to be made and the University shall be entitled to be represented thereat.
(2) The Government shall forward to the Vice-Chancellor a copy of the inspection report for obtaining the views of the Syndicate and on receipt of such views, the Government may tender such advice as they consider necessary and fix a time-limit for action to be taken by the University.
(3) The Syndicate shall, within such time as the Government may fix report to them through the Vice-Chancellor the action which has been taken or is proposed to be taken on the advice tendered by them.
(4) The Government may, where action has not been taken by the University to their satisfaction, within the time fixed and after considering any explanation furnished or representation made by the Syndicate, issue such directions as they may think fit, and the University shall comply with such directions.'
40-A Power of Government to regulate conditions of service :- The Government shall have power to make regulations, regarding the classification, methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the members of the teaching and non-teaching staff of affiliated and recognised colleges.
43-A. Borrowing of money :- The University may accept funds from the Government of India, the State Government, the University Grants Commission, and borrow money from a Bank or a Corporation, for the purposes of the University :
Provided that where the University intends to borrow money from a Bank or a Corporation or both exceeding an amount of fifty thousand rupees at a time or in the aggregate, it shall obtain the prior written approval of the Government therefor.
43-B. Certain restrictions in respect of financial matters :- The University shall not divert earmarked funds for other purposes, or revise the scales of pay of its staff or implement any scheme which involves any matching contribution from the Government, or a scheme which imposes a recurring liability on the Government, after the assistance from the sponsoring authority ceases without the prior approval of the Government.'
18. Though in a general way the entire State Act is challenged, the most crucial and relevant provisions are those contained in Section 11 of the State Act. We would, therefore, quote that Section hereunder :
'11. (1) It shall be the general duty of the Commissionerate to -
(a) evolve a perspective plan for the development of Higher Education in the State;
(b) administer and release grants-in-aid to Universities and private colleges in the State and report the same to the Government;
(c) decide on the need for, and location of, new Colleges and courses of study including Engineering Colleges, subject to general guidelines issued by Government from time to time;
(d) monitor and evaluate the academic programmes in higher education and enforce accountability in the system;
(e) suggest ways and means of mobilising additional resources for higher education in the State;
(f) establish and develop resources centre for curriculam materials and continuing education of teachers;
(g) co-ordinate the academic activities of various institutions of higher education in the State;
(h) undertake examination reforms;
(i) assume accreditation functions;
(j) organise entrance tests;
(k) administer and grant scholarships and organise work study programmes;
(l) establish linkages between Universities, industries, and community development organisations;
(m) undertake preparation and publication of standard text books and works of reference;
(n) make suggestions in regard to the scales of pay and service conditions of teaching and non-teaching staff working in colleges and Universities, subject to general guidelines issued by Government from time to time.
(o) transfer teachers appointed in aided posts from one aided private college to another such college subject to such rules as may be made by the Government in this behalf and generally encourage mobility of teachers; and
(p) perform any other functions necessary for the furtherance and maintenance of excellence in the standards of higher education in the State.
(2) Notwithstanding anything contained in any law relating to Universities in the State, the Board of Intermediate Education Act, 1971 and the Andhra Pradesh Education Act, 1982, every University or college including a private college in the State shall obtain the prior approval of the Commissionerate in regard to -
(i) creation of new posts;
(ii) financial management; and
(iii) starting of new higher educational institutions.
(3) In giving its approval under sub-section (2) the Commissionerate shall follow the general guidelines issued by the Government in this behalf from time to time'.
19. While attempting to project the meaning of the expressions used in various sub-sections, with particular reference to the various clauses in sub-section (1) of Section 11, the petitioners as well as the respondents have put their own gloss, as is evident from the notes on this Section made available to the court by the learned counsel for the petitioners and the learned Advocate General. Some of the clauses in sub-section (1), in our view, are not of much consequence, when we are considering the constitutional validity of the provisions in the Section. Clauses (h), (i), (j), (k) and (m) are examples. The most objectionable provisions, as the petitioners would like to put it, are contained in clauses (a), (d), (g) and (p) of that sub-section. According to the petitioners, 'perspective plan for the development of higher education' mentioned in clause (a) includes the determination of standards for which co-ordination with various educational institutions is absolutely necessary; and development plan or development perspective of higher education without dealing with the standards of co-ordination of various departments dealing with higher education would not be possible. The Government's stand, on the other hand, is that, as it is, the Department of Higher Education, Government of Andhra Pradesh, has been scrutinising various plans for strengthening higher education proposed by the Directorate of Higher Education; every year new schemes are proposed by the Directorate of Higher Education for the entire State and funds are being sanctioned by the Department of Finance & Planning, Government of Andhra Pradesh, and to give this exercise a better shape, the power has been proposed to be transferred to the Commissionerate of Higher Education. The evaluation of academic standards in higher education and enforcing of accountability in the system, under clause (d), according to the petitioners, would depend upon the determination of certain academic questions which could not be bereft of the academic standards. They would also contend that accountability in the educational parlance means liability for maintaining the standards of education. On the other hand, what the Government would say is that the academic programmes in higher education are now monitored by the Directorate of Higher Education through the Collegiate Cell (Academic Wing); the system of enforcing accountability in the system of Higher Education is being observed and scrutinised through Annual Confidential Reports obtained in respect of every Lecturer; it is also a part of the service conditions of the College Teachers. The petitioners would say that the very phraseology used in Cl. (g) concerning the co-ordination of academic activities of various institutions of higher education in the state, showed that this was covered by Entry-66. On the other hand, the stand of the Government is that hitherto the Government has been sanctioning funds to all the Universities for various courses; and this power is now transferred to Commissionerate of Higher Education so that academic programmes (activities) may be sanctioned to various Universities avoiding duplication and wastage of the meagre resources that are at the disposal of the Government. Clause (p) is in the nature of one dealing with residuary functions for the furtherance and maintenance of excellence in the standards of higher education in the State. According to the petitioners, the competence to legislate on this matter is entirely with the Union Parliament, and, therefore, it is invalid. On the other hand, the Government would take the stand that the Department of Education, Government of Andhra Pradesh, has been doing everything hitherto for maintenance of excellence in the standards of higher education as determined from time to time, by the University Grants Commission.
20. The counsel for the petitioners submitted during the course of the argument that the object of sub-section (2) of Section 11 is to bring about a complete surrender of the autonomy of the Universities to bureaucracy. What this sub-section requires is that every University or College should obtain the prior approval of the Commissionerate in regard to the creation of new posts; financial management; and starting of new higher educational institutions. The stand of the Government is that this is not anything meant for the curtailment, much less destruction, of the autonomy of the University, but only to regulate the allocation of funds and distribution of inputs which are very much necessary for the healthy and balanced growth of institutions in a planned manner. The provisions of sub-section (3) are corollary to the provisions contained in sub-section (2); and if there is not much to be complained of in sub-section (2), the requirement in terms of sub-section (3) that in giving approval under sub-section (2) the Commissionerate should follow the general guidelines issued by the Government in that behalf from time to time could not be considered to be a serious encroachment on the rights of the University.
21. We have listened to the arguments of both sides on this section for a considerable time and have given our earnest and careful thoughts to every aspect of the matter. The petitioners appear to have the apprehension that Section 11 is meant to virtually reduce the University to the position of a Government Department dominated and controlled by the officialdom. On a construction of the Section as a whole as well as clause-by-clause, it is difficult to hold that the avowed purpose of the provisions therein is for usurping the functions of the Central Government or the University Grants Commission created under the Central Act or for encroaching upon Entry 66 of the Union List. There is nothing in the Section which expressly or by necessary implication leads to the conclusion that it relates to co-ordination and determination of standards in institutions for higher education. We are of the opinion that much of the adverse comments and the apprehensions in the minds of the petitioners could have been avoided if care was taken by the draftsman of the enactment, particularly with respect to certain clauses in Section 11, so that instead of bodily copying the recommendations of the Committee of academicians, who are familiar with the expressions common in academic parlance, expression apt in legal parlance, where much precision and clarity are called for, had been used. The expression in clause (a) 'perspective plan' and the expression in clause (d) 'enforce accountability in the system' undoubtedly lack clarity. This drawback in the draftsmanship, however, in our opinion, does not warrant the striking down of either the Act as a whole or any part of Section 11 itself on the ground that it amounts to a case of colourable legislation.
22. Section 16, which is another target of attack in the writ petitions, also, in our opinion, could not be considered to be unconstitutional. The essence of that section is that in the discharge of its functions under the State Act, the Commissionerate shall be guided by such directions on questions of policy relating to State purposes, as may be given to it by the Government, and in the event of a dispute arising between the Government and the Commissionerate as to whether a question is or is not a question of policy relating to the State purposes, the decision of the Government thereon shall be final. In this context, we have to remember that the Commissionerate does not claim to be, nor is it meant to be, an autonomous body completely independent of the Governmental control. As a matter of fact, as the provisions of the Act would indicate and the respondent's case is projected in the pleadings, it is more meant to be an instrumentality of the Government to carry out its functions in a more effective and efficient manner, than to be an autonomous or superior body to operate above or without the control of the Government. If the creation of the Commissionerate by the State Act is found to be within the constitutional competency of the State Legislature, there is nothing in this section which would warrant the conclusion that it is unconstitutional. In case the rules framed by the Government under Section 18 or the regulations made by the Commissionerate under Section 19 lead to any exercise of power contrary to the avowed purpose of the legislation, it would then be a matter for consideration as to whether such rules or regulations are invalid.
23. The petitioners have pointed out that the composition of the Commissionerate under Section 4 of the State Act, in contradistinction to that of the University Grants Commission under Section 5 of the Central Act, is intended to control the academic activities of the Universities by a body dominated by bureaucrats who have neither the academic distinction nor experience or expertise for handling matters relating to the teaching, learning, researches etc. No doubt, there appears to be a marked difference between composition of the University Grants Commission on the one hand and that of the Commissionerate on the other. That, however, is not a reason for declaring the Act to be invalid or even to strike down the Section as unconstitutional. The University Grants Commission has been set up as a corporate body to inquire into the financial needs of Universities and allocate and disburse grants to Universities for any general or specified purposes. The Commission has also the power to recommend to any University the measures necessary for the reform and improvement of University education and to advise the University concerned upon the action to be taken for the purpose of implementing such recommendation. The Commission is expected to act as an expert body to advise the Central Government on problems connected with the co-ordination of facilities and maintenance of standards in Universities. The object of the Commission constituted under the Central Act referable to Entry 66, Union List, and the Commissionerate constituted under the State Act referable to Entry 25, Concurrent List, in our opinion, is not the same. Their powers and functions are necessarily different. The Commissionerate also comprises of men of eminence, inasmuch as it is mandatory that the Chairman and Vice-Chairman shall be eminent educationists. The inclusion of three ex-officio members, as per clauses (a), (b) and (c) of Section 4(3) of the State Act, who are to be either Secretaries or Deputy Secretaries of the Education Department, Labour, Employment, Nutrition and Technical Education Department; and Finance and Planning (Finance Wing) Department, should not be looked upon as an attempt to pack the Commissionerate with bureaucrats. Their experience in dealing with matters which are intimately connected with the planning and development of the Universities insofar as it is referable to the responsibility of the State Government is concerned, might prove to be an asset, not a liability; and practically all the other members being eminent educationists, Professors or Vice-Chancellors, the fear that the Commissionerate would have to function without guidance of competent educationists and academicians is wholly unwarranted. Under clause (d) four members of the Commissionerate are to represent Professors or Vice-Chancellors of any of the Universities in the State. According to clause (f) one of the members should be a person with a distinguished academic background to represent engineering or legal or medical education. One of the members to be appointed in terms of clause (g) also should be one distinguished educationist. Assuming that there is scope for modifying the composition for the better; to reduce the effect of what is feared to be the dominance of the bureaucracy, and to give greater representation to educationists, it is a matter for the legislature to consider and decide on the basis of representations received or public opinion expressed on the matter. As it is, we notice, apart from the Chairman and the Vice-Chairman who are to be eminent educationists, out of the ten members, four are to be chosen from Professors and Vice-Chancellors, one has to be a distinguished educationist and another has to be a person with distinguished academic background.
24. The functions in regard to Inspection enumerated in Section 13 being identical in both the Central Act and the State Act, it could not be said that the State Act is bad. A provisions similar to what is contained in Sec. 13 of the Central Act could be enacted by a legislation referable to Entry 25, Concurrent List, also, so long as it is meant to operate without colliding with the functions of the body created by the Central Act. We have already noticed that the State Government has responsibilities to be discharged in the field of education including Universities, and in order to enable the Government to carry out the duties and responsibilities, the State Legislature is competent to make laws within the field available to the State Legislature under Entry 25, Concurrent List, without transgressing into the field occupied by or reserved for the Union Parliament. Similarity between the provisions in the Central Act and the State Act does not render the State Act unconstitutional, as long as the operation of the State Act is meant to be restricted to the field not covered by the field reserved for the Union Parliament.
25. We have, in our discussion till now, adverted to the question of autonomy of the Universities here and there in a passing way. Inasmuch as that also was a point argued at a considerable length during the course of the arguments, we should like to devote some time now to deal with that aspect specifically. We have been referred to the National Policy on Education, 1986, the Report of the Education Commission, 1964-66 (popularly known as 'the Kothari Commission Report') and extracts from International Encyclopaedia of Social Sciences published by Macmillan & Co., edited by David Sills, 1968 Vol. 16. We have found these documents very informative and interesting on various aspects of education. The Kothari Commission on Education was appointed to advise the Government on the national pattern of education and on the question of principles of policy and development of education at all stages and in all aspects. The Commission consisted of renowned men, mostly educationists and scholars. The magnitude of the problem and the constraints on implementation of the recommendations were realised by the Commission itself as could be gathered from the report itself. In the Foreword, it is said: 'We cannot claim that the recommendations made by us in the report are necessarily the best, nor can we completely be certain about the validity of every recommendation that we have made. Again, many of the proposals we make would require investigation and revision in the light of the experience.' The report exhorts the Universities to strive to serve as 'the conscience of the nation', and 'as assessors of the national way of life'. The governance of Universities is dealt with in Chapter XIII beginning at Page 325 of the report, and paragraphs 13.03 and 13.16 are particularly relevant. In paragraph 13.05 it is stated as follows :-
'The proper sphere of University autonomy lies principally in three fields; there is selection of students; the appointment and promotion of teachers; the determination of courses of study, methods of teaching and the selection of areas and problems of research.'
26. We have already noticed from the decisions of the Supreme Court that the autonomy is subject to reasonable restrictions in the larger interest of the society and for the sake of better management, though in the changing landscape of educational system the subject of autonomy is of considerable contemporary value and relevance. The National Policy on Education, 1986 gives an outline of the programme of action to meet the challenges of education, reviewing and reshaping the system. It contains an over-view of the state of education and points us to the direction of future initiative, based essentially on the views and suggestions from educational planners, teachers, students, parents, intellectuals and citizens interested in education. The International Encyclopaedia on Higher Education is a sort of a compilation of the planning and programme for development of education in various countries in the world. These reports, recommendations and compilations are very valuable documents to give guidance for the planning and development of education at all levels. It would, however, be wrong to magnify their importance, impact and relevance when we are considering the question of constitutional validity of the State Act, which essentially is a question of legislative competence.
27. We find it difficult to accept the contention that the provisions contained in the Act, with particular reference to Sections 11 and 16 are arbitrary, conferring uncontrolled power without guidelines on the Commissionerate and, therefore, Article 14 is violated. The academic freedom and the autonomy of the University are also concepts which are subject to reasonable restrictions and, therefore, we find little substance in the argument that the provisions in the Act which contain a semblance of right in favour of the Government in the affairs of the University is violative of Article 19(1)(a) of the Constitution. We have not been shown how the provisions offend Art. 21 of the Constitution.
28. The normal rule is that a Court presumes the constitutional validity of a provision and prefers an interpretation in favour of the competence of the legislature. When the vires of an enactment is challenged, and there is any difficulty in ascertaining the limits of its power, the difficulty must be resolved, as far as possible, in favour of the Legislative body, putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude. No doubt, at the same time, the Court should guard against extending the meaning of the words beyond their reasonable connotation in an anxiety to preserve the power of the Legislature (See Diamond Sugar Mills case : [1961]3SCR242 and Navinchandra's case : [1954]26ITR758(SC) ). It is a well-settled principle of interpretation of statutes that a statute has to be read so as to make it valid and, if possible, an interpretation leading to a contrary position should be avoided; (it has to be construed ut res magis veleat quam pereat : see 10th Edn., P. 361, Craies : 6th Edn. P. 95 and Maxwell : 11th Edn., P. 221) which has been referred to with approval by a Constitution Bench of the Supreme Court in Liberty Cinema, : [1965]2SCR477 in para 9 at Pp. 1113-1114. To quote the words of Hidayatullah, C.J. : 'It is no doubt true that the words are susceptible of the other meaning also but so long as the words are capable of bearing the meaning we have given it is not necessary to discover another meaning under which the whole scheme would become void. Provisions of law must be read as far as is possible with a view to their validity and not to render them invlaid.' (vide para 21 at P. 1182 in the case of Advance Insurance Co. Ltd., : [1970]3SCR881 ). A Division Bench of the Supreme Court has reiterated this position in All Saints High School's case, : [1980]2SCR924 . In paragraph 111 at P. 1083, Kailasam J., stated as follows :
'It is a well-settled rule of interpretation that in interpreting the provisions of a statute the court will presume that the legislation was intended to be intra vires and also reasonable. The rule followed is that the section ought to be interpreted consistent with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactment to the extent that is permissible.'
Reading down of the provisions to bring it within constitutional limits is one of the devices resorted to, to save the legislation without being struck down, unless it be that the intention behind the legislation of the provision under challenge is shown to be unconstitutional (as held in Minerva Mills' case, : [1981]1SCR206 ).
29. If the dictum laid down by these decisions provides any guidance, it is that the State Act could not be struck down as unconstitutional either wholly or in part unless the State Legislature lacked legislative competence or it is invalid on account of repugnancy in relation to the Central Legislation enacted in exercise of superior legislative power conferred on the Union Parliament. That there might be need or scope for improvement to ensure clarity of expression or to achieve the avowed object more effectively by itself would not be a ground for striking it down. Amendments to the law, to make it more perfect, would essentially be the concern of the Legislative Assembly which in our democratic set up respects public opinion. Where, however, the provisions are found to be unconstitutional, the Courts would not hesitate to strike them down without waiting for the intervention of the Legislature to make it constitutional by the process of amendment.
30. For the foregoing reasons, we dismiss the writ petitions, however, without any order as to costs.
31. Immediately after the Judgment was pronounced, the Counsel for the petitioners made an oral request that leave might be granted to appeal to the Supreme Court. Inasmuch as the Constitutional validity of the Act challenged in the Writ Petitions is involved; and there are not many authoritative pronouncements with respect to the scope of Entry 66 of the Union List and Entry 25 of the Concurrent List in the 7th Schedule to the Constitution, we consider that this is a fit case for granting leave to appeal to the Supreme Court. Accordingly leave granted.
32. Petition dismissed.