Judgment:
V.DHANAPALAN, j.
COMMON ORDER
1. 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, in so far 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.
2. 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.
2.1. 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 under Section 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.
2.2. 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.
2.3. 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.
3. First respondent has filed a counter affidavit, stating as follows:
3.1. 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.
3.2. 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 05.02.1997, 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.
3.3. 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.
3.4. 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 :
1.Typists
2.Junior Assistants
3.Assistants
4.Superintendents
5.Assistant Registrar/Assistant Controller
6.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.8000-275-13500 and 10000-325-15200 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.
3.5. 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.
4. Second respondent has filed a counter affidavit, stating as below :
4.1. 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 24.06.1989, 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.
4.2. 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.01.01.2006, 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 01.06.2009.
5. 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 & Sewerage Board v. A. Rajappa, (1978) 2 SCC 213 :
"94. 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 scope but that could not alter the predominant character of the institution."
(ii) Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India, (1981) 1 SCC 246 = 1981 (1) LLJ 209 :
"62. 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) State of Sikkim v. Dorjee Tshering Bhutia, (1991) 4 SCC 243 :
"15. 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 Agriculture University v. Ram Krishna Vyas, (1999) 4 SCC 720 :
"14. 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:
"19.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 v. State of U.P., (2006) 6 SCC 430 :
"16. 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 v. Central Electrical & Mechanical Engineering Service (Ce&Mes) Group A (Direct Recruits) Assn., CPWD, (2008) 1 SCC 354 :
"10. 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."
6. 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 05.02.1997, 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 v. State of Rajasthan, (1968) 1 SCR 111 :
"7. 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 v. P. Veldurai, (2011) 5 SCC 214:
"46. 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.
47. 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.
48. 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 v.State of Uttaranchal,(2008) 4 SCC 171:
"14. A Constitution Bench of this Court in Sant Ram Sharma v. State of Rajasthan6, 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.
15. 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. Joseph7 as under: (SCC p. 196)
9. 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 Rajasthan3 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.
7. 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.
8. 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.
9. 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 ?
10. 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.
11. 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"
12. 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.
13. 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".
14. 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 :
1.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,
27.02.1998 and 06.08.1998.
3.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.
3. 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.2500-4200 and 3700-5000 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.
4. 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 :-
1.Typists.
2.Junior Assistants.
3.Assistants.
4.Superintendent.
5.Assistant Registrar/Controller.
6.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 01.01.1996, Rs.8000-275-13500) and for the Deputy Registrars as per the old scale of pay, (i.e.) Rs.3000 to 4500 (At present, from 01.01.1996, Rs.10,000-325-15200).
(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.
5. 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.
6. 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."
15. 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 05.02.1997, 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."
16. 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.
17. 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.
18. 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.
19. 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 Central Electrical & Mechanical Engineering Service (Ce&Mes) Group A (Direct Recruits) Assn., CPWD, relied upon by the learned counsel for the petitioners.
20. It is also held by the Apex Court in Dorjee Tshering Bhutia's 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.
21. A Constitution Bench of the Supreme Court in Sant Ram Sharma's case, cited above, 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.
22. It may be relevant to mention here that in the case of Dorjee Tshering Bhutia, 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.
23. Also, a Five Judge Bench of this Court in the case of M.Aarthi, 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.
24. Even in P.H.Paul Manoj Pandian's 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.