judgement:
No. 3739 of 1985.
(Under Article 32 of the Constitution of India).
A.K. Goel and Ajit Pudiserry for the Petitioner.
B. Datta, Additional Solicitor ' General, P.P. Singh and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question involved in this case is whether an employee of an autonomous body established under the auspices of the Central Government is entitled to claim the benefit of the period of service rendered by him in a pensionable post under the Central Government prior to his service being absorbed in the autonomous body for computing qualifying service for purposes of pension.
The petitioner R.L. Marwaha entered the service of the Central Government on a temporary basis on 4.10.1950 and worked as an Upper Division Clerk in the pay scale of Rs.80 5 120 8 200 10/2 220 in the office of the Settlement Commissioner (Claims Wing) under the Ministry of Rehabilita tion, Union of India and he continued to hold that post upto 23.11.
1953 (F.N.).
He, having been appointed in the Indian Council of Agricultural Research (hereinafter referred to as 'the ICAR '), which is an autonomous body sponsored by the Central 931 Government, to a higher post of Assistant in the scale of pay of Rs. 160 450 joined the service of the ICAR as a fresh entrant on the same date that is 23.11.1953 (F.N.).
He was not allowed to carry forward the leave that he had earned and was declared quasi permanent as an Assistant in the ICAR with effect from 17.1.1957.
The post held by the petitioner under the Central Government before he entered the service of the ICAR was a pensionable post and the post or posts held by him in the ICAR were also pensionable posts.
The petitioner retired from the service of the ICAR on September 30, 1980 after attaining the age of superannuation, i.e., 58 years.
On retirement the petitioner was accorded pensionary benefits reckoning his qualifying service from 23.11.1953 to 30.9.1980.
The petitioner, as some others who had also retired from the service of the ICAR had been agitating before the authorities to count the period of service put in by him between 4.10.1950 and23.11. 1953 in the Central Government as part of the qualifying service and to compute his pensionary benefits on that basis.
The petitioner had applied to the ICAR even before his retirement requesting it to count his service in the Central GoVernment as part of his qualifying service for pension.
The petitioner received a reply from the ICAR stating that according to the then existing policy the Government had not accepted any pension ary liability in cases like that of the petitioner and that there were no rules authorising the ICAR to accept the charge of pensionary liability in respect of the period of his service rendered in the Central Government.
Under the orders which were in force in 1984 the posi tion as regards counting of service rendered elsewhere was as follows: (i) Service rendered outside Central Government did not count for pension in Central Government.
(ii) In the case of scientific employees of autonomous bodies financed or controlled by the Government, however, such employees were allowed to count their previous service in such autonomous bodies or permanent absorption under the Central Government subject to certain conditions.
(iii) In respect of personnel other than scientific employees who were permanent in Central Government in the event of their subsequent permanent absorption in public sector undertakings or any autonomous body proportionate retirement benefits for the service rendered in Government till the date of permanent absorption were allowed as per rules in force at the time of absorption.
932 (iv) No such benefit as provided in para (iii) above was allowed to temporary employees going over to autonomous bodies or undertakings.
In the meanwhile Central autonomous/statutory bodies had also introduced pension schemes for their employees on the lines of the pension scheme available to the Central Govern ment employees.
Therefore such autonomous/statutory bodies also started urging that the service rendered by their employees under the Central Government or other autonomous bodies before joining any autonomous body may be allowed to be counted in combination with service in the autonomous body concerned for the purpose of pension subject to certain conditions.
There was also a demand for making similar provisions for employees of autonomous bodies going over to the Central Government.
In other words, the demand was that the benefit of pension based on the combined service should be introduced.
After a careful consideration of all relevant matters the Central Government passed an order being No. O.M. No. 28 10 84 Pension Unit dated 20th August, 1984 Ministry of Home Affairs, Department of Personnel and Admin istrative Reforms and issued it on 29.8.
That part of the Government order which is relevant for purposes of this case is set out in Paragraph 3(A)(i) thereof and it is as follows: "No. 28/10/84 Pension Unit Government of India Bharat Sarkar Ministry of Home Affairs Grih Mantralaya Department of Personnel and Administrative Reforms (Karmik Aur Prashasnik Sudhar Vibhag) New Delhi, the 29th August, 1984.
OFFICE MEMORANDUM Sub: Mobility of personnel between Central Government Departments and Autonomous Bodies Counting of service for pension.
. . . . . . . . . 3.
This matter has been considered carefully and the President has now been pleased to decide that the cases of Central Government employees going over to a Central autonomous body or vice versa and employees of the Cent 933 ral autonomous body moving to another Central autonomous body may be regulated as per the following provisions: (A) In case of Autonomous bodies where pension scheme is in operation.
(i) Where a Central Government employee borne on pensionable establishment is allowed to be absorbed in an autonomous body, the service rendered by him under the Government shall be allowed to be counted towards pension under the autonomous body irrespective of whether the employee was temporary or permanent in Government.
The pensionary benefits will, however, accrue only if the temporary service is followed by confirmation.
If he retires as a temporary employee in the autonomous body, he will get terminal benefits as are normally available to temporary employees under the Government.
The same procedure will apply in the case of employees of the autonomous bodies who are permanently absorbed under the Central Government.
The Government/autonomous body will discharge its pension liability by paying in lump sum as a one time payment, the pro rata pension/service gratuity/terminal gratuity and DCRG for the service upto the date of absorption in the autonomous body/Government, as the case may be.
Lump sum amount of the pro rata pension will be determined with reference to commutation table laid down in CCS (Commutation of Pension) Rules, 1981, as amended from time to time.
" Paragraph 7 of the said Government order, however, stated that the order would take effect from the date of issue of the revised policy and will be applicable to those employees who retired from Government/autonomous body serv ice on or after the issue of the said order.
Since the petitioner had retired on 30.9.1980 he was not accorded the benefit of that order.
In this writ petition the petitioner has questioned the validity of the condition imposed in paragraph 7 of the said order making the order applicable only to such of the em ployees of the Government/ autonomous bodies who retired from service after the date of the issue 934 of the order.
The petitioner 's contention is that it was not open to the Government to deny the benefit of the order to those employees who had retired prior to the date of the order as it would bring into existence two classes of pen sioners one class of pensioners who had retired prior to the date of the Government order and another class of pen sioners who had retired subsequent to the date of the Gov ernment order and that such classification was not warranted under Article 14 of the Constitution as there was no nexus between the classification and the object to be achieved by the Government order.
The writ petition is resisted by the respondents the Union of India and the ICAR.
It is pleaded on behalf of the respondents that the petitioner was not entitled to count the period of service rendered by him under the Government of India as a part of his qualifying service for purposes of pension since he was only a temporary Government servant when he was working in the office of the Settlement Commis sioner, that he had joined the service of the ICAR as a fresh entrant and that there was no Government policy which entitled the petitioner to count the period of his Govern ment service as part of qualifying service for pension before the Government order dated 29.8.1984 was passed.
The fact that the petitioner was a temporary Government servant when he was working in the Central Government is immaterial because the Government order itself says that the service rendered by a Central Government employee under the Govern ment would be allowed to be counted towards pension under the autonomous body irrespective of whether the employee was temporary or permanent in Government provided he is later on confirmed in the autonomous body.
This condition is satis fied in this case.
It is admitted that the petitioner was treated as a new entrant when he joined the service of the ICAR on the same day on which he ceased to be the employee of the Central Government.
But the fact that the petitioner joined the service of the ICAR as a new entrant cannot again be an impediment for extending the benefit of the Government order dated August 29, 1984 because every employee who leaves the service of the Central Government to join the service of the ICAR has to be treated as a new entrant at the ICAR because it is not a department of the Central Government but a registered body.
In fact there cannot be a transfer to the ICAR from the Central Government.
There is no substance in this contention of the respondents.
There is no dispute that the ICAR though it is a body registered under the Societies Registration Act, 1960, is a body which is sponsored, financed and controlled by the Central Government.
There 935 has been a continuous mobility of personnel between Central Government departments and autonomous bodies, like the ICAR both ways and the Government thought, and rightly so, that it would not be just to deprive an employee who is later on absorbed in the service of the autonomous body, like the ICAR the benefit of the service rendered by him earlier in the Central Government for purposes of computation of pen sion and similarly the benefit of service rendered by an employee who is later on absorbed in the Central Government service the benefit of the service rendered by him earlier in the autonomous body for purposes of computation of pen sion.
If that was the object of issuing the notification then the benefit of such notification should be extended to all pensioners who had rendered service earlier in the Central Government or in the autonomous body as the case may be with effect from the date of the said Government order.
Now let us take the case of a person who had rendered serv ice under the Central Government between January 1, 1953 and July 1, 1955 but who has retired from service of the ICAR in 1985.
There is no dispute that such a person gets the bene fit of the service put in by him under the Central Govern ment for purposes of his pension.
But another .pensioner who has put in service under the Central Government during the same period will not get similar concession if he has re tired prior to the date of the Government order if Paragraph 7 of that order is applied to him.
The result will be that whereas in the first case there is pensionary liability of the Central Government in the second case it does not exist although the period of service under the Central Government is the same.
This discrimination arises on account of the Government order.
There is no justification for denying the benefit of the Governmentorder to those who had retired prior to the date on which the Government order was issued.
The respondents have not furnished any acceptable reason in support of their case, except saying that the petitioner was not entitled to the benefit of the Government order because the order says that it would not be applicable to those who had retired prior to the date on which it was issued.
In the absence of any explanation which is worthy of consideration it has to be held that the classification of the pensioners who were working in the Government/ autonomous bodies into two classes merely on the basis of the date of retirement as unconstitutional as it bears no nexus to the object to be achieved by the order.
We do not also find much substance in the plea that this concession being a new one it can only be prospective in operation and cannot be extended to employees who have already retired.
It is true that it is prospective in opera tion in the sense that the extra benefit can 936 be claimed only after 29.8.1984 that is the date of issue of the Government order.
But it certainly looks backward and takes into consideration the past event that is the period of service under the Central Government ' for purposes of computing qualifying service because such additional service can only be the service rendered prior to the date of issue of the Government order.
By doing so the Government order will not become an order having retrospective effect.
It still continues to be prospective in operation.
Whoever has rendered service during any past period would be entitled to claim the additional financial benefit of that service if he is alive on 29.8.1984 under the Government order but with effect from 29.8.1984.
In the result we hold that paragraph 7 of the Government order cannot be used against persons in the position of the petitioner to deny them the benefit of the past service for purposes of computing the pension.
We, therefore, direct the respondents to revise the pension payable to the petitioner in accordance with the Government order by giving him the benefit of the service rendered by him in the Central Government while computing his qualifying service for pension.
We, however, make it clear that the petitioner is entitled to recover the differ ence between the pension which he is entitled to get in accordance with the Government order and the pension which is already disbursed to him with effect from 29.8.1984, i.e., the date of the Government order only and he is not entitled to get any relief in respect of the period prior to August 29, 1984.
The writ petition is accordingly allowed.
No costs.
Petition allowed.

summary/full:
The petitioner who had served in a temporary capacity in a pensionable establishment of the Central Government for 3 years prior to his absorption in an autonomous body spon sored by the Central Government, retired from the service of that body in 1980, and was not allowed to count his service under the Central 'Government for purposes of pensionary benefits, since, according to the then existing orders, that benefit was confined only to such Central Government employ ees who were permanent at the time of their absorption in the autonomous body.
By an order dated 29th August, 1984, the Central Govern ment decided inter alia that where a Central Government employee borne in a pensionable establishment is allowed to be absorbed in an autonomous body, the service rendered by him under the Government shall be allowed to be counted towards pension under the autonomous body irrespective of whether the employee was temporary or permanent in Govern ment, subject, however, to the condition that the pensionary benefits would accrue only if the temporary service is followed by confirmation.
In paragraph 7 of the said order it was stated that the order would take effect from the date of its issue.
The petitioner questioned the validity of the condition imposed in paragraph 7 of the order dated 29th August, 1984 making it applicable only to such of the employees of the Government/autonomous bodies who retired from service after the date of the issue of the order.
Allowing the petition, 929 HELD: Paragraph 7 of the Government order dated 29th August, 1984 cannot be used against persons in the position of the petitioner to deny them the benefit of the past service for purposes of computing the pension.
[936C D] 2.
There has been a continuous mobility of personnel between Central Government departments and autonomous bodies both ways and the Government thought that it would not be just to deprive an employee who is later on absorbed in the service of the autonomous body the benefit of the service rendered by him earlier in the Central Government for pur poses of computation of pension and similarly the benefit of service rendered by an employee who is later on absorbed in the Central Government service the benefit of the service rendered by him earlier in the autonomous body for purposes of computation of pension.
If that was the object of issuing the Government Order dated 29th August, 1984, then the benefit of that order should be extended to all pensioners who had rendered service earlier in the Central Government or in the autonomous body as the case may be with effect from the date of the said Government order.
[935A C] 3.
Now let us take the case of a person who had rendered service under the Central Government between January 1, 1953 and July 1, 1955 but who has retired from service of an autonomous body in 1985.
There is no dispute that such a person gets the benefit of the service put in by him under the Central Government for purposes of his pension.
But another pensioner who has put in service under the Central Government during the same period will not get similar concession if he has retired prior to the date of the Gov ernment order if Paragraph 7 of that order is applied to him.
The result will be that whereas in the first case there is pensionary liability of the Central Government in the second case it does not exist although the period of service under the Central Government is the same.
The discrimination arises on account of the Government order.
[935C E] 4.
There is no substance in the plea that this conces sion being a new one it can only be prospective in operation and cannot be extended to employees who have already re tired.
It is true that it is prospective in operation in the sense that the extra benefit can be claimed only after 29th August, 1984.
But it certainly looks backward and takes into consideration the past event that is the period of service under the Central Government for purposes of computing qualifying service because such additional service can only be the service rendered prior to the date of issue of the Government order.
By doing so the Government order will 930 not become an order having retrospective effect.
It still continues to be prospective in operation.
Whoever has ren dered service during any past period would be entitled to claim the additional financial benefit of that service if he is alive on 29th August, 1984 under the Government order but with effect from 29th August, 1984.
[935H; 936A C] 5.
The respondents have not furnished any acceptable reason in support of their case, except saying that the petitioner was not entitled to the benefit of the Government order because the order says that it would not be applicable to those who had retired prior to the date on which it was issued.
In the absence of any explanation which is worthy of consideration it has to be held that the classification of the pensioners who were working in the Government/autonomous bodies into two classes merely on the basis of the date of retirement is unconstitutional as it bears no nexus to the object to be achieved by the order.
[935F G]


judgement:
No. 46931 of 1985.
IN W.P. Nos.
11361 62 of 1983 etc.
(Under Article 32 of the Constitution of India).
A.K. Ganguli and K. Swami for the Petitioners.
Shankar Ghosh, section Padmanabhan, K.K. Venugopal, C.S. Vaidyanathan, A.T.M. Sampath, P. Choudhary, S.R. Setia and S.R. Bhatt for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
There were disputes between the partners of the firm Balasubramania Foundry (hereinafter called 'the firm ') and several legal proceedings were taken in the courts of Coimbatore, these ultimately came to this Court.
This Court by an order dated 2nd of November, 1982 referred the disputes to the Arbitrator.
The order stated that the disputes were referred to the sole Arbitrator, Justice K.S. Palaniaswamy failing him Justice C.J.R. Paul and the respective parties including the firm were directed to file their 854 joint memos in all the courts where the suits/proceedings were pending before the Arbitrator.
The Arbitrator was directed1 to proceed in accordance with the .
In order to complete the narration, there was an application for appointment of Receiver which was directed to be pro ceeded with in the trial court.
This Court, however, by the said order directed the trial court to dispose of that application.
By the said order as mentioned hereinbefore in the absence of Justice K.S. Palaniaswamy, Justice C.J.R. Paul duly heard and considered the matter and published the award on 3rd April, 1985.
It is claimed by Mr. Ghosh, appearing on behalf of respondent No. 1 as well as Mr. Venugopal, appearing on behalf of other respondents supporting that the said award be made a rule of the court and the judgment in terms of the said award be passed.
It may be mentioned that the Coimba tore District Podu Thozillar Munnetra Samgam represented by its Secretary being a union of the workers filed writ peti tions in this Court being writ petitions Nos. 11361 62 of 1983.
Later on another special leave petition being special leave petition No. 2271 of 1983 was filed by the firm against the order of the High Court confirming the order of appointment of Receiver 'of the firm.
In those proceedings the Court was pleased to pass an order on 17th of February, 1984 that all the claims of the workers for their past dues would be referred for arbitration to the Arbitrator and considered by him.
On 27th of July, 1984 this Court was pleased to refer the money claims of one Velmurugan Factory and the money claims of the workers who were members of the Coimbatore District Engineering and General Workers Union to the Arbitrator for adjudicating by arbitration.
The Arbitrator has duly filed the award dated 3rd April, 1985 in this Court under section 14(1) of the . A. Rangaswamy, the petitioner herein for whom Mr. Gan guly is appearing has filed an affidavit alleging that the arbitrator was guilty of legal misconduct and there were errors which were amenable to corrections by this Court.
It was contended on behalf of the workers also that their claims had not been fully protected.
Mr. Sampath, appearing on their behalf has contended that the claims of the workers would amount to about rupees seven lakhs while provision had been made only for rupees three lakhs and even, then there was not sufficient provision.
The workers, gratuity, it was contended would come to about rupees seven lakhs while the Arbitrator had really estimated 855 erroneously rupees four lakhs and provisions had been made only for Rs.3,10,000 which according to Mr. Sampath have been further diminished by payments made by the Receiver in the meantime.
There is also an application on behalf of the workers ' union on these grounds.
It appears, however, that this objection on behalf of the workers on ground of imperfect protection of workers was under a misconception on behalf of the respondents.
It was stated and brought before us that in the last two years there had been sufficient profit to cover the claims of the workers.
Indeed it appears that of the 27 workers whose claims had to be settled on account of gratuity, 14 had received the same and a document indicating the payments to them was sought to be filed before us.
We are satisfied that sufficient provisions have been made for the existing li abilities of the workers and for any further contingencies in respect of the workers ' claims.
It cannot be said, there fore, that the award of the Arbitrator is incomplete and left undetermined this dispute.
The right to gratuity has been recognised and provision for the same has been made.
The respondents Nos. 2, 3, and 5 pleaded before us through counsel that they had no objection to the award being made the rule of the court.
The respondent No. I as mentioned hereinbefore is arguing that the award be made the rule of the court.
Respondent No. 4 is also supporting that claim.
It is only the petitioner A. Rangaswamy who is the only party opposing the award.
It was submitted by Mr. Ganguly in support of his objection that the Arbitrator while holding that the lease in favour of the firm was bad had awarded substantial sum on the basis of the lease.
It was further submitted that the Arbitrator while noting the reasons and recording the formal award had applied a reasoning altogeth er unconnected with the merits of the controversy which amounted to legal misconduct.
It was further alleged that the award was inconsistent.
In those circumstances, it was submitted that the award so far as it was against the appli cant.
A. Rangaswami should be set aside.
It was submitted that in spite of the alleged lapses in the illegal leases it was Palaniappan who was continuing to manage the business, sometimes as the Managing Partner of the firm and at other times as the proprietor or partner of the lessee company and recognition and rewarding him on that basis was perverse.
It was further submitted that reliance placed on Exhibit A 46 for the purpose of allotting the articles was perverse and a grave error apparent on the face of the record.
It was submitted that the Arbitrator committed a grave error in rejecting the claim of the applicant for a sum of Rs.39,27,940.11 which was due from Palaniappan and Doraiswa my as suppressed profits.
It was submitted by Mr. Ganguly 856 that at least rupees nine lakhs should have been left out in item No, 9.
This was not duly noted.
On the other hand, it was urged that the alleged errors were not amenable to be corrected in this application by this Court.
Mr. Ganguly submitted that on the whole the award was wholly inequita ble.
The law on this aspect is, however, settled.
In Union of India vs A.L. Rallia Ram, ; , this Court reiterated that in order to make arbitration effective and the awards enforceable, machinery was devised by the Arbi tration Act for lending the assistance of the ordinary courts.
The Court was also entrusted with .the power to modify or correct the award on the ground of imperfect form or clerical errors, or decision on questions not referred, which were severable from those referred.
The Court had also power to remit the award when it had left some matters referred undetermined, or when the award was indefinite, where the objection to the legality of the award was appar ent on the face of the award.
The Court might also set aside an award on the ground of corruption or misconduct of the ' arbitrator, or that a party had been guilty of fraudulent concealment or wilful deception.
But the Court could not interfere with the award if otherwise proper on the ground that the decision appeared to it to be erroneous.
The award of the arbitrator was ordinarily final and conclusive, unless a contrary intention was disclosed by the agreement.
The award was the decision of a domestic tribunal chosen by the parties, and the civil courts which were entrusted with the power to facilitate arbitration and to effectuate the awards, could not exercise appellate powers over the deci sion.
Wrong or right the decision was binding, if it be reached fairly after giving adequate opportunity to the parties to place their grievances in the manner provided by the arbitration agreement.
This Court reiterated in the said decision that it was now firmly established that an award was bad on the ground of error of law on the face of it, when in the award itself or in a document actually incorpo rated in it, there was found some legal proposition which was the basis of the award and which was erroneous.
This view had been enunciated ' by the Judicial Committee in Champsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd., [1932] L.R. 50 I.A. 324.
This view was again reiterated and emphasised by this Court in Kanpur Nagar Mahapalika vs M/s. Narain Das Hari , where Ray, J. as the learned Chief Justice then was observed at page 30 of the report relying on Champsey Bhara 's case (supra) "an error of law on the face of the award meant that one could find in the award, or in a document actually incorporated thereto, as, for instance a note appended by the arbi 857 trator stating the reasons for his judgment, some legal proposition which was the basis of the award and which one can say is erroneous.
" In the instant case there is no legal proposition either in the award or in any document annexed with the award which was erroneous.
In Allen Berry and Co. (P) Ltd. vs Union of India, New Delhi, ; , this Court reiterated that the principle was that an award could only be set aside where there is an error on its face.
In the instant case, the alleged mistakes or alleged errors, if there be any of which Mr. Ganguly made grievances are mistakes of fact if at all.
Mr. Ganguly 's grievances have a ring of similarity with the grievances which were agitated before this Court in Hindustan Tea Co. vs K. Sashikant Co. and another, , and this Court reit erated that it was an error of law and not mistake of fact committed by the arbitrator which was justiciable in the application before the court.
It was an error of law and not mistake of fact committed by the arbitrator which was amena ble to corrections by this Court.
The grievances of Mr. Ganguly 's client even if true, which as at present advised we are not inclined to accept, do not amount to error appar ent on the face of the record.
In the aforesaid view of the matter we are unable to sustain, the objections to the award.
There will, therefore, be judgment in terms of the award, there will no interim interest.
There will, however, be interest on judgment at 9%.
The objections are dismissed and the workers ' objections are disposed of by stating that there are sufficient provi sions in the award to meet the claim of the gratuity of the workers and they should have the right to be met out of the award.
In that view of the matter the award is made the rule of the Court and the judgment be in terms of the award.
No order as to costs.
N.P.V. Petitions dis posed of.

dataset_name: IN-Abs

summary/full:
There were disputes between the partners of the respond ent firm and several legal proceedings were taken in the courts below, which ultimately came to this Court.
This Court by an order dated 2nd of November, 1982 referred the disputes to an Arbitrator.
An application for appointment of Receiver was also directed to be disposed of by the trial court.
The Arbitrator duly filed the award dated 3rd of April, 1985 in this Court under Section 14(1) of the .
The petitioner in the special leave petitions filed an affidavit alleging that the Arbitrator was guilty of legal misconduct, and that there were errors which were amenable to correction by this Court, that the award was inconsistent and, therefore, the award should be set aside so far as it was against the applicant.
On behalf of the Respondent Workers an application was filed and it was contended that their claims have not been fully protected, and that the workers ' claim on account of gratuity would come to about Rs.7 lakhs while the Arbitrator had estimated it erroneously at Rs.4 lakhs, and had also made no sufficient provision in respect thereof.
Disposing of the Civil Miscellaneous Petitions, the Court, HELD: There is no legal proposition either in the award or in any document annexed therewith which was erroneous.
The alleged mistake or alleged errors, if there be any, of which grievances are made, are mistakes of fact, if at all.
The grievances, even if true, do not amount to an error apparent on the face of the record.
[857A, B, D] 853 Sufficient provisions have been made in the award for the existing liabilities of the workers and for any further contingencies is respect of their claims.
The right of gratuity has been recognised.
It cannot, therefore, be said that the award of the arbitrator is left incomplete and this dispute left undetermined.
[855C D] The objection to the award cannot be sustained.
There will, therefore, be judgment in terms of the award.
There will be no interim interest.
There will, however, be inter est on judgment at 9%.
[857E] Union of India vs A.L. Raffia Ram, ; ; Champsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd., [1932] L.R. 50 I.A. 324; Kanpur Nagar Mahapalika vs M/s Narain Das Haribansh, ; Allen Berry and Co. (P) Ltd. vs Union of India, New Delhi, ; and Hindustan Tea Co. vs K. Sashikant Co. and another, , referred to.


judgement:
vil Appeal Nos.
1205 06 of 1987.
From the Judgment and Order dated 24.3.
1987 of the Andhra Pradesh High Court in Writ Petition No. 15582 of 1986.
Dr. Y.S. Chitale, B. Parthasarathy and K.V. Sreekumar for the Appellant.
T.S. Krishnamurthy Iyer, T.V.S.N. Chari, Ms. V. Grover and Ms. Sunita M. for the Respondents.
The Judgment of the Court was delivered by 952 JAGANNATHA SHETTY, J.
This appeal on a certificate raises a short but an important question as to the Constitu tional validity of the Andhra Pradesh Commissionerate of Higher Education Act, 1986 (Act No. 26 of 1986) (called shortly "The Commissionerate Act").
The question is whether the enactment falls within Entry 66 List I or Entry 25 List III Concurrent List of the Seventh Schedule to the Consti tution.
The High Court of Andhra Pradesh has upheld its validity by holding that the Act falls under the latter Entry, but granted a certificate for leave to appeal to this Court under Article 133(1) of the Constitution.
The said Act was enacted on the basis of the recommenda tions of a high power committee constituted by the State Government to study the higher education system in the State of Andhra Pradesh with special reference to its curricula, courses of study, finance and management.
The Committee in its report submitted to the Government observed, inter alia, that there is no proper coordination and academic planning among the various bodies like Universities, Directorate of Higher Education and University Grants Commission etc.
There is no policy perspective in the development of higher educa tion system.
The Committee said that in order to streamline the general working and oversee the development of higher education in the State, there is need to constitute a Com mission to advise the Government in that matter.
The Government appears to have accepted the said report of the Committee.
That is obvious from the Preamble to the Commissionerate Act.
It states that "Act is to provide for the Constitution of a Commissionerate to advise the Govern ment 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." Section 2(e) defines "Higher Education" to mean interme diate education and education leading to a degree or post graduate degree including professional and technical educa tion.
Section 2(c) defines "Commissionerate" to mean the Andhra Pradesh Commissionerate of Higher Education consti tuted under subsection (1) of Section 3.
Thereunder, the Commissionerate has been constituted as a Corporate body.
The composition of the Commissionerate is provided under Section 4.
The Commissionerate shall consist of Chairman, Vice Chairman and not more than 10 members [Section 953 4(1)].
The Chairman and the Vice Chairman shall be appointed by the Government [Section 4(2)].
Of the ten members of the Commission, three are Secretaries to the Government: Educa tion Secretary, Labour Secretary and Finance and Planning Secretary.
Four of them shall be representing Professors and Vice Chancellors of any of the Universities in the State.
One shall represent industry and commerce, and another shall represent engineering or legal or medical education.
The last one shall be a distinguised educationalist.
All these persons are to be appointed only by the Government.
The Chairman and ViceChairman shall be whole time and salaried persons and their terms and conditions are provided under Section 5(1).
Section 9 gives overriding effect and power to the Commissionerate over all other authorities and bodies con nected with the Higher Education in the State.
Section 9(1) provides: "With effect on and from the Constitution of the Commissionerate under Section 3 and not withstanding anything contained in the Andhra Pradesh Intermediate Education Act, 1971, and the Andhra Pradesh.
Education Act, 1982, the Director of Higher Education, the Secre tary, Board of Intermediate Education and the Secretary to the Board of Technical Education shall function under the administrative con trol of the Commissionerate." Section 9(2) provides power to the Government to appoint a Secretary to the Commissionerate.
Rest of the Officers and employees are to be appointed from time to time by the Commissionerate but with the previous approval of the Gov ernment.
The Central power of the Commissionerate has been locat ed in Section 11.
We may give the gist of it here.
The Commissionerate shall (i) evolve a perspective plan for the development, of Higher Education in the State; (ii) monitor and evaluate the academic programmes in higher education and enforce accountability in the system; (iii) establish and develop resources centre for curriculam materials and continuing education of teachers; (iv) co ordinate the academic activities of various institutions of higher education in the State; 954 (v) undertake examination reforms; (vi) establish linkages between Universi ties industries and community development organisations: (vii) transfer teachers appointed in aided posts from one aided private college to anoth er such college subject to such rules as may be made by the Government in this behalf and generally encourage mobility of teachers;and (viii) perform any other functions neces sary for the furtherance and maintenance of excellence in the standards of higher educa tion in the State.
Section 11(2) provides: "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.
Section 13 is another important Section.
It provides power for inspection for ascertaining the financial needs of a University or its standards of teaching, examination and research.
The Commissionerate shall communicate to the University its views in regard to the result of any such inspection and may, after ascertaining the opinion of the University, recommend to the University the action to be taken as a result of such inspection and the University shall comply with any such direction.
Section 16 states that the Commissionerate shall be guided by such directions issued by the Government on ques tions of policy relating to State purposes or in case of any emergency as may be given to it by the Government.
Section 18 confers power to the Government to make rules to carry out all or any of the purposes of the Act.
Section 19 955 provides power to the Commissionerate to make regulations consistent with the Act and the rules made thereunder.
The sole contention of Dr. Chitale, learned counsel for the appellant is that the Commissionerate Act is just a duplicate of the University Grants Commission Act ("The UGC Act") and the State has no legislative power at all to enact it, since it squarely falls under Entry 66 List I.
But the contention of Mr. Krishnamurthy Iyer, learned counsel for the State of Andhra Pradesh, is to the contrary.
While supporting the judgement of the High Court, he submitted that the enactment in pith and substance falls within Entry 25 of List III and not under Entry 66 of List I of the Seventh Schedule.
For proper consideration of the conten tions we may set out these two Entries: Entry 66 List I: "Co ordination and determination of standards in institution for higher education or research and scientific and techni cal institutions.
" Entry 25 List III: "Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 & 66 of List I, vocational and technical training of labour." Till January 3, 1977, Education was a State subject under Entry 11 in List II.
By the 42nd Amendment Act, 1976, Entry 11 was deleted and it was placed in the Concurrent List by enlarging the Entry 25, as set out above.
Entry 25 List III relating to education including tech nical education, medical education and Universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together.
Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained.
The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States.
Secondly, it is the exclusive responsibility of the Central Government to co ordinate and determine the stand ards for higher education.
That power includes the power to evaluate, harmonise and secure proper relationship to any 956 project of national importance.
It is needless to state that such a coordinate action in higher education with proper standards, is of paramount importance to national progress.
It is in this national interest, the legislative field in regard to 'education ' has been distributed between List I and List III of the Seventh Schedule.
The Parliament has exclusive power to legislate with respect to matters included in List I.
The State has no power at all in regard to such matters.
If the State legis lates on the subject falling within List I that will be void, inoperative and unenforceable.
In Kerala State Electricity Board vs Indian Aluminium Company, [1976] 1 SCR 552 this Court said: "The power of Parliament to legis late with respect to matters included in List I is supreme notwithstanding any thing contained in clause (3) (again leaving out of consi deration the provision of clause 2).
Now what is the mean ing of the words "notwithstanding" in clause (1) and "sub ject to" in clause 3; They mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List takes effect notwithstanding the entry in List II.
This is also on the princi ple that the 'special ' excludes the 'general ' entry in List II is subject to the special entry in List I." We may now refer to some of the decisions dealing with the inter action of Entry 66 List I and Entry 25 List III.
In Gujarat Universi ty, Ahmedabad vs Krishna Ranganath, [1963] Suppl.
1 SCR 112, 137.
Shah J. speaking for the majority view of the Constitution Bench observed: "Item 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in the Parliament.
Use of the expression "Subject to" in item 11 of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded mat ters cannot be undertaken by the State Legis latures.
In Hingir Rampur Coal Co. vs State of Orissa ; , this Court in consid ering the import of the expression "Subject to" used in an entry in List II in relation to an entry in List I observed that to the extent of the restriction imposed by the use of the expression "subject to" in an entry in List II the power is taken away from 957 the State Legislature.
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.
If a subject of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of "education including Universities" power to legislate on that subject must lie with the Parliament." This decision turned on the interpretation of Section 4(27) of Gujarat University Act, and it was held that the University has no power to prescribe Gujarati or Hindi as exclusive medium of instruction in higher education.
The principles enunciated in the Krishna Rangnath case have been reiterated in D.A.V. College, Bhatinda etc.
vs State of Punjab & Ors., The power of the State to prescribe certain norms for admission to colleges came for consideration before this Court in R. Chitralekha & Anr.
vs State of Mysore & Ors.
, ; where Subba Rao J., as he then was, ob served: "that if the law made by the States by virtue of Entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or diffi cult 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 scientif ic and technical institutions" reserved to the Union, the State law may be bad.
This cannot obviously be decided on speculative and hypo thetical 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.
" The learned Judge, however, upheld the impugned scheme of the State in that case for selection of students 'to colleges maintained by the State since it was found that that scheme only prescribed criteria for making admissions to colleges from among students who secured the minimum qualifying marks prescribed by the University.
It was held that the scheme did not encroach upon the field covered by Entry 66 List I of the Seventh Schedule to the Constitution.
Similar was the view expressed by this Court in State of Andhra Pradesh vs Lavu 958 Narendranath & Ors.
; , and in Ambesh Kumar vs Principal, LLRM College, Meerut, ; What do we have in the present case? There is no scheme for admission to colleges.
There is a corporate body estab lished under the State enactment with powers supreme in regard to all matters pertaining to higher education.
To mention a few, the Commissionerate constituted thereunder shall evolve a perspective plan for the development of higher education in the State.
It must monitor and evaluate the academic programmes.
It must co ordinate the academic activities of various institutions and universities.
It must oversee the development and streamline the higher education in the entire State.
It shall perform all functions neces sary for .the furtherance and maintenance of excellence in the standards of higher education in the State.
It also controls the entire fund meant for the universities includ ing grants given by the Central Government for higher educa tion.
Since it was argued that both these enactments are in parimateria, it will be useful to compare the UGC Act with the corresponding provisions of the Commissionerate Act by keeping them side by side: U.G.C. Act, 1956 The Commissionerate Act 1.
Statement of Objects and reasons: "The Constitution of India In order to bring a change vests Parliament with in the higher education exclusive authority in system in the State so as regard to Co ordination to make the courses of and determination of study more relevant to the standards in institutions needs of the modern society for higher education or and to provide opportu research and scientific nities of earning and and technical instituti learning simultaneously ons.
It is obvious at college level to all the that neither coordination students in the State, a nor determination of four man committee was standards is possible appointed in February, 1986 unless the Central by the State Government to Government has some voice study the higher education 959 in the determination of system in the State with standards of teaching special reference to curri and examination in cula and courses of studies, Universities, both old Finance and Management in and new.
the Higher Education system.
It is, therefore, The Committee in its proposed to establish report submitted to a University Grants Government observed Commission as a that there is no proper corporate body which co ordination and academic will inquire into the planning among the various financial needs of bodies like universities; universities and the Directorate of Higher allocate and disburse Eduation and the Univer grants to Universities sity Grants Commission etc.
for any general or and there is no policy specified purpose.
The perspective in the Commission will act as an development of the expert body to advise Higher Education system the Central Government in the State and in order on problems connected to streamline the general with the coordination of working of the higher facilities and Education system in the maintenance of standards State the Committee in Universities.
suggested to constitute The Commission, in consul a commission to advise tation with the University the Government in connected, will also have matters relating to the power to cause an higher education in the inspection or inquiry to State and to oversee be made of any university its development.
The established by law in Government have examined India and to advise the the above recommendations university on any matter and suggestions and which has been the decided to constitute subject of an inquiry or a Commissionerate of inspection.
The Commi Higher Education.
ssion shall also advise, whenever such advise is sought, on the establish ment of new Universities.
Establishment of Sec.
Constitution of the Commission: Commissionerate of Higher Education: (1) With effect from such The Government may, by date as the Central Govern notification, and with ment may, by notification effect on and from such in the official Gazettee, date as may be specified appoint, there shall be therein constitute a established a Commission Commissionerate for the by the name of the Univer purpose of this Act sity Grants Commission.
to be called The Andhra Pradesh Commissionerate of Higher Education.
(2) The said Commission (2) The Commissionerate shall be a body corporate shall be a body corporate having perpetual having perpetual success succession and a common ion and a common seal and seal, and shall by the shall sue and be used said name sue and be sued.
by the said corporate name.
(2)(b) xxx xxx xxx Sec.
5 Composition of the Sec.
4 Composition of the Commission: Comissionerate: (1) The Commission shall (1) The Commissionerate consist of: shall consist of: (i) A Chairman, and (i) A Chairman (ii) A Vice Chairman, and (ii) A Vice Chairman, and (iii) ten other members, to (iii) not more than ten be appointed by the members to be appointed by Central Government the State Government Sec.
9 Temporary Associa Sec.
8 Temporary Associa tion of person with the tion of persons with the Commission for particular Commissionerate for purpose particular purpose (Both these Sections are similar) Functions of the Sec.
11 Powers and Functions Commission: of the Commissionerate It shall be the general duty It shall be the general duty of the Commission to take, of the Commissionerate to: in consultation with the Universities or other a) evolve a prospective bodies.
concerned, all plan for the development such steps as it may of higher education in the think fit for the State; promotion and co ordi nation of University b) administer and release Education and for the grants in aid to Univer determination and main sities as private tenance of standards colleges in the State and of teaching, examina report the same to the tion and research in Government.
University and for the purpose of performing c) xxx xxx xxx its functions under this Act, the Commission d) monitor and evaluate may: the academic programmes in higher education and enforce accountability in the system.
a) Inquire into the finan e) xxx xxx cial needs of Universities f) xxx xxx b) Allocate and disburse, out of the fund of the g) co ordinate the Commission, grants to academic activities of Universities established various institutions of or incorporated by or higher education in the under a Central Act for State.
the maintenance and development of such xxx xxx universities or for any other general or p) Perform any other specified purpose.
functions necessary to the furtherance and c) Allocate and disburse maintenance of excell out of the fund of the ence in the standards of Commission, such grants higher education in the 962 to other Universities as State, it may deem necessary or appropriate for the development of such Universities or for the maintenance, or development or both, of any specified activities of such Universities or for any other general or specified purpose recommended to any University the measure necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendations.
13 Inspection: Sec.
13 Inspection: (1) For the purpose of (1) For the purpose of ascertaining the finan ascertrining the financial cial needs of a Univer needs of a University or its sity or its standards of standards of teaching, exami teaching, examination and nation and research.
the research, the Commission Commissionerate may, after may, after consultation with consultation with the Uni the University cause an versity, cause an inspection inspection of any department of any department or depart or departments thereof to ments thereof to be made in be made in such manner as such manner as may be may be prescribed and by prescribed and by such such person or persons as person or persons as it may it may direct.
direct.
(2) The Commission (2) The Commissionerate shall shall communicate to communicate to the University the University the date the date on which any inspec on which any inspection tion under sub section (1) under sub section (1) is shall be made and the Univer to be made and the sity shall be entitled to be University shall be associate with inspection 963 entitled to be associa in such manner as may be ted with the inspection prescribed.
in such manner as may be prescribed.
(3) The Commissionerate shall communicate to the University its views in regard to the result of any such inspection and may, after ascertaining the opinion of the University, recommend to the University, the action to be taken as a result of such inspection, and the University shall comply with any such direction.
16 Fund of the Sec.
12 Fund of the Commission Commissionerate: (1) The Commission shall (1) The Commissionerate shall have its own fund and have its own fund consisting all sum which may, from of the grants from Government time to time, be paid voted by the Legislative Ass to it by the Central embly of the State towards Government and all the grants to Universities, and receipts of the Commi aided Junior and Degree ssion (including any Colleges and grants received sum which any State from Central Government for Government or any other higher education.
authority or person may handover to the Commi (2) All moneys belonging to ssion) shall be carried the Fund shall be deposited to the fund and all in such banks or invested in payments by the such manner as may, subject Commission shall be to the approval of the made therefrom.
Government, be decided by the Commissionerate.
(2) All moneys belong ing to the fund shall (3) The Commissionerate may be deposited in such spend such sums as it thinks banks or invested in fit for performing its such manner as may, functions under this Act, subject to the approval and such sums shall be 964 of the Central Govern treated as expenditure ment be decided by payable out of the fund the Commission.
of the Commissionerate.
(3) The Commission may spend such sums as it thinks fit for performing its functions under this Act, and such sums shall be treated as expenditure payable out of the fund of the Commission.
18 Annual Report Sec.
14 Annual Report The Commission shall The Commissionerate shall prepare, once in every prepare once in every year, year in such form and at in such form and at such time such time as may be as may be prescribed an Annual prescribed, an annual Report giving a true and full report giving a true and account of its activities full account of its acti during the previous year, vities during the previous and copies thereof shall be year, and copies thereof forwarded to the Government shah be forwarded to the and the Government shall Central Government and the cause the same to be laid Government shall cause the before the Legislative same to be laid before Assembly of the State.
both Houses of Parliament.
19 Accounts & Audit Sec.
15 Accounts & Audit Sec.
20 Directions by Sec.
16 Directions by the the Central Government Governments (1) In the discharge of (1) In the discharge of its functions under this its functions under this Act, Act.
the Commission shall the Commissionerate shall be be guided by such direc guided by such directions tions on questions of on question of policy policy relating to relating to State purposes national purposes as may or in case of any emergency as be given to it by the may be given to it by the 965 Central Government.
Government.
(2) If any dispute arises (2) If any dispute arises between the Central between the Government Government and the Commi and the Commissionerate ssion as to whether a as to whether a question question is or is not a is or is not a question of question of policy policy relating to State relating to national purposes, or whether an purposes the decision of emergency has arisen, the the Central Government decision of the Government shall be final.
thereon shall be final.
25 Power to make Rules Sec.
18 Power to make Rules Sec.
26 Power to make Sec.
19 Power to make Regulations.
Regulations.
" We have extracted only such of the provisions similar to those contained in the UGC Act.
That is not all.
The Commis sionerate Act yet contains sweeping provisions encroaching on the autonomy of the Universities.
Under Section ll(1)(c) it is for the Commissionerate to decide on the need for, and location of new colleges and courses of study including Engineering Colleges.
Section 11(1)(f) provides power to the Commissionerate to establish and develop resources centre for curriculuam materials and continuing education of teach ers.
Section 11(1)(g) confers power on the Commissionerate to coordinate the academic activities of various institu tions of higher education in the State.
It is also the duty of the Commissionerate to undertake examination reforms and assume accreditation functions [Section 11(1)(h) & (i)].
Section 11(1)(j) states that it is the duty of the Commis sionerate to organise entrance test for University admis sion.
Section 11(1)(k) states that it shall administer and grant scholarship and organise work study programmes.
Sec tion 11(1)(0) provides power to transfer teachers from one aided private college to another such college, subject to the rules made by the Government.
There is yet a devastating provision on the autonomy of Universities.
section 11(2) states that every University or College including the pri vate college shall obtain the prior approval of the Commis sionerate in regard to: (i) creation of new posts; (ii) financial management; and (iii) starting of new higher educational institutions.
This 'Super Power ' has been pre served to the Commissionerate notwithstanding anything contained in any law relating to Universities in the State, the Board of Intermediate Education and the Andhra Pradesh Education Act, 1982.
It will be seen that the Commissionerate has practically taken over the academic programmes and activities of the Universities.
The Universities have been rendered irrelevant if not non entities.
It is apparent from this discussion that the Commission erate Act has been drawn by and large in the same terms as that of the U.G.C. Act.
The Commissionerate Act, as we have earlier seen also contains some more provisions.
Both the enactments, however, deal with the same subject matter.
Both deal with the co ordination and determination of excellence in the standards of teaching and examination in the Univer sities.
Here and there, some of the words and sentences used in the Commissionerate Act may be different from those used in the UGC Act, but nevertheless, they convey the same meaning.
It is just like referring the same person with different descriptions and names.
The intention of the legislature has to be gathered by reading the statute as a whole.
That is a rule which is now firmly established for the purpose of construction of statutes.
The High Court appears to have gone on a tangent.
The High Court would not have fallen into an error if it had perused the UGC Act as a whole and compared it with the Commissionerate Act or vice cersa.
In Prem Chand Jain vs R.K. Chhabra, ; this Court has held that the UGC Act falls under Entry 66 of List I.
It is then unthinkable as to how the State could pass a parallel enactment under Entry 25 of List III, unless it encroaches Entry 66 of List I. Such an encroachment is patent and obvious.
The Commissionerate Act is beyond the legislative competence of the State Legislature and is hereby declared void and inoperative.
In the result, these appeals are allowed with costs.
The judgment of the High Court is reversed.
There shall be a direction to the State not to enforce the provisions of the impugned Act.
Before parting with the case we may say a word more.
The impugned Act was the result of a report from a High Power Committee constituted by the State Government.
The Committee went into the affairs of the higher education in the State.
The Committee examined among other things, the curricula and courses of studies.
The Committee found as a fact that there is no proper coordination and academic planning among the various bodies.
It recommended to the State Government the need to pass a proper legislation to stream 967 line the higher education.
The State Government accepted the recommendations and passed the Act in question.
The Act now disappears for want of legislation competence.
What about the need to enact that Act? It will not vanish to the thin air.
The defects and deficiency pointed out by the High Power Committee in regard to higher education may continue to remain to the detriment of the interest of the State and the Nation.
Such defects in the higher education may not be an isolated feature only in the State of Andhra Pradesh.
It may be a common feature in some other States as well.
That apart, we often hear and read in news papers with disgust about the question papers leakage and mass copying in the University examinations.
It has stripped the univer sity degrees of all its credibility.
He indeed must be blind who does not see what is all happening in some of the Uni versities.
The Constitution of India vests Parliament with exclu sive authority in regard to co ordination and determination of standards in institutions for higher education.
The Parliament has enacted the UGC Act for that purpose.
The University Grants Commission has, therefore, a greater role to play in shaping the academic life of the country.
It shall not falter or fail in its duty to maintain a high standard in the Universities.
Democracy depends for its very life on a high standards of general, vocational and profes sional education.
Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs.
It is hoped that University Grants Commission will duly discharge its responsibility to the Nation and play an increasing to role bring about the needed transfor mation in the academic life of the Universities.
N.P.V. Appeal al lowed.

summary/full:
The Andhra Pradesh Commissionerate of Higher Education Act, 1986 (Act No. 26 of 1986) providing for the constitu tion of a Commissionerate to advise the Government in mat ters relating to Higher Education in the State and to over see its development with perspective planning and for mat ters connected therewith and incidental thereto and to perform all functions necessary for the furtherance and maintenance of excellence in the standards of higher educa tion in the State was enacted on the basis of the recommen dations of a high power committee constituted by the State Government to study the Higher Education system in the State with special reference to its curricula, courses of study, finance and management.
The validity of the aforesaid Act was challenged in the High Court which, while upholding it, held that the Act fell under Entry 25 List III Concurrent List of the Seventh Schedule to the Constitution of India.
In the appeals to this Court, it was contended on behalf of the appellant that the Act was just a duplicate of the University Grants Commission Act and the State had no legis lative power at all to enact it since it squarely fell under Entry 66 List I.
On behalf of the Staterespondent it was submitted that the enactment in pith and substance fell within Entry 25 of List III and not under Entry 66 of List I of the Seventh Schedule.
Allowing the appeals, this Court, 950 HELD: 1.1 Entry 25 List III relating to education in cluding technical education, medical education and Universi ties had been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together.
[955F G] 1.2 Entry 66 gives power to the Union to see that a required standard of higher education in the country is maintained.
The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States.
It is the exclusive responsibility of the Central Government to co ordinate and determine the standards for higher education.
That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance.
It is needless to state, that such a coordinate action in higher education with proper standards, is of paramount importance to national progress.
It is in this national interest, the legislative field in regard to 'education ' has been distrib uted between List 1 and List 111 of the Seventh Schedule. ]955G H; 956A B] 1.3 Parliament has exclusive power to legislate with respect to matters included in List I.
The State has no power at all in regard to such matters.
If the State legis lates on the subject failing within List I that will be void, inoperative and unenforceable.
[956B] 1.4 The Commissionerate Act has been drawn by and large in the same terms as that of the U.G.C. Act.
Both the enact ments deal with the co ordination and determination of excellence in the standards of teaching and examination in the Universities.
Here and there, some of the words and sentences used in the Commissionerate Act may be different from those used in the UGC Act, but nevertheless, they convey the same meaning.
It is just like referring the same person with different descriptions and names.
[966B D] 1.5 The High Court has gone on a tangent, and would not have fallen into an error if it had perused the UGC Act as a whole and compared it with the Commissionerate Act or vice versa.
[966D] 1.6 The Commissionerate Act contains sweeping provisions encroaching on the autonomy of the Universities.
The Commis sionerate has practically taken over the academic programme and activities of the universities.
The universities have been rendered irrelevant if not nonentities.
[965D; 966A B] 1.7 It is unthinkable as to how the State could pass a parallel 951 enactment under Entry 25 of List III, unless it encroaches Entry 66 of List I Such an encroachment is patent and obvi ous.
The Commissionerate Act is beyond the legislative competence of the State Legislature and is hereby declared void and inoperative.
[966E F] 1.8 The Constitution of India vests Parliament with exclusive authority in regard to co ordination and determi nation of standards in institutions for higher education.
The Parliament has enacted the UGC Act for that purpose.
The University Grants Commission has, therefore, a greater role to play in shaping the academic life of the country.
It shall not falter or fail in its duty to maintain a high standard in the Universities.
Democracy depends for its very life on high standards of general, vocational and profes sional education.
Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs.
[967D E] The University Grants Commission, it is hoped will duly discharge its responsibility to the Nation and play an increasing role to bring about the needed transformation in the academic life of the Universities.
[967E F] Kerala State Electricity Board vs Indian Aluminium Company, [1976] 1 SCR 552; Gujarat University, Ahmedabad vs Krishna Ranganath, [1963] Suppl.
1 SCR 112; DAV College, Bhatinda etc.
vs State of Punjab & Ors.
, ; R. Chitralekha & Ant.
vs State of Mysore & Ors.
, ; ; State of Andhra Pradesh vs Lavu Narendranath & Ors, etc.; , ; Ambesh Kumar vs Principal, LLRM College, Meerut, ; and Prem Chand Jain vs R.K. Chhabra; , , referred to.


judgement:
Criminal Appeal No. 361 of 1987.
From the Judgment and Order dated 26.3.
1986 of the Karnataka High Court in Crl.
P.C. No. 69 of 1986.
P.R. Ramasesh, Adv.
for the Appellant.
The Judgment of the Court was delivered by SEN, J.
The question involved in this appeal by special leave is whether the High Court of Karnataka was justified in directing the Sessions Judge, Bidar to proceed with the trial of Sessions Case No. 23 of 1984 insofar as it relates to the respondent Narsa Reddy and one Vaijinath, accused No. 2, arraigned for having committed alleged offences punisha ble under sections 302 and 201 both read with section 34 of the Indian Penal Code, 1860 and sections 3 and 4 of the .
While issuing notice, we were not satisfied about the legality and propriety of the order passed by the learned Single Judge which had the effect of splitting up of the trial although the prosecution case against the accused arose out of the same incident and the evidence to be led by the prosecution against them was more or less common.
It also seemed to us that if the order passed by the learned Single Judge were to be implemented, the learned Sessions Judge would be constrained to proceed against the respondent and accused No. 2 Vaijinath and thereby the very object of directing de novo trial would be frustrated.
At the hearing, no one appeared for the respondent and therefore we did not have the benefit of hearing his counsel.
The prosecution case, in brief, is as follows.
On Febru ary 14, 1984, at about 7 p.m., the respondent Narsa Reddy pushed his wife the deceased Jagdamba into a well situate in his garden to cause her death and he then with the help of accused No. 2, Vaijinath pulled her out of 970 the well and brought her to the house of the respondent where he assaulted her with a stick and thereafter strangu lated her to death.
After the committal, the Sessions case was posted for evidence and evidence of four witnesses was recorded.
The testimony of PW 3 Sangareddy and PW 4 Ran gareddy revealed the involvement of Head Constable Govinda Rao and Police Constable John, who were cited as prosecution witnesses, in the disposal of the dead body of the deceased, that they had also committed the offence under section 20 1 read with section 34 of the Indian Penal Code along with the other two accused.
An application was accordingly filed by the learned Public Prosecutor under section 319(4) of the Code of Criminal Procedure for impleading Head Constable Govinda Rao and Police Constable John as accused Nos. 3 and 4 in the Ses sions case.
On the said application, the learned Sessions Judge by his order dated August 22, 1985 ordered that Head Constable Govinda Rao and Police Constable John be impleaded as accused Nos. 3 and 4 for the offence under section 201 read with section 34 of the Indian Penal Code.
He also ordered that a de novo trial would be held against the accused persons after reframing charges.
Before the trial could proceed further, the newly impleaded accused Nos. 3 and 4 filed an application before the learned Sessions Judge contending that they could not be impleaded as accused and that since they were public servants, sanction under section 197 of the Code was required for their prosecution.
The application of accused Nos. 3 and 4 was rejected by the learned Sessions Judge on October 28, 1985.
Thereupon, Head Constable Govinda Rao and Police Constable John, impleaded as accused Nos. 3 and 4, preferred a revision being Criminal Revision No. 886 of 1985 before the High Court.
The High Court has admitted the revision and granted stay of proceedings in the Sessions case.
In the meanwhile, the respondent Narsa Reddy who had been arrayed as accused No. 1 made an application for bail under section 439(1) before the learned Sessions Judge contending that in view of the stay order granted by the High Court in Criminal Revision No. 886 of 1985, the trial of the Sessions case was unduly protracted and hence he should be released on bail, apart from the ground that no prima facie case has been made out against him.
The learned Sessions Judge by his order dated September 25, 1985 rejected the application on the ground that earlier similar applications for bail were rejected both by him as well as the High Court and it could not be said that the trial was protracted, merely because of stay granted by the High Court, observing that the case was likely to be con cluded at an early date.
Aggrieved, the respondent preferred a revision before the High Court.
The learned Single Judge by his order 971 dated March 28, 1985 rejected the application for bail under section 439( 1 ) of the Code, vacated the stay granted by the High Court in Criminal Revision No. 886 of 1985 insofar as the trial against the respondent and the aforesaid Vaiji nath, accused No. 2 was concerned and directed the learned Sessions Judge to proceed with the trial against them as early as possible.
Hence this appeal by special leave.
We have no manner of doubt that the direction made by the learned Single Judge presumably exercising the inherent powers of the High Court under section 482 of the Code of Crimi nal Procedure was wholly unwarranted.
It is somewhat strange that the learned Single Judge should have made a direction at all requiring the learned Sessions Judge to proceed with the trial as against the respondent and accused No. 2, Vaijinath merely because there was stay granted by the High Court in revision preferred by the co accused Head Constable Govinda Rao and Police Constable John, accused Nos. 3 and 4 against the order passed by the learned Sessions Judge dated October 28, 1985 rejecting the objection as to the validity of trial for want of sanction.
If he felt that the grant of stay would prejudicially affect the respondent and accused No. 2, Vaijinath and subject them to a protracted trial, the proper course for the learned Single Judge was to have heard and disposed of the Criminal Revision No. 886 of 1985 rather than make a direction of this kind which would, in fact, result in splitting up of the trial which is apt to cause miscarriage of justice, besides serious prejudice to the prosecution.
From the nature of the prosecution case, it is quite apparent that the evidence to be led by the prosecu tion would be more or less common as it relates to the same occurrence.
It could not be said that merely because the proceedings before the learned Sessions Judge were held up due to stay granted by the High Court in that revision, the learned Single Judge could have taken recourse to the inher ent powers of the High Court under section 482 of the Code, or that it was necessary to do so either to prevent abuse of the process of Court or otherwise to secure ends of justice.
Any further delay in the trial could be prevented by taking up the revision for hearing.
In the result, the appeal succeeds and is allowed.
The order passed by the High Court is set aside and the High Court is directed to hear and dispose of Criminal Revision No. 886 of 1985 as early as possible.
In the meanwhile, the proceedings in Sessions Case No. 23 of 1984 before the learned Sessions Judge shall remain stayed till the disposal of the revision.
H.L.C. Appeal allowed.

summary/full:
While the respondent, alongwith another person, was being tried under sections 302 and 201 read with section 34 I.P.C., etc., for causing the death of his wife, the evidence re corded revealed the involvement of two police officials in the disposal of the dead body, and, they were also charged under section 201 read with section 34 I.P.C. and the trial was or dered to be held de novo against all the four accused.
However, the trial could not proceed as the two police officials whose plea that, being public servants, it was necessary to obtain a sanction for prosecution under section 197 Cr.
P.C. for impleading them as accused, was rejected, approached the High Court in Revision and obtained stay of the trial.
The respondent applied for bail under section 439(1), Cr.
P.C. contending that the trial was unduly protracted, and on its rejection, approached the High Court in Revision.
A Single Judge of the High Court rejected the application for bail, vacated the stay granted by the High Court earlier insofar as the respondent and the other person who was originally accused with him was concerned and directed the Sessions Judge to proceed with the trial as against them only.
Allowing the appeal, and, directing continuance of stay of the trial till the disposal of the Revision filed by the two police officials, HELD: It is somewhat strange that the learned Single Judge should have made a direction at all requiring the learned Sessions Judge to proceed with the trial as against the respondent and the other accused merely because there was stay granted by the High Court in the Revision preferred by the two police officials.
If he felt that the stay would prejudicially affect the respondent and the other accused and subject them to a protracted trial, the proper course was to have heard and disposed of the Revision filed by the two police officials rather than make a direction of this kind which would, result in the splitting up of the trial and is apt to cause miscarriage of justice, besides serious pre 969 judice to the prosecution.
From the nature of the prosecu tion case, it is quite apparent that the evidence to be led by the prosecution would be more or less common as it re lates to the same occurrence.
It could not be said that merely because the proceedings were held up due to stay granted by the High Court the learned Single Judge could have taken recourse to the inherent powers of the High Court under section 482, Cr. P.C., or that it was necessary to do so either to prevent abuse of the process of Court or otherwise to secure ends of justice.
[971C F]