GOPINATHAN NAIR Vs. UNIVERSITY OF KERALA

JUDGEMENT

(1.) The petitioner who is working as a Second Grade Professor in Mathematics in a private college affiliated to the Kerala University has brought this writ petition challenging the action taken by the Syndicate of the Kerala University as per its resolution passed at the meeting held on 31-8-1972 to grant to the fourth respondent exemption from the minimum qualifications to hold the post of Grade I Professor in Mathematics in the N.S.S. Hindu College, Changanacherry as per Regulation.5 of the Regulations in view of her "tested teaching experience and record of service as Professor Grade II". By the said resolution the Syndicate also granted approval to the appointment of the fourth respondent as Grade I Professor in Mathematics with effect from 8-8-1972. Ext. P-2 is the order issued by the Registrar of the University incorporating the aforesaid decision taken by the Syndicate. The petitioner contends that there was no provision in the Kerala University Act, 1969 conferring jurisdiction or power on any authority to grant any exemption from the minimum qualifications prescribed in respect of teachers or expressly empowering the framing of Statutes or Regulations covering the said subject and that hence Statute 3(xix) of Chap.9 of the First Statutes of the Kerala University as well as Regulation.5 framed by the Academic Council are ultra vires and void in so far as they purport to confer such a power on the Syndicate.

(2.) Subsequent to the institution of this writ petition the Legislature has passed the Kerala University Act, 1974 (hereinafter called the 1974 Act) and except S.64, with which we are not concerned, all the other provisions of the said Act have been brought into force with effect from 19-8-1974. S.58(2) of the 1974 Act lays down that

(3.) The benefit of the above provision will obviously be available only if under the 1974 Act, there is some authority or officer vested with the power to make a decision or pass an order like the one in respect of which the validating provision is sought to be made use of. It is contended on behalf of the writ petitioner that there is no provision in the 1974 Act conferring power upon any authority or officer of the University to exempt a teacher from possessing the prescribed qualifications or to approve the appointment of any teacher who does not possess the prescribed qualifications and that hence S.58 cannot be called in aid by the respondent for validating the order Ext. P-2 or the decision of the Syndicate on the basis of which that order was issued. This contention, however, overlooks the fact that by S.82(3) of the 1974 Act the Statutes, Ordinances, Regulations, etc. which were in force immediately prior to its commencement are to remain operative until such time as they are replaced by Statutes, Ordinances, Regulations, etc. framed under the 1974 Act. The resultant position is that the Kerala University First Statutes, 1972 are still in force, notwithstanding the repeal of the Kerala University Act, 1969 whereunder those Statutes were made. Statute 3(xix) of Chap.9 of the First Statutes specifically confers power on the Syndicate to grant exemption to teachers from the prescribed qualifications in accordance with the regulations framed by the Academic Council. It cannot, therefore, be said that under the 1974 Act there is no authority competent to exempt teachers from the prescribed qualifications.