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PUNJAB AGRICULTURAL UNIVERSITY TEACHERS versus STATE OF PUNJAB & ORS.

High Court of Punjab and Haryana, Chandigarh

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Punjab Agricultural University Teachers v. State of Punjab & Ors. - CWP-8055-2005 [2006] RD-P&H 2106 (29 March 2006)

CWP No. 8055 of 2005 Page numbers

In the High Court of Punjab and Haryana, Chandigarh.

CWP No. 8055 of 2005

Date of decision: 21.04.2006

Punjab Agricultural University Teachers Association and others.

....Petitioners

Versus

State of Punjab and others.

....Respondents

Coram:- Hon'ble Mr.Justice J.S. Khehar.

Hon'ble Mr. Justice S.N. Aggarwal

Present: Mr. P.S. Patwalia, Sr. Advocate with Mr. D.S. Patwalia, Advocate

for the petitioners.

Mr. R.S. Cheema, Advocate General, Punjab with Mr . Sanjeev Sharma, Addl. Advocate General, Punjab for respondents No.1 and 2.

Mr. Kamal Sehgal, Advocate

for respondents No.3 and 5.

Mr. M.S. Dhami, Advocate for

Mr. HNS Gill, Advocate

for respondent No.4.

...

J.S. Khehar, J.

1. The Punjab Agricultural University Act, 1961 was incorporated during the subsistence of the composite State of Punjab prior, to its reorganisation w.e.f. 1.11.1966. The State of Haryana came into existence w.e.f. 1.11.1966. The desirability and the necessity for constituting a separate Agricultural University for the successor State of Haryana was felt by the successor State of Haryana. It is, therefore, that the Parliament enacted the Haryana and Punjab Agricultural Universities Act, 1970 (hereinafter referred to as the Joint Agricultural Universities Act).

CWP No. 8055 of 2005 Page numbers

2. For an effective adjudication of the controversy raised in the instant writ petition, it would be essential to narrate how the Parliament came to enact the Joint Agricultural Universities Act. The following paragraphs, therefore, is a brief delineation of the manner in which the Joint Agricultural Universities Act was promulgated.

3. The Seventh Schedule of the Constitution of India incorporates three lists i.e. the Union List, the State List and the Concurrent List. The State List incorporates entries in respect of which State Legislatures have exclusive authority to legislate. Vide Entries 11 and 32, incorporated in the State List, jurisdiction for legislating on the subject of education, including universities, was vested in State Legislatures. Entries 11 and 32, as they existed prior to 3.1.1977, are being extracted hereunder:- "11: Education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III.

32: Incorporation, regulation and winding up of corporation other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations, co-operative societies." Reference has been made in Entry 11 of the State List to Entries 63, 64, 65 and 66 of the Union List. So as to understand and appreciate the full effect of Entry 11 of the State List, it is imperative to have an over view of Entries 63, 64, 65 and 66 of the Union List. The aforesaid Entries are, accordingly, being extracted hereunder:-

63. The institutions known at the commencement of this Constitution as the Banaras Hindu University, the Aligarh Muslim University and the Delhi University; the University CWP No. 8055 of 2005 Page numbers

established in pursuance of Article 371E; any other institution declared by Parliament by law to be an institution of national importance.

64. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance.

65. Union agencies and institutions for-- (a) professional, vocational or technical training, including the training of police officers; or

(b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime.

66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical education."

It is apparent from the aforesaid Entries, that the subject of education, as well as, the subject of universities, were incorporated in the State List.

Thus, the State Legislatures alone, had the jurisdiction to legislate in respect to the aforesaid subjects. The Joint Agricultural Universities Act was enacted by the Parliament under Article 252 of the Constitution of India.

Article 252 of the Constitution of India is being extracted hereunder:- "252: Power to Parliament to legislate for two or more States by consent and adoption of such legislation by any other state- (1) If it appears to the Legislature of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the State except as CWP No. 8055 of 2005 Page numbers

provided in articles 249 and 250 should be regulated in such State by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted after wards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.

(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State."

Although, the creation of a university is within the domain, scope and purview of the concerned State Legislature, yet the Parliament enacted the Joint Agricultural Universities Act, by following the procedure laid down in Article 252 of the Constitution of India. A perusal of Article 252 of the Constitution of India reveals, that two or more State Legislatures can resolve to authorise Parliament to legislate on an issue on which "...Parliament has no power to make laws...".

4. Before the Joint Agricultural Universities Act was promulgated, a resolution was moved by the Chief Minister of Punjab on 21.4.1969 before the Punjab Legislative Assembly, that the Punjab Agricultural University should be dissolved for setting up of a successor university. The resolution passed by the State of Punjab is being extracted CWP No. 8055 of 2005 Page numbers

hereunder:

"Resolution

1. Official

1. The following Official Resolution was moved on the 21st April, 1969, by the Chief Minister with a few observations:- "Whereas, the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961, is serving the needs of the successor States within the meaning of Section 72 of the Punjab Reorganization Act, 1966;

And whereas, it is intended that provision should be made by law to dissolve the operation of the existing Punjab Agricultural University for the State of Punjab, for vesting the rights and liabilities of the dissolved University in the University to be so set up and for all other matters connected therewith or incidental thereto; And whereas, legislation for the purpose mentioned above is relatable to matters enumerated in entries 11 and 12 of List II in the Seventh Schedule to the Constitution of India with respect to which Parliament has no power to make a law for the State except as provided in Articles 249 and 250 thereof;

Any whereas, it appears to this Assembly to be desirable that such legislation should be undertaken by Parliament; Now, therefore, in pursuance of clause (l) of Article 252 of the Constitution of India, this Assembly hereby CWP No. 8055 of 2005 Page numbers

resolves that Parliament shall by law make provision for the dissolution of the aforesaid Punjab Agricultural University in relation to the State so dissolved in the University to be so set up and for all other matters connected therewith or incidental thereto".

Two members from the Opposition and one member from P.S.P., C.P.I. And S.S.P. took part in the discussion and spoke for 5 minutes, 2 minutes, 2 minutes and 3 minutes respectfully.

This resolution was carried unanimously."

5. Likewise, the Chief Minister of Haryana moved a resolution before the Haryana Legislative Assembly for the dissolution of the existing Punjab Agricultural University for setting up a separate Agricultural University for the State of Haryana. The resolution passed by the State of Haryana is being extracted hereunder:-

"Resolution(Official)

(1) Reg:- The law to dissolve the operation of Punjab Agricultural University in the State of Haryana and for setting up a separate Agricultural University for the State of Haryana. .

Chief Minister (Shri Bansi Lal) : Sir, I beg to move:- "That whereas, the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961 is serving the needs of the successor States within the meaning of section 72 of the Punjab Reorganization Act, 1988;

And whereas, it is intended that provision should be made by law to dissolve the operation of the Punjab Agricultural CWP No. 8055 of 2005 Page numbers

University in the State of Haryana to set up a separate Agricultural University for the State of Haryana for vesting the rights and liabilities of the dissolved University, in the University to be set up and for all other matters connected therewith or incidental thereto;

And whereas, it appears to this Assembly to be desirable that such legislation should be undertaken by Parliament; Now, therefore, in pursuance of clause (l) of Article 252 of the Constitution of India, this Assembly hereby resolves that Parliament shall by law make provisions for the dissolution of the aforesaid Punjab Agricultural University in relation to the State of Haryana, for setting up a separate Agricultural University so dissolved in the University to be so set up and for all other matters connected therewith or incidental thereto".

Mr.Speaker; Motion moved-

That whereas, the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961 is serving the needs of the successor States within the meaning of section 72 of the Punjab Reorganization Act, 1966; And whereas, it is intended that provision should be made by law to dissolve the operation of the Punjab Agricultural University in the State of Haryana to set up a separate Agricultural University for the State of Haryana, for vesting the rights and liabilities of the dissolved University in the University to be set up and for all other matters connected CWP No. 8055 of 2005 Page numbers

therewith or incidental thereto;

And whereas, legislation for the purpose mentioned above is relatable to matters enumerated in entries 11 and 32 of List 11 in the Seventh Schedule to the Constitution of India with respect to which Parliament has no power in make a law for the State except its provided in Articles 249 and 250 thereof; Mr.Speaker

And whereas, it appears to this Assembly to be desirable that such legislation should be undertaken by Parliament; Now, therefore, in pursuance of clause (l) of Article 252 of the Constitution of India, this Assembly hereby resolves that Parliament shall by law make provision of the dissolution of the aforesaid Punjab Agricultural University in relation to the State of Haryana, for setting up a separate Agricultural University for the State of Haryana, for vesting the rights and liabilities of the University so dissolved in the University to be so set up and for all other matters connected therewith or incidental thereto".

Mr.Speaker's Question is........

That whereas, the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961, is serving the needs of the Successor States within the meaning of section 72 of the Punjab Reorganization Act, 1966.

And whereas, it is intended that Provision should be made by law to dissolve the operation of the Punjab Agricultural University in the State of Haryana to set up a separate CWP No. 8055 of 2005 Page numbers

Agricultural University for the State of Haryana for vesting the rights and liabilities of the dissolved University in the University to be set up and for all other matters connected therewith or incidental thereto;

And whereas, legislation for the purpose mentioned above is relatable to matters enumerated in entries 11 and 32 of List 11 in the Seventh Schedule to the Constitution of India with respect to which Parliament has no power to make a law for the State except as provided in Article 249 and 250 thereof; And whereas, it appears to this Assembly to be desirable that such legislation should be undertaken by Parliament.

Now, therefore, in pursuance of clause (l) of Article 252 of the Constitution of India, this Assembly hereby resolved that Parliament shall by law make provision for the dissolution of the aforesaid Punjab Agricultural University in relation to the State of Haryana, for setting up a separate Agricultural University for the State of Haryana, for vesting the rights and liabilities of the University so dissolved in the University to be so set up and for all other matters connected therewith or incidental thereto".

The resolutions, which were adopted by the respective State Legislatures, desired that the authority to legislate on the issue in hand, which vested in the respective State Legislatures under Entries 11 and 32 of the State List, be enacted by the Parliament under Article 252 of the Constitution of India, on their behalf. On the basis of the resolutions passed by the Legislatures of the States of Punjab and Haryana, the Parliament, therefore, enacted the CWP No. 8055 of 2005 Page numbers

Joint Agricultural Universities Act on 2.4.1970, so as to provide for the establishment of two independent Agricultural Universities in place of the Punjab Agricultural University, constituted by the Punjab Agricultural University Act, 1961. Section 45 of the Joint Agricultural Universities Act repealed the Punjab Agricultural University Act, 1961.

6. Consequent upon the reorganisation of the composite State of Punjab, and the promulgation of the Joint Agricultural Universities Act, two separate Universities came into existence, namely, the Haryana Agricultural University at Hissar, and the Punjab Agricultural University at Ludhiana.

The existing colleges and other teaching institutions under the erstwhile Punjab Agricultural Universities Act, 1961, were divided between the aforestated two successor Universities under the mandate of Section 24 of the Joint Agricultural Universities Act. Section 24 of the said Act is being extracted hereunder:-

"24. (1) The following colleges shall be constituent colleges of the Haryana Agricultural University, namely:- (a) the College of Agriculture at Hissar; (b) the College of Veterinary Medicine at Hissar; (c) the College of Animal Sciences at Hissar; (d) the College of Basic Sciences and the Humanities and such other colleges as may be established by the University after the commencement of this Act; and

(e) such Central Government institutions of agricultural research, technical and extension education in the State of Haryana as may desire to be integrated as colleges of the Haryana Agricultural University.

CWP No. 8055 of 2005 Page numbers

(2) The following colleges shall be the constituent colleges of the Punjab Agricultural University namely:- (a) the College of Agriculture at Ludhiana; (b) the College of Agricultural Engineering at Ludhiana; (c) the College of Basic Sciences and the Humanities at Ludhiana;

(d) the College of Home Science at Ludhiana; (e) the College of Veterinary Medicine at Ludhiana; (f) until a University is established in the Union territory of Himachal Pradesh, the Agriculture College at Palampur; (g) such other colleges as may be established by the University after the commencement of this Act; and (h) such Central Government institutions of agricultural research, technical and extension education in the State of Punjab as may desire to be integrated as colleges of the Punjab Agricultural University.

(3)(a) There shall be a Board of Studies for each college of a corresponding University and where there is more than one college in a branch of learning, there may be one Board of Studies for all the colleges in that branch of learning.

(b) The Deans of various colleges shall be the Chairman of the respective Boards of Studies and the Head of Departments of the colleges shall be members thereof.

(c) where there is a Board of studies for more than one college in a branch of learning, the Deans shall act as Chairman of the Board of Studies by rotation according to seniority for a period CWP No. 8055 of 2005 Page numbers

of one year each.

(d) The Vice-Chancellor may nominate to the Board of Studies such other teachers of related subjects or sciences from the same or other colleges, as he may deem fit.

(e) The duties of such Boards of Studies shall be to prescribe syllabi so as to ensure integrated and well-balanced courses of study.

(4) Every college shall comprise such Departments as may be prescribed and each Department shall be assigned such subjects of study as the Academic Council may deem fit.

(5) There shall be a Head of each Department who shall be responsible to the Dean, for resident instruction, to the Director of Research, for research and to Director of Extension Education, for extension education.

(6) The Head of each Department shall be selected by the Vice- Chancellor and appointed by him with the approval of the Board.

(7) The duties, powers and functions of the Heads of Departments shall be such as may be prescribed."

7. It is apparent, that the Agricultural University for Punjab at Ludhiana created by the Joint Agricultural Universities Act, imparted education in the fields of agriculture, as well as, animal husbandry. In this behalf, it would be pertinent to mention, that the College of Basic Sciences and Humanities, at Ludhiana [see Section 24(2)(c) of the Joint Agricultural Universities Act], supports a department of Zoology, imparting education in the specialisation of fisheries and small animals. The College of Veterinary CWP No. 8055 of 2005 Page numbers

Medicine, at Ludhiana [see Section 24(2)(e) of the Joint Agricultural Universities Act], imparts education in the field of animal husbandry.

Curriculum in the other colleges referred to in Section 24 (2) of the Joint Agricultural Universities Act, which were allocated to the successor Agricultural University for Punjab at Ludhiana by the Joint Agricultural Universities Act, were for imparting education predominantly in the field of agriculture, but also in the field of animal sciences.

8. The Department of Animal Husbandry and Dairy, under the Ministry of Agriculture of the Government of India, addressed a communication dated 6.8.1999, to the Secretaries in the Department of Animal Husbandry in all the States and Union Territories, bringing to their notice, the recommendation of the Parliamentary Standing Committee on Agriculture, that there should be a separate University of Animal Sciences in every State. The aforesaid communication dated 6.8.1999, also informed the State governments, that since the subject of Animal Husbandry is incorporated in the State List (of the Seventh Schedule of the Constitution of India), action for implementation of the said recommendation, should be taken by the State governments themselves. Keeping in mind the aforesaid recommendation, the State of Punjab claims to have taken steps, in the direction of establishment of a separate University in the field of Animal Sciences in Punjab, to be called the Guru Angad Dev Veterinary and Animal Sciences University (hereinafter referred to as the Animal Sciences University).

9. For the crystalisation of the object of creating a separate University in the field of Animal Husbandry, a bill was introduced in the Punjab Legislative Assembly in April, 2005. The aforesaid bill was passed CWP No. 8055 of 2005 Page numbers

by the Vidhan Sabha, by enacting the Guru Angad Dev Veterinary and Animal Sciences University Act, 2005 (hereinafter referred to as the Animal Sciences University Act). The aforesaid enactment was sent to the President of India for his assent. Suffice it to state, that the President of India granted his assent to the aforesaid enactment, whereupon, the Animal Sciences University Act came into force w.e.f. 9.8.2005.

Constitutional Validity of the Animal Sciences University Act enacted by the Punjab Legislative Assembly.

10. The primary contention advanced on behalf of the petitioners is, that the Animal Sciences University Act could have only been enacted under the frame-work of the Constitution of India, by the Parliament. It is, therefore, the vehement contention of the learned counsel for the petitioners, that the enactment of the Animal Sciences University Act by the Punjab Legislative Assembly, is unconstitutional. The aforesaid submission of the learned counsel for the petitioners emerges from Article 252 of the Constitution of India. Under Article 252 of the Constitution of India, the Parliament may be authorised by two or more State legislatures to enact a law on a subject in respect whereof, Parliament has no authority to legislate.

According to the learned counsel for the petitioners, at the time of promulgation of the Joint Agricultural Universities Act, the legislatures of the States of Punjab and Haryana had surrendered/relinquished their power/authority to legislate on the subject, under reference, in favour of the Parliament. The two States had expressly authorised the Parliament to legislate on the subject matter of the Joint Agricultural Universities Act, on their behalf. Having once authorised the Parliament to legislate on their behalf, and the Parliament having thereupon enacted the Joint Agricultural CWP No. 8055 of 2005 Page numbers

University Act, it is submitted, that any amendment/repeal of the legislative enactment framed by the Parliament (on behalf of the State Legislatures), had to mandatorily conform with the provisions of Article 252(2) of the Constitution of India. Emphasising on different phrases, contained in Article 252(2) of the Constitution of India, learned counsel first highlighted that the words, "Any Act so passed by Parliament", conveys that clause (2) of Article 252 would be applicable only to legislation framed by Parliament under Article 252(1). It is submitted, that clause (2) of Article 252 lays down the procedure to amend/repeal a legislative enactment made by Parliament under Article 252(1). Learned counsel for the petitioners, in order to substantiate his aforesaid contention, invited our attention to the words "...by an Act of Parliament passed or adopted in like manner..." contained in clause (2) of Article 252. On the basis of the aforesaid words, it is submitted, that a piece of legislation enacted by Parliament under Article 252(1) of the Constitution of India, can only be amended/repealed by Parliament. It is also the contention of the learned counsel for the petitioners, that clause (2) of Article 252 of the Constitution of India, while emphasising the issue noticed above, reaffirms the same with the words "...but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State." In view of the above, it is submitted, that the State Legislatures on whose behalf the Parliament had framed a legislative enactment on an earlier occasion, is expressly restrained/barred from amending/repealing the said legislation, framed by the Parliament under Article 252(1). Cumulatively, on the basis of the submissions noticed above, it is the contention of the learned counsel for the petitioners, that Article 252(2) of the Constitution of India, mandates, not CWP No. 8055 of 2005 Page numbers

only that the Parliament shall amend or repeal an enactment earlier framed by it under Article 252(1) of the Constitution of India, but also, that the State Legislatures on whose behalf such legislation is framed cannot amend/repeal, any such law made by Parliament.

11. On account of the fact, that the Joint Agricultural Universities Act was promulgated by Parliament under Article 252(1) of the Constitution of India, it is the submission of the learned counsel for the petitioners, that only the Parliament could have amended/repealed the Joint Agricultural Universities Act, under Article 252(2) of the Constitution of India. It is also the contention of the learned counsel for the petitioners, that the Legislature of the State of Punjab, on whose asking, and at whose behest, Parliament had enacted the Joint Agricultural Universities Act, cannot amend/repeal the provisions of the said Act. It is, therefore, sought to be concluded, that the Animal Sciences University Act is ultra-vires of the provisions of the Constitution of India, since it had been framed by the Punjab Legislative Assembly in violation of the mandate of Article 252(2).

12. As against the aforesaid contention of the learned counsel for the petitioners, it is submitted on behalf of the respondents, that the Animal Sciences University Act had been enacted by the Punjab Legislative Assembly under Article 254 of the Constitution of India. Article 254 of the Constitution of India is being extracted hereunder:- "254. Inconsistency between laws made by Parliament and laws made by the Legislatures of a State:- (1) if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with CWP No. 8055 of 2005 Page numbers

respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." It is the submission of the learned counsel for the respondents, that after the framing of the Joint Agricultural Universities Act by the Parliament, the Seventh Schedule of the Constitution of India was amended by the Constitution (Forty-second Amendment) Act, 1976. By virtue of the aforesaid amendment, the entry pertaining to the subject of the present legislation, which was earlier a part and parcel of the State List (as Entry 11 of the State List-extracted above) was brought into the Concurrent List (as Entry 25 of the Concurrent List). Entry 25 of the Concurrent List, after the aforesaid amendment which took effect on 3.1.1977, commenced to read as CWP No. 8055 of 2005 Page numbers

under:-

"25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."

It is, therefore asserted, that an issue, which was not earlier in the domain of Parliament, but was exclusively in the domain of State Legislatures, was brought under the joint domain of the Parliament, and the State Legislative Assemblies, from 3.1.1977 onwards. According to the learned counsel for the respondents, the regulating provision for the subjects enumerated in the Concurrent List, is Article 246 read with Article 254 of the Constitution of India. It is, therefore emphatically asserted, that the Animal Sciences University Act, ought to have been, and was actually, framed in accordance with the procedure laid down under Article 254(2) of the Constitution of India. Since the Parliament had legislated on the issue earlier while abiding by the procedure laid down under Article 252(1) of the Constitution of India, such a legislation at the hands of the Punjab Legislative Assembly, required conformity with the procedure prescribed by Article 254(2) of the Constitution of India, namely, it was imperative for the Punjab Legislative Assembly to obtain the assent of the President of India. It is asserted in this behalf, that the assent of the President of India had factually been sought, and that the same was granted by the President of India.

13. In order to controvert the aforesaid contention of the learned counsel for the respondents, i.e., in order to show that the provisions of Article 254 of the Constitution of India, are inapplicable to the controversy in hand, learned counsel for the petitioners vehemently contends, that CWP No. 8055 of 2005 Page numbers

Article 254 of the Constitution of India, is applicable only in cases of repugnancy of legislative enactments made by the Parliament, on the one hand, and State Legislatures, on the other, on subjects contained in the Concurrent List. On Account of the fact, that the Joint Agricultural Universities Act was framed by the Parliament in respect of a subject matter falling under the State List, and the Animal Sciences University Act (even if the submission of the learned counsel for the respondents, was to be accepted, for argument sake), still Article 254 of the Constitution of India would be unenforceable in view of the glaring conflicts/repugnancies, in the two pieces of legislation. In order to support his aforesaid contention, learned counsel for the petitioners has invited our attention, to the decision rendered by the Supreme Court in Deep Chand and others Vs. The State of Uttar Pradesh and others, AIR 1959 Supreme Court 648, wherein it was held as under:-

"Article 254 (1) lays down a general rule. Clause (2) is an exception to that Article and the proviso qualifies the exception. If there is repugnancy between the law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, the law made by Parliament shall prevail to the extent of the repugnancy and the law made by the State shall, to the extent of such repugnancy, be void. Under cl. (2), if the Legislature of a State makes a provision repugnant to the provisions of the law made by Parliament, it would prevail if the legislation of the State received the assent of the President. Even in such a case, Parliament may subsequently either amend, vary or repeal the CWP No. 8055 of 2005 Page numbers

law made by the Legislature of a State. In the present case, the Uttar Pradesh Legislative Assembly, after obtaining the assent of the President on April 23, 1955 passed the U.P. Act.

Parliament subsequently passed the Motor Vehicles (Amendment) Act (100 of 1956). Therefore, both the clauses of Art. 254 would apply to the situation. The first question is whether the provisions of the Union Law i.e., the Motor Vehicles Amendment Act (100 of 1956), are repugnant to the provisions of the U.P. Act and if so to what extent..." xx xx xx xx xx xx

"Repugnancy between two statutes may thus be ascertained on the basis of the following three principles: (1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and

(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field." Reliance for the same purpose has also been placed on the decision rendered by the Supreme Court in T. Barai Vs. Henry Ah Hoe and another, AIR 1983 Supreme Court 150, wherein, with reference to Article 254 of the Constitution of India, the Apex Court has observed as under:- "...Article 254 of the Constitution of India makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated CWP No. 8055 of 2005 Page numbers

in the Concurrent List, and secondly, for resolving such conflict. Article 254 (1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in Clause (1), Clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to Clause (2). The proviso to Article 254 (2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either directly, or CWP No. 8055 of 2005 Page numbers

by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254 (1)..."

Reliance for the same purpose was also placed on the decision rendered by the Supreme Court in M/s Hoechst Pharmaceuticals Ltd. and another Vs.

State of Bihar and others, AIR 1983 Supreme Court 1019, wherein, the legal position was reiterated by the Apex Court.

14. On the basis of the judgements referred to hereinabove, it is contended on behalf of the petitioners, that Article 254 of the Constitution of India is applicable to resolve inconsistencies/repugnancies between legislative enactments made by the Parliament on the one hand, and the State Legislatures on the other, subject to an overriding condition, that the legislations have been made on a subject enumerated in the Concurrent List.

Since the Joint Agricultural Universities Act, was enacted by the Parliament, on a subject which was contained in the State List, whereas, the Animal Sciences University Act had been framed, in terms of the pleadings CWP No. 8055 of 2005 Page numbers

filed on behalf of the respondents, as well as, the submissions advanced during the course of hearing, in respect of a subject matter contained in the Concurrent List, Article 254 of the Constitution of India, it is submitted, would be inapplicable to the situation in hand.

15. It is also the contention of the learned counsel for the petitioners, that the state of affairs existing at the time when a repealing/amending provision is enacted, are irrelevant where the parent legislation has been enacted by Parliament, under Article 252(1) of the Constitution of India. According to the learned counsel for the petitioners, the only relevant consideration for the applicability of Article 252(2) of the Constitution of India, is the fact, that the legislation in question pertains to an amendment/repeal, of an enactment made by the Parliament under Article 252(1) of the Constitution of India. Accordingly, as per the petitioners' version, what is to be seen is, whether, when the parent legislation, repeal/amendment whereof is a subject matter of issue, was enacted by Parliament in exercise of the power flowing from Article 252(1) of the Constitution of India? If the answer to the aforesaid query is in the affirmative, according to the learned counsel for the petitioners, the amendment/repeal thereof, has to be at the hands of Parliament alone, and the State Legislatures have no power, whatsoever, to legislate in respect thereof.

16. In response to the aforesaid contention advanced on behalf of the petitioners, it is canvassed on behalf of the respondents, that the relevant date to determine the issue of jurisdiction of the legislative authority/body, competent to frame a law on a particular subject, is the date on which the proposed legislation is enacted. In this behalf, it is submitted, that if the CWP No. 8055 of 2005 Page numbers

subject matter of the enactment falls in the Union List or the Concurrent List, then Article 252 of the Constitution of India is inapplicable.

17. It is also the case of the respondents, that reference will have to be made to the Seventh Schedule of the Constitution of India, as and when, a legislative body decides to enact a piece of legislation, in order to determine, the jurisdiction of the legislative authority to legislate on a concerned subject. In this behalf, our pointed attention was again invited to amendment of the Seventh Schedule of the Constitution of India, by the Constitution (Forty-second Amendment) Act, 1976, whereby the subject on which the Animal Sciences University Act came to be enacted, was placed in the Concurrent List (by way of Entry 25 of the Concurrent List extracted above). There is no doubt about this factual position, and it is not disputed that Entry 11 of the State List, which hithertofore vested authority to legislate on the same subject with the State Legislative Assembly, was omitted with effect from 3.1.1977, on account of the aforesaid amendment.

It is, therefore submitted, that the subject matter in hand cannot be described as one in respect of which Parliament had no authority to legislate, when the the Animal Sciences University Act was promulgated. As such, it is contended, that as soon as the subject matter, under reference, was shifted from the State List to Concurrent List, Article 252 of the Constitution of India, became irrelevant for purposes of determining legislative competence.

18. In addition to the aforesaid contention, learned counsel for the respondents submitted, that for an amendment/repeal of a legislative enactment framed under Article 252(1) of the Constitution of India, clause (2) thereof, can be invoked only in cases where the concerned State CWP No. 8055 of 2005 Page numbers

legislature(s), invoke(s) the authority of Parliament, to make such an amendment/repeal, on its/their behalf. To substantiate the aforesaid contention, learned counsel for the respondents have invited our attention to the words "...in the like manner..." in clause (2) of Article 252 of the Constitution of India. In sum and substance, the contention of the learned counsel for the respondents is, that the amendment/repeal envisaged under Article 252(2) of the Constitution of India, proceeds on the condition, that the procedure envisaged under Article 252(1) of the Constitution of India has again to be adhered to. According to the learned counsel for the respondents, since Article 252(1) of the Constitution of India requires a joint request at the behest of the State Legislature(s) for Parliament to legislate on its/their behalf, in view of the words "...in the like manner..." used in clause (2) of Article 252 of the Constitution of India, the same procedure [as was invoked to frame the existing law under Article 252(1)] must again be followed, before the Parliament amends/repeals such law. In other words, the Parliament must again be called upon by the legislatures of the concerned State(s), to amend/repeal the existing law. Explaining the aforesaid proposition, learned counsel for the respondents contends, that Article 252 of the Constitution of India conceives of the transfer of legislative sovereignty, on a subject matter contained in the State List, and not on a subject matter contained in the Concurrent List, as Parliament already has the authority to legislate on the subject enumerated therein.

19. Learned counsel for the respondents then placed reliance on the judgement rendered by the Supreme Court in Union of India and others Vs.

Valluri Basavaiah Chouwdhary and others, AIR 1979 Supreme Court 1415, wherefrom, the Court's attention has been invited to the following CWP No. 8055 of 2005 Page numbers

observations made by the Supreme Court, wherein the importance, as well as, limits of the transfer of legislative sovereignty, has been highlighted, after making reference to Section 103 of the Government of India Act, 1935, which reads as under:

"'If it appears to the Legislatures of two or more Provinces to be desirable that any of the matters enumerated in the Provincial Legislative List should be regulated in those Provinces by Act of the Federal Legislature, and if resolutions to that effect are passed by all the Chambers of those Provincial Legislatures, it shall be lawful for the Federal Legislature to pass an Act for regulating that matter accordingly but any Act so passed may, as respects any Province to which it applied, be amended or repealed by an Act of the Legislature of that Province."

"It is submitted that when an Act passed by the Federal Legislature in respect of any of the matters enumerated in the Provincial Legislative List based on the resolution of the Legislatures of two or more Provinces, could be amended or repealed by an Act of the Legislature or that Province, the Governor had necessarily to be consulted at the stage of introduction of a resolution before the Legislature of that Province. There is a fallacy in the argument. The second part of S.103 of the Government of India Act is replaced by Art.

252 (2) of the Constitution which takes away the power of repeal from the State Legislature and entrusts it to the Parliament. When his attention was drawn to the fact that cl.

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(2) of the Act. 252 of the Constitution differs from the provisions of s. 103 of the Government of India Act, 1935, the learned counsel did not pursue the point any further. Under Art. 252 (2) an amending or repealing Bill must go through the same procedure as prescribed for the original Bill i.e., by the process laid down in cl. (1) of Art. 252. The surrender or abdication of the Legislative power of the State Legislature places the matter entirely in the hands of the Parliament." In order to further support his aforesaid contention, learned counsel for the respondents referred to 'Indian Constitutional Law' by M.P. Jain (5th Edition

of 2003, at page 647), wherein the author, while referring to Article 252 of the Constitution of India, relying on certain precedents, expressed his opinion in the following manner:-

"The Parliamentary law passed under Article 252(1) may be amended or repealed by an Act of Parliament passed or adopted in like manner and not by the State Legislature. The Speaker of the Lok Sabha has held that the previous permission of the States would be necessary to amend the Central Act because, according to Article 252(2), amending legislation was to be passed in 'like manner' as the original legislation which meant that authorisation from the States for the amendment was also necessary. The Speaker overruled the Government's view that once the State Legislatures authorised Parliament to legislate on a subject, and a law was passed by Parliament, it was authorised to amend the law without seeking States' authority again. The Speaker held that the jurisdiction vested in CWP No. 8055 of 2005 Page numbers

Parliament expired when once the Act was passed in pursuance of the State authorisation, and fresh consent of the States would be necessary for amending the original Act. This means that if the State Legislatures do not give the necessary consent to amend or repeal the earlier Act in the same manner laid down in clause (1), neither Parliament nor the State Legislatures have the power to amend or repeal the Act under cl.(2).

When Parliament passes an Act under Art. 252, it would not be categorised as the State Act. By passing resolutions, the States surrender their legislative power to Parliament. Parliament does not act as a delegate of the States because the initial enacting of the Act as well as its subsequent amending or repealing rests with Parliament alone and not with the States.

Article 252 denotes flexibility woven into the fabric of the Indian federalism. The scheme of distribution of powers under the Indian Constitution become somewhat less rigid because of Article 252. There is, however, one flaw in the phraseology of Article 252(2). As it stands now, it means that after Parliament has passed the law under Article 252(1), it can amend the law in like manner. This means that the States must again pass resolutions authorising Parliament to amend the law. If the State Legislatures fail to pass such resolutions, Parliament cannot amend the law."

Based on the aforesaid opinion, it is submitted, that before Parliament can legislate on an issue, in furtherance of the power vested in it under Article CWP No. 8055 of 2005 Page numbers

252(2) of the Constitution of India, only if the subject matter of legislation is contained in the State List, furthermore, a request must be made by the State Legislature to the Parliament to amend/repeal the existing law by way of a formal resolution, in the same manner, by which State legislature had required the Parliament to frame the earlier enactment under Article 252(1) of the Constitution of India.

20. Cumulatively, on the basis of the aforesaid submissions, learned counsel for the respondents asserted, that there was no occasion for the Punjab Legislative Assembly to move a resolution, at the time of incorporation of the Animal Sciences University Act, delegating its authority to amend/repeal the Joint Agricultural Universities Act, as the subject of legislation had ceased to be in the exclusive domain of the State Legislatures, by virtue of the Constitution (Forty-second Amendment) Act,

1976. At the time of framing the Animal Sciences University Act, according to the learned counsel for the respondents, it was not even open to the Punjab Legislative Assembly to move a resolution, requiring the Parliament to amend/repeal the Joint Agricultural Universities Act for the same reason.

21. All the contentions advanced on behalf of the respondents, were sought to be repelled on behalf of the petitioners by asserting, that the transfer of the subjects from Entry 11 of the State List, to Entry 25 of the Concurrent List by the Constitution (Forty-second Amendment) Act, 1976, would make no difference, whatsoever, as the authority to legislate on the issue in hand continued to be vested in the State Legislatures, before and after, the Constitution (Forty-second Amendment) Act, 1976. Learned counsel for the petitioners, in this behalf, also reiterated his contention noticed in paragraph 10 above.

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22. One further submission, was advanced by the learned counsel for the petitioners, to controvert the assertion made on behalf of the respondents in respect of Article 252 of the Constitution of India i.e., that Article 252 of the Constitution of India constitutes a complete code, and that the same, is not only exclusive but is also exhaustive, on the subject matter which it deals with, and is also not subject to any other provision of the Constitution of India. Learned counsel for the petitioners supported his aforesaid contention by referring to Articles 249 and 250 of the Constitution of India. In connection with Article 249 , it is submitted, that although, a subject may be included in the State List, yet in the national interest, Parliament may legislate on the said subject under Article 249 of the Constitution of India. Likewise, the Parliament can legislate on a matter contained in the State List during the proclamation of emergency under Article 250. Article 252 of the Constitution of India, according to learned counsel for the petitioners, is the third exception to the general rule laid down in Article 246, wherein Parliament has no authority to legislate on a subject included in the State List. Each of these Articles, according to learned counsel for the petitioners, are a complete code by themselves, and legislation at the hands of Parliament thereunder, is not subject to any other provision of the Constitution of India. In so far as, the present controversy is concerned, it is submitted, that once two or more State Legislatures had passed a resolution, authorising Parliament to frame a law in respect of a subject contained in the State List on their behalf, and in furtherance of the aforesaid resolution, the Parliament had actually framed a law on behalf of the said State Legislatures, an amendment/repeal of the said law, enacted by Parliament, rested in the hands of Parliament alone.

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23. In our view, the solution to the riddle to the controversy lies in the interpretation of Article 254 (2) of the Constitution of India. If it can be concluded, that the power to frame the Animal Sciences University Act flows from Article 254(2), then the submissions advanced on behalf of the respondents will have to be accepted. If not, it will have to be concluded, that the Animal Sciences University Act, could have only been framed by Parliament under Article 252(2). In the latter eventuality, the Animal Sciences University Act will have to be declared as ultra-vires the Constitution of India.

(a) In our endeavour to solve the riddle, we will first attempt to interpret some relevant words and phrases which constitute Article 254(2).

Meaning must in this behalf, be assigned to the words "...of an earlier law made by Parliament, or an existing enactment with respect to that matter...".

A closer examination of the aforesaid words reveals, that the same deal with two separate and distinct situations. The first situation emerges from the words, "...of an earlier law made by Parliament...". The second situation emerges from the words, "...or an existing enactment with respect to that matter...". Since the primary objective of Article 254 of the Constitution of India, is to resolve inconsistencies/repugnancies between laws made by State Legislatures on the one hand, and laws made by Parliament on the other, we are of the opinion, that the two situations, referred to hereinabove, are in respect of laws made by Parliament, as the words referred to hereinabove follow the words "if any provision of law made by the Legislature of a State is repugnant to any provision...".

(b) Having arrived at the aforesaid conclusion, we are of the view, that the first situation envisaged by the words, "...of an earlier law CWP No. 8055 of 2005 Page numbers

made by Parliament...", relates to a law made by Parliament, on a subject contained in the Concurrent List. This conclusion of ours, is primarily based on the fact, that while making reference to the legislation conceived of at the hands of the State Legislature under Article 254(2) of the Constitution of India, reference has been made to enactment of law from a subject contained in the Concurrent List, and also because, Article 254 of the Constitution of India, as already noticed above, is primarily aimed at in resolving inconsistencies/repugnancies between laws made by State Legislatures on the one hand, and laws made by Parliament on the other, in respect of subjects falling in Concurrent List.

(c) It is in the aforesaid situation, that meaning and effect has to be given to the second set of words, namely, "...or an existing enactment with respect to that matter...". Since it has already been concluded by us hereinabove, that the instant set of words, also pertains to law made by Parliament, we are further of the view, that the instant issue will govern an inconsistency/repugnancy emerging from an existing law framed by Parliament. This obviously would include law, which was framed by Parliament at a time when the same was not in the Concurrent List. By necessary implication, it could be a piece of legislation framed by Parliament, which at the time of its framing, was in the Union List, but was subsequently shifted to the Concurrent List. It could also pertain to a situation akin to the one in hand, namely, an enactment made by Parliament, which was earlier in the State List, but was subsequently shifted to the Concurrent List. But for giving the second set of words, the meaning assigned by us hereinabove, the same would be repetitive, and in that sense, redundant. Since, it is not possible for us to conclude, that the second set of CWP No. 8055 of 2005 Page numbers

words, referred to above, were incorporated in Article 254(2) of the Constitution of India unmindfully, we have assigned the only possible meaning to the said words.

In view of the above, it has to be concluded, that the words "...or an existing enactment in respect to that matter..." in Article 254(2) of the Constitution of India, refer to an existing law, made by Parliament, while the subject thereof was contained, either in the Union List or the State List, but which (the subject) at the time of legislation, had shifted to the Concurrent List. Accordingly, it is imperative for us to hold, that it was within the jurisdiction of the Punjab Legislative Assembly to frame the Animal Sciences University Act, in exercise of the power vested in it under Article 254(2) of the Constitution of India, even though, Parliament had already framed a legislation on the subject under reference, and even though, certain provisions of the Animal Sciences University Act are inconsistent/repugnant to the provisions of the said legislation i.e. the Joint Agricultural Universities Act.

24. In arriving at our conclusion in the foregoing paragraph, we have not dealt with the rival contentions advanced by the learned counsel for the parties. We shall, therefore, deal with the rival contentions noticed hereinabove, hereunder.

25. The primary contention on behalf of the petitioners was, that the Animal Sciences University Act was violative of the mandatory provisions of Article 252(2) of the Constitution of India. In so far as, Article 252 is concerned, the same pertains to a situation wherein Parliament is authorised by two or more State Legislatures to frame a piece of legislation on their behalf, on subject "...matters with respect to which CWP No. 8055 of 2005 Page numbers

Parliament has no power to make laws...". At the time of enactment of the Animal Sciences University Act, the relevant subject matter of legislation, was contained in Entry 25 of the Concurrent List, and at that juncture, the super-riding condition , that it must be a matter with respect to which Parliament has no power to make laws, incorporated in Article 252 of the Constitution of India, did not exist. It is essential for us to acknowledge, that while examining Article 252(2) of the Constitution of India, by itself, at first blush, we had tentatively entirely agreed with the contention advanced on behalf of the petitioners, that a law framed by Parliament under Article 252(1) of the Constitution of India could be amended/repealed by Parliament alone under Article 252(2), and it was in the aforesaid view of the matter, that an interim order was passed on 29.8.2005, staying the operation of the Animal Sciences University Act. Now, on a closer examination of Article 254(2) of the Constitution of India, and on its harmonious construction with Article 252 of the Constitution of India, we are satisfied, that the reading of the two provisions in conjunction with one another, is possible only if the instant conclusion, as we have drawn above, is recorded, failing which, it would not be possible to give meaning and effect to the words, "...or an existing enactment with respect to that matter..." used in Article 252(2) of the Constitution of India.

26. "Time" of framing an enactment, is vital for ascertaining the competence of the legislation to enact a law on a subject, according to the learned counsel for the respondents. Whereas, it was the contention of the learned counsel for the petitioners, that in the event of Parliament having legislated on an issue at the behest of two or more State Legislatures under Article 252(1) of the Constitution of India, no amendment/repeal to law CWP No. 8055 of 2005 Page numbers

enacted by Parliament, could be made at the hands of the State Legislature irrespective of the "time" when it was proposed to amend/repeal the parent legislation, enacted under Article 252(1) of the Constitution of India. In other words, according to the learned counsel for the petitioners, the time of enactment of the subsequent legislation under Article 252(2) is irrelevant.

For the same reasons, as have been recorded by us in paragraph 23 above, it is not possible for us to accept the contention of the learned counsel for the petitioners. In our considered view, Article 254(2) of the Constitution of India vests authority with the State Legislature to enact a law even in respect of "...an existing enactment with respect to that matter...", on which, Parliament had earlier framed a law (as has been concluded by us in paragraph 23 above) as such, this contention on behalf of the petitioners cannot be accepted by us.

27. It was the vehement contention of the learned counsel for the petitioners, that Article 252 of the Constitution of India is a complete code, amendable to no exceptions. Reference had been made by learned counsel for the petitioners to Articles 249 and 250, which also authorise Parliament, as a matter of an exception, to legislate on subjects contained in the State List. Before effectively dealing with the aforesaid contention of the learned counsel for the petitioners, it is essential to have birds eye view of the legislative scheme envisaged under Chapter I of Part XI of the Constitution of India. We have, accordingly, briefly summarised the same as under: (a) Article 246 of the Constitution of India vests exclusive powers to make law with the Parliament in respect of matters contained in the Union List. Exclusive power is likewise vested in the State Legislatures to make laws with respect to matters contained in State List. In so far as, CWP No. 8055 of 2005 Page numbers

the Concurrent List is concerned, Article 246 of the Constitution of India authorises the Parliament, as well as, the State Legislatures to make laws in respect of matters contained therein.

(b) Article 249 of the Constitution of India empowers Parliament to legislate on a subject contained in the State List, if a State Legislature declares by resolution (supported by not less than two-thirds of the members present and voting) that it is necessary and expedient in national interest to do so. The power of parliament under Article 249 of the Constitution of India, extends so long as the resolution remains in force, but not exceeding one year.

(c) Article 250 of the Constitution of India vests Parliament with the authority to legislate on a matter contained in the State Lis, while a proclamation of emergency in force.

(d) Article 251 of the Constitution of India devices a mechanism to resolve inconsistencies between the laws made by the Parliament on a particular subject in the State List under Articles 249 and 250 of the Constitution of India, and laws made by State Legislatures on the same subject, with the clear mandate, that the law made by the Parliament would prevail over the law made by State Legislatures, to the extent of the repugnancy/inconsistency.

(e) Article 252 of the Constitution of India enables Parliament to enact laws in respect of matters which are not within the domain of the Parliament, namely, in respect of matters contained in the State List, if the Legislatures of two or more States, by resolution, authorise the Parliament to do so on their behalf. Article 252 of the Constitution of India further provides, that such a legislation at the hands of the Parliament can be CWP No. 8055 of 2005 Page numbers

amended/repealed by Parliament alone, and further, that the same cannot be amended/repealed by the State Legislatures concerned.

(f) Article 253 of the Constitution of India enables Parliament to make laws for implementing treaties, agreements, conventions entered into with a foreign country, or to enforce the decisions taken at an international conference, irrespective of the distribution of the subjects in the provisions of the Constitution of India.

(g) Article 254 of the Constitution of India provides for the resolution of inconsistencies between laws made by Parliament and laws made by the Legislatures of State.

Ordinarily, Schedules, Annexures, Appendixes etc., attached to a legislative enactment are treated to be sub-servient to the main provisions contained in the enactment. This cannot be stated to be so in respect of the Seventh Schedule attached to the Constitution of India. The legislative scheme contained in Chapter I of Part XI of the Constitution of India reveals, that all the Articles contained therein, are regulated and operative, in respect of subjects contained in the three Lists of the Seventh Schedule of the Constitution of India. In fact, it is the placement of the subject in a particular List, which would trigger the operation of a particular Article, contained in Chapter I of Part XI of the Constitution of India. In that sense, the legislative scheme places the Seventh Schedule of the Constitution of India at an equal pedestal, if not at a higher one as the provisions of the Articles contained in Chapter I of Part XI of the Constitution of India. It is, therefore, not possible to examine the provisions of the Articles, and contents of the three Lists in the Seventh Schedule of the Constitution of India, as one having over-riding effect over the other. Accordingly, while CWP No. 8055 of 2005 Page numbers

interpreting the legislative scheme envisaged by the Constitution of India, to which the present controversy relates, it would be a fallacy not to give adequate expression to the deletion of Entry 11 of the State List through the Constitution (Forty-second Amendment) Act, 1976, whereby, the deleted Entry was included and added to the existing Entry 25 of the Concurrent List. For the amendment of the Constitution of India, a special procedure has been envisaged under Article 368 of the Constitution of India. It would be improper to over-look an amendment of the Constitution of India, whereby a subject matter, has been removed from the State List, and included in the Concurrent List. It would likewise be improper not to give effect to the intent of the Parliament in making the said amendment. Our interpretation and examination of Article 254(2) of the Constitution of India, also gives due effect to the Constitution (Forty-second Amendment) Act, 1976. Examined in the legislative scheme, expressed hereinabove, it is not possible for us to accept the contention of the learned counsel for the petitioners, that Article 252 of the Constitution of India is a complete code, without any exception.

28. In order to summarise his contention, learned counsel for the petitioners submitted, that the issue in hand, as he desired to project it, was adjudicated upon by a Full Bench of the Andhra Pradesh High Court in Tumati Rangaya and others Vs. State of Andhra Pradesh and others, AIR 1978 Andhra Pradesh 106, wherein the Court held as under:- "If Art. 254 does not apply, we must look to Art. 252 to resolve the problem, for we cannot assume a lacuna in the Constitution.

In fact, the language of the Article, 'any act so passed shall apply to such States' is preemptory enough to suggest that the CWP No. 8055 of 2005 Page numbers

Act so passed shall prevail over any other State law. The position is further clarified by the 2nd clause of Art.252 which

bars the amendment or repeal of the Act by any Act of a State Legislature. Even Parliament is not empowered to amend or repeal the Act except after following, again, the procedure prescribed by Art. 252 (1). Thus a law made by Parliament pursuant to the power surrendered to it by the Legislatures of two or more States holds a very special position under the Constitution and must be held to prevail over any other State law. The matter may be looked at from another angle. The law having been made pursuant to the authority given by the Legislatures of States may be treated as if it is a law made by a State Legislature. If so, it must be held to repeal by implication whatever State law prescribed it to the extent of the conflicting provisions. There can, of course, be no later State law containing provisions repugnant to it because of the bar in Art.

252 (2). We, therefore, hold that a law made by Parliament pursuant to the power surrendered to it under Art. 252 prevails over a State law and the provisions of a State law to the extent that they conflict with the Central law are void." Since we have already held, that Article 254(2) of the Constitution of India authorises the Punjab Legislative Assembly to legislate on the subject of the Animal Sciences University Act, nothing further needs to be stated on the aforesaid submission.

29. It was vehemently contended on behalf of the petitioners, that as per the mandate of Article 254 of the Constitution of India, by and large, CWP No. 8055 of 2005 Page numbers

in case of an inconsistency/repugnancy between the law framed by Parliament, on the one hand, and the State Legislature, on the other, the law framed by Parliament has an over-riding effect. It is then asserted, by the learned counsel for the petitioners, that the Animal Sciences University Act, incorporates various provisions, which have implications of amendment/repeal of the Joint Agricultural Universities Act, as such, the Animal Sciences University Act, envisages various inconsistencies/repugnancies, when examined in the background of the provisions contained in the Joint Agricultural Universities Act. All such inconsistencies/repugnancies, according to learned counsel, would be redundant and inoperative, on account of the over-riding effect bestowed on the law made by Parliament. In so far as, the instant contention of the learned counsel for the petitioners is concerned, it needs to be asserted, that it was acknowledged on behalf the respondents, that there are indeed inconsistencies/discrepancies between the two pieces of legislation, namely, the Joint Agricultural Universities Act and the Animal Sciences University Act. It is, however, stated that the aforesaid inconsistencies are of no consequence in view of the liberty granted to State Legislatives under Article 254 (2) of the Constitution of India, authorising them to legislate on matters in respect of an existing law made by Parliament, subject to the condition, that the proposed enactment has received the assent of the President of India. In such a circumstance, law enacted by the State Legislative Assembly, with the assent of the President of India, even if it has inconsistencies/repugnancies viz. Legislation at the hands of Parliament, is to prevail in the concerned State. It is, therefore clear, that a legislative enactment promulgated by a State Legislative Assembly, on a subject CWP No. 8055 of 2005 Page numbers

contained in the Concurrent List, shall prevail in the State concerned, despite its inconsistencies/discrepancies with the existing law framed by Parliament, on receipt of assent by the President of India. This conclusion of ours finds support from the decisions rendered by the Supreme Court in Deep Chand's case, T. Barai's case and M/s. Hoechst Pharmaceuticals Ltd.'s case (supra), relevant extracts whereof have already been reproduced in paragraph 13 hereinabove. Since it is acknowledged, that the assent of the President of India, was sought and granted, in so far as the Animal Sciences University Act, we are of the view, that none of the provisions of the Animal Sciences University Act will be inoperative, on account of certain inconsistencies/repugnancies with the provisions of the Joint Agricultural Universities Act. Thus viewed, the instant contention of the learned counsel for the petitioners is also not acceptable in law.

30. It was vehemently canvassed on behalf of the learned counsel for the respondents, that any amendment/repeal of an existing law framed by Parliament under Article 252(1) of the Constitution of India, could have only been made at the behest of one of the concerned State Legislatures by following the same procedure, which had been followed at the time when Parliament enacted the existing law. This submission, in our view, does not fall in the mouth of the respondents, specially on account of the fact, that it has been the vehement contention on behalf of the respondents (which we have incidentally upheld), that Article 252 of the Constitution of India is inapplicable in so far as the Animal Sciences University Act is concerned.

We, therefore, do not wish to express any view on the instant submission.

31. In view of the above, it is not possible for us to accept, that the Animal Sciences University Act could have only been enacted by CWP No. 8055 of 2005 Page numbers

Parliament under Article 252(2) of the Constitution of India. We are satisfied, that the Punjab Legislative Assembly was fully competent to enact the Animal Sciences University Act under Article 254(2) of the Constitution of India, after obtaining the assent of the President of India.

Is Parliament alone competent to make an enactment for the incorporation and establishment of a University?

32. The second contention of the learned counsel for the petitioners is, that it is Parliament alone which has the authority to legislate and make an enactment for the incorporation and establishment of a University. This contention of the learned counsel for the petitioners is based on the decision rendered by the Supreme Court in Professor Yashpal and another Vs. State of Chhatisgarh and others, JT 2005(2) SC 165. Learned counsel for the petitioners, in order to substantiate his aforesaid contention, invited our attention to the decisions rendered by the Apex Court in Gujrat University Vs. Shri Krishna, AIR 1963 SC 703, Kerala State Electricity Board Vs.

Indian Aluminium Co., 1976 (1) SCC 466, Osmania University Teachers Association Vs. State of Andhra Pradesh, JT 1987 (3) SC 424, State of Tamil Nadu and another Vs. Adhiyaman Educational and Research Institute, 1995 (4) SC 136 and Dr. Preeti Srivastava and another Vs. State of M.P.

and others, JT 1999 (5) SC 498, so as to assert, that Entries 63 to 66, contained in the Union List of the Seventh Schedule of the Constitution of India, vests authority in Parliament alone, to legislate on the subjects contained therein. In so far as, the authority vested in the State Legislatures, contained in Entry 11 of the State List II (i.e. preceding 3.1.1977; and Entry 25 of the State List after 3.1.1977) is concerned, the same is sub-servient to the power enshrined in the above mentioned Entries. Referring to Gujrat CWP No. 8055 of 2005 Page numbers

University's case (supra), it is contended, that although, incorporation of a University as a legislative head, is a State subject, contained in Entry 32 of the State List, yet Entry 66 of List I, pertaining to coordination and determination of standards in institutions for higher education or research and technical institutions, vests legislative authority in connection therewith, with the Parliament. Since, there is likelihood of inconsistency between laws made by Parliament under Entry 66 of List I and those made by the State Legislatures under Entry 33 of List II, the power vested in the State Legislatures, to incorporate or establish a University, excludes therefrom the authority to legislate on subjects included in Entry 66 of the Union List. For the aforesaid proposition, learned counsel for the petitioners also placed reliance on the decision of the Supreme Court in Shri Krishna's case (supra), wherein it was held as under:- "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..... Item 11 of List II and item 66 of List I must be harmoniously construed. The two entries undoubtedly overlap; but to the extent of overlapping, the power conferred by item 66 List I must prevail over the power of the State under item 11 of List II. It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and CWP No. 8055 of 2005 Page numbers

institutions of higher education including research, sciences, technology and vocational training of labour." For the same purpose, learned counsel for the petitioners relied on the decision rendered by the Apex Court in Adhiyaman Educational and Research Institute's case (supra), wherein the Supreme Court recorded the following conclusions:-

"(i) The expression 'coordination' used in Entry 66 of the Union List of the Seventh Schedule of the Constitution of India does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development.

It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of the valid compelling reasons, it must be given its full effect according to its plain and express intention.

(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative."

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For the same reason and to the same effect, learned counsel for the petitioners invited our attention to the decision rendered by the Apex Court in Osmania University Teachers Association's case (supra) and Dr. Preeti Srivastava's case (supra), which were all taken into consideration when the Apex Court recorded the following conclusions in Professor Yash Pal's case (supra):

"The consistent and settled view of this Court, therefore, is that in spite of incorporation of universities as a legislative head being in the State List, the whole gamut of the university which will include teaching quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on, will not come within the purview of the State legislature on account of a specific Entry on co-ordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which the Parliament alone is competent to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained."

On the basis of the aforesaid observations of the Supreme Court in Professor Yash Pal's case (supra), it is the vehement contention of the learned counsel for the petitioners, that the Parliament alone has the power and authority to legislate and make an enactment for the incorporation and establishment of a University.

33. It is not possible for us to accept the aforesaid contention of the CWP No. 8055 of 2005 Page numbers

learned counsel for the petitioners. We are of the considered view, that the decision rendered by the Supreme Court, has not been examined in the right perspective by the learned counsel for the petitioners. As a matter of fact, the Apex Court reiterated again and again in Professor Yash Pal's case (supra), that the State Legislatures are undoubtedly empowered to legislate and make an enactment for the incorporation and establishment of a University under Entry 32 of the State List and Entry 25 of the Concurrent List. Reference in this behalf may be made to the conclusions recorded in paragraphs 27 to 31 in Professor Yash Pal's case (supra). For reasons of brevity, paragraph 29 of the aforesaid judgement is being extracted hereunder:-

"The State Legislature can make an enactment providing for incorporation of universities under Entry 32 of List II and also generally for universities under Entry 25 of List III. The subject "university" as a legislative head must be interpreted in the same manner as it is generally or commonly understood, namely, with proper facilities for teaching of higher level and continuing research activity. An enactment which simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with the juristic personality of a university so as to take advantage of Section 22 of UGC Act and thereby acquires the right of conferring or granting academic degrees but without having any infrastructure or teaching facility for higher studies or facility for research is not contemplated by either of these Entries. Sections 5 and 6 of the impugned enactment are, therefore, wholly ultra-vires being a CWP No. 8055 of 2005 Page numbers

fraud on the Constitution."

From the concluding observations of the Apex Court in paragraph 29, extracted hereinabove, it is apparent, that while accepting the contention of the petitioners in Professor Yash Pal's case (supra), the Apex Court arrived at the conclusion, that the power exercised by the State Legislatures to enact the statute, which was subject matter of consideration in the aforesaid case, was ultra-vires "...being a fraud on the Constitution." The Apex Court did not record any conclusion so as to remotely suggest, that the legislation, under reference, was ultra-vires of the Constitution of India, on account of the fact, that the State Legislature lacked authority to enact the same. For the foregoing reasons, it is not possible for us to accept the second contention of the learned counsel for the petitioners.

34. In view of Entry 11 of the State List prior to 3.1.1977 [i.e. preceding the Constitution (Forty-second Amendment) Act, 1976] and Entry 25 in the Concurrent List after 3.1.1977 [i.e. succeeding the Constitution (Forty-second Amendment) Act, 1976], the State Legislature is undoubtedly vested with the authority to legislate on the subject of Universities, which by necessary implication, includes the incorporation thereof as well.

Was it imperative to afford an opportunity of hearing to the employees of the Punjab Agricultural University, Ludhiana, who are likely to be transferred to the Animal Sciences University?

35. Petitioner No.1 is the Punjab Agricultural University Teachers Association (which is duly registered under the Societies Registration Act, 1860). The Punjab Agricultural University Teachers Association comprises of all the teachers working in the Punjab Agricultural University, Ludhiana.

Petitioner No.2 is the Punjab Agricultural University Employees Union CWP No. 8055 of 2005 Page numbers

(registered under the Societies Registration Act, 1980). Petitioners No.3 to 6 are professors in the Punjab Agricultural University, working in the College of Basic Sciences and Humanities at Ludhiana (see Section 24(2) (c) of the Joint Agricultural Universities Act). They claim to be specialists in the field of Fisheries and Small Animals, and are imparting education at the College of Basic Sciences and Humanities in the aforesaid specialisation. Petitioners No.7 to 39 are working as professors in the College of Veterinary Medicines at Ludhiana (see Section 24(2)(e) of the Joint Agricultural Universities Act). They claim to be Animal Scientists, discharging duties in the aforesaid specialisation at the College of Veterinary Medicine at Ludhiana. The grievance of the individual petitioners is, that under Section 24 of the Joint Agricultural Universities Act (already extracted above), they have been discharging duties under the Punjab Agricultural University. With the creation of the Animal Sciences University, their relationship with their parent employer i.e. the Punjab Agricultural University, has been severed. The aforesaid assertion of the petitioners is based on Section 7 of the Animal Sciences University Act.

Section 7 of the 2005 Act is being extracted hereunder:- "7. The College of Veterinary Science. Ludhiana, research stations. Veterinary hospitals. Fisheries and small animal colony in the Department of Zoology and hostels, attached with the aforesaid veterinary college and all other movable and immovable assets, liabilities and obligations pertaining thereto, shall stand transferred and vested in the University: Provided that till the facilities are provided in the University, the College of Veterinary Science, Ludhiana shall continue to CWP No. 8055 of 2005 Page numbers

share the facilities of library, medical playgrounds, guest houses, auditoria, clubs, public health services and accommodation for employees or any other facilities available with the Punjab Agricultural University(hereinafter in short called existing University)

Provided further that the students presently pursuing studies with the existing University shall be permitted to complete the courses and the existing University shall make arrangements for conduct of their examinations:

Provided further that if the existing University, prior to the establishment of the University has conducted any examination, but the results thereof has yet not been declared, in such cases, the existing University shall declare the results and confer the degrees in due course:

Provided further that the persons under the (employment) of the College of Veterinary Science, Ludhiana, research stations or institutions specified above, shall be transferred to the University on the same terms and conditions of service as were applicable to them in the aforesaid college and institutions, unless and until such conditions are changed with the consent of such persons.

Provided further that no person, who is employed on deputation in the said college or institution from the State Government shall be transferred to the University without the prior approval of the State Government."

A perusal of Section 7 of the Animal Sciences University Act reveals, that CWP No. 8055 of 2005 Page numbers

the College of Veterinary Science, Research Station, Veterinary Hospitals, Fisheries and Small Animals Colony, in the Department of Zoology, at Ludhiana, as well as, the properties associated therewith, stood transferred to the Animal Sciences University. The employees of the College of Veterinary Sciences, Research Station, Veterinary Hospitals, Fisheries and Small Animal Colony, in the Department of Zoology, have been transferred to the Animal Sciences University. Under Section 40 of the Animal Sciences University Act, assets and liabilities of the aforementioned institutions stood divided amongst the Punjab Agricultural University and the Animal Sciences University in the ratio of 70:30. Section 40 of the Animal Sciences University Act is being extracted hereunder:-

40. (1) On the commencement of this Act, the assets and liabilities of the existing University relating to veterinary animal sciences and fisheries shall stand transferred to and shall vest in the University in accordance with the following principles namely:-

(a) any asset of existing University which immediately before the commencement of this Act is related to veterinary and animal sciences, fisheries and small animal colony including agricultural land used for fodder or feed production dairy and poultry farms, fisheries and every right to such property shall stand transferred to and shall vest in the University.

(b) the land of the experimental area of existing University adjoining the immunology (fick Borne Diseases) Building shall stand transferred to the CWP No. 8055 of 2005 Page numbers

University:

(c) any asset of existing University relating to Non Resident Indian Students fee revolving funds under the veterinary animal sciences, fisheries and Small Animal Colony and every right to such property, shall stand transferred to and shall vest in the University: and (d) all teaching research and extension schemes related to veterinary animal and fishery sciences including University shall stand transferred along with incumbents, budget and assets to the University.

(2) The liability existing on the assets of the existing University on the commencement of this Act shall be shared between existing University and the University in proportion to the assets shared by both the universities.

(3) Every other liability of the existing University relating to veterinary, animal sciences and fisheries if subsisting on such commencement shall be the liability of the University.

(4) The cash balances whether in the form of cash, bank or security deposits and reserve funds held by existing University immediately before the commencement of this Act shall after deducting all the liabilities of existing University upto such commencement be apportioned between existing University and the University in the ratio of seventy : thirty.

(5) The contracts made before the commencement of this Act, shall be deemed to have been made by the concerned universities to which the subject matter or assets involved in CWP No. 8055 of 2005 Page numbers

the contract has been shared after such commencement.

(6) Every share, debenture, bond and other investment made by existing University shall be valued on the basis of average market value thereof gained during one year immediately before the commencement of this Act and the value so determined shall be apportioned between existing University and the University in the ratio of seventy:thirty.

`(7) Every borrowing made by existing University before the commencement of this Act shall if the liability is subsisting on such commencement be repaid together with the interest accrued thereon by existing University.

(8) The provident fund, pension fund, death-cum-retirement gratuity, ex-gratia grant and other benefits and accruals thereto of every officer or other employee of existing University shall stand transferred to the University to which he has been allocated and posted on the date of the commencement of this Act.

Explanation:- For the purposes of this section, "asset shall be deemed to include all property movable and immovable rights powers, authorities and privileges and all other rights and interest arising out of such property as were immediately before the commencement of this Act in the ownership, possession, power or control of existing University and all books of accounts, registers, records and all other documents of whatever nature relating thereto shall also be deemed to include all obligations of whatever kind then subsisting of existing CWP No. 8055 of 2005 Page numbers

University."

36. The aforesaid narration constitutes the foundation of the challenge raised by the petitioners to the validity of the Animal Sciences University Act. The petitioners have also challenged the enactment of the Guru Angad Dev Veterinary and Animal Sciences University Act, 2005 by asserting, that there would be severe financial constraints in the running and functioning of the Animal Sciences University as the State government had not allocated any extra funds for the same. In this behalf, reference has been made to the Statement of Financial Implications, which is being extracted hereunder:-

"Statement of Financial Implications:

No extra funds for setting up of Guru Angad Dev Veterinary and Animal Sciences University will be given. However, the University will continue to g et the grant which is being given to the Veterinary Wing of the Punjab Agricultural University and any increases therein would be commensurate with the increase in grant-in-aid to the Punjab Agricultural University.

Additional funds would be generated by the University from the N.R.I. seats and user charges."

37. It is, therefore submitted, that if an opportunity of hearing had been afforded to the petitioners, they would not only have demonstrated the factum of financial inviability of the Animal Sciences University, but would also have highlighted such like other glaring issues, to stop the authorities, from framing a legislative enactment for setting up the Animal Sciences University.

38. This assertion of the petitioners is sought to be supported by the CWP No. 8055 of 2005 Page numbers

decision of the Apex Court in Jawahar Lal Nehru University Vs. Dr. K.S.

Jawatkar and others, AIR 1989 SC 1577. Reliance has been placed by the learned counsel for the petitioners on the following observations and conclusions recorded in the aforesaid judgement: "In this appeal the main contention of the appellant is that the respondent was appointed at the Centre of Post-graduate Studies, Imphal, and when the Centre A as transferred to the Manipur University his services were automatically transferred to that University, and consequently he could not claim to be an employee of the appellant University. The argument proceeds on the assumption that the Centre of Post-graduate Studies at Imphal was an independent entity which existed by itself and was not a department of the appellant University. The submission proceeds on a fallacy. The Centre of Post-graduate Studies was set up at Imphal as an activity of the appellant University. To give expression to that activity, the appellant University set up and organised the Centre at Imphal and appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant University the teaching and administrative staff must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that CWP No. 8055 of 2005 Page numbers

effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was a contract with the appellant University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent's consent. When the Manipur University Act provides for the transfer of the services of the staff working at the Centre of Post-graduate Studies, Imphal, to employment in the Manipur University, it must be construed as a provision enabling such transfer of employment but only on the assumption that the employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied. We do not find it necessary to refer to any case law in support of this conclusion.

Inasmuch as the transfer of the Centre of Post- graduate Studies from the appellant University to the Manipur University could not result in a transfer of the employment of the respondent from the one to the other, it must be concluded that the respondent continues in the employment of the CWP No. 8055 of 2005 Page numbers

appellant University. The transfer of the Centre of Postgraduate Studies to the Manipur University may be regarded as resulting in the abolition of the post held by the respondent in the appellant University. In that event, if the post held by the respondent is regarded as one of a number of posts in a group, the principle "last come, first go" will apply, and someone junior to the respondent must go. If the post held by him constitutes a class by itself, it is possible to say that he is surplus to the requirements of the appellant University and is liable to be retrenched, But it appears that the respondent has been adjusted against a suitable post in the appellant University and, has been working there without break during the pendency of this litigation, and we cannot, therefore, permit the appellant University to retrench him."

39. It is not possible for us to accept the aforesaid contention of the learned counsel for the petitioners, as the situation in hand is separate and distinct from the situation which came up for consideration in Jawahar Lal Nehru University's case (supra). In so far as, the aforesaid case is concerned, the respondent was earlier an employee of the Jawahar Lal Nehru University. He was transferred without his consent to the Manipur University. In other words, his employment was transferred from his original employer to a foreign employer. It is in the background of the aforesaid factual position, that the Apex Court recorded the observations extracted above. Although, the term "transfer" has been used in reference to persons similarly situated as petitioners No.3 to 39 herein in Section 7 of the Animal Sciences University Act, we are of the opinion, that the allocation of CWP No. 8055 of 2005 Page numbers

petitioners No.3 to 39 to the Animal Sciences University, cannot be considered to be a transfer stricto senso in the sense ordinarily understood.

Bifurcation of departments of the government, is not an uncommon phenomenon. In case of such a bifurcation, employees are allocated to one or the other of the successor departments. Strictly, their employment continues, as hithertofore, without affecting their conditions of service.

Such like bifurcations/divisions in an organisation may be for administrative convenience or for compartmentalisation based on subjects or specialisations, and/or some other such like reason. Employees bifurcated from the parent organisation to the units created by such bifurcation(s)/division(s) cannot, in our view, be described as transfers from one organisation to another, in the ordinary sense of the term "transfer".

Bifurcation of States, would possibly fall in the same category, wherein, a composite State (like the erstwhile State of Punjab) may be divided into a number of successor States. Division of government employees in different departments of the composite State, into the same departments, in the successor States, cannot be deemed to have been transferred from one organisation to another. The term "transfer" used in Section 7 of the Animal Sciences University Act, at best, in our view, can be understood to mean "allocation", and nothing more. Therefore, even if one was to accept, as is being alleged on behalf of the petitioners, that petitioners No.3 to 39 would henceforth be employees of the Animal Sciences University, it is not possible to accept, that they have been transferred from one organisation to another. Petitioners No.3 to 39 can only be treated to have been divided into two components of the same organisation, on its bifurcation, by way of "allocation". In such circumstances, in our view, it was absolutely CWP No. 8055 of 2005 Page numbers

unnecessary to afford any opportunity of hearing to persons, who were likely to be allocated to the Animal Sciences University, specially when it is apparent from Section 7 of the Animal Sciences University Act, that persons working in the College of Basic Sciences and Humanities at Ludhiana, and persons working in the College of Veterinary Medicines at Ludhiana (those similarly placed as petitioners No.3 to 39) shall enjoy the same terms and conditions of service as were applicable to them prior to their allocation/transfer to the Animal Sciences University.

Whether the action of the authorities in bifurcating the Punjab Agricultural University at Ludhiana, is arbitrary and is as such, violative of the provisions of Article 14 of the Constitution of India?

40. It is submitted on behalf of the petitioners, that the Animal Sciences University Act, has been devised to bifurcate the Punjab Agricultural University, by creating two Universities, one for imparting education in the field of Agriculture, and the other, for imparting education in the field of Animal Sciences. This action, according to the petitioners, is arbitrary, and as such, violative of Article 14 of the Constitution of India.

In this behalf, it is pointed out, that the Veterinary College at the Punjab Agricultural University is an integral part of the Punjab Agricultural University, and its curriculum on research, teaching and development comprises of both Agricultural Farming Systems and Animal Sciences.

Crops and livestocks farming, according to the learned counsel for the petitioners, complement and supplement each other. Briefly speaking the historical background has been projected to us in the following sequence: (a) After India attain independence the Government of India constitutes a University Education Commission in 1948 CWP No. 8055 of 2005 Page numbers

comprising of 10 eminent scholars and chaired by Dr. S. Radha Krishanan and also included Dr. Zakir Hussain, then Vice Chancellor of Aligarh University, Dr. A.L. Mudaliar, then Vice Chancellor of Madras University, Dr. M.N. Saha, the famous nuclear physicist of India and Dr. Tara Chand, Vice Chancellor of Allahabad University etc. were its members (two of them- Drs. Radha Krishanan and Zakir Hussain became Presidents of India). The mandate of the Commission was to review education systems in India and recommend its improvement.

The Commission travelled extensively and visited reputed institutions of education and research within India and abroad and submitted its report in 1949. The part relevant to agricultural research and education in India is exhaustive extending over 593 pages.

The Commission developed the concept of establishing rural/agricultural universities in India. The Commission observed: "India faces the bitter necessity for quickly solving an inherently difficult problem (food shortage_, and at a time when problems are pressing from all directions". The Commission selected the American "land-grant colleges" system of education for adoption in India, which have been described on good ground as "the most comprehensive system of scientific, technical and practical higher education the world has ever seen:.

The Commission also noted, "nearly three quarters of our people are engaged in agriculture which (are stepped in) deep CWP No. 8055 of 2005 Page numbers

poverty and illiteracy" and recommended that "agricultural education be recognised as a major national issue:.

The Commission went a step further in outlining composite courses comprising general education, basic sciences, agriculture, animal husbandry, and practical work as the curriculum for agriculture/rural Universities. This curriculum, the Commission recommended be taught in the rural/agricultural Universities which should include "a ring of small, resident, undergraduate colleges with specialised and university facility in the centre.

41. In order to appreciate the aforesaid contention of the learned counsel for the petitioners, it is necessary to examine the reasons which prompted the enactment of the Animal Sciences University. In this behalf, it would be pertinent to mention, that the Department of Animal Husbandry and Dairy, under the Ministry of Agriculture of the Government of India, addressed a communication dated 6.8.1999, to the Secretaries in the Department of Animal Husbandry in all the States and Union Territories, bringing to their notice, the recommendation of the Parliamentary Standing Committee on Agriculture, that there should be a separate University of Animal Sciences in every State. The aforesaid communication dated 6.8.1999, also informed the State governments, that since the subject of Animal Husbandry is incorporated in the State List (of the Seventh Schedule of the Constitution of India), action for implementation of the said recommendation, should be taken by the State governments themselves.

Keeping in mind the aforesaid recommendation, the State of Punjab claims to have taken steps, in the direction of establishment of a separate CWP No. 8055 of 2005 Page numbers

University of Animal Sciences in Punjab, to be called the Guru Angad Dev Veterinary and Animal Sciences University (hereinafter referred to as the Animal Sciences University). The factors necessitating the aforesaid steps at the hands of the State of Punjab, have been narrated in paragraph 5 of the reply filed on behalf of respondents No.1 and 2, on merits, relevant part whereof is being extracted hereunder:-

".....that it was felt by the State govt. that present situation demands that there is need of agriculture diversification and Animal Husbandry is one of the major sectors which can be accorded more focus for diversification. It was found that at present Animal Husbandry sector is contributing about 17% of GDP of the State of Punjab, whereas, in the States where separate Veterinary Universities have already come up, the contribution of Animal Husbandry to GDP has gone beyond 30%. The State Govt. also felt that by establishing a separate Veterinary and Animal Sciences University, the following issues and strategies can be dealt in more effective and meaningful manner:-

i. Improvement of Education methods.

ii. Faculty improvement

iii. Improving the fertility of farm animals iv. Production of Transgenic animals

v. Production of Elite Farm animals Cattle and Buffalo vi. Conservation of Native Livestock

vii Feed and Fodder Development

viii. Control of emerging diseases

ix. Sensitive disease diagnosis

x. Development of vaccinology and immunology xi. Awareness on zoonotic disease

xii Exploration of indigenous drugs in veterinary practice xiii. Improvement of animal production technology.

CWP No. 8055 of 2005 Page numbers

It was felt that the veterinary education under the umbrella of Agriculture University could not focus on the needs of the farmers of Punjab, therefore, it had become all the more important to introduce a bill in the Punjab Vidhan Sabha for the establishment of a separate University by the name of 'Guru Angad Dev Veterinary and Animal Sciences University'. It is pertinent to mention here that independent Veterinary Universities in the States of Maharashtra, Bengal, Tamil Nadu and Karnataka already exist..."

We are not impressed with the historical narration which initiated the creation of the Punjab Agricultural University at Ludhiana, so as to arrive at the conclusion, that the action of the State Legislature to create a separate University for Animal Sciences, was arbitrary. That possibly may have been the right decision, at that juncture. With the advancement in science and technology, as also, the change in needs and requirements, the action of creating a separate University in the field of Animal Sciences cannot be described to be arbitrary or violative of the provisions of Article 14 of the Constitution of India, specially when, this action has been taken by the State government on the basis of a decision of the Government of India in the Ministry of Agriculture.

42. In view of the findings recorded hereinabove, our conclusions in the final analysis, are as under:-

Firstly, the Animal Sciences University Act is not ultra-vires Article 252(2) of the Constitution of India. In fact, Article 252(2) is held to be inapplicable for purposes of the legislation of the Animal Sciences University Act.

CWP No. 8055 of 2005 Page numbers

Secondly, the Animal Sciences University Act has been validly framed by the Punjab Legislative Assembly under Article 254(2) of the Constitution of India.

Thirdly, irrespective of the inconsistencies/discrepancies between the provisions of the Joint Agricultural Universities Act framed by Parliament, and the Animal Sciences University Act framed by the Punjab Legislative Assembly; the Animal Sciences University Act shall prevail and be enforceable in the State of Punjab on account of the fact, that it has received the assent of the President of India, under Article 254(2) of the Constitution of India.

Fourthly, the contention of the petitioners, that Parliament alone is competent to make an enactment for the incorporation and establishment of a University, is declined. In view of Entry 11 of the State List, prior to 3.1.1977, and Entry 25 of the Concurrent List, after 3.1.1977, we are of the view, that the Punjab Legislative Assembly was vested with the authority to enact the Animal Sciences University Act.

Fifthly, we find no merit in the contention of the petitioners, that they should have been afforded an opportunity of hearing before their allocation to the Animal Sciences University.

Lastly, the plea raised by the petitioners, that the bifurcation of the Punjab Agricultural University, by the Animal Sciences University Act, is arbitrary, and as such, violative of Article 14 of the Constitution of India, is rejected.

43. Dismissed in the aforesaid terms. ( J.S. Khehar )

Judge.

(S.N. Aggarwal)

April 21, 2006 Judge.

sk.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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