Government order cant prevail over Varsity Act

CHENNAI: An executive order of the government will not prevail over the provisions of the Universities Act, the Madras High Court has observed.It can prevail over only when the said statutes or enactments had ‘gaps’ and did not cover the area by the existing rules whereof, but not otherwise, Justice V Dhanapalan said and declared ultra vires the State government order relating to service conditions of university employees, to the Universities Act.The judge was allowing a writ petition from Madras University Staff Association and six others, who challenged the order of the Higher Education department dated December 13, 2006. Referring to the argument of Advocate-General A Navaneethakrishnan that the impugned order has been passed invoking the executive power of the State under Article 162 of the Constitution, the judge said any executive order must be in conformity with university rules. Power of the state government to issue executive instructions was confined to filling ‘gaps’ or ‘covering area’ which otherwise had not been covered by existing rules and such instructions/orders must be subservient to statutory rules.The impugned order defining the service conditions, appointment and pay scales of non-teaching staff of the universities, were  covered by the existing rules of the universities. “Therefore, the rules are not silent but are very sound on the particular point and as such, the question of filling up of ‘gaps’ or covering the area which otherwise had not been covered by the existing rules by means of the impugned order, did not arise at all for the State government. If the administration of universities was allowed to be interfered with by the executive according to its whims and fancies, then it would be tantamount to usurping the powers of authorities which are vested with such powers,” the judge added.As the law had been made by the State Legislature, conferring the power of regulation of service condition of non-teaching staff of the Universities on the Syndicate of the respective University, the executive was not empowered to pass the impugned order. Mere funding to the Universities did not confer any privilege on the State to issue executive orders, so as to interfere with the administration of the Universities, the judge added.