Kerala High Court
Shabeer Shajahan vs State Of Kerala on 19 June, 2020
Equivalent citations: AIRONLINE 2020 KER 375
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942
WP(C).No.23714 OF 2019(L)
PETITIONERS:
SHABEER SHAJAHAN, AGED 29 YEARS,
S/O. N.A.SHAJAHAN, NEDUVELIPEEDIA HOUSE,
GARDEN ROAD, ATHIRAMPUZHA P.O.,
KOTTAYAM-686 562.
BY ADVS.SRI.REJI GEORGE
SRI.JOE JOSEPH KOCHIKUNNEL
SRI.A.M.NASEER
SMT.ANUPAMA JOHNY
SRI.BINOY DAVIS
SRI.R.P.SREENIVASAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR OF GENERAL EDUCATION,
GENERAL EDUCATION DEPARTMENT, JAGATHI,
THIRUVANANTHAPURAM-695 014,
(FORMERLY DIRECTOR OF HIGHER SECONDARY EDUCATION,
THE DIRECTORATE OF HIGHER SECONDARY EDUCATION,
THIRUVANANTHAPURAM).
3 THE NATIONAL COUNCIL FOR TEACHER EDUCATION,
HANS BHAWAN (WING-11), I, BAHADUR SHAH ZAFAR MARG,
NEW DELHI-110 002.
W.P.(C).No.23714/2019 2
R1 & R2 BY SR.GOVT. PLEADER
SRI. ARAVIND KUMAR BABU
SR.GOVT. PLEADER SRI. SURIN GEORGE IPE
R3 BY DR.ABRAHAM P.MEACHINKARA, SC, NCTE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-03-2020, THE COURT ON 19-06-2020 DELIVERED THE FOLLOWING:
W.P.(C).No.23714/2019 3
"C.R"
JUDGMENT
Dated this the 19th day of June, 2020 S.Manikumar, CJ.
Instant public interest writ petition has been filed seeking the following reliefs:
(i) To declare that Rule 5 of the Special Rules for Kerala Higher Secondary Education State Service Rules, 2001, to the extent it is inconsistent with National Council for Teacher Education (Determination or Minimum Qualifications for Persons to be recruited as Education Teachers and Physical Education Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014 (Exhibit-P1) issued under the National Council for Teacher Education Act, 1993, is void.
(ii) To declare that Rule 5 of the Kerala Higher Secondary Education State Service Rules, 2001, to the extent it is inconsistent with Exhibit-P1 Regulations issued under the NCTE Act is void.
(iii) To declare that Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959, to the extent it is inconsistent with Exhibit-P1 regulations issued under the NCTE Act is void.
(iv) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the State of Kerala and the Director of General Education, Thiruvananthapuram, respondents 1 & 2, not to approve the appointment of candidates, who have not obtained B.Ed., or B.A.Ed/B.Sc.Ed.W.P.(C).No.23714/2019 4
degree from NCTE recognized institution, as teachers in Higher Secondary Schools.
(v) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the State of Kerala and the Director of General Education, Thiruvananthapuram, respondents 1 & 2, not to appoint any candidate, who has not acquired B.Ed. Degree from an NCTE recognized institution as Higher Secondary School Teacher.
(vi) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the State of Kerala and the Director of General Education, Thiruvananthapuram, respondents 1 & 2 not to consider the certificate issued by any authority other than the National Council for Teacher Education granting equivalency to any training programme for the purpose of deciding the qualification of a candidate for the post of HSST and HSST (Junior)."
2. Short facts leading to the filing of the writ petition are that,-
petitioner is a former Senate Member of Mahatma Gandhi University, Kottayam. He is also the member of Ward No.VIII of Athirampuzha Grama Panchayat and Vice-President of Muslim Students Federation, an active students' organization having representatives in the Students' Union committee, Union Council of University, Senate etc.
3. Parliament has enacted the National Council for Teachers' Education Act, 1993 ('NCTE Act', for short). Under the said Act, National Council for Technical Education, established under Section 3(1), is the W.P.(C).No.23714/2019 5 only authority to prescribe minimum qualification for a person to be employed as a teacher in the schools or recognised institutions. As per National Council for Teacher Education (Determination of Minimum Qualifications for Persons to be Recruited as Education Teachers and Physical Education Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014 (Exhibit-P1) issued by the National Council for Teacher Education under the NCTE Act, which are applicable for recruitment of teachers in all the schools for imparting education to elementary, secondary and senior secondary stages, the minimum qualification prescribed for the post of Higher Secondary School Teacher (HSST) is Post Graduate (or its equivalent) degree from a recognized University, and B.Ed or B.A.Ed/B.Sc.Ed. from any NCTE recognized institution.
4. According to the petitioner, the qualifications for Higher Secondary School Teachers (HSST) in Government Schools in Kerala are prescribed in Rule 5 of the Special Rules for Kerala Higher Secondary Education State Service Rules, 2001, and the qualifications for HSST (Junior) in Government schools are prescribed in Rule 5 of the Kerala Higher Secondary Education Subordinate State Service Rules, 2001.
Similarly the qualifications for HSST in aided Higher Secondary Schools are prescribed in Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959.
W.P.(C).No.23714/2019 6The aforesaid rules permit appointment of candidates having no B.Ed degree and candidates having other training qualifications recognized as equivalent to B.Ed. by University of Kerala, as HSST or HSST (Junior) in Government and aided Higher Secondary Schools in Kerala. Petitioner has contended that the aforesaid rules permit appointment of candidates having no B.Ed. Degree, and candidates having other training qualifications recognised as equivalent to B.Ed, by a University of Kerala as HSST or HSST (Junior) in Government and aided Higher Second Schools in Kerala, and the rules permitting appointment of candidates having no B.Ed. degree are inconsistent with the qualifications prescribed for teachers in Higher Secondary Schools in Exhibit-P1 regulations.
5. As per G.O(Ms) No.14/2019/G.Edn. dated 6.2.2019, Government have created 331 HSST and 258 HSST (Junior) posts in aided schools. Many of the schools have already invited applications and started the process of making appointments based on the qualifications prescribed in Rule 6 Chapter XXXII of the Kerala Education Rules, 1959. The qualification prescribed by Exhibit-P1 regulations and the NCTE Act, 1993 is not adhered to by the Managers of the aided schools in selecting and appointing teachers. Even though Exhibit-P1 regulations provide that candidates having B.Ed. degree alone can be appointed as teachers in High Secondary Schools, Managers of the aided schools are appointing W.P.(C).No.23714/2019 7 candidates, who have no B.Ed. degree, but have passed some other training programmes on the basis of equivalency certificate issued by Kerala University.
6. Petitioner has also contended that if the candidates, who are not having the required qualifications prescribed under Exhibit-P1 regulations, are appointed as HSST in any subject, it would be illegal and would adversely affect the quality of higher secondary education in the State, which is the foundation course for admission to various professional and other courses.
7. Being aggrieved, he has filed the instant writ petition on the following grounds:
(a) Rule 5 of the Special Rules for Kerala Higher Secondary Education State Service Rules, 2001 and the Kerala Higher Secondary Education Subordinate State Service Rules, 2001, and Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959, to the extent they are inconsistent with Ext.P1 Regulations, are void in view of Article 254 of the Constitution of India.
(b) The qualifications for Higher Secondary School Teachers (HSST) in Government schools in Kerala are provided in Rule 5 of the Special Rules for the Kerala Higher Secondary Education State Service Rules, 2001. The qualifications for Higher Secondary School Teachers (Junior) in Government schools are provided in Rule 5 of the Kerala Higher Secondary Education Subordinate State Service Rules, 2001. Similarly, the W.P.(C).No.23714/2019 8 qualifications for HSST in Aided Higher Secondary Schools are provided in Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959. The qualifications for appointment of teachers in Higher Secondary Schools prescribed by the Kerala Education Rules and in the Special Rules for Kerala Higher Secondary Education are, in certain respects, are repugnant to the qualifications prescribed in Ext.P1 Regulations.
(c) The Kerala Education Rules,1959 have been made by the Government of Kerala in exercise of the power conferred by Section 36 of the Kerala Education Act, 1958, which is an Act enacted by the Legislature of the State of Kerala exercising its legislative power under Entry 25 of List lll of Schedule 7 of the Constitution of India. The Special Rules for the Kerala Higher Secondary Education State Service Rules, 2001 and the Kerala Higher secondary Education Subordinate State Service Rules, 2001 have been made by the Government of Kerala in exercise of the power conferred by sub~section (1) of Section 2 of the Kerala Public Services Act, 1968 which is an Act enacted by the Legislature of the State of Kerala exercising its legislative power under Entry 41 of List ll of Schedule 7 of the Constitution of India. The NCTE Act has been enacted by the Parliament exercising its legislative power under Entry 66 of List l and Entry 25 of List III of Schedule 7 of the Constitution of India. The National Council has issued Ext.P1 Regulations exercising its power under Section 32 of the NCTE Act, which is applicable for recruitment of teachers in all formal schools established, whether or not run, aided or recognised by Central or State Government and other authorities for imparting education at elementary, secondary and senior secondary stages.W.P.(C).No.23714/2019 9
(d) Under the NCTE Act, National Council for Teacher Education established under Section 3(1) is the only authority to prescribe minimum qualification for a person to be employed as a teacher in schools or in recognised institutions. Section 12A of the NCTE Act provides that the National Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government or a local or other authority. Accordingly, the National Council issued Ext.P1 Regulations, which are applicable for recruitment of teachers in all schools for imparting education at elementary, secondary and senior secondary stages. It is provided in Regulation 4 that the qualification for recruitment and promotion of teachers in any recognized schools shall be as given in the First and Second Schedules in Ext.P1 Regulations. The minimum qualification prescribed by the National Council as per Ext.P1 Regulations for the post of Higher Secondary School Teacher is Post Graduate (or its equivalent) degree from a recognized University, and B.Ed. or B.A.Ed/B.Sc.Ed from any NCTE recognized institution.
(e) Even a degree equivalent to B.Ed. is not recognized by Ext.P1 Regulations as a qualification to be appointed as a Higher Secondary Teacher. Moreover, it is clear from Regulation 6 that the NCTE Council alone has the power to decide if any question arises relating to equivalence of various teachers training programmes. The qualifications for Higher Secondary School Teachers (HSST) in Government schools in Kerala are provided in Rule 5 of the Special Rules for Kerala Higher W.P.(C).No.23714/2019 10 Secondary Education State Service Rules, 2001. The qualifications for Higher Secondary School Teachers (Junior) in Government schools are provided in Rule 5 of the Kerala Higher Secondary Education Subordinate State Service Rules, 2001. Similarly, the qualifications for HSST in Aided Higher Secondary Schools are provided in Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959. The aforesaid Rules provide, inter alia, that a candidate seeking appointment as HSST or HSST (Junior) in any subject, except Computer Science, Computer Application and Electronics, should have acquired B.Ed. degree after the regular course of study from any of the Universities in Kerala or a qualification recognized as equivalent thereto by a University in Kerala. It is further clarified in the Rules by way of 'Notes' that in the case of Philosophy, Psychology, Commerce and language subjects, in the absence of B.Ed. degree holders, candidates having Master's Degree with not less than 50% marks and who have passed State Eligibility Test are eligible to be appointed and the teachers appointed under this provision will have to acquire B.Ed. degree at their own expense within 5 years from the date of entry in service. It is also clarified in the Rules that those who have passed Language Teachers Training Course, or in the case of HSST (Hindi), those who possess Diploma in Hindi teaching are exempted from acquiring B.Ed.
(f) It is pertinent to note that the Rules do not prescribe B.Ed.
degree as a required qualification for appointment as HSST in Computer Science, Computer Application and Electronics. Moreover, the Rules only provide that a candidate seeking appointment as a teacher in a Higher Secondary School should have the acquired B.Ed. degree after the regular course of W.P.(C).No.23714/2019 11 study from any of the Universities in Kerala or a qualification recognized as equivalent thereto by a University in Kerala. As stated above, as per Regulations 5 and 6 of Ext.P1 Regulations, the National Council is the only authority to relax the minimum qualification, if found necessary, in appropriate cases, and to decide the questions relating to the equivalence of various teachers' training programs.
(g) The training qualifications prescribed in Ext.P1 Regulations issued under the NCTE Act are B.Ed./B.A.Ed./B.Sc.Ed. from a NCTE recognized institution. A Bachelors Degree in Education is made compulsory by the NCTE Act since the course structure of B.Ed./B.A.Ed./B.Sc.Ed. offers a comprehensive coverage of themes and rigorous field engagement with the child, school and community. B.Ed. curriculum includes courses in the study of childhood, child development and adolescence, contemporary India and education, theoretical foundations of knowledge and curriculum, teaching and learning, gender in the context of school and society, and inclusive education. B.Ed. course also aims to develop understanding about children of different age groups, through close observation and interaction with children from diverse socioeconomic and cultural backgrounds. The main focus of the B.Ed. course would be to enable student-teachers to arrive at an understanding of how different sociopolitical realities construct different childhoods, within child's lived contexts:
family, schools. neighbourhoods and community. The B.Ed. course will also enable student-teachers to engage with studies on Indian society and education, acquire conceptual tools of sociological analysis and hands on experience of W.P.(C).No.23714/2019 12 engaging with diverse communities, children and schools. Unlike other degree courses, B.Ed. course will introduce students to perspectives in education and will focus on epistemological and social bases of education. It is aimed to help prospective teachers to take decisions about and shape educational and pedagogic practice with greater awareness of the theoretical and conceptual underpinnings that inform it. Examination of the epistemological basis of education would focus on the distinctions between 'knowledge' and 'skill', 'teaching' and 'training', 'knowledge' and 'information', and 'reason' and 'belief', to engage with the enterprise of education. With a view to discuss the basis of modern child- cantered education, the students of B.Ed. course will study three concepts, namely, activity, discovery and dialogue. However, a student doing any other degree course does not get such training, which is essential to teach school children, and that is precisely the relevance of Ext.P1 Regulations, which insists that candidates who have acquired B.Ed./ B.A.Ed./B.Sc.Ed. alone should be appointed as teachers in Higher Secondary Schools. The respondents, therefore, cannot be permitted to appoint candidates, who have not acquired B.Ed. degree, which is the qualifications prescribed by Ext.P1 Regulations as Higher Secondary School Teachers.
(h) As per G.O.(Ms.) No.14/2019 G.Edn. dated 06.02.2019, Government have created 331 HSST and 258 HSST(Junior) posts in aided schools. Later, the 2 nd respondent has issued order No.Acd.C3/34033/19/H.S.E dated 12.02.2019 permitting the Managers of aided schools to make appointments pursuant to the aforesaid Government Order dated 06.02.2019 and the W.P.(C).No.23714/2019 13 Regional Deputy Directors to grant approval to such appointments. Many of the schools have already invited applications and started the process for making appointments on the basis of the qualifications prescribed in Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959. The qualification prescribed by Ext.P1 Regulations and the NCTE Act is not adhered to by the Managers of the aided schools in selecting and appointing teachers in Higher Secondary Schools.
Even though Ext.P1 Regulations clearly provide that candidates having B.Ed. degree alone can be appointed as teachers in Higher Secondary Schools, the Managers of the aided schools are appointing candidates who have no B.Ed. degree, but have passed some other training programmes on the basis of equivalency certificates issued by the Universities in Kerala. In many cases, the 1st respondent has issued directions similar to Ext.P2 to the 2nd respondent to approve the appointment of candidates having no B.Ed. degree. If candidates not having the required qualifications as prescribed by Ext.Pl Regulations issued by the National Council under the NCTE Act are appointed as Higher Secondary School Teachers in any subject, it would not only be illegal, but also would adversely affect the quality of higher secondary education in the State, which is the foundation course for admission to various professional and other courses for higher education, and also shatter the dreams of hundreds of qualified candidates, who are jobless.
8. On behalf of respondents 1 and 2, Under Secretary, General Education Department, has filed a counter affidavit, wherein it was contended as follows:
W.P.(C).No.23714/2019 14(I) Instant writ petition is not maintainable, either in law or on facts. It is well settled that public interest litigation is not maintainable in service matters. If is further contended that the petitioner has no locus standi to challenge the Rules framed by the Government in exercise of power conferred under Kerala Public Service Act, 1968 enacted under Section 309 of the Constitution of India.
(ii) It is further contended that Government have framed Special Rules to regulate the service conditions of teachers of Higher Secondary Schools in Government Sector. The Higher Secondary School Teachers service are broadly divided into State Service and Subordinate Service. In the State Service, category of Principal and Higher Secondary School Teachers with 39 subjects are governed and in respect of Subordinate Service, only one category of Higher Secondary School Teacher (junior) in 39 subjects are covered. In addition to the Special Rules for Kerala Higher Secondary Education State Service Rules 2001 and Kerala Higher Secondary Subordinate Service Rules, 2001, to regulate the service condition of the Higher Secondary School Teachers working in the Aided Sector, Government introduced Chapter XXXII to the Kerala State Education Rules, 1959. All these Rules prescribe necessary qualifications for appointment as Higher Secondary School Teacher. Thus going by the above Rules, it can be seen that there is no inconsistency or repugnancy with Exhibit P1 Regulations issued under NCTE Act.
(iii) In the absence of any inconsistency, the petitioner cannot challenge Rule framed by the Government invoking the power under Kerala Public Service Act, 1968 enacted under Article W.P.(C).No.23714/2019 15 309 of the Constitution. It is respectfully submitted that the Rules framed by the Government in fact prescribes higher qualification for appointment of teachers is higher one compared to Exhibit P1 Regulation. In addition to Masters Degree and B.Ed qualification, State Government insisted State Eligibility Test as mandatory qualification for appointment to the post of Higher Secondary School Teacher. The contentions otherwise taken by the petitioner that the Government diluted the qualification prescribed in Exhibit P1 Regulations is not correct and hereby denied. It is true that the Government visualized a situation where adequate number of B.Ed. hands are not available in the concerned subject, the candidates having Masters Degree and who have passed State Eligibility Test will be considered for appointment as Higher Secondary School Teacher. In that situation also, it was made clear that, preference will be given to the candidates who have acquired Ph.D Degree or M.Phil Degree or qualified as junior Research Fellowship/National Eligibility Test.
(iv) lt is further contended that Masters Degree with 50% Mark with Ph.D, M.Phil/Junior Research Fellowship/National Eligibility Test is a qualification prescribed for the post of Assistant Professors in affiliated Colleges and Universities by the UGC Regulation. In the above context, also it can be seen that Government have prescribed higher qualification than that of the qualifications prescribed in Exhibit P1 Regulation.
(v) With respect to the contention that under the Special Rules, B.Ed is not prescribed as a qualification for appointment as Higher Secondary School Teacher in Computer Application, Computer Science and Electronics, it is contended that as far W.P.(C).No.23714/2019 16 as Kerala is concerned, no Universities are offering B.Ed Course in Computer Science, Computer Application and Electronics. In the absence of availability of the Degree, the Government have not prescribed the same as a qualification with abundant caution as the same would tend to affect the imparting of education in the Hider Secondary School level. In the absence of the availability of qualification, Government cannot prescribe the same as a qualification.
(vi) With respect to the contention that Government have issued Exhibit P2 and that the Government recognized "Shiksha Snathak" Course as an equivalent qualification to B.Ed. Course is not a ground to challenge the Rule framed by the Government in exercise of its power under the Kerala Public Service Act. In Exhibit P2, Government have only concurred with the recognition of a degree made by the University, which is an authority competent to recognize a degree. Even if it is inconsistent with the Rule, the petitioner can challenge the same after impleading the beneficiary of Exhibit P2 Order Smt. Seena Haridas. Without impleading the affected person, the prayer against Exhibit P2 will not stand in the eye of law.
(vii) It is finally contended that there is nothing in the Special Rule which is inconsistent with Exhibit P1 Regulation framed under NCTE Act, in the absence of the same, the Writ Petition deserves no merit and liable to be dismissed with cost."
9. Heard learned counsel appearing for the parties and perused the material available on record.
10. On 21.01.2020, we passed the following order:
W.P.(C).No.23714/2019 17"Learned Senior Government Pleader Mr. Aravindakumar Babu submitted that there is no B.Ed. degree course for subjects such as Computer Science, Computer Application and Electronics in all over India. Therefore, the students who are willing to acquire the B.Ed. degree qualification, which is required qualification for teaching, is not possible now. He prays for a direction to the third respondent/ National Council for Teacher Education to furnish details as to whether B.Ed. degree qualification is offered by any institution in any part of the country.
2. Dr. Abraham P. Meachinkara, learned Standing Council appearing for National Council for Teacher Education/ respondent No.3 seeks two weeks time to ascertain the same. He further submitted that now the subject matter is a nationwide issue.
Learned Government Pleader as well as the learned Standing Counsel appearing for National Council for Teacher Education/respondent No.3 are directed to file their respective counter affidavits, within two weeks."
11. Thereafter, on 28.02.2020, recording the submission of learned counsel for the NCTE, we passed the following order:-
"On instructions from the National Council for Teacher Education, Southern Regional Committee, Mr. Abraham P. Meachinkara, learned Standing Counsel for NCTE submitted that for Computer Science, Computer Application and Electronics, no B.Ed. Degree course is offered in any of the educational institutions in the country.W.P.(C).No.23714/2019 18
2. Letter addressed to the Standing Counsel, dated 18.2.2020 of the Regional Director, National Council for Teacher Education, Southern Regional Committee containing instructions is extracted below:
"F. No.SRC/NCTE/Legal-000108/2019 114801 Date: 18.2.2020 To, Shri Abraham P. Meachinkara (Standing Counsel) 803, KHCAA Golden Jubilee Chamber Complex, Ernakulam - 682 031. Mobile No.9349752863 Subject: W.P No.23714 of 2019 titled as Shabeer Shajahan and Others Vs. State of Kerala and Others before the Hon'ble High Court of Kerala at Ernakulam- reg.
Sir, In continuation of letter No. F.No.SRC/NCTE/Legal- 000108/2019-114690 dated 13.2.2020 it is pertinent to inform that the NCTE notification dated 29.7.2011 minimum qualifications to teachers to be appointed school para 4(5) (b) this provision of the Regulation regarding minimum qualification of teacher for Art Education/Craft Education/Home Science/Work Education etc. is applicable to class I to VIII. For classes IX-XII, the minimum qualification for the above said category of teachers is not mentioned in the NCTE Notification dated 12.11.2014 and amendment notification dated 13.11.2019 regarding minimum qualification for teachers of classes 1-XII.
2. Therefore, in view of above you are requested to defend the case on behalf of NCTE.
Sd/-
Dr. Anil Kumar Sharma (Regional Director)"
Mr. Surin George Ipe, learned Government Pleader submitted that counter affidavit will be filed by 5.3.2020.
Post on 5.3.2020."
W.P.(C).No.23714/2019 1912. Bone of contention is that the appointments of Higher Secondary Teachers by invoking Rule 5 of the Special Rules for Kerala Higher Secondary Education State Service Rules, 2001, the Kerala Higher Secondary Education Subordinate State Service Rules, 2001, and Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959, are inconsistent with Exhibit-P1 Regulations, and the said rules are void, in view of Article 254 of the Constitution of India. The qualifications prescribed for the post of Higher Secondary School Teachers (HSST) in Government schools, in Kerala, are provided in Rule 5 of the Special Rules for the Kerala Higher Secondary Education State Service Rules, 2001 and the qualifications for Higher Secondary School Teachers (Junior) in Government schools are provided in Rule 5 of the Kerala Higher Secondary Education Subordinate State Service Rules, 2001. Similarly, the qualifications for HSST in Aided Higher Secondary Schools are prescribed in Rule 6 of Chapter XXXII of the Kerala Education Rules, 1959.
13. Higher Secondary School Teachers' service is broadly divided into two, viz., State Service and Subordinate Service. In the State Service, category of Principal and Higher Secondary School Teachers with 39 subjects are governed and in respect of Subordinate Service, only one category of Higher Secondary School Teacher (Junior) in thirty-nine subjects is covered.
W.P.(C).No.23714/2019 2014. Even as per the petitioner's contention, Kerala Education Rules, 1959 have been made by Government of Kerala, in exercise of the power conferred by Section 36 of the Kerala Education Act, 1958, which is an Act enacted by the Legislature of the State of Kerala exercising its legislative power under Entry 25 of List lll of Schedule VII of the Constitution of India.
15. The Special Rules for the Kerala Higher Secondary Education State Service Rules, 2001 and the Kerala Higher Secondary Education Subordinate State Service Rules, 2001 have been made by the Government of Kerala in exercise of the power conferred by sub-section (1) of Section 2 of the Kerala Public Services Act, 1968, which is an Act enacted by the Legislature of the State of Kerala exercising its legislative power under Entry 41 of List ll of Schedule VII of the Constitution of India.
16. NCTE Act has been enacted by the Parliament, exercising its legislative power under Entry 66 of List l and Entry 25 of List III of Schedule VII of the Constitution of India. The National Council has issued Exhibit-P1 Regulations, exercising its power under Section 32 of the NCTE Act, which is applicable for recruitment of teachers in all formal schools established, whether or not run, aided or recognised by Central or State Government and other authorities for imparting education at elementary, secondary and senior secondary stages.
W.P.(C).No.23714/2019 2117. In addition to the Special Rules for Kerala Higher Secondary Education State Service Rules, 2001 and Kerala Higher Secondary Education Subordinate State Service Rules, 2001, to regulate the service condition of the Higher Secondary School Teachers working in the Aided Sector, Government introduced Chapter XXXII to the Kerala State Education Rules, 1959. All these Rules prescribe necessary qualifications for appointment to the post of Higher Secondary School Teacher.
18. Entry 25 in List III of Schedule VII of the Constitution of India deals with 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. List III is a concurrent list. Needless to state that, by virtue of Entry 25 in List III of Schedule VII, Legislature of Kerala is empowered to enact laws. Thus, exercising powers under the said entry, the Kerala Education Act, 1958 has been enacted. Section 36 of the Kerala Education Act reads thus:
"36. Power to make rules.- (1) The Government may make rules (either prospectively or retrospectively) for the purpose of carrying into effect the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -
(a) the establishment and maintenance of schools;
(b) the giving of grants and aid to private schools;
(c) the grant of recognition to private schools;W.P.(C).No.23714/2019 22
(d) the levy and collection of fees in aided schools;
(e) regulating the rates of fees in recognised schools; (ee) regulating admission to schools maintained by Government or receiving aid out of state funds, by making special provisions for the advancement of socially and educationally backward classes of citizens and the Scheduled Castes and Scheduled Tribes.
(f) the manner in which accounts, registers and records shall be maintained in schools, and the authority responsible for such maintenance;
(g) the submission of returns, statements, reports and accounts by managers of schools;
(h) the inspection of schools and the officers by whom inspection shall be made;
(i) the mode of keeping and the auditing of accounts of schools;
(j) the mode of ascertaining the value of the schools for payment of compensation in cases of taking over or acquisition;
(k) the standards of education and course of study;
(l) the working of Local Educational Authorities; and
(m) all matters expressly required are allowed by this Act to be prescribed."
19. In exercise of the powers conferred under Clause (dd) of sub-
section (2) of Section 32 read with Section 12A of the National Council for Teacher Education Act, 1993 (73 of 1993), and in supersession of the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 W.P.(C).No.23714/2019 23 except as respects things done or omitted to be done before such supersession, the Council has framed the National Council for Teacher Education (Determination of Minimum Qualifications for Persons to be recruited as Education Teachers and Physical Education Teachers in Pre-
primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014. Regulations 4, 5 and 6 of the said Regulations read thus:-
"4. Qualifications for Recruitment-
(a) The qualifications for recruitment of teachers in any recognized school imparting Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges imparting senior secondary education shall be as given in the First and Second Schedule(s) annexed to these Regulations.
(b) For promotion of teachers the relevant minimum qualifications as specified in the First and Second Schedule(s) are application for consideration from one level to the next level.
5. Power to relax Where the Council is satisfied on receipt of reference from the concerned State Government that special circumstances exist warranting relaxation of some of the provisions of the Regulations, it may grant relaxation of that provision to such extent, for such time period and subject to such conditions and limitations as it may consider necessary, in a just and equitable manner.
W.P.(C).No.23714/2019 24Provided that no relaxation, shall be granted under these Regulations with regard to the minimum qualifications for appointment of teachers for Level 3(Class I to VIII) as specified in the First Schedule.
6. Interpretation If any question arises relating to interpretation of these Regulations or equivalence of various teacher's training programmes, the Council shall decide the same.
First Schedule {See Sub-regulation(2) of Regulation (4)} The National Council for Teacher Education (Determination of Minimum Qualifications for Persons to be recruited as Educational Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014 LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS
1. Pre-School/Nursery (for a. (i) Senior Secondary (class XII or its children in the age group equivalent) from recognized board with at least of 406 years 50% marks OR
2. Pre-School/Nursery
(ii) Senior Secondary (Class XII or its followed by first two years equivalent) from recognized board with at least in a formal school.
45% marks in accordance with the National Council for Teacher Education (form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new courses or training) Regulations, 2002 notified on 13.11.2002 And b. Diploma in Nursery Teacher Education/Pre- School Education/Early Childhood Education Programme (D.E.C.Ed.) of duration of not less than two years or B.Ed. (Nursery) from National Council for Teacher Education recognised institution.
3. Primary and Upper Minimum qualifications as laid down by National Primary (For Classes I to Council for Teacher Education vide its VIII) notification dated 23.08.2010 as amended from W.P.(C).No.23714/2019 25 time to time issued in exercise of the powers conferred under Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009)
4. Secondary/High School (a) Graduate/Post graduate from recognized (for Classes IX-X) University with at least 50% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National council for Teacher Education recognized institution.
Or
(b) Graduate/Post Graduate from recognized University with at least 45% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulations 2007 notified on 10.12.2007} Or
(c) 4-years degree of B.A.B.Ed./B.Sc.Ed. From any National Council for Teacher Education recognized institution.
5. Senior Secondary (a) Post Graduate with at least 50% marks (or /Intermediate (for Classes its equivalent) from recognized University and XI-XII) bachelor of Education (B.Ed.) from National Council for Teacher recognized institution.
Or Post Graduate with at least 45% marks (or its equivalent) from recognised University and Bachelor of Education (B.Ed.) from National council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher W.P.(C).No.23714/2019 26 education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulations 2007 notified on 10.12.2007} Or Post Graduate with at least 50% marks (or its equivalent) from recognized University and B.A.Ed/B.Sc.Ed. from any NCTE recognized institution."
20. The qualifications prescribed by NCTE for appointment to the post of Higher Secondary Teachers vis-a-vis Government of Kerala, as per the Special Rules to regulate the service conditions of High Secondary Teachers working in aided sector, Government schools etc., are reproduced:
NCTE STATE GOVERNMENT
LEVEL MINIMUM ACADEMIC AND
PROFESSIONAL
QUALIFICATIONS
5. Senior (a) Post Graduate with at Higher By transfer (i) Masters Degree in the
Secondary least 50% marks (or its secondary and by concerned subject with
/Intermediate equivalent) from recognized school direct not less than 50% marks
(for Classes XI- University and bachelor of teachers recruitment from any of the
XII) Education (B.Ed.) from Universities in Kerala or
National Council for a qualification
Teacher recognized recognised as equivalent
institution. thereto in the respective
Or subject by any University
in Kerala.
Post Graduate with at least
45% marks (or its (ii) (1) B.Ed. In the
equivalent) from recognised concerned subject
University and Bachelor of acquired after a regular
Education (B.Ed.) from course of study from any
National council for Teacher of the Universities in
Education recognized Kerala or a qualification
institution {in accordance recognized as equivalent
with the National Council thereto by a University
for Teacher Education in Kerala.
(Form of application for
W.P.(C).No.23714/2019 27
recognition, the time limit (2) In the absence of
of submission of persons with B.Ed.
application, determination Degree in the concerned
of norms and standards for subject. B.Ed Degree
recognition of teacher acquired in the
education programmes and concerned Faculty as
permission to start new specified in the Acts and
course or training) Statutes of any of the
Regulations, 2002 notified Universities in Kerala.
on 13.11.2002 and National
Council for Teacher (3) In the absence of
Education (Recognition persons with B.Ed.
Norms and Procedure) Degree as specified in
Regulations 2007 notified items (1) and (2) above,
on 10.12.2007} persons with B.Ed.
Or Degree in any subject
acquired after a regular
Post Graduate with at least course of study from any
50% marks (or its of the Universities in
equivalent) from recognized Kerala or a qualification
University and recognized as equivalent
B.A.Ed/B.Sc.Ed. from any thereto by any of the
NCTE recognized Universities in Kerala.
institution."
(iii) Must have passed
the State Eligibility Test
for the post of Higher
Secondary School
Teacher conducted by
Government of Kerala or
the agency authorised by
the State Government.
21. Material on record discloses that the Secretary to Government, General Education (S.C.) Department, Government of Kerala, has issued a Exhibit-P2 direction to the Director, Higher Secondary Education, Thiruvananthapuram, to approve the appointment of a candidate, who has passed "Siksha Snathak" training course conducted by Dakshira Bharati Hindi Prachar Sabha, as HSST (Hindi), even though she has not obtained a B.Ed. degree from a NCTE recognised institution vide order dated 22.01.2019 [Ext.P2(a)]. Said order is reproduced:
W.P.(C).No.23714/2019 28"Government of Kerala General Education (S.C.) Department 22/01/2019, Thiruvananthapuram No.GEDN SC1/68/2018 - G.Edn Secretary Director, Higher Secondary Education, Thiruvananthapuram.
Sir, Sub:- General Education Department - Higher Secondary Education - Siksha Snatak Course conducted by Dakshin Bharat Hindi Prachar Sabha and B.Ed Course - grant of equivalency - reg.
Ref:- Your letter No.AC.D.A1/108122/2018/H.S.E. dt. 12/04/2018 Inviting your attention to the reference cited, it is informed that since the Siksha Snatak course conducted by Dakshin Bharat Hindi Prachar Sabha passed by Smt. Seena Haridas, who is teaching at Panangad Higher Secondary School, has been approved as equivalent to one year B.Ed course (prior to 2015) by Universities, the applicant's appointment to the post of Higher Secondary School Teacher may be approved.
Yours faithfully, Jyothilakshmi L. Under Secretary"
22. Exhibit-P2(a) is issued on the basis of order dated 1.8.2018 (Exhibit-P3) issued by the University of Kerala, which reads thus:
"UNIVERSITY OF KERALA (Abstract) Recognition of Shiksha Snatak Degree (Regular) awarded by Dakshina Bhara Hindi Prachar Sabha, Madras. Sanctioned-Orders issued.
---------------------------------------------------------------------------------W.P.(C).No.23714/2019 29
ACADEMIC 'C' SECTION No.Ac.C/038038/2018 Dated, Thiruvananthapuram 01.08.2018
--------------------------------------------------------------------------------- Read:- Request from Smt. Sandhya M.N. Dated 08/03/2018 ORDER Sanction has been accorded by the Vice-Chancellor, subject to reporting to the Academic Council, to the Shiksha Snatak Degree (Regular) awarded by Dakshina Bharat Hindi Prachar Sabha, Madras, being recognised as equivalent to one year B.Ed. Degree Course (prior to 2015) of the University of Kerala.
This Order is issued in exercise of powers conferred as per Section 10(..) of Kerala University Act, 1974.
Sd/-
Gopakumar C. Deputy Registrar (Academic I), for Registrar."
23. Mr. T.K. Aravinda Kumar Babu, learned Senior Government Pleader, has relied on the decision of the Hon'ble Supreme Court in State of Tamil Nadu and Another v. S.V.Bratheep (Minor) and Others reported in (2004) 4 SCC 513, wherein it is held as under:
"9. Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to W.P.(C).No.23714/2019 30 be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by the AICTE, It is no doubt true that the AICTE prescribed two modes of admission - One is merely dependent on the qualifying examination and the other dependent upon the marks obtained at the Common Entrance Test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by the AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by the AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr. Preeti Srivastava's case. It is no doubt true as noticed by W.P.(C).No.23714/2019 31 this Court in Adhiyaman's case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastava's case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education."
24. From the statement of Mr. Abraham P. Meachinkara, learned standing counsel appearing for NCTE, it is clear that when no University in the country is offering B.Ed. degree in Computer Science, Computer Application and Electronics, and therefore, prescribing such qualifications for appointment of Higher Secondary Teachers in the schools is unworkable. Certainly, there is a necessity to accept equivalent qualifications for appointment to the post of Higher Secondary Teachers.
25. Further contention of the petitioner that NCTE has not relaxed the abovesaid qualifications of B.Ed. degree is wholly untenable, for the reason that admittedly, there is no such qualification offered by any W.P.(C).No.23714/2019 32 University in the country. If only there is such a course offered by the Universities in the country, the chances of acquiring the said qualifications arise. Reference is made to Regulation 5 of NCTE Regulations (Exhibit-P1), which state that, where the Council is satisfied on receipt of reference from the concerned State Government that special circumstances exist warranting relaxation of some of the provisions of the Regulations, it may grant relaxation of that provision to such extent, for such time period and subject to such conditions and limitations as it may consider necessary, in a just and equitable manner.
Provided that, no relaxation, shall be granted under these Regulations with regard to the minimum qualifications for appointment of teachers for Level 3(Class I to VIII) as specified in the First Schedule. Is there a qualification, B.Ed. Degree in subjects - Computer Science, Computer Application and Electronics, offered by any University in the country?
Admittedly, there is no such course.
26. On the facts and circumstances of this case, we are of the view that if only there is a course offered by any University in the country, i.e., B.Ed degree in Computer Science, Computer Application and Electronics subjects, NCTE can insist for relaxation of the same.
Petitioner has not verified as to the existence of such a course. The course adopted by Government of Kerala in accepting the qualifications W.P.(C).No.23714/2019 33 declared as equivalent to that of B.Ed. degree in the specified subjects, cannot be said to be arbitrary or contrary to NCTE Regulations.
27. Indeed, as per NCTE Regulations, the qualification for B.Ed.
degree is prescribed as one of the qualifications for appointment to the post of Higher Secondary Teachers, but the undisputed fact is that no University in the country is offering B.Ed. course in Computer Science, Economics, Computer Application and Electronics. In the order dated 28.02.2020, we have recorded the statement of learned counsel for the NCTE, that no University in the country is offering B.Ed. degree course in the aforesaid subjects.
28. Judicial notice can be taken that in the country, Computer Science is one of the subjects taught at the Higher Secondary level, for which qualified Higher Secondary Teachers have to be appointed. In the absence of any University in the country, offering B.Ed. Degree course in Computer Application, Computer Science and Electronics, mere prescription of the qualifications in NCTE Regulations is a wasteful exercise. Thus, in order to impart education in Computer Application, Computer Science and Electronics to Higher Secondary students, Government of Kerala have taken the qualifications, certified or equivalent by the Directorate of Higher Education, Thiruvananthapuram and University of Kerala.
W.P.(C).No.23714/2019 3429. Entry 41 of List II of Schedule VII to the Constitution of India speaks about State public services; State Public Service Commission.
Kerala Public Service Act, 1968, has been enacted by the Legislature of State of Kerala, exercising powers under the abovesaid entry. In exercise of the powers under sub-section (1) of Section 2 of the abovesaid Act, Special Rules for Kerala Higher Secondary Education State Service Rules, 2001 and the Kerala Secondary Education Subordinate State Service Rules, 2001 have been framed by the Government of Kerala. Section 2 of the Act, 1968 reads thus:
"(2) Regulation of recruitment and conditions of service.-- (1) The Government may make rules either prospectively or retrospectively to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the State of Kerala.
(2) Every rule made under this section shall be laid as soon as may be after it is made before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly agrees that the rule should be either modified or annulled, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule."W.P.(C).No.23714/2019 35
30. National Council for Teacher Education (NCTE), 1993 has been enacted, in exercise of powers under Entry 66 of List I and Entry 25 of List III of Schedule VII to the Constitution of India. Entry 66 of List I deals with Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
Entry 25 in List III of Schedule VII to the Constitution of India, deals with Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I;
vocation and technical training of labour. Legislative competence of the Kerala Education Act, 1958, enacted in exercise of the powers under Entry 25 in List III of the Constitution of India, has not been questioned and on the facts and circumstances of the case, rule is questioned as repugnant to the NCTE Act, 1993 and the regulations. Similarly, legislative competence in enacting the Kerala Public Service Act, 1968 is not questioned. Both the Acts empower the Government of Kerala to make rules prescribing qualifications for appointment to the post of Higher Secondary Teacher in the schools of Kerala, and admittedly, the legislative competence is not questioned on the grounds of repugnancy.
31. In exercise of powers conferred under Entry 66 of List I and Entry 25 of List III of Schedule VII to the Constitution of India, NCTE Act, 1993 has been enacted.
W.P.(C).No.23714/2019 3632. Let us consider what Article 254 of the Constitution of India states:
"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States:
(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 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 the 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."W.P.(C).No.23714/2019 37
33. Now, let us consider a few decisions of the Hon'ble Supreme Court as to what repugnancy means, and when it arises:
"(i) In Zaverbhai Amaidas v. The State of Bombay (1954 AIR 752), the Hon'ble Supreme Court laid down the various tests to determine the inconsistency between two enactments, and observed as follows:
"The important thing to consider with reference to this provision is whether the legislation is 'in respect of the same matter'. If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Article 254 (2) will have no application. The principle embodied in Section 107 (2) and Article 254 (2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.
It is true, as already pointed out, that on a question Under Article 254 (1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises but the principle on which the Rule of implied repeal rests, namely, that if subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question Under Article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law."
(ii) In Ch. Tika Ramji and Ors. v. The State of Uttar Pradesh and Ors. (1956 SCR 393), the question which arose for consideration W.P.(C).No.23714/2019 38 was as to whether there existed a repugnancy between the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, which was enacted in terms of Entry 33 of List III of the Seventh Schedule of the Constitution and the notifications issued thereunder vis-a-vis the Industries (Development and Regulation) Act, 1951, the Hon'ble Supreme Court referred to Nicholas's Australian Constitution, 2 Ed. Page 303, in the following terms :
"(1) There may be inconsistency in the actual terms of the competing statutes (R. V. Brisbane Licensing Court, (1920 28 CLR 23).
(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code (Clyde Engineering Co.
Ltd. v. Cowburn, (1926) 37 C.L.R. 466).
(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter (Victoria v. Commonwealth, (1937) 58 C.L.R. 618; Wenn v. Attorney-General (Vict.), (1948) 77 C.L.R. 84).
This Court also relied on the decisions in the case of Hume v. Palmer as also the case of Ex Parte Mclean (supra), referred to above and endorsed the observations of Sulaiman, J. in the case of Shyamakant Lal v. Rambhajan Singh [(1939) FCR 188] where Sulaiman, J. observed as follows:
"When the question is whether a Provincial legislation is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other, and care should be taken to see whether the two do not really operate in W.P.(C).No.23714/2019 39 different fields without encroachment. Further, repugnancy must exist in fact, and not depend merely on a possibility."
(Emphasis supplied)
(iii) In Deep Chand v. State of U.P. reported in AIR 1959 SC 648, while examining repugnancy between two statutes, the following principles were enunciated by the Hon'ble Supreme Court:
"(1) There may be inconsistency in the actual terms of the competing statutes;
(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code; and (3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter."
(iv) In the case of State of Orissa v. M.A. Tulloch & Co. [ (1964) 4 SCR 461] Ayyangar J. speaking for the Court observed as follows:
"Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole W.P.(C).No.23714/2019 40 field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation." (Emphasis supplied)
(v) In T.S. Balliah v. T.S. Rangachari [(1969) 3 SCR 65], the Hon'ble Supreme Court held as follows:
"On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:
1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular field, there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.
(Emphasis Supplied)
(vi) In Fatehchand Himmatlal v. State of Maharashtra reported in (1977) 2 SCC 670, the Hon'ble Supreme Court held as under:
"It has been held that the rule as to predominance of Dominion legislation can only be invoked in case of absolutely conflicting legislation in pari materia when it will be an impossibility to give effect to both the Dominion and provincial enactments. There must be a real conflict W.P.(C).No.23714/2019 41 between the two Acts i.e. the two enactments must come into collision. The doctrine of Dominion paramountcy does not operate merely because the Dominion has legislated on the same subject-matter. The doctrine of "occupied field"
applies only where there is a clash between Dominion Legislation and Provincial Legislation within an area common to both. Where both can co-exist peacefully, both reap their respective harvests (Please see: Canadian Constitutional Law by Laskin -- pp. 52-54, 1951 Edn)."
(vii) In M. Karunanidhi v. Union of India reported in (1979) 3 SCC 431, the test for determining repugnancy has been laid down by the Hon'ble Supreme Court as under:
"24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:
1. That there is a clear and direct inconsistency between the Central Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other."
(viii) In Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983) 3 SCR 130, the Hon'ble Apex Court, after referring to earlier judgments, held as follows:
W.P.(C).No.23714/2019 42"67. Article 254 of the Constitution makes provision first, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated 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 of 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, either directly, or 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 W.P.(C).No.23714/2019 43 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. [See: Zaverbhai Amaidas v. State of Bombay (1955 1 SCR 799), M. Karunanidhi v. Union of India (1979 3 SCR 254) and T. Barai v. Henry Ah Hoe and Anr. (1983 1 SCC 177)].
68. We may briefly refer to the three Australian decisions relied upon. As stated above, the decision in Clyde Engineering Company's case (supra), lays down that inconsistency is also created when one statute takes away rights conferred by the other. In Ex Parte McLean's case, supra, Dixon J. laid down another test viz., two statutes could be said to be inconsistent if they, in respect of an identical subject- matter, imposed identical duty upon the subject, but provided for different sanctions for enforcing those duties. In Stock Motor Ploughs Limited's case, supra, Evatt, J. held that even in respect of cases where two laws impose one and the same duty of obedience there may be inconsistency. As already stated the controversy in these appeals falls to be determined by the true nature and character of the impugned enactment, its pith and substance, as to whether it falls within the legislative competence of the State Legislature Under Article 246(3) and does not involve any question of repugnancy under Article 254(1) of the Constitution.
69. We fail to comprehend the basis for the submission put forward on behalf of the appellants that there is repugnancy between Sub-section (3) of Section 5 of the Act W.P.(C).No.23714/2019 44 which is relatable to Entry 54 of List II of the Seventh Schedule and paragraph 21 of the Control order issued by the Central Government Under Sub-section (1) of Section 3 of the Essential Commodities Act relatable to Entry 33 of List III and therefore Sub-section (3) of Section 5 of the Act which is a law made by the State Legislature is void Under Article 254(1). The question of repugnancy Under Article 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy become void. Article 254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of the non-obstante Clause in Article 246(1) read with the opening words "Subject to" in Article 246(3). In such a case, the State law will fail not because of repugnance to the Union law but due to want of legislative competence. It is no doubt true that the expression "a law made by Parliament which Parliament is competent to enact" in Article 254(1) is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place outside the concurrent sphere because Parliament is competent to enact law with respect to subjects included in List III as well as "List I". But if Article 254(1) is read as a whole, it will be seen that it is expressly made subject to Clause (2) which makes reference to repugnancy in the field of Concurrent List-in other words, if W.P.(C).No.23714/2019 45 Clause (2) is to be the guide in the determination of scope of Clause (1), the repugnancy between Union and State law must be taken to refer only to the Concurrent field. Article 254(1) speaks of a State law being repugnant to (a) a law made by Parliament or (b) an existing law. There was a controversy at one time as to whether the succeeding words "with respect to one of the matters enumerated in the Concurrent List" govern both (a) and (b) or (b) alone. It is now settled that the words "with respect to" qualify both the clauses in Article 254(1) viz. a law made by Parliament which Parliament is competent to enact as well as any provision of an existing law. The under lying principle is that the question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e. with respect to one of the matters enumerated in the Concurrent List. Hence, Article 254(1) can not apply unless both the Union and the State laws relate to a subject specified in the Concurrent List, and they occupy the same field.
70. This construction of ours is supported by the observations of Venkatarama Ayyar, J. speaking for the Court in A.S. Krishna v. Madras State (AIR 1957 SC 297), while dealing with Section 107(1) of the Government of India Act, 1935 to the effect:
"For this Section to apply, two conditions must be fulfilled: (1) The provisions of the Provincial law and those of the Central legislation must both be in respect of a matter which is enumerated in the Concurrent List, and (2) they must be repugnant to each other. It is only when both these requirements are satisfied that the Provincial law will, to the extent of the repugnancy, become void."
(ix) In Vijay Kumar Sharma and Ors. Etc v. State of Karnataka (1990) 2 SCC 562, the Hon'ble Supreme Court held as follows:-
W.P.(C).No.23714/2019 46"Ranganath Misra, J., in a concurring judgment, posed the question as to whether when the State law is under one head of legislation in the Concurrent List and the Parliamentary legislation is under another head in the same list, can there be repugnancy at all? The question was answered thus:
"13. In Clause (1) of Article 254 it has been clearly indicated that the competing legislations must be in respect of one of the matters enumerated in the Concurrent List. The seven Judge Bench examining the vires of the Karnataka Act did hold that the State Act was an Act for acquisition and came within Entry 42 of the Concurrent List. That position is not disputed before us. There is unanimity at the bar that the Motor Vehicles Act is a legislation coming within Entry 35 of the Concurrent List. Therefore, the Acquisition Act and the 1988 Act as such do not relate to one common head of legislation enumerated in the Concurrent List and the State Act and the parliamentary statute deal with different matters of legislation.
19. A number of precedents have been cited at the hearing and those have been examined and even some which were not referred to at the bar. There is no clear authority in support of the stand of the Petitioners -- where the State law is under one head of legislation in the Concurrent List, the subsequent Parliamentary legislation is under another head of legislation in the same list and in the working of the two it is said to give rise to a question of repugnancy."
(x) In Girnar Traders v. State of Maharashtra reported in (2011) 3 SCC 1, the Hon'ble Supreme Court held as follows:
W.P.(C).No.23714/2019 47"173. The doctrine of pith and substance can be applied to examine the validity or otherwise of a legislation for want of legislative competence as well as where two legislations are embodied together for achieving the purpose of the principal Act. Keeping in view that we are construing a federal Constitution, distribution of legislative powers between the Centre and the State is of great significance. Serious attempt was made to convince the Court that the doctrine of pith and substance has a very restricted application and it applies only to the cases where the court is called upon to examine the enactment to be ultra vires on account of legislative incompetence.
174. We are unable to persuade ourselves to accept this proposition. The doctrine of pith and substance find its origin from the principle that it is necessary to examine the true nature and character of the legislation to know whether it falls in a forbidden sphere. This doctrine was first applied in India in Prafulla Kumar Mukherjee v. Bank of Commerce Ltd. (AIR 1947 PC 60). The principle has been applied to the cases of alleged repugnancy and we see no reason why its application cannot be extended even to the cases of present kind which ultimately relates to statutory interpretation founded on source of legislation.
175. In Union of India v. Shah Goverdhan L. Kabra Teachers' College [(2002) 8 SCC 228], this Court held that in order to examine the true character of the enactment, the entire Act, its object and scope is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine of pith and substance has to be W.P.(C).No.23714/2019 48 applied not only in cases of conflict between the powers of two legislatures but also in any case where the question arises whether a legislation is covered by a particular legislative field over which the power is purported to be exercised. In other words, what is of paramount consideration is that the substance of the legislation should be examined to arrive at a correct analysis or in examining the validity of law, where two legislations are in conflict or alleged to be repugnant.
176. An apparent repugnancy upon proper examination of substance of the Act may not amount to a repugnancy in law. Determination of true nature and substance of the laws in question and even taking into consideration the extent to which such provisions can be harmonised, could resolve such a controversy and permit the laws to operate in their respective fields. The question of repugnancy arises only when both the legislatures are competent to legislate in the same field i.e. when both, the Union and the State laws, relate to a subject in List III {Hoechst Pharmaceuticals Ltd. v. State of Bihar [(1983) 4 SCC 45]}.
178. On the contrary, it is contended on behalf of the respondent that the planned development and matters relating to management of land are relatable to Entry 5/18 of the State List and acquisition being an incidental act, the question of conflict does not arise and the provisions of the State Act can be enforced without any impediment. This controversy need not detain us any further because the contention is squarely answered by the Bench of this Court in Bondu Ramaswamy v. Bangalore Development Authority [(2010) 7 SCC 129], W.P.(C).No.23714/2019 49
179. The Court has to keep in mind that function of these constitutional lists is not to confer power, but to merely demarcate the legislative heads or fields of legislation and the area over which the appropriate legislatures can operate. These entries have always been construed liberally as they define fields of power which spring from the constitutional mandate contained in various clauses of Article 246. The possibility of overlapping cannot be ruled out and by advancement of law this has resulted in formulation of, amongst others, two principal doctrines i.e. doctrine of pith and substance and doctrine of incidental encroachment. The implication of these doctrines is, primarily, to protect the legislation and to construe both the laws harmoniously and to achieve the object or the legislative intent of each Act. In the ancient case of Subrahmanyan Chettiar v. Muttuswami Goundan (AIR 1941 FC 47), Sir. Maurice Gwyer, C.J. Supported the principle laid down by the Judicial Committee as a guideline i.e. pith and substance to be the true nature and character of the legislation, for the purpose of determining as to which list the legislation belongs to.
181. The primary object of applying these principles is not limited to determining the reference of legislation to an entry in either of the Lists, but there is a greater legal requirement to be satisfied in this interpretative process. A statute should be construed so as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat. Once it is found that in pith and substance, an Act is a law on a permitted field then any incidental encroachment, even on a forbidden field, does not affect the competence of the legislature to enact that law W.P.(C).No.23714/2019 50 [State of Bombay v. Narottamdas Jethabha (AIR 1951 SC 69)].
182. To examine the true application of these principles, the scheme of the Act, its object and purpose, the pith and substance of the legislation are required to be focused at, to determine its true nature and character. The State Act is intended only to ensure planned development as a statutory function of the various authorities constituted under the Act and within a very limited compass. An incidental cause cannot override the primary cause. When both the Acts can be implemented without conflict, then need for construing them harmoniously arises.
187. Even if fractional overlapping is accepted between the two statutes, then it will be saved by the doctrine of incidental encroachment, and it shall also be inconsequential as both the constituents have enacted the respective laws within their legislative competence and, moreover, both the statutes can eloquently coexist and operate with compatibility. It will be in consonance with the established canons of law to tilt the balance in favour of the legislation rather than invalidating the same, particularly, when the Central and State Law can be enforced symbiotically to achieve the ultimate goal of planned development."
(xi) In Rajiv Sarin v. State of Uttarakhand reported in (2011) 8 SCC 708, the Hon'ble Supreme Court examined the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 vis-à- vis the Forest Act, 1927 and found that there was no repugnancy between the two, and held as follows:
W.P.(C).No.23714/2019 51"52. The aforesaid position makes it quite clear that even if both the legislations are relatable to List III of the Seventh Schedule of the Constitution, the test for repugnancy is whether the two legislations "exercise their power over the same subject-matter..." and secondly, whether the law of Parliament was intended "to be exhaustive to cover the entire field". The answer to both these questions in the instant case is in the negative, as the Indian Forest Act, 1927 deals with the law relating to forest transit, forest levy and forest produce, whereas the KUZALR Act deals with the land and agrarian reforms.
53. In respect of the Concurrent List under Seventh Schedule to the Constitution, by definition both the legislatures viz. the Parliament and the State legislatures are competent to enact a law. Thus, the only way in which the doctrine of pith and substance can and is utilised in determining the question of repugnancy is to find out whether in pith and substance the two laws operate and relate to the same matter or not. This can be either in the context of the same Entry in List III or different Entries in List III of the Seventh Schedule of the Constitution. In other words, what has to be examined is whether the two Acts deal with the same field in the sense of the same subject matter or deal with different matters."
(Emphasis Supplied)
(xii) In State of Kerala and Others v. M/s. Mar Appraem Kuri Co. Ltd. and Another reported in (2012) 7 SCC 106, the Hon'ble Supreme Court, while considering the validity of Chitties Act, 1975 and while adverting to repugnancy, explained when repugnancy arises and the impact thereof.
W.P.(C).No.23714/2019 52"17. Under clause (1) of Art.254, a general rule is laid down to say that the Union law shall prevail where the State law is repugnant to it. The question of repugnancy arises only with respect to the subjects enumerated in the Concurrent List as both the Parliament and the State Legislatures have concurrent powers to legislate over the subject - matter in that List. In such cases, at times, conflict arises. Clause (1) of Art.254 states 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. Thus, Art.254(1) also gives supremacy to the law made by Parliament, which Parliament is competent to enact. In case of repugnancy, the State Legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Art.254(1) and both the Acts would prevail. Thus, Art.254 is attracted only when Legislations covering the same matter in List III made by the Centre and by the State operate on that subject; both of them (Parliament and the State Legislatures) being competent to enact laws with respect to the subject in List III. In the present case, Entry 7 of List III in the Seventh Schedule deals with the subject of 'Contracts'. It also covers special contracts. Chitties are special contracts. Thus, the Parliament and the State Legislatures are competent to enact a law with respect to such contracts. The question of repugnancy between the Parliamentary Legislation and State Legislation arises in two ways. First, where the W.P.(C).No.23714/2019 53 Legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict. Second, where the two Legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, the Parliamentary Legislation will predominate, in the first, by virtue of non - obstante clause in Art.246(1); in the second, by reason of Art.254(1). Art.254(2) deals with a situation where the State Legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State Legislation. In clause (1) of Art.254 the significant words used are 'provision of a law made by the Legislature of a State', 'any provision of a law made by Parliament which Parliament is competent to enact', 'the law made by Parliament, whether passed before or after the law made by the Legislature of such State', and 'the law made by the Legislature of the State shall, to the extent of repugnancy, be void'. Again, clause (2) of Art.254 speak's of 'a law made by the Legislature of a State', 'an earlier law made by Parliament', and 'the law so made by the Legislature of such State'. Thus, it is noticeable that throughout Art.254 the emphasis is on law - making by the respective Legislatures. Broadly speaking, law - making is exclusively the function of the Legislatures (see Art.79 and Art.168). The President and the Governor are a part of the Union or the Legislatures of the States. As far as the Parliament is concerned, the legislative process is complete as soon as the procedure prescribed by Art.107 of the Constitution and connected provisions are followed and the W.P.(C).No.23714/2019 54 Bill passed by both the Houses of Parliament has received the assent of the President under Art.111. Similarly, a State legislation becomes an Act as soon as a Bill has been passed by the State Legislature and it has received the assent of the Governor in accordance with Art.200. It is only in the situation contemplated by Art.254(2) that a State Legislation is required to be reserved for consideration and assent by the President. Thus, irrespective of the date of enforcement of a Parliamentary or State enactment, a Bill becomes an Act and comes on the Statute Book immediately on receiving the assent of the President or the Governor, as the case may be, which assent has got to be published in the official gazette. The Legislature, in exercise of its legislative power, may either enforce an Act, which has been passed and which has received the assent of the President or the Governor, as the case may be, from a specified date or leave it to some designated authority to fix a date for its enforcement. Such legislations are conditional legislations as in such cases no part of the legislative function is left unexercised. In such legislations, merely because the Legislature has postponed the enforcement of the Act, it does not mean that the law has not been made. In the present case, the Central Chit Funds Act, 1982 is a law - made. The Chit Funds Bill was passed by both Houses of Parliament and received the assent of the President on 19.08.1982. It came on the Statute Book as the Chit Funds Act, 1982 (40 of 1982). S.1(2) of the said Act states that the Act extends to the whole of India, except the State of Jammu and Kashmir whereas S.1(3) states that it shall come into force on such date as the Central W.P.(C).No.23714/2019 55 Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different States. The point to be noted is that the law - making process ended on 19/08/1982. S.1(3) is a piece of conditional legislation. As stated, in legislations of such character, merely because the legislation has postponed the enforcement of the Act, it does not mean that the law has not been made. In the present case, after enactment of the Chit Funds Act, 1982 on 19/08/1982, the said Act has been applied to 17 States by notifications issued from time to time under S.1(3). How could S.1(3) operate and make the said Act applicable to 17 States between 02/04/1984 and 15/09/2008 and / or postpone the commencement of the Act for certain other States including State of Kerala, Gujarat, Haryana, etc. unless that Section itself is in force? To put the matter in another way, if the entire Act including S.1(3) was not in operation on 19/08/1982, how could the Central Government issue any notification under that very Section in respect of 17 States? There must be a law authorizing the Government to bring the Act into force. Thus, S.1(3) came into force immediately on passing of the Act (see -- A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, 1956 KHC 399 : AIR 1956 SC 246 : 1955 (2) SCR 1196 :
1956 (29) ITR 349]). Thus, the material dates, in our opinion, are the dates when the two enactments received the assent of the President which in the case of Central Act is 19/08/1982 while in the case of the Kerala Chitties Act, 1975, it is 18/07/1975. There is one more way in which this problem can be approached. Both the Courts below have proceeded on the basis that there are conflicting provisions W.P.(C).No.23714/2019 56 in the Central Act, 1982 vis-a-vis the State Act, 1975 (see paragraphs 13, 14 & 15 of the impugned judgment). In our view, the intention of the Parliament was clearly to occupy the entire field falling in Entry 7 of List III. The 1982 Act was enacted as a Central Legislation to 'ensure uniformity in the provisions applicable to chit fund institutions throughout the country as such a Central Legislation would prevent such institutions from taking advantage either of the absence of any law governing chit funds in a State or exploit the benefit of any lacuna or relaxation in any State law by extending their activities in such States'. The background of the enactment of the Central Chit Funds Act, which refers to the Report of the Banking Commission has been exhaustively dealt with in the case of Shriram Chits and Investment (P) Ltd. v. Union of India, 1993 KHC 818 : 1993 Supp (4) SCC 226 : AIR 1993 SC 2063 as also in the Statement of Objects and Reasons of the 1982 Act. The clear intention of enacting the Central 1982 Act, therefore, was to make the Central Act a complete code with regard to the business of conducting chit funds and to occupy the legislative field relating to such chit funds. Moreover, the intention to override the State laws is clearly manifested in the Central Act, especially S.3 which makes it clear that the provisions of the Central Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force. Similarly, S.90 of the Central Act providing for the repeal of State legislations also manifests the intention on the part of the Parliament to occupy the field hitherto occupied by State Legislation. Each and every aspect relating to the conduct of the chits W.P.(C).No.23714/2019 57 as is covered by the State Act has been touched upon by the Central Act in a more comprehensive manner. Thus, on 19/08/1982, the Parliament in enacting the Central law has manifested its intention not only to override the existing State Laws, but to occupy the entire field relating to Chits, which is a special contract, coming under Entry 7 of List III. Consequently, the State Legislature was divested of its legislative power / authority to enact S.4(1a) vide Finance Act No. 7 of 2002 on 29/07/2002, save and except under Art.254(2) of the Constitution. Thus, S.4(1a) became void for want of assent of the President under Art.254(2). Let us assume for the sake of argument that the State of Kerala were to obtain the assent of the President under Art.254(2) of the Constitution in respect of the insertion of S.4(1a) by Finance Act No. 7 of 2002. Now, Art.254(2) deals with the situation where State Legislation is reserved and having obtained the President's assent, prevails in the State over the Central Law. However, in view of the proviso to Art.254(2), the Parliament could have brought a legislation even to override such assented to State Finance Act No. 7 of 2002 without waiting for the Finance Act No. 7 of 2002 to be brought into force as the said proviso states that nothing in Art.254(2) 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 State Legislature) [emphasis supplied]. Thus, Parliament in the matter of enacting such an overriding law need not wait for the earlier State Finance Act No. 7 of 2002 to be brought into force. In other words, Parliament has the power under the said proviso to override the W.P.(C).No.23714/2019 58 Finance Act No. 7 of 2002 even before it is brought into force. Therefore, we see no justification for construing Art.254(2) read with the proviso in a manner which inhibits the Parliament from repealing, amending, or varying a State Legislation which has received the President's assent under Art.254(2), till that State Legislation is brought into force. We have to read the word 'made' in the proviso to Art.254(2) in a consistent manner. The entire above discussion on Art.245, Art.246, Art.250, Art.251 is only to indicate that the word 'made' has to be read in the context of law - making process and, if so read, it is clear that to test repugnancy one has to go by the making of law and not by its commencement."
(xii) In Innoventive Industries Ltd. v. ICICI Bank and Ors. [(2018) 1 SCC 407], the Hon'ble Apex Court observed as follows:
"50. The case law referred to above, therefore, yields the following propositions:
i) Repugnancy Under Article 254 arises only if both the Parliamentary (or existing law) and the State law are referable to List III in the 7 th Schedule to the Constitution of India.
ii) In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes as a whole fall. It is only if both fall, as a whole, within the Concurrent List, that repugnancy can be applied to determine as to whether one particular statute or part thereof has to give way to the other.
iii) The question is what is the subject matter of the statutes in question and not as to which entry in List III the competing statutes are traceable, as the entries in List III are only fields of legislation; also, the language of Article W.P.(C).No.23714/2019 59 254 speaks of repugnancy not merely of a statute as a whole but also "any provision" thereof.
iv) Since there is a presumption in favour of the validity of statutes generally, the onus of showing that a statute is repugnant to another has to be on the party attacking its validity. It must not be forgotten that that every effort should be made to reconcile the competing statutes and construe them both so as to avoid repugnancy - care should be taken to see whether the two do not really operate in different fields qua different subject matters.
v) Repugnancy must exist in fact and not depend upon a mere possibility.
vi) Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into direct collision with each other, reaching a situation where it is impossible to obey the one without disobeying the other. This happens when two enactments produce different legal results when applied to the same facts.
vii) Though there may be no direct conflict, a State law may be inoperative because the Parliamentary law is intended to be a complete, exhaustive or exclusive code. In such a case, the State law is inconsistent and repugnant, even though obedience to both laws is possible, because so long as the State law is referable to the same subject matter as the Parliamentary law to any extent, it must give way. One test of seeing whether the subject matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively put, where Parliamentary legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provisions made in it, there can be said to be no repugnancy.
viii) A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject W.P.(C).No.23714/2019 60 matter. This need not be in the form of a direct conflict, where one says "do" and the other says "don't". Laws under this head are repugnant even if the Rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the Rule of implied repeal rests, namely, that if the subject matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so that they cannot both stand together, then the State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof deals not with the matters which formed the subject matter of Parliamentary legislation but with other and distinct matters though of a cognate and allied nature, there is no repugnancy.
ix) Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State's statute which is found to be repugnant is to be declared void.
x) The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary legislation or an existing law within that State. Here again, the State law must give way to any subsequent Parliamentary law which adds to, amends, varies or repeals the law made by the legislature of the State, by virtue of the operation of Article 254(2) proviso."
34. Let us consider a few decisions on entries in the Constitution of India, which are extracted hereunder:
(i) In Union of India v. Harbhajan Singh Dhillon [(1971) 2 SCC 779], while interpreting the Entries in the Constitutional Lists, a Seven-Judge Bench of the Hon'ble Supreme Court, held as under:
"22. It must be remembered that the function of the lists is not to confer powers; they merely demarcate the legislative field. The Federal Court, while interpreting W.P.(C).No.23714/2019 61 the Government of India Act in Governor-General-in- Council v. Releigh Investment Co. 1944 FCR 229, 261 observed:
"It would not be right to derive the power to legislate on this topic merely from the reference to it in the List, because the purpose of the Lists was not to create or confer powers, but only to distribute between the Federal and the Provincial Legislatures the powers which had been conferred by Sections 99 and 100 of the Act."
23. In Harakchand Ratanchand Banthia v. Union of India [(1969) 2 SCC 166] Ramaswami, J., speaking on behalf of the Court, while dealing with the Gold (Control) Act (45 of 1968), observed as follows:
"Before construing these entries it is useful to notice some of the well-settled rules of interpretation laid down by the Federal Court and by this Court in the matter of construing the entries. The power to legislate is given to the appropriate Legislature by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate Legislatures can operate."
24. We are compelled to give full effect to Article 248 because we know of no principle of construction by which we can cut down the wide words of a substantive article like Article 248 by the wording of entry in Schedule VII. If the argument of the respondent is accepted. Article 248 would have to be re- drafted as follows:
"Parliament has exclusive power to make any law with respect to any matter not mentioned in the Concurrent List or State List, provided it has not been mentioned by way of exclusion in any entry in List I. We simply have not the power to add a proviso like this to Article 248."W.P.(C).No.23714/2019 62
(ii) In Ujagar Prints v. Union of India [(1989) 3 SCC 488], the Hon'ble Apex Court described these Entries and stated the principles which would help in interpretation of these Entries. While enunciating these principles, the Court held as under:
"48. Entries to the legislative lists, it must be recalled, are not sources of the legislative power but are merely topics or fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The expression "with respect to" in Article 246 brings in the doctrine of "Pith and Substance" in the understanding of the exertion of the legislative power and wherever the question of legislative competence is raised the test is whether the legislation, looked at as a whole, is substantially 'with respect to' the particular topic of legislation. If the legislation has a substantial and not merely a remote connection with the entry, the matter may well be taken to be legislation on the topic."
(iii) The Hon'ble Supreme Court, while referring to the principles of interpretation of Entries in the legislative Lists, expanded the application to all ancillary or subsidiary matters in Jijubhai Nanabhai Kachar v. State of Gujarat reported in (1995) Supp. 1 SCC 596 and held as under:
"7. It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related articles of the Constitution. therefore, the power to make the Amendment Act is derived not from the respective W.P.(C).No.23714/2019 63 entries but under Article 246 of the Constitution. The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude...."
(iv) In State of West Bengal v. Kesoram Industries Ltd. reported in (2004) 10 SCC 201, the Hon'ble Apex Court observed as follows:
"That the entries in two lists (Lists I and II in that case) must be construed in a manner so as to avoid conflict. While facing an alleged conflict between the entries in these Lists, what has to be decided first is whether there is actually any conflict. If there is none, the question of application of the non obstante clause does not arise. In case of a prima facie conflict, the correct approach to the question is to see whether it is possible to effect reconciliation between the two entries so as to avoid such conflict. Still further, the Court held that in the event of a conflict it should be determined by applying the doctrine of pith and substance to find out, whether, between entries W.P.(C).No.23714/2019 64 assigned to two different legislatures, the particular subject of the legislation falls within the ambit of the one or the other. Where there is a clear and irreconcilable conflict between the Union and a Provincial Legislature it is the law of the Union that must prevail. In that event the court can proceed to examine whether an incidental encroachment upon another field of legislation can be ignored, reference can be made to paras 31, 75 and 129 of that judgment."
(v) A Constitution Bench of the Hon'ble Supreme Court, while answering a Presidential Reference and deciding connected cases, in Association of Natural Gas v. Union of India reported in (2004) 4 SCC 489, stated the principle that it is the duty of the Court to harmonize laws and resolve conflicts, and, in para 13, held as under:
"13. The Constitution of India delineates the contours of the powers enjoyed by the State Legislature and Parliament in respect of various subjects enumerated in the Seventh Schedule. The rules relating to distribution of powers are to be gathered from the various provisions contained in Part XI and the legislative heads mentioned in the three lists of the Schedule. The legislative powers of both the Union and State Legislatures are given in precise terms. Entries in the lists are themselves not powers of legislation, but fields of legislation. However, an entry in one list cannot be so interpreted as to make it cancel or obliterate another entry or make another entry meaningless. In case of apparent conflict, it is the duty of the court to iron out the crease and avoid W.P.(C).No.23714/2019 65 conflict by reconciling the conflict. If any entry overlaps or is in apparent conflict with another entry, every attempt shall be made to harmonise the same."
(vi) In Offshore Holdings Pvt. Ltd. vs. Bangalore Development Authority and Ors. reported in (2011) 3 SCC 139, the Hon'ble Apex Court held as follows:
"The entries in the legislative lists are not the source of powers for the legislative constituents but they merely demarcate the fields of legislation. It is by now well-settled law that these entries are to be construed liberally and widely so as to attain the purpose for which they have been enacted. Narrow interpretation of the entries is likely to defeat their object as it is not always possible to write these entries with such precision that they cover all possible topics and without any overlapping.
The Courts have taken a consistent view and it is well-settled law that various Entries in three lists are not powers of legislation but are fields of legislation. The power to legislate flows, amongst others, from Article 246 of the Constitution. Article 246(2), being the source of power incorporates the non-obstante clause, 'notwithstanding anything contained in Clause (3), Parliament and, subject to Clause (1), the legislature of any State' have power to make laws with respect to any of the matters enumerated in List III. Article 246 clearly demarcates the fields of legislative power of the two legislative constituents. It clearly states on what field, with reference to the relevant constitutional Lists and W.P.(C).No.23714/2019 66 which of the legislative constituents has power to legislate in terms of Article 246 of the Constitution. While the States would have exclusive power to legislate under Article 246(2) of the Constitution in relation to List II; the Concurrent List keeps the field open for enactment of laws by either of the legislative constituents.
In the event the field is covered by the Central legislation, the State legislature is not expected to enact a law contrary to or in conflict with the law framed by the Parliament on the same subject. In that event, it is likely to be hit by the rule of repugnancy and it would be a stillborn or invalid law on that ground. Exceptions are not unknown to the rule of repugnancy/covered field. They are the constitutional exceptions under Article 254(2) and the judge enunciated law where the Courts declare that both the laws can co-exist and operate without conflict. The repugnancy generally relates to the matters enumerated in List III of the Constitution.
The Court has to keep in mind that it is construing a Federal Constitution. It is the essence of a Federal Constitution that there should be a distribution of legislative powers between the Centre and the Provinces. In a Federal Constitution unlike a legally omnipotent legislature like British Parliament, the constitutionality of a law turns upon the construction of entries in the legislative Lists. If a legislature with limited or qualified jurisdiction transgresses its powers, such transgression may be open, direct or overt, or disguised, indirect or covert and it may encroach upon a W.P.(C).No.23714/2019 67 field prohibited to it. Wherever legislative powers are so distributed, situation may arise where two legislative fields might apparently overlap, it is then the duty of the Courts, however, difficult it may be, to ascertain to what degree and to what extent, the Authority to deal with the matters falling within these classes of subjects exist in each legislature and to define, in the particular case before them, the limits of respective powers. It could not have been the intention that a conflict should exist; and, in order to prevent such a result the two provisions must be read together, and the language of one interpreted, and, where necessary modified by that of the other. [Refer A.S. Krishna v. Madras State (AIR 1957 SC 297) and Federation of Hotels and Restaurants v. Union of India (1989) 3 SCC 634].
Article 246 lays down the principle of federal supremacy that in case of inevitable and irreconcilable conflict between the Union and the State powers, the Union power, as enumerated in List I, shall prevail over the State and the State power, as enumerated in List II, in case of overlapping between List III and II, the former shall prevail. This principle of federal supremacy laid down in Article 246(1) of the Constitution should normally be resorted to only when the conflict is so patent and irreconcilable that co-existence of the two laws is not feasible. Such conflict must be an actual one and not a mere seeming conflict between the Entries in the two Lists. While Entries have to be construed liberally, their irreconcilability and impossibility of co- existence should be patent.W.P.(C).No.23714/2019 68
One, who questions the constitutional validity of a law as being ultra vires, takes the onus of proving the same before the Court. Doctrines of pith and substance, overlapping and incidental encroachment are, in fact, species of the same law. It is quite possible to apply these doctrines together to examine the repugnancy or otherwise of an encroachment. In a case of overlapping, the Courts have taken the view that it is advisable to ignore an encroachment which is merely incidental in order to reconcile the provisions and harmoniously implement them. If, ultimately, the provisions of both the Acts can co-exist without conflict, then it is not expected of the Courts to invalidate the law in question.
The repugnancy would arise in the cases where both the pieces of legislation deal with the same matter but not where they deal with separate and distinct matters, though of a cognate and allied character. Where the State legislature has enacted a law with reference to a particular Entry with respect to which, the Parliament has also enacted a law and there is an irreconcilable conflict between the two laws so enacted, the State law will be a stillborn law and it must yield in favour of the Central law. To the doctrine of occupied/overlapping field, resulting in repugnancy, the principle of incidental encroachment would be an exception.
It is an established principle of law that an Act should be construed as a complete instrument and not with reference to any particular provision or provisions. "That you must look at the whole instrument inasmuch as W.P.(C).No.23714/2019 69 there may be inaccuracy and inconsistency; you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it", said Lord Halsbury. When a law is impugned as ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do so one must have regard to the enactment as a whole, to its object and to the scope and effect of its provisions. It would be quite an erroneous approach to view such a statute not as an organic whole but as a mere collection of sections, then disintegrate it into parts, examine under what head of legislation those parts would severally fall and by that process determine what portions thereof are intra vires, and what are not [Reference can be made to A.S. Krishna's case (supra)."
35. Needless to state that, onus is on the party, who raises a plea of repugnancy between the two enactments - Central and State, and the extent to which it is repugnant, and consequently invocation of Article 254(1) of the Constitution of India, to substantiate the same. Though the laws operate in the same field of education, repugnancy should be visible and even taking it for granted, every effort should be made to reconcile the same. Question to be considered is whether there is encroachment or overlapping, by the State Legislature, and to what extent, causing repugnancy.
W.P.(C).No.23714/2019 7036. In Vijay Kumar Sharma and Others v. State of Karnataka and Others reported in (1990) 2 SCC 562, the Hon'ble Supreme Court at paragraph 34, held as follows:
"34. The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central Legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for deter mining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article."
37. Giving due consideration to the decisions of the Hon'ble Supreme Court on repugnancy and entries in the Constitution of India, and on the facts and circumstances of this case, we do not find that Rule W.P.(C).No.23714/2019 71 5 of Special Rules for Kerala Higher Secondary Education State Service Rules, 2001, the Kerala Higher Secondary Education Subordinate State Service Rules, and Rule 6 of chapter XXXII of the Kerala Education Rules, 1959 are repugnant to Exhibit-P1 NCTE Regulations. Rules framed under the abovesaid Acts are valid.
In the light of the above discussion and decisions, writ petition is dismissed. No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Krj W.P.(C).No.23714/2019 72 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE NATIONAL COUNCIL FOR TEACHER EDUCATION (DETERMINATION OF MINIMUM QUALIFICATIONS FOR PERSONS TO BE RECRUITED AS EDUCATION TEACHERS AND PHYSICAL EDUCATION TEACHERS IN PRE-PRIMARY PRIMARY UPPER PRIMARY SECONDARY SENIOR SECONDARY OR INTERMEDIATE SCHOOLS OR COLLEGES), REGULATIONS, 2014 ISSUED BY THE NATIONAL COUNCIL FOR TEACHER EDUCATION UNDER THE NATIONAL COUNCIL FOR TEACHER EDUCATION ACT, 1993.
EXHIBIT P2 COPY OF ORDER NO. GEDN-SC1/68/2018/G.EDN DATED 22.1.2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 A ENGLISH TRANSLATION OF ORDER NO. GEDNSC1/68/2018/G.EDN DATED 22.1.2019 ISSUED BY THE 1ST RESPONDENT WHICH IS PRODUCED AS EXT.
P2 DOCUMENT IN THE WRIT PETITION.
EXHIBIT P3 COPY OF ORDER NO. AC.C/038038/2018 DATED 1.8.2018 ISSUED BY THE UNIVERSITY OF KERALA.
RESPONDENTS' EXHIBITS:- 'NIL' //TRUE COPY// PA TO CJ