K. C. Garg v. State of U. P. — 1991 DIGILAW 566 (ALL)

JUDGMENT M.P. Singh, J. - This bunch of writ petitions filed by the teachers of The King George Medical College, Lucknow can be divided into two Groups A (1) Writ No. 4919 of 1981 Dr. K.C. Garg and others v. State of U.P. and others, (2) Writ No. 5027 of 1981 Dr. N.K. Agrawal v. State of U.P. and others, (3) Writ No. 5607 of 1981 Dr. P.D. Kapoor v. State of U.P. and others, challenging the validity of 'The King George's Medical College and the Gandhi Memorial and Associated Hospitals (Taking Over) Act, 1983 hereinafter referred to as 'the Taking Over Act'. B (1) Writ No. 13474 of 1990 Dr. R.N. Jaiswal and others v. State of U.P. and others, (2) Writ No. 1 of 1991 Dr. Dhaneshwar Dayal v. State of U.P. (3) Writ No. 2 of 1991 Dr. G.P. Agrawal v. State of U.P. (4) Writ No. 10 of 1991 Dr. B.N. Singh and others v. State of U.P. challenging the validity of the U.P. State Medical Colleges Teachers Service Rules, 1990 (hereinafter referred to as the 1990 Rules). 2. If the Taking Over Act is held to be invalid and ultra vires of the provisions of the Constitution then the logical conclusion would be that the petitioners continue to be the teachers of the Lucknow University. The application of the 1990 Rules becomes automatically excluded because they apply to the government servants only. In that case it will not be necessary for us to decide the validity of the 1990 Rules. 3. We are concerned with the constitutional validity of the Taking Over Act only. 4. The relevant facts of all the writ petitions are substantially similar. So it would be enough if we state the broad features of the controversy raised by the petitioner. The facts of each case is not necessary to be discussed. 5. All the writ petitions raise almost common question of law. Accordingly they are being decided by a common judgment. 6. Heard Sri R.N. Trivedi and Sri S.K. Kalia on behalf of the petitioners and the learned Advocate General on behalf of the State. 7. The King George Medical College, Lucknow (in short 'the medical College') is a gift given to the City of Lucknow by the then Nawabs of Oudh. They parted with their substantial Wealth for establishing it in the year 1918. 7. The King George Medical College, Lucknow (in short 'the medical College') is a gift given to the City of Lucknow by the then Nawabs of Oudh. They parted with their substantial Wealth for establishing it in the year 1918. It was maintained and managed by the Government. 8. On 1861921 the Government passed an order transferring the said medical college along with the attached hospitals to the Lucknow University with effect from 131921. From the said date it became a constituent college of the Lucknow University. 9. The terms and conditions of service of the teachers of the Medical College were governed by the Lucknow University Act, Statute and the Ordinances. 10. Thereafter the Legislature enacted the U.P. State Universities Act, 1973 (in short 'the Universities Act') providing an uniform code for all the Universities of the State. 11. In order to appreciate the controversy we have to look into the statutory framework of the Lucknow University Act, U.P. State Universities Act, the Statutes and Ordinances framed thereunder systematically. 12. Since 1921 the medical college remained a constituent college of the Lucknow University. The same character has been retained even today as would be evident from the following discussions. 13. Section 2(aaa) of the Lucknow University Act defines 'Constituent College' as under: Constituent College means an institution maintained by the University or by the State Government and authorised to conduct all the teaching necessary for admission to a degree of the University. 14. Section 2(6) of the Universities Act defines 'Constituent College' as under: Constituent College means an institution maintained by the University or by the State Government and named as such by the Statutes. 15. Section 41 of the Universities Act deals with the Constituent College as follows: 41. Constituent Colleges. (1) Constituent colleges shall be such as may be named by the Statutes. (2) The principal of a constituent college shall be responsible for the discipline of the students enrolled in the college and shall have general control over the ministerial and inferior staff allotted to the college. He shall exercise such other power as may be prescribed by the Statutes. 16. Statute 12.01 (iii) mentions The King George Medica College, Lucknow as one of the constituent college of the University. 17. He shall exercise such other power as may be prescribed by the Statutes. 16. Statute 12.01 (iii) mentions The King George Medica College, Lucknow as one of the constituent college of the University. 17. The affairs of the constituent college including the method of recruitment, appointment and other terms and conditions of the teacher have to be in accordance with the provisions of the U.P. State Universities Act, the Statutes and Ordinances etc. 18. Section 27 of the Universities Act provides that the University shall have such faculties as may be prescribed. 19. Statute 7.01 prescribed the faculties; (a) Faculty of Arts (b) Faculty of Ayurveda (c) Faculty of Commerce (d) Faculty of Fine Arts (e) Faculty of Law (f) Faculty of Medicine (g) Faculty of Science (h) Faculty of Education (i) Faculty of Dental Sciences (j) Faculty of Architecture (k) Faculty of Engineering and Technology. Note: (3) The King George's Medical College, Lucknow shall constitute the Faculty of Medicine. 20. Statutes 7.12 and 7.13 deal with the constitution of the Faculty of Medicine and the various departments therein. 21. The character of the medical college as a constituent college has been retained by the Taking Over Act of 1983. The relevant provision of Section 9 runs as follows: 9. King George's Medical College to become constituent college. Notwithstanding anything contained in the Uttar Pradesh State Universities Act, 1973, and the Statutes made thereunder (1) The King George's Medical College shall, with effect from the appointed date, become a constituent college of the University and shall be maintained by the State Government. 22. The purpose of retaining this character even under the Taking Over Act appears to be that the college is to be run in accordance with the U.P. State Universities Act and the Statutes. 23. The Taking Over Act has hardly made any difference in the status of the medical college. Prior to enforcement of the Taking Over Act also this medical college was maintained by the Government which has a reference to the financial aspect. The same position continued even after Taking Over Act became operative. 24. Section 9(1) of the Taking Over Act created a very chaotic condition. It has permitted the medical college to retain the character as a constituent college of the University but the teachers are being treated as Government employees. The same position continued even after Taking Over Act became operative. 24. Section 9(1) of the Taking Over Act created a very chaotic condition. It has permitted the medical college to retain the character as a constituent college of the University but the teachers are being treated as Government employees. Either it is a part of the University or it is a Government institution. It cannot be both. This subsection has brought the inconsistency on the surface. 25. From the foregoing discussion it is evident that the medical college was a constituent college under the Lucknow University Act, 1920. Its position remained unchanged under the U.P. State Universities Act, 1973. The same character has been retained by the Taking Over Act of 1983. Thus it is a constituent college of the Lucknow University even to day. 26. The word 'teacher' has been defined under Section 2(9) of the Lucknow University Act and practically the same definition has been adopted under Section 2(18) of the Universities Act. The phrase 'teacher of the University' has been defined under Section 2(h) of the Lucknow University Act and the same definition is found in Section 2(19) of the Universities Act which means: 'teacher of the University' means a teacher employed by the University for imparting instructions and guiding or conducting research either in the University or in an Institute or in constituent college maintained by the University. 27. The petitioners were appointed by the University for the medical college, which is its constituent college for imparting education and conducting research. They are covered by the definition of teacher of the University. 28. Prior to the enforcement of the U.P. State Universities Act, 1973, the appointments were made under the Lucknow University Act, 1920 in in accordance with the provisions contained in Section 31A of the said Act read with the Statutes. Under the State Universities Act of 1973 the appointments are made under Section 31. Section 32(1) provides that no teacher of the University is appointed except under a written contract which shall be consistent with the provisions of the Act, Statutes and the Ordinance. Under subsection (2) the original contract is to be lodged with the Registrar of the University and a copy thereof shall be furnished to the officer or the teacher concerned. Statute 16.01 provides that the written contract will be in the form set out in Appendix 'B'. 29. Under subsection (2) the original contract is to be lodged with the Registrar of the University and a copy thereof shall be furnished to the officer or the teacher concerned. Statute 16.01 provides that the written contract will be in the form set out in Appendix 'B'. 29. Part III of Chapter XVI of the Statutes deals with the age of superannuation of the teachers of the University. Relevant Statute 16.24,(1) provides subject to the provisions of Statutes 16.25 and 16.26, the age of superannuation of a teacher of a University governed by the new scale of pay shall be sixty years, (2) The age of superannuation of a teacher of the University not governed by the new scale of pay shall subject to statute 16.26, be sixty years; 30. Petitioners were appointed as teachers of the University for the medical college. Their status remains unaltered. 31. In order to decide the constitutional validity of the taking over Act, the aims and object have also to be gone into. 32. The aims and object of the Taking over Act reveals that the Government has received a number of complaints against maladministration, irregular appointments and wrong promotions. Several financial irregularities and lapses on the part of the University were also detected by the audit department. The control of Lucknow University over the medical college and its associated hospitals have been reported to be far from satisfactory. The entire expenditure incurred on the maintenance of this institution was borne by the State Government and extra grants were also given from time to time to wipe out the deficit accumulated over the number of years. In the opinion of the Government it was incumbent to ensure efficient functioning of these institutions. Since the University is an autonomus body it was thought proper that the managnment and control over the said medical college be taken over by the Act. 33. Thus the main aim and object of the Taking Over Act was to ensure better and efficient functioning of the medical college and associated hospitals. 34. Dr. S. Radhakrishnan in his celebrated Report of the University Education Commission, 1950 on the question of interference by the Government in educational process said Exclusive control of education by the State has been an important factor in order to facilitate the maintenance of totalitarian tyranny..... 34. Dr. S. Radhakrishnan in his celebrated Report of the University Education Commission, 1950 on the question of interference by the Government in educational process said Exclusive control of education by the State has been an important factor in order to facilitate the maintenance of totalitarian tyranny..... We must resist, in the interest of our democracy the trend towards the governmental domination of the educational process........ Higher education is undoubtedly an obligation of the State but State aid is not to be confused with the State Control over an academic policy and practice. Our University should be released from the control of politics..... 35. In the case reported in AIR 1960 SC 554 Hamdard Dawakhana and another v. Union of India and others, the Court expressed its views that in order to decide the constitutional validity of an Act on the ground of violation of any fundamental right, the Court has to ascertain its nature and character. The purport and the intent have also to be determined. For doing so the history of the legislation, the purpose and the surrounding circumstances have to be gone into. 36. In another case reported in AIR 1954 SC 92 State of West Bengal v. Subodh Gopal Base and others, it was expressed that the statement of the objects and reasons can always be taken into consideration for ascertaining the conditions prevailing at the time of enactment. There must be genuine reason for such an Act or the Legislature. It should not be for any other ulterior purposes. 37. How far the University was responsible for the maladministration of the medical college. 38. In the year 1981 the Medical College Hospital had a sanctioned strength of 1423 beds. In addition to that it had been accommodating about 700 surplus patients or more. The net grant for the treatment of patients on the sanctioned bed strength was Rs. 220 lacs per annum in that year. The surplus beds, which comprised one third of the total, were a liability as there was no extra grant for them. A careful calculation would reveal that the medical college has been given only 40 paise per indoor patient on an average. This meagre amount includes the expenditure on medicine, food and the bed cloth for the patient. The expenditure of outdoor patients was hardly 12 paise per patient per day. A careful calculation would reveal that the medical college has been given only 40 paise per indoor patient on an average. This meagre amount includes the expenditure on medicine, food and the bed cloth for the patient. The expenditure of outdoor patients was hardly 12 paise per patient per day. How could the Government expect a better functioning of the hospital on this insufficient grant. The aims and objects of the Taking Over Act shows a lame excuse for taking over the said medical college from the University. 39. Admittedly the Board of Management of the hospital consisted of 17 members. Out of them, ten were the government officers and the nominees of the Government. For all practical purposes the entire management and control was in the hands of the Government. The aims and objects of the Act reveal that this Act has been enacted only to ensure efficient functioning of the institution. If there was any mismanagement or maladministration, the Government itself was responsible. It has to blame itself. The financial control from the very beginning had always been in the hands of the Government. The same position will continue after the Taking Over Act. We fail to understand how the maladministration or the financial irregularities are going to be cured by this Taking Over Act. What useful purpose is going to be served by taking over this medical college? If the Government was not satisfied, it could have taken strong steps for alround improvement in the conditions prevailing in the institution. 40. The purpose of the Act become extremely doubtful. It will definitely not bring a better atmosphere of teaching or better standard of research work. It will become almost a Government office. 41. Accordingly we are not satisfied with the aims and objects for which this Act has been enacted. 42. Let us examine the validity of Section 5 and 6 of the Taking Over Act which are the main provisions of the Act. It will become almost a Government office. 41. Accordingly we are not satisfied with the aims and objects for which this Act has been enacted. 42. Let us examine the validity of Section 5 and 6 of the Taking Over Act which are the main provisions of the Act. They run as follows Section 5 Subject to the provisions of Section 6, (a) every wholetime officer (including teacher) or other servant of the University duly employed in connection with the affairs of any institution and serving the institution as such immediately before the appointed date shall, unless within 90 days from the appointed date he gives notice in writing to the State Government of his intention not to become an employee of the State Government, become an officer or other servant of the State Government and shall hold his office by the same tenure and upon the same terms and conditions and with the same rights as to retirement benefits or other matters as he would have held under the University if this Act had not been passed and shall continue to do so until his employment under the State Government is duly terminated or until those terms and conditions are duly altered by the State Government. (b) Every other officer (including teacher) or other servant of the University employed in connection with the affairs of any institution immediately before the appointed date may, if found suitable by the State Government or by such officer or authority as may be specified by the State Government in that behalf, and unless he gives notice in writing to the State Government of his intention not to become an employee of the State Government, be absorbed in Government service, provisionally or finally, on such terms and conditions as the State Government may, by general or special order, specify, and shall thereafter become an officer or other servant of the State Government on those terms until his employment is duly terminated or until those terms and conditions are duly altered by the State Government, and the service of others shall stand determined in such manner and by order of such officer or authority as the State Government may specif in that behalf. Explanation. Explanation. For the purposes of this section, the expression duly altered by the State Government means altered by the State Government or by the State Legislature, as the case may be, either in exercise of the powers conferred by Article 309 of the Constitution or otherwise. 6. Saving as to services (1) Every officer or other servant whose services are transferred to the State Government under Section 5, shall, notwithstanding anything contained in other provisions of this Act, be liable to be transferred and posted to any other medical college or, as the case may be, to a hospital attached to a medical college under the control and management of the State Government. (2) Nothing contained in Section 5 shall be deemed to apply to a government servant whose services were, immediately before the appointed date, on deputation from the State Government to the University. (3) Notwithstanding anything contained in any other law for the time being in force (a) the transfer of services of any employee of the University under Section 5 or the termination of his services in consequence of his notice referred to in the said section or, as the case may be, in consequence of his not being absorbed in Government service, shall not entitle any such employee to any compensation, and (b) no such claim shall be entertained by any court, tribunal or other authority. 43. Section 5 is subject to the provisions of Section 6 which means it is conditional upon the operation of Section 6. The use of the words 'subject to' has reference to effectuating the intention of the law and the correct meaning is 'conditional upon'. This phrase has been considered by the Supreme Court in the case reported in AIR 1961 SC 1152 K.R.C.S. Bala Krishna Chetty v. State of Madras. 44. Section 5(a) deals with the wholetime teachers and officers. Section 5(b) deals with the teachers other than covered under Section 5(a). Though Section 5(b) is a continuation of Section 5(a) but it provides a different scheme for its working. 45. A critical analysis of Section 5(a) shows the following ingredients: (1) Every whole time officer (including teacher) could give his option within 90 days from the appointed date of his intention not to become an employee of the State Government. Though Section 5(b) is a continuation of Section 5(a) but it provides a different scheme for its working. 45. A critical analysis of Section 5(a) shows the following ingredients: (1) Every whole time officer (including teacher) could give his option within 90 days from the appointed date of his intention not to become an employee of the State Government. (2) If no such option has been given, then he becomes an employee of the State Government, (3) On becoming an employee of the State Government he shall hold his office by the same tenure, and upon the same terms and conditions and with the same rights as to the retirement benefits or other matters as he would have held under the University if this Act has not been passed, (emphasis supplied). (4) He shall hold to do so until his employment under the State Government is duly terminated or until his terms and conditions are duly altered by the State Government. (5) This subsection has incorporated certain provisions of the U.P. State Universities Act and the statute framed thereunder by reference. It means that those provisions may be referred to while construing the provisions of this Act. 46. A similar analysis of Section 5(b) indicates that: (1) after the appointed date every teacher covered under this subsection will be subject to a suitability test, obviously it is to be followed by the declaration of the result. If the teacher is found not suitable, then his services shall stand determined. If found suitable then, (2) he will be required to give his intention in writing to the State Government not to become an employee of the State Government. (3) If he failed to do so, he will be absorbed in the government service provisionally or finally. (4) This appointment will be on such terms and conditions as the State Government may, by general or special order, specify. 47. A comparative reading of Section 5(a) and 5(b) will bring to the surface the anomalous situation and the chaotic condition created by Section 5(b). The teacher covered under this subsection who had already been working in the medical college for the last so many years will be subjected to a suitability test. The Act has not given the guidelines. Even no specific time has been fixed for holding such a suitability test. It may take years or decades even. The teacher covered under this subsection who had already been working in the medical college for the last so many years will be subjected to a suitability test. The Act has not given the guidelines. Even no specific time has been fixed for holding such a suitability test. It may take years or decades even. The poor teacher will have to live in a State of suspense and uncertainty. Of course it is expected that the Government will act within a reasonable period. The most surprising feature of the case is that the learned Advocate General has made a statement in Court that the Government has not held the suitability test so far. The king George Medical Collage and Gandhi Memorial and Associated Hospitals (Taking over) Ordinance was promulgated in 1981. The appointed date has been held to be 18.7.1981. Ten years have passed but not a single case covered under section 5(b) has been examined in accordance with the provisions of this subsection. He has further stated that only the petitioner No. 34 Dr. S.M. Zaheer, a senior Clinical Pathologist, Department of Pathology, was covered under the provisions of this subsection and since he has given his option not to become an employee of the State Government, there was no occasion to consider his case. This will not absolve the Government from discharging its obligation under the said provision. The question of giving option arises after the suitability test is held and the teacher is found to be suitable. If he is found unsuitable, then there is no question of giving any option. The teacher automatically gets away from the employment. This is the only logical conclusion which can be drawn on the proper interpretation of section 5(b). Since in this subsection no time has been fixed for giving the option, obviously it is to be done after the result of the screening is declared by the Government. 48. Another very peculiar condition existing in this subsection is that after the screening is done, the teacher may be provisionally absorbed. He may be kept under this uncertainty for years together and then the question of final absorption may be considered. The helpless teacher may retire in the meantime without getting the fruits of the amending Act. This subsection is a glaring instance of a vague and confused legislation. He may be kept under this uncertainty for years together and then the question of final absorption may be considered. The helpless teacher may retire in the meantime without getting the fruits of the amending Act. This subsection is a glaring instance of a vague and confused legislation. The most distinguishing feature of this subsection is that no time limit has been mentioned in it. How long the Government will take in deciding the suitability and after how many years the result of the suitability test would be declared? After how many years the teacher who has been provisionally absorbed will be finally absorbed? How long the sword of Democles will hang over his head? The Act provides no guidelines. It is arbitrary in nature. 49. The sequence of action to be taken under this subsection also becomes clear from the reading of the same. The conjunction 'and' used between the State Government in that behalf 'and' unless he gives a notice in writing................gives sufficient indication that after the suitability test is held only then an officer concerned is required to give his intention in writing not to become an employee of the State Government. 50. Section 5(b) gives an uncontrolled power to the State Government either to absorb or refuse to absorb the teacher of the medical college. No Yardstick has been mentioned. The language of the entire section paints a very confused picture. It reflects arbitrariness. 51. Suppose if after ten years a teacher covered under this subsection is thrown out on the ground of unsuitability, and he becomes overage by that time then it will disentitle him from getting a job in any other medical college. Is this action of the Government not unfair, arbitrary and discriminatory? Yes, it is. 52. Section 5(a) and (b) have given a very wide uncontrolled power to the State Government without any guidelines which may give rise to arbitrariness. Section 5 does not seem to take into account the statutory nature of the condition of service of the teachers of the Medical College who are the teachers of the University holding statutory post. The field of service condition is already occupied by the U.P. State Universities Act, Statutes and Ordinances made under it. The exercise of power under any other Act is thus fairly excluded. 53. The field of service condition is already occupied by the U.P. State Universities Act, Statutes and Ordinances made under it. The exercise of power under any other Act is thus fairly excluded. 53. While considering the uncontrolled power given under section 5 of the Act, reference may be made to a case reported in AIR 1967 SC 1895 M/s Devi Das Gopal Krishnan Vs. State of Punjab & Others. In that case while considering the validity of section 5 of the Punjab General Sales Tax Act, 1948, which is in substance similar to the present section 5 of the Taking over Act, the Supreme Court held Under that section the Legislature practically effaced itself in the matter of fixation of rates and it did not give any guidance either under that section or under any other provision of the Act.........no other provision was brought to our notice. The argument of the learned counsel that such a policy could be gathered from the constitutional provisions cannot be accepted, for, if accepted, it would destroy the doctrine of excessive delegation. It would also sanction conferment of power by Legislature on the executive Government without laying down any guidelines in the Act. The minimum we expect of the Legislature is to lay down in the Act conferring such a power of fixation of rates, clear legislative policy or guidelines in that regard. As the Act did not prescribe any such policy, it must be held that section 5 of the said Act, as it stood before the amendment, was void. 54. The principle enunciated in that case can also be applied in the instant case for coming to the conclusion that the provisions of section 5 of the Taking Over Act are unconstitutional. 55. The section suffers from the vice of excessive delegation. In the case reported in AIR 1960 SC 554 Hamdard Dawakhana and another Vs. Union of India & others the Supreme Court has considered the constitutionality of the Drugs and Magic Remedies (objectionable) Advertisement Act, 1954. The Act was assailed on the ground of discrimination under Article 14 and exessive delegation apart from Article 19 (1) (a), (f) and (g). The Supreme Court while considering the scope of delegated legislation and arbitrariness declared that section 3 (d) and section 8 of the Act were unconstitutional. 56. The Act was assailed on the ground of discrimination under Article 14 and exessive delegation apart from Article 19 (1) (a), (f) and (g). The Supreme Court while considering the scope of delegated legislation and arbitrariness declared that section 3 (d) and section 8 of the Act were unconstitutional. 56. The view taken in the said case was that when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation. The question for decision then is, is the delegation constitutional when the administrative authority has not been supplied with proper guidance. Incur view the words impugned are vague. Parliament has established no criteria, no standard, has not prescribed any principle on which a particular disease or condition is to be specified in the schedule. It is not stated what facts or circumstances are to be taken, into consideration to include a particular condition or disease. The power of specifying diseases and conditions as given in section 3 (d) must therefore be held to be going beyond permissible boundaries of valid delegation. As a consequence the schedule in the rules must be struck down. 57. Another case dealing with the delegated legislation is reported in AIR 1961 SC 4 Vasanlal Maganbhai Sanjanwala Vs. The State of Bombay (now Maharashtra). In that case it was held: It is now well established that the power of delegation is a constituent element of the legislative power as a whole, and in modern times when the legislatures enact laws to meet the challenge of the complex socioeconomic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their Acts. 58. The extent to which such delegation is permissible is also now well settled. The legislature cannot delegate its essential legislative function in any case. 58. The extent to which such delegation is permissible is also now well settled. The legislature cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principle and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. 59. The Court took the view that in dealing with the challenge to the vires of any statute on the ground of excessive delegation it is necessary to enquire whether the impugned delegation involves the delegation of an essential legislative function or power and whether the Legislature has enunciated its policy and principles and given guidance to the delegate or not. 60. In applying this test the Supreme Court has taken into account the statements in the preamble to the Act, and if the said statements afford a satisfactory basis for holding that the legislative policy and principle has been enunciated with sufficient accuracy and clarity the preamble itself would satisfy the requirements of the relevant tests. Subba Rao, J. took the view: That there was no indication of the legislative policy in the manner of fixation of the lower rate of maximum rent in the preamble or in section 6(1). The section conferring such arbitrary power on the provincial Government without laying down any legislative standard is in excess of the permissible limits of delegation. If a legislature can legally be permitted to lay down a broad policy in general terms and confer arbitrary powers on the executive for carrying it out, there will be an end of the doctrine of the rule of law. Section 6(2) of the Bombay Tenancy and Agricultural Lands Act, must therefore be held void in as much as it exceeds the permissible limits of legislative delegation. 61. Section 6(2) of the Bombay Tenancy and Agricultural Lands Act, must therefore be held void in as much as it exceeds the permissible limits of legislative delegation. 61. Further critical examination of Section 5 (a) of the Taking Over Act shows if a teacher did not give his option to the State Government not to become an employee of the State Government, then he became an employee of the State Government, then he became an officer of the State Government and was to hold his office: (i) by the same tenure (ii) upon the same terms and conditions (iii) with the same rights as to the retirement benefits or other matter as he would have held in the University if this Act had not been passed, (iv) State Government has been given the right to change only the terms and condition of service but not the tenure. 62. The Legislature in all its wisdom has used two different phrases in the same section. We are concerned at present with the word 'tenure' and the phrase' 'terms and conditions of services.' They have to be given their own meaning. 63. According to Webster's Dictionary the word 'tenure' means the act or right of holding something. 64. Words and phrases Permanent Edition explains the word 'tenure' as term of office. Tenure is the fact, manner or means of holding possession or control of that which is his own, a holding. The term tenure denotes a period of time with fixed limits. 65. Accordingly 'tenure' refers to length of service. 66. The phrase 'terms and conditions of service' includes salary or wages in eluding subsistence allowance during suspension, periodical increments, leave, provident fund, gratuity, promotion, seniority, dismissal or termination, compulsory retirement, post retiral benefits. It may not be exhaustive but is enumerative. The condition relating to recruitment and appointment cannot be said to be included within the term and condition of service because they operate prior to the commencement of the service itself. 67. The said phrase has been considered by the Supreme Court in the case reported in AIR 1979 SC 52 Lilly Kurian v. SR. Lewina as under: The expression condition of service includes everything from the stage of appointment to the stage of termination of service and even beyond and relates to the matter pertaining to the disciplinary action. 67. The said phrase has been considered by the Supreme Court in the case reported in AIR 1979 SC 52 Lilly Kurian v. SR. Lewina as under: The expression condition of service includes everything from the stage of appointment to the stage of termination of service and even beyond and relates to the matter pertaining to the disciplinary action. This judgment has relied upon the earlier decision of the Privy council reported in N. W. F. Province v. Suraj Narain, 75 I. A. 343 (AIR 1949 Privy council 112). That case was followed by the Supreme Court in an other case reported in AIR 1961 SC 751 State of U.P. v. Babu Ram. 68. The Legislature has used two different terms 'tenure' and 'condition of service' knowing fully well their dictionary meaning. Unnecessary or superfluous words are always avoided by the Legislature in order to be precise. The Legislature has not used these two terms in the same sense. They were not treated as synonyms. 69. The Supreme Court in the case reported in AIR 1956 SC 35 (at page 38) The Member, Board of Revenue v Arthur Paul Benthall has held: When two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense......... 70. The cardinal principle of interpretation of the words used in the Statute is that when the words of Statutes are clear, plain or unambiguous, then the courts are bound to give effect to that ordinary dictionary meaning irrespective of the consequences. 71. Maxwell in Interpretation of Statutes (twelfth Edition) at page 203, has stated: Not only are, unreasonable or artificial or anomalous constructions to be avoided, it appears to be an assumption (often unspoken) of the courts that where two possible constructions present themselves, the more reasonable one is to be chosen. 72. Thus we are of the view that for the smooth working of the Act, the only reasonable meaning which can be given to the word 'tenure' is the length of service. 73. Even if the Act permitted the term and condition of the service to be altered, it could not touch the tenure which has been preserved by the Act. It would lead to an inevitable conclusion that the petitioners have a right to continue upto the age of 60 years. 74. 73. Even if the Act permitted the term and condition of the service to be altered, it could not touch the tenure which has been preserved by the Act. It would lead to an inevitable conclusion that the petitioners have a right to continue upto the age of 60 years. 74. The petitioners are teachers of the Lucknow University and hold statutory status within the meaning of section 31 of the Universities Act. They are entitled to hold the office in the medical college according to the Statute 16.24. 75. Section 3 of the Taking over Act provides for taking over of the Institution by the Government and the consequential possession. Section 3(c) is relevant for the present case, which provides as follows: (c) except as provided in section 5, all rights, powers, privileges, duties, debts, liabilities and obligations of the University, contractual or otherwise arising or accrued or incurred in relation to the affairs of any of the institution shall stand transferred to the State Government. 76. Section 32(1) of the Universities Act requires appointment of a teacher to be made under written contract which shall be in consonance with the Act, Statute and the Ordinance. This statutory provision is legally enforcible. Section 6 (3) (c) of the Taking over Act has preserved the statutory contract which has a reference to the 'tenure'. 77. In the case reported in 1967 SLR 832 Roshan Lal v. Union of India & Others it was held that though the origin of relationship between Master and servant is a contract but if it has a legal relationship then it is entirely different from the ordinary contractual relationship. The legal position of a government servant is more of a status than of a contract. 78. Let us pass on to the next point, whether the petitioners were holding the office as property. 79. In the case reported in 1991 (1) SCC 212 Km. Shrilekha Vidyarathi & Others v. State of U.P. & Others the Supreme Court while considering the removal of the District Government Counsel took the view that the appointment of District Government Counsel by the State Government was not merely a professional engagement like that between a private client and his lawyer nor it was purely contractual. A public element is attached to the 'office' or 'post.' 80. A public element is attached to the 'office' or 'post.' 80. In the case reported in AIR 1954 SC 119 Dwaraka Das Shrinivas v. Sholapur Spinning & Weaving Co. Ltd., the Supreme Court took the view that a contract under the Companies Act will undoubtedly be property within the meaning of Articles 19 and 31. 81. In the case of Slate of West Bengal v. Subodh Copal Bose and others ( AIR 1954 SC 92 ) the Court took the view that the word 'property' within the meaning of Article 19 (1) (f) and 31 of the Constitution means a property which is understood both in a corporeal sense as well as in its Juridical or legal sense or a bundle of rights which the owner can exercise. 82. In the case reported in AIR 1978 SC 803 Madan Mohan Pathak v. Union of India & others, the Court held that the bonus payable under the Life Insurance Corporation (Modification of Settlement) Act, 1976 was a property within the meaning of Article 31 (2). 83. In the case of Kasturi Lal Lakshmi Reddy. v. State of Jammu &. Kashmir ( AIR 1980 SC 1992 ) it was held that the interest created in favour of a person the forest assets of the State was property within the meaning of Article 19 (1)(g) of the Constitution. This case has followed the principle enunciated in the case of Ramana Dayaram Shetty v. International Airport Authority of India ( AIR 1979 SC 1628 ). 84. In a recent decision of Supreme Court reported in AIR 1989 SC 1629 M/s Vij Resins Pvt. Ltd. & another v. State of Jammu & Kashmir & others, the Supreme Court had the occasion to consider about the validity of Jammu & Kashmir Extraction of Resin Act, 1986. Under the provisions of that Act all the existing contracts between the parties and the State and existing grants in respect of calculation, transport, storage of resin have been terminated. The Act did not provide for any compensation and the petitioner's contention was that the existing right in their favour amounted to 'property' and could not have been expropriated in contravention of the guarantee of part III of the Constitution. The Supreme Court held that taking away such a right without providing for compensation was violative of Article 31(2) of the Constitution. The Supreme Court held that taking away such a right without providing for compensation was violative of Article 31(2) of the Constitution. Accordingly the entire Act was struck down as unconstitutional. The 44th amendment has not brought any change in Article 31 which has been preserved in part III of the Constitution for Jammu & Kashmir. The Supreme Court has considerably enlarged the concept of 'property' Reference may be to the case reported in AIR 1978 SC 597 Smt. Maneka Gandhi v. Union of India; and AIR 1989 SC 1629 M/s Vij Resins Pvt. Ltd. v. State of Jammu & Kashmir. In the case reported in 1972 SLR 836 State of Punjab v. K.R. Erry & Sobha Rai Mehta it has been held by the Supreme Court that pension was the 'property' and the same view was taken in the case reported in 1971 (2) SCC 330 Deokinandan Prasad v. State of Bihar and others. 85. This takes us to the Explanation added to section 5. It is not only notorious but a disturbing provision as well for the purposes of the Act. If the teachers of the medical college are treated as government servants then their condition of service are to be determined by the rules to be framed under Article 309 of the Constitution by the Governor or by the State Legislature. This explanation gives to the executive the same power as has been conferred on the State Legislature and that too without any guidelines as to the nature and extent of such power to be exercised by the executive. Article 162 of the Constitution provides that though the executive power of the State are coterminous with the legislative powers of the State Legislature, this general rule is subject to the other provisions of the Constitution. The word 'otherwise' mentioned in the Explanation gives the right to the executive to frame rules under Article 162 of the Constitution giving it an uncontrolled power which may lead to arbitrariness and discrimination. This is not permissible under law. 86. The word 'otherwise' mentioned in the Explanation gives the right to the executive to frame rules under Article 162 of the Constitution giving it an uncontrolled power which may lead to arbitrariness and discrimination. This is not permissible under law. 86. Section 6(3) runs as follows: Notwithstanding anything contained in any other law for the time being in force (a) The transfer of services of any employee of the University under section 5 or the termination of his services in consequences of his notice referred to in the said section, or, as the case may be, in consequence of his not being absorbed in government service, shall not entitle any such employee to any compensation, and (b) No such claim shall be entertained by any court, tribunal or other authority. 87. The fundamental right to property was guaranteed by Articles 19 (1)(f) and 31 of the Constitution but these two articles were deleted from the Constitution by means of 44th Amendment. In their place a new Article 300A has been added which provides that no person shall be deprived of his property save by en authority of law. The result is that the right to property is no more a fundamental right. 88. Article 300A forms an independent chapter entitled Right to property in Part XII of the Constitution. Though Article 300A does not deal with the fundamental right but all the same this is a part of the Constitution. It may not be a fundamental right but it is a Constitutional right. As this right is conferred by the Constitution, a law passed by the Legislature has to satisfy the requirements laid down in the relevant articles of the Constitution. If that law violates provisions of the Constitution it can be struck down. 89. Deletion of Articles 31 and 19(1)(f) and insertion of Article 300A does not make much difference so far as the right of property is concerned. The law depriving a person of his property must be fair and just otherwise it becomes subject of challenge on the ground that it violates Article 300A which is a mere reproduction of Article 31 which now stands deleted. 90. Professor P.K. Tripathi in his article Right to property after 44th Amendment published in 1980 AIR Journal Section page 49, has made a critical analysis of the said amendment of the Constitution. 90. Professor P.K. Tripathi in his article Right to property after 44th Amendment published in 1980 AIR Journal Section page 49, has made a critical analysis of the said amendment of the Constitution. According to him after this amendment the right to property is more firmly and comprehensively secured than ever before because now the State will not be able to acquire private property without showing the public purpose and without paying full compensation or market value of the property. According to him this amendment has given the property a kind of protection which it never enjoyed before, either under the Government of India Act, 1935 or under the Constitution. A contrary view has been taken by H.M. Seervai in his Constitution of India, Second Edition Chapter XV A page 1747 Paragraph 15 A28. 15A3435. 91. The phrase 'equality before law' and 'equal protection in law' has expressed the general rule of equality. They aim at equal justice. In determining the validity of a Statute we have to examine the classification which has been made by the Act. Is it based on some differentia which distinguishes such persons grouped together forming one class, from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the Statute. It has come in the aims and object that this Act has been enacted only for efficient working of the college. The teachers similarly appointed in the other faculties of Lucknow University have been left out. It is impossible to conceive that the petitioners who are appointed under the U.P. State Universities Act along with the teachers of other faculties having the same mode of appointment, same terms and conditions of service will form a different class. The classification so made cannot be said to be a reasonable one for the object to be achieved. After the detailed scrutiny which we have done, we come to the conclusion that the sections 5 and 6 do not lay down the principle or policy for guiding the exercise of discretion in the matter of the classification. The Statute provides for delegation of arbitrary and uncontrolled power to the Government as to discriminate between persons similarly situated. The discrimination is inherent in the Statute itself. Accordingly the section has to be struck down being unconstitutional. 92. The Statute provides for delegation of arbitrary and uncontrolled power to the Government as to discriminate between persons similarly situated. The discrimination is inherent in the Statute itself. Accordingly the section has to be struck down being unconstitutional. 92. Petitioners were holding statutory posts and had an existing legal right which amounted to property. It could not be expropriated without payment of compensation. The petitioners have a constitutional right to protect this property. They cannot be deprived of the same except by an authority of law. 93. As already held by us that Article 300A of the Constitution has given a better protection to the property than ever before, accordingly the petitioner's right to hold the office could not be taken away save by authority of law which means due compensation has to be paid to the petitioners even under this provisions of the Article. Accordingly, section 6 (3)(a) has also to be struck down as it is in violation of Article 300A of the Constitution. This subsection is the key of Section 6. Accordingly the whole section becomes unconstitutional. 94. The main thrust of the argument of the learned Advocate General while protecting the validity of Sections 5 and 6 of the Act has been that the State Government has got a right to alter the terms and conditions of service reducing the age of retirement. The petitioners have not disputed this proposition of law but such an action should be fair and reasonable. 95. He has not disputed the character of the medical college as a constituent college of the University. He has only laid emphasis on the point that it is maintained by the Government. What difference does it make? Even before the Taking over Act it was maintained by the Government. He further submitted that the Legislature was competent to legislate the said Act. No body disputes the legislative competence. So this point needs no discussion by us. 96. Coming to the question whether the tenure of the teachers has been protected under the Taking over Act, his submission is that the terms and conditions of the service includes 'tenure' as well. In support of his contention he has relied upon the case reported in AIR 1986 SC 737 Union of India & Others v. Arun Kumar Roy. This case is not relevant for the present' controversy. In support of his contention he has relied upon the case reported in AIR 1986 SC 737 Union of India & Others v. Arun Kumar Roy. This case is not relevant for the present' controversy. In that case the point considered was whether the termination of service of probationer, before the expiry of the extended probationary period, was in violation of the constitutional provision and whether notification could override the statutory rules or not. 97. Another case referred to by him is reported in AIR 1985 SC 551 K. Nagaraj and others v. State of Andhra Pradesh and another. In that case it was held that the legislature was competent to reduce the age from 58 to 55 year. This reduction was not hit by the provisions of Article 14 and 16 of the Constitution. It was held neither arbitrary nor unreasonable or discriminatory. In that case Andhra Pradesh Public Employment (Regulation of Condition of Service) Ordinance, 1983 was promulgated because the legislature has adopted the policy which would amount to creation of new avenue of employment for the youth in fixation of the retirement age. Since it was influenced predominantly by that consideration, it could not be struck down as arbitrary or irrational. In para 29 of the judgment the Court has made it clear that in the circumstances of that case the action could not be said to be hit by Article 14 or 16, Looking to the aims and objects of the instant case, the provisions of the Act are unconstitutional. So this case of K. Nagaraj will not be of any assistance of the learned Advocate General. 98. The next submission raised by him was that this Act has been incorporated to bring uniformity of the service conditions of the teachers of The King George Medical College with the teachers of other medical colleges of the State. The argument on the face of it is fallacious and cannot be accepted. The aims and objects referred to in the preceding paragraph do not make any such reservation. It was not the purpose of the Act. 99. According to him the Taking over Act has the effect of only changing the status of the petitioners. Instead continuing as teachers of the University, they become the teachers of the medical college under the control of the Government. It was not the purpose of the Act. 99. According to him the Taking over Act has the effect of only changing the status of the petitioners. Instead continuing as teachers of the University, they become the teachers of the medical college under the control of the Government. These teachers constitute different class and as such there was no question of discrimination. There cannot be discrimination between two unequals, We do not find any force in it. The petitioners were appointed teachers of the University along with teachers of other faculties. Their mode of appointment, terms and conditions were the same, So they constituted one class. 100. He has relied upon a decision reported in AIR 1973 SC 2641 N. Ramanatha pilial v. State of Kerala and another and the other case reported in 1981(2) SLR 225 Ali Mohd. v, Chairman T.A. and C. Udhampur for the proposition that the Government has a right to abolish the post and such abolition gives no right to employee for compensation, But in the same case it has been held that the abolition would amount to removal within the meaning of Article 311 of the Constitution if it has been done mala fide and in a colourable exercise of power. The Supreme Court took the view that the action was not hit by Article 14 of the Constitution as there was no mala fide on the part of the Government. We have already held in the instant case relying upon the aims and objects of the Taking over Act that it was not bona fide one and was extremely doubtful in nature. Without good reasons this Act has been brought into existence. In the preceding paragraph we have already indicated that the provisions of Section 5 and 6 of the Taking over Act are hit by Articles 14 and 300A of the Constitution. 101. The learned Advocate General has contended that if after retirement of an employee it was found that during his service he has committed some embezzlement then it was open to the State to forfeit the entire amount of pension or to make appropriate recovery from him. Such an act would not violate Article 300A and is permissible under law. This analogy is of no consequence to the merits of the present case. 102. Such an act would not violate Article 300A and is permissible under law. This analogy is of no consequence to the merits of the present case. 102. He made reference to another case reported in 1972 SLR 836 State of Punjab v. K.R. Erry and Sobhag Rai Mehta. This case has referred to another earlier case decided by the Supreme Court reported in 1971 (2) SCC 330 Deoki Nandan Prasad v. State of Bihar. In this case it has been held that right to get pension is a property within the meaning of Article 31(1) of the Constitution. These two cases have already been discussed by us in the preceding paragraphs. They give strength to the case of the petitioners that their right to hold the post is a constitutional right and as such is a property. 103. Another case relied upon by him is reported in AIR 1987 SC 1527 Life Insurance Corporation of India & others v. S.S. Srivastava & others. The question to be considered in that case was whether Regulation 19(2) of the Life Insurance Corporation (Staff) Regulations, 1977 was violative of Article 14 and 16 of the Constitution, The High Court while dealing with the matter was of the view that apparent or inherent intention sought to be achieved by Regulation 19 was to permit an employee of the erstwhile insurer companies to continue upto the age of 60 years and to derive benefit from experience and expertise of the employee who had worked with insurer prior to the coming into force of the Life Insurance Corporation Act. The High Court took the view that once a transferred employee of class III and a direct appointee in that class were promoted to class I, then the distinction of transferred and direct appointee cannot be maintained, So long as the employee are in class III, they can be said to constitute two different classes of transferred and direct appointee but once they are promoted, they become similarly situated and the distinction stands obliterated. They, on promotion, form one integrated cadre of Class 1 officers, To segregate them for the purposes of retirement is invidious when their pay, responsibilities and benefits are the same. They, on promotion, form one integrated cadre of Class 1 officers, To segregate them for the purposes of retirement is invidious when their pay, responsibilities and benefits are the same. The experience of an employee in class III with the insurer could furnish material for retaining him till 60 years on experience or service conditions so long he was in class III, but once he is promoted to class I, then his experience as class III employee with the insurer could not furnish basis for continuing him till 60 years and retiring him at age of 58 years. The basis was found to be artificial. The High Court accordingly held Regulation 19(2) as discriminatory and violative of Article 14 and 16 of the Constitution. Consequently it was quashed 104. On appeal, the Supreme Court set aside the judgment and held it was not discriminatory. 105. That case will not give any guidance to the facts of the instant case in as much as the point involved here is whether Sections 5 and 6 give any guidelines to the delegated body to frame rules. It is an instance of excessive delegation and uncanalised power given to the delegates. Section 5 and 6 are arbitrary in nature. Article 300A was not the subject matter of controversy in that case of S.S. Srivastava (Supra). 106. Another case referred to by him is reported in AIR 1961 SC 627 J. G. Dholkia v. Schindia Steam Navigation Co. That case is absolutely of no consequence because there the effect of ordinary contract was under consideration but here enforcement of a statutory contract is involved. 107. The learned Advocate General further submitted that it is the individual action of the Government, by which a person is aggrieved, can be gone into by the Court. The validity of the Act cannot be gone into. On the face of it this submission has got no force. It is accordingly rejected. 108. The learned Advocate General has relied upon a decision reported in AIR 1962 SC 1263 Bangalore Woolen, Cotton and Silk Mills. Co. Ltd., Bangalore v. Corporation of the City of Bangalore by its Commissioner, Bangalore City. In that cast it was contended that the power of Municipal Corporation to specify goods under Class VIII was excessive delegation which was both uncanalised and controlled. Co. Ltd., Bangalore v. Corporation of the City of Bangalore by its Commissioner, Bangalore City. In that cast it was contended that the power of Municipal Corporation to specify goods under Class VIII was excessive delegation which was both uncanalised and controlled. Learned counsel appearing in that case has relied upon the decision reported in AIR 1960 SC 554 Hamdard Dawakhana and another v. Union of India and others. The Supreme Court in this case has repelled the contention, holding the power to be exercised by the Corporation was in the nature of conditional delegation. 109. The instant bunch of cases is an instance of delegated legislation and not a conditional legislation. Thus, this authority is of no relevance to the facts of the present case. 110. Another case relied upon by the learned Advocate General is reported in AIR I960 SC 554 Hamdard Dawakhana and another v. Union of India and others. It has already been discussed by us in the preceding paragraphs on the point of excessive delegation. 111. The next case which the learned Advocate General has referred to is reported in AIR 1961 SC page 4 Vasanlal Maganbhai Sanjanwala v. State of Bombay (now Maharashtra). This case has also been discussed by us. In the said case reference was made to the observation of Mahajan, Chief Justice in the case of Harishanker Bagla v. State of Madhya Pradesh ( AIR 1954 SC 465 , at page 468) The legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given case, and must provide a standard to guide the officials or the body in power to execute the law. 112. Thus both the cases (Vasanlal Maganbhai Sanjanwala and Harishanker Bagla) have laid down the law which further facilitates this Court in declaring Section 5 and 6 of the Taking over Act invalid. 113. In the end he has made a reference to a case reported in AIR 1980 SC 350 Registrar, Cooperative Societies v. K. Kunjabmu where considering the validity of Section 60 on the ground of excessive delegation the Court took the view that it was not void. The Court found that there was sufficient guidelines in the preamble, the scheme and other available material. The Court found that there was sufficient guidelines in the preamble, the scheme and other available material. In the instant case there is nothing on record to show that there was any guidelines in the Act or the preamble. 114. The last case on which reliance has been placed by the learned Advocate General is reported in AIR 1980 SC 1894 Gyan Singh Mann v. The High Court of Punjab and Haryana and another but that case is absolutely of no relevance because in that case the question was whether premature retirement was in the public interest or not. The Court after examining the matter found that there was no element of punishment and Article 311 was not attracted, 115. Thus now we conclude our reasons for holding that Sections 5 and 6 of the King George's Medical College and the Gandhi Memorial and Associated Hospitals (Taking Over) Act, 1983 are ultra vires the provisions of Article 14 and 300A of the Constitution which consequently renders the whole Act as unconstitutional. 116. The operative portion of the judgment, which was pronounced in open court on 2931991, may be treated as part of it. It contains the reasons in support of that. (Order accordingly.)