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TMI Blog2022 (10) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulated in Section 8(1)(a) namely (i) a distinguished academic with proven competency and integrity; (ii) (a) minimum of ten years of experience in a University system of which at least five years shall be as a professor; or (b) ten years of experience in a reputed research or academic administrative organization of which at least five years shall be in a position equivalent to a professor. The effect of the words subject to the provisions of this section in Section 8(2)(a) in its unamended form was that the reappointment would have to be in a manner provided in Section 8, which obviously included Section 8(1). Deletion of those words in Section 8(2)(a), as amended, would mean that the procedure which has been prescribed for making the appointment of a VC, namely the appointment of a search committee and the preparation of a panel, would not be attracted in the case of a reappointment. In the case of a reappointment, a VC who has completed a term of four years would be eligible subject to the satisfaction of the State government and on the basis of their past academic excellence and administrative record during the term of office held as a VC. The State government chose the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iversity appointed Professor Dr. Sonali Chakravarti Banerjee as the VC of Calcutta University. The notification was in exercise of the powers conferred by Section 8(1)(a) read with Section 8(2)(a) of the Act. The term of appointment was for a period of four years with effect from the date on which she joined office or until she attained the age of sixty-five or until further orders, whichever is the earliest. 3. The term of office of the VC was to end on 27 August 2021. The State government in the Higher Education Department submitted proposals for the re-appointment of the VC for a period of four years to the Chancellor on 4 June 2021 and 17 June 2021 which were not accepted as the Chancellor sought certain clarifications. 4. On 17 August 2021, the Chancellor suo moto accorded an extension to the tenure of the VC for a period of three months Under Section 8(2)(b) of the Act. 5. The State government issued a notification on 27 August 2021 stating that: (i) While extending the tenure of the VC, the Chancellor had invoked Section 8(2)(b) without consultation with the Minister, which was mandatory; (ii) The step taken by the Chancellor of the University was void ab initio, particularl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a VC stand on a different footing and the power of reappointment is vested with the State government and not the Chancellor; (iv) Even if the Chancellor is the re-appointing authority, he has no discretion once a recommendation is made by the State government upon its satisfaction; and (v) Since the Chancellor has not taken any action in terms of Section 8(2)(a), the State government had no option but to re-appoint the incumbent VC by taking recourse to the provisions of Section 60. 8. The incumbent VC who had been re-appointed by the State government was impleaded as a party to the proceeding and urged that: (i) There is a distinction in law between appointment and re-appointment because in the case of the latter, the zone of consideration is restricted to persons already holding the post and in such cases the suitability of the incumbent which was assessed at the time of initial appointment need not be reassessed; (ii) In the case of a re-appointment, Section 8(2)(a) prescribes that academic excellence and administrative success are the only factors which are to be taken into consideration for re-appointment and the procedure which is prescribed by Section 8(1) is not attract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment relied on the amended provisions of Section 8(2)(a). On this point, the High Court disagreed with the Petitioner and noted that amended Section 8(2)(a) which provides for the re-appointment of a VC for another term does not require that the procedure prescribed in Section 8(1) should be followed for re-appointment. In the amendment of 2019, the expression following the provisions of Sub-section (1) were deleted from Section 8(2)(a). The High Court did not therefore subscribe to the submission of the Petitioner before it that the same procedure was required to be followed for the re-appointment of a VC as prescribed for the purpose of appointment in Section 8(1). 13. However, ultimately, on the basis of its analysis, the High Court held that the State government had no authority to re-appoint the VC either Under Section 8 or by taking recourse to the provisions of Section 60 and consequently held that the notification of 27 August 2021 was contrary to law. It is on that basis, that the re-appointment of the VC has been set aside. 14. Before we summarize the rival submissions and proceed to analyse them, it is necessary to advert to the salient provisions of the Act bearing upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for another term of four years subject to the satisfaction of the State Government and on the basis of his past academic excellence and administrative success established during his term of office in the capacity of Vice-Chancellor, or till he attains the age of seventy years, whichever is earlier . Section 8(2)(b) as amended is in the following terms: 8(2)(b) The Chancellor may, notwithstanding the expiration of the term of the office of the Vice-Chancellor, allow him to continue in office for a period not more than two years at a time in consultation with the Minister, which shall under no circumstances be extended beyond the age of seventy years, subject to the satisfaction of the State Government and on the basis of his past academic excellence and administrative success established during his term of office in the capacity of Vice-Chancellor. Sub-sections (5) and (6) of the Section 8 as amended read thus: 8(5) If- (a) the Vice-Chancellor is, by reasons of leave, illness or other cause, temporarily unable to exercise the powers and perform the duties of his office, or (b) a vacancy occurs in the office of the Vice-Chancellor by reason of death, resignation, removal, expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2)(a) there was no necessity of undergoing a further selection process. The State government urged that Section 8(2)(a) only postulates satisfaction of the State government and does not require the concurrence of the Chancellor. In other words, according to the State government, it has unfettered rights in the matter of reappointment to the post of VC. This submission has been rejected by the High Court. 19. Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing on behalf of the State of West Bengal urged that: (i) The power conferred by Section 8(5) on the Chancellor to appoint a person to exercise the powers and perform the duties of the VC during the period of the temporary inability of an incumbent VC or pending the appointment of a VC applies only when the power of reappointment has not been exercised Under Section 8(2)(a); (ii) Likewise, Section 8(6) applies only when the power to reappoint Under Section 8(2)(a) has not been exercised; (iii) Section 8(2)(a) clearly specifies that a VC shall be eligible for reappointment for another term of four years subject to the satisfaction of the State government and on the basis of their past academic excellence and administrative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hancellor in consultation with the Minister; d. A temporary appointment of the VC which is made by the Chancellor in consultation with the Minister Under Section 8(5). 22. These rival submissions would need to be analyzed. However, before we enter into a substantive analysis of the submissions, it would be appropriate to deal with the procedural objection regarding the limits of the writ of quo warranto. 23. Through a line of cases, this Court has laid out the terms on which the writ of quo warranto may be exercised. In University of Mysore v. C.D. Govindra Rao (1964) 4 SCR 575, a Constitution Bench of this Court, speaking through Justice Gajendragadkar (as he then was), held that: 6. [...] Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one which can only be issued when the appointment is contrary to the statutory rules. [...] 51. It is settled law by a catena of decisions that the court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain v. Union of India [(1993) 4 SCC 119] was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, may it be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person, that is, the non-appointee to assail the legality or correctness of the action and that a third party has no locus standi to canvass the legality or correctness of the action. Further, it was declared that public law declaration would only be made at the behest of a public-spirited person coming before the court as a Petitioner... (emphasis supplied) 26. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo Supra, another two jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy and integrity; (ii) (a) minimum of ten years of experience in a University system of which at least five years shall be as a professor; or (b) ten years of experience in a reputed research or academic administrative organization of which at least five years shall be in a position equivalent to a professor. 32. The term of office of a VC, including in the case of a reappointment, is four years or until the attainment of the age of 70 years, whichever is earlier. Where the term of office of a VC has expired, Section 8(2)(b) postulates that, notwithstanding the expiration of the term, the VC may be allowed to continue in office for a period not exceeding two years at a time but such an extension shall not be granted beyond the age of 70. In case of a temporary inability of an incumbent VC due to leave, illness or other cause, Section 8(5)(a) contemplates the appointment of a person to exercise the powers and perform the duties of that office during the period of such temporary inability. Where a vacancy occurs by reason of death, resignation, removal, expiry of the term of office or otherwise, a person may likewise be appointed to exercise the powers and perform the duties of a VC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect reading of the statutory provision. Section 8(2)(a) provides for (i) the term of office of a VC; (ii) eligibility for reappointment; (iii) the term of office upon reappointment; (iv) the conditions subject to which a person shall be eligible for reappointment; and (v) the outer age limit of 70 years. The expression subject to the satisfaction of the State government cannot by a process of inferential reasoning be construed to vest the power of reappointment in the State government. 37. The provisions of Section 8 envisage diverse situations. While the eligibility for appointment is indeed determined by the State government's satisfaction, the power of making the appointment continues to vest in the Chancellor in terms of the provisions detailed below. 38. The Chancellor has been described in Section 7(1) as the head of the University. The power of appointing a VC is vested by Section 8(1)(b) in the Chancellor. That provision stipulates that the VC shall be appointed by the Chancellor . Section 8(2)(b) empowers the Chancellor to allow a VC to continue, notwithstanding the expiration of its term, for a period of not more than two years at a time in consultation with the Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. The Court in Hansoli Devi supra reiterated the decision of the Privy Council in Quebec Railway, Light Heat Power Co. Ltd. v. Vandry AIR 1920 PC 181 observing that the legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. An effort must be made to read the provisions of the statute in a holistic manner so as to imbue it with meaning and content. 42. There is neither an express provision nor a necessary intendment by which it could be inferred that the power which is entrusted to the Chancellor to appoint a VC is taken away in the case of a reappointment. There is no intrinsic reason or rationale to accept the interpretation which has been urged on behalf of the State of West Bengal. A reappointment is the appointment of an existing incumbent who fulfils the conditions of eligibility. The fulfilment of the conditions makes a person eligible for reappointment. The power of appointment including of reappointment is entrusted to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to a case of reappointment because the procedure contemplated by Section 8(1)(b) of a search committee would not attach to a reappointment. On this aspect, the High Court has correctly disagreed with the Petitioner before it and noted that amended Section 8(2)(a) which provides for the re-appointment of a VC for another term does not require that the procedure prescribed in Section 8(1) has to be followed for re-appointment. 47. Faced with the view of the Chancellor, the State government attempted to get around the situation by purporting to exercise its powers Under Section 60. Section 60 provides as follows: If on account of any lacuna or omission in the provisions of this Act, or for any other reason whatsoever, any difficulty arises as to the first constitution of any authority of the University under this Act, or otherwise in giving effect to the provisions of this Act, the State Government, as occasion may require, may by order do anything which appears to it to be necessary for the purpose of removing the difficulty notwithstanding anything to the contrary contained elsewhere in this Act or in any other law. 48. Section 60 contemplates a situation where inter alia any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence era. 49. The State government chose the incorrect path Under Section 60 by misusing the removal of difficulty clause to usurp the power of the Chancellor to make the appointment. A government cannot misuse the removal of difficulty clause to remove all obstacles in its path which arise due to statutory restrictions. Allowing such actions would be antithetical to the Rule of law. Misusing the limited power granted to make minor adaptations and peripheral adjustments in a statute for making its implementation effective, to side-step the provisions of the statute altogether would defeat the purpose of the legislation. 50. Accordingly, the High Court in our view was justified in coming to the conclusion that in the guise of removing the difficulties, the State cannot change the scheme and essential provisions of the Act . 51. In the view taken above on the construction of the provision of the Calcutta University Act 1979, while it is not necessary to advert to the provisions of the UGC Regulations which were also relied upon by the High Court in support of its conclusion, for the purposes of completeness, they are dealt with as well. 52. The University Grants Commission (Minimum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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