9911796707
TMI Blog2023 (11) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished himself or herself to be an asset to the institution, then in such circumstance, such person is retained with a view to allow him to continue on the same post for one more term. Secondly, having regard to the nature of the post the organization or institution may not be in a position to fill up the post in a time bound manner and in such circumstances, the provision for reappointment may enable the organization or institution to relieve itself of the tedium of going through the entire selection process afresh every time the post becomes vacant - the reappointment is permissible even in case of a tenure post. Whether the outer-age limit stipulated under sub-section (9) of Section 10 of the Act 1996 is applicable in the case of reappointment of Vice-Chancellor? - HELD THAT:- The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to the statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UGC Regulations are silent in so far as reappointment of the Vice-Chancellor is concerned. There is no specific procedure prescribed by the UGC under its regulations for the purpose of reappointment of Vice-Chancellor. The entire focus of the Chancellor is on the aforesaid. However, nothing has been said in the counter-affidavit filed on behalf of the Chancellor as regards Chancellor s own independent satisfaction or judgment for the purpose of reappointment of the respondent No. 4 as ViceChancellor. It is now well settled that a writ of quo warranto lies if any appointment to a public office is made in breach of the statute or the rules. In the case on hand, we are not concerned with the suitability of the respondent No. 4. The suitability of a candidate for appointment to a post is to be judged by the appointing authority and not by the court unless the appointment is contrary to the statutory rules/provisions. We have reached to the conclusion that although the notification reappointing the respondent No. 4 to the post of Vice-Chancellor was issued by the Chancellor yet the decision stood vitiated by the influence of extraneous considerations or to put it in other words by the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost? 46 ii) Whether the outer-age limit stipulated under sub-section (9) of Section 10 of the Act 1996 is applicable in the case of reappointment of Vice-Chancellor 48 iii) Whether the reappointment of Vice-Chancellor has to follow the same process as a fresh appointment under Section 10 of the Act 1996? 54 iv) Did the Chancellor abdicate or surrender his statutory power of reappointment of the Vice-Chancellor? 58 M. Final Conclusion 70 'Intention of the Legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication. [ Lord Watson in Salomon v. Saloman Co., (1897) AC 22, 38] 1. We are tempted to preface our judgment with the aforesaid observations of Lord Watson in Soloman (supra), as we need to keep in mind the principle of law as explaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections (1)(2) and (3) of the Kannur University Act, 1996, the Chancellor of the University is pleased to constitute a Selection Committee comprising of the following members to make recommendation (s) towards the selection and appointment of a new Vice Chancellor in the said University. 1. Dr. B. Ekbal - (Nominee of the University Senate) (Former Vice Chancellor, University of Kerala and former Member, State Planning Board) 2. Prof. B. Thimme Gowda - (Nominee of the University Grants Commission) Vice Chairman, Karnataka State Higher Education Council (Former Vice Chancellor, Bangalore University Karnataka State Rural Development and Panchayat Raj University 3. Prof. VK Ramachandran (Nominee of the Chancellor) Vice Chairperson, Kerala State Planning Board (Former HoD, Economic Analysis Unit, Indian Statistical Institute, Bengaluru) I, Prof. VK Ramachandran shall be the Convener of the Committee and the Committee shall tender its recommendation within three months from the date of this order as laid down in sub section (4), Section 10 of the Kannur University Act, 1996. By Order of the Governor/Chancellor Sd/- (Dr. Devendra Kumar Dhodawat, IAS) Principal Secretary to Governor/Chanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... academic record, he was Professor of History of Jamia Millia Islamia, Delhi. He has also been Academic Visitor, Dept. of Social Police, London School of Economics and Political Science and has administrative experience as Honorary Director, Nelson Mandela Centre for Peace and Conflict Resolution, Jamia Millia Islamia and as Member secretary, ICHR. He has indeed been an asset to Kannur University, an institution still in its infancy. The remarkable achievements of the university in academic rating is the result of the hard work put in by the faculty and staff of the University under the able leadership of Dr. Gopinath Raveendran. The NAAC has upgraded the status of the University from B to B. He was instrumental in digitizing the University by introducing Digital Document Filling System (DDFS) and enthusiastically directed the University to amend its status in tune with UGC Regulations, 2018. He also initiated steps for starting a separate Research Directorate with the aim of improving research standards in the University. During his tenure, the University signed several MOUs with reputed national and international organization. Under his stewardship, the University also started a B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Kannur University. I consider it my privilege to propose the name of Dr. Gopinath Raveendran, the present incumbent Vice Chancellor to be re-appointed as Vice Chancellor of Kannur University for a second continuous term beginning from 24.11.2021. Thank you, Sincerely, Dr. R. Bindu Pro-Chancellor, Kannur University Minister for Higher Education Sri Arif Mohammed Khan His Excellency, The Governor of Kerala Chancellor, Kannur University. 8. Ultimately the final notification came to be issued dated 23.11.2021 by order of the Governor/Chancellor reappointing the respondent No. 4 herein as Vice-Chancellor of the Kannur University for a period of four years w.e.f. 24.11.2021. The Notification dated 23.01.2021 reads thus: GOVERNMENT'S SECRETARIAT KERALA RAJ BHAVAN NOTIFICATION No.GS3.1283/2021(3) Dated: Thiruvananthapuram 23rd November, 2021 In exercise of the powers conferred under the Kannur University Act, 1996 and the UGC Regulations, 2018, the Chancellor of the University is pleased to re-appoint Dr. Gopinath Ravindran (Professor, Department of History, Jamia Millia Islamia, New Delhi) as the Vice Chancellor of the Kannur University, for a period of four years, with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed but the Secretary of Department of Higher Education notified of withdrawal with immediate effect, for as per provisions of Sub section (10), Vice-Chancellor can be re-appointed, but the term is restricted to two (2). It is now to be seen as to whether on the basis of statutory procedure provided in the Act ibid and on analysis of judgments cited, can this Court interfere in the process of appointment or not. xxx xxx xxx 10. The expression 'appointment' and 're-appointment' have different connotation; for undergoing the re-appointment the qualifications are prescribed under Clause 7.3 of the UGC regulations ibid and there is no age bar and for reappointment, criteria of age would not be applicable. No doubt, for appointment, the entire procedure prescribed under Section 10 is to be followed. At the time of the initial appointment, in the year 2007, all the parameters were considered for appointment as per the procedure laid down therein but for re-appointment as per proviso to sub-Section (10) there is no requirement for undertaking the task of constitution of a Selection Committee as was done during the initial appointment. As per the pleading and submissions, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to the initial appointment, shall be eligible for reappointment. 22. No doubt, if there is any manner of shortcomings on the part of the Vice Chancellor initially appointed, so as to affect the academic excellence, moral issues or otherwise to have any adverse consequence to hold the post of Vice Chancellor, it would be different. But, this is a case where the appellants have not raised any sort of such allegations against the 4th respondent. Merely because a notification was issued to conduct a selection, that by itself will not dissuade the Government/Chancellor to recommend and re-appoint the existing Vice Chancellor. xxx xxx xxx 30. Therefore, after assimilating the factual and legal situations and understanding the issues, we are of the considered opinion that in the matter of re-appointment, the age bar prescribed under Section 10(9) for appointment of the Vice Chancellor would not come into play, because the Vice Chancellor who has appointed before attaining the age of 60 years, is entitled to continue for a term of four years and shall be eligible for re-appointment. 31. Taking into account all the above intrinsic aspects with regard to the appointment of the Vice Chanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment to the post of Vice-Chancellor is made through proper channel, the reappointment of the same incumbent to such office upon expiry of the first term can be made bypassing the original procedure prescribed, including the constitution of a Search-cum-Selection Committee as mandated by the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2018 (for short, the UGC Regulations ). While doing so the High Court has assumed that there is a distinction in procedure for appointment and reappointment , whereas there is no such distinction recognised under the service law jurisprudence. b. If the impugned judgment is to be upheld, then for reappointment as a Vice-Chancellor under the proviso to Section 10(10) of the Kannur University Act, there is no requirement for undertaking the exercise of forming and consulting the Selection Committee as mandated under the UGC Regulations and as was done during the initial appointment. Going by this rationale, a person can be reappointed, even though there may be better qualified and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notification dated 01.11.2021 was issued calling for applications from eligible candidates for the post of Vice-Chancellor. The said notification stipulated that the candidate must satisfy the eligibility criteria mentioned in Clause 7.3(i) of the UGC Regulations, and should not be more than 60 years of age on the date of issuing the notification. When appointment is made by virtue of Section 10(10), the law does not provide an exemption to be followed in the case of an incumbent who is holding the post of Vice-Chancellor. i. The reliance placed by the High Court on the decisions of the Rajasthan High Court and Jammu Kashmir High Court, in its impugned judgment is not correct as the two High Courts had failed to take into consideration the UGC Regulations which provides for the method and procedure for appointment of the Vice-Chancellor. The appointment of the Vice-Chancellor can only be done in accordance with the procedure as laid therein and the central legislation fully occupies the issue. j. The reappointment was based on the request of the State Government and not on any independent evaluation. Such a request is wholly unwarranted as the State Government has no say in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Visitor/Chancellor shall appoint the Vice-Chancellor out of the Panel of three-five names recommended by the Search-cum-Selection Committee. c. The different state laws made under Entry 25 of List III dealing with the same subject have provisions which give a dominant status to the State Governments, and do not provide for the identical procedure provided for by the UGC Regulations. d. It has been held recently, in a judgment of this Court in Gambhirdan K. Gadhvi (supra) (2 Judges) which is followed in Anindya Sundar Das (supra) (2 Judges), that the UGC Regulations form a part of the UGC Act, 1956 for the reason that it requires that the regulations made under the Act shall be laid before the Parliament. Even though Section 26 of the UGC Act does not provide for these regulations being part of the Act, nevertheless the Court held that the mere fact of laying would result in the regulations being made part of the Act. e. A catena of judgments of this Court have held to the same effect. What has been missed in holding so is that the subordinate legislation, whether of rules or regulations, could be read as part of the Act, but, for different purposes. The real effect of this stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich notice may be given by a member: i. In Parliamentary Procedure: Law Privileges Practice and Precedents by Subhash C. Kashyap, Third Edition Page 596, it is stated that where a statute provides that rules shall be laid before Parliament and shall be subject to a modification made by Parliament, if a member gives a notice for modification of the Rules, the Government is bound to find time for discussion of the motion. The motion for modification contains a recommendation to the Rajya Sabha for concurrence, and the effect of the passing of the motion by both the Houses is that the Government is bound to amend the rules accordingly. j. It has been held in the judgment in Gambhirdan K. Gadhvi (supra) that the UGC regulations, though not so stated in the UGC Act, are part of the UGC Act, and hence, would prevail over the repugnant sections of the State Act, which would be rendered void to the extent of the repugnancy. k. A series of judgments of this Court state that subordinate legislation becomes a part of the Act, even though the section itself does not say so. These include State of U.P. v. Babu Ram Upadhya, (1961) 2 SCR 679, Express Newspaper (P) Ltd. v. Union of India, 1959 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Vice-Chancellor for more than 2 terms. Section 10(10) of the Act should be read conjunctively and not distinctively. The statute itself has provided for the procedure with respect to the reappointment and has made it clear that the Vice-Chancellor holding office shall be eligible for reappointment. The other eligibility criteria prescribed do not, therefore apply to 'reappointment' under Section 10(10). Hence, the reappointment is not to be considered as a fresh appointment upon completion of the first term. c. The age limit has been fixed even in the matter of reappointments in the Mahatma Gandhi University Act, 1985; Kerala Agricultural University Act, 1971; APJ Abdul Kalam Technological University Act, 2015; and the Thunchath Ezhuthachan Malayalam University Act, 2013. Therefore, the statute would explicitly specify the age limit in case of reappointments and when the statue does not provide for it, the age limit prescribed for appointment cannot be applied even in the case of reappointments. G. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 4 VICE CHANCELLOR. 18. Mr. Basavaprabhu S. Patil, the learned Senior Counsel appearing for the respondent No. 4 made the following s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the UGC Regulations has not been complied with at all and therefore on this ground alone the reappointment of the respondent No. 4 as the Vice-Chancellor should be cancelled by a writ of quo-warranto. b. The State Government having adopted the UGC Regulations, the Regulations made by the Parliament under Entry 25 of List III shall prevail over the State legislation. Once the UGC Regulations prescribe the procedure and method for appointment of Vice- Chancellor, the University has to comply with the Regulations, which has not been followed in the present case. Therefore, the High Court erred in not following the UGC Guidelines. 20. The learned Attorney General invited the attention of this Court to a press release issued by the Kerala Raj Bhavan dated 03.02.2022 which is at Annexure P-18 at page 136: 03 February 2022 PRESS RELEASE Kannur Varsity: Facts grossly distorted. Kerala Raj Bhavan strongly refutes the claim in some news reports that it was on the direction of Hon'ble Governor that the name of Dr. Gopinath Ravindran was suggested for reappointment as Vice Chancellor, Kannur University. The truth is that the same was initiated by the Chief Minister and Higher Education Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Chancellor to be pleased to cancel the notification dated 27.10.2021 appointing a Search-Cum-Selection Committee for identifying the person to be appointed as Vice Chancellor . She also requested Hon'ble Chancellor's pleasure in cancelling the notification dated 01.11.2021 and in re-appointing Dr Gopinath Ravindran for a continuous second term as Vice Chancellor of Kannur University . On 22nd November by 12.10 pm, Shri R. Mohan, Officer on Special Duty to Chief Minister and the Legal Advisor to Chief Minister had met the Hon'ble Governor, repeated their request and in support, submitted the signed legal opinion of the Advocate General which was addressed to the Additional Chief Secretary, Higher Education Department. This opinion of the Advocate General substantially endorsed the request made earlier by Legal Advisor to Chief Minister in the personal meeting with the Governor and the request of the Higher Education Minister in her letter. The eight-page opinion of the Advocate General which is addressed to the Additional Chief Secretary, Higher Education Department says that there was no legal bar in reappointing Dr. Gopinath Ravindran as Vice Chancellor, Kannur Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Chancellor, Kannur University which was set in motion vide Kerala Raj Bhavan notification dated 27.10.2021 came to an end consequent to the request from the Minister Higher Education, OSD to Chief Minister and Legal Advisor to the Chief Minister duly supported by the legal opinion of the Advocate General, Kerala, culminated in the reappointment of Dr. Gopinath Ravindran as Vice Chancellor, Kannur University. (Emphasis supplied) 21. In such circumstances, the learned Attorney General for India prayed that the reappointment of the respondent No. 4 as the Vice-Chancellor being contrary to the UGC guidelines, the same deserves to be set at naught by issue of writ of quo warranto. I. RELEVANT PROVISIONS OF THE KANNUR UNIVERSITY ACT, 1996 THE UGC REGULATIONS, 2018 22. Before adverting to the rival submissions canvassed on either side, we must look into the relevant provisions of the Kannur University Act as well as the relevant regulations of the UGC. 23. Section 10 of the Kannur University Act reads thus: (1) The Vice-Chancellor shall be appointed by the Chancellor on the recommendation of a committee appointed by him for the purpose (hereinafter referred to as the committee). (2) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : A person possessing the highest level of competence, integrity, morals and institutional commitment is to be appointed as Vice-Chancellor. The person to be appointed as a Vice-Chancellor should be a distinguished academician, with a minimum of ten years of experience as Professor in a University or ten years of experience in a reputed research and / or academic administrative organisation with proof of having demonstrated academic leadership. ii. The selection for the post of Vice-Chancellor should be through proper identification by a Panel of 3-5 persons by a Search-cum- Selection-Committee, through a public notification or nomination or a talent search process or a combination thereof. The members of such Search-cum-Selection Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges. While preparing the panel, the Search cum-Selection Committee shall give proper weightage to the academic excellence, exposure to the higher education system in the country and abroad, and adequate experience in academic and administrative governance, to be given in writing along with the panel to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the office, he was to be ousted. 29. Quo warranto is a writ that lies against a person who usurps any franchise, liberty, or office. In Corpus Juris Secundum, quo warranto is defined thus; Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and to oust the holder if his claim is not well founded, or if he has forfeited his right. Blackstone, states: The ancient writ of quo warranto was in the nature of a writ of right for the King against any office, franchise or liberty of the Crown to inquire by what authority he supported his claim, in order to determine the right. 30. Quo warranto is a remedy or procedure whereby the State inquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded, or to have the same declared forfeited and recover it, if, having once been rightfully possessed and enjoyed; it has become forfeited for mis-user or non-user. 31. In B.R. Kapur v. State of T.N. and Another reported in (2001) 7 SCC 231, after referring to Halsbury's Laws of England, Words and Phrases and leading decisions on the point, it was observed that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y person, who holds 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, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the Executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. (Emphasis supplied) 35. In High Court of Gujarat and Another v. Guja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irited person coming before the court as a petitioner (Emphasis supplied) 37. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and Ors. reported in (2014) 1 SCC 161, another two-Judge Bench of this Court reiterated that: 21. the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority. (Emphasis supplied) 38. More recently, in Bharati Reddy v. State of Karnataka and Others reported in (2018) 6 SCC 162, a three-Judge Bench of this Court, of which one of us (Justice D.Y. Chandrachud) was a part, noted the line of precedent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. 44. A similar view as aforesaid was taken by this Court in P. Venugopal v. Union of India reported in (2008) 5 SCC 1. 45. In another decision of this Court in J.S. Yadav v. State of Uttar Pradesh and Another reported in (2011) 6 SCC 570, it was held that a person appointed to a tenure post only goes out once the tenure is completed. The relevant observations are reproduced below: - 17. An employee appointed for a fixed period under the statute is entitled to continue till the expiry of the tenure and in such a case there can be no occasion to pass the order of superannuation for the reason that the tenure comes to an end automatically by efflux of time . 46. We are not impressed with the submission canvassed on behalf of the appellants that the post of the Vice-Chancellor being a tenure post reappointment is not permissible. The statute itself has provided fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Vice-Chancellor which connotes that it is applicable to the incumbent holding the office of Vice-Chancellor or simpliciter the Vice-Chancellor after having been appointed. 50. Thus, in our view sub-section (9) of Section 10 of the Act 1996 will apply only at the stage of appointment of Vice-Chancellor and would have no application whatsoever when it comes to reappointment of Vice-Chancellor under sub-section (10). This is reinforced from the words shall be eligible for reappointment occurring in sub-section (10) which connotes that the same is an enabling provision whereby the Vice-Chancellor by virtue of holding his office is deemed eligible for reappointment irrespective of the other provisions. 51. We are conscious of the fact that, the proviso to sub-section (10) which provides that the Vice-Chancellor shall not be appointed for more than two terms also uses the word person which in our opinion is a deliberate choice. We say so because the proviso deals with a situation where the Vice-Chancellor has demitted office by virtue of lapse of his tenure. 52. The aforesaid aspect may be looked at from one another angle. If we were to hold that the outer age limit provided in sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old office of Vice-Chancellor till he attains the age of sixty years and rather uses the expression No Person who is more than sixty years of age shall be appointed as Vice-Chancellor . 56. The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to the statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that construction which carries forward the objectives of the statute, protects interest of the parties and keeps the remedy alive, should be preferred looking into the text and context of the statute. Construction given by the court must promote the object of the statute and serve the purpose for which it has been enacted and not efface its very purpose. The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of the statute must be so construed as to make it effective and operative. The court must take a pragmatic view and must keep in mind the purpose f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, subject to the proviso to sub-section (10) of Section 10, is eligible to be considered for reappointment. What this implies is that an incumbent ViceChancellor may not have to reapply along with other candidates and compete for the same position once again. Reappointment essentially means the incumbent Vice-Chancellor would receive another term of four years if the Chancellor deems fit without reopening the position for new applications or without constituting a select committee. Re means again, and is freely used as prefix. It gives colour of again to the verb with which it is placed. Reappointment is an act or process of being appointed again. 60. Where the appointment is to be made for the first time or where the same person is being appointed as a Vice-Chancellor for the second time, but not in continuation of the first term, the procedure provided under Section 10 of the Act 1996 must be gone through. However, in the case of reappointment immediately upon the tenure of the first term coming to an end, there is no requirement to initiate the entire process of appointment as provided under Section 10 of the Act 1996. 61. In the aforesaid context, we may refer to a decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with Section 8(1) since the former expressly refers to the latter. The reference to the provisions of sub-section (1) for filling up a vacancy on the expiration of the term of office will not obviously 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 (Emphasis supplied) 64. We are conscious of the fact, that in Anindya Sundar Das (supra) the aforestated line of reasoning was adopted by this Court in view of the amendment that was carried out whereby the original expression subject to provisions of this section in the provision dealing with reappointment was deleted, in other words, by virtue of such amendment the reappointment was no longer subject to the provision / section detailing the ordinary procedure for appointment of Vice-Chancellor, and thus, this Court had no hesitation in holding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the earlier part of our judgment only talks about appointment of Vice-Chancellor. The UGC Regulations provide for the procedure to be adopted for appointment of Vice-Chancellor. The UGC Regulations are silent in so far as reappointment of the Vice-Chancellor is concerned. There is no specific procedure prescribed by the UGC under its regulations for the purpose of reappointment of Vice-Chancellor. The entire focus of the Chancellor is on the aforesaid. However, nothing has been said in the counter-affidavit filed on behalf of the Chancellor as regards Chancellor s own independent satisfaction or judgment for the purpose of reappointment of the respondent No. 4 as ViceChancellor. 69. It is in such circumstances that we have thought fit to pose a question whether the Chancellor abdicated his statutory power? 70. It has been stated by Wade and Forsyth in Administrative Law, 7th Edn. at pp. 358-59 under the heading Surrender, Abdication, Dictation and sub-heading Power in the wrong hands as below: Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to law. (See Tomlin's Law Dictionary). In its ordinary meaning, the word discretion signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary.) 21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples laid down in Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and Others v. Director General of Civil Aviation and Others reported in (2011) 5 SCC 435, where it has been held that: 26. ... It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide Purtabpore Co. Ltd. v. Cane Commr. of Bihar [(1969) 1 SCC 308 : AIR 1970 SC 1896], Chandrika Jha v. State of Bihar [(1984)2 SCC 41 : AIR 1984 SC 322], Tarlochan Dev Sharma v. State of Punjab [(2001) 6 SCC 260 : AIR 2001 SC 2524] and Manohar Lal v. Ugrasen [(2010) 11SCC 557 : (2010) 4 SCC (Civ)524 : AIR 2010 SC 2210]. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 166(3) of the Constitution further bestows upon the Governor the power to make rules for more convenient transactions of business of the Government of the State and also for the purpose of allocating among the Ministers of State such business. There are several ways by which, a power may be conferred upon the Governor, or qua the Governor, which will enable him to exercise the said power by virtue of his office as Governor. Therefore, there can be no gainsaying that all the powers that are exercisable by the Governor by virtue of his office can be exercised only in accordance with the aid and advice of the Council of Ministers except insofar as the Constitution expressly, or perhaps by necessary implication, provides otherwise. 76. Thus, in such a situation, the statute makes a clear-cut distinction between two distinct authorities, namely, the Chancellor and the State Government. When the legislature intentionally makes such a distinction, the same must also be interpreted distinctly, and while dealing with the case of the Vice-Chancellor, the Governor, being the Chancellor of the University, acts only in his personal capacity, and therefore, the powers and duties exercised and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Chancellor, he does every act in his discretion as Chancellor and he does not act on the aid and advice of his Council of Ministers. The performance of the functions and duties under the Constitution with the aid and advice of the Council of Ministers is distinct and different from his discharge of the powers and duties of his office as Chancellor of the University. Under the Act and the statute, the Chancellor has independent existence and exercises his powers without any interference from any quarter. Therefore, the office as a Chancellor held by the Governor is a statutory office quite distinct from the office of the Governor. Same view was taken by the Andhra Pradesh High Court in Kiran Babu case [AIR 1986 AP 275 : (1986) 1 An LT 36]. . 78. Bearing the aforesaid principles of law in mind, we proceed to consider whether there was any independent application of mind or satisfaction on the part of the Chancellor in reappointing the respondent No. 4 as Vice-Chancellor. The facts narrated by us in the earlier part of our judgment speak for themselves. The Chancellor had already initiated the steps for appointment of a new Vice-Chancellor and this is evident by the fact that a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the sole judge and his opinion is final in all respects. In reappointing the Vice-Chancellor, the main consideration to prevail upon the Chancellor is the interest of the university. 83. The Chancellor was required to discharge his statutory duties in accordance with law and guided by the dictates of his own judgment and not at the behest of anybody else. Law does not recognise any such extra constitutional interference in the exercise of statutory discretion. Any such interference amounts to dictation from political superior and has been condemned by courts on more than one occasions. M. FINAL CONCLUSION 84. It is now well settled that a writ of quo warranto lies if any appointment to a public office is made in breach of the statute or the rules. In the case on hand, we are not concerned with the suitability of the respondent No. 4. The suitability of a candidate for appointment to a post is to be judged by the appointing authority and not by the court unless the appointment is contrary to the statutory rules/provisions. We have reached to the conclusion that although the notification reappointing the respondent No. 4 to the post of Vice-Chancellor was issued by the Chancellor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
