Madras High Court
M.Lionel Antony Raj vs Dr.P.P.Chellathurai on 14 June, 2018
Bench: Indira Banerjee, M.Sundar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 14.11.2017
Date of Decision : 14.06.2018
CORAM :
The Hon'ble Ms.INDIRA BANERJEE, CHIEF JUSTICE
AND
The Hon'ble Mr.JUSTICE M.SUNDAR
W.P (MD) No.12788 of 2017
&
W.M.P (MD) No.9888 of 2017
&
W.P.No.14705 of 2017
&
W.M.P Nos.15936 to 15938 of 2017
W.P (MD) No.12788 of 2017
M.Lionel Antony Raj .. Petitioner
Vs.
1.Dr.P.P.Chellathurai
Vice Chancellor
Madurai Kamaraj University
Palkalai Nagar, Madurai-21
2.The Principal Secretary to the Governor
of Tamil Nadu
Chennai 600 009
3.The Government of Tamil Nadu
Rep. by its Chief Secretary
Chennai 600 009
4.The University Grants Commission
Represented by its Secretary
Bahadur Shah Jafar Marg
New Delhi
5.Dr.C.Murukadas
Convener, Vice Chancellor Search Committee
Madurai Kamaraj University
Madurai
No.38 (Old No.76-A) Gill Nagar 3rd Street
Choolaimadu, Chennai-94
6.Dr.Harish L Metha
Member Vice Chancellor Search Committee
Madurai Kamaraj University
Madurai
Old No.62, New No.20, Burkit Road
T.Nagar, Chennai 17
7.Dr.G.Ramakrishnan
Member Vice Chancellor Search Committee
Madurai Kamaraj University
Madurai
No.6, Shanthiniketan Colony
Anna Nagar, Madurai
8.The Chancellor of Madurai Kamaraj University
Raj Bhavan
Guindy
Chennai
9. The Registrar
Madurai Kamaraj University
Palkalai Nagar, Madurai ... Respondents
(Respondents 8 and 9 are impleaded vide Court order dated 12.07.2017 in WMP (MD) No.9987 of 2017)
W.P.No.14705 of 2017
Traffic Dr.Ramaswamy ... Petitioner
Vs.
1.The Chief Secretary
Government of Tamil Nadu
Chennai 600 009
2.The Principal Secretary
Government of Tamil Nadu
Chennai 600 009
3.The Secretary
Higher Education Department
Government of Tamil Nadu
Chennai 600 009
4.The Vice-Chencellor
Madras University
Chepauk
Chennai 05
5.The Vice-Chancellor
Madurai Kamaraj University
Madurai
Tamil Nadu 625 021 ...Respondents
Prayer in W.P (MD) No.12788 of 2017: Writ petition filed under Article 226 of the Constitution of India to issue a writ of Quo Warranto to the 1st respondent is holding the post of Vice Chancellor, Madurai Kamaraj University, Madurai and to quash his appointment to such post.
Prayer in W.P.No.14705 of 2017: Writ petition filed under Article 226 of the Constitution of India to issue a writ of mandamus directing the respondents to consider the representation dated 01.06.2017 to the letter and spirit to cancel the recent appointment of Vice-Chancellor for Madras University and Madurai Kamaraj University and the Search Committee to submit the short list and verify back files of selected persons, also direct the chancellor to appoint candidates those who is leading in the merit list as Chancellor directly as a lesson to the illegal system and as a gesture of justice.
For petitioner
In W.P (MD) No.12788 of 2017 : Mr.G.Prabhu Rajadurai
For Respondents : Mr.Issac Mohanlal
Senior Counsel for R1
Mr.Vijay Narayan
Advocate General
Asst. by Mr.T.N.Rajagopalan
Govt.Pleader (I/c)for R2 & R3
Mr.P.R.Gopinath for R4
Mr.R.Thiagarajan
Senior counsel
for Saji Bino for R5
Mr.N.G.R.Prasad
for Mr.R.Narayanan for R6
Ms.Meenakshi for R7
No appearance for R8
Mr.P.H.Aravindh Pandian
Senior counsel
for Mr.H.Thayumanaswamy for R9
For Petitioner in
W.P.No.14705 of 2017 : Mr.A.Ramesh Manikandan
(No appearance)
For Respondents : Mr.Vijay Narayan
in W.P.No.14705 of 2017 Advocate General
Asst. by Mr.T.N.Rajagopalan
Govt. Pleader (I/c) for R1 to R3
- - - -
COMMON ORDER
M.SUNDAR.J We propose to dispose of both the aforesaid writ petitions by this common order as the issues raised are common/similar and the prayers sought overlap, with one limb of the prayer being common to both writ petitions.
2.The pivotal issue in these two writ petitions is appointment of Vice Chancellor of Madurai Kamaraj University. Both these writ petitions, which have been filed as Public Interest Litigations ('PILs' for brevity), question the appointment of one Dr.P.P.Chellathurai, as Vice-Chancellor of Madurai Kamaraj University. To be noted, in one of the two PILs i.e., W.P.No.14705 of 2017 (filed by one Traffic Dr. Ramaswamy), there is a prayer qua appointment of Vice-Chancellor of Madras University also.
3.It is necessary to set out a thumbnail sketch of facts for better appreciation of our order. We do so under the caption Facts in a nutshell infra.
4. FACTS IN A NUTSHELL 4(a) Though the caption is 'facts in a nutshell', as mentioned supra, we shall be setting out only a thumbnail sketch of facts, which according to us, are absolutely essential (sans unnecessary details and particulars) for appreciating this order.
4(b) Madurai Kamaraj University (hereinafter referred to as MKU for brevity) was established by the Government of Tamil Nadu by enacting Madurai Kamaraj University Act, 1965 (No.33 of 1965), which is hereinafter referred to as 'MKU Act' for brevity. The Governor of Tamil Nadu is exofficio Chancellor of MKU and the administration of MKU vests in the Vice-Chancellor.
4(c) Vice Chancellor of MKU shall be appointed by the Chancellor from and out of a panel of three names to be recommended by a committee, which goes by the name 'Search Committee'. The Search Committee shall consist of three persons. The three persons in the Search Committee shall be nominated by the Senate, the Syndicate and the Chancellor of MKU (To be noted, one each). The Vice Chancellor, who is so appointed, shall be a whole time officer of MKU and will hold office for a period of three years.
4(d) This being a thumbnail sketch of facts, suffice to say that the mode of selection of Vice Chancellor of MKU is set out in Sections 11 and 12 of MKU Act. Besides the MKU Act, there is a reference to what is referred to as 'Statutes' and a book which says MKU Calender Volume 1 was placed before us. These 'Statues' are traceable to sub-sections (1) and (2) of Sections 17, 30 and 31 of MKU Act and Chapter V of these Statues captioned 'Vice Chancellor' is also of relevance here.
4(e) In the instant case, the search committee of three members for MKU was constituted in the aforesaid manner and the same was published by the State Government vide G.O (ID) No.91, Higher Education (H2) Department dated 06.04.2015. The Search Committee comprised of Dr.C.Murukadas (Chancellors Nominee), Dr.Harish L.Mehta (Syndicate Nominee) and Prof. Mu.Ramaswamy (Senate Nominee). This Search Committee held a meeting on 24.04.2015.
4(f) Alleging that the functioning of the convenor is high-handed, Dr.Mu.Ramaswamy resigned, necessitating reconstitution of the Search Committee. The Search Committee was reconstituted and in place of Dr.Mu.Ramaswamy (Senate Nominee), Dr.G.Ramakrishnan was made a member of the Search Committee and the same was published in the Gazette by the Government of Tamil Nadu vide G.O. (D) No.407 (Higher Education-H2 Department) dated 20.12.2016. To be noted, the members of this reconstituted Search Committee have been arrayed as Respondents 5, 6 and 7 in one of the two instant writ petitions, i.e., W.P (MD) No.12788 of 2017 filed by M.Lionel Antony Raj.
4(g) For the sake of further convenience and clarity, we are referring to the PIL being W.P (MD) No.12788 of 2017, as 'Lionel Antony Rajs PIL' and the other PIL i.e., W.P.No.14705 of 2017, as 'Traffic Ramasamys PIL'.
4(h)Also to be noted, wherever we refer to the parties to this proceedings by rank, it is by their rank in Lionel Antony Rajs PIL, which has also been argued by consent of all counsel as the lead matter.
4(i) After the notification of the re-constituted Search Committee vide aforesaid Government Order dated 20.12.2016, there were some meetings of the members of the reconstituted Search Committee (about which we shall write in the latter part of this order). Ultimately, all the aforesaid three Search Committee members went together in person to the Raj Bhavan and met His Excellency the Governor (who is the Chancellor of MKU) at 05.30 pm on 19.05.2017 and handed over a panel of three names to his Excellency, the Governor. It is also understood that another sealed cover was handed over to the Chancellor.
4(j) It is not in dispute that His Excellency Governor of Tamil Nadu, who is the Exofficio Chancellor of MKU chose to appoint Dr.P.P.Chellathurai as Vice-Chancellor of MKU. As set out supra, Dr.P.P.Chellathurai has been arrayed as Respondent No.1 in Lionel Antony Rajs PIL and his appointment as Vice Chancellor of MKU is the subject matter of main challenge in these writ petitions. While prayer in Lionel Antony Rajs PIL is in the nature of quo warranto, the prayer in Traffic Ramasamy's PIL is broader and is one that assails not only the appointment of Dr.P.P.Chellathurai, but it also assails the decision of the Search Committee. The prayer is broader in amplitude, wider in width and generic in character as it urges us to call for the records of the Search Committee and quash the same. Further to be noted, in Traffic Ramasamys PIL, the appointment of Vice-Chancellor of Madras University has also been assailed, but as no arguments were advanced with regard to that, this order will deal with the appointment of Vice-Chancellor of MKU alone. However, with regard to the prayer, we do take note of the obtaining position that the prayer in Traffic Ramasamys PIL is qua challenge to appointment of MKU Vice-Chancellor also.
4(k) In other words, the prayers before us with regard to challenge to appointment of MKU Vice-Chancellor is not quo warranto simplicitor, but is a wider prayer, which calls in question the process of selection by the Search Committee. Our discussion and the ultimate conclusion will be based on this premise.
4(l) Several grounds assailing the appointment of Vice-Chancellor of MKU have been raised and the same have been resisted by the appointee, and Convenor (one of the members of the Search Committee). The Registrar of MKU was impleaded as Respondent No.9 (obviously in Lionel Antony Rajs PIL). Registrar has also supported the appointment. Elaborate submissions were made by learned senior counsel and counsel appearing for various parties to the litigation over several hearings. We shall refer to those submissions under the caption Discussion for the sake of convenience and clarity.
5. We now proceed with discussion of the submissions made before us under the caption Discussion infra.
DISCUSSION 5(a) As a preface to this discussion, it is necessary to broadly set out the grounds on which the appointment of Vice- Chancellor of MKU were assailed.
5(b) In both the PILs, the grounds on which the appointment were assailed can be encapsulated / captured as three grounds of attack and they are as follows:
i.The appointee does not have the requisite qualification and therefore, is not eligible to be appointed as Vice-Chancellor of MKU. Specific attack is to the effect that the appointee has not served as Professor or in an equivalent position for a minimum of 10 years, which undisputedly is a requisite qualification.
ii.There is a criminal case pending against the appointee. The criminal case is Crime No.261 of 2014 on the file of Nagamalai Pudukkottai Police station, Madurai for several alleged offences including Section 307 (attempt to murder) read with Section 109 of Indian Penal Code (hereinafter referred to as IPC for brevity).
iii. The process of selection by the Search Committee is completely flawed as there were no deliberations and discussions, much less unanimity in the ultimate recommendation of the Search Committee. Apart from this, it is the specific case of the petitioner that there was not even broad consensus, not to talk of unanimity.
5(c) Responding to the above said three broad grounds of attack, the appointee (Respondent No.1), the Principal Secretary to the Governor of Tamil Nadu and the Chancellor (Respondent Nos.2 and 9), Government of Tamil Nadu represented by its Chief Secretary and the Convenor of the Search Committee (Respondent No.3 and 5 respectively) made submissions on the following lines:
i.The appointee is not ineligible as he has served as Director of Youth Welfare Department of MKU for the requisite period, the same has to be construed to be equivalent to the post of Professor as the said post had been so re-designated later.
ii.The criminal case is not one in which the appointee has been convicted, but it is only an FIR which means nothing. In any event, there is a petition in the Madurai Bench of Madras High Court for quashing the FIR and a police report is awaited in the said proceedings.
iii.Once the Search Committee recommends a panel to the Chancellor, its members become functus officio. The members of the Search Committee, thereafter, cannot be heard to contend that the process of selection is improper or anything contrary to the recommendation made. Therefore it cannot be gainsaid that there were no discussions and deliberations inter-se the Search Committee.
5(d) Besides the Convenor, the two other members of the Search Committee have been arrayed as Respondent Nos.6 and 7. They have filed separate counter affidavits, clearly stating that the convenor acted in a high handed manner. They have also asserted and affirmed in a sworn affidavit that there were no discussions and deliberations inter se the Search Committee and that their objections and suggestions fell in deaf ears. In other words, the crux and gravamen, i.e., sum and substance of the common stand of Respondents 6 and 7 is to the effect that the ultimate appointee (Respondent No.1) was thrust on the Search Committee by the convenor (Respondent No.5) in a very high handed and autocratic manner on the ground that appointee/Respondent No.1 is Government's nominee. Even on the last day i.e., 19.05.2017, when all the three members of the Search Committee went to the Raj Bhavan in person and handed over a panel of three names to His Excellency the Governor, it is alleged by Respondents 6 and 7 that the meeting was convened (by the Convenor) at 04.30 pm in a hotel near Raj Bhavan (Hotel Lemon Tree), but the convenor himself turned up only at 04.55 pm, informed the committee that the appointment with the Chancellor is at 05.30 pm and simply hurried the matter through with no discussion or deliberation, much less meaningful discussion or deliberation.
5(e) In the above backdrop of rival submissions and stated positions, arguments were advanced over several hearings.
5(f) Mr.G.Prabhu Rajadurai, learned counsel appearing for Mr.Lionel Antony Raj, while elaborating on the aforesaid points, made detailed submissions on how the appointee is ineligible (not having served as Professor or in an equivalent post for the requisite period of 10 years), about the criminal case pending against the appointee and about the Search Committee proceedings being completely flawed with no discussions or deliberations much less consensus or unanimity.
5(g) Mr.Issac Mohanlal, learned senior counsel appearing for the appointee / Respondent No.1 argued that the scope of a writ of quo warranto is very limited and that the Court will not look into suitability or what weighed in the minds of the persons responsible for selection. With regard to the criminal case, it was his specific submission that a report is awaited in the quash petition and mere pendency of FIR is not a bar. Mr.Vijay Narayan, learned Advocate General appearing for the Principal Secretary to the Governor and the Chancellor (Respondent Nos.2 and 8), submitted that in the course of perusal of intelligence report, the Chancellor came to know about the criminal case, the same was looked into, after satisfying himself about the eligibility of the appointee and about the fact that the criminal case is at FIR stage, the appointment was made.
5(h) Mr.P.R.Gopinath, learned Central Government Standing counsel appearing for the University Grants Commission (hereinafter 'UGC' for brevity) submitted that it is high time that Universities such as MKU start adopting the UGC Regulations, particularly in the light of the fact that huge sums are given by UGC to such universities as grant.
5(i) Mr.R.Thiagarajan, learned senior advocate appearing for the counsel on record for the Convenor of the Search Committee (arrayed as Respondent No.5 i.e., Dr.C.Murukadas), made submissions on the lines that the Search Committee went about the task of short listing of panel of three names in a democratic manner. Mr.Thiagarajan also attacked Respondents 6 and 7 and submitted that for the reasons best known to them, they have turned turtle and are now singing a different tune after having participated in the entire process of selection by the Search Committee.
5(j) Mr.N.G.R.Prasad, learned counsel appearing for one of the members of the Search Committee Dr.Harish L Mehta, who has been arrayed as Respondent No.6, vehemently submitted and argued with assertion that persons with criminal background should not be allowed to occupy high offices of this nature. Besides this, he also submitted that the Search Committee meetings were conducted in a highly autocratic manner and were certainly not conducted in a democratic manner by the convenor. He also took us through a typed-set of papers containing snapshots of messages exchanged through Short Message Service ('SMS' for brevity) between the members of the Search Committee. Taking us through this typed-set, Mr.N.G.R.Prasad submitted that every attempt on the part of his client and by the other member of the Search Committee, i.e., Dr.G.Ramakrishnan (Respondent No.7) to bring a semblance of democracy so as to have meaningful discussions and deliberations were thwarted by the high handed and autocratic approach of the convenor.
5(k) Ms.Meenakshi, learned counsel represented the other member of the Search Committee, i.e, Dr.G.Ramakrishnan. Submissions of Ms.Meenakshi were in tandem with that of Mr.N.G.R.Prasad reiterating the SMSs exchanged between the members of the search committee. It was also submitted by the learned counsel that her client i.e., Dr.G.Ramakrishnan (Respondent No.7) had also served as Director of Youth Welfare Department of MKU before the appointee and therefore, he is fully aware of the cadre as well as duties and responsibilities of the post. On this basis, it was argued that functioning as Director of Youth Welfare Department cannot at all be considered as functioning in a post equivalent to that of a Professor. As such, responsibility as a Director does not involve teaching or research is her say. It was the specific assertion of learned counsel that this position requires only functioning as an Administrator or in other words, it is only administrative duties / responsibilities and it has nothing to do with teaching or research.
5(l) Mr.P.H.Arvind Pandian, learned senior advocate, appearing for counsel on record for the Registrar of MKU, submitted that the post of Director in the Department of Youth Welfare is an academic post of higher teaching, research and training. It is his submission that it is in the cadre of Professor. Learned senior counsel also submitted that Proforma prescribed by UGC was adopted by the Search Committee by consensus by inviting applications. With regard to the aspect of eligibility, elaborate submissions were made by learned counsel taking us through various provisions to impress upon us that the appointee, having served as Director of Youth Welfare Department in MKU for 19 years, is definitely eligible, having served in what according to him is an equivalent position. To be noted, this was refuted by the petitioner counsel by saying that it is merely an administrative post.
5(m) The aforesaid is on eligibility, but in the light of the course which we intend to adopt in these writ petitions, we deem it appropriate not to be delving more into that aspect of the matter.
5(n) With regard to the next arena of submission i.e., Pendency of criminal case against the appointee, in the course of hearing, we were informed by Mr.Issac Mohanlal, learned senior counsel appearing for Respondent No.1 /appointee that a status report has, in fact, been filed in the appropriate court in Madurai.
5(o) According to him, police have completed the investigation and filed a final report on 10.11.2017 in the Court of Judicial Magistrate VI at Madurai and filed a status report thereof in the Madurai Bench of this Court in which Dr.P.P.Chellathurai/appointee and four other persons have been excluded from the case. Therefore, with regard to the pendency of the criminal case too, there may not be much to say in this matter.
5(p) This leaves us with the last point, which is regarding the process of selection qua Search Committee being flawed, lack of unanimity and lack of even consensus.
5(q) As already mentioned, one of the three members of the Search Committee is also the convenor of the committee and he is Respondent No.5. As alluded to supra, while Respondent No.5 is towing a line wherein and whereby he asserts that the process of selection is not flawed, the other two members of the Search Committee, who are respondent Nos.6 and 7 have been singing a different tune, wherein and whereby, it is alleged that the entire process is flawed as there was no discussion or deliberation and that the appointee was virtually thrust upon the Search Committee by the Convenor in a high-handed and autocratic manner on the ground that Respondent No.1/appointee is a Government nominee.
5(r) It is the specific case of Respondents 6 and 7 that all their suggestions fell in deaf ears. In his sworn counter affidavit dated 27.07.2017, Respondent No.6 goes as far as saying I submit that I too was not treated well and suffered from the high-handed behaviour of the convenor, Dr C.Murukadas. Respondent No.6 pointed out that earlier, Dr.Mu.Ramasamy tendered resignation from the search committee owing to the high-handed action on the part of the Convenor necessitating reconstitution of the Committee (we had alluded to this supra). According to Respondent No.6, the first meeting of the reconstituted Search Committee was held on 26.12.2016 at 02.30 pm. In this meeting on 26.12.2016, Respondent No.6 states that there were discussions, but however, those discussions pertained only to giving an advertisement inviting applications for the post of Vice-Chancellor and a decision was taken on this aspect of the matter. According to Respondent No.6, the second meeting was held on 04.01.2017, wherein a decision was taken to call for fresh applications. The third meeting was held on 06.03.2017, where the applications were segragated and eligible applications were numbered and ineligible applications were rejected. Respondent No.6 goes on to say that the fourth meeting was held on 17.02.2017 at Indian Officers Association at Royapettah and it was decided to follow the process of awarding marks for each item in the application and a format was designed. Each member has to award marks for each eligible applicant. To be noted, what is critical to the lis on hand is, until this point of time, the process of selection had not commenced. Only the process of collecting applications, segregating the same and the manner in which the applications were to be scrutinized were decided in these meetings i.e., four meetings. Respondent No.6 categorically submits that 5th meeting of the Search Committee, which was scheduled to be held on 24.03.2017 was abandoned. The final meeting was on 19.05.2017 at Lemon Tree Hotel near Raj Bhavan. Respondent No.6 says in categoric terms that the process of elimination of names and inclusion of three names was hurriedly thrust upon two members by the Convenor in this meeting. He further states that the Convenor abruptly mentioned and insisted that the first respondents name i.e., Dr.P.P.Chelladurai should be included in the panel. Respondent No.6 also says that he objected to this citing pendency of FIR and also lack of eligibility. Respondent 6 states that his tenure as Director of Department of Youth Welfare cannot be construed to be equal to the post of Professor of a University. Specific averment of Respondent No.6 is to the effect that however much he tried to drop first respondents name, the Convenor was predetermined in including the name of the first respondent in the panel. It is further averred that ever since the application of Dr.P.P.Chelladurai was received, it was followed by lot of allegations from various quarters / fora, respondent No.6 drew Convenor's attention to the FIR in which Dr.P.P.Chelladurai was cited as accused No.3. Further categoric averment of Respondent No.6 is, according to the Convenor, Dr.P.P.Chelladurai was Government's choice. Thereafter, Respondent No.6 goes on to say that left with no option, he accompanied Respondent No.5 to Raj Bhavan.
5(s) What can be discerned or inferred from the sworn affidavit filed by Respondent No.6 is that there were 6 meetings in all. As set out supra, the 6 meetings were on 26.12.2016, 04.01.2017, 06.03.2017, 17.02.2017, 24.03.2017 and 19.05.2017. It can be clearly inferred that in the first four meetings, the process of selection or evaluation of the merits and demerits of the various applicants had not commenced. All decisions taken in the first four meetings were only with regard to placing of advertisements, calling for applications and taking decisions regarding manner in which the evaluation shall be done. To be noted, the 5th meeting scheduled to be held on 24.03.2017 was abandoned. Therefore, with regard to evaluation and selection, there was virtually no meeting as on 19.05.2017, the selection committee hurriedly proceeded to Raj Bhavan and handed over a panel of three names. Thus, read in juxtaposition with the counter affidavit of Respondent No.6, the meeting on 19.05.2017 was convened (by the Convenor) at 04.30 pm, but the Convenor himself arrived at 04.55 pm only and stated to the surprise of other two members that the meeting with the Chancellor (His Excellency Governor) was at 05.30 pm, hurried the meeting through, thrust the name of the appointee in the three names panel and proceeded to the Raj Bhavan. Therefore, the entire so called process of selection has taken place between 04.55 pm and 05.20 pm i.e., in 25 minutes on 19.05.2017, when the three members proceeded to meet the Chancellor at Raj Bhavan.
5(t) This takes us to the most crucial and critical aspect of the matter. The scheme of MKU Act is such that the Vice-Chancellor of MKU shall be appointed by the Chancellor by choosing one name from out of a Panel of three names recommended by a 'Committee'. To be noted, 'Committee' is more commonly referred to as 'Search Committee' as referred to supra in this judgment and with regard to composition of the Committee, the same has been alluded to supra by us in this judgment. 'Committee', according to MKU Act, should consist of three persons, one each to be nominated by the Senate of MKU, the Syndicate of MKU and the Chancellor. This is clearly a statutory requirement and this is adumbrated in sub-sections (1) and (2) of Section 11 of MKU Act. We deem it appropriate to extract, Section 11(1) and 11(2) of MKU Act. The same read as follows:
11.The Vice-Chancellor (1) Every appointment of the Vice-Chancellor shall be made by the Chancellor from out of a panel of these names recommended by the Committee referred to in sub-section (2). Such panel shall not contain the name of any member of the said Committee.
(2) For the purpose of the sub-section (1), the Committee shall consist of three persons of whom one shall be nominated by the Senate, one shall be nominated by the Syndicate and one shall be nominated by the Chancellor.
Provided that the person so nominated shall not be a member of any of the authorities of the University.
[Provided that if the Chancellor does not approve any of the persons in the panel so recommended by the Committee, he may take steps to constitute another Committee, in accordance with sub-section (2), to give a fresh panel of three different names and shall appoint one of the persons named in the fresh panel as the Vice-Chancellor] 5(u) In the light of above mentioned aspect of the matter we address ourselves to and pose to ourselves two questions. The two questions are:
i) Whether the appointment of the Vice-Chancellor of MKU in the instant case is in accordance with the aforesaid provisions of MKU Act?
ii) Whether the appointment of the Vice-Chancellor of MKU in the instant case is not in conformity with and in violation of the aforesaid provisions of MKU Act warranting issue of a writ of quo warranto?
5(v) We now set out in search of answers to the aforesaid two questions, which we have addressed ourselves to. Out of three members of the committee, two members are saying that there was virtually no discussion, deliberation, consultation, much less consensus with regard to the three names that were ultimately given to the Chancellor in the garb of recommendation. It is particularly submitted by two out of the three members that one of the three names in the panel was thrust upon them and included in the panel by the third member of the panel, who is also the Convenor of the Committee. It is also the case of these two members that one name (who was ultimately appointed as Vice Chancellor of MKU) was thrust upon them and included in the panel without heeding to their objections and on the teeth of their objections / protestations. Therefore, in a three member committee, two members are clearly saying that there were no deliberations, discussions or consultations, much less consensus and the name of the ultimate appointee was unilaterally thrust and included in the panel in a high-handed manner by the third member, who is the Convenor.
5(w) The only answer from the appointee and other co-respondents supporting the appointee in this regard is Utkal University case (1994) 1 SCC 169. In other words, it is stated that the members of a committee after submitting a panel become functus officio and what they say does not matter. Utkal University case, on facts, was a case where the appointee was taken by surprise in the court hearing and the appointee never got an opportunity to meet the allegations of members of the panel. In this case, in complete contrast, the appointee has been given all the material and has been given the opportunity of contesting every aspect of the matter. Besides this, the members of the panel are now responding to Rule Nisi issued by this Court and have set out the details in a sworn affidavit regarding complete lack of consultation, discussion, deliberation (much less consensus) and the name being thrust upon the Committee. Therefore, we are of the clear and considered view that Utkal University case is completely different and indisputably distinguishable on facts. In other words, Utkal University case does not help the first respondent appointee in any manner in these cases. To be noted, Utkal University judgment was pressed into service before us by the learned senior counsel for appointee. In our view, the appointee should have stopped with saying he is not aware of what transpired in the Search Committee and should not have gone any further, but the appointee went onto press into service Utkal University and say that the two members after making the recommendation cannot be heard to say anything to the contrary. However, we construe it as only an effort to highlight a legal principle and have dealt with it. As mentioned supra, we find Utkal University case completely distinguishable on facts owing to the trajectory of the hearing in that case.
5(x) Before we proceed further, it is necessary to set out this Court's understanding of abovesaid statutory provisions in MKU Act. The statute is so designed that the committee for selection of Vice Chancellor of MKU is drawn from three different sources, i.e., Senate, Syndicate and Chancellor. There is a clear bar for any authority of the University from being a member of the committee. There is also a bar on one of the members of the committee recommending his or her own name. Therefore, it is clear that the committee should be independent and it should be a broad based committee paving the way for broad based consultation, deliberations and debates, so that a candidate who is the best blend of eligibility and suitability is selected. What the statute has envisaged is clearly a democratic process of consultations, deliberations, debates and ultimate consensus by a carefully chosen broad based three member committee drawn from three different sources. This view of this Court is buttressed by a judgment of a Division Bench of this Court in T.K.S.Elangovan Vs. State of Tamil Nadu reported in 2017 (1) CTC 113, wherein a Division Bench of this Court has clearly explained the process of consultation qua selection. T.K.S.Elangovan case is dealt with infra in detail.
5(y) In a three member committee at this level, when two out of the three members speak against the third lone member, who is also the Convenor it cannot be brushed aside lightly. To be noted, our understanding is that the convenor is also a member of the three member committee and he is only first amongst equals as far selection per se is concerned.
5(z) Even if it is to be assumed that the aforesaid two members have now turned turtle or have switched their positions by 3600 and are saying something completely contrary to what had happened, we feel that this is also a clear violation of the sanctus statutory requirement of Section 11 of MKU Act (particularly sub-sections (1) and (2) of Section 11). It is clearly against the spirit of sub sections (1) and (2) of Section 11 of MKU Act, which we have extracted and alluded to supra. When appointments to such high offices, particularly academic institutions like Universities are made, it cannot be sustained when two out of a three member committee take a diametrically opposite stand and say that they never wanted the appointee to be recommended and in fact opposed his inclusion in the panel. As this is a fact situation, we deem it appropriate to examine and find two answers, one assuming the facts to be true / correct and the other assuming the facts to be incorrect.
5(aa) Hypothetically, on a demurrer, if the stand of Respondent Nos.6 and 7 is factually incorrect, we have no hesitation in holding that a Vice-Chancellor cannot be chosen from a panel recommended by a committee constituted by members, who turn turtle and take a diametrically opposite position when the appointment is challenged in a court of law, as it is a serious infarction of the spirit of MKU Act qua selection of Vice Chancellor.
5(ab) Equally/axiomatically, again hypothetically on a demurer, if what the two members are saying is absolutely correct and true and if what the Convenor is saying is false, the appointment is in clear violation of the requirements under MKU Act.
5(ac) Therefore, the answer in both fact situations are against appointment of respondent No.1.
5(ad) However, to make our discussion comprehensive and exhaustive, we examine a third scenario also.
5(ae)The third possible scenario is one where the versions of the convenor on the one side and the two members on the other side consist of partially factually correct and partially factually incorrect versions, this again is a clear case to hold that it is in violation of the spirit behind Section 11, particularly, sub-sections (1) and (2) of Section 11 of MKU Act.
5(af) In other words in all three possible scenarios, there is violation of sub-sections (1) and (2) of Section 11 of MKU Act.
5(ag) Appointment to such high offices, that too academic institutions like Universities cannot be sustained in any one of the aforesaid three scenarios.
5(ah) The importance of consultation, deliberation and ultimate consensus in appointments to such high offices has been emphasised and very eloquently elucidated and articulated by the Hon'ble Supreme Court of India in Ram Tawakya Singh Vs. State of Bihar and Others reported in (2013) 16 SCC 206. To be noted, in this judgment, appointment of Vice-Chancellor of Bihar University was called in question. In this case, it was mandated in the relevant statute that the appointment of Vice-Chancellor of Bihar University should be done by a Chancellor in consultation with the State Government. In this backdrop / context, Hon'ble Supreme Court explained the term 'Consultation' and the same is articulated in Paragraphs 29 and 30 of the said judgment, which read as follows:
29. The word consultation used in Sections 10(2) and 12(1) of the BSU Act and Section 11(2) and 14(1) of the PU Act is of crucial importance. The word 'consult' implies a conference of two or more persons or impact of two or more minds in respect of a topic/subject. Consultation is a process which requires meeting of minds between the parties involved in the process Consultation on the material facts and points to evolve a correct or at least satisfactory solutions. Consultation may be between an uninformed person and an expert or between two experts. In either case, the final decision is with the consultor, but he will not be generally ignoring the advice of the consultee except for good reasons.
30. In order for two minds to be able to confer and produce a mutual impact, it is essential that each must have for its consideration fully and identical facts, which can at once constitute both the source and foundation of the final decision. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. If there is more than one person to be consulted, all the persons to be consulted should know the subject with reference to which they are consulted. Each one should know the views of the other on the subject. There should be meeting of minds between the parties involved in the process of consultation on the material facts and points involved. The consultor cannot keep one consultee in dark about the views of the other consultee. Consultation is not complete or effective before the parties thereto make their respective points of view known to the other and discuss and examine the relative merit of their views. (Underlining made by Court to supply emphasis and highlight) 5(ai) The aforesaid classic elucidation was followed by a Division Bench of our High Court in the T.K.S.Elangovan Vs. State of Tamil Nadu reported in 2017 (1) CTC 113, about which we had mentioned supra. To be noted, T.K.S.Elangovan's case pertains to appointment of members to the Tamil Nadu Public Service Commission, i.e., a State Public Service Commission, which is a constitutional entity. Hon'ble Justice Sanjay Kishan Kaul (as his Lordship then was), as Chief Justice of this Court, penned T.K.S. Elangovan Judgment for a Division Bench of this Court. The aforesaid Ram Tawakya Singh case was followed and the same has been set out in Paragraph 12.1 of T.K.S. Elangovan, which reads as follows:
12.1. On the meaning of consultation, reference was made to Ram Tawakya Singh v. State of Bihar, (2013) 16 SCC 206. Consultation was opined to be a process which requires meeting of minds between the parties involved in the process of consultation (a conference of two or more persons) on the material facts and points to evolve a correct or at least satisfactory solution. Naturally, for the conferring people to produce some mutual impact, the essentiality of each having for his/her consideration fully and identical facts necessary for the final decision was emphasized. 5(aj) Besides stressing the importance of consultation in appointments to high offices, in T.K.S. Elangovan's case, a Division Bench of this High Court in Paragraph 22.6 and 22.8 held as follows:
22.6. In fact, the process runs contrary to the very objectives set forth aforesaid as to what kind of persons should be selected to the post, since the occasion to scrutinize and test their bio-data never arose in the absence of any process.
22.8. The touchstone for appointment being high expectations of integrity, impartiality, merit, ability and suitability of the candidates, it requires a meticulous enquiry which obviously did not occur. Thus, the process itself was vitiated and there was no appointment in the eyes of law. 5(ak) To be noted, T.K.S. Elangovan case was carried in appeal to the Supreme Court of India. Vide order dated 09.01.2017, Hon'ble Supreme Court confirmed the Division Bench Judgment of this Court in T.K.S. Elangovan's case authored by Justice Sanjay Kishan Kaul for a Division Bench as Chief Justice of this Court, as His Lordship then was. In terms of precedential value, T.K.S. Elangovan's judgment assumes the status of a Supreme Court judgment because the order of the Supreme Court was passed after grant of leave. In other words, the aforesaid order of the Supreme Court dated 09.01.2017 was made post leave. We deem it appropriate to set out the order of the Hon'ble Supreme Court dated 09.01.2017, which reads as follows:
Leave granted.
No Stay, except insofar as the observations recorded in Paragraph 22.11 (b) of the impugned order, which are ordered to be kept in abeyance. Additionally, paragraph 22.11.(d) shall not be implemented, to the extent it requires a meaningful consultative process. It is clarified that the sub-paragraph (d) aforementioned, a meaningful and effective deliberative process will be required, for a selection process to be valid.
With the aforesaid observations, we permit the petitioner-state to enter upon a fresh selection process. We also clarify, that Respondent No.10 will remain ineligible, for any such fresh selection and appointment. 5(al) As per obtaining legal position today, it is obvious and beyond any doubt that whenever a judgment of a High Court is carried to the Supreme Court and when the Supreme Court passes an order post leave, the doctrine of merger will operate. This is well articulated in Kunhayammed & Ors vs State Of Kerala reported in 2000 (6) SCC 329. To be noted, only aspect of whether High Court can entertain review after dismissal of Special Leave Petition (pre-leave stage) has been referred to a larger Bench of Supreme Court.
5(am) Most important aspect to be noted is, as mentioned supra, T.K.S. Elangovan case pertains to appointment of members to the Tamil Nadu Public Service Commission ('TNPSC' for brevity), which is an independent constitutional entity. The constitutional provisions regarding appointment of Chairman and members of TNPSC are set out in Chapter II of Part XIV of Constitution of India in Articles 315 to 323. With regard to appointment of members of TNPSC, no qualification has been prescribed and more importantly no procedure has been laid down. Even in such a case, this Court and ultimately Hon'ble Supreme Court have emphasised the importance of consultation and set aside appointments for lack of consultation. Though it unfurls and emerges from the narrative supra that the appointment in the instant case is clearly contrary to the statutory provisions, which is one of the grounds for issue of a writ of quo warranto, ultimate conclusions/directions which are being set out infra at the appropriate place in this judgment are being made drawing inspiration from T.K.S.Elangovan's case.
5(an) With regard to the Counter Affidavit of Respondent No.7, i.e., a member of the Search Committee, being Dr.Ramakrishnan, he avers in his sworn affidavit dated 27.07.2017 that he brought to the notice of the committee that in the last fifty years history of MKU, there was no such advertisement for the post of Vice Chancellor, qualification for the post of Vice Chancellor is not there in the statute and the Committee also does not have the powers to prescribe qualifications for the post of Vice-Chancellor of MKU. To be noted, the 7th respondent does not dispute or disagree with regard to the 6 meetings mentioned by the 6th respondent, which we have alluded to supra.
5(ao) With regard to the last meeting on 19.05.2017, 7th respondent submits that he was informed on 18.05.2017 (previous day) by the Convenor (Respondent No.5) that there will be a meeting at Lemon Tree Hotel near Raj Bhavan at 04.30 pm and the Committee will have to submit a panel of three names to the Chancellor for the appointment of Vice-Chancellor at 05.30 pm. Respondent No.7 asserts that the Convenor himself turned up for the meeting only at 04.55 pm, and when he insisted about the importance of adopting criteria of short listing the applications, the Convenor did not allow him to speak. This is contained in Paragraph Nos.19 and 20 of his counter affidavit, which read as follows:
19.I submit that the Convenor informed me on 18.05.2017 that there will be a meeting at Lemon Tree Hotel, near Raj Bhavan on 19.05.2017 around 04.30pm and the Committee will have to submit the panel of three names to the Chancellor for the appointment of the Vice-Chancellor at 05.30pm.
20.I submit that though the Convenor fixed the time at 04.30pm, he himself came at 04.55pm and informed the Committee that the appointment with the Chancellor is fixed at 05.30pm. The meeting began immediately. I submit when I insisted upon once against the importance of adopting criteria to short list the applications as there were more number of candidates to be considered, the Convenor did not allow me to speak. 5(ap) Most importantly, Respondent No.7 has categorically averred that a scrutiny of the received applications revealed that meritorious candidates i.e., more meritorious candidates than the appointee/first respondent with clean record were available, but were not even considered because of the partisan attitude of the Convenor. This is contained in Paragraph 27 of his counter affidavit, which reads as follows:
27.....A Scrutiny of the received applications will reveal that more meritorious candidates than the 1st respondent with clean record of service were available who were not considered by the committee because of the partisan attitude of the Convenor. 5(aq) Respondent No.7 has gone on record to categorically aver that he understood that Respondent No.5 had shown extraordinary interest in Dr.P.P.Chelladurai and that he had prepared a statement about this one candidate alone. This is contained in Paragraph 24 of his counter affidavit, which reads as follows:
24. One thing I understood was that he showed extraordinary interest in Dr.P.P.Chelladurai and he has come prepared with one page statement about him only. 5(ar) The 5th respondent /Convenor has filed a rejoinder affidavit dated 12.10.2017, as a rejoinder to aforesaid counter affidavit of Respondent No.6. A perusal of the rejoinder affidavit spanning 7 pages and 16 paragraphs, reveals that Respondent No.5/ Convenor has not disputed anything about the 6 meetings including the abandoned meeting as set out supra. Therefore, the meetings as chronicled are not in dispute. The allegation of thrusting the appointee on the Committee alone is disputed besides reiterating that Respondent No.1 is eligible.
5(as) Faced with the above situation, Mr.Issac Mohanlal, learned senior advocate again pressed into service Utkal Universitys case reported in (1994) 1 SCC 169 and asserted that once selection is made, the Select Committee will become functus officio. It was argued that once selection has been made, the members of the Select Committee (in this case Select Committee should be read as Search Committee) cannot go back on what transpired and sing a different tune.
5(at) On facts, as alluded to supra, Utkal University case is clearly distinguishable. In fact, we are of the view that the Utkal University case is completely different in terms of factual matrix. This would be evident from Paragraph 6 of the said judgment, which reads as follows:
6.We have given our thoughtful consideration to the reasoning and the conclusion reached by the High Court. We are unable to agree with the same. It is clear from the tenor of the High Court judgment, that the two letters were produced by the learned counsel for the University before the learned Judges of the Division Bench at the time of the hearing of the writ petition. The judgment was dictated in the court on the same day. As mentioned above Dr Kar had not even mentioned about the two letters in the writ petition filed before the High Court. He pleaded no facts pertaining to the two letters. Neither the Vice-Chancellor nor the Syndicate was a party before the High Court. The Vice-Chancellor, under the circumstance, was deprived of an opportunity of giving an explanation before the High Court as to whether he placed the two letters before the Syndicate or not. The Utkal University was impleaded before the High Court through the Registrar. Mr Mohanty, learned counsel appearing for the University was fully justified in stating that he had no instructions to say as to whether the Vice-Chancellor would go to the extent of saying that these documents are forged, concocted, or obtained by force by the petitioner. We are of the view that before reaching the conclusion, which the High Court did, it should have given an opportunity to the Vice-Chancellor to give his side of the story regarding the two letters. There was no material whatsoever before the High Court to show that the two letters were not placed before the Syndicate. The High Court was wholly unjustified in reaching the conclusion that non placing of these communications before the Syndicate was a very serious lapse, according to us, on the part of the Vice-Chancellor . As mentioned above it has been specifically averred in the special leave petition that the two letters were informally discussed at the meeting of the Syndicate dated April 19, 1990 but it was decided to have no notice of them as it could harm the reputation and prospects of respondent 1, Dr Kar. The averments are supported by the affidavit filed by the Administrative Officer of the University. We have no reason to disbelieve the factual statement made before us on behalf of the Chancellor of the University. 5(au) Aforesaid extract would show that in Utkal University, some documents were handed over, by the Bar, in the High Court at the time of hearing and the appointee assailed this by saying that he did not have an opportunity to refute, reply or even to respond to the same. Such is not the case here. Post issue of notice in the writ petition, members of the Search Committee have filed counter affidavits, which were duly served on the petitioner as well as all other co-respondents which include the convenor and appointee. The convenor/Respondent No.5 has even filed a rejoinder. We have discussed supra all these aspects pertaining to the trajectory of the case and the hearings in this Court. Therefore, the principle in Utkal Universitys case does not help Respondent No.1 in the instant case. On this aspect of the matter, we deem it appropriate to reiterate that the precedential value of the case qua principle laid down is only in the context of the factual matrix of that case as held by a Constitution Bench of Hon'ble Supreme Court in the celebrated Padma Sundara Rao Vs. State of Tamil Nadu case reported in (2002) 3 SCC 533 and we deem it appropriate to extract paragraph 9 of the said judgment, which reads as follows :
9.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. 5(av) Therefore, we deem it appropriate to look into what transpired in the Search Committee. One aspect of the case emerges very clearly / indisputably and that aspect is, all was not well as amongst members of the Search Committee. Two out of the three members (a majority of 2:1) allege that there was no meaningful deliberation or discussion qua selection / evaluation. Further to be noted, these two members categorically allege high-handed approach on the part of the Convenor and it is their specific allegation that the name of the appointee was thrust upon the Search Committee on the ground that he is Governments nominee. To be noted, as alluded to supra, even earlier, one member of the Search Committee i.e., Dr.Mu.Ramaswamy resigned citing high-handed approach of the Convenor necessitating reconstitution of the Search Committee. Furthermore, two out of the three members also have expressed their view that the appointee does not possess requisite qualification and is therefore, not eligible. These two members also go on to say that pendency of a criminal case is a serious impediment in appointment of Respondent No.1.
5(aw) As already alluded to supra, with regard to eligibility, in the light of the view that we intend to take, we do not delve much into it and we are not expressing any opinion. With regard to criminal case, there is a status report dated 10.11.2017 wherein the appointee has been excluded from the charge sheet. To be noted, 10.11.2017 report is post impugned appointment.
5(ax)Now, with regard to the selection process qua Search Committee, two versions i.e., one version of two members and the version of the lone Convenor run into each other. This being a writ petition, which is being decided on pleadings alone i.e., on affidavits and counter affidavits, we may not be able to resolve disputed facts. We will proceed on the basis of admitted positions and the facts which have not been controverted, about which we have set out supra. This leads us to only two possibilities. Both possibilities have been discussed supra. To be noted, we have discussed even a third scenario. However, for absolute clarity, we deem it appropriate to make some elaboration on the same. One possibility is, two members, namely Respondents 6 and 7, have turned turtle post recommendation of the Panel. The other possibility is version of the two members is correct, they were weighed down by the Convenor, left with no other option, they signed on the dotted line, put pen on paper reluctantly and went to the Chancellor, but they (Respondents 6 and 7) did not expect that the matter will be assailed in Court and they did not expect that they will be called upon to file affidavits in Court. As the matter has manifested in this form in this forum, Respondents 6 and 7 have chosen to set out what actually happened. In our considered opinion, both the above said scenarios do not augur well qua selection of Vice Chancellor of MKU. The reason is, if the first scenario is to be accepted, the Search committee was constituted by members who are capable of turning turtle and pleading something completely contrary to what actually transpired. If the second scenario is to be accepted, two out of the three members have not been able to assert themselves, though they were in a majority and simply put pen on paper on the dotted lines. In this context, we deem it appropriate to place reliance on a judgment of a Division Bench of this Court in Change India and another Vs. Government of Tamil Nadu and others reported in 2016-2-LW-486. Authoring the judgment for Division Bench, His Lordship Justice Sanjay Kishan Kaul as Chief Justice of this Court (as His Lordship then was) writing on the scope of Search Committee held as follows:
31....... The members of the Search Committee, who are given the privilege and honour of selecting and suggesting the names of the Vice Chancellor are directly or indirectly responsible for the achievement of the University..... 5(ay) In the instant case, from the events that have happened regarding the committee as culled out from the pleadings and submissions before us, which have been set out supra, in our opinion, it becomes very easy and simple to answer the two questions which have been formulated and which we are addressing ourselves to. Two questions have been set out in paragraph 5(u) supra. To our mind, these two questions are no conundrums. Both the questions are very simple and straight forward questions capable of monosyllabic answers and those monosyllabic answers are 'NO' for Question No.(i) and 'YES' for question No.(ii). Reasons for these two answers have been articulated by us supra. It is also our considered opinion that these two monosyllabic answers need no qualification and admit of no exception for the reasons we have articulated supra. In other words, we have set out the questions which we have addressed ourselves to and have also found that the answers are straight forward and indisputable if culled out from the pleadings and submissions made before us.
5(az) Considering the high office that is in question i.e, office of the Vice-Chancellor of a reputed University like MKU, wherein the Vice-Chancellor shall not only be the Academic Head, but also the Chief Executive Officer of the entire University, we consider it necessary to take a view that the Search Committee has to be constituted afresh and the process of selection has to be redone.
5(ba)Clear and certain grounds for issue of a writ of quo warranto have been lucidly laid down by Supreme Court, after tracing a long line of case laws in this regard, in Rajesh Awasthi Vs. Nand Lal Jaiswal reported in (2013) 1 SCC 501. Relevant paragraphs are paragraphs 19, 22 and 23. We deem it appropriate to extract the same and the same read as follows :
19.A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana [(2002) 6 SCC 269] held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy [(2006) 11 SCC 731 (2) : (2007) 1 SCC (L&S) 548 (2)] , this Court has reiterated the legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bansh Lal [(2010) 9 SCC 655 : (2010) 2 SCC (L&S) 771] wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy itself that the appointment is contrary to the statutory rules.
22.We fully agree with the learned Senior Counsel for the appellant that suitability of a candidate for appointment does not fall within the realm of writ of quo warranto and there cannot be any quarrel with that legal proposition. The learned Senior Counsel also submitted that, assuming that the Selection Committee had not discharged its functions under sub-section (5) of Section 85 of the Act, it was only an omission which could be cured by giving a direction to the Selection Committee to comply with the requirement of sub-section (5) of Section 85 of the Act. The learned Senior Counsel submitted that since it is a curable irregularity, a writ of quo warranto be not issued since issuing of writ of quo warranto is within the discretion of the court. The learned Senior Counsel made reference to the judgment of the Court in R. v. Speyer [(1916) 1 KB 595 (DC)] .
23.We are of the view that non-compliance with sub-section (5) of Section 85 of the Act is not a procedural violation, as it affects the very substratum of the appointment, being a mandatory requirement to be complied with, by the Selection Committee before recommending a person for the post of Chairperson. We are of the view that non-compliance with sub-section (5) of Section 85 of the Act will vitiate the entire selection process since it is intended to be followed before making the recommendation to the State Government. Non-compliance with mandatory requirements results in nullification of the process of selection unless it is shown that performance of that requirement was impossible or it could be statutorily waived. The expression before recommending any person clearly indicates that it is a mandatory requirement to be followed by the Selection Committee before recommending the name of any person for the post of Chairperson. The expression before clearly indicates the intention of the legislature. The meaning of the expression before came for consideration before this Court in State Bank of Travancore v. Mohd. Mohammed Khan [(1981) 4 SCC 82] where the words any debt due at and before the commencement of this Act to any banking company as occurring in Section 4(1) of the Kerala Agriculturists' Debt Relief Act, 1970, were construed by the Supreme Court to mean any debt due at and before the commencement of this Act. We, therefore, find it difficult to accept the contention of the learned Senior Counsel that this, being a procedural provision and non-compliance with sub-section (5) of Section 85 of the Act, is a defect curable by sending the recommendation back to the Selection Committee for compliance with sub-section (5) of Section 85 of the Act. (underlining made by Court for highlighting and supplying emphasis) 5(bb)Two propositions emerge clearly and indisputably from the principle laid down by Hon'ble Supreme Court in Rajesh Awasthi supra. One proposition is that a writ of quo warranto can be issued when there is a violation of a statutory provision. The second proposition is, when the selection committee does not adhere to the procedure and process adumbrated in the statute, it is not a mere procedural violation, but it is a matter which goes to the very root of the appointment i.e., 'substratum of the appointment', to borrow the language of Hon'ble Supreme Court. In the instant case, the facts and discussion of the same leave no doubt in the mind of this court that there is a clear violation of statute, i.e., MKU Act and more importantly such violation pertains to the selection process and procedure.
5(bc)Therefore, in the light of the aforesaid statutory violation read in conjunction with well laid down principles for issue of writ of quo warranto by the Supreme Court in a catena of authorities, we have no doubt in our mind that this is a fit case for issue of writ of quo warranto.
5(bd)A university is a seat of learning and the highest seat in a university is so sanctus that the selection process cannot just be a routine, but should be a rigor by itself. Universities are prime movers which catalyse the ever expanding vistas of knowledge and learning. Such institutions are not limited to literacy programmes, but are crucial components of the machinery of nation building education, as they define, develop and decide the destiny of generations to come. Perceived from this point of view, this court is of the considered opinion that offices of such nature are so sanctus that when there are statutory violations in selection procedure, the curative response is non negotiable and inevitable.
5(be)To be noted, though we are unseating respondent No.1, we are issuing certain directions for redoing the process of selection and appointment of Vice Chancellor of MKU, in accordance with the statute and by following the process and procedure for selection in letter and spirit.
5(bf)Also to be noted, though it was not placed before us, this court is aware of the judgment in P.L.Lakhanpal Vs. A.N.Ray reported in 1974 SCC OnLine Del 28 : ILR (1974) 1 Del 725, where the question of reappointment of an individual qua quo warranto was examined and it was held that it would be futile to issue quo warranto if the candidate can immediately be reappointed. In A.N.Ray's case, Delhi High Court gave conclusive findings regarding eligibility, whereas in this case in the light of complete absence of consultation and discussion even with regard to eligibility and eligibility criteria, the question of eligibility itself is left open for being considered afresh.
5(bg) As we have not expressed any opinion about the eligibility or qualifications of appointee/Respondent No.1, we make it clear that when the Search Committee is reconstituted and they embark upon the process of selection of Vice-Chancellor, Respondent No.1 will not be precluded from applying and if he so applies, his candidature shall be evaluated, without being swayed by anything said in this judgment. In other words, such evaluation shall be done untrammelled and uninfluenced by anything which has been said by us in this judgment.
5(bh) In taking the aforesaid course, as already mentioned supra, we have also drawn inspiration from a Division Bench Judgment of this Court being T.K.S.Elangovan Vs. State of Tamil Nadu reported in (2017) 1 CTC 113, wherein a somewhat similar course was adopted in a case where appointment of members of Tamil Nadu State Public Service Commission was hurried through without evaluation / discussions. To be noted, this T.K.S.Elangovan judgment was confirmed by Hon'ble Supreme Court by a Three judges Bench vide order dated 09.01.2017 in Civil Appeal Nos.81 to 83 of 2017. We say 'confirmed' by Hon'ble Supreme Court as the order was post leave whereby doctrine of merger operates. T.K.S. Elangovan for all practical purposes is to be construed as an order of Hon'ble Supreme Court in terms of precedential value. Further to be noted, we have referred to and discussed T.K.S.Elangovan case supra in another context pertaining to 'Consultation'.
6. Conclusion:
Owing to our narrative and discussion supra, we hold and give directions as follows:
a) The Search Committee for selecting a panel of three names for appointment as Vice-Chancellor of Madurai Kamaraj University shall be re-constituted with three new members (other than Respondent Nos.5, 6 and 7). One shall be nominated by the Senate, another shall be nominated by the Syndicate and the third one shall be nominated by the Chancellor.
b) New Search Committee so constituted, as aforesaid, shall embark upon the process of selecting a panel of three names for appointment as Vice-Chancellor of Madurai Kamaraj University in accordance with Madurai Kamaraj University Act, 1965 and all other applicable statutes, after due deliberations, consultations and discussions amongst themselves.
c) On such new Search Committee being constituted, Respondent No.1/appointee shall not be precluded from applying again and if he chooses to do so, the Search Committee shall evaluate the candidature of Respondent No.1 uninfluenced by these proceedings or anything that might have been said in this order or in the course of this proceedings. Such fresh evaluation shall be with regard to both eligibility and suitability. To be noted, we have left the issue of eligibility open.
d) The above process shall be completed within a period of three months from the date of receipt of a copy of this order and the panel of three names shall be submitted to the Chancellor within this three months period.
7.Decision:
a) We set aside the appointment of Respondent No.1 in W.P (MD) No.12788 of 2017 as Vice-Chancellor of Madurai Kamaraj University on the ground that the proceedings of the Search Committee are flawed without expressing any opinion on eligibility and noticing that Respondent No.1 has been dropped/deleted from the criminal case/charge sheet after further investigation. We have given directions for redoing the process of selecting Vice Chancellor for MKU again and such directions are contained under the caption 'Conclusion' supra in this judgment. With regard to Madras University Vice-Chanellor, which is also referred to in Traffic Ramasamy's PIL, as no arguments were advanced, the same does not fall for discussion here and with regard to Vice Chancellor of Madras University, the issue is treated as closed as far as these proceedings are concerned.
b) W.P (MD) No.12788 of 2017 filed by Lionel Antony Raj and W.P.No.14705 of 2017, filed by Traffic Dr.Ramaswamy (with regard to appointment of Vice-Chancellor of MKU alone) are allowed to the extent indicated above. No costs. Consequently, the connected miscellaneous petitions are closed.
(I.B., CJ.) (M.S., J.)
14.06.2018
Index: Yes
Internet: Yes
gpa/vvk
To
1.The Principal Secretary to the Governor
of Tamil Nadu
Chennai 600 009
2.The Chief Secretary
Government of Tamil Nadu
Chennai 600 009
3.The Secretary
University Grants Commission
Bahadur Shah Jafar Marg
New Delhi
4.The Secretary
Higher Education Department
Government of Tamil Nadu
Chennai 600 009
5.The Vice-Chancellor
Madras University
Chepauk
Chennai 05
6.The Vice-Chancellor
Madurai Kamaraj University
Madurai
Tamil Nadu 625 021
7.The Chancellor of Madurai Kamaraj University
Raj Bhavan
Guindy
Chennai
8. The Registrar
Madurai Kamaraj University
Palkalai Nagar, Madurai
The Hon'ble Chief Justice
and
M.Sundar, J.
gpa/vvk
Order in
W.P (MD) No.12788 of 2017 &
W.M.P (MD) No.9888 of 2017 &
W.P.No.14705 of 2017 &
W.M.P Nos.15936 to 15938 of 2017
14.06.2018
W.P.(MD)No.12788 of 2017
and
W.P.No.14705 of 2017
THE HON'BLE CHIEF JUSTICE
and
M.SUNDAR, J.
After we pronounced the order, Mr.P.Godson Swaminath, learned counsel for respondent No.1 in W.P.(MD).No.12788 of 2017 sought certificate under Article 133(1)(a) of the Constitution of India stating that the issue of constitution of Search Committee and parameters for discussions in the Search Committee is a substantial question of law of general importance as there are ever so many Universities in the Country.
We have considered the request. We find it appropriate to accede to the request. We grant leave and certificate under Article 133(1)(a) of the Constitution of India (to aforesaid respondent No.1) to Appeal to the Hon'ble Supreme Court.
(I.B., CJ.) (M.S.,J.) 14.06.2018 vvk The Hon'ble Chief Justice and M.Sundar, J. W.P.(MD)No.12788 of 2017 and W.P.No.14705 of 2017 14.06.2018