Madras High Court
Dr. P. Vijayan vs Union Of India on 12 January, 2012
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.01.2012
Coram
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
W.P. No. 30452 of 2011
and
M.P. Nos. 1 and 2 of 2011
M.P. Nos. 1 and 2 of 2012
Dr. P. Vijayan .. Petitioner
Versus
1. Union of India
rep. by its Secretary
Ministry of Shipping, Road Transport
and Highways
Department of Shipping
No.1, Parliament Street
New Delhi 110 001
2. Union of India
rep. By The Under Secretary
Ministry of Shipping, Road Transport
and Highways
Department of Shipping
No.1, Parliament Street
New Delhi 110 001
3. Cap. M. Baweja
Indian Maritime University
East Coast Road
Uthandi
Chennai 600 119 .. Respondents
Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records and quash the impugned order dated 18.11.2011 passed by the 2nd respondent in his proceedings F.No.ST-14011/8/2011-MT and consequently direct the respondents to permit the petitioner to function as Vice-Chancellor of the Indian Maritime University, Chennai.
For Petitioner : Mr. G. Masilamani, Senior Counsel
for Mr. K.S. Jeyaganeshan
For Respondent : Mr. Haja Mohideen Gisthi
Sr. Central Govt. Standing Counsel
for RR1 and 2
Mr. M. Suresh Kumar for R3
ORDER
The petitioner was originally appointed as Director of National Maritime Academy, Chennai on 28.05.2008. Subsequently, the Indian Maritime University, an University established by the Indian Maritime University Act, 2008 (Act 22 of 2008) came into force from 14.11.2008 in which the petitioner was appointed as Vice-Chancellor on 20.11.2008. As per the order of appointment, the petitioner shall continue as Vice-Chancellor for a period of three years. In this writ petition, the petitioner has challenged the order dated 18.11.2011 passed by the second respondent, by which, the third respondent was appointed as Vice-Chancellor of Indian Maritime University (in short IMU), Chennai in the place of the petitioner. By the impugned order dated 18.11.2011 of the second respondent, the third respondent was ordered to hold the post of Vice-Chancellor of IMU with effect from 19.11.2011 (a/n) in addition to his existing duties till further orders in the place of the petitioner.
2. The learned Senior counsel appearing for the petitioner would contend that the impugned order passed by the second respondent, appointing the third respondent as Vice Chancellor of IMU, is without jurisdiction as the Visitor alone is empowered to appoint a Vice Chancellor of IMU. Therefore, according to the learned Senior counsel for the petitioner, the second respondent has no right or authority, either under the Act or under the Statute, to appoint the third respondent as Vice-Chancellor. The learned Senior counsel would further contend that the petitioner has not handed over the charge and the third respondent has only taken assumed charge, therefore, the third respondent cannot be construed as Vice-Chancellor of IMU. The petitioner continued to hold the post of Vice-Chancellor because, as per the Act and the statute, the incumbent is entitled to continue to hold the post till a successor is duly appointed. As per the proviso to Section 2 (4) of The Indian Maritime University Act 2008 (Act 22 of 2008) hereinafter called as 'The Act", the petitioner is entitled to continue in the office until his successor is appointed. As per the proviso to Section 2 (4) of the Act, the Visitor may direct any Vice-Chancellor after his term has expired, to continue in office for such period, not exceeding a total period of one year, as may be specified by him. Therefore, the continuance of the petitioner as Vice-Chancellor is in accordance with the statute.
3. The learned Senior Counsel appearing for the petitioner brought to the notice of this Court Section 2 (6) of the Act wherein it is stated that if the office of the Vice-Chancellor becomes vacant due to death, resignation or otherwise, or if he is unable to perform his duties due to ill health or any other cause, the Pro-Vice-Chancellor shall perform the duties of the Vice-Chancellor. The provisio to Section 2 (6) contemplates that if the Pro-Vice-Chancellor is not available, the Senior most Professor shall perform the duties of the Vice-Chancellor until a new Vice-Chancellor assumes office or until the existing Vice-chancellor attends to the duties of his office, as the case may be. Relying on the above provisions of the Act, the learned Senior counsel for the petitioner would contend that the third respondent is not the senior most professor and he does not possess the requisite qualification to hold the post of Vice-Chancellor. Therefore also, the order passed by the second respondent, appointing the third respondent as Vice-Chancellor, is illegal. The learned senior counsel for the petitioner also would contend that the petitioner was categorised under Class I service and he is drawing more amount than the third respondent. Therefore also, inasmuch as the third respondent is drawing lesser amount than the petitioner, he cannot be construed to be the seniormost professor entitled to be appointed for the post of Vice-Chancellor.
4. The respondents 1 and 2 have filed a detailed counter affidavit. The third respondent also filed a separate counter affidavit.
5. The learned Central Government Standing counsel appearing for the respondents 1 and 2 would contend that the petitioner himself relinquished the post of Vice Chancellor as early as on 19.11.2011 after expiry of three years period. In fact, on 23.11.2011, the petitioner himself has written a letter to the second respondent accepting the order of the second respondent dated 18.11.2011 appointing the third respondent as Vice-Chancellor pursuant to expiry of his tenure. Further, in the very same letter dated 23.11.2011, it is clearly admitted by the petitioner himself that he has taken charge of the post of Director after expiry of his tenure as Vice Chancellor and therefore, the present writ petition filed by the petitioner, suppressing the letter dated 23.11.2011, is fatal to the case of the petitioner. The petitioner has obtained interim order without disclosing the true particulars to this Court. The third respondent had already assumed office on 19.11.2011 and the petitioner also allowed this position to continue for a period of one month, thereafter, the present writ petition has been belatedly filed by the petitioner, that too in the Vacation Court and obtained interim order. Pursuant to obtaining interim order, the petitioner obstructed the discharge of functions by the third respondent, hence, the interim stay has to be vacated.
6. The learned Central Government Standing counsel would further contend that Section 46 of the Act alone will be apply in so far as appointment of Vice-Chancellor is concerned. The proviso to Section 2 (4) of the Act will apply only in respect of the latter appointment of the Vice-chancellor, whose tenure will be for a period of five years. As far as the first appointment of Vice-Chancellor is concerned, the tenure is three years. Even other wise, the petitioner cannot challenge the authority of the second respondent when the second respondent sought permission from the Visitor prior to appointing the third respondent. The learned counsel also produced the note file to show that necessary orders were obtained from the Visitor to invoke the provisions of Section 2 (6) of the Act for appointing the third respondent. As per Section 2 (6) of the Act, only the Senior Most professor has to be appointed and therefore, the third respondent, who is the senior most person in the institution was rightly appointed by the second respondent. Even as per the typed set of papers furnished by the petitioner, the third respondent was appointed even in the year 1999. The post of Captain is equivalent to a professor as per Statute 46. When the third respondent become a Professor in the year 1999 and the petitioner joined as Director only in the year 2005 and appointed as Vice-Chancellor in the year 2008, as per Seniority, the third respondent is the proper and correct person to be appointed to the post of Vice-Chancellor.
7. The learned counsel appearing for the third respondent would contend that the first appointment of Vice-Chancellor is made pursuant to the provisions of Section 2 (6) of the Act. The petitioner also assumed office as first Vice-Chancellor. Even in the writ petition, the petitioner has suppressed his own letter dated 23.11.2011 by which he relinquished his right to continue the post of Vice-Chancellor and thereby admitted that the third respondent was functioning as Vice-Chancellor. Therefore, according to the learned counsel for the petitioner, the writ petition is not maintainable. The learned counsel for the third respondent relied on the provisions of Section 3 (3) of the Act which contemplates that "The first Chancellor, the first Vice-Chancellor, the first members of the Court, the Executive Council, the Academic Council, the Planning Board and all persons who may hereafter become such officers or members, so long as they continue to hold such office or membership, shall constitute the University. The provisio to Section 2 (4) provides the tenure of the Vice-Chancellor for five years and it would apply only to appointment made under Section 12 of the Act, which says that the Visitor shall appoint the Vice-Chancellor in such manner as may be prescribed under the Statute. As far as first appointees are concerned, the period will automatically come to an end on expiry of three years and that is the reason why the framers of the Act have categorically found that in the interregnum period namely the first three years, the Pro-Chancellor will be appointed and if there is any vacancy he will be asked to take over the charges. In this particular case, since there is no pro-Vice-Chancellor appointed within the first three year period, the second respondent, appointed the third respondent, who is the senior most person. As the third respondent had already taken charges, by virtue of the interim order granted by this Court, the petitioner is obstructing the discharge of his functions, hence, he prayed for dismissal of the writ petition.
8. A third party namely D. Ganesan has filed MP No. 4 of 2011 seeking to implead himself as one of the party respondents in this writ petition on the ground that he had challenged the appointment of the petitioner as first Vice-Chancellor before this Court and that the writ petition was dismissed. Therefore, he is a proper and necessary party to be impleaded in this writ petition to putforth his case.
9. In view of the fact that there is a dispute with respect to holding of the post of Vice Chancellor of IMU, the parties to the writ petition agree that the main writ petition itself can be taken up for final disposal especially when the pleadings have been completed. Accordingly, by consent of counsel on either side, the writ petition itself is taken up for final disposal.
10. The learned senior counsel for the petitioner would contend that the impugned order dated 18.11.2011 was passed by the Under Secretary to the Government of India, who has no authority to appoint the third respondent as Vice Chancellor. According to the learned Senior counsel, the IMU is governed by Act 22 of 2008 under which the Visitor namely the President of India alone has got right to appoint of the Vice-Chancellor and none else. Further, he would contend that as per Section 46 of the Act, notwithstanding anything contained in this Act and the Statutes the first Chancellor and the first Vice Chancellor shall be appointed by the Visitor and each of the said officers shall hold office for a term of three years. The learned Senior counsel for the petitioner would contend that the proviso to Section 46 would apply to this case, which reads as under:-
"Provided that if any vacancy occurs in the above offices or authorities, the same shall be filled by appointment or nomination, as the case may be, by the Visitor, and the person so appointed or nominated shall hold office for so long as the officer or member in whose place he is appointed or nominated would have held that office, if such vacancy had not occurred."
11. According to the learned Senior counsel for the petitioner, as per proviso to Section 46, if any vacancy occurs in the above offices or authorities, the same shall be filled by appointment or nomination, as the case may be, by the Visitor. Therefore, once vacancy arises namely after the end of tenure of three years of the first Vice-Chancellor, then the next individual can only be appointed by the Visitor and not by any one else. Therefore, if such a person is not appointed by the Visitor, the order of appointment of the third respondent is illegal. He would further contend that it is not the case of the respondents that the order of appointment, appointing the third respondent was passed by the Visitor and it was only communicated by the second respondent. Whereas, the impugned order itself was passed by the second respondent and therefore, he has no authority to appoint the third respondent as Visitor.
12. In this connection, it is pointed out by the learned Standing Counsel for the respondents 1 and 2, by relying on the note file, that the impugned order was passed by the second respondent pursuant to the authorisation of the Visitor namely the President of India and therefore, there is no illegality in the impugned order. It is further contended that the second respondent had only conveyed the decision taken by the Ministry of Shipping, as per the instructions given by the Visitor. The learned counsel for the respondents 1 and 2 also produced the original files before this Court and the relevant note file to show that permission was sought for from the Visitor to appoint a suitable person in the interregnum period till a new Vice Chancellor is selected as per Section 12. The Visitor office has recommended that the authority can appoint or invoke the Act or Statute 2 (6) for the interregnum period. Pursuant to such authorisation, the authority invoked Section 2 (6) of the Act and appointed the third respondent as Vice Chancellor for the interregnum period to take charge or assume charge only and not as a full-fledged Vice Chancellor.
13. In this connection, it is relevant to look into Section 2 (6) of the Act, which reads as follows:-
"2 (6) If the office of the Vice-Chancellor becomes vacant due to death, resignation or otherwise, or if he is unable to perform his duties due to ill health or any other cause, the Pro-Vice-Chancellor shall perform the duties of the Vice-Chancellor.
Provided that if the Pro-Vice-Chancellor is not available, the Senior most Professor shall perform the duties of the Vice-Chancellor until a new Vice-Chancellor assumes office or until the existing Vice-chancellor attends to the duties of his office, as the case may be.
14. It is clear from Section 2 (6) of the Act that if thee is any vacancy for the post of Vice-Chancellor due to death, resignation or otherwise, automatically, the Pro-Vice-Chancellor shall perform the duties of the Vice-Chancellor. In this connection, it is admitted that there was no Pro-Vice-Chancellor appointed for IMU. The Pro-Vice Chancellor has to be appointed only by the Executive Council. Since there is no Pro Vice-Chancellor, the next alternative is as per Section 2 (6) where when the Pro-Vice Chancellor is not available, the senior most professor shall perform the duties of Vice Chancellor until a new Vice Chancellor assumes office. In this case, taking note of the proviso to Section 2 (6), the third respondent, who was the senior most professor, was appointed by the second respondent. This calls upon both on the ground whether the term 'otherwise' used in Section 2 (6) of the Act would include the position as it arise in respect of the extension of the first Vice-Chancellor. In this connection, the learned Senior counsel for the petitioner relied on Section 2 (4) of the Act, which reads as follows:-
"2 (4) The Vice-Chancellor shall hold office for a term of five years from the date on which he enters upon his office, or until he attains the age of sixty-five years, whichever is earlier, and he shall not be eligible for re-appointment.
Provided that notwithstanding the expiry of the said period of five years, he shall continue in office until his successor is appointed and enters upon his office.
Provided further that the Visitor may direct any Vice-Chancellor after his term has expired, to continue in office for such period, not exceeding a total period of one year, as may be specified by him.
15. The proviso to Section 2 (4) provides that notwithstanding the expiry of the said period of five years, he shall continue in office until his successor is appointed and enters upon his office. This will not apply to the facts of the case. Section 2 (4) of the Act deals with vacancies arise in respect of the Vice Chancellor who is appointed for a period of five years, meaning thereby the Vice Chancellor who is selected at a later point of time and not the first Vice Chancellor because the period of tenure of the first Vice Chancellor is clearly stated as three years. Therefore, Section 2 (4) of the Act will not come to the rescue of the petitioner.
16. Section 2 (6) of the Act is applicable only in respect of the Vice-Chancellor appointed subsequently. The word 'otherwise' is used in Section 2 (6) of the Act. In so far as Vice Chancellor is concerned, if we read Section 2 (6) of the Act as well as Section 46, it would clearly indicate that Section 46 restricts only for any vacancy arising in the course of the period i.e., within the three years period. In such case, the Visitor alone can appoint the Vice Chancellor. This is clearly made in the proviso that any vacancy arising during the period of any appointment made by the Visitor, such person only would continue in the office till the original period expires. Therefore, the three year period contemplated under Section 46 would indicate the period of operation within the first three years. In such case, Section 2 (6) has to be followed which provides that in case of vacancy arise within the regular course and the word other wise mentioned would take care of the period which has to happen beyond the period of three years. In the interregnum period, if the selection process is not completed, under Section 12, a new Vice Chancellor has to be appointed and this Section contemplates to enable the Pro Vice Chancellor to assume office or in the alternative the Senior most professor.
17. Now let us examine the case in this angle. It is not in dispute that the period of the petitioner as Vice Chancellor expired on 18.11.2011. On 18.11.2011, the Second respondent, based on the permission obtained from the Visitor, appointed the third respondent as Vice Chancellor for the interregnum period. The third respondent was asked to assume charge of the office. Pursuant to this, on the same day namely 18.11.2011, another order was passed by which the petitioner was appointed as Director. In the order of appointment, appointing the petitioner as Director, it is clearly stated that on completion of the three years period by the petitioner as Vice Chancellor, he is appointed as Director. The petitioner accepted the order dated 18.11.2011 appointing him as Director. In fact, in the letter dated 23.11.2011, the petiitoner has categorically stated that he is reporting duty as Director. This letter dated 23.11.2011, original was also produced before this Court, was addressed not only to the Secretary, Ministry of Shipping, but a copy of the same was also sent to the third respondent referring him as the Vice Chancellor of IMU. Therefore, thi is very clear that after 23.11.2011 or even on 18.11.2011, the third respondent assumed office and on 23.11.2011, the petitioner himself, after availing holiday, joined duty as Director of IMU and reported this not only to the Secretary to the Government, but also to the third respondent in the capacity of Vice Chancellor. This letter is conveniently not brought to the notice of this Court at the time of filing the writ petition. In para-6 of the affidavit filed in support of the writ petition, the petitioner conveniently states that he has not handed over charge of Vice-Chancellor. The affidavit is filed in the month of December 2011 i.e., after lapse of more than a month from 18.11.2011 on which date the third respondent had taken charge as Vice Chancellor. When the petitioner himself admitted and treated the third respondent as Vice Chancellor and sent a copy of the letter dated 23.11.2011, it is not open to the petitioner, at this stage, to contend that the substantive post held by him was Director of IMU, which post was taken charge of by him, but he wanted to continue the additional post of Vice Chancellor of IMU. On this ground alone, the petitioner is not entitled to challenge the order impugned in this writ petition, when he himself admitted, accepted and acknowledged the position or authority of the third respondent as Vice Chancellor.
18. The next contention of the petitioner is that the third respondent is not the seniormost professor and therefore he is not entitled to be appointed to the post of Vice Chancellor. According to the petitioner, he was originally appointed as Captain. As per Section 46 of the Act, the post of Captain or Superintendent is equivalent to that of the professor and in such capacity, he was appointed as Director as early as on 29.05.2008 and when IMU was established in Chennai, he was appointed as Vice Chancellor on 20.11.2008, which is equivalent to the post of Additional Secretary in the Central Government. As Vice-Chancellor, the petitioner was drawing a sum of Rs.80,000/- and therefore, he has to be considered as the seniormost in the institution. Unfortunately, such a contention of the petitioner cannot be accepted in view of the fact that in the details of the third respondent furnished by the petitioner himself, it is clear that the third respondent joined the parent organisation as early as on 30.09.1987 as Nautical Officer in Mumbai before the establishment of IMU. Later, the third respondent became Senior Nautical Officer, subsequently promoted to the post of Captain/ Superintendent on 18.01.1999 and completed 10 years in the post of Captain as on 19.01.2009. The scale of pay drawn by the third respondent is also in the region of Rs.76,730/-. Therefore, the fact remains that the third respondent became captain as early as on 18.01.1999 whereas, the petitioner joined the IMU only in the year 2008. Therefore also, it cannot be construed that the third respondent is not the senior most person in the institution.
19. On perusal of original files, it is seen that the Ministry has shortlisted three names for the purpose of appointing the Vice Chancellor in the interregnum period in which the petitioner's name did not find the first place. Definitely, on this ground also, the petitioner cannot question the appointment of the third respondent. Further, when the petitioner himself relinquished the post of Vice Chancellor as early as on 18.11.2011 and also admitted it in his letter dated 23.11.2011, on which date he had taken charge as Director, it is no longer open to the petitioner, after lapse of one month, to contend that the appointment of the third respondent as Vice Chancellor is illegal, improper or invalid and therefore such contention of the petitioner is hereby rejected.
20. In the impleading petition namely MP No. 4 of 2011 filed by one Mr. Ganesan, it was contended that he filed WP No. 16369 of 2011 seeking issuance of a Writ of Quo Warranto against the petitioner herein when he was originally appointed as Vice Chancellor in Imu and it was dismissed on 25.08.2011. In MP No.4 of 2011, it was also contended that the third respondent, whose appointment is challenged in the present writ petition, is also ineligible to hold the office of the Vice Chancellor for various reason and therefore, he has to be impleaded as a party respondent to this writ petition to putforth certain facts. Inasmuch as the main writ petition is taken up and disposed of on merits, the petition in MP No.4 of 2011 need not be entertained and it is therefore closed.
21. In the result, the writ petition is devoid of merits, liable to be dismissed and accordingly it is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
12.01.2012 rsh Index : Yes / No Internet : Yes / No To
1. Union of India rep. by its Secretary Ministry of Shipping, Road Transport and Highways Department of Shipping No.1, Parliament Street New Delhi 110 001
2. Union of India rep. By The Under Secretary Ministry of Shipping, Road Transport and Highways Department of Shipping No.1, Parliament Street New Delhi 110 001 B. RAJENDRAN, J rsh W.P. No. 30452 of 2011 12-01-2012