Uttarakhand High Court
Yagya Bhushan Sharma vs Chancellor Doon University ... on 3 December, 2019
Equivalent citations: AIRONLINE 2019 UTR 587, 2020 LAB IC 275
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 121 of 2019
Yagya Bhushan Sharma ...Petitioner
Vs.
Chancellor Doon University Uttarakhand,
Dehradun and others ...Respondents
Mr. M.C. Pant, learned Advocate for the petitioner.
Mr. Pradeep Johsi, learned Standing Counsel for the State of Uttarakhand.
Mr. Vikas Pande, learned Advocate for the respondent no. 4.
Mr. Rajendra Dobhal, learned Senior Counsel assisted by Mr. Shubhang Dobhal, learned Advocate for
respondent nos. 5 & 6.
Mr. V.K. Kohli, learned Senior Counsel, assisted by Ms. Rajni Supyal, learned Advocate for respondent no.
7.
Mr. C.D. Bahuguna, learned Senior Counsel assisted by Mr. Anoop Kumar Verma, learned Advocate for
respondent no. 9.
Reserved on : 02.11.2019
Delivered on : 03.12.2019
Chronological list of cases referred:
1. (2016) 14 SCC 18
2. (2013) 8 SCC 271
3. (Judgment in W.P. (Civil) 19 of 2004 dated 11.02.2005)
4. (2001) 8 SCC 676
5. AIR 1964 SC 72
6. (2012) 5 SCC 370
7. (2013) 1 SCC 501
8. (1999) 7 SCC 120
9. (2015) 8 SCC 129
10. (2008) 5 SCC 1
11. (2015) 6 SCC 363
12. Order in Civil Appeal No. 6825 of 2017 dated 03.05.2017
13. (1997) 9 SCC 377
14. (1984) 2 SCC 302
15. (1987) 4 SCC 671
16. (1995) 4 SCC 104
17. (2005) 5 SCC 136
18. AIR 1964 SC 1823
19. (2013) 8 SCC 633
20. (2005) 8 SCC 504
21. (2002) 7 SCC 657
22. (1998) 2 SCC 467
23. AIR 1986 SC 1011
24. AIR 1963 SC 553
25. AIR 1970 SC 951
26. AIR 1975 SC 17
27. AIR 1979 SC 798
28. (2013) 13 SCC 281
29. 1989 Supp (1) SCC 733
30. (1931) 33 BOMLR 1006
31. AIR 1962 SC 316
32. AIR 1971 SC 454
33. AIR 1975 SC 1835
34. AIR 1978 SC 793
35. AIR 1982 SC 697
36. (2011) 3 SCC 1
37. AIR 1960 SC 569
38. (1998) 3 SCC 276
39. (1940) AC 1014
40. (1846) 6 Moors (PC) 1
41. (2013) 15 SCC 1
2
42. App. Cas. 19
43. 7 App. Cas. 91
44. (1948) 8 St. R. Qd. 74
45. (1895) 1 QB 873
46. (1975) 2 SCC 671
47. AIR 1954 CAL. 119
48. 1988 Supp SCC 30
49. (1980) 1 SCC 403
50. AIR 1975 SC 1121
51. (1996) 5 SCC 460
52. (2006) 2 SCC 619
53. AIR 1958 SC 687
54. AIR 1959 SC 827
55. AIR 1959 SC 837
56. AIR 1960 Pat 361
57. (1983) 2 SCC 473
58. (1969) 1 SCR 478
59. (2005) 5 SCC 598
60. (2011) 9 SCC 354
61. (2008)1 SCC 728
62. AIR 1993 SC 1388
63. (2003) 4 SCC 619
64. (2005) 1 SCC 368
65. (1987) 2 SCC 602
66. (2011) 1 SCC 236
67. (2010) 9 SCC 655
68. (2013) 5 SCC 1
69. (2010) 10 SCC 707
70. (1998) 7 SCC 273
71. (2006) 11 SCC 731
72. (2005) 1 SCC 590
73. (2004) 3 SCC 349
74. (2006) 11 SCC 731
75. (2002) 6 SCC 269
76. (2011) 4 SCC 1
77. 2005 (5) ALT 714
78. (2003) 4 SCC 712
79. (2009) 8 SCC 273
80. (2018) 15 SCC 796
81. 340 Mo 865
82. (2001) 7 SCC 231
83. (2018) 6 SCC 162
84. 347 Mo 484
85. AIR 1968 SC 1495
86. AIR 1968 SC 1113
87. (1987) 4 SCC 486)
88. (1993) 4 SCC 119
89. (2013) 16 SCC 482
90. (2016) 7 SCC 353
91. (1971) 2 SCC 452
92. AIR 1984 SC 1420
93. (2006) 5 SCC 789
94. (1973) 2 SCC 836
95. (2006) 8 SCC 212
96. (1975) 4 SCC 709
97. (1994) 2 SCC 204
98. (2014) 14 SCC 50
99. AIR 2000 SC 3060
100. 2013 (2) KarLJ287
101. (1990) 2 SCC 653
102. (2009) 7 SCC 1
103. (2002) 3 SCC 146
104. (2001) 8 SCC 546
105. AIR 1965 SC 491
106. 2018 (1) Supreme 605
107. 2006 (9) SCC 507
108. AIR 1986 SC 1448
109. (2010) 15 SCC 790
110. (2012) 5 SCC 370
111. (1994) 4 SCC 165
112. AIR 1988 SC 404
113. AIR 1961 Madras 450 (DB)
3
114. 1846-8 ER 1513 Vol. 44, American Jurisprudence, 100 & 101
115. AIR 1952 Madhya Bharat High Court 31
116. AIR 1964 Mysore 159 (DB)
117. AIR 1940 Mad 831
118. AIR 1960 AP 250
119. (1916) 1 KB 595
120. (2006) 9 SCC 375
121. (1992) 2 SCC 428
122. (2014) 1 SCC 161
123. 2009 (6) ALT 1 (DB)
124. AIR 1973 SC 1138
125. AIR 1954 Bom. 41
126. (2001) 4 SCC 734
127. (1976) 1 SCC 671
128. 1973 (1) S.L.R. 1042
129. AIR 1961 AP 250 (APHC DB)
130. AIR 1965 SC 491
131. AIR 1975 Delhi 66 (FB)
132. AIR 1982 Delhi 83
133. AIR 1974 SC 55
JUDGMENT
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
RAMESH RANGANATHAN, C.J.
This writ petition is filed seeking a writ of quo-warranto calling upon the 9th respondent to show his authority to continue as the Vice Chancellor of the Doon University, Dehradun; to remove him forthwith from the post of Vice-Chancellor; to declare his appointment as illegal, arbitrary, unconstitutional and against statuary provisions as per the UGC mandate as it is based on fraud, and to declare the actions or decisions taken by him as void ab-initio, illegal and a nullity; a writ of certiorarified mandamus declaring the Screening Committee constituted for appointment of the Vice Chancellor, Doon University, in so far as it empowered the committee referred to in the Doon University Act, 2005 ("the 2005 Act" for short) to recommend the name of three persons for appointment as the Vice- Chancellor; and Section 11(2), along with all consequential acts or orders and proposed actions, as ultra-vires, illegal, arbitrary, unreasonable, contrary to the provisions of the UGC Act and to quash the same; for a direction to the UGC to take action in respect of the violation of the UGC Regulations by the State Authorities, in the manner of appointment of the Vice Chancellor, and the other authorities of the Universities as well as faculty; and to further direct the 7th respondent to bring on record the entire service records of the 9th respondent to ascertain the truth.
42. The petitioner claims to be a retired Lecturer of D.A.V. Intermediate College, Dehradun, and to be an RTI activist working as the Secretary, RTI Club Uttarakhand which he claims is an association of public spirited persons engaged in exposing and combating corruption by public authorities. He also claims to have approached the authorities highlighting the alleged misrepresentation/manipulation by respondent no. 9 in his application submitted for the post of Vice-Chancellor of the Doon University; and the illegalities and irregularities committed by the Screening Committee in selecting the 9th respondent. He states that, since no action was taken thereupon, he had perforce to file the present writ petition.
3. The jurisdiction of this Court has been invoked by the petitioner questioning appointment of the 9th respondent as the Vice-Chancellor, by the Governor/ Chancellor of the Doon University, vide proceedings dated 29.01.2018, pursuant to the recommendations made by the three-member Search Committee on 05.01.2018 shortlisting three candidates, among the 69 applicants, as suitable for appointment as the Vice-Chancellor of the Doon University. An advertisement was issued, by the Government of Uttarakhand on 17.10.2017, inviting applications from distinguished academicians having a minimum of 10 years' experience as a Professor in a University System, or 10 years experience in an equivalent position in a reputed research and/ or academic administrative organization. The applicants were required to submit all educational and other documents for recruitment as the Vice- Chancellor, Doon University, by the Chancellor, under Section 11(5) of the Doon University Act, 2005. The advertisement dated 17.10.2017 also stipulated that the applicants should satisfy all the aforesaid requirements, and should submit their completely filled application forms within 15 days by speed post/registered post or in person at the Office of the Secretary, Higher Education, Government of Uttarakhand Office at Dehradun. The advertisement made it clear that applications, received after the due date, would not be considered.
4. Pursuant to the said advertisement dated 17.10.2017, 69 applications were received. The three-member Search Committee, constituted in terms of Section 11(2) of the 2005 Act, scrutinized the 5 applications, and shortlisted three candidates for being considered for appointment as the Vice-Chancellor of the Doon University. The 9th respondent was one among the three shortlisted candidates whose names were recommended by the Search Committee by its proceedings dated 05.01.2018. The Chancellor of the University is said to have interacted with each of the three shortlisted candidates, and to have chosen the 9th respondent for appointment to the office of the Vice-Chancellor. The validity of the appointment of the ninth respondent, as the Vice-Chancellor of the Doon University, is under challenge in the present Writ Petition.
5. Elaborate oral submissions were put forth by Sri M.C. Pant, learned counsel for the petitioner, Sri Pradeep Joshi, learned Standing Counsel appearing on behalf of the State Government, Sri V.K. Kohli, learned Senior Counsel appearing on behalf of the CSIR-CBRI, Sri Rajendra Dobhal, learned Senior Counsel appearing on behalf of the Doon University and Sri. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the ninth respondent.
6. In support of his submissions, which shall be examined later in this order, Mr. M.C. Pant, learned counsel for the petitioner, has relied on Veerendra Kr. Gautam and Ors. Vs. Karuna Nidhan Upadhyay and Ors1; Association of Management of Private Colleges Vs. All India Council for Technical Education and Ors2; Professor Yaspal Vs. State of Chhattisgarh3; Bharathidasan University and Ors. vs. All India Council for Technical Education and Ors4; S. Pratap Singh Vs. The State of Punjab5; Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (Dead) through L. Rs.6; Rajesh Awasthi Vs. Nand Lal Jaiswal and Ors7; Preeti Srivastava and Ors. Vs. State of Madhya Pradesh and Ors.8; P. Suseela and Ors. Vs. University Grants Commission and Ors.9; P. Venugopal Vs. Union of India10; Kalyani Mathivanan Vs. K.V. Jeyaraj and Ors11; Integral University and ors. Vs. Junaid Ahmad and Ors.12; and Air India Statutory Corporation, etc. Vs. United Labour Union and others13 on the scope of judicial review under Article 226 of the Constitution.
67. It is convenient to examine the rival submissions, urged by learned Senior Counsel and learned counsel on either side, under different heads.
I. WOULD THE 2010 UGC REGULATIONS PREVAIL OVER
THE 2005 ACT?
8. On the question whether the 2010 UGC Regulations would prevail over the provisions of the 2005 Act, notwithstanding its not having being adopted by the Government of Uttarakhand, Mr. M.C. Pant, learned counsel for the petitioner, would submit that Clause 7.4.0 of the UGC (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (for short the "2010 Regulations") would apply only to those State Universities which are established by enactments which do not contain a provision similar to Section 8(1) of the 2005 Act-a legislation by reference; consequently the UGC Regulations, made from time to time, would automatically apply to the Doon University; the word "amended" in Section 8(1) of the 2005 Act must be given a wide meaning; since it does not specifically refer to the 2000 UGC Regulations, which were in force when the 2005 Act was made, Section 8(1) would apply to all UGC Regulations as made from time to time, be it by way of an amendment to the earlier Regulations, or in supersession thereof; since Section 8(1) requires the UGC norms/regulations to apply automatically, non-adoption of the 2010 Regulations by the State Government is of no consequence; even otherwise, by prescribing qualifications in the advertisement dated 17.10.2017 strictly in terms of Regulation 7.3.0(1) of the 2010 Regulations, the State Government must be held to have impliedly adopted Regulation 7.3.O(1) of the 2010 Regulations; and even if it is presumed that Regulations 7.3.0(I) of the 2010 Regulations are merely directory, and not mandatory in nature, the State Government, by prescribing an identical eligibility criteria in the advertisement dated 17.10.2017, must be held to have complied with the directory provisions of Regulations 7.3.0.(I) of the 2010 Regulations.
79. Sri Rajendra Dobhal, learned Senior Counsel appearing on behalf of the Doon University, would submit that the 2010 Regulations, in so far as it relates to the qualifications for appointment, and constitution of Search Committees for selecting candidates, to the post of Vice-Chancellor, has neither been adopted by the State Government nor by the Doon University.
10. Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, would submit that the 2010 Regulations were made under Section 26(1)(e) & (g) of the UGC Act; while clause (g) of Section 26(1) is a general provision, Section 26(1)(e) relates only to teaching staff; the office of Vice-Chancellor is not that of a teacher, nor is the Vice- Chancellor a part of the teaching staff; Section 2(5) of the 2005 Act, which defines "teachers", does not include the Vice-Chancellor; in terms of Section 9(b) of the 2005 Act, the Vice-Chancellor is an officer of the University, and is not a teacher; even otherwise, for violation of the provisions of the UGC Act and the Regulations made thereunder, power is conferred on the UGC, under Section 14 of the UGC Act, only to withhold funds; from the counter- affidavit of the Doon University, it is evident that no amount is paid by the UGC for the post of Vice-Chancellor, as the budget for the said office is sanctioned by the State Government; even if there is any violation of any of its mandatory Regulations, it is for the UGC to take action, and not for the petitioner to complain; Regulation 7.3.0(1) of the 2010 Regulations, which relates to the qualifications for appointment to the post of Vice-Chancellor, has not been adopted by the State Government; as is evident from Clause 7.4.0 of the 2010 Regulations, it is only on its adoption by the State Government/University would Regulation 7.3.0 bind Universities established under State enactments; in the absence of its adoption, the said Regulations have no application to State Universities; when the Doon University Act was made in 2005 it was the 2000 UGC Regulations which were then in force; no reference is made in the 2000 UGC Regulations to the post of Vice-Chancellor, nor did the 2000 UGC Regulations prescribe the mode and manner of appointment to the post of Vice-Chancellor; it is because no such condition was stipulated in the 2000 UGC Regulations, that 8 Section 11 was inserted in the 2005 Act conferring wide powers on the Search Committee to determine the relative merits of the applicants; even the 2002 amendment, to the 2000 UGC Regulations, did not provide for the manner of appointment of a Vice-Chancellor; it is for the first time in the 2010 Regulations that a provision has been made for appointment of a Vice- Chancellor; the 2010 Regulations is not an amendment to the earlier 2000 UGC Regulations, but is in supersession of all earlier UGC Regulations; Section 8(1) of the 2005 Act, by the use of the word "amended", makes it clear that it relates only to amendments made to the 2000 UGC Regulations, and for such amendments to be automatically applicable; since the 2010 Regulations are in supersession of all earlier UGC Regulations, it required adoption, in terms of Regulation 7.4.0 thereof, for it to apply to State Universities; the adoption order dated 04.05.2011, and the amendment to the first statute of the University, show that it is only the 2010 Regulations regarding constitution of a Search Committee, for filling up the post of Professors, Associate Professors and Assistant Professors, which were adopted by the State Government; neither the qualifications prescribed in the 2010 Regulations for appointment of a Vice-Chancellor, nor the composition of a Search Committee, for selection of candidates for appointment as a Vice-Chancellor, were adopted; in the absence of the 2010 Regulations, to the aforesaid extent, having been adopted, no reliance can be placed on Clause 7.3.0(I) & (II) of the 2010 Regulations; and Regulation 7.3.0 of the 2010 Regulations is directory, and not mandatory, in character. Learned Senior Counsel would rely on Kalyani Mathivanan11 on the need for the UGC Regulations to be adopted by the State Government, for it to apply to a State University.
(a) THE 2010 UGC REGULATIONS ARE REFERRABLE TO ENTRY 66 OF LIST-I OF THE SEVENTH SCHEDULE TO THE CONSTITUTION :
11. Entry 66 of List I of the Seventh Schedule to the Constitution of India relates to "co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions".
As Entry 66 is in the Union List, Parliament alone has the legislative competence to legislate on the said topic. (Prof. Yashpal3; Prem Chand 9 Jain v. R.K. Chhabra14 and Osmania University Teachers' Assn. v. State of A.P.15). The expression 'coordination', used in Entry 66 of the Union List of the Seventh Schedule to the Constitution, does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. This power is absolute and unconditional and, in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention. (Assn. of Management of Private Colleges2; Kalyani Mathivanan11; State of T.N. v. Adhiyaman Educational and Research Institute16).
12. The University Grants Commission Act, 1956 (for short the "1956 Act") is a law made by Parliament in the purported exercise of the powers envisaged in Entry 66 of List I of the Seventh Schedule to the Constitution of India. (Bharathidasan University4; Assn. of Management of Private Colleges2; Kalyani Mathivanan11). The 1956 Act, enacted to make provision for the co-ordination and determination of standards in Universities and for that purpose to establish a University Grants Commission, came into force on 01.11.1956.
13. Section 4 of the 1956 Act relates to the establishment of the University Grants Commission and under sub-section (1) thereof, with effect from such date as the Central Government may by notification in the Official Gazette appoint, there shall be established a Commission by the name of the University Grants Commission. Section 4(2) stipulates that the Commission shall be a body corporate having perpetual succession and a common seal, and shall by the said name sue and be sued. It is the duty and responsibility of the University Grants Commission, which is established by Section 4 of the UGC Act, to determine and co-ordinate the standard of teaching curriculum and also the level of examination in various universities in the country. (Prof. Yashpal3).
14. Section 12 of the 1956 Act relates to the functions of the UGC and, thereunder, it shall be the general duty of the UGC to take, in consultation with the Universities or other bodies concerned, all such steps 10 as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities. Section 14 provides for the consequences of the failure of Universities to comply with the recommendations of the Commission; and, thereunder, if any University fails, within a reasonable time, to comply with any recommendation made by the Commission under Section 12 or Section 13 or contravenes the provision of any rule made under clause (f) or clause (g) of sub-section (2) of Section 25, or of any regulation made under clause (e) or clause (f) or clause (g) of Section 26, the UGC, after taking into consideration the cause if any shown by the University for such failure or contraventions, may withhold from the University the grants proposed to be made out of the fund of the Commission. The UGC has always had and has an accepted and well- merited role of primacy to play in shaping as well as stepping up a coordinated development and improvement in the standards of education and research in the sphere of education. (Bharathidasan University4).
15. Section 20 of the 1956 Act relates to directions by the Central Government and, under sub-section (1) thereof, the Commission shall be guided, in the discharge of its functions under the Act, by such directions, on questions of policy relating to national purposes, as may be given to it by the Central Government. Section 20(2) provides that, if any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final.
16. Section 26(1) enables the University Grants Commission, by notification in the official gazette, to make Regulations consistent with the Act and the Rules made thereunder (e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instruction; and (g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities. Section 26(2) of the 1956 Act stipulates that no regulation shall be made under clause (a) or clause (b) or clause (c) or clause (d) or clause (h) or clause (i) or clause (j) of 11 sub-section (1) except with the previous approval of the Central Government. Under Section 28 of the 1956 Act every regulation made under the 1956 Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days.
17. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it, in terms of clauses (e), (f), (g) and (h) of sub-section (1) of Section 26, are of wide amplitude. In the matter of higher education, it is necessary to maintain minimum standards of instruction. Such minimum standards of instruction are required to be defined by the UGC. Subordinate legislation, when validly made, becomes part of the UGC Act. (Annamalai University v. Information and Tourism Deptt.17; Kalyani Mathivanan11).
18. Section 26 of the UGC Act enables the Commission to make regulations only if they are consistent with the UGC Act. Such regulations must conform to Section 20 of the Act whereunder the Central Government is given the power to give directions on questions of policy relating to national purposes which shall guide the Commission in the discharge of its functions under the Act. (P. Suseela9). The regulation-making power of the UGC is subservient to the directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with the directions issued by the Central Government. (P. Suseela9).
19. In the exercise of the powers conferred by clause (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956, and pursuant to MHRD (Government of India) O.M. dated 23.10.2008 read with Ministry of Finance (Department of Expenditure) O.M. dated 30.08.2008, in terms of the MHRD Notification issued on 31.12.2008, and in supersession of the University Grants Commission (Minimum Qualifications Requires for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000, 12 together with all amendments made therein from time to time, the University Grants Commission framed the 2010 Regulations.
20. Regulation 1.2 thereunder stipulates that the 2010 Regulations shall apply to every university established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constituent or an affiliated college recognized by the Commission, in consultation with the University concerned under clause (f) of Section 2 of the 1956 Act, and every institution deemed to be a University under Section 3 of the 1956 Act. Clause 5.0.0 of the 2010 Regulations relates to Selection Committees and the Guidelines on selection. Clause 5.1.0 prescribes the Selection Committee Specifications. The composition of the Section Committee for the post of Assistant Professor is as stipulated in Regulation 5.1.1(a) and (b). The composition of the Selection Committee, for the post of Associate Professor in the University, is as stipulated in Clause 5.1.2(a); and the composition of the Selection Committee for the post of a Professor in a University is as stipulated in Clause 5.1.3 of the 2010 Regulations.
21. Regulation 7.0.0 of the 2010 Regulations relates, among others, to the selection of a Vice-Chancellor of the University. Regulation 7.3.0, thereunder, relates to the Vice-Chancellor. Regulation 7.3.0(i) stipulates that persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as a Vice-Chancellor; and the Vice-Chancellor to be appointed should be a distinguished academician with a minimum of ten years of experience as a Professor in a University system, or ten years of experience in an equivalent position in a reputed research and/ or academic administrative organization. Regulation 7.3.0(ii) stipulates that the selection of a Vice-Chancellor should be through proper identification, of a Panel of 3-5 names, by a Search Committee through a public notification or nomination or a talent search process or in combination; the members of the Search Committee shall be persons of eminence in the sphere of higher education, and shall not be connected in any manner with the University concerned or its colleges; while preparing the panel, the search committee must give proper weightage to academic excellence, exposure to the higher education system in the country and 13 abroad and adequate experience in academic and administrative governance, to be given in writing along with the panel to be submitted to the Visitor/Chancellor; and in respect of State and Central Universities, the following shall be the constitution of the Search Committee: (a) a nominee of the Visitor/Chancellor who should be the Chairperson of the Committee;
(b) a nominee of the Chairman, University Grants Commission; and (c) a nominee of the Syndicate/Executive Council/Board of Management of the University. Regulation 7.3.0(iii) stipulates that the Visitor/Chancellor shall appoint the Vice-Chancellor out of the panel of names recommended by the Search Committee. Clause 7.4.0 provides that the Universities/State Governments shall modify or amend the relevant Acts/Statutes of the Universities concerned within six months of adoption of the 2010 Regulations.
22. Letter No. 1-32/2006-U.II/U.I(1)(i) dated 31-12-2008, issued by the Government of India, Ministry of Human Resource Development, was appended as Appendix I, and formed part of the UGC Regulations, 2010. This letter related to the revision of pay of teachers and equivalent cadres in universities and colleges, following the revision of pay scales of Central Government employees on the recommendations of the Sixth Central Pay Commission. Para 3 related to the Pay scales of the Pro-Vice- Chancellor/Vice-Chancellor of universities, and clause (ii) thereof, which related to the Vice-Chancellor, stipulated that the posts of Vice-Chancellor shall carry a fixed pay of Rs 75,000 along with a special allowance of Rs 5000 per month. Clause 8 related to other terms and conditions, and sub- clause (p) thereunder related to the applicability of the Scheme. Para 8(P)(1) stipulated that this Scheme shall be applicable to teachers and other equivalent cadres in all Central universities and colleges thereunder, and the institutions deemed to be universities whose maintenance expenditure is met by the UGC; and implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as the Regulations to be framed by the UGC in this behalf. Universities, implementing this Scheme, were required to be advised by the UGC to 14 amend their relevant statutes and ordinances in line with the UGC Regulations within three months from the date of issue of this letter.
(b) THE 2005 ACT IS REFERRABLE TO ENTRY 25 OF LIST III OF THE SEVENTH SCHEDULE TO THE CONSTITUTION :
23. Entry 25 of List III of the Seventh Schedule to the Constitution of India relates to "education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I, vocational and technical training of labour." List III Entry 25 is subject to the provisions, among others, of List I Entry 66. (Adhiyaman Educational and Research Institute16; Assn. of Management of Private Colleges2). The Doon University Act, 2005 (for short the "2005 Act") is a law made by the State Legislature referable to Entry 25 of List III of the Seventh Schedule to the Constitution of India and, as the Entry itself stipulates, is subject to the provisions of Entry 66 of List I.
24. Both the Union as well as the States have the power, under Entry 25 List III, to legislate on education, subject, inter alia, to Entry 66 of List I. A State has, therefore, the right to control education so long as the field is not occupied by any Union legislation. Secondly the State cannot, while controlling education in the State, impinge on standards in institutions for higher education because this is exclusively within the purview of the Union Government. (Preeti Srivastava8; Kalyani Mathivanan11). The provisions of the State Act which impinge upon the provisions of the Central Act are void and, therefore, unenforceable. (Adhiyaman Educational and Research Institute16; Assn. of Management of Private Colleges2). Any State legislation which stultifies or sets at naught an enactment validly made by Parliament would be wholly ultra vires. (R. Chitralekha v. State of Mysore18; Prof. Yashpal3).
25. To the extent the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List, but in effect encroaches upon legislation including subordinate legislation made by the Centre to give effect to Entry 66 of the Union List, it would be void and inoperative. (Adhiyaman Educational 15 and Research Institute16; Kalyani Mathivanan11; Assn. of Management of Private Colleges2). Whether the State law encroaches upon Entry 66 of the Union List should be determined by an examination of the two laws and will depend upon the facts of each case. (Adhiyaman Educational and Research Institute16; Assn. of Management of Private Colleges2).
26. The 2005 Act came into force on its being notified in the State gazette on 26.04.2005. Section 2(1)(u) thereof defines 'Statutes', 'Ordinances' and 'Regulations' to mean, respectively, the Statutes, Ordinances and Regulations of the University. Section 2(1)(v) defines 'teacher' to mean a Professor, Associate Professor, Reader, Assistant Professor, Lecturer or such other person as may be appointed for imparting instructions, teaching or conducting research in the University or in a Constituent College, and includes the Principal of a Constituent college. Section 2(1)(w) defines 'University Grants Commission' to mean the University Grants Commission established under the University Grants Commission Act, 1956, and Section 2(1)(y) defines 'Vice-Chancellor' to mean the Vice-Chancellor of the University.
27. Chapter III of the 2005 Act relates to the Officers of the University and, under Section 9(b), the Vice-Chancellor is an officer of the University. Section 11 relates to the Vice-Chancellor and, under sub-section (1) thereof, there shall be a Vice-Chancellor appointed, on such terms and conditions as may be prescribed by the Statutes, for a term of three years by the Chancellor from a panel of three persons recommended by the Committee constituted in accordance with the provisions of sub-section (2). Section 11(2) stipulates that the Committee, referred to in sub-section (1), shall consist of the following persons, namely (a) one person nominated by the Chancellor; (b) one person nominated by the University Grants Commission; and (c) the Principal Secretary/Secretary to the State Government in the Higher Education Department, who shall be the Member Convener. Section 11(3) provides that the Committee shall, on the basis of merit, prepare a panel of names of three persons suitable to hold the office of the Vice-Chancellor, and forward the same to the Chancellor along with a 16 concise statement showing the academic qualifications and other distinctions of each person.
28. Chapter V of the 2005 Act relates to Statutes, Ordinances and Regulations and Section 23, thereunder, prescribes the manner in which the Statutes shall be made. Section 23(3) stipulates that every new Statute, or addition to the Statutes, or any amendment or repeal of a Statute, shall require the approval of the Chancellor who may assent thereto or withhold assent or remit to the Executive Council for consideration. Section 23(5) stipulates that, notwithstanding anything contained in the foregoing sub- sections, the State Government may, in the interest of the State or National Education Policy or based on the advice/recommendation of the UGC, with the assent of the Chancellor, make new or additional Statutes or amend or repeal the Statutes already in force.
29. Paras 8(p)(i) and (v) of Appendix I dated 31-12-2008, as noted hereinabove, read with Regulation 7.4.0 of the 2010 Regulations, make it clear that the Scheme is applicable to teaching staff of all Central Universities and colleges thereunder. However, the said Scheme is not applicable to the teaching staff of Universities, colleges and other higher educational institutions coming under the purview of the State Legislature, unless the State Government wishes to adopt and implement the Scheme subject to the terms and conditions mentioned therein. (Kalyani Mathivanan11).
30. By letter dated 04.05.2011, the Secretary to the Governor informed the then Vice-Chancellor of the University that the Governor was pleased to accord approval for the change in the constitution of the Selection Committee for the post of Professor, Associate Professor and Assistant Professor in terms of Section 23(3) and (5) of the 2005 Act. In terms of Regulations 5.0.0, 5.1.1, 5.1.2 and 5.1.3 of the 2010 Regulations, and with the approval of the Governor, Clause 23(5)(c) of the First Statute of the Doon University was amended; and the composition of Committee, for selection of Professors, Associate Professors and Assistant Professors, were brought in line with the 2010 Regulations. It is evident, therefore, that 17 neither Clause 7.3.0(i) or (ii) of the 2010 Regulations have been adopted by the State Government, nor has the Statutes of the respondent-University been modified or amended to bring it in conformity with Regulation 7.3.0(i),
(ii) and (iii) of the 2010 Regulations relating to the Vice-Chancellor. There being no compulsion to accept and/or adopt the Scheme, the States are free to decide whether the Scheme should be adopted by them or not. There can be no automatic application of the recommendations made by the Commission, without any conscious decision being taken by the State in this regard, on account of the financial implications and other consequences attached to such a decision. (Jagdish Prasad Sharma v. State of Bihar19).
31. In Kalyani Mathivanan11 the Supreme Court held that the post of Vice-Chancellor under the Madurai Kamarai University Act, 1965 was a post of an officer; the UGC Act, 1956 was silent on this aspect; the UGC Regulations, 2000 were also silent regarding the post of Vice-Chancellor; the provision regarding Vice-Chancellor had been made for the first time under the UGC Regulations, 2010 which were not applicable to Universities, colleges and other higher educational institutions coming under the purview of the State Legislature, unless the State Government wished to adopt and implement the Scheme subject to the terms and conditions therein; in this connection, reference could be made to Para 8(p)(v) of Appendix I dated 31- 12-2008 and Regulation 7.4.0 of the UGC Regulations, 2010; it was also not the case of the respondents that the Scheme, as contained in Appendix I to the Annexure of the UGC Regulations, 2010, had been adopted and implemented by the State Government; it was also apparent that the State Universities Act had not been amended in terms of the UGC Regulations, 2010 nor was any action taken by UGC under Section 14 of the UGC Act, 1956 as a consequence of the failure of the University to comply with the recommendations of the Commission under Section 14 of the UGC Act, 1956; Regulation 7.3.0 of the 2010 Regulations was traceable to clause (e) or (g) of Section 26(1) of the UGC Act, 1956; Regulation 7.3.0 of the 2010 Regulations, a subordinate legislation made under an Act of Parliament, can override the plenary legislation enacted by the State Legislature; and 18 Regulation 7.3.0 should be treated as recommendatory in nature in so far as it relates to the universities and colleges under the State legislation.
32. The Supreme Court, in Kalyani Mathivanan11, concluded by holding that to the extent the State Legislation is in conflict with the Central Legislation, including Subordinate Legislation made by the Central Legislation under Entry 25 of the Concurrent List, it shall be repugnant to the Central Legislation and would be inoperative; the UGC Regulations, though subordinate legislation, had a binding effect on the universities to which it applied; the UGC Regulations, 2010 were mandatory to teachers and other academic staff in all Central universities and colleges thereunder, and the institutions deemed to be universities whose maintenance expenditure is met by the UGC; the UGC Regulations, 2010 are directory for universities, colleges and other higher educational institutions under the purview of the State legislation as the matter has been left to the State Government to adopt and implement the Scheme; thus, the UGC Regulations, 2010 are partly mandatory and partly directory; the UGC Regulations, 2010, not having been adopted by the State Govt, the question of conflict between the State legislation and the Statutes framed under the Central legislation does not arise; once they are adopted by the State Government, the State legislation should be amended appropriately; and, in such a case also, there shall be no conflict between the State legislation and the Central legislation.
33. As noted hereinabove, the State Government, by its order dated 04.05.2011, adopted 5.00, 5.1.1 and 5.1.2 of the 2010 Regulations regarding constitution of search committees to fill up the posts of Professors, Associate Professors and Assistant Professors; and the First Statute of the Doon University was amended to bring it in conformity with the 2010 Regulations to this extent. Neither Clause 7.3.0(i) of the 2010 Regulations, nor Clause 7.3.0(ii) thereof, has been adopted by the State Government. The First Statute of the University has also not been amended to bring it in conformity therewith. Consequently, Regulations 7.3.0(i) and (ii) of the 2010 Regulations would, ordinarily, have been held merely to be directory and not 19 mandatory in character. It is also true that Section 14 of the 1956 Act, which confers power on the UGC to withhold funds, is not applicable as the budget for the office of Vice-Chancellor is sanctioned by the State Government, and not by the UGC.
34. Since Paragraph 7.3.0 (i)&(ii) of the 2010 Regulations have not been adopted by the Government of Uttarakhand, the law laid down by the Supreme Court, in Kalyani Mathivanan11, would require the eligibility criteria stipulated therein, for appointment to the post of Vice-Chancellor of a State University, to be treated as directory and not mandatory in character. The question which, however, necessitates examination is the effect of Section 8(i) of the 2005 Act, since no provision similar thereto fell for consideration before the Supreme Court in Kalyani Mathivanan11.
(c) IS SECTION 8(i) OF THE 2005 ACT A LEGISLATION BY REFERENCE OR A LEGISLATION BY INCORPORATION?
35. Section 8 of the 2005 Act relates to norms and accreditation and, under sub-section (1) thereof, the (Doon) University shall conform to the norms/regulation of University Grants Commission as amended from time to time. Would the UGC Regulations made from time to time automatically apply to the Doon University, in view of Section 8(1) of the 2005 Act, without its adoption by the State Government?
36. To answer this question it is necessary to examine, at the first instance, whether Section 8(1) of the 2005 Act is a "legislation by reference", or a "legislation by incorporation", for if it is the former then the Regulations made by the UGC from time to time, including the 2010 Regulations made long after the 2005 Act came into force, would necessitate adherence by the respondent-University. Adopting or applying an earlier or existing Act, by the competent legislature to a later Act, is an accepted device of legislation. (Rakesh Vij v. Raminder Pal Singh Sethi (Dr.)20). If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that is to write those Sections into the new Act as if they had been actually written in it with the pen, or printed in it.
20(Wood's Estate, ex p, Works and Buildings Commrs., Re Ch D at p. 615; Nagpur Improvement Trust v. Vasantrao21).
37. A subsequent legislation often makes a reference to the earlier legislation so as to make the provisions of the earlier legislation applicable to matters covered by the later legislation. Such a legislation may either be
(i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute; or (ii) a legislation by incorporation whereunder the provisions of the earlier legislation, to which a reference is made, are incorporated into the later legislation by reference. If it is a referential legislation the provisions of the earlier legislation, to which reference is made in the subsequent legislation, would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation, after the date of enactment of the subsequent legislation, would also be applicable. But if it is a legislation by incorporation, the rule of construction is that any amendment in the statute, which has been so incorporated, that is made after the date of incorporation of such statute, does not affect the subsequent statute in which it is incorporated, and the provisions of the statute which have been incorporated would remain the same as they were at the time of incorporation, and the subsequent amendments are not to be read in the subsequent legislation. As to whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute, in which a reference is made to the earlier legislation, and other relevant circumstances. (U.P. Avas Evam Vikas Parishad v. Jainul Islam22; Mary Roy v. State of Kerala23; Ram Sarup v. Munshi24; Ram Kirpal Bhagat v. State of Bihar25; Bolani Ores Ltd. v. State of Orissa26; Mahindra and Mahindra Ltd. v. Union of India27; State of Uttarakhand v. Mohan Singh28; Nagpur Improvement Trust21).
38. In the case of a mere reference or citation, a modification, repeal or re-enactment of the statute that is referred will also have effect for the statute in which it is referred; but in the case of legislation by incorporation, any change in the incorporated statute by way of amendment 21 or repeal has no repercussion on the incorporating statute. (Mohan Singh28). The distinction between referential legislation, which merely contains a 'reference to, or citation of' a provision of another statute, and a piece of referential legislation which incorporates within itself a provision of another statute is that, in the former case, the provision of the second statute, along with all its amendments and variations from time to time, should be read into the first statute. In the latter case, the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. (State of Kerala v. Attesee (Agro Industrial Trading Corpn.)29; Secretary of State v. Hindustan Cooperative Insurance Society Ltd.30; Collector of Customs v. Nathella Sampathu Chetty31; Ram Sarup24; Ram Kirpal25; New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise32; State of Madhya Pradesh v. M.V. Narasimhan33; Bhajya v. Gopikabai34; Mahindra & Mahindra Ltd.27; and Western Coalfields v. Special Area Development Authority35).
39. If there is a mere reference to a provision of one statute in another without incorporation, then, unless a different intention clearly appears, the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. But if a provision of one statute is incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the latter statute. (Mohan Singh28). In the case of legislation by reference, it is fictionally made a part of the later law. All amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply. This finds mention in Section 8 of the General Clauses Act, 1897. (Girnar Traders vs. State of Maharashtra36).
40. Section 8 of the General Clauses Act relates to construction of references to repealed enactments and, under sub-section (1) thereof, where the General Clauses Act, or any Central Act or Regulation made after the commencement of the General Clauses Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, 22 unless a different intention appears, be construed as a reference to the provision so re-enacted. In State of Uttar Pradesh vs. M.P. Singh and Ors.37 the Supreme Court held that, by the definition of a Commercial Establishment in S. 2, cl. (3) of the U.P. Shops and Commercial Establishments Act, the clerical and other establishments of a factory, to which the provisions of the Factories Act, 1934 apply, are included in the connotation of that expression; reference in the definition, by which clerical and other establishments of factories are included, is to the Factories Act of 1934, but, by virtue of Section 8 of the General Clauses Act X of 1897, it must be construed as a reference to the provisions of the Factories Act LXIII of 1948 which repealed the Factories Act of 1934 and re-enacted it.
41. Unlike "legislation by reference", if Section 8(i) of the 2005 Act is held to be a "legislation by incorporation", it would result in the amendments/changes made to the UGC Regulations, including the 2010 Regulations, not being applicable to the Doon University. What then is "legislation by incorporation"? Where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition. (Hindustan Coop. Insurance Society Ltd.30; Nagpur Improvement Trust21; M.V. Narasimhan33; Mohan Singh28; Mariyappa v. State of Karnataka38). Where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second. The independent existence of the two Acts is therefore recognised; despite the death of the parent Act, its offspring survives in the incorporating Act. (Hindustan Coop. Insurance Society Ltd.30; Mohan Singh28).
42. Where a subsequent Act incorporates the provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases (a) where the subsequent Act and the previous Act are supplemental to each other; (b) where the two Acts are in pari 23 materia; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act. (M.V. Narasimhan33; Rakesh Vij20).
43. As is evident from the use of the words "from time to time", in Section 8(1) of the 2005 Act, the State Legislature did not intend that the Doon University should conform only to a specific Regulation made by the UGC such as the 2000 Regulations. It intended that the University should conform to the norms/Regulations made by the UGC from time to time. The Doon University Act is a statute supplemental to the UGC Act. Section 8(1) of the 2005 Act does not merely lift certain Regulations made by the UGC and incorporate it in Section 8(1). On the other hand, by use of the words "from time to time", the legislative intent is for the norms/Regulations made by the UGC, from time to time, to apply to the Doon University. Section 8(1) is a referential legislation, which merely contains a reference to, or the citation of, the Regulations of the UGC, and is not a legislation by incorporation. The UGC Regulations, issued from time to time, would apply to the Doon University and consequently, notwithstanding it not being specifically adopted by the State Government, the respondent-University and the State Government must be held obligated to conform to Regulation 7.3.0(i) and (ii) of the 2010 Regulations also.
(d) SECTION 8(i) OF THE 2005 ACT SHOULD BE LITERALLY CONSTRUED:
44. The scope and ambit of Section 8(1) of the 2005 Act should be examined bearing in mind the golden rule of interpretation that the words of a statute must, prima facie, be given their ordinary meaning. (Nokes v.
Doncaster Amalgamated Collieries Ltd.39; Rajesh Awasthi7). One has to take the words as the legislature has given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, or by the context of the words in question, controlled or altered. (Crawford v. Spooner40; Rajesh Awasthi7). Applying the literal interpretation test, and as Section 8(1) makes no reference to any specific 24 UGC Regulations, it is difficult to accept the submission of Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the ninth respondent, that, since the 2000 UGC Regulations as amended in the year 2002 were in force when the Doon University Act was enacted in the year 2005, reference in Section 8(1) is only to the 2000 UGC Regulations. Section 8(1) not only uses the word "Regulations", but also the word "norms". It also uses the words "from time to time".
45. What do the words 'from time to time' in Section 8(1) of the 2005 Act mean? In Words and Phrases, Vol. 17-A, 1974, the expression "from time to time" has been enumerated in various contexts. "The phrase 'from time to time' means as occasion may arise, at intervals, now and then occasionally. (Florey v. Meeker30, P 2d at p. 1190). The Century Dictionary defines the phrase 'from time to time' to mean 'occasionally'; and the Universal Dictionary defines 'from time to time' to mean, 'at intervals, now and then' In The Law Lexicon, The Encyclopedic Law Dictionary (2nd Edn., 1997, p. 764) the words have been conferred the following meaning: "From time to time.-- ... 'as occasion may arise' (State of Rajasthan v. Basant Agrotech (India) Ltd.41). In Black's Law Dictionary (5th Edn., p. 601), it has been defined as follows: "From time to time.--Occasionally, at intervals, now and then." In Stroud's Judicial Dictionary (5th Edn., Vol. 2, p. 1071), it has been stated as follows: "From time to time.-- ... 'as occasion may arise' (as per William, J., Bryan v. Arthur35 Ad & E at p. 117). (Basant Agrotech (India) Ltd.41).
46. The words "from time to time" are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction.' The meaning of the words 'from time to time' is that after once acting, the donee of the power may act again; and either independently of, or by adding to, or taking from, or reversing altogether, his previous act. (Basant Agrotech (India) Ltd.41; Lawrie v. Lees42; Re Sulton Coldfield Grammar School43; Boettcher v. Boettcher44; Hood Barrs v. Cathehari45. (Stroude; The Law 25 Lexicon - The Encyclopaedic Law Dictionary by P. Ramanatha Aiyer (Second Edition (Reprint) 2001). The words "from time to time" have a futuristic tenor. (Basant Agrotech (India) Ltd.41).
47. In Nasiruddin v. STAT46, the relevant words in the first proviso to para 14 of the Order were "such Judges of the new High Court, not less than two in number, as the Chief Justice may from time to time nominate, shall sit at Lucknow". In examining the scope of this provision, the Supreme Court held that the words "from time to time" indicated that the power of the Chief Justice to nominate Judges, who shall sit at Lucknow, is to be exercised from time to time meaning thereby that the power can be exercised as often as may be necessary. By using the words "from time to time", in Section 8(1) of the 2005 Act, the State Legislature has directed the Doon University to conform to the Regulations/norms issued by the UGC, as often as it considered it necessary; and that the UGC, after acting once by framing Regulations, may act again to make Regulations either independently of, or by adding to, or taking from, or reversing altogether, its previous Regulations which would also apply to the Doon University.
48. Emphasis is placed by Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the ninth respondent, on the word "amend" in Section 8(1) of the 2005 Act to submit that, by use of the said word, the State Legislature intended that only the amendments, made to the 2000 UGC Regulations, should apply; and, since the 2010 Regulations are in supersession of the earlier Regulations including the 2000 Regulations, the State Legislature did not intend that the University should conform to the 2010 Regulations. We must express our inability to agree.
49. Black's Law Dictionary defines "Amend" to mean as to make right; to correct; to alter (a statute, constitution, etc.) formally by adding or deleting a provision or by modifying the wording. The Law Lexicon, The Encyclopedia Law Dictionary, Second Edition (Reprint) 2001 defines "Amend" to convey the idea of making a thing better or bringing things into a more perfect state. The amendment of a law may in a proper case include the deletion of any one or more of the provisions of the law, and substitution 26 in their place of new provisions. The term 'amended' must be given its natural meaning as altered by additions, substitutions and omissions' when the term is used in connection with a bill or enactment. (Deorajin Debi and Ors. vs. Satyadhyan Ghosal and Ors.47). Amendment is a wider term, and includes abrogation or deletion of a provision in an existing statute. If the amendment of an existing law is small, the Act professes to amend; if it is extensive, it repeals a law and re-enacts it. (Bhagat Ram Sharma v. Union of India48).
50. The word "amend" is a wide term, and would bring within its ambit repeal of a law and its reenactment, abrogation or deletion of the earlier Regulation, as also Regulations made by the UGC in supersession of its earlier Regulations. It is evident, therefore, that the State Legislature intended all norms/Regulations, made by the UGC from time to time, to apply to the Doon University, and for the Doon University to conform to such Regulations. Consequently the Doon University must be held to have been mandated by the State Legislature, in view of Section 8(1) of the 2005 Act, to conform to the 2010 Regulations also. In view of the stipulation in Clause 7.4.0 of the 2010 Regulations and Clause 8(P)(1) of the Scheme, the 2010 Regulations may not automatically apply to State universities unless the said Regulation are adopted, and the relevant Acts/Statutes of these State Universities are accordingly amended. The need for specific adoption of the 2010 Regulations, and the consequent amendment of the 2005 Act and the Statutes of the Doon University, may not apply to the Doon University, since Section 8(1) of the 2005 Act makes the Regulations issued by the UGC, from time to time, automatically applicable, thereby rendering the need for a specific adoption of the said Regulations, and the consequent amendment of the Act/Statutes, unnecessary.
(e) SUBSTANTIAL COMPLIANCE OF DIRECTORY
PROVISIONS NECESSARY:
51. Even otherwise the Supreme Court, in Kalyani Mathivanan11, has held that, even if the 2010 Regulations are not adopted by the State Government, they are nonetheless directory. The difference between a mandatory and a directory rule is that, while the former must be strictly 27 observed, in the case of the latter substantial compliance may suffice to achieve the object regarding which the rule is enacted. (Sharif-ud-Din v. Abdul Gani Lone49). The writ jurisdiction of the High Courts, under Article 226 of the Constitution, is not intended to facilitate avoidance of obligations voluntarily incurred. (Har Shankar v. Dy. Excise and Taxation Commr.50; Rajendra Singh v. State of M.P.51). Even if a statute is directory in nature, the same should be substantially complied with. What would satisfy the requirements of substantial compliance, however, would depend upon the facts of each case. (Dove Investments (P) Ltd. v. Gujarat Industrial Investment Corpn.52; K. Kamaraja Nadar v. Kunju Thevar53; Chandrika Prasad Tripathi v. Siv Prasad Chanpuria54; Om Prabha Jain v. Gian Chand55; Budhi Nath Jha v. Manilal Jadav56; M. Karunanidhi v. H.V. Hande57; Rajendra Singh51).
52. When a provision of law relates to the performance of a public duty, and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted, and at the same time who have no control over the performance of the duty, such a provision should be treated as directory (Sharif-ud-Din49). Although a public duty is imposed, and the manner of performance is also indicated in imperative language, the provision is usually regarded as merely directory when general injustice or inconvenience results to others and they have no control over those exercising the duty. (State of Punjab v. Satyapal58). Even if a statute is directory, the State cannot say that the requirements contained therein do not envisage compliance thereof. (Ashok Lanka v. Rishi Dixit59; Delhi Airtech Services (P) Ltd. v. State of U.P.60; Devinder Singh & others vs. State of Punjab & others61; Gurmail Singh v. State of Punjab62; Pramod Jha v. State of Bihar63; State of Jharkhand v. Ambay Cements64). Where compliance is against the spirit and object of the directory provision, such compliance would not be substantial compliance. (State of Haryana v. P.C. Wadhwa65).
53. Since directory provisions are also required to be substantially complied with, we must examine what the expression "substantial compliance" means. The doctrine of substantial compliance is a judicial 28 invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably be expected of it, but has failed or faulted in some minor or inconsequent aspect which cannot be described as the "essence" or the "substance" of the requirement. Like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance" depends upon the facts and circumstances of each case, the purpose and object to be achieved, and the context of the pre-requisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleaded if a clear statutory pre- requisite, which effectuates the object and the purpose of the statute, has not been met. The Court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was enacted, and not a mirror image type of strict compliance. Substantial compliance means "actual compliance with respect to the substance essential to every reasonable objective of the statute", and the Court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed. (CCE v. Hari Chand Shri Gopal66). If the requirements are directory, in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict, compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance with those factors, which are considered as essential, is necessary. (Hari Chand Shri Gopal66).
54. By prescribing the minimum eligibility criteria, for being appointed as the Vice-Chancellor in the respondent-University, in the advertisement dated 17.10.2017, the State Government has substantially complied with Regulation 7.3.0 (i) of the 2010 Regulations, since the minimum eligibility criteria prescribed in the advertisement dated 17.10.2017 is in pari materia with the minimum eligibility criteria prescribed in Regulation 7.3.0(i) of the 2010 Regulations. It is only if the ninth respondent is held to have fulfilled the said eligibility criteria, for being considered for appointment to the office of the Vice-Chancellor, would exercise of judicial restraint be justified. While a public interest 29 litigation is not maintainable in service matters, except for a writ of quo warranto (Hari Bansh Lal v. Sahodar Prasad Mahto67; State of Punjab v. Salil Sabhlok and others68; Girjesh Shrivastava v. State of Madhya Pradesh69; Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra70; B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees Association & Ors.71; Dattaraj Nathuji Thaware v. State of Maharashtra72; and Ashok Kumar Pandey v. State of W.B73), a writ of quo warranto would issue when there is a violation of a constitutional or statutory provision/rule. (Retd. Armed Forces Medical Assn. v. Union of India74; Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana75; B. Srinivasa Reddy71; Centre for PIL vs. Union of India76; Pappu Venkata Rao v. Commissioner of Endowments, Hyderabad77; Hari Bansh Lal67; High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat78; Rajesh Awasthi7).
II. DOES THE 9TH RESPONDENT FULFIL THE PRESCRIBED ELIGIBILITY CRITERIA TO BE APPOINTED AS A VICE-
CHANCELLOR?
55. Sri M.C. Pant, learned counsel for the petitioner, would submit that the 9th respondent had hitherto worked as a Senior Scientist, Principal Scientist, Senior Principal Scientist and a Director of the CSIR National Botanical Research Institute; the said institution is not a teaching institution; the eligibility criteria stipulated in the advertisement dated 17.10.2017 is in pari materia with Regulation 7.3.0(i) of the 2010 Regulations; the State Government is obligated, in terms of Section 51(A)(j) of the Constitution of India, to appoint only a person of excellence as a Vice-Chancellor; since the 9th respondent was never a Professor in a University system, much less a Professor for 10 years, he was not even eligible to be considered for appointment to the post of the Vice-Chancellor; since he did not fulfill the eligibility criteria stipulated both in Regulation 7.3.0(1) of the 2010 Regulations, and in the advertisement dated 17.10.2018, he is not entitled to hold the office of Vice-Chancellor of the Doon University; and a writ of quo-warranto should be issued recalling his appointment.
3056. Mr. V.K. Kohli, learned Senior Counsel appearing on behalf of the 7th respondent (CSIR-NBRI), would submit that the 9th respondent worked as a Scientist with the NBRI, before he was appointed as its Director; none of the research institutes under the Control of the CSIR are teaching institutes; and even the 9th respondent does not state that the CSIR is a teaching institution.
57. Sri Rajendra Dobhal, learned Senior Counsel appearing on behalf of the Doon University, would submit that the State Government had issued the advertisement and had constituted a Search Committee; the Search Committee had considered the relative merits of all eligible candidates and had found three candidates, including the 9th respondent, to be the most suitable for being recommended for appointment to the office of Vice-Chancellor.
58. Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, would submit that the requirement of Section 11(3) of the 2005 Act is for an assessment of the applicants on the basis of merit; Section 11(3) does not stipulate any minimum educational qualifications or experience in a particular field; determination of merit has been left, by the legislature, to the wisdom of the Search Committee; after considering the relative merits of all the 69 applicants, the Search Committee was satisfied regarding the merit of the three shortlisted candidates, including the 9th respondent; and this Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, would not reassess the suitability of the candidates who had applied for the post of Vice-Chancellor, or make a comparative assessment of their inter-se merit or sit in appeal over the decision of the Committee in shortlisting three candidates, and in recommending them for appointment.
(a) UNIVERSITIES ARE TEACHING INSTITUTIONS:
59. Article 51-A(j) in Part IV-A of the Constitution of India requires every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. The essential feature of a university is 31 that it is incorporated as such by the sovereign power. (Halsbury's Laws of England (4th Edn., Reissue), Vol. 15; Prof. Yashpal3). The whole gamut of the University includes teaching, quality of education being imparted, curriculum, standard of examination and evaluation, and also research activity being carried on. (Prof. Yashpal3).
60. The Vice-Chancellor, an officer of the University under Section 9(b) of the 2005 Act, is, in terms of Section 11(4) of the said Act, the principal executive and academic officer of the University. He is required to exercise general supervision and control over the affairs of the University, and to give effect to the decisions of the authorities of the University.
Section 11(5) enable the Vice-Chancellor to take such action as he deems fit with the prior approval of the Chancellor to appoint a teacher where such appointment is of an urgent nature. Section 11(6) requires the Vice- Chancellor to exercise such other powers and perform such other duties as may be laid down by the Statutes or the Ordinances.
61. By the advertisement, issued by the State Government on 17.10.2017, applications were invited, among others, from distinguished academicians having a minimum of 10 years' experience as a professor in a university system. The eligibility criteria stipulated in the said advertisement is in pari materia with what is prescribed in Regulation 7.3.0(i) of the 2010 Regulations, whereunder it is stipulated, among others, that the person to be appointed as a Vice-Chancellor should be a distinguished academician with a minimum of 10 years' experience as a Professor in a university system. As the university system would involve teaching, and quality education being imparted, a Professor in a university system would mean a person appointed for imparting instruction, teaching or conducting research in the University or in a constituent college.
62. In reply to the query raised by the petitioner under the RTI Act, the CSIR-NBRI, vide letter dated 20.12.2018, informed him that the 9th respondent was working as a Scientist Grade-E from 03.02.1994 till 31.01.1996 in the pay-scale of Rs.3700-5000/-; as Scientist Grade-E in the pay-scale of Rs.12000-16500/- from 01.02.1996 till 02.02.1999; as Scientist 32 Grade-E(II) in the pay-scale of Rs.14300-18300/- from 03.02.1999 till 31.01.2004; as Scientist Grade-F from 01.02.2004 to 31.12.2005 in the pay- scale of Rs.16400-20000/-; as Scientist Grade-F in the pay-scale of Rs.37,400-67,000/- from 01.01.2006 till 31.01.2009; as a Scientist Grade-G in the pay-scale of Rs.37,400-67000/- from 01.02.2009 till 25.11.2010; as a Director in the pay-scale of Rs.67000-79000/- from 26.11.2010 till 31.12.2015; and as a Director in the pay-scale of Rs.1,82,200-2,24,100/- from 01.01.2016 till 31.05.2016.
63. Though the aforesaid information, furnished by the CSIR, shows that the 9th respondent's tenure in the CSIR, NBRI was only as a Scientist and Director and not as a Professor, the 9th respondent, in his CV submitted to the State Government along with his application form, has styled himself as, among others, Senior Principal Scientist/Professor and as a Director/Outstanding Professor.
64. On the petitioner seeking information as to whether dual designation (i.e. as a Senior Principal Scientist/Professor and Director/Outstanding Professor) is conferred by the CSIR, he was informed by the Academy of Scientific and Innovating Research, vide letter dated 31.01.2019, that no letter conferring dual designation was issued to the 9th respondent from initiation of this activity from December 19th, 2013 onwards. Even in the certificate issued by the CSIR-NBRI, at the request of the 9th respondent, on 09.04.2019, the posts which he held is shown as a Director/Senior Principal Scientist/Scientist, and nowhere as a Professor. In the counter-affidavit filed by the 7th respondent-CSIR-NBRI, these qualifications are reiterated and, as submitted by Mr. V.K. Kohli, learned Senior Counsel appearing on behalf of the 7th respondent, none of the research institutes under the CSIR, including the NBRI where the 9th respondent was employed, are teaching institutions. The words 'Professor in a University System' in Regulation 7.3.0(i) of the 2010 Regulations, and in the advertisement dated 17.10.2017, can only mean a Professor in a teaching institution. It is not in dispute that the CSIR-NBRI where the 9th respondent was employed as a Scientist, and then as a Director, is not a teaching 33 institution. Consequently, his experience thereat was not as a Professor in a university system, much less for a period of ten years.
65. As shall be detailed later in this order, Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, admits that the 9th respondent had styled himself as a Professor/outstanding Professor. It is evident, therefore, that the 9th respondent did not fulfill the eligibility criteria, prescribed either in Regulation 7.3.0 (i) of the 2010 Regulations or in the advertisement dated 17.10.2017, of being a distinguished academician having a minimum of 10 years' experience as a Professor in a university system; and, since the eligibility criteria stipulated in the advertisement dated 17.10.2017, is in substantial compliance with the eligibility criteria prescribed in Regulation 7.3.0 (i) of the 2010 Regulations, the 9th respondent did not fulfill the said eligibility criteria for appointment to the post of Vice-Chancellor.
(b) SECTION 11(3) OF THE 2005 ACT: ITS SCOPE:
66. The submission of Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, is that Section 11(3) of the 2005 Act confers wide discretion on the search committee to prepare a panel of names of three persons suitable to hold the office of the Vice-Chancellor on the basis of merit; and, the mere fact that the 9th respondent was not a distinguished academician with a minimum of 10 years' experience as a Professor in a university system, was of no consequence, since the search committee constituted under Section 11(2) of the 2005 Act was satisfied with the merit of the 9th respondent, and had found him suitable to hold the office of Vice-Chancellor.
67. It is necessary, therefore, to examine the scope and ambit of Section 11(3) of the 2005 Act. Section 11(3) confers power on the search committee to decide the 'suitability' of the applicants. Regulation 7.3.0(ii) of the 2010 Regulations, which prescribes the criteria for adjudging the suitability of the eligible candidates, stipulates that, while preparing the panel, the search committee must give proper weightage to academic excellence, exposure to the higher education system in the country and 34 abroad, and adequate experience in academic and administrative governance.
68. While the eligibility criteria for appointment as the Vice- Chancellor, as prescribed in the advertisement dated 17.10.2017, is in substantial compliance with Regulation 7.3.0 (i) of the 2010 UGC Regulations, the power conferred on the search committee, under Section 11(3) of the 2005 Act, is only to assess the suitability of the eligible candidates, and not to prescribe the eligibility criteria. In this context, the distinction between "eligibility" and "suitability" should be borne in mind. Eligibility is at the threshold stage, and is an objective factor. The process of judging the fitness of a person to be appointed to a post falls in the realm of suitability. (Mahesh Chandra Gupta v. Union of India79). Eligibility is a matter of fact whereas "suitability" is a matter of opinion. When "eligibility" is put in question, it could fall within the scope of judicial review. However, the aspect of "suitability" stands excluded from the purview of judicial review. In cases involving lack of "eligibility", a writ of quo-warranto would certainly lie. One reason being that "eligibility" is not a matter of subjectivity. (Mahesh Chandra Gupta79). While the eligibility criteria, prescribed both in Regulation 7.3.0(i) of the 2010 UGC Regulations and the advertisement dated 17.10.2017 for being considered for appointment as a Vice-Chancellor, is that the applicant must be a distinguished academician with a minimum of 10 years' experience as a Professor in a university system, the suitability of the eligible candidates is required to be assessed under Regulation 7.3.0(i) of the 2010 UGC Regulations on the basis of weightage for different criteria, and under Section 11(3) of the 2005 Act on the basis of merit.
69. It is true that, since the jurisdiction to make selection as per law is vested in the Selection Committee, and as its members have expertise in the matter, it is not for Courts, generally, to interfere in matters of assessment of merit, except in cases where the process of assessment is vitiated on grounds of bias, malafides or arbitrariness. It is also not for Courts to sit in appeal over the decision of the Selection Committee, and to scrutinise the relative merits of the candidates. The question, whether or not 35 a candidate is fit for a particular post, should be decided by a duly constituted expert body i.e. the Selection Committee. Courts have very limited scope of judicial review in such matters. (UPSC v. M. Sathiya Priya80). The doctrine of fairness, evolved in administrative law, cannot be so extended as to convert Courts into appellate authorities over the decision of experts. The constraints--self-imposed undoubtedly--of writ jurisdiction still remain. Ignoring them would lead to confusion and uncertainty. The jurisdiction may become rudderless. (M. Sathiya Priya80).
70. It is also true that determining the suitability or otherwise of a candidate, for appointment to a post, is the function of the appointing authority, and not of the Court, (unless the appointment is contrary to statutory provisions/rules) (Hari Bansh Lal67), and does not fall within the realm of a writ of quo warranto. The writ of "quo warranto" is not a substitute for a mandamus or injunction nor for an appeal or a writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed. Information in the nature of "quo warranto" does not command performance of official functions by any officer to whom it may run, since it is not directed to the officer as such, but to the person holding office or exercising franchise, and not for the purpose of dictating or prescribing official duties, but only to ascertain whether he is rightfully entitled to exercise the functions claimed. (State ex Inf Walsh v. Thatcher81; Rajesh Awasthi7; B.R. Kapur v. State of T.N82; Words and Phrases, Permanent Edn., Vol. 35, at p. 647; Bharati Reddy v. State of Karnataka83; State ex inf McKittrick v. Murphy84).
71. We have no quarrel with the submission, urged on behalf of the 9th respondent, that the search committee is best suited to examine the suitability or otherwise of a candidate, and the Court would not undertake such a task. (Statesman (P) Ltd. v. H.R. Deb85; State of Mysore v. Syed Mahmood86; Hari Bansh Lal67; SBI v. Mohd. Mynuddin87). In R.K. Jain Vs. Union of India88 the Supreme Court held that the contention, regarding the need to evaluate the comparative merits of the candidates for appointment would not be gone into in a public interest litigation; only in a proceedings, initiated by an aggrieved person, it may be open to be 36 considered; in service jurisprudence it is for the aggrieved person i.e. non- appointee to assail the legality of the offending action; a third party has no locus standi to canvass the legality or correctness of the action; and only a public law declaration would be made at the behest of the petitioner, a public-spirited person. While this Court would not sit in judgment over the decision of the search committee in determining suitability, it would, undoubtedly, be required, in quo warranto proceedings, to examine whether the person so selected fulfils the eligibility criteria prescribed in the Rules/Regulations for being considered for appointment to the said office of a Vice-Chancellor.
(c) WHAT DOES THE WORD 'MERIT' IN SECTION 11(3) OF THE 2005 ACT MEAN?
72. Section 11(3) of the 2005 Act confers power on the search committee to determine the suitability of the applicants on the basis of merit. Merit system is the practice of hiring employees based on their competence rather than political favoritism, or the Spoils System (BLACK'S LAW DICTIONARY-SEVENTH EDITION (BRYAN A. GARNER).
Selection, on the basis of 'merit', means to select the best available officer from among all eligible officers. The decision to select a candidate should be taken after comparative evaluation of all eligible officers in regard of merit. (Premlata Joshi v. State of Uttarakhand89). The word "merit" is a word of Latin origin, deriving roots from meritum, meaning "due reward" and mereri meaning "earn, deserve". Concise Oxford English Dictionary (11th Edn.) defines "merit" as "excellence; worth". (Modern Dental College & Research Centre v. State of M.P.90).
73. The term 'merit' is not capable of easy definition, but it can be safely be said that several factors are taken into account in assessing merit. (Guman Singh vs. State of Rajasthan91; ADVANCED LAW LEXICON : THE ENCYCLOPAEDIC LAW DICTIONARY WITH LEGAL MAXIMS, LATIN TERMS AND WORDS & PHRASES (P. RAMANATHA AIYAR) III EDITION 2005). "Merit" consists of a high degree of intelligence coupled with a keen and incisive mind, sound 37 knowledge of the basic subjects and infinite capacity for hard work. Merit cannot be measured in terms of marks alone. (Dr. Pradeep Jain v. Union of India92; ADVANCED LAW LEXICON : THE ENCYCLOPAEDIC LAW DICTIONARY WITH LEGAL MAXIMS, LATIN TERMS AND WORDS & PHRASES (P. RAMANATHA AIYAR) III EDITION 2005). Merit is the cumulative assessment of the worth of an individual based on different screening methods. (Modern Dental College & Research Centre90).
74. Merit reflects the attributes of an employee. It may be his academic qualification. It may involve the character, integrity and devotion to duty of the employee. (K.K. Parmar v. H.C. of Gujarat93). Merit is an elusive factor capable of being judged very differently from different angles, or, by application of varying tests of it by different persons, or, by the same persons at different times. (Union of India v. Mohan Lal Capoor94). Merit is not an absolute concept. The content of merit is context-specific. It derives its meaning from particular conditions and purposes. (M. Nagaraj v. Union of India95). Where merit, which is difficult to judge, is laid down as the sole test, the powers of selection become wider, and they can be abused with less difficulty. (Mohan Lal Capoor94). It is unnecessary for us to dwell on this aspect any further since Section 11(3) does not confer any power on the search committee to prescribe the eligibility criteria; and their power is confined under Section 11(3) to recommend three, among the eligible applicants, whom they consider, on an assessment of their relative merits, to be suitable for being appointed as the Vice-Chancellor. It is for this reason that the State Government issued advertisement dated 17.10.2017 prescribing the eligibility criteria to be considered for appointment to the office of Vice-Chancellor, and left it to the Search Committee to assess the suitability of the eligible candidates, and shortlist the three most suitable among them.
75. Section 11(1) of the 2005 Act confers power on the Chancellor to appoint the Vice-Chancellor for a term of three years from a panel of three persons recommended by the committee constituted under Section 38 11(2) of the 2005 Act. The literal meaning of the word "recommend", as used in Section 11(1) of the 2005 Act, means "suggest as fit for employment". (A. Panduranga Rao v. State of A.P.96; Rajesh Awasthi7). The Committee constituted under Section 11(2) must arrive at the satisfaction that the three short-listed candidates were fit for employment, before recommending their names for appointment as Vice-Chancellor. Failure to record such satisfaction is contrary to the mandate/command of the law, and that makes the decision susceptible. Abdication of said power tantamounts to a breach of the rule of law. Such a selection is vitiated, and cannot be cured for there has been statutory non-compliance from the very inception of the selection. (Rajesh Awasthi7).
76. Suitability, as noted hereinabove, is subjective and the power to determine suitability has been conferred on the search committee under Section 11(3) of the 2005 Act. However, suitability of a candidate is required to be determined only from among those who fulfill the prescribed eligibility criteria to be considered for appointment to the said post. Accepting the submission of Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, that, since Section 11(3) of the 2005 Act does not prescribe the eligibility criteria, it was open to the search committee to prescribe the eligibility criteria also, would confer upon them an untrammelled and un-canalised power to select candidates, rendering their action arbitrary. If this submission of Mr. C.D. Bahuguna, learned Senior Counsel, were to be accepted, the search committee would, for instance, have the power to select a candidate, who has not even passed 10th class, as a Vice-Chancellor, and, this Court would nonetheless be disabled from examining the grounds on which the search committee found him eligible and suitable to be appointed as a Vice-Chancellor. This contention must, therefore, only be noted to be rejected.
(d) CONFERMENT OF UNTRAMMELLED AND UNCANALISED POWER IS AGAINST THE RULE OF LAW:
77. In this context, it must be borne in mind that, in absence of guidelines, the recommendation may be made by the search committee 39 purely on personal or political considerations, rendering their recommendation arbitrary. (State of U.P. v. U.P. State Law Officers' Assn.97; Renu v. District & Sessions Judge98).Whenever a statute confers wide power on a statutory authority, such discretion should be exercised reasonably, and must stand the test of judicial scrutiny which is one of the basic features of our Constitution. (Consumer Action Group and Another Vs. State of Tamil Nadu and others99; P.M. Parameshwaramurthy and Ors. vs. State of Karnataka and Ors.100). Wide power, vested in any authority, should be exercised with great circumspection. Greater the power, greater should be the caution. Entrustment of such power is neither to act in benevolence nor in the extra statutory field, but only for the public good, and for the public cause. While exercising such a power the authority should keep in mind the purpose and the policy of the Act. (Consumer Action Group99; P.M. Parameshwaramurthy100).
78. Section 11(3) of the 2005 Act, as noted hereinabove, does not prescribe the eligibility criteria on fulfillment of which alone should the suitability of the eligible candidates be determined. Except to provide that suitability should be determined on the basis of merit, the said provision does not provide any guidance to the search committee as to how they should determine the inter-se merit of the eligible candidates. In the absence of an express provision providing such a procedure, the action of the Search Committee should not only be fair and legitimate, it should also be above board, and the discretion conferred on it should be exercised with great circumspection. Having regard to the importance of the Office of the Vice- Chancellor of the Doon University, the duties attached thereto and the institution in which the Office is held, sufficient care should be taken before making such appointment. (P.M. Parameshwaramurthy100). Absence of arbitrary power is the first postulate of the rule of law upon which our constitutional edifice is based. In a system governed by the rule of law, discretion, when conferred upon an executive authority, must be confined within clearly defined limits. If the discretion is exercised without any principle or without any rule, it is antithesis to the rule of law. Discretion means sound discretion guided by law or governed by known principles or 40 rules, not by the whim or fancy or caprice of the authority. (Som Raj v. State of Haryana101; Renu98).
79. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Where the Statute confers wide power coupled with wide discretion on the authority, if the procedure adopted by the authority offends the fundamental fairness or established ethos, the order stands vitiated. Absence of arbitrary power is the first essential of the rule of law upon which our whole Constitutional system is based. The rule of law, from this point of view, means that a decision should be taken by the application of known principles. (N. Kannadasan Vs. Ajoy Khose and others102; Centre for PIL76; P.M. Parameshwaramurthy100). Where arbitrary appointments are made on extraneous considerations, contrary to law, without application of mind, without taking into consideration relevant factors and mechanically, the Constitution casts an obligation on the Higher Courts to review these decisions, when the post involved is a public post. (P.M. Parameshwaramurthy100). Another important requirement of public appointment is that of transparency. The qualifications and other eligibility criteria for such posts should be explicitly provided with certainty and clarity to prevent arbitrariness, and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others. (Renu98).
80. In Veerendra Kumar Gautam1, the contention was that, even though Regulation 6(2) specifically stipulated that interview will be held based on the guidelines which should specifically state as to how consideration should be made while holding the interview, no guidelines were formulated, thereby leaving it open for the members of the Commission to arbitrarily award marks while making the selection, and thereby provide scope for arbitrariness. The Supreme Court, relying upon Union of India v. O. Chakradhar103, held that the illegality and irregularity were so intermixed with the whole process of selection, that it became impossible to sort out the right from the wrong or vice versa; and the result of such a selection could not be relied or acted upon.
4181. Judicial review, in quo-warranto proceedings, is concerned with whether the incumbent possesses the prescribed qualifications for appointment, and the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable. The Government is not accountable to the Courts for the choice made but is accountable to the Courts in respect of the legality of its decisions when impugned under the judicial review jurisdiction. (Centre for PIL76; R.K. Jain88; Rajesh Awasthi7). Interference by Courts would be limited to whether the appointment made by the academic body has contravened any statutory or binding rule and, while doing so, the Court should show due regard to the opinion expressed by experts on whose recommendations the academic body had acted, and not treat the expert body as a quasi-judicial tribunal, deciding disputes referred to it for decision. (Tariq Islam v. Aligarh Muslim University104; University of Mysore v. C.D. Govinda Rao105).
82. The power of judicial review is exercised to protect the citizen from the abuse of power by the Government. The power of appointment is conferred on the executive to be exercised wisely. When a candidate is found qualified and eligible, and is accordingly appointed by the executive to hold an office, the Court cannot sit in appeal over the choice of selection, but should leave it to the executive to select the person as per law and procedure. (R.K. Jain88; P.M. Parameshwaramurthy100). Appointment to a public post must however satisfy not only the eligibility criteria, but also the decision making process. The decision taken by a statutory authority, without looking into the relevant material having a nexus to the object and purpose of the Act under which the appointment is made, would stand vitiated on the ground of arbitrariness as, while making such appointment, the authority performs a statutory duty. (Centre for PIL76; P.M. Parameshwaramurthy100). The power of judicial review, although restricted, can be exercised when a relevant fact is not considered ie where a statutory authority, in exercising its discretionary jurisdiction, has not taken into consideration a relevant fact or has based its decision on wholly 42 irrelevant factors not germane for passing the order (N. Kannadasan102; P.M. Parameshwaramurthy100).
83. The decision of the Selection Committee should be an informed decision. It is on a consideration of the complete information and material that the appointment should be made. That would constitute a fair and transparent process of consideration of an eligible candidate before he is appointed. If this exercise is not done, it amounts to non-application of mind, arbitrary exercise of power, and would offend Article 14 of the Constitution. (Centre for PIL76; P.M. Parameshwaramurthy100). The expert body's opinion may not deserve acceptance in all circumstances, and hence it may not be proper to say that the expert body's opinion is not subject to judicial review in all circumstances. In our constitutional scheme, the decision of the Selection Committee cannot be said to be final and absolute. Any other view will have very dangerous consequences. (M. Sathiya Priya80).
84. As shall be elaborated later in this order, the search committee shortlisted the 9th respondent along with two others, and recommended their names to the Chancellor for being considered for appointment as a Vice- Chancellor, on the erroneous premise that the 9th respondent was a distinguished academician with more than ten years experience as a Professor in the university system. As the search committee was required to determine the three most suitable candidates only from among the eligible applicants, ie those who fulfilled the eligibility criteria prescribed in Regulation 7.3.0(i) of the 2010 Regulations read with the advertisement dated 17.10.2017, their decision, that the 9th respondent was among the three most suitable, matters little as they were misled by the 9th respondent into believing that he fulfilled the eligibility criteria, though he did not.
85. While this Court would not be justified in re-assessing the suitability of a candidate, it is required to examine, on its quo warranto jurisdiction being invoked, whether or not the candidate appointed as a Vice- Chancellor fulfilled the prescribed eligibility criteria. Once it finds that the candidate was eligible, it would then refuse to interfere with the appointment 43 and refrain from examining whether the search committee had properly adjudged the suitability, of the eligible candidates, for appointment to the post of Vice-Chancellor. All that we have held is that the 9th respondent did not fulfill the prescribed eligibility criteria to be considered for appointment as a Vice-Chancellor, and his suitability could not, therefore, have even been examined by the search committee.
III. ARE THE CONDITIONS STIPULATED IN THE ADVERTISEMENT CONTRARY TO STATUTORY PROVISIONS?
86. Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, would submit that, as Clause 7.3.0(I) of the 2010 UGC Regulations has no application, the Search Committee was guided only by Section 11(3) of the 2005 Act; it was required to assess the relative merits of the applicants for appointment to the post of Vice-Chancellor; the advertisement dated 17.10.2017, which prescribes the eligibility criteria for appointment as a Vice-Chancellor, as a minimum of 10 years' experience as a Professor in a University system, is at variance with Section 11(3) of the 2005 Act; in case of variance between the advertisement on the one hand, and the Act/Rules on the other, it is the Act/Rules which would prevail, and not the advertisement; the stand of the State Government also is that the provisions of the 2005 Act would prevail; and the three member Search Committee was conscious of Section 11(3) of the 2005 Act i.e. of merit alone being the criteria to select candidates, and not the eligibility criteria stipulated in the advertisement. Learned Senior Counsel would rely on Ashish Kumar v. The State of Uttar Pradesh and others106 to contend that an advertisement, issued contrary to statutory provisions, should give way; and it is the qualification prescribed in the statutory provisions which would prevail.
87. It is true that, where the qualifications prescribed in the advertisement are at variance with the qualifications prescribed in the Statutory Rules, it is the latter which would prevail and not the former. In Ashish Kumar106, the 1991 Rules stipulated that B.Ed. was a preferential qualification, and the essential qualification was only M.A. in Psychology.
44The qualification prescribed in the 1991 Rules did not provide for L.T./B.T. B.Ed. as an essential qualification, and non-possession of L.T./B.T. B.Ed. did not disqualify the applicant for the post as per the 1991 Statutory Rules. The advertisement prescribed the qualification as "in Psychology subject graduate/L.T./B.T./B.Ed." The appellant was a post- graduate in psychology, and fulfilled the qualifications prescribed in the 1991 Rules. It is in this context that the Supreme Court held that any part of the advertisement, which is contrary to the statutory rules, should yield to statutory prescription; and when there is a variance between the advertisement and the statutory rules, it is the statutory rules which take precedence.
88. In Malik Mazhar Sultan & Anr. Vs. U.P. Public Service Commission & Ors.107, the advertisement issued by the Public Service Commission stated that candidates, who were within the age on 01.07.2001 and 01.07.2002, shall be treated within age for the examination. In terms of the Rules those candidates who were eligible on 01.07.2002, and those eligible on 01.07.2004, were eligible to be considered for the post of Civil Judge (Junior Division). The Supreme Court held that the excluded candidates were of eligible age as per the advertisements, but recruitment to the service could only be made in accordance with the Rules; the error, if any, in the advertisement could not override the Rules and create a right in favour of a candidate, if otherwise not eligible according to the Rules; relaxation of age could be granted only if permissible under the Rules, and not on the basis of the advertisement; and if the interpretation of the Rules by the PSC, when it issued the advertisement, was erroneous, no right could accrue on the basis thereof.
89. In both the aforesaid judgments, the educational qualifications and the stipulation regarding age as prescribed in the statutory Rules were at variance with what was prescribed in the advertisement, and it is in such circumstances that the Supreme Court held that, in case of variance, the qualifications prescribed in the statutory Rules would prevail. In the present case, the eligibility criteria is as stipulated in Regulation 7.3.0 (i) of the 2010 45 Regulations, and the advertisement dated 17.10.2017 issued in substantial compliance with Regulation 7.3.0(i). The eligibility criteria is that, for being considered for appointment as a Vice-Chancellor, the applicant should be a distinguished academician with a minimum of ten years experience as a Professor in a University system. What is stipulated in Section 11(3) of the 2005 Act is not the eligibility criteria, but the manner in which the suitability of eligible candidates must be determined. Section 11(3) requires the Search Committee to adjudge the suitability of eligible candidates on the basis of merit. Since Section 11(3) of the 2005 Act does not prescribe any eligibility criteria for being appointed as a Vice-Chancellor, the question of the eligibility criteria stipulated in the advertisement being at variance with the eligibility criteria stipulated in Section 11(3) of the 2005 Act does not arise. This submission of Mr. C.D. Bahuguna, learned Senior Counsel, in this regard necessitates rejection.
IV. DID THE 9TH RESPONDENT HOLD A POST EQUIVALENT TO THAT OF A PROFESSOR?
90. Sri M.C. Pant, learned counsel for the petitioner, would submit that the pay-scale of a Professor in a University carries a Grade Pay of Rs.10,000/-; it is only the post of Director-NBRI which carries the Grade Pay of Rs.10,000/- or more; at best, the services rendered by the 9th respondent as a Director, i.e. for a period of 7 years and 02 months, can be considered equivalent to that of a Professor; and the post of Chief Scientist/Senior Principal Scientist, which carries a Grade Pay of less than Rs.10,000/-, is therefore not equivalent to the post of a Professor in the University system.
91. Sri Rajendra Dobhal, learned Senior Counsel appearing on behalf of the Doon University, would submit that the advertisement dated 17.10.2017 does not stipulate teaching experience alone, but also provides for research experience as an eligible qualification for being considered for appointment as a Vice-Chancellor. Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, would submit that the 9th respondent had, in the C.V. submitting along with his application, referred to his tenure in the CSIR - NBRI as equivalent to that of a Professor; he had, on 46 the basis of Clause 4.1.0(B) of the 2010 UGC Regulations, styled himself as an outstanding professor; even if the 9th respondent's understanding, of his experience as a Scientist/Principal Scientist/Chief Scientist in the CSIR- NBRI to be equivalent to that of a Professor, is presumed not to be justified, and such experience is held not to amount to teaching experience as a Professor, the fact remains that Section 11(3) of the 2005 Act only requires the Search Committee to determine the suitability of the applicants on the basis of merit; since the Search Committee was satisfied that the services rendered by the 9th respondent, in the CSIR-NBRI, was meritorious and was equivalent to that of a Professor, this Court would not, in proceedings under Article 226 of the Constitution of India, sit in appeal over the decision of the Search Committee in determining the equivalence of the petitioner's experience with what was stipulated in the advertisement; it is for the Search Committee to determine equivalence, and not for this Court to do so, much less in quo-warranto proceedings; as the Search Committee is an expert body, it is for it, and not for the petitioner, to decide whether or not the experience of the 9th respondent with the CSIR-NBRI is equivalent to that of a Professor; and equivalence of qualifications are matters not for Courts but for the expert body, constituted by the Government, to determine. Learned Senior Counsel would rely on on Tariq Islam104; Rajendra Prasad Mathur Ors. v. Karnataka University and Ors.108; Rameshwar Dass Mehla vs. Om Prakash and others109; and M. Sathiya Priya80, on the need for Courts to exercise restraint in determining equivalence of qualifications.
92. As noted hereinabove, both Regulations 7.3.0(i) of the 2010 Regulations and the advertisement dated 17.10.2017 prescribe the eligibility criteria, to be fulfilled for being considered for appointment as a Vice- Chancellor, as "a distinguished academician with a minimum of ten years experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and / or academic administrative organization". Even those applicants, who do not fulfill the eligibility criteria of being a distinguished academician with a minimum of ten years experience as Professor in a University system, are eligible to be considered for appointment to the office of Vice-Chancellor provided they have ten 47 years' experience in an equivalent position in a reputed research and / or academic administrative organization. The word "equivalent position", in the second limb of Regulation 7.3.0(i) and in the advertisement dated 17.10.2017, would be a position equivalent to that of a person who is a distinguished academician, and has ten years experience as a Professor in a University system.
93. While Sri M.C Pant, learned counsel for the petitioner, would contend, on the basis of the grade-pay applicable to the posts of Director, NBRI / Chief Scientist / Senior Principal Scientist of the CSIR-NBRI, that, since it is only the post of Director which carries the grade-pay of Rs. 10,000/-, ie the grade-pay which a Professor is entitled to, it is only the post of Director, CSIR-NBRI which is in an equivalent position as that of a Professor in a University system; and, since the 9th respondent did not have ten years experience as a Director, he did not fulfill the eligibility criteria stipulated in the second limb of having a minimum of ten years' experience in an equivalent position in a reputed research and/ or academic administrative organization.
94. We find force in the submission of Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, that equivalence of two qualifications is a question which pertains purely to an academic matter and the courts would hesitate to express a definite opinion when it appears to experts that a candidate fulfils the qualification (Rameshwar Dass Mehla109), and when it appears that the experts have already considered and declared it. (Rajendra Prasad Mathur108; Tariq Islam104; C.D. Govinda Rao105). It is for the Government, which issued the advertisement, to decide the question of equivalence and it would not be right for the Court to sit in judgment over the decision of the Government because it is not a matter on which the Court possesses any expertise. (Rajendra Prasad Mathur108).
95. While we would not undertake the task of determining whether the experience of the 9th respondent in the CSIR-NBRI is equivalent to that of a distinguished academician with a minimum experience of ten years as a 48 Professor in a University system, judicial restraint would have been in order only if the Search Committee, which shortlisted and recommended three names to the Chancellor for being appointed as a Vice-Chancellor, had held that the experience of the 9th respondent in the CSIR-NBRI was equivalent to that of a distinguished academician with a minimum of 10 years' experience as a Professor in a University system. It is useful, in this context, to refer to the minutes of the meeting of the Search Committee held on 05.01.2018, the contents of which read thus:
MINUTES OF SELECTION/SEARCH COMMITTEE MEETING The meeting of the Selection/Search Committee has been concluded today on 05.01.2018 for selection of the Vice-Chancellor of Doon University under Section 11(2) of the Doon University Act, 2005. Pursuant to the advertisement dated 17.10.2017, 69 applications received till the due date were considered extensively in the meeting for the selection of Vice-Chancellor. The academic record of each applicant, their academic exposure in the country and abroad as well as administrative experiences were also considered in detail. After consultation, it was agreed to recommend the names of three candidates in the following preference:
1. Prof. Ramesh Chandra, Department of Chemistry, University of Delhi.
2. Prof. Jitendra Pal Singh, Department of Management Study, I.I.T, Roorkee.
3. Prof. Chandra Shekhar Nautiyal, National Botanical Research Institute, Lucknow.
A brief description of the educational qualifications and other specifications of the above candidates, is enclosed.
Sd/- Sd/-
Sd/-
(Prof. Rajendra Prasad) (Ramesh Narayan Swamy) (Dr.
Ranbeer Singh)
Fellow, Indian Academy of Science, I.A.S. (Retd.) Addl.
Chief Secretary
Director, Amity Institute Former Chief Secretary,
of Biotechnology, Gurgaon Government of Delhi
96. Regulation 7.3.0(ii) of the 2010 UGC Regulations requires the search committee, while preparing the panel, to give proper weightage to academic excellence, exposure to the higher education system in the country and abroad, and adequate experience in academic and administrative governance, to be given in writing along with the panel to be submitted to the Chancellor. It is evident from the minutes of the meeting of the search committee held on 05.01.2018, that the suitability of the candidates was assessed by the committee on the parameters stipulated in Regulation 7.3.0(ii) of the 2010 UGC Regulations, as Section 11(3) of the 2005 Act 49 does not prescribe any weightage to be given for different parameters, and merely requires candidates to be selected on the basis of their merit.
97. The concise statement prepared by the Search Committee, of all the 69 applicants, contains the serial number, name and address of the applicant, his date of birth as on 02.11.2017, his educational qualifications, the position held by him presently, teaching experience, administrative experience, and remarks. It is useful to extract the concise statement of some of the applicants including the three shortlisted candidates. It reads thus:
List of CVs Received for dated 01-11-2017 the post of Vice-
Chancellor of Doon University, Dehradun S. Name & Address Date of Age as Educati Position held Teaching Administrativ Remark No. Birth on onal Presently Experience e Experience 02.11.20 Qualific 17 a-tion
1. Dr. Kamal 30.06.19 61 years Ph.D., Retired IAS 03 years 06 More than 31 Shankar 56 M.A., Officer from months years 10 Srivastava, Doctor the Director, experience months exp.
1964/23, of Primary as
HUNDA, Sector Literatu Education Additional
23 Gurugram re, School Director,
(Gurgaon) Master Education & SKIPA
Haryana, Mob- of Law Literacy. (ATI),
09431523567 Dept. Govt. Ranchi,
of Jharkhand. Govt. of
Jharkhand
2. Dr. U.C. 07.07.19 64 years M.Sc., Professor & More than About 41 Only 01
Naithani, 53 D.Phil. head, 42 years years years
Naithani Niwas, Department teaching administrativ left for
Upper Chopra, of Physics, exp. e exp. Retire-
Pauri Garhwal, Garhwal (Including ment.
Mob- University 20 years as
09412922513 Campus Professor
Pauri, U.K. exp.)
3. Dr. Arvind 02.08.19 60 years Ph.D. in Professor of 37 years Approximate
Kumar Joshi, 57 Sociolo Sociology, teaching 47 years
31, gy, Dept. of exp. administrativ
Mahamanapur, M.A. Sociology (Including e exp.
P.O. B.H.U., Faculty of 11 years
Varanasi Social 03 month
Mob- Sciences, as
09839335199 Banaras Professor
Hindu exp.)
University,
Varanasi
4. Prof. (Dr.) R.K. 11.06.19 48 years Ph.D., Professor, 24 years More than 24
Singh, 165 69 M.Tech Electronics teaching years
Phase-2, and exp. teaching
Panditvari, Communicati (Including research,
Dehradun on Engg. 10 years consultancy
Mob - B.T. Kumaun 08 months and
09412050954 Inst of Tech, as administrativ
Dwarahat, professor e exp.
Almora exp.)
50
5. Prof. Rakesh 05.10.19 55 years Ph.D, Head, 25 years Approximate Does
Chand Ramola, 62 M.Sc. Department teaching 16 years not
H.N.B.G. of Physics & exp. administrativ fulfil
University (A Campus (Including e exp. eligibilit
Central Director, 08 years as y
University) H.N.B.G. professor
Badshahi Thaul University exp.)
Campus Tehri (A Central
Garhwal University)
Mob- Badshahi
09412009567 Thaul
Campus,
Tehri
Garhwal.
6. Prof. Vijay 02.04.19 61 years Ph.D, Professor & More than More than 09
Kumar Kaul, 56 Post Director, 10 years as years
Prof & Director, Doctora CTS, School professor administrativ
School of te, of Language, exp. e exp.
Language, TESOL Mahatama
Mahatama Gandhi
Gandhi Antarrashtriy
Antarrashtriya a Hindi
Hindi Vishwavidya
Vishwavidyalaya laya Wardha
Wardha, (MH) (MH)
Mob-
09970720873
7. Dr. Jai Krishn 05.08.19 63 years Ph.D, Dean Faculty More than 25 years Only 02
Godiyal, 54 M.A. of Arts, 35 years administrativ years
Professor & Communicati teaching e exp. left for
Head, Sanskrit on and exp. retireme
Dept. Pauri Languages, (Including nt
Parisar, HNBG H.N.B.G.U., 16 years as
(Central Srinagar professor
University), Pauri Garhwal exp.)
Garhwal
Mob-
09412115186
9. Prof. (Dr.) G.S. 10.10.19 64 years Ph.D, Ex Member 16 years as 06 years Only 01
Nayal 53 M.Phil, Public professor administrativ years
Lower Mall M.Ed, Service exp. e exp. left for
Road, Khatyari, M.A. Commission Retirem
Almora, Uttarakhand, ent
Uttarakhand Professor in
Mob- Faculty of
09412093505 Education,
Kumaon
University,
S.S.J.
Campus,
Almora
10. Prof. Manjula - - Ph.D., Professor & 33 years 09 Years Date of
Rana, M.A. Head, teaching Administrati Birth is
Department of Department exp. ve exp. not
Hindi, HNBG of Hindi, (Including mention
University (A HNBG 11 years as ed.
Central University professor
University), (A Central exp)
Srinagar, University),
Garhwal Srinagar,
Garhwal
51
11. Prof. Ramesh 01.07.19 60 years Ph.D. Professor 21 years as More than 23
Chandra, 57 FIC, Department professor years
Department of M.Phil, of Chemistry exp. administrativ
Chemistry M.Sc. University of e, academic
University of Delhi and research
Delhi exp.
Tel-91-11-
27667151
12. Dr. Bhoopal 30.03.19 64 years Ph.D., Ex-Principal, 43 years Only 01
Singh, 53 M.Sc. Amar Singh teaching, years
Ho. No. B-43 (P.G.) research, left for
Pandav Nagar, College, agricultural retireme
Meerut Lakhaoti, extensioln nt
Mob- Bulandshahr and
09761636027 administrat
ion exp.
13. Dr. (Mrs.) Uma 05.03.19 62 years Ph.D, Ex Dean, 32 years Approximate
Melkania, 55 M.Sc., CBSH, G.B. teaching 17 years
Ex Dean, CBSH, B.Sc Pant exp. administrativ
G.B. Pant University of (Including e Exp.
University of Agriculture 14 years as
Agriculture and and professor
Technology, Technology, exp.)
Pantnagar Singh Pantnagar
Nagar Singh Nagar
Mob-9412170328
14. Prof. V.P.Singh, 25.11.19 63 years Ph.D., Professor & Approxim Approximate Only 02
UGC-BSR 54 M.Sc. UGC-BSR ate 22 26 years years
Faculty Fellow Faculty years Administrati left for
M.J.P. Fellow professor ve Exp. retireme
Rohilkhand M.J.P. exp. nt
University,
Barielly
Mob-9837371688
15. Prof. J.P. 30.01.19 64 years Ph.D. Professsor, 39 years 30 years Only 01
Pachauri, 53 M.A. Head, teaching administrativ years
Head, Department exp. e exp. left for
Department of of Sociology (Including retireme
Sociology and and Social 19 years nt
Social Work, Work, professor
H.N.B. Garhwal H.N.B. exp.)
University Garhwal
(A Central University
University) (A Central
Srinagar Garhwal University)
Mob-9412029947 Srinagar
Garhwal
48. Prof. Jatinder 12.10.19 60 years Ph.D, Professor, 20 years
Pal Singh, 57 M.Sc Department teaching
Department of of exp.
Management Management (including
Studies, Indian Studies, 15 years as
Institute of Indian professor
Technology, Institute of exp.)
Roorkee Technology,
Mob-9259283816 Roorkee
50. Dr. Mohan 05.07.19 66 years Ph.D, Former 04 years 14 years Above
Chandra 51 M.Sc. Dean, 09 months administrativ 65 years
Nautiyal, College of as e exp.
Doon Enclave, Forestry and professor
Lane-4, Hill exp.
Nakronda Road, Agriculture,
Harrawala, G.B. Pant
52
Dehradun University of
Mob-9412076770 Agriculture
and
Technology,
Pantnagar
53. Dr. Rakesh 23.07.19 55 years Ph.D, Scientist 'F' 02 years 22 years
Kumar 62 M.Sc. & In-charge teaching administrativ
Maikhuri, G.B. Pant exp. e exp.
G.B. Pant National Inst.
National Institute of Himalayan
of Himalayan Environment
Environment & and
Sustainable Sustainable
Development Development
(GBPNHESD) , Garhwal
Garhwal Unit, Unit,
Post Box-92, Srinagar
Srinagar,
Garhwal
Mob-9410392632
57. Dr. Brij Mohan 15.08.19 60 years Ph.D, Vice- 38 years 22 years 14 years
Harbola, 57 M.A. Chancellor, teaching administrativ as
Uttaranchal Doon exp. e exp. associat
Colony (Phase-I), University, (including e
Kusumkhera, Dehradun 14 years as professo
Haldwani associate r
Mob-9634313986 professor)
58. Dr. Adbhut 20.11.19 53 years Ph.D, Principal, 24 years 06 13 years 06
Kumar, 64 M.Sc, Chaudhary months months
House No.244, B.Sc. Harnam teaching administrativ
Shiv Mandir, Singh PG exp. e exp.
Main Road, College,
Maninath, Bhuta,
Bareilly (U.P.) Bareilly
Mob-9458721357 (U.P.)
61. Dr. Lalta 30.06.19 59 years Ph.D, Director, 23 years
Prasad, 58 M.A, State administrativ
80-New LLB Archive, e exp.
Sundarwala, Post Dehradun
Raipur, Dehradun
Mob-9627268093
64. Mr. Chandra 25.05.19 61 years Ph.D., J.C. Bose 27 years
Shekhar 56 M.Sc. National teaching
Nautiyal, Garden Fellow, experience
Block, National CSIR-NBRI, (Approxi
Botanical Lucknow mate 12
Research Institute years as
(CSIR-NBRI) professor
Rana Pratap exp.)
Marg, Lucknow
C-50 Nirala
Nagar, Lucknow
Mob -
9415511111
66. Prof. Yuvraj 02.08.19 60 years Ph.D. Professor-in- Approxima Approximate
Singh Negi, A- 57 Post charge of te 12 years 31 years
501, Triveni Doct., Saharanpur teaching administrativ
Apartment, M.Sc Campus IIT, exp. e exp.
Saharanpur Roorkee (Including
Campus of IIT 05 years as
Roorkee, Paper Professor
Mill Road, exp.)
Saharanpur, UP
Mob-9319605330
53
98. From the aforesaid concise statement, it is evident that the Search Committee has taken note of the teaching experience and the administrative experience of the 69 applicants. It had reckoned both teaching and administrative experience with respect to some of the applicants. In so far as the 9th respondent is concerned, the column relating to administrative experience has been left blank in the concise statement, and it is only under the heading 'Teaching Experience' that the 9th respondent was held to have 27 years' teaching experience (with approximately twelve years' experience as a Professor). The 9th respondent was shortlisted only on the basis that he possessed the prescribed minimum teaching experience of ten years as a Professor in a University system, and not on the basis of his administrative experience.
99. It is also clear from the concise statement that the Search Committee had rejected the candidature of several applicants on the ground that they did not fulfill the eligibility criteria. For instance, with respect to Professor Rakesh Chand Ramola (at Sl. No.5), the Search Committee, after noting that he had 25 years' teaching experience, including 8 years' experience as a Professor, opined that he did not fulfill the eligibility criteria evidently because the eligibility criteria, stipulated both in Regulation 7.3.0(i) of the 2010 UGC Regulations and the advertisement dated 17.10.2017, required applicants to have a minimum of ten years' experience as a Professor in a University system. The concise statement discloses that Dr. Kamal Shankar Srivastava (Sl. No.1), Dr. Rakesh Kumar Maikhuri (Sl.
No.53) and Dr. Lalta Prasad (Sl. No.61) were considered solely on the basis of their administrative experience, though they did not possess the minimum prescribed teaching experience of ten years as a Professor in a university system. Others such as Dr. Arvind Kumar Joshi (Sl. No.3), Prof. (Dr.) R.K. Singh (Sl. No.4), Dr. Jai Krishn Godiyal (Sl. No.7), Prof. Ramesh Chandra (Sl. No.11) (a short-listed candidate), Dr. (Mrs.) Uma Melkania (Sl. No.13), Dr. Adbhut Kumar (Sl. No.58) and Prof. Yuvraj Singh Negi (Sl. No.66) were considered as they had both teaching and administrative experience.
54100. Prof. Jatindra Pal Singh (Sl. No.48) was shortlisted as he had 20 years' teaching experience, including 15 years experience as a Professor. Both he and the 9th respondent (at Sl. No.64) were shortlisted, and recommended to be appointed to the office of Vice-Chancellor, since the Search Committee was of the view that both of them fulfilled the minimum required teaching experience. Neither of them were considered on the basis of their administrative experience. In so far as the ninth respondent is concerned, the concise statement records that he had 27 years' teaching experience, of which approximately 12 years' experience was as a Professor, which was more than the minimum prescribed ten years' experience as a Professor in a University system, and not on the ground that he had any administrative experience (the column under administrative experience, in so far as both Prof. Jatindra Pal Singh and the 9th respondent are concerned has been left blank in the concise statement). Since the 9th respondent was never a Professor in a university system, the question of his having any experience as a Professor, much less the 12 years' which the search committee was led to believe that he had, does not arise.
101. While this Court may not be justified in determining the equivalence of educational qualifications, since these are matters for the Search Committee to consider, it is evident that the Search Committee had selected the 9th respondent only on the basis that he fulfilled the eligibility criteria of having a minimum experience of ten years as a Professor in a university system, and not on the basis that he possessed an equivalent qualification. The Selection Committee has not undertaken the task of determining whether the eligibility criteria fulfilled by the 9th respondent was equivalent to that of a distinguished academician with ten years experience as a Professor in a university system. As shall be detailed later in this order, it is evident that the committee was swayed by the CV submitted by the 9th respondent styling himself as a Director / Outstanding Professor and Chief Scientist / Senior Principal Scientist/ Professor. While admitting that the 9th respondent had styled himself as an Outstanding Professor / Professor, though there is no such dual designation in the CSIR-NBRI, Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th 55 respondent, would place reliance on Clause 4.1.0(B) of the 2010 UGC Regulations to justify the act of the 9th respondent.
102. Clause 4.1.0 of the 2010 Regulations relates to a Professor and, sub-Clause (B) thereunder, refers to 'an outstanding professional'. It defies reason that the 9th respondent should have understood the words "an outstanding professional' to be that of 'outstanding professor'. In any event, since it is not in dispute that CSIR-NBRI is not a teaching institution, and the posts held by the 9th respondent in the CSIR-NBRI were not that of a Professor in a University system, much less with an experience of ten years as a Professor, the 9th respondent's understanding of his designation matters little. The Search Committee did not select the 9th respondent on the ground that he held a post equivalent to that of a distinguished academician with a minimum of ten years experience as a Professor in a University system. Neither this Court nor the petitioner, or for that matter the ninth respondent, can undertake the task of determining equivalence. Suffice it to hold that, since the 9th respondent's candidature was considered, and he was held to have fulfilled the prescribed eligibility criteria solely on the premise that he had a teaching experience of 27 years, of which approximately 12 years' experience was as a Professor, and he was not considered on the ground that he had an equivalent experience, his appointment must be set at naught on the ground that he did not fulfill the prescribed eligibility criteria to be considered for appointment as a Vice-Chancellor.
V. WAS THE SEARCH COMMITTEE MISLED BY THE 9TH
RESPONDENT'S CLAIM TO HAVE THE REQUISITE
TEACHING EXPERIENCE?
103. Sri M.C. Pant, learned counsel for the petitioner, would submit that the Search Committee relied solely on the C.V. submitted by the 9th respondent to hold that he had 27 years teaching experience of which approximately 12 years' experience was as a Professor; the 9th respondent had misrepresented that he was a Professor/outstanding Professor, though the NBRI, where he worked, is not even a teaching institution; it is on the basis of this CV, submitted by the 9th respondent, that the Search Committee had treated him as having the prescribed minimum experience of 10 years as 56 a Professor in a university system, and had recommended his candidature for appointment to the office of Vice-Chancellor; the 9th respondent had surreptitiously, and by his self-styled proclamation that he was a Professor / outstanding Professor, led the Search Committee to believe that he fulfilled the prescribed minimum 10 years' experience as a Professor in a University system; the ninth respondent has secured appointment, to the office of Vice- Chancellor, by misrepresentation and suppression of material facts; the specific averments in the writ petition, that all candidates who did not possess the minimum required experience of 10 years as a Professor were rejected by the Search Committee, has not been denied by the respondents in their respective counter affidavits; it is evident from the concise statement, of all the 69 applicants prepared by the Search Committee, that persons, who did not have the prescribed minimum 10 years' experience as a Professor, were not recommended for appointment to the office of Vice-Chancellor; it is only because the 9th respondent had misrepresented that he was a Professor /Outstanding Professor, with an experience of more than 10 years as a Professor in a university system, was the Search Committee misled into recommending his candidature to the office of Vice-Chancellor; from the C.V. itself it is evident that the experience of the ninth respondent is of only 24 years, and not 27 years as recorded by the Search Committee in its concise statement; and appointment of the 9th respondent, as a Vice- Chancellor, should therefore be set aside, and his appointment recalled.
104. As truth is the foundation of justice, it must be the endeavour of the Court to ascertain truth in every matter, and no stone should be left unturned in achieving this object. (Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira110). In this context, it is useful to refer to the contents of the C.V. submitted by the 9th respondent.
CHANDRA SHEKHAR NAUTIYAL J.C. Bose National Fellow, FNA, FNASc, FNAAS Garden Block, National Botanical Research Institute (CSIR-NBRI) Rana Pratap Marg, Lucknow 226 001 Email : [email protected]; [email protected] Phone : +91 9415511111 (Mobile) 57 Residence : C-50, Nirala Nagar, Lucknow 226 020 Date of birth: May 25, 1956 Place of birth: Dehradun Educational Qualifications :
Doctor of Philosophy, (Ph.D.) Microbiology M.S. University, Baroda 1982 Master of Science, (M.Sc.) Botany Lucknow University, Lucknow 1977 Academic Positions held in India Post Organization Duration Experience (In Years and Months) From To (Date) (Date) J.C. Bose National CSIR-NBRI, Till date -
Fellow Lucknow
Director/Outstanding CSIR-NBRI, Nov. 2010 May 2016 5 Years 7
Professor Lucknow Months
Director/Outstanding CSIR-CIMAP, Aug. 2012 Feb 2014 1 Year 6 Months
Professor Lucknow
(Additional Charge)
Director/Outstanding CSIR-IITR, Aug. 2014 Jun. 2015 11 Months
Professor Lucknow
(Additional Charge)
Chief Scientist, CSIR-NBRI, 2004 2010 6 years
Senior Principal Lucknow
Scientist/Professor
Principal Scientist CSIR-NBRI, 1996 2004 5 Years
Lucknow
Senior Scientist CSIR-NBRI, 1994 1999 5 Years
Lucknow
Res. Associate CSIR-CDRI, 1982 1985 3 Years
Lucknow
* Under the Academy of Scientific and Innovative Research (AcSIR), CSIR Work Experience Abroad • Production Manager, American Biotech. Inc., Boston, USA (1991-
93). Work involved commercial production of diagnostic ELISA kits using recombinant proteins, using relevant genes cloned in bacterial and baculovirus expression vectors using Escherichia coli and Spodoptera frugiperda Sf9 insect cells, respectively, as hosts.
• Faculty Research Associate, (1988-1991). While working at Laval University, Quebec, Canada in collaboration with North Carolina State University, Raleigh & Novartis Biotechnology Corporation, 58 Research Triangle, North Carolina, USA techniques of genetic engineering were applied to encourage preferential colonization of the desired bacteria by engineering the desired plant to confer a superior ability to utilize a novel substrate, occurring in the environment in which it occurs.
• Presidential Indo-US Post Doc Fellowship, (1985-1998). Worked at Unites States Department of Agriculture, Maryland, USA and demonstrated that host determined nodulation of American soybean by Indian pigeon pea bradyrhizobia may depend upon the ancestral backgrounds of the cultivars. In a detailed analysis of pleiotropic Tn5 mutants it was demonstrated that cytochrome aa3 does not appear to be necessary for an effective symbiosis in bradyrhizobium japonicum DNA homology group II strains.
Academy Fellowships • Fellow of Indian National Science Academy (FNA), New Dehi. • Fellow of The National Academy of Sciences (FNASc.), Allahabad. • Fellow of National Academy of Agricultural Sciences, (FNAAS), New Delhi.
National Awards for Recognition of R&D Achievements • 2017: Science and Technology Excellence Award: For successful translational research on Life Sciences discipline by His Excellency the Governor of Uttarakhand.
• 2016: CSIR Technology Award: For successful translational research on scientifically validated herbal formulation NBRMAP-DB, for the management of diabetes.
• 2015: J.C. Bose National Fellowship: Science and Engineering Research Board, Department of Science and Technology, Government of India: Awarded to study the role of plant microbe interaction for development of new technologies for sustainable food production (http://serb.gov,in/jcbn.php).
• 2011- Life-Time Achievement Award: Biotech Research Society of India: Awarded for outstanding contributions in Agriculture Biotechnology (http://www.brsi.in/awards/).
105. It is only because the 9th respondent had styled himself, in the CV submitted by him, that he was an Outstanding Professor and a Professor, that the Search Committee had held him eligible to be considered for appointment to the post of Vice-Chancellor without even verifying whether or not he fulfilled the prescribed eligibility criteria. The records placed for our perusal also show that the eligibility of candidates was determined, and they were shortlisted, only on the basis of CVs submitted by them. It is 59 evident, therefore, that no efforts were made by the Search Committee to ascertain whether or not the contents in the CV, submitted by the 9th respondent, was correct.
106. The submission of Sri M.C. Pant, learned counsel for the petitioner, that the Search Committee was misled by the 9th respondent's claim to have fulfilled the prescribed eligibility criteria cannot, therefore, be brushed aside as without merit. Besides prescribing the eligibility criteria for a person to be appointed as a Vice-Chancellor, Regulation 7.3.0(i) of the 2010 UGC Regulations also stipulates that persons of the highest level of competence, integrity, morals and institutional commitment should be appointed as a Vice-Chancellor. The 9th respondent, having styled himself as a Professor/Outstanding Professor in his CV, has misled the search committee into believing that he fulfilled the eligibility criteria of being a distinguished academician having a minimum of ten years' experience as a Professor in a university system. This act of his, reflects lack of high integrity and morals which are among the characteristics considered essential for being appointed as a Vice-Chancellor. As the selection stinks, and was delivered in deceit, the selection of the 9th respondent, and his being shortlisted by the search committee, is illegal (Krishan Yadav v. State of Haryana111; and Veerendra Kumar Gautam1) and necessitates being set- aside.
VI. SHOULD A WRIT OF QUO-WARRANTO BE ISSUED IN THE
PRESENT CASE?
107. Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, would highlight the distinction, between a writ of quo- warranto and a writ of certiorari, to submit that it is only if the appointment made to a public office is contrary to law, or the provisions of statutes/statutory rules, would interference be justified; and unlike a writ of certiorari where this Court would quash an illegal order, the order appointing the 9th respondent, as a Vice-Chancellor, cannot be quashed in quo-warranto proceedings. He would rely on Hari Bansh Lal67; and A.N. Shashtri Vs. State of Punjab and Ors112 on the scope of a writ of quo-warranto. Reliance is also placed by the learned Senior Counsel on A.N. Shashtri112 60 regarding the distinction between a writ of certiorari and a writ of quo- warranto.
(a) IS THE OFFICE OF VICE-CHANCELLOR OF THE DOON
UNIVERSITY A PUBLIC OFFICE?
108. A writ of quo-warranto can be issued only if the office in question is a public office. It is necessary for us, therefore, to examine whether the office of a Vice-Chancellor is a public office. Before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office. (Halsbury's Laws of England, 3rd Edition, Vol.II, Page 145). Quo-warranto, unless enlarged by statute to cover private offices, is confined to testing the right or title to public office of a civil character. The Office must be of a public nature and a substantive office, and not merely the function or employment of a deputy or servant held at the will and pleasure of others. (A. Ramachandran v. A. Alagiriswawi113; Darley v. Reg114).
109. An information, in the nature of quo-warranto, will lie in respect of any particular office which satisfies the following conditions: (1) the office must have been created by Statute. (2) The duties of the office must be of a public nature. (3) The office must be one the tenure of which is permanent in the sense of not being terminable at pleasure. (4) The person proceeded against has been in actual possession and user of the particular office in question. (Halsbury's Laws of England, Vol. X 1909 Edn. pages 129 and 130 and 131; Anand Bihari v. Ram Sahay115; Dr. P.S. Venkataswamy Setty v. University of Mysore116). In order to constitute a "public office", it is not always necessary that appointment to the office should be made by the Government. A person appointed to perform public duties is a public officer. (A. Ramachandran113; Govinda Chettiar v. Uttukottai Cooperative Society117).
110. The nature of office, in respect of which quo-warranto will lie, must be taken to be an office created by the Constitution itself or by any statute and invested with the power or charged with the duty of acting in 61 execution or in enforcement of the law. The office may either be an elective office or one in respect of which a nomination or appointment is made by a specified authority. (Dr. P.S. Venkataswamy Setty116; N. Kannadasan102). The test to be applied is whether there has been usurpation of an office of a public nature, and an office substantive in character i.e., an office independent in title. (Mocherla Venkatraya Sarma v. Y. Sivarama Prasad118; H. v. Speyer and R. v. Cassel119). The alleged usurper should be in possession of the office and should have acted in it. (H.W.R. Wade & C.F. Forsyth's Administrative Law (Tenth Edition).
111. It is evident from Section 2(1)(y) read with Section 9(b) of the 2005 Act that the Vice-Chancellor is an Officer of the University. Since the said office is statutorily prescribed, and the powers and functions of the Vice-Chancellor are also delineated in the Statute, the Office of the Vice- Chancellor is, undoubtedly, a public office and is amenable to the quo warranto jurisdiction of this Court.
(b) WHEN CAN A WRIT OF QUO-WARRANTO BE ISSUED?
112. The next question, which necessitates examination, is when can a writ of quo-warranto be issued? In a quo warranto proceeding, the High Court should be slow to pronounce upon the matter unless there is a clear infringement of the law. (Statesman (Private) Ltd.85; A.N. Shashtri112). Issuance of a writ of quo warranto is discretionary and such a writ should be issued only upon a clear finding that the appointment to a public office was contrary to the statute. (Bharati Reddy83; Arun Singh v. State of Bihar120). A writ of quo warranto is a writ which lies against the person who, according to the relator, is not entitled to hold an office of a public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on grounds that the possessor of the office does not fulfil the required qualifications, or suffers from any disqualification, which debars the person to hold such office. (B.R. Kapur82; Bharati Reddy83). Unless the Court is satisfied that the incumbent was not eligible, as per the 62 statutory provisions, for being appointed to the public office, which satisfaction should be founded on indisputable facts, the High Court ought not to entertain the prayer for issuance of a writ of quo warranto. (Bharati Reddy83).
113. In quo-warranto proceedings, judicial review is concerned with the question whether the incumbent possessed the qualification for appointment, and whether the manner in which the appointment came to be made, or the procedure adopted, was fair, just and reasonable, and whether the selection was as per law and procedure. (P.M. Parameshwaramurthy100). Judicial review, for the purpose of issuance of a writ of quo-warranto, would lie : (a) in the event the holder of a public office was not eligible for appointment; and (b) processual machinery relating to consultation was not fully complied. (N. Kannadasan102; P.M. Parameshwaramurthy100).
114. Quo warranto proceedings afford a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by a judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointment to public office against the law, and to protect a citizen from being deprived of the public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who may have been allowed to continue either with the connivance of the executive or by reason of its apathy. Before a person can effectively claim a writ of quo warranto, he has to satisfy the court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of a writ of quo warranto, the Court should be satisfied that the appointment is contrary to the statutory rules, and the person holding the post has no right 63 to hold it. (C.D. Govinda Rao105; Rajesh Awasthi7; P.M. Parameshwaramurthy100; Kumar Padma Prasad v. Union of India121; B.R. Kapur82; Mor Modern Coop. Transport Society Ltd.75; Arun Singh120; Hari Bansh Lal67; and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo122; Renu98).
115. The jurisdiction of the High Court to issue a Writ of Quo- Warranto is limited. While issuing such a writ, the Court merely makes an order of declaration and would not consider its impact or other factors which may be relevant for issuance of a writ of Certiorari. An information, in the nature of a quo-warranto, lies against a person who has usurped an office to enquire by what authority he supported his claim in order that the right to the office might be determined. In some cases persons not entitled to a public office may have been allowed to occupy them, and to continue to hold them, as a result of the connivance of the executive or with its active help and if, in such cases, the jurisdiction of the Courts to issue a writ of quo-warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. (Halsbury's Laws of England, 3rd Edition, Vol.II, Page 145; Govinda Rao105; Ahmed Ehtesham Kawkab v. Govt. of India123). A writ of quo-warranto is issued to prevent a continued exercise of unlawful authority. (Centre for PIL76).
116. Quo-warranto proceedings afford a judicial remedy for removal of the usurper, from the office which he holds without title, by a judicial order. (N. Kannadasan102). If there is any complaint about appointment of an officer, who is not eligible under the statute/statutory rules to be appointed, the proper remedy is to make an application for the issue of a writ of quo-warranto. (Mir Ghulam Hussain v. The Union of India124; Ahmed Ehtesham Kawkab123). It is the duty of the Court, as soon as its attention is drawn to the fact that a person who is not qualified is holding a public office, to declare that he is not entitled to that office and to prevent him from acting as such. (Kashinath Laxman Bhide v. The State of Bombay125 ). Since appointment of the 9th respondent as a Vice-Chancellor is an appointment to a public office, and he was appointed to the said office though he did not 64 fulfill the eligibility criteria prescribed in Regulation 7.3.0(1) of the 2010 Regulations and the advertisement dated 17.10.2017, of being a distinguished academician with a minimum of ten years experience as a Professor in a university system, he must be held to be a usurper of the office, and as not entitled to hold the public office, of the Vice-Chancellor as he did not fulfill the eligibility criteria stipulated in the statutory Regulations read with the advertisement.
(c) A WRIT IN THE NATURE OF A QUO-WARRANTO OR A
WRIT OF DECLARATION CAN ALSO BE ISSUED TO OUST
AN USURPER FROM OFFICE:
117. The narrow confines of quo-warranto proceedings have, in the recent past, been expanded. The width and amplitude of a writ of quo warranto has now been widened and a writ in the nature of a quo warranto, or a writ of declaration, can also be sought where the appointment made is illegal. (N. Kannadasan102; P.M. Parameshwaramurthy100). Superior courts may not only issue a writ of quo warranto but also a writ in the nature of quo warranto. They are also entitled to issue a writ of declaration which would achieve the same purpose. (N. Kannadasan102; and Salil Sabhlok68). Where a prayer for issuance of any other writ, direction or order, which the Court may deem fit and proper in the facts and circumstances of the case, is sought, nothing prevents the Court, if so satisfied, from issuing a writ of declaration. (Centre for PIL76; and Salil Sabhlok68).
118. In Salil Sabhlok68, notification dated 07.07.2011 was issued by the Government of Punjab appointing Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission. Respondent No. 1, an Advocate practicing in the Punjab and Haryana High Court, filed a public interest litigation, under Article 226 of the Constitution, seeking a mandamus directing the State Government to frame regulations governing the conditions of service and appointment of the Chairman and/or the Members of the Public Service Commission as envisaged in Article 318 of the Constitution of India. Respondent No.1 also prayed for a direction to restrain the State Government from appointing Mr. Harish Dhanda as the 65 Chairman of the Punjab Public Service Commission as his appointment did not fall within the parameters of integrity, impartiality and independence.
119. It is in this context that the Supreme Court observed that, in R.K. Jain88, it was held that an aggrieved person - a "non- appointee" - would alone have locus standi to challenge the offending action; a third party could seek a remedy only through a public law declaration; this view was reiterated in B. Srinivasa Reddy71; assuming the appointment of the Chairperson of a Public Service Commission is a "service matter", a third party and a complete stranger, such as the writ petitioner, cannot approach an Administrative Tribunal to challenge the appointment; however, as an aggrieved person, he or she does have a public law remedy; but in a service matter the only available remedy is to ask for a writ of quo warranto; a PIL is prohibited in a service matter, except for the purposes of a writ of quo warranto; appointment of the Chairperson of a Public Service Commission does not fall in the category of a service matter; therefore, a PIL for a writ of quo warranto, in respect of an appointment to a constitutional position, would not be barred; however in a unique situation like the present, where a writ of quo warranto may not be issued, it becomes necessary to mould the relief, so that an aggrieved person is not left without any remedy, in the public interest; the Supreme Court has, therefore, fashioned a writ of declaration to deal with such cases; such a writ was issued in Kumar Padma Prasad121 when the Supreme Court declared that Mr. K.N. Srivastava was not qualified to be appointed a Judge of the Gauhati High Court even after a warrant for his appointment was issued by the President under his hand and seal; similarly, in N. Kannadasan102, the Supreme Court held that Justice N. Kannadasan (retired) was ineligible to hold the post of the President of the State Consumer Redressal Forum; the recommendation of a High Powered Committee recommending the appointment of Mr. P.J. Thomas as the Central Vigilance Commissioner, under the proviso to Section 4(1) of the Central Vigilance Commission Act, 2003, was held to be non est in law, and his appointment as the Central Vigilance Commissioner was quashed; and an aggrieved citizen had limited options 66 available to him or her, and can seek redress if an arbitrary appointment is made, such as of the person walking on the street.
120. In the present case, the 9th respondent had misled the Search Committee into believing that he fulfilled the prescribed eligibility criteria of being a distinguished academician with ten years' experience as a Professor in a University system, and under the mistaken belief that he satisfied the said eligibility criteria, the Search Committee had recommended his name along with two others for being appointed as a Vice-Chancellor. Since it is now evident that he does not fulfill the aforesaid eligibility criteria, a writ of quo-warrantom or a writ in the nature of a quo-warranto, must be issued holding him disentitled to hold the office of Vice-Chancellor of the Doon University.
121. A distinction is sought to be made by Sri C.D.Bahuguna, learned Senior Counsel, between a writ of quo-warranto and a writ of certiorari, to submit that the contentions raised in this writ petition could only have been examined by this Court in the exercise of its certiorari jurisdiction, and not in quo-warranto proceedings. There exists a distinction in regard to issuance of a writ of quo warranto and issuance of a writ of certiorari. The scope and ambit of these two writs are different and distinct. (N. Kannadasan102; P.M. Parameshwaramurthy100). While issuing a writ of quo-warranto the court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (Gujarat Kishan Mazdoor Panchayat78; P.M. Parameshwaramurthy100).
122. Since we have only examined the question whether the 9th respondent fulfills the eligibility criteria prescribed in Regulation 7.3.0(i) of the 2010 Regulations read with the advertisement dated 17.10.2017, of being a distinguished academician with a minimum of ten years experience as a Professor in a university system, and have found that the 9th respondent was appointed to the office of Vice-Chancellor, despite his not having fulfilled the prescribed eligibility criteria, it is evident that the jurisdiction which we have exercised is only to issue a writ of quo-warranto, or at best a writ in the 67 nature of quo warranto, and the scope and ambit of such proceedings have not been widened to bring within its fold matters which could only have been examined in the exercise of the certiorari jurisdiction of this Court.
VII. IS THE WRIT PETITION FILED WITH ULTERIOR MOTIVES?
123. Sri Rajendra Dobhal, learned Senior Counsel appearing on behalf of the Doon University, would submit that the writ petition has been filed with ulterior motives. Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the 9th respondent, would also contend that the writ petition as filed is motivated, and is liable to be dismissed on this ground alone; as many as 69 persons had applied for the post of Vice-Chancellor; none of these 69 persons have questioned the selection of the petitioner as a Vice-Chancellor, as they were satisfied that the selection process was fair and proper; and, though it was open to the other applicants, if they were so aggrieved, to invoke the certiorari jurisdiction of this Court, the very fact that none of them chose to do so would itself justify selection of the 9th respondent by the Search Committee, and his candidature being recommended for appointment to the office of Vice-Chancellor.
(a) IN QUO-WARRANTO PROCEEDINGS STANDING OF THE
PETITIONER IS IRRELEVANT:
124. Grant of relief, under Article 226 of the Constitution, is based on the existence of a right in favour of the person invoking the jurisdiction of the High Court. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or a quo warranto or a writ filed in public interest, (Vinoy Kumar Vs. State of UP126), where the rule of locus standi is relaxed. (Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed127). In Quo-Warranto proceedings the applicant does not seek to enforce any right of his as such, nor does he complain of any non- performance of a duty towards him. What is in question is the right of the non-applicant to hold the office, and an order that is passed is an order ousting him from office. The legality of an appointment to high office can be challenged by any citizen. (M.S. Mahadeokar v. Chief Commissioner, 68 Territory, Chandigarh128; Vinoy Kumar126; Jasbhai Motibhai Desai127; Ahmed Ehtesham Kawkab123; and Venkataraya vs. Sivarama Prasad129).
125. If the writ asked for is strictly a writ of quo-warranto in respect of a public office, the petitioner need have no personal interest as he is hardly ever an aggrieved person, but is really in the nature of an informer. In England the petitioner, in such circumstances, is not called a petitioner at all, but only a relator i.e., one who relates facts on the basis of which the Court itself takes action. All that is necessary is that the petitioner should act bonafide in public interest, and should not be a mere man of straw acting at the instance of others or on ulterior motives. [Dr. P.S. Venkataswamy Setty116]. It is open to a private individual to bring it to the notice of the Court that a person, who is disqualified to hold an office, is still holding it. A person who is not legally entitled to hold an office should not be permitted to hold it. (Venkataraya vs. Sivarama Prasad129; Mocherla Venkatraya Sarma118). A writ petition, for issuance of a writ of quo- warranto, would be maintainable even at the instance of a busy body. (N. Kannadasan102; Ahmed Ehtesham Kawkab116). Delay and laches do not also constitute any impediment to deal with the lis on merits. (Kashinath G. Jalmi v. Speaker130; Rajesh Awasthi7).
126. The locus standi of the petitioner, to invoke the jurisdiction of this Court seeking a writ of Quo-Warranto, is wholly irrelevant, as an enquiry, whether or not the petitioner is a person aggrieved, is not contemplated in Quo- Warranto proceedings. The real test is to see whether the person holding the office is authorised to hold the same as per law. (Rajesh Awasthi7; Kashinath G. Jalmi130). The mere fact that the other 68 applicants have neither invoked the certiorari jurisdiction, nor the quo- warranto jurisdiction, of this Court would neither mean that the selection of the 9th respondent and his appointment as a Vice-Chancellor is justified, nor would it disable the petitioner from seeking a writ of quo-warranto to recall the appointment of the 9th respondent as the Vice-Chancellor.
69(b) ARE MOTIVES OF THE PETITIONER RELEVANT?
127. In examining the question whether the petitioner's request for a writ of quo-warranto to be issued should be rejected, on the submission urged both on behalf of the University and the 9th respondent that the petitioner had invoked the jurisdiction of this Court with ulterior motives, it must be borne in mind that a writ of quo-warranto is not issued as a matter of course but ex debito justitiae. (Mocherla Venkatraya Sarma118). The said writ is purely discretionary, and will not issue unless the Court is satisfied that it is necessary to issue it in public interest. (Dr. P.S. Venkataswamy Setty116).
128. In A.N. Shashtri112; and B. Srinivasa Reddy71, the Supreme Court held that a writ of quo-warranto should be refused where it is the outcome of malice or ill will. On the other hand, in Kashinath G. Jalmi130 and N. Kannadasan102, the Supreme Court held that, while examining if a person holds a public office under valid authority or not, the Court is not concerned with the technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. In P.L. Lakhanpal v. A.N Ray131 and Malik v. P.P. Sharma132 it has been held that a writ of quo warranto is a writ which merely asks the question as to whether there is a warrant of appointment for holding the office, and the question of malafides is completely irrelevant to the matter.
129. All that is stated in the counter affidavit filed by the Deputy Registrar of the Doon University, on behalf of respondent nos. 5 & 6, is that the writ petition has been filed with an ulterior motive and malafide intention at the behest of some person who was not happy with the appointment of the 9th respondent to the post of Vice-Chancellor in the University. The affidavit does not state as to what ulterior motive or malafide intent the petitioner had against the 9th respondent, nor has the person, at whose behest the petitioner is stated to have invoked the jurisdiction of this Court, been named much less does the counter-affidavit state why the said anonymous person was not happy with the appointment of 70 the 9th respondent. Likewise, in his counter affidavit, the 9th respondent states that the writ petition has not been filed with clean hands and clean motive; it is founded on ill motive and extraneous considerations; and the present writ proceedings, in the garb of projection of public interest, is nothing but sheer misuse of the power of writ proceedings.
(c) BURDEN OF ESTABLISHING MALAFIDES LIES HEAVILY
ON THE PERSON WHO ALLEGES IT:
130. While the jurisdiction of this Court to issue a writ of Quo- Warranto is no doubt discretionary, and this Court may refrain from exercising its discretion to issue such a Writ if the proceedings have been instituted out of malice, ill-will or to wreck vengeance, the assertions of the respondents in this regard are vague. The burden of establishing malafides is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. (E.P. Royappa v. State of Tamil Nadu133).
131. Even otherwise if any other member of the public, to whom the oblique motive and conduct alleged against the petitioner in the present case could not be attributed, can file such a writ petition for the same relief, this disability on the ground of oblique motive and conduct would not attach to him. This being so, the relief claimed by the petitioner in the writ petition being in the nature of a class action, without seeking any relief personal to him, ought not to be dismissed merely on this ground, since it is a matter of public concern and relates to the good governance of the State itself. (Dr. Kashinath G. Jalmi130). It would be wholly inappropriate for this Court, therefore, to refuse to exercise its discretionary jurisdiction, to issue a writ of quo-warranto, on this ground.
VIII. IS THE CONSTITUTION OF THE SEARCH COMMITTEE IN ACCORDANCE WITH LAW?
132. Mr. M.C. Pant, learned counsel for the petitioner, would submit that, in order to shortlist candidates for being considered for appointment to the post of Vice-Chancellor, a search committee was constituted under 71 Section 11(2) of the 2005 Act; Section 11(2) requires the Committee to consist, among others, of the Principal Secretary/Secretary to the State Government in the Higher Education Department; unlike Section 11(2) of the 2005 Act, Regulation 7.3.0(II) of the 2010 Regulations stipulates that the Search Committee should, among others, consist of a nominee of the Syndicate/Executive Council/Board of Management of the University; in terms of Clause 7.3.0(II) the members of the Search Committee should not be connected with the concerned University or its colleges; the 1956 Act, and the 2010 Regulations made thereunder, are referable to Entry 66 of List- 1; Entry 25 of List-III, in terms of which the 2005 Act was made, is subject to Entry 66 of List-1; therefore the Search Committee should only have been constituted in terms of Clause 7.3.0(II) of the 2010 Regulations; inclusion of the Principal Secretary, Higher Education, Government of Uttarakhand, as a member of the Search Committee, vitiates its very constitution; consequently all its decisions, including shortlisting of three candidates and recommending their names to be considered for appointment as the Vice- Chancellor, is illegal and void; the mere fact that the Principal Secretary, Higher Education Department is also a member of the executive council of the Doon University is of no consequence, as the requirement of Regulations 7.3.0(II) of the 2010 Regulations is that the Executive Council should nominate a person, unconnected with the University, as a member; since the Principal Secretary is connected with the University as a member of its Executive Committee, he could not have been nominated as a member of the Search Committee; and since there is a variation in the composition of the Search Committee under Section 11(2) of the 2005 Act vis a vis Regulation 7.3.0(ii) of the 2010 Regulations, Section 11(2) of the 2005 Act is ultra vires Regulation 7.3.0 (ii) of the 2010 Regulations.
133. Mr. Pradeep Joshi, learned Standing Counsel for the State Government, would place the records of the Search Committee for our perusal and submit that, since the State Government has not adopted Regulation 7.3.0 of the 2010 Regulations which relates to the Vice- Chancellor, the said Regulations have no application; and the Committee, 72 constituted in terms of Section 11(2) of the 2005 Act, is the properly constituted Search Committee. He would rely on Jagdish Prasad Sharma19.
134. The distinction in the composition of the Search Committee, as prescribed in Regulation 7.3.0(ii) of the 2010 Regulations and Section 11(2) of the 2005 Act, is that, while in the former, a nominee of the Syndicate / Executive Council / Board of Management of the University, who shall not be connected in any manner with the Doon University or its colleges, should be a member, the latter requires the Principal Secretary / Secretary to the State Government in the Higher Education Department to be the member convenor. While the Principal Secretary to the State Government in the Higher Education Department is also a member of the Executive Council of the Doon University, he does not fulfill the requirement of being a nominee of the Executive Council of the University unconnected in any manner with the University concerned and its colleges. Regulation 7.3.0(ii) of the 2010 Regulations has, evidently, not been strictly complied with. Since these Regulations have been held by the Supreme Court, in Kalyani Mathivanan11, to be directory, and substantial compliance with a directory provision is sufficient, we must examine whether or not there has been substantial compliance with Regulation 7.3.0(ii) of the 2010 Regulations. Since the Principal Secretary to the Government is also a member of the Executive Council of the University, it could possibly be contended that, while strict compliance of Regulation 7.3.0(ii) of the 2010 Regulations may not have been observed, there has been substantial compliance with the said Regulations.
135. We do not wish to dwell on this aspect any further, since we are satisfied that the appointment of the 9th respondent, as a Vice-Chancellor of the Doon University, is liable to be set-aside on the ground that he did not fulfill the prescribed eligibility criteria, stipulated in Regulation 7.3.0(ii) of the 2010 UGC Regulations and the advertisement dated 17.10.2017, to be considered for appointment to the said office. It matters little, therefore, whether or not Regulation 7.3.0(ii) of the 2010 Regulations is mandatory in character or, even if it were to be directory, whether the Search Committee was constituted in substantial compliance with the directory provisions of 73 the 2010 Regulations. Suffice it to leave this question open to be examined, if need be, in appropriate legal proceedings.
SUMMARY:
136. Our opinion, as elaborately detailed hereinabove, is summarized as under:-
a) As the 2010 Regulations made under the 1956 Act forms a part thereof, the said Regulations shall prevail notwithstanding anything inconsistent therewith even in the 2005 Act, a plenary legislation of the Uttarakhand State Legislature.
b) In view of Regulation 7.4.0 of the 2010 Regulations, read with Para 8(P)(1) of the Government of India letter dated 31.12.2008, (which is appended as Appendix-I to the 2010 Regulations), it is only on the 2010 Regulations being adopted by the State Government/University, and on the relevant Acts/Statutes being amended pursuant thereto, would the 2010 Regulations bind the State Universities thereafter.
c) Unlike Regulations 5.0.0 to 5.1.3 of the 2010 Regulations, which were adopted by the State Government by its proceedings dated 04.05.2011, Regulations 7.3.0(i) and (ii) of the 2010 Regulations have not been adopted till date.
d) Section 8(1) of the 2005 Act, which requires the Doon University to conform to the norms/regulations of the UGC as amended from time to time, is a legislation by reference.
e) Section 8(1) of the 2005 Act not only uses the word 'Regulation' but also the word 'norms'. It also uses the word 'from time to time'. The UGC, after having acted to frame the 2000 Regulations, is empowered to act again to make the 2010 Regulations independent of, or reversing altogether the previous 2000 Regulations.
f) The word 'amend' in Section 8(1) of the 2005 Act brings within its ambit the repeal of a law or its re-enactment/ abrogation or deletion of the earlier Regulations, as also Regulations made by the UGC in supersession of its earlier Regulations.
74g) Unlike other State Universities, the Doon University must, in view of Section 8(1) of the 2005 Act, strictly comply with the UGC Regulations made from time to time, including Regulation 7.3.0(i) &
(ii) of the 2010 Regulations, notwithstanding its not having been specifically adopted by the State Government.
h) Even otherwise, the 2010 Regulations have been held, by the Supreme Court in Kalyani Mathivanan11, to be directory in nature. Directory provisions necessitate substantial compliance. Actual compliance, of those factors which are considered essential, is necessary, and mere attempted compliance would not suffice.
i) By prescribing an identical eligibility criteria in the advertisement dated 17.10.2017, as is stipulated in Regulation 7.3.0(i) of the 2010 Regulations, the State Government has substantially complied with Regulation 7.3.0(i) of the 2010 Regulations. Consequently, it is only if the 9th respondent is held to have fulfilled the eligibility criteria, prescribed both in Regulation 7.3.0(i) of the 2010 Regulations and in the advertisement dated 17.10.2017, would judicial restraint be justified.
j) The 9th respondent worked as a Scientist/Senior Principal Scientist/Director in the CSIR-NBRI. Since the prescribed eligibility criteria is that the applicant should be a distinguished academician, with a minimum of ten years' experience as a Professor in a university system and as the CSIR-NBRI is not a teaching institution, the 9th respondent does not fulfil the aforesaid eligibility criteria for being considered for appointment as a Vice-Chancellor.
k) In the CV submitted by him to the State Government, pursuant to the advertisement dated 17.10.2017, the 9th respondent had styled himself as a Senior Principal Scientist/Professor, and as a Director/Outstanding Professor. The letter dated 31.01.2019 shows that no such dual designation was conferred by the CSIR-NBRI on the 9th respondent from 19.12.2013 onwards.
75l) Even in the certificate issued by the CSIR-NBRI, at the request of the 9th respondent on 09.04.2019, the posts which he held are shown as a Director/Senior Principal Scientist/Scientist. It is evident therefrom that he was not employed as a Professor, much less as an Outstanding Professor, by the CSIR-NBRI. The 9th respondent does not, therefore, fulfil the eligibility criteria, prescribed in Regulation 7.3.0(i) of the 2010 Regulations and the advertisement dated 17.10.2017, of having a minimum of ten years' experience as a Professor in a university system.
m) While Regulation 7.3.0(i) of the 2010 Regulations, and the advertisement issued on 17.10.2017, prescribe the minimum eligibility criteria to be considered for appointment as a Vice-Chancellor, Regulation 7.3.0(ii) of the 2010 Regulations and Section 11(3) of the 2005 Act prescribe the manner in which the suitability of the eligible candidates must be determined.
n) Regulation 7.3.0(ii) of the 2010 Regulations requires the Search Committee to give weightage to different criteria while assessing the suitability of the eligible candidates. Section 11(3) of the 2005 Act, on the other hand, requires suitability, of the eligible candidates, to be adjudged on the basis of merit.
o) It is only the suitability of eligible candidates (ie candidates who fulfil the eligibility criteria) which is required to be assessed by the Search Committee either by giving proper weightage in terms of Regulation 7.3.0(ii) of the 2010 Regulations, or on a comparative assessment of the inter-se merit of all eligible candidates under Section 11(3) of the 2005 Act.
p) The jurisdiction to assess the suitability of eligible candidates is not unfettered, and the Search Committee must undertake this exercise by a fair and transparent process. Provided it does so, this Court, in quo- warranto proceedings, would not sit in judgment over the decision of the Search Committee in determining the suitability of the eligible candidates.
76q) In quo-warranto proceedings, the Court is only required to examine whether the person, who holds the public office, has fulfilled the prescribed eligibility criteria to be appointed thereto.
r) Since Section 11(3) of the 2005 Act does not prescribe the eligibility criteria, and only stipulates the manner in which the suitability of eligible candidates should be determined, the advertisement dated 17.10.2017, (whereby the minimum eligibility criteria, to be eligible for appointment to the office of Vice-Chancellor is prescribed), cannot be said to run contrary to Section 11(3) of the 2005 Act.
s) Both Regulations 7.3.0(i) and the advertisement dated 17.10.2017 prescribe, (besides a minimum of ten years' experience as a Professor in a university system), ten years of experience in an equivalent position in a reputed research and / or academic administrative organization also. The Search Committee has held the 9th respondent only to have fulfilled the eligibility criteria of having ten years' experience as a Professor in a university system, and not as having ten years in an equivalent position.
t) The concise statement, prepared by the Search Committee of all the 69 applicants, shows that both teaching and administrative experience was considered with respect to several of the applicants. Some others were found to fulfil the eligibility criteria of having administrative experience alone, even though they did have not any teaching experience. Of the three shortlisted candidates, the Search Committee has held Prof. Ramesh Chandra as having fulfilled the eligibility criteria both in terms of teaching and administrative experience. However, both Professor Jitendra Pal Singh and the 9th respondent were held, by the Search Committee, to have fulfilled the eligibility criteria only because they had more than ten years' experience as a Professor, and not on the ground that they had any administrative experience.
u) It is neither for the petitioner nor for this Court to determine equivalence of the eligibility criteria. If the Search Committee had 77 held the 9th respondent to have fulfilled the eligibility criteria on the basis of equivalence, this Court would then have been required to refrain from interference.
v) As the Search Committee has not held the 9th respondent to have fulfilled the equivalent eligibility criteria, and has proceeded on the premise (albeit erroneous) that the 9th respondent had a minimum of ten years' experience as a Professor in a university system (which he did not), the petitioner cannot be held disentitled to seek a writ of quo- warranto questioning appointment, of the 9th respondent, as a Vice- Chancellor.
w) The Vice-Chancellor is an officer of the Doon University under Section 2(1)(y) read with Section 9(b) of, and his powers are delineated under, the 2005 Act. The office of the Vice-Chancellor is, therefore, a public office amenable to the quo-warranto jurisdiction of this Court.
x) As a writ of quo-warranto would lie against a person who is not eligible as per statutory provisions to be appointed to a public office, and since the 9th respondent does not fulfil the eligibility criteria, stipulated in Regulation 7.3.0(i) of the 2010 Regulations read with the advertisement dated 17.10.2017, a writ of quo-warranto can be issued in the present case.
y) As long as the Writ Petition is bonafide and in public interest, the person, who seeks a writ of quo-warranto, need not have any personal interest as he is in the nature of an informer, and need not be a person aggrieved.
z) A writ petition, for issuance of a writ of quo- warranto, would lie even at the instance of a busy body. Delay and laches do not also constitute an impediment in seeking such a writ.
aa) Superior Courts are not only empowered to issue a writ of quo- warranto, but are also entitled to issue a writ in the nature of quo- warranto or a writ of declaration.
78bb) The 9th respondent, by styling himself as a Professor/Outstanding Professor in the CV submitted by him pursuant to the advertisement dated 17.10.2017, has misled the Search Committee into believing that he fulfilled the prescribed eligibility criteria of being a distinguished academician having a minimum of ten years' experience as a Professor in a university system, though he did not. As his appointment is contrary to Regulation 7.3.0(i) of the 2010 Regulations read with the advertisement dated 17.10.2017, a writ of quo-warranto, or a writ in the nature of quo-warranto or declaration, can be issued.
cc) Except for a bald allegation that the Writ Petition has been filed with ulterior motives, the respondents have failed to discharge the burden of establishing such allegations. It would be inappropriate for this Court, therefore, to refuse to exercise its discretionary jurisdiction to issue a writ of quo-warranto on this ground.
dd) As the 9th respondent secured appointed to the office of a Vice- Chancellor by deceit, and by misleading the Search Committee, his selection and appointment as a Vice-Chancellor must be set-aside. A writ of quo-warranto is issued setting aside his appointment as, and declaring him disentitled from continuing to hold the office of, Vice- Chancellor.
ee) The question, whether or not the constitution of a Search Committee for short-listing and recommending candidates for appointment as a Vice-Chancellor accords with law, is left open for examination, if need be, in subsequent legal proceedings.
CONCLUSION :
137. As we are satisfied that the ninth respondent does not fulfill the eligibility criteria, prescribed under Regulation 7.3.0(1) of the 2010 Regulations and the advertisement dated 17.10.2017, of being a distinguished academician with a minimum of ten years' experience as a Professor in a University system, for being appointed as the Vice-Chancellor of Doon University, and is consequently not entitled to continue to hold the 79 said office, the order dated 29.01.2018, whereby the ninth respondent was appointed as the Vice-Chancellor of the Doon University, is set-aside.
138. The ninth respondent shall cease to hold the office of Vice-
Chancellor of the Doon University, and shall desist from exercising any of the powers conferred on the Vice-Chancellor, forthwith. Necessary action shall be immediately taken by respondents 1 to 3 to appoint a person, who fulfills the prescribed eligibility criteria, as the Vice-Chancellor of Doon University. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.)
03.12.2019 03.12.2019
Rahul