Gujarat High Court
Gambhirdan Kanubhai Gadhavi, Managing ... vs State Of Gujarat on 5 July, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/SCA/18922/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18922 of 2017
with
CIVIL APPLICATION NO. 1 of 2018
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GAMBHIRDAN KANUBHAI GADHAVI, MANAGING TRUSTEE
Versus
STATE OF GUJARAT
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Appearance:
Mr. I.H. SYED, with Mr. PRITHU PARIMAL(9025) for the PETITIONER.
Mr. KRUITK PARIKH, ASSISTANT GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1, 2 and 8.
MR MITUL K SHELAT(2419) for the RESPONDENT(s) No. 7
Mr. D.C. DAVE, SENIOR ADVOCATE with Mr. MR UDAYAN P VYAS(1302)
for the RESPONDENT(s) No. 3, 4 and 5.
RULE SERVED(64) for the RESPONDENT(s) No. 2,4,8
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 05/07/2018
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this petition under Article 226 of the Constitution of India the petitioner seeks the following substantive reliefs:
"9. Therefore petitioner prays as under:-
(a) That this Hon'ble Court may kindly be pleased to admit and allow this petition.
(b) That this Hon'ble Court may kindly be pleased to issue writ of quo warranto and/ or appropriate writ order or direction in the nature of writ of quo warranto and further be pleased to hold that appointment of sixth respondent is of ineligible/ disqualified candidate contrary to statutory provisions of S.P. University Act, 1955 and norms and regulations of UGC and hence bad Page 1 of 27 C/SCA/18922/2017 ORDER in law and therefore requires to be quashed and set aside and further to be pleased to quash and set aside the appointment of sixth respondent as V.C. of respondent university.
(c)That this Hon'ble Court may kindly be pleased to issue writ of prohibition and/ or appropriate writ order or direction in the nature of writ of prohibition restraining sixth respondent permanently to function as V.C. of respondent university."
2. The facts as averred in the petition are that the appointment of the Vice Chancellor of the third respondent Sardar Patel University (hereinafter referred to as 'the respondent university') is to be made in accordance with the provisions of section 10 of the Sardar Patel University Act, 1955 (hereinafter referred to as 'SPU Act'). Accordingly, a three-member committee is required to be appointed by the Chancellor for the purpose of recommending the names of three persons. Accordingly, the following three persons came to be appointed as the members of the committee:
(i) Prof. Yogesh Singh,
(ii) Dr. Mukul I. Shah, and
(iii) Dr. Sanjay Bhayani.
3. A meeting of the committee appointed under section 10(2)(a) of the SPU Act was held on 29th July 2016, wherein it was decided to invite curriculum vitae (C.V.) and the eligibility criteria for the candidates was prescribed. According to the petitioner, such eligibility criteria was prescribed in tune with the criteria prescribed under regulation 7.3.0 of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (hereinafter referred to as "the UGC Page 2 of 27 C/SCA/18922/2017 ORDER Regulations"). Thereafter, the respondent university published an advertisement dated 1.8.2016 inviting applications for the post of Vice Chancellor of the said university. Thereafter, the committee recommended the names of three candidates to the State Government along with which particulars given in the Statute 101(6) were also submitted. After considering the recommendations of the committee, the State Government issued a notification dated 31.8.2016 bearing No.GH/SH/46/SPY/122010/2626/ KH, appointing the sixth respondent Professor Dr. Shirish R. Kulkarni as Vice Chancellor of the respondent university.
4. It is the case of the petitioner that during the course of time he came to know that the sixth respondent though appointed as Vice Chancellor of the respondent university, did not possess the requisite experience of ten years as a professor for the purpose of being considered for appointment as Vice Chancellor. It appears that as the petitioner thereafter made several applications under the Right To Information Act, 2005 and came to know that the sixth respondent was promoted as Professor (C.A.S.) by an office order dated 1.12.2010, with effect from 8.3.2008 and therefore, the date on which he was considered and appointed as Vice Chancellor of the respondent-University, he did not possess experience of ten years as professor and was, therefore, not eligible to be considered and appointed as Vice Chancellor.
5. Being aggrieved by the appointment of the sixth respondent as Vice Chancellor, the petitioner has filed the present petition seeking a writ of quo warranto on the ground that the sixth respondent has no authority in law to occupy the Page 3 of 27 C/SCA/18922/2017 ORDER post of Vice Chancellor.
6. Mr. I.H. Syed, learned counsel for the petitioner submitted that the appointment of the sixth respondent as Vice Chancellor of the respondent university is not in accordance with law and hence, he has no authority to occupy the post that he is holding. Reference was made to the provisions of section 10 of the SPU Act, to submit that the same makes provision for the appointment and conditions of service of the Vice Chancellor. Under sub-section (2) thereof, the Chancellor is required to appoint a committee as prescribed there under, for which he is required to select three persons whom he thinks fit for being appointed as Vice Chancellor, however, section 10 of the SPU Act does not provide for the qualifications for being appointed as a Vice Chancellor. Adverting to the UGC Regulations, it was submitted that clause (i) of regulation 7.3.0 of the UGC Regulations, 2010 provides that:
"Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vice-Chancellors. The Vice-Chancellor to be appointed should be a distinguished academician, with a minimum of ten years of 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."
It was submitted that thus, the said regulation provides for the qualifications for being appointed to the post of Vice Chancellor. The attention of the court was invited to the Page 4 of 27 C/SCA/18922/2017 ORDER minutes of the meeting dated 29.7.2016 of the committee appointed under section 10(2)(a) of the SPU Act, to point out that the committee has set down the following criteria as regards the qualification, experience, etcetera, for appointment as Vice Chancellor:
"1. Persons of the highest level of competence, integrity, morals and institutional commitment.
2.Person should be a distinguished academician with proven leadership qualities shall be satisfying any one of the following :
10 years experience of teaching and research. As Professor or Vice Chancellor/ Pro Vice Chancellor of any University including former Vice Chancellor/ Pro Vice Chancellor. or Director/Principal of a college/ institution/Research Organization with 15 years of teaching/ research/ Administration."
It was submitted that the criteria laid down by the committee is arbitrary as the law does not provide for any criterion inasmuch as section 10 of the SPU Act does not provide any qualifications for being appointed to the post of Vice Chancellor. According to the learned counsel, the committee appointed under section 10(2)(b) of the SPU Act has no jurisdiction to provide for the eligibility criteria.
6.1 Referring to the office order dated 1.12.2010 issued by The Maharaja Sayajirao University of Baroda promoting the sixth respondent to the post of Professor, it was pointed out that it was only in the year 2010 that the sixth respondent was Page 5 of 27 C/SCA/18922/2017 ORDER appointed as professor, evidently, therefore, he did not have the requisite experience of ten years as a professor as laid down under regulation 7.3.0 of the UGC Regulations. Reference was made to the averments made by the sixth respondent in his affidavit-in-reply, to submit that the said respondent claims to have thirty years of teaching experience as lecturer, reader and professor, but has not clarified as to whether he has the requisite experience of ten years as a professor.
6.2 It was submitted that the moot question that arises for consideration in the present case is that if the State law does not provide for eligibility criteria for appointment as Vice Chancellor, whether the UGC Regulations would occupy the field. It was submitted that assuming for the sake of argument that the UGC Regulations are only directory and not mandatory, one has to consider the significance of a directory provision. The attention of the court was invited to the dictionary meaning of the words, 'directory' and 'mandatory', viz., directory means permissive and mandatory means imperative. It was pointed out that directory enactment means when a statute is passed for the purpose of enabling something to be done, and prescribes the way in which it is to be done, it may be either an absolute enactment or a directory enactment. The difference between the two is that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. It was contended that thus, even if the UGC Regulations are only directory, they are required to be fulfilled substantially. To fortify his submission, the learned counsel placed reliance upon the decision of the Punjab & Haryana Page 6 of 27 C/SCA/18922/2017 ORDER High Court in the case of Prof. M. Ramaswamy, Professor of Constitutional Law in the Faculty of Law v. Miss Manju Bakhru, A.I.R. 1963 Punjab & Haryana 419, for the proposition that some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice ensues; and when the legislature does not itself state which is which, judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, common sense lines. Reliance was also placed upon the decision of the Supreme Court in the case of Kalyani Mathivanan v. K.V. Jeyaraj, (2015) 6 SCC 363, wherein the court held thus, "62. In view of the discussion as made above, we hold:
62.1.To the extent the State Legislation is in conflict with Central Legislation including subordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative.
62.2. The UGC Regulations being passed by both the Houses of Parliament, though a subordinate legislation has binding effect on the Universities to which it applies. 62.3. UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central Universities and Colleges thereunder and the Institutions deemed to be Universities whose maintenance expenditure is met by the UGC.
62.4. UGC Regulations, 2010 is directory for the 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, UGC Regulations, 2010 is partly mandatory and is partly directory.Page 7 of 27 C/SCA/18922/2017 ORDER
62.5. UGC Regulations, 2010 having not adopted by the State Tamil Nadu, the question of conflict between State Legislation and Statutes framed under Central Legislation does not arise. Once it is adopted by the State Government, the State Legislation to be amended appropriately. In such case also there shall be no conflict between the State Legislation and the Central Legislation."
6.3 Reference was made to an unreported decision of the Kerala High Court in the case of Premkumar T.R. v. The Mahatma Gandhi University, rendered on 22.2.2018 in Writ Petition (C) No.34453 of 2017, wherein the court issued a writ of quo warranto declaring the respondent therein as unqualified to hold the public post of Vice Chancellor.
6.4 Reliance was also placed on an unreported decision of a Division Bench of this court in the case of Sandip Harshadray Munjyasara v. State of Gujarat, rendered on 12.6.2018 in Letters Patent Appeal No.453 of 2018, wherein the court had directed the respondents therein to appoint the required number of faculties as per the norms fixed by the UGC and to appoint qualified faculties as per the norms of the UGC Act and the regulations framed there under. It was submitted that therefore, the UGC Regulations have to be applied as the respondent university is a UGC University and the sixth respondent not being qualified in terms of regulation 7.3.0 of the UGC Regulations, cannot be permitted to hold the post of the Vice Chancellor.
6.5 It was further submitted that even if the eligibility criteria adopted by the Search/Selection Committee is accepted and taken at face value, the sixth respondent is not eligible to be appointed to the post of Vice Chancellor. It was submitted that Page 8 of 27 C/SCA/18922/2017 ORDER it is pertinent to note that the affidavit-in-reply of the sixth respondent does not shed any light on whether he is an in-
charge Director of the concerned Centre or whether he is a duly appointed full time Director of the said centre and for how long he has occupied the said position. The affidavit is also silent as regards the credentials of the said research centre. It was, accordingly, urged that the appointment of the sixth respondent being contrary to the UGC Regulations as well as the norms adopted by the Selection Committee, he has no authority in law to continue as Vice Chancellor of the respondent university and his appointment as such is required to be quashed and set aside.
7. Opposing the petition, Mr. D.C. Dave, Senior Advocate, learned counsel for the respondent university submitted that the issue involved in this case moves in a very narrow compass inasmuch as the controversy involved in this case is no longer res integra in view of the decision of the Supreme Court in the case of Kalyani Mathivanan v. K.V. Jeyaraj (supra). It was submitted that the petitioner seeks a writ of quo warranto on the ground that the appointment of the sixth respondent is in breach of the statutory provisions as embodied in the SPU Act and the UGC Regulations. According to the learned counsel, section 10 of the SPU Act does not prescribe any qualification for being appointed as Vice Chancellor and therefore, the only question that arises for consideration is whether the UGC Regulations would be applicable for appointment to the post of Vice Chancellor of the respondent University. Reference was made at length to the decision of the Supreme Court in Kalyani Mathivanan v. K.V. Jeyaraj (supra) to submit that the Supreme Court, in a Page 9 of 27 C/SCA/18922/2017 ORDER similar set of facts, had upheld the appointment of the appellant therein and had set aside the judgment and order of the High Court, whereby it had quashed the appointment of the appellant therein holding that the post of Vice Chancellor is a part of academia, viz., teaching staff and the UGC Regulations, 2010 will prevail over the State enactment, viz. the University Act and the Statutes framed there under in the event of conflict. The attention of the court was invited to the provisions of section 11 of the Madurai Kamraj University Act, 1965, as reproduced in the above decision to point out that the same is more or less in pari materia with section 10 of the SPU Act. It was submitted that the Supreme Court has held that the UGC Regulations, 2010 are not applicable to the 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 therein. It was submitted that the court has also agreed with the finding of the Bombay High Court in Suresh Patilkhede v. Chancellor, Universities of Maharashtra, (2012) 6 All M.R. 336, that regulation 7.3.0 of the UGC Regulations, 2010 has to be treated as recommendatory in nature insofar as it relates to the universities and colleges under the State Legislation. Emphasis was laid upon the following part of the decision in the case of Kalyani Mathivanan v. K.V. Jeyaraj (supra) :
"62.4 The UGC Regulations, 2010 are directory for the 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 is partly directory.Page 10 of 27 C/SCA/18922/2017 ORDER
62.5 The UGC Regulations, 2010 having not been adopted by the State of Tamil Nadu, 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 to be amended appropriately. In such case also there shall be no conflict between the State legislation and the Central legislation."
7.1 It was submitted that a writ of quo warranto lie only if there is a breach of a statutory provision whereas in the facts of the present case there is no breach of any statutory provision so as to call for issuance of a writ of quo warranto. In support of such submission the learned counsel placed reliance upon the decision of the Supreme Court in Hari Bansh Lal v. Sahodar Prasad Mahto, (2010) 9 SCC 655, wherein the court has held that a writ of quo warranto lies only when appointment is contrary to a statutory provision.
7.2 Next, it was submitted that insofar as the decision of this court in Sandip Harshadray (supra) is concerned, it does not lay down any proposition of law and if it is deemed to lay down any proposition of law as sought to be suggested by the learned counsel for the petitioner, such proposition is in conflict with the decision of the Supreme Court in Kalyani Mathivanan v. K.V. Jeyaraj (supra).
7.3 Reliance was placed upon the decision of this court in Parth Bipinchandra Patel v. Sardar Patel University, 2017 SCC Online Gujarat 355, wherein the court held thus:
"14. In the judgment in the case of Kalyani Kalyani Mathivanan vs. K.V.Jeyaraj and Others reported in (2015) 6 Supreme Court Cases 363, the Hon'ble Supreme Court, Page 11 of 27 C/SCA/18922/2017 ORDER while considering the binding nature of UGC Regulations of 2010, has held that UGC Regulations of 2010 are 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 UGC. In the very same judgment, it is held that UGC Regulations of 2010 are directory for universities, colleges and other higher educational institutions under the purview of State Legislation. In the said judgment, it is left to the State Government to adopt and implement the regulations. Thus, it is held that UGC Regulations of 2010 are partly mandatory and partly directory."
7.4 It was submitted that therefore, unless section 10 the SPU Act is amended appropriately, the UGC Regulations would not apply to the respondent-University. It was argued that it is an admitted position that section 10 of the SPU Act does not provide for any qualification and hence, the appointment of the sixth respondent not being contrary to any statutory provision, the question of issuing a writ of quo warranto would not arise.
8. In rejoinder, Mr. I.H. Syed, learned counsel for the petitioner submitted that the Division Bench decision in the case of Parth Bipinchandra Patel v. Sardar Patel University (supra) says that where a minimum qualification is prescribed under the State Statute and it is not appropriately amended, the case is different and that the case before the Division Bench was not one where there was conflict with the UGC Regulations. It was submitted that the committee had jurisdiction to select a panel of three persons, but had no jurisdiction to prescribe qualifications of the candidates. It was submitted that the qualifications as provided by the UGC though directory, should substantially be complied with and that the sixth respondent not being even substantially qualified Page 12 of 27 C/SCA/18922/2017 ORDER in terms of the UGC Regulations, has no authority in law to hold the post of Vice Chancellor, and hence, the petition deserves to be allowed by issuing a writ of quo warranto as prayed for.
9. The facts are not in dispute. The Chancellor of the University appointed a committee of three members as contemplated under section 10(2)(a) of the SPU Act. Section 10 of the SPU Act reads thus:
"10. (1) The Vice-Chancellor shall be appointed by the State Government from amongst three persons recommended under sub-section (3) by a committee appointed for the purpose under sub-section (2).
(2)(a) For the purposes of sub-section (1) the Chancellor shall appoint a committee which shall consist of the following members, namely:-
(i)two members (not being persons connected with the University or with any affiliated college or recognized institution) out of whom one shall be a person nominated, in the manner prescribed by Statutes, by the Syndicate and the Academic Council jointly and the other shall be a person nominated, in the manner prescribed by Statutes, by the Vice-Chancellors of all the Universities established by law in the State of Gujarat.
(ii)one member to be nominated by the Chancellor.
(b) The Chancellor shall appoint one of the three members of the Committee as its Chairman.
(3)The Committee so appointed shall, within such time and in such manner as may be prescribed by Statutes, select three persons whom it considers fit for being appointed Vice-Chancellor and shall recommend to the State Government the names of the persons so selected together with such other particulars as may be Page 13 of 27 C/SCA/18922/2017 ORDER prescribed by the Statutes.
(4)The Vice-Chancellor shall hold office for a term of three years and he shall be eligible for being appointed to that office for a further term of three years only.
(5)The emoluments to be paid to the Vice-Chancellor, and the terms and conditions subject to which he shall hold office, shall be determined by the State Government, provided that such emoluments or such terms and conditions shall not, during the currency of the term of the holder of that office, be varied to his disadvantage without his consent.
(6) (a) During the leave of absence of the Vice- Chancellor, or
(b) in the event of a permanent vacancy in the office of the Vice-Chancellor, until an appointment is made under subsection (1) to that office, the Pro- Vice-Chancellor, and the in absence of the Pro- Vice-Chancellor, one of the Deans nominated by the State Government for the purpose shall carry on the current duties of the office of the Vice-Chancellor."
10. On a plain reading of the provisions of section 10 of the SPU Act makes it manifest that the same does not prescribe any eligibility criteria for appointment to the post of Vice- Chancellor. It appears that the Committee in its meeting held on 29th July 2016 decided to keep in mind the following criteria with regard to qualification, experience, etc., for the purpose of inviting/obtaining CVs from eminent educationists, scholars and personalities from public life who have substantially contributed to the field of Higher/Technical Education. The criteria laid down by the Committee for appointment as Vice Chancellor read as under:
"1. Persons of the highest level of competence, Page 14 of 27 C/SCA/18922/2017 ORDER integrity, morals and institutional commitment.
2.Person should be a distinguished academician with proven leadership qualities shall be satisfying any one of the following :
- 10 years experience of teaching and research. As Professor. Or
- Vice Chancellor/Pro Vice Chancellor of any University including former Vice Chancellor/ Pro Vice Chancellor. Or
- Director/Principal of a college/ institution/ Research Organization with 15 years of teaching/research/ Administration."
11. Thus, it appears that since the Statute does not provide for any eligibility criteria, the Committee formulated certain norms which were to be kept in mind for the purpose of selecting a panel of three names for appointment to the post of Vice Chancellor.
12. Thereafter, the Committee recommended the name of the sixth respondent along with two other candidates to the State Government, which appointed the sixth respondent vide order dated 31.8.2016.
13. The central question that arises for consideration in this case is whether the UGC Regulations are applicable for appointment to the office of Vice Chancellor of the respondent university. Regulation 7.3.0 of the UGC Regulations reads thus:
"7.3.0. VICE CHANCELLOR:
"i. Persons of the highest level of competence, integrity, morals and institutional commitment are to be Page 15 of 27 C/SCA/18922/2017 ORDER appointed as Vice-Chancellors. The Vice-Chancellor to be appointed should be a distinguished academician, with a minimum of ten years of 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."
ii.The selection of 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 above 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 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. 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.
c)a nominee of the Syndicate/ Executive Council/ Board of Management of the University.
iii The Visitor/ Chancellor shall appoint the Vice- Chancellor out of the Panel of names recommended by the Search Committee.
iv The conditions of service of the Vice-Chancellor shall be prescribed in the Statutes of the Universities concerned in conformity with these regulations.
v.The term of office of the Vice-Chancellor shall form part of the service period of the incumbent concerned making him/ her eligible for all service related benefits."
14. If the UGC Regulations apply to the respondent Page 16 of 27 C/SCA/18922/2017 ORDER university, in that case, for the purpose of being eligible to be appointed as Vice-Chancellor, a person would be required to satisfy the requirements of the regulations. However, insofar as the applicability of UGC Regulations is concerned, the issue is no longer res integra inasmuch as the same stands concluded by the decision of the Supreme Court in the case of Kalyani Mathivanan v. K.V. Jeyaraj (supra), the relevant paragraphs whereof is extracted hereunder:
"2. The aforesaid writ petitions were preferred by K.V. Jeyaraj and I. Ismail respondents/writ petitioners praying for issuance of a writ of quo warranto directing the appellant - Dr. Kalyani Mathivanan to show cause under what authority she continues to hold the office of the Vice- Chancellor, Madurai Kamaraj University.
3.By the impugned judgment the High Court held that the appellant-Dr. Kalyani Mathivanan did not satisfy the eligibility criteria stipulated by the UGC Regulations of Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010 (hereinafter referred to as the 'UGC Regulations, 2010') for appointment as Vice-Chancellor and non- fulfillment of such eligibility criteria cannot be completely white washed on the specious plea that the University Grants Commission Regulations, 2010 are not mandatory. The High Court set aside the order of appointment of the appellant-Dr. Kalyani Mathivanan and allowed the writ petitions.
5.Challenging the selection of the appellant-Dr. Kalyani Mathivanan, two separate writ petitions were preferred by Dr. K.V. Jeyaraj, and Dr. I. Ismail, who were aspirants to the said post, respondents herein. The said challenge was mainly on the ground that as per UGC Regulations, 2010, the person to be appointed as Vice-Chancellor, should be a distinguished academician, with a minimum of 10 years' experience as Professor in a University system or 10 years' of experience in an equivalent position in a reputed research/academic organization and Page 17 of 27 C/SCA/18922/2017 ORDER Dr. Kalyani Mathivanan does not satisfy the said criteria. The High Court took up both the writ petitions together for disposal and by the judgment and order allowed the writ petitions and set aside the appointment order of appellant-Dr. Kalyani Mathivanan as Vice-Chancellor.
7.On behalf of the appellant-Dr. Kalyani Mathivanan, it was further contended that she is qualified for appointment as Vice-Chancellor of the University as per the Madurai Kamaraj University Act, 1965 (hereinafter referred to as the 'University Act, 1965'). It was further contended that the UGC Regulations, 2010 are not mandatory but directory and cannot override the provisions of the University Act, 1965.
14.The High Court held that the post of Vice-Chancellor is a part of academia i.e. teaching staff and the UGC Regulations, 2010 will prevail over the State enactment i.e. University Act and the Statutes framed thereunder in the event of a conflict.
56. We have noticed and held that UGC Regulations, 2010 are not applicable to the Universities, Colleges and other higher educational institutions coming under the purview of the State Legislature unless State Government wish to adopt and implement the Scheme subject to the terms and conditions therein. In this connection, one may refer para 8(p)(v) of Appendix-I dated 31.12.2008 and Regulation 7.4.0 of UGC Regulations, 2010.
57. It is also not the case of the respondents that the Scheme as contained in Appendix-I to the Annexure of UGC Regulations, 2010 has been adopted and implemented by the State Government. It is also apparent from the facts that University Act has not been amended in terms of UGC Regulations, 2010 nor was any action taken by the UGC under Section 14 of UGC Act, 1956 as a consequence of failure of the University to comply with the recommendations of the Commission under Section 14 of the UGC Act, 1956.
61.We do not agree with the finding of the Bombay High Page 18 of 27 C/SCA/18922/2017 ORDER Court that Regulation 7.3.0 of the UGC Regulations, 2010 is not traceable to clause (e) or (g) of Section 26(1) of UGC Act, 1956. We also refuse to agree that Regulation 7.3.0 of the UGC Regulations, 2010 being a sub-ordinate legislation under the Act of Parliament cannot override the preliminary (sic. Primary) legislation enacted by the State Legislature. However, the finding of the Bombay High Court that Regulation 7.3.0 has to be treated as recommendatory in nature is upheld insofar as it relates to Universities and Colleges under the State Legislation.
62.In view of the discussion as made above, we hold:
62.1To the extent the State Legislation is in conflict with Central Legislation including sub-ordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative.
62.2The UGC Regulations being passed by both the Houses of Parliament, though a sub-ordinate legislation has binding effect on the Universities to which it applies.
62.3The UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central Universities and Colleges thereunder and the Institutions deemed to be Universities whose maintenance expenditure is met by the UGC.
62.4The UGC Regulations, 2010 are directory for the 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, UGC Regulations, 2010 is partly mandatory and is partly directory.
62.5The UGC Regulations, 2010 having not adopted by the State of Tamil Nadu, the question of conflict between State Legislation and Statutes framed under the Central Legislation does not arise. Once they are adopted by the State Government, the State Legislation to be amended Page 19 of 27 C/SCA/18922/2017 ORDER appropriately. In such case also there shall be no conflict between the State Legislation and the Central Legislation.
63. In view of the reasons and finding as recorded above, we uphold the appointment of Dr. Kalyani Mathivanan as Vice-Chancellor, Madurai Kamaraj University as made by the G.O.(1D)No.80, Higher Education (H2)Department, Government of Tamil Nadu dated 9.4.2012 and set aside the impugned common judgment and order dated 26.6.2014 passed by the Division Bench of the Madras High Court, Madurai Bench in K.V. Jeyraj v. Chancellor of Universities, 2014 SCC Online Mad. 2701 : (2014) 4 CTC 257. The appeals are allowed but in the facts and circumstances of the case, there shall be no order as to costs."
15. Like the case before the Supreme Court, in the facts of the present case also, the challenge to the appointment of the sixth respondent as Vice Chancellor of the respondent university is mainly on the ground that as per the UGC Regulations, 2010 the person to be appointed as Vice Chancellor, should be 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/ academic organization whereas the sixth respondent Dr. Shirish Ramchandra Kulkarni does not satisfy the said eligibility criteria.
16. The question that, therefore, arises for consideration as to whether for the purpose of being appointed to the post of Vice Chancellor of the respondent university, such person has to satisfy the requirements of regulation 7.3.0 of the UGC Regulations.
17. At this juncture, reference may be made to the provisions Page 20 of 27 C/SCA/18922/2017 ORDER of section 11 of the Madurai Kamraj University Act, 1965 as reproduced in the decision of Kalyani Mathivanan v. K.V. Jeyaraj (supra):
"Section 11.The Vice-Chancellor - (1) Every appointment of the Vice- Chancellor shall be made by the Chancellor from out of a panel of three names recommended by the Committee referred to in sub-section (2).Such panel shall not contain the name of any member of the said Committee.
Provided that if the Chancellor does not approve any of the persons in the panel so recommended by the Committee, he may take steps to constitute another Committee, in accordance with sub-section (2), to give a fresh panel of three different names and shall appoint one of the persons named in the fresh panel as the Vice- Chancellor.
(2)For the purpose of sub-section (1), the Committee shall consist of three persons of whom one shall be nominated by the Senate, one shall be nominated by the Syndicate and one shall be nominated by the Chancellor.
Provided that the person so nominated shall not be a member of any of the authorities of the University.
(3)The Vice-Chancellor shall hold office for a period of three years and shall be eligible for re-appointment for not more than two successive terms.
(4)When any temporary vacancy occurs in the office of the Vice-Chancellor or if the Vice-Chancellor is, by reason of absence or for any other reason, unable to exercise the powers and perform the duties of his office, the Syndicate shall, as soon as possible, make the requisite arrangements for exercising the powers and performing the duties of the Vice-Chancellor.
(5) The Vice-Chancellor shall be a whole-time officer of the University and shall be entitled to such emoluments, allowances and privileges as may be prescribed by the statutes."
18. The question that arose before the Supreme Court in the Page 21 of 27 C/SCA/18922/2017 ORDER above decision was whether the UGC Regulations, 2010 are mandatory or directory and whether they override the provisions of the Madurai Kamraj University Act, 1965. The High Court had held that the post of Vice Chancellor is a part of academia, viz. teaching staff and the UGC Regulations, 2010 will prevail over the State enactment, viz., the University Act and the Statutes framed there under in the event of a conflict. The Supreme Court had held that the UGC Regulations, 2010 are not applicable to the 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 therein. The court referred to paragraph 8(p)(v) of Appendix-I dated 31.12.2008 and regulation 7.4.0 of the UGC Regulations, 2010 and observed that it is also not the case of the respondents that the Scheme as contained in Appendix-I to the Annexure of the UGC Regulations, 2010 has been adopted and implemented by the State Government; and it is also apparent from the fact that the University Act has not been amended in terms of the UGC Regulations, 2010, nor was any action taken by the UGC under section 14 of the UGC Act, 1956 as a consequence of failure of the University to comply with the recommendations of the Commission under section 14 of the UGC Act, 1956. The Supreme Court agreed with the High Court to the extent it has held that regulation 7.3.0 of the UGC Regulations, 2010 has to be treated as recommendatory in nature insofar as it relates to the universities and colleges under the State legislation and further held that the UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central universities and colleges there under and the institutions deemed to be universities, whose Page 22 of 27 C/SCA/18922/2017 ORDER maintenance expenditure is met by the UGC. It, however, has held that the UGC Regulations, 2010 are directory for the 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 are partly directory. It was further held that the UGC Regulations, 2010 having not been adopted by the State of Tamil Nadu, 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 to be amended appropriately. In such case also there shall be no conflict between the State legislation and the Central legislation.
19. Reverting to the facts of the present case, it is an admitted position that the State of Gujarat has not adopted the UGC Regulations, 2010 and consequently, the State legislation has not been amended in consonance with the UGC Regulations, 2010, and, therefore, in the light of the above decision of the Supreme Court there is no conflict between the State legislation and the Central legislation.
20. The learned counsel for the petitioner has made an attempt to persuade the court to take a view that the Supreme Court in the above decision has held that the UGC Regulations are partly mandatory and are partly directory even in case of a State legislation. In this regard it may be apposite to refer to the decision of a Division Bench of this court in Parth Bipinchandra Patel v. Sardar Patel University (supra), wherein the court with reference to the decision of the Page 23 of 27 C/SCA/18922/2017 ORDER Supreme Court in the case of Kalyani Mathivanan v. K.V. Jeyaraj (supra) has held that: "The Supreme Court while considering the binding nature of the UGC Regulations, 2010, has held that the UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central universities and colleges there under and the institutions deemed to be universities, whose maintenance expenditure is met by the UGC. In the very same judgment it is held that the UGC Regulations are directory for the Universities, Colleges and other higher educational institutions under the purview of the State Legislation. In the said judgment it is left to the State Government to adopt and implement the Scheme. Thus, it is held that the UGC Regulations, 2010 are partly mandatory and are partly directory. It is evident that the Supreme Court has held that the UGC Regulations, 2010 are mandatory insofar as Central universities, colleges, etc. and are directory insofar as those universities and other colleges which are under the purview of the State Legislation".
21. In the facts of the present case also the State of Gujarat has not adopted the UGC Regulations, 2010 and hence, the question of any conflict between the State legislation and the Statutes framed under the Central legislation does not arise. Once they are adopted the State legislation is required to be amended appropriately. The UGC Regulations are therefore, required to be treated as being only recommendatory in nature. That being so, while it would be advisable for the concerned authorities to follow the UGC Regulations, it is not incumbent upon them to do so and not following the UGC Regulations would not invalidate the action taken under section 10 of the SPU Act. The UGC Regulations not being Page 24 of 27 C/SCA/18922/2017 ORDER mandatory in nature, non compliance thereof for the purpose of appointment to the post of Vice Chancellor, would not be visited with any consequence. Breach of the regulations, therefore, would not amount to breach of any statutory provision so as to warrant issuance of a writ of quo warranto inasmuch as the UGC Regulations do not apply in the State of Gujarat.
22. Another aspect of the matter is that section 10 of the SPU Act is more or less in pari materia with the Madurai Kamraj University Act insofar as appointment of Vice Chancellor is concerned. What is notable is that neither of the provisions provide for any qualifications for the post of Vice Chancellor. Since section 10 of the SPU Act does not provide for any qualifications, it cannot be said that the course of action adopted by the committee of prescribing certain norms to be kept in mind while selecting a candidate for the post of Vice Chancellor is in any manner contrary to the statute. In fact, the approach adopted by the committee of keeping certain criteria with regard to qualification, experience, etc. in mind while making recommendations appears to be quite reasonable.
23. It has been contended on behalf of the petitioner that the sixth respondent does not even meet with the criteria laid down by the search committee. In this regard it is settled legal position that a writ of quo warranto can be issued only when the appointment is contrary to a statutory provision; whereas, the criteria adopted by the committee are not the statutory provisions. Moreover, the committee had only decided to keep such criteria in mind while making its recommendations. Thus, even if the sixth respondent does not meet with the criteria Page 25 of 27 C/SCA/18922/2017 ORDER adopted by the committee, it would still not amount to a breach of any statutory provision, warranting issuance of a writ of quo warranto. Under the circumstances, the relief prayed for in the petition does not deserve to be granted.
24. Even while upholding the appointment of the sixth respondent to the post of the Vice Chancellor of the respondent university, this court cannot shut its eyes to the fact that section 10 of the SPU Act does not provide for any qualification whatsoever for appointment to the post of Vice Chancellor, which would leave room for a lot of arbitrariness in the matter of selection of persons for appointment as Vice Chancellor. The UGC Regulations provide for certain qualifications. However, the same are not binding unless the State legislation is appropriately amended. The UGC, by a communication dated 11th August 2014, addressed to His Excellency the Governor of Gujarat, has requested him to use his good offices to ensure that all the appointments of Vice Chancellors in the State are made in accordance with the provisions laid down in the UGC Regulations, which provide for minimum qualifications for the appointment of Vice Chancellor with reference to regulation 7.3.0 of the UGC Regulations, 2010. Pursuant thereto, the Principal Secretary to His Excellency the Governor of Gujarat addressed a communication dated 30th August 2014 to the Principal Secretary, Government of Gujarat, requesting him to note the said important communication and take necessary steps at the Government level. However, it appears that such communication has been ignored and no steps have been taken pursuant thereto. It is, therefore, high time that the State of Gujarat adopts the UGC Regulations and amends the Page 26 of 27 C/SCA/18922/2017 ORDER State legislation appropriately so that no room is left for any manipulation, arbitrariness, nepotism and favouritism.
25. In the light of the above discussion, the petition fails and is, accordingly, dismissed. Notice is discharged with no order as to costs.
26. Since the main matter itself is disposed of, the civil application for fixing an early date of hearing does not survive and is disposed of accordingly.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) karim Page 27 of 27