Madhya Pradesh High Court
Dr. Shankar Lal Garg vs Vikram University, Ujjjain on 18 July, 2019
Author: Virender Singh
Bench: Virender Singh
Writ Appeal No.631/2019
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HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Division Bench : HON'BLE MR. JUSTICE S. C. SHARMA AND
HON'BLE MR. JUSTICE VIRENDER SINGH
Writ Appeal No.631/2019
Dr. Shankar Lal Garg
Vs.
Kuladhipati, Vikram University and Others
Shri A. M. Mathur, learned Senior Counsel with
Shri Vaibhav Asawa, learned counsel for the
petitioner.
Shri Purushaindra Kaurav, learned Senior
Counsel with Shri Shrey Raj Saxena and Shri
Koustubh Pathak, learned counsel for the
respondent No.1.
Shri R. S. Chhabra, learned Additional Advocate
General with Shri Ambar Pare, learned
Government Advocate for the respondent No.2 /
State.
Shri Vivek Sharan, learned counsel for the
respondent No.4.
Shri Akash Sharma, learned counsel for the
respondent No.5.
O R D E R
(Delivered on this 18th day of July, 2019) Per : S. C. Sharma, J.
The appellant before this Court has filed present writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by order dated 03/04/2019 passed by learned Single Judge in Writ Petition No.6735/2019 (Dr. Shankar Lal Garg Vs. Kuladhipati, Vikram University and Others). Writ Appeal No.631/2019 -2- 02- The appellant before this Court, who is a retired Principal, has approached the High Court under Article 226 of the Constitution of India seeking a writ of quo warranto. A prayer was made for quashment of appointment of respondent No.4, who has been appointed as Vice-Chancellor, Vikram University by the Chancellor (Kuladhipati), Vikram University, Ujjain. The learned Single Judge has dismissed the writ petition, against which the present writ appeal has been filed.
03- It has been stated by the appellant that the petitioner has attained the age of superannuation on 31/12/2015. It has been further stated that he is a highly qualified academician. The appellant has further stated the respondent No.2 State of Madhya Pradesh in exercise of power conferred under Section 52(1) of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 (hereinafter referred as "the Adhiniyam of 1973") has forwarded the name of the petitioner for appointment as Vice-Chancellor of respondent No.5, Vikram University, Ujjain.
04- It has been further stated that the State Government has issued an order on 15/02/2019 under Section 52(1) of the Adhiniyam of 1973 in respect of Vikram University, Ujjain and by virtue of the aforesaid statutory provision, a Vice-Chancellor has to be appointed keeping in view Section 13 and 14 read with Schedule-III of the Adhiniyam of 1973.
Writ Appeal No.631/2019-3- 05- The petitioner has further stated that the State Government on 15/02/2019 proposed a panel of three persons including the petitioner to respondent No.1 Chancellor for appointment of one of them as Kulpati of Vikram University, Ujjain and name of the petitioner was at serial No.01. The petitioner has further stated that Chancellor in utter violation of Section 13 and 14 of the Schedule-III of the Adhiniyam of 1973, rejected the names proposed by the State Government and forwarded a panel of four names to the State Government for consultation. 06- The appellant has further stated that the Law Department has given an opinion in the matter that the Vice- Chancellor can only be appointed from the panel of candidates recommended by the State Government and in utter violation of Section 13 and 14 of the Schedule-III of the Adhiniyam of 1973, the Chancellor has appointed respondent No.4 as Vice-Chancellor of Vikram University, Ujjain by an order dated 13/03/2019. The appellant has further contended that the order appointing respondent No.4 as Vice-Chancellor is illegal as the State Government was not consulted by the Chancellor. 07- It has also been contended that the order dated 13/03/2019 has not been passed in consonance with Section 52(3) of the Adhiniyam as the Chancellor cannot appoint a Vice- Chancellor for indefinite period. The petitioner's contention is that Writ Appeal No.631/2019 -4- order appointing respondent No.4 as Vice-Chancellor is illegal, contrary to law and deserves to be set aside.
08- It has been stated that the writ Court has failed to consider that the order 13/03/2019 has been passed by the Chancellor in colourable exercise of powers. It has also been stated that writ Court has failed to consider that the order dated 13/03/2019 passed by the Chancellor is violative of Section 52 of the Adhiniyam of 1973. Other grounds have also been raised in the matter and the most important ground which has been raised by the petitioner is that there was no process of consultation and the Chancellor has appointed the Vice-Chancellor without their being any consent of the State Government. A prayer has been made for quashment of the order dated 13/03/2019 passed by the Chancellor appointing respondent No.4 as Vice-Chancellor as well as the order passed by the learned Single Judge dated 03/04/2019 by which the writ petition has been dismissed. 09- A reply has been filed by the State Government as well as by the Chancellor. In the reply filed by the Chancellor, it has been stated that one Shri S. S. Pandey was serving as a Vice- Chancellor of Vikram University, Ujjain and his tenure was up to 29/05/2019. A writ petition was preferred i.e. Writ Petition No.10518/2018 alleging various irregularities committed by the then Vice-Chancellor and this Court by an order dated 03/07/2018 Writ Appeal No.631/2019 -5- has directed the State Government as well as Kuladhipati to consider the grievance and representation made by the petitioner therein and to pass a reasoned order.
10- It has been further stated that a Committee was constituted by the Government of Madhya Pradesh, Higher Education Department to inquire into the allegations made by Shri Bharat Kumar Sharma, the petitioner in Writ Petition No.10518/2018 and the Committee submitted its report on 09/01/2019. The report was received in the Office of Chancellor on 22/01/2019 and a show cause was issued to the earlier Vice- Chancellor Shri S. S. Pandey under Section 14 of the Adhiniyam of 1973.
11- Shri S. S. Pandey submitted his reply on 05/02/2019 and it has been stated that before any action could be taken by the Chancellor under Section 14(3) of the Adhiniyam of 1973, Shri S. S. Pandey resigned from the post of Vice-Chancellor vide resignation dated 07/02/2019 and the same was accepted by the Chancellor on the same day.
12- It has been further stated that the Office of the Vice- Chancellor fell vacant on account of resignation of Shri S. S. Pandey and Dr. Bal Krishna Sharma - respondent No.4 in the writ appeal being a Senior Professor was appointed as Vice- Chancellor of the University in exercise of power conferred under Writ Appeal No.631/2019 -6- Section 14(6) of the Adhiniyam of 1973.
13- It has been further contended that there was no situation for imposing Section 52 of the Adhiniyam of 1973, however, the State Government vide notification dated 15/02/2019 without any material justification imposed Section 52 of the Adhiniyam of 1973 and submitted a panel of three names for appointment of Vice-Chancellor under Section 52(3) of the Adhiniyam of 1973. It has been further stated that the Chancellor being a supreme authority to appoint Vice-Chancellor in consultation with the State Government, after considering the names submitted by the State Government, did not find any person to be suitable for appointment as Vice-Chancellor and thereafter, the Chancellor sent a panel of four persons to the State Government so that one of them can be appointed as Vice- Chancellor.
14- The State Government also took the advice of the Law Department and Law Department advised the State Government that the State Government may also consider the names sent by the Chancellor for appointment as Vice-Chancellor. It has been that the State Government insisted to appoint one person as Vice- Chancellor from the panel submitted by it to the Chancellor. 15- It has been further stated that the Chancellor, because the names mentioned in the panel submitted by the State Writ Appeal No.631/2019 -7- Government were earlier rejected by the Chancellor and the State Government did not considered the names sent by the Chancellor appointed Dr. Bal Krishna Sharma as Vice-Chancellor keeping in view Section 52(3) read with Schedule-III, Clause (1) of the Adhiniyam of 1973 vide order dated 13/03/2019. It has been further stated that appointment of respondent No.4 as Vice- Chancellor was strictly in consonance with the statutory provisions as contained under the Adhiniyam of 1973. It has been further stated that the writ petition has already been dismissed by the learned Single Judge.
16- The respondent No.1 has placed reliance upon the judgments delivered in the case The University of Mysore Vs. C.D. Govinda Rao and Another reported in AIR 1965 SC 491, High Court of Gujarat and Another Vs. Gujarat Kishan Mazdoor Panchayat and Others reported in (2002) 6 SCC 269, Centre for PIL and Another Vs. Union of India and Another reported in (2011) 4 SCC 1 and Central Electricity Supply Utility of Odisha Vs. Dhobei Sahoo and Others reported in AIR 2014 SC 246.
17- The respondent No.1 has further stated that appointment to the post of Vice-Chancellor does not suffer from any illegality / irregularity and the order passed by the learned Single Judge does not warrant any interference. A prayer has been Writ Appeal No.631/2019 -8- made for dismissal of the writ appeal.
18- The State Government has also filed a reply and the respondent No.2 / State has stated that as per Section 52 of the Adhiniyam of 1973 a consultation with State Government is necessary for appointment of Vice-Chancellor as per Section 52(1), Schedule-III of the Adhiniyam of 1973. The respondent / State has further stated that after the appointment of respondent No.4 as a Vice-Chancellor a legal opinion was obtained from the Law Department of the State of Madhya Pradesh and on 15/03/2019 a legal opinion has been given by the Law Department stating that the appointment of respondent No.4 as Vice- Chancellor has been made without consultation of the State Government and therefore, it is illegal.
19- It has been further stated that Law Department has infact given an opinion that appointment can be challenged by filing a writ petition under Article 226 of the Constitution of India. It has been further stated by the State Government that the Law Department has informed the State Government about the judgment delivered in the case of Dr. Ram Tawakya Vs. State of Bihar and Others reported in 2013 (16) SCC 206 and the contention of the State Government is that Chancellor be directed to make appointment of Vice-Chancellor after effective and meaningful consultation with the State Government. Writ Appeal No.631/2019 -9- 20- The respondent / State has further stated that no consultation took place with the State Government for appointment of Vice-Chancellor under the provisions of Section 52 of the Adhiniyam of 1973. It has been further stated that consultation would mean concurrence with the opinion of the State Government and there was no concurrence in respect of the name of respondent No.4 by the State Government. The respondent / State has further stated that vide note sheet dated 15/02/2019, the State Government has forwarded three names for selection of Vice- Chancellor and the same was not considered by the Chancellor. The learned Additional Advocate General appearing for the respondent / State has vehemently argued before this Court that the Chancellor cannot appoint a Vice-Chancellor on the basis of list prepared by the Chancellor and a Vice-Chancellor has to be appointed on the basis of the list submitted by the State Government.
21- Heard learned counsel for the parties at length and perused the record. Though the present appeal is an intra Court appeal, however, the order was passed by the learned Single Judge in absence of reply filed by the State of Madhya Pradesh as well as by the Chancellor and before this Court, the Chancellor as well as State Government have filed their reply, original record has been produced before this Court and therefore, with the consent of Writ Appeal No.631/2019
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the parties, the matter was heard finally by this Court on merits. 22- The issue involved in the present case relates to appointment of Vice-Chancellor after imposition of Section 52 of the Adhiniyam of 1973. The State Government wants a person to be appointed as a Vice-Chancellor only on the basis of list of names submitted by the State Government to the Chancellor and the Chancellor has appointed a Vice-Chancellor on the basis of list prepared by the the Chancellor, which was duly forwarded to the State Government for consultation.
23- Undisputed facts reveal that one Shri S. S. Pandey, who was serving as Vice-Chancellor was served with a show cause notice on account of certain irregularities and he did file a reply to the Chancellor on 05/02/2019. Before any action could be taken on the basis of the show cause notice issued by the Kuladhipati under Section 14(3) of the Adhiniyam of 1973, Shri S. S. Pandey resigned vide resignation dated 07/02/2019. Section 14(3), 14(4) and 14(6) of the Adhiniyam of 1973 reads as under:-
"14(3) - If at any time upon representation made or otherwise and after making such enquiries as may be deemed necessary, it appears to the Kuladhipati that the Kulpati :
(i) has made default in performing any duty imposed on him by or under this Act; or
(ii) has acted in a manner prejudicial to the interests of the University; or
(iii) is incapable of managing the affairs of the University the Kuladhipati may, notwithstanding the fact that the terms of office of the Kulapati has not expired, by an order in writing stating the reasons therein, require the Kulapati to relinquish Writ Appeal No.631/2019
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his office as from such date as may be specified in the order.
14(4) - No order under sub-section (3) shall be passed unless the particulars of the grounds on which such action is propose to be taken communicated to the Kulpati and he is given a reasonable opportunity of showing cause against the proposed order.
14(6) - In the event of the occurrence of any vacancy including a temporary vacancy in the office of the Kulpati by reason of his death, resignation, leave, illness or otherwise, the rector and if no rector has been appointed or if the rector is not available, the Dean of any faculty or the Senior most Professor of University teaching department nominated by the Kuladhipati for that purpose shall act as the Kulpati until the date on which the Kulpati appointed under sub-section (1) or sub-section (7) of Section 13 enters or re-enters as. the case may be upon his office:
Provided that the arrangement contemplated in this sub section shall not continue for a period of more than six months."
In light of the aforesaid statutory provision of law and in light of the resignation submitted by Shri S. S. Pandey, Dr. Bal Krishna Sharma, respondent No.4 was appointed as Vice-
Chancellor of the University keeping in view the statutory provisions as contained under Section 14(6) of the Adhiniyam.
It is pertinent to note that apart from the resignation of Shri S.S.Pandey from the post of Vice-Chancellor, there was no other material placed before the Chancellor or before this Court to establish that administration of the University cannot be carried out in accordance with the provisions of the Adhiniyam of 1973 without detriments to the interests of University, however, the State Government vide notification dated 15/02/2019 imposed Section 52 of the Adhiniyam. Section 52 of the Adhiniyam of 1973 reads as Writ Appeal No.631/2019
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under:-
"52. Powers of State Government to Apply Act in modified form with a View to provide better administration of University in certain circumstances.-(1) If the State Government on receipt of a report or otherwise, satisfied that a situation has arisen in which the administration of the University cannot be carried out in accordance with the provisions of the Act, without detriment to the interests of the University and it is expedient in the interest of the University so to do, it may by notification, for reasons to be mentioned therein, direct that the provisions of section 13, 14, 20 to 25, 40, 47, 48, 54 and 68 shall, as from the date specified in the notification (hereinafter in this section referred to as the appointed date), apply to the University subject to modifications specified in the Third Schedule.
(2) The notification issued under sub-section (1) (hereinafter referred to as the notification) shall remain in operation for a period of one year from the appointed date and the State Government may, from time to time, extend the period by such further period as it may think fit so however that the total period of operation of the notification does not exceed three years.
(3) The Kuladhipati shall simultaneously with the issue of the notification appoint the Kulpati under section 13 and 14 as modified and the Kulpati so appointed shall hold office during the period of operation of the notification:
Provided that the Kulpati may, notwithstanding the expiration of the period of operation of the notification, continue to hold office thereafter until his successor enters upon office but this period shall not exceed one year.
(4) As from the appointed date, the following consequences shall ensue, namely;
(i) during the period of operation of the notification this Act shall effect subject to the modification specified in the Third Schedule;
(ii) the Kulpati, holding office immediately before the appointed date, shall notwithstanding that his term of office has not expired, vacate his office;
(iii) every person holding office as a member of the Court, the Executive or the Academic Council, as the case may be, immediately before the appointed date shall cease to hold that office;
(iv) the student representatives of the University on the student consultative committee under clause
(i) of sub-section (i) of section 54 immediately before the appointed date shall cease to be members of the said committee;Writ Appeal No.631/2019
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(v) until the Court, Executive Council or Academic Council, as the case may be, is reconstituted in accordance with the provisions as modified, the Kulpati appointed under section 13 and 14 as modified shall exercise the powers and perform the duties conferred or imposed by or under this Act, on the Court, the Executive Council or Academic Council :
Provided that the Kuladhipati may, if he considers it necessary so to do, appoint a committee consisting of an educationist, an administrative expert and a financial expert to assist the Kulpati so appointed in exercise of such powers and performance of such duties (5) Before the expiration of the period of operation of the notification or immediately as early as practicable thereafter, the Kulpati shall take steps to constitute the Court, Executive Council and Academic Council in accordance with the provisions of the Act, as unmodified and the Court, Executive Council and Academic Council as so constituted shall begin to function on the date immediately following the date of expiry if the period of operation of the notification of the date on which the respective bodies are so constituted whichever is later:
Provided that if the Court, Executive Council and Academic Council are not constituted before the expiration of the period of operation of the notification, the Kulpati shall on such expiration, exercise the powers of each of these authorities subject to prior approval of the Kuladhipati till the Court Executive Council or Academic Council or as the case may be, is so constituted."
In light of the aforesaid statutory provision of law, as Section 52 was invoked by the State Government, the Vice-
Chancellor was required to be appointed by the Chancellor. The Higher Education Department forwarded three names for appointment of Vice-Chancellor namely, Dr. S. L. Garg, Dr. Mordhwaj Singh Parihar and Dr. Kamlesh Mishra.
24- After imposition of Section 52, for appointment of Vice-
Chancellor, Section 52(3) and the Schedule-III of the Adhiniyam of 1973 comes into play. Section 52(3) and the Schedule-III of the Writ Appeal No.631/2019
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Adhiniyam of 1973 reads as under:-
"52(3).-The Kuladhipati shall simultaneously with the issue of the notification appoint the Kulpati under section 13 and 14 as modified and the Kulpati so appointed shall hold office during the period of operation of the notification:
Provided that the Kulpati may, notwithstanding the expiration of the period of operation of the notification, continue to hold office thereafter until his successor enters upon office but this period shall not exceed one year.
The III Schedule of the Act provides that - "14. The Kulpati.- Kulpati shall be appointed by the Kuladhipati in consultation with the State Government and may be removed by the Kuladhipati in the like manner."
The aforesaid statutory provision of law makes it very clear that it is the Chancellor (Kuladhipati), who has to appoint the Vice- Chancellor in consultation with the State Government. The aforesaid statutory provision of law does not say that it is the State Government, who has to appoint a Vice-Chancellor (Kulpati) in consultation with the Chancellor.
25- The State Government initiated a proposal by forwarding three names and the Chancellor did consider all the three names, however, did not find anyone suitable for appointment as Vice-Chancellor and thereafter, forwarded a panel of four persons to the State Government so that one of them can be appointed as a Vice-Chancellor. It is needless to mention that one of the person in the panel prepared by the Chancellor (Kuladhipati) was the senior most Professor of the University Teaching Department and who was appointed as Vice-Chancellor after resignation of Shri S. S. Pandey in exercise of powers Writ Appeal No.631/2019
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conferred under Section 14(6) of the Adhiniyam of 1973. 26- The original record produced before this Court contains the note sheets of the Law Department, Higher Education Department as well as Office of the Chancellor. It is certainly true that three names were forwarded by the State Government to the Chancellor and an opinion was given by the Law Department stating categorically that the Vice-Chancellor has to be appointed after the Chancellor gives consent in respect of the names proposed by the State Government.
27- It is really unfortunate that Law Department has given such an opinion. The Chancellor is certainly not under an obligation to give consent to the names forwarded by the State Government. The Chancellor can certainly form an opinion that no one is suitable for appointment as Vice-Chancellor from the list submitted by the State Government.
28- The Law Department gave its opinion on 25/02/2019 and the State Government again submitted a list of three names on 07/03/2019, whereas the Chancellor has forwarded four names to the State Government for appointment as Vice-Chancellor. There was a process of consultation between the State Government and the Chancellor. The statute does not say that opinion of the State Government shall be binding upon the Chancellor nor the statute provides that the consent of the State Writ Appeal No.631/2019
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Government is mandatory. The only word used is "consultation" and the statute provides that Kulpati shall be appointed by the Kuladhipati in consultation with the State Government. 29- The present case is not a case of appointment of a regular Vice-Chancellor. In case of appointment of a regular Vice- Chancellor, a Selection Committee / Search Committee is constituted and the Committee submits three names to the Chancellor and out of which, one is appointed as a Vice- Chancellor. In the aforesaid process, the Chancellor has to appoint one person from the names suggested by the Committee, whereas in a situation like the present case, the Chancellor has to consult the State Government and the Consultation has certainly been done by the Chancellor.
30- The Chancellor has forwarded a panel of four names to the State Government and in the note sheet there is no whisper in respect of four names forwarded by the Chancellor as to why they should not be appointed as Vice-Chancellor. In fact a most fair and transparent procedure has been adopted by the Chancellor by appointing the senior most Professor, who is also one of the person in the list forwarded by the Chancellor to the State Government for appointment as the Vice-Chancellor. Its a stop-gap arrangement only. A regular Vice-Chancellor is yet to be appointed. The Chancellor was therefore, justified in issuing Writ Appeal No.631/2019
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appointment order dated 13/03/2019 appointing respondent No.4 Dr. Bal Krishna Sharma, the Senior Most Professor and Director of Scindia Oriental Research Institute, Vikram University, Ujjain. 31- This Court in the case of Narendra Kumar Gouraha Vs. State of M. P. and Others reported in 2000(1) MPLJ 192 has held that the University is a seat learning and an independent academic body, has to be kept insulated from from unhealthy political influences. Paragraph No.31 of the aforesaid judgment reads as under:-
"31. Facts and material which are relevant for taking action under Section 10 or 14 of the Act cannot be utilised obliquely to obviate or by-pass observance of formalities contained therein by resorting to extraordinary emergency power under Section 52 of the Act. Exercise of such emergency power at the instance of the State Government is a serious inroad on the independence of the University and has in fact been counter-productive in demoralising the various officers and functionaries of the University. Permitting misuse of extraordinary power under Section 52 of the Act in the manner as has been done in this case would defeat the purpose for which such power has been conferred and would thus harm the cause of education and public interest. It would deter competent academicians from accepting assignments and posts in the University and thus seriously harm the cause of higher education."
This Court has also observed that there should be minimal interference in the functioning of the University by the State Government and it is desirable in public interest to protect the autonomy of the University as envisaged by the provisions of the Adhiniyam of 1973.
32- The State Government has placed heavy reliance upon a judgment delivered by the apex Court in the case of Ram Writ Appeal No.631/2019
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Tawakya Singh Vs. State of Bihar and Others reported in (2013) 16 SCC 206. This Court has carefully gone through the aforesaid judgment. In the aforesaid case, it is certainly true that the Hon'ble Supreme Court has held that Chancellor can make appointment after effective and meaningful consultation with the State Government.
33- The facts of the aforesaid case reveal that the Chancellor at the relevant point of time had been consistently flouting the mandate of law and make appointment of Vice- Chancellors and Pro Vice-Chancellors without effectively consulting the State Government and was completely disregarding the requirement of academic experience.
34- The list which was forwarded to the State Government for appointment of persons as Vice-Chancellors and Pro Vice- Chancellors was not having any indication of their academic excellence or eminence in the field of education and the letter by which list was sent was conspicuously silent about the particular University in which the particular person was proposed to be appointed as Vice-Chancellor or Pro Vice-Chancellor, meaning thereby, the Chancellor therein was appointing Vice-Chancellors as per his own sweet will and even the Chancellor has brushed aside the factum of pendency of a criminal case against one person mentioned in the list and in those circumstances, it was Writ Appeal No.631/2019
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held that the consultation with the State Government should be effective and meaningful.
35- In the present case, there is no whisper on the part of the State Government in respect of any person, who is included in the list forwarded by the Chancellor. There is no negative report by the State Government to hold any person, who is in the list forwarded by the Chancellor, cannot be appointed as a Vice- Chancellor. On the contrary, the list includes the senior most Professor of the University and one of the, has been appointed as a Vice-Chancellor by way of stop-gap arrangement on account of imposition of Section 52 of the Adhiniyam of 1973. The judgment delivered by the Hon'ble Supreme Court in the case of Ram Tawakya Singh (Supra) was altogether in a different context and therefore, the judgment relied upon is distinguishable on facts. 36- In the present case, there has been a consultation, the Chancellor did forward the names to the State Government and finally appointed the most deserving candidate as a Vice- Chancellor. Hence, the question of interference by this Court does not arise.
37- Learned counsel for the State Government has placed heavy reliance upon a judgment delivered by the apex Court in the case of State of Gujarat and Another Vs. Gujarat Revenue Tribunal Bar Association and Another reported in (2012) 10 Writ Appeal No.631/2019
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SCC 353 and the paragraph No.34 of the aforesaid judgment reads as under:-
"34. The object of consultation is to render the consultation meaningful to serve the intended purpose. It requires the meeting of minds between the parties involved in the process of consultation on the basis of material facts and points to evolve a correct or at least satisfactory solution. If the power can be exercises only after consultation, consultation must e conscious, effective, meaningful and purposeful. It means that the party must disclose all the facts to other party for due deliberation. The consultee must express his opinion after full consideration of the matter upon the relevant facts and quintessence."
In the present case, there has been a consultation between the Chancellor and the State Government, however, consultation does not mean consent of the State Government. It was open for the State Government to point out deficiency, if any, in respect of the list submitted by the Chancellor, however, the State Government was harping upon the appointment of person only from the list submitted by the State Government. 38- Supremacy of the Chancellor in the matter of appointment of Vice-Chancellor in an education institution cannot be brushed aside. The University is certainly a seat of learning and an independent academic body and the Chancellor is holding the top most position in respect of the University keeping in view the statutory provisions as contained under the Adhiniyam of 1973 and therefore, as there was a consultation, the judgment delivered in the case of Gujarat Revenue Tribunal (Supra) is again of no assistance to the State Government.
Writ Appeal No.631/2019
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39- Shri A. M. Mathur, learned Senior Counsel has placed reliance upon a judgment delivered in the case of Chandramouleshwar Prasad Vs. The Patna High Court and Others reported in AIR 1970 SC 370. He has placed heavy reliance upon paragraph No.7 of the aforesaid judgment. It was a case relating to appointment of District Judges and the Hon'ble High Court has held that appointment of a person to be District Judge rests with the Governor but he cannot make appointment on his own initiative and must to do so in consultation with the High Court. In the aforesaid case, it has been held that High Court is the body, which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges and in that backdrop the judgment has been delivered.
40- It appears that the petitioner and respondent / State are under a belief that the order appointing respondent No.4 as the Vice-Chancellor has been passed by Governor of the State. It is true that the head of the State is Governor and under Article 154, the executive power of the State is vested in the Governor. He can exercise these powers "either directly or through officers subordinate to him in accordance with the Constitution". Any action taken in exercise of executive power of the State is taken by the State Government in the name of the Governor and, under Article 166(2) of the Constitution of India, all orders made in the name of Writ Appeal No.631/2019
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the Governor are authenticated in accordance with the rules made for the purpose. Rules of business are are made in the State under Article 166(3) of the Constitution of India.
In the present case, no such situation is attracted. The Chancellor is supreme authority under the Adhiniyam of 1973 and the supremacy of Chancellor so far affairs of University is concern, cannot be ruled out. The Chancellor did consult the State Government by forwarding the names. The State Government has not given any negative opinion in respect of the names forwarded by the Chancellor and the Chancellor has thereafter, appointed the senior most Professor by way of stop-gap arrangement as a Vice- Chancellor.
41- The word "Consult" as defined under the Oxford Dictionary is to "seek information or advice from someone". The word "Consultation" as defined under Oxford Dictionary means "action or process of formally consulting or discussing". The Chancellor did consult the State Government by forwarding a list and thereafter, the Chancellor has appointed the Vice-Chancellor and therefore, in the considered opinion of this Court, the order appointing respondent No.4 as a Vice-Chancellor does not warrant any interference.
42- In light of the aforesaid as a Vice-Chancellor has to be appointed by Chancellor (Kuladhipati) in consultation with the Writ Appeal No.631/2019
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State Government and as consultation has taken place, the question of interference with the appointment of respondent No.4 does not arise. The writ appeal deserves to be dismissed, however, in respect of the issue i.e. whether the writ petition praying for issuance of a writ of quo warranto is maintainable or not, the learned Single Judge has held that writ of quo warranto cannot be issued in the facts and circumstances of the case. 43- The learned Single Judge has placed reliance upon the judgments delivered in the case of The University of Mysore Vs. C.D. Govinda Rao and another reported in AIR 1965 SC 491, High Court of Gujarat and another Vs. Gujarat Kishan Mazdoor Panchayat and others reported in (2002) 6 SCC 269, Centre for PIL and another Vs. Union of India and another reported in (2011) 4 SCC 1, Central Electricity Supply Utility of Odisha Vs. Dhobei Sahoo and others reported in AIR 2014 SC 246 and Bharati Reddy Vs. State of Karnataka and others reported in (2018) 6 SCC 162.
44- In the present case, this Court is also required to decide whether a writ petition for issuance of writ of quo warranto is maintainable or not. The terms quo warranto means "what is your authority". Quo warranto enables any person to be ousted from any office in which he is not entitled to act. The necessary ingredients for the issue of quo warranto are:- Writ Appeal No.631/2019
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(a) the office in question must be public office;
(b) the office has been created by law; and
(c) the person is not legally qualified to hold the said
office.
The writ petition challenging the appointment of a Vice-
Chancellor is certainly maintainable in case it is alleged that person has been appointed in violation of law. The jurisdiction of High Court to issue a writ of quo warranto is limited one, which can only be issued when appointment is contrary to the statutory rules. Its a settled law that a writ of quo warranto does not lie if the alleged violation is not of statutory nature. A writ of quo warranto can not be issued unless there is a violation of law. 45- The apex Court in the case of Mor Modern Coop. Transport Society Ltd. Vs. Financial Commissioner and Secretary to Government of Haryana reported in (2002) 6 SCC 269 in a case where the High Court has refuse to exercise its writ jurisdiction in the matter of appointment of Transport Commissioner as the Chairman of Transport Authority has held that the High Court should have considered the challenge to the appointment of the officials on the ground of breach of statutory provisions.
46- In the present case, the petitioner is alleging breach of statutory provisions. Whether statutory provisions have been breached or not has to be looked into after hearing the parties at length and therefore, in the considered opinion of this Court, the Writ Appeal No.631/2019
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writ petition for issuance of writ of quo warranto was certainly maintainable and the order passed by the learned Single Judge only to the extent it has been held that writ of quo warranto is not maintainable, is set aside. However, the order appointing the respondent No.4 as Vice-Chancellor is upheld. 47- In the considered opinion of this Court, a writ petition for issuance of writ of quo warranto was certainly maintainable in light of the aforesaid judgment and therefore, the order passed by the learned Single Judge is set aside only to the extent it has been held that a writ of quo warranto is not maintainable, however, the order of appointment of respondent No.4 as a Vice-Chancellor is upheld. With the aforesaid, writ appeal stands disposed off.
Certified copy as per rules.
(S. C. SHARMA) (VIRENDER SINGH)
JUDGE JUDGE
Tej
Digitally signed by
Tej Prakash Vyas
Date: 2019.07.18
15:28:30 +05'30'