Kerala High Court
Professor(Dr.)Sreejith P.S vs Dr.Rajasree M.S on 12 February, 2021
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942
WP(C).No.33004 OF 2019(A)
PETITIONER/S:
PROFESSOR(DR.)SREEJITH P.S
'ASHTAPATHY', KANIYANKUNNU, EAST KADUNGALLOOR,
U.C.COLLEGE.P.O., ALUVA-683102, KERALA.
BY ADV. SRI.SHYAM KRISHNAN
RESPONDENT/S:
1 DR.RAJASREE M.S.,
TC.20/1679(1), MITHILA, SASTRI NAGAR, KARAMANA.P.O.,
THIRUVANANTHAPURAM, KERALA - 695002.
NOW WORKING AS VICE-CHANCELLOR OF APJ ABDUL KALAM
TECHNOLOGICAL UNIVERSITY, CET CAMPUS,
THIRUVANANTHAPURAM-695016.
2 THE CHANCELLOR,
APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, KERALA RAJ
BHAVAN, THIRUVANANTHAPURAM-695001.
3 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
CET CAMPUS, THIRUVANANTHAPURAM-695016, REPRESENTED BY
ITS REGISTRAR.
4 GOVERNMENT OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
5 THE UNIVERSITY GRANTS COMMISSION,
REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR
MARG, NEW DELHI-110002.
R1 BY ADV. SRI.O.V.RADHAKRISHNAN (SR.)
R1 BY ADV. SMT.K.RADHAMANI AMMA
R1 BY ADV. SRI.P.KRISHNANKUTTY NAIR (KOLLAMALA)
R2 BY ADV. SRI.K.JAJU BABU (SR.)
R2 BY SMT.M.U.VIJAYALAKSHMI, COUNSEL FOR THE
CHANCELLOR OF UNIVERSITIES IN KERALA
R3 BY ADV. SRI.ELVIN PETER, SC, APJ ABDUL KALAM
TECHNOLOGICAL UNIVERSITY
R4 BY GOVERNMENT PLEADER
R4 BY SRI.K.K.RAVINDRANATH, ADDL.ADVOCATE GENERAL
R4 BY SRI.P.G.PRAMOD, GOVERNMENT PLEADER
R5 BY SRI.S.KRISHNAMOORTHY, CGC
OTHER PRESENT:
GP SRI B HARISH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02-02-2021, THE COURT ON 12-02-2021 DELIVERED THE FOLLOWING:
WP(C).No.33004 OF 2019(A)
2
JUDGMENT
Dated this the 12th day of February 2021 The petitioner through the instant writ petition has invoked the writ jurisdiction seeking issuance of writ of quo warranto by declaring the appointment of first respondent to the post of Vice Chancellor of APJ Abdul Kalam Technological University as void ab initio; writ of mandamus to publish fresh notification for selection of Vice Chancellor and to declare the provision of age bar of 61 years in Section 13(5) of the APJ Abdul Kalam Technological University Act (hereinafter called '2015 Act) for appointing the Vice-Chancellor, would not apply to the petitioner.
2. Before this Court could deal with the facts and the pleas raised, would keep in mind that the jurisdiction of High Court to issue quo warranto is limited and can be only issued, when a person holding a public office lacks eligibility or if appointment is contrary to statutory rules WP(C).No.33004 OF 2019(A) 3 and the public office is held by an usurper without any legal authority. A person seeking such action is to satisfy the Court that the office in question was a public office and held by an usurper. Keeping in view the jurisdictional parameters of the writ court, the facts of the present case in narrow compass are as under:
3. Higher Education Department, Government of Kerala vide notification dated 30.7.2018, Ext.P1 invited application from eligible candidates for selection of Vice- Chancellor in the 3rd respondent University. The notification clearly mentioned that Sub Sections (5) and (6) of Section 13 of the APJ Abdul Kalam Technological University Act 2015 (hereinafter called the University Act) were to be followed.
4. The University Grants Commission caused Regulations 2010 by exercising the powers under Section 26 (e) of the University Grants Commission Act, 1956, which lays down the qualifications and process of selection of Vice Chancellor by giving the nomenclature as "Minimum Qualifications For Appointment of Teachers WP(C).No.33004 OF 2019(A) 4 And Other Academic Staff In Universities And Colleges And Other Measures For The Maintenance Of Standards In Higher Education". Clause 7.3.0 (i) of Regulation 2010, Ext.P2 lays down the qualifications for Vice Chancellor, whereas 7.3.0 (ii) the procedure of selection and clause 7.3.0 (iii) appointment of Vice Chancellor from panel of names recommended by the Selection Committee.
5. Government of Kerala vide order dated 10.12.2010, adopted and implemented UGC Regulations 2010 with effect from 18.9.2010 as evidenced from Ext.P4. Two notifications were issued by the 4 th respondent/Government for selection of the Vice chancellor. As per the first notification Ext.P1, there were four short listed candidates, including the petitioner and the first respondent, they were invited for a 'conversation' with the Search Committee on 11.9.2018 as evidenced from Times of India report, Ext.P5. But the petitioner received the information that the 'conversation' was postponed.
WP(C).No.33004 OF 2019(A) 5
6. The second notification was issued in December 2018, Ext.P6, the qualifications and experience required for the post remained same as given in the first notification, Ext.P1. But the petitioner did not receive any communication inviting him for a 'conversation' as was done in past and came to know that the 2 nd respondent/ Chancellor on 19.2.2019 vide Ext.P7 appointed the 1st respondent Dr.Rajasree M.S, as Vice- Chancellor of the 3rd respondent University. In order to ascertain information with regard to the appointment of the first respondent, whether it was fair, legal and transparent an application under RTI was submitted which was replied vide communication dated 7.11.2019 from the office of the 2nd respondent wherein it was directed to submit fees for copies of the documents sought under RTI pertained to Search Committee's recommendations and credentials of the candidates. The 2nd respondent divulged relevant information by furnishing copies of the minutes of the Search Committee along with the individual and separate recommendation of WP(C).No.33004 OF 2019(A) 6 members, vide Ext.P16.
7. Learned counsel appearing on behalf of the petitioner submitted that on perusal of the aforementioned information, it was revealed that 22 (twenty two) candidates out of 26 (twenty six) applicants were found eligible. The Committee shortlisted 5 (five) candidates. However the Search Committee for the reasons best known left out the petitioner; the other three members included and suggested only one name. In this background, the appointment of the first respondent has been challenged by taking the following pleas:
a. Clause 7.3.0 (ii) of Ext.P2 Regulation, provides that the members of the Search Committee shall be person of eminence in the sphere of higher education and shall not be connected in any manner with University concerned or its colleges. The aforementioned provision was manifestly violated on nomination of the Chief Secretary of the State as a member and Convenor of the committee by the Chancellor. The Chief Secretary by no stretch of imagination can be a person of eminence in the WP(C).No.33004 OF 2019(A) 7 sphere of higher education as he has a deep and pervasive control over the administrative and financial matters of the University concerned and cannot be said to be a person 'not connected in any manner' with the 3 rd University. It is settled law that the participation of the persons without the legal authority vitiates the deliberation of the statutory provision and the decision would be rendered void ab initio.
b. The plea of the University that the Regulation 2010 were amended in 2013 whereby the Search Committee 'could' as per University Act 2015 be permitted to include Chief Secretary as a member, is wholly unsustainable. While deciding the composition of Search committee, Government could have resorted to Ext.P3 University Act 2015, only if it contained provisions which would enhance or increase the standards prescribed by the 2010 Regulations. In fact the inclusion of Chief Secretary clearly encroached upon the field occupied by Entry 66 of the Union List and thus would be a breach of the parameters of Article 254 of the WP(C).No.33004 OF 2019(A) 8 Constitution of India, resulting in repugnancy and illegality. In support of the aforementioned contention, various judgments were cited and of latest Visveswariah Technological University and Another v. Krishnendu Halder and others [(2011) 4 SCC 606]. It was submitted that by that time, UGC had already come out with Regulation 2018, with effect from 18.7.2018.
c. The mandate of Ext.P2 UGC Regulations, 2010 provides that while preparing the panel, Search committee, 'must' furnish Chancellor 'in writing' full particulars of merits of candidates. Ext.P14 reveals that out of 26 applicants, 22 were found to be 'eligible' and only 5 were shortlisted and invited for a 'conversation'.
Search Committee could not have resorted to the provisions of Section 13(4) of the University Act, by recommending a single candidate against the clear and unambiguous Central legislation/Regulations 2010 amounting to change of Rules of game after the game had started, which was not permissible in law.
d. Second Respondent/Chancellor was prevented from WP(C).No.33004 OF 2019(A) 9 an opportunity, of proceeding, the most suitable candidates as Search Committee confined the recommendation only of a single person and the decision reveals undue haste and resulting into issuance of appointment letter in favour of the respondent No.1.
8. It is settled law that the manner of doing a particular Act, if prescribed under statute/ act must be done in that manner. Thus the deviation from the Rules and consequent violations cannot rule out applicability of malice. By summing up the aforementioned arguments, learned counsel for the petitioner cited the judgment of the Hon'ble Supreme Court in Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and others (2014 (1) SCC 161 and the Division Bench judgment of this Court in Premkumar T.R v. Mahatma Gandhi University and Others (2018 (2) KHC 21, K.V Jeyaraj and another v. The Chancellor of Universities, Raj Bhavan, Gunidy, Chennai and others [2014(3) LLN 458], APJ Abdul Kalam Technological University and Another v. Jai Bharath WP(C).No.33004 OF 2019(A) 10 College of Management and Engineering Technology and Others (Civil Appeal No.4016 of 2020) on the point of repugnancy between UGC regulations 2010, University Act and violation of Article 254 of the Constitution of India. Emphasis was laid to paragraphs 32 to 45 and 41 to 60 of the decision in APJ Abdul Kalam Technological University (supra).
9. On the contrary, learned counsel for the University laid reliance to provisions of Section 13 of 2015 Act, particularly sub Section 2 thereof prescribing the appointment of Vice-chancellor by Chancellor on the recommendation of the Government from among the panel of names recommended by a Search Committee consisting of three members.
i. one member elected by the Board of Governors. ii. one member nominated by the AICTE. iii. the Chief Secretary of the State, who shall be the convenor of the Committee.
10. The attention of this Court was also drawn to the provisions of sub Section 4 of Section 13 of 2015 Act, WP(C).No.33004 OF 2019(A) 11 where the Search Committee was empowered to recommend unanimously a panel of not less than three suitable persons from amongst the eminent persons in the field of engineering sciences. The names shall be in English alphabetical order. The report shall also be accompanied by a detailed write-up on the suitability of each person included in the panel; with a saving clause that in case the committee fails to make a unanimous recommendation as provided, each member of the committee could submit the name of one person each to the Chancellor. The non submission of the name by any member of the Committee shall not invalidate the appointment of the Vice-Chancellor. The age prescribed for consideration of appointment of the Vice-chancellor was not more than 61 years and conditions of his appointment to hold office was for a period of four years from the date on which he enters upon his office or till attainment of the age of sixty five years, whichever was earlier. The invocation of the aforementioned provisions was derived from the provisions of 2013 Regulations as WP(C).No.33004 OF 2019(A) 12 per Clause 7.3.0 (iii) whereby Search Committee for the purpose of appointment of Vice Chancellor was empowered to follow the procedure as per the 'Act/Statue' of the concerned University.
11. The notification in the aforementioned case was caused on 30.7.2018 which envisaged that the selection of Vice-Chancellor was to be made in accordance with the UGC Regulations and provisions contained in the 2015 Act and not only 2010 Regulations. The constitution of the Search Committee for selection of the Vice Chancellor of the University was made as per the 2015 Act. The Search Committee could not unanimously recommend a panel of not less than 3 (three) suitable persons from amongst the eminent persons in the field of engineering sciences, then each member of the Committee was empowered to submit name of one person each to the Chancellor. It was not mandatory that the selection of Vice-Chancellor of the University was to be made only from among the panel. But in case the committee failed to make a unanimous recommendation, each member was WP(C).No.33004 OF 2019(A) 13 entitled to send name of one person each to the Chancellor. Thus the argument of the learned counsel for the petitioner that there was no panel, was liable to be rejected. Though University Grants Commission, Regulations 2013 were withheld from the notice of this Court, the entire pleadings has been brought on record by counter affidavit, Ext.R3(a).
12. It was next contended that judgment of the Division Bench of the Madras High Court in K.V Jeyaraj and another (supra) was taken up in Supreme Court and vide judgment in Kalyani Mathivanan v. K.V Jeyaraj and Others [(2015) 6 SCC 363], the same has been set aside by holding UGC Regulations 2010 to be directory for the Universities, Colleges and other higher educational institutions under the purview of State legislature as the matter has been left to the State Government to adopt and implement the scheme. Thus, the UGC Regulations, 2010 are partly mandatory or partly directory. University was established by virtue of Act of 2015 and the provisions of Section 13 were incorporated WP(C).No.33004 OF 2019(A) 14 by keeping in view the Regulations 2013 and thus would not have any erroneous effect in respect of the selection of the Vice Chancellor nor there was any illegality in constitution of Search Committee.
13. The notification Ext.P1 was in consonance with the provisions of clause 7.3.0 of 2013 Regulations and not 2010. Had there been a deviation in publishing the provisions of the Act / Statute, the UGC had full power to take stringent action as per the provisions of Section 14 of the University Grants Commission Act. In the absence of the same, the selection cannot be said to be vitiated or void abinitio in law. By concluding the argument, prayer was made for dismissing the writ petition with exemplary costs.
14. I have heard the learned counsel for the parties and appraised the paper book. In view of the submissions in this writ petition, the points to be answered would be:
1. Constitution of committee
2. Whether UGC Regulations 2010 or 2013 would be applicable or;
WP(C).No.33004 OF 2019(A) 15
3. The provisions of Section 13 of 2015 Act. For answering the aforementioned points, it would be appropriate to extract relevant notifications Exts.P1 and P6, UGC Regulations 7.3.0 of 2010, Ext.P2, UGC Regulations 2013, Ext.R3(a) and Sections 12 and 13 of A.P.J Abdul Kalam Technological University Act, 2015.
A. NOTIFICATION, Ext.P1 DATED 30.7.2018 Applications are invited by the Search Committee from eligible candidates for the selection of Vice Chancellor in All Abdul Kalam Technological University. Thiruvananthapuram. Qualification and experience are as prescribed in the Clause 7.3.0 (i)(ii) of UGC notification dated 30/06/2010, and Clause (5),(6) Section 13 of APJ Abdul Kalam Technological University Act. Preference: will be given to candidates having Ph.D. Clause 7.3.0. (i) and (ii) of UGC Notification dated 30/6 2010 reads as follows:
i. 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 ii. The selection of Vice - Chancellor should be through proper identification of a Panel of 3-5 names by 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 WP(C).No.33004 OF 2019(A) 16 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 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 Vice 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.
Clause (5), (6) of Section 13 of the APJ Abdul Kalam Technological University Act reads as follows:
5) No person who is more than sixty one years of age shall be appointed as Vice-Chancellor and after the appointment, he shall, subject to the terms and conditions of his appointment, hold office for a period of four years from the date on which he enters upon his office or till he attains the age of sixty five years, whichever is earlier.
6) The person appointed as Vice-Chancellor will be eligible for re appointment provided he has not attained the maximum age mentioned in sub-section (5) Signed applications in hard copy with bio data, proof of experience, qualification, vision statement ete in the prescribed proforma should reach the Principal Secretary to Government, Higher Education Department Government Secretariat (Annex II), Thiruvananthapuram- 695 001 on or before 5 pm on 29/08/2018:For more details visit www.kerala.gov.in www.highereducation kerala.gov.in w ww.ktu.edu.in.
WP(C).No.33004 OF 2019(A) 17 B. SECOND NOTIFICATION, Ext.P6 DATED 21.12.2018 Applications are invited by the Search Committee from eligible candidates for the selection of Vice Chancellor in APJ Abdul Kalam Technological University, Thiruvananthapuram. Qualification and experience are as prescribed in the Clause 7.3.0 (i),(ii) of UGC notification dated 30/06/2010, and Clause (5),(6) Section 13 of APJ Abdul Kalam Technological University Act. Preference will be given to candidates having Ph.D. Clause 7.3.0. (i) and (ii) of UGC Notification dated 30/06/2010 reads as follows:
i. 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 ii. The selection of Vice Chancellor should be through proper identification of s Panel of 3-5 names by a Search Committee through a Public Notification of 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 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 WP(C).No.33004 OF 2019(A) 18
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 Clause (5),(6) of Section 13 of the APJ Abdul Kalam Technological University Act reads as follows:
5)No person who is more than sixty one years old age shall be appointed as Vice-Chancellor and after the appointment, he shall. subject to the terms and conditions of his appointment, hold office for a period of four years from the date on which he enters upon his office or till he attains the age of sixty five years, whichever is earlier
6. The person appointed as Vice-Chancellor will be eligible for re appointment provided he has not attained the maximum age Signed applications in hard copy and soft copy with bio data, proof of experience and qualification, vision statement etc in the prescribed proforma should reach the Principal Secretary to Government, Higher Education Department, Government Secretariat (Annex Thiruvananthapuram-695 001 The soft copy should be sent by mail to [email protected]. The last date for receipt of application is 21/01/2019, For more details visit www.
highereducation kerala.gov.in/ www.kerala gov.in. C. CLAUSE 7.3.0 OF UNIVERSITY GRANTS COMMISSION REGULATIONS, 2010, EXT.P2 7.3.0. VICE-CHANCELLOR:
(i) Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vice-Chancellors. The Vice-Chancellor WP(C).No.33004 OF 2019(A) 19 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.
WP(C).No.33004 OF 2019(A) 20
4. CLAUSE 7.3.0 OF UNIVERSITY GRANTS COMMISSION (2 nd AMENDMENT) REGULATIONS, 2013, EXT.R3(a) 7.3.0 VICE CHANCELLOR:
i. Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vies-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 pubic 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 corrected 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. The constitution of the Search Committee could be as per the Act/ Statutes of the concerned 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 services of the Vice Chancellor shall be as prescribed in the Act Statutes of the university consented in conformity with the Principal 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."
5. SECTION 12 AND 13 OF A.P.J ABDUL KALAM TECHNOLOGICAL UNIVERSITY ACT, 2015 WP(C).No.33004 OF 2019(A) 21
12. Officers of the University - The following shall be the officers of the University namely
(i)the Vice-Chancellor:
(ii)the Pro-Vice-Chancellor;
(iii) the Registrar:
(iv) the Finance Officer;
(v) the Controller of Examinations
(vi) the Dean (Research);
(vii) the Dean (Academic):
(viii) such other persons in the service of the University as may be declared by the Statutes to be officers of the University,
13. The Vice-Chancellor (I) The Vice-Chancellor shall be the principal executive and academic officer of the University. He shall be the ex-officio Chairman of the Executive Committee and of the Academic Committee.
(2) The first Vice-Chancellor shall be appointed by the Chancellor on the recommendation of the Government and thereafter the Vice-Chancellor shall be appointed by the Chancellor from among a panel of names recommended by a Search Committee consisting of the following members, namely:
(i)one member elected by the Board of Governors:
(ii) one member nominated by the AICTE
(iii) the Chief Secretary of the State, who shall be the Convenor of the Committee (3) The process of preparing a panel shall begin at least three months before the probable date of occurrence of the vacancy of the Vice-Chancellor and shall be completed within the time-limit fixed by the Chancellor.
The Chancellor, however, may extend such time-limit, if, in the exigency of the circumstances, it is necessary to do so. However, the process of preparation of the panel shall be completed within a period of three months, including the period so extended.
WP(C).No.33004 OF 2019(A) 22
4. The Committee shall recommend unanimously a panel of not less than three suitable persons from amongst the eminent persons in the field of engineering sciences. The names shall be in English alphabetical order. The report shall be accompanied by a detailed write-up on the suitability of each person included in the panel. In case the Committee fails to make a unanimous recommendation as provided, each member of the Committee may submit the name of one person each to the Chancellor. The non submission of the name by any member of the Committee shall not invalidate the appointment of the Vice-Chancellor. (5) No person who is more than sixty one years of age shall be appointed as Vice-Chancellor and after the appointment, he shall, subject to the terms and conditions of his appointment, hold office for a period of four years from the date on which he enters upon his office or till he attains the age of sixty five years, whichever is earlier.
(6) The persons appointed as Vice-Chancellor will be eligible for re-appointment provided he has not attained the maximum age mentioned in sub-section 5.
14. The Division Bench of this Court in Premkumar T.R (supra) set aside the appointment of Vice-Chancellor on the premise that the incumbent was unqualified to hold the post of Vice-Chancellor as the post of Director of State Institute of Educational Technology (SIET) for more than 10 years was not equal to the post of Professor in the University and regarding composition of Selection Committee ie., a member of senate and WP(C).No.33004 OF 2019(A) 23 syndicate ought not to have been part of Committee and one of the three members ie., MLA could not be a person of eminence in the sphere of education. The aforementioned matter was taken up before the Supreme Court; the matter was remitted and by that time there was no occasion for the Court to adjudicate as the term of the appointed Vice-Chancellor had already expired; the writ petition was rendered as infructuous.
15. On juxtaposing of Regulations ie. Clause 7.3.0
(ii) of University Grants Commission Regulations, 2010, Ext.P2 viz-a-viz clause 7.3.0 (ii) of University Grants Commission Regulations, 2013, Ext.R3(a), it is revealed that the members of the Search Committee should be of persons of eminence in the sphere of higher education and shall not be connected in any manner of the University concerned. But the only thing added is 'the constitution of the Search Committee could be as per the Act/Statutes of the concerned University'.
16. A.P.J Abdul Kalam Technological University Act came into force only in 2015 when UGC 2013 Regulations WP(C).No.33004 OF 2019(A) 24 were in force. On plain and simple reading of Section 13 of 2015 Act, extracted above, University incorporated the procedure of constitution of Committee and appointment, for the purpose of appointment of Vice-Chancellor. As per Sub Section 2 of Section 13 of 2015 Act, the Chief Secretary of the State shall be the convenor of the Committee. University Grants Commission did not find the provisions of Section 13 of 2015 Act to be incongruous with 2013 Regulations for the simple reason, had it been so UGC is empowered to take action against the University by applying the provisions of Section 14 of the University Grants Commission Act. The same reads thus:
"Consequences of failure of Universities to comply with recommendations of the Commission - If any University [grants affiliation in respect of any course of study to any college referred to in sub-section (5) of section 12A in contravention of the provision of that sub-section or] 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) 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 Commission, after taking into consideration the cause, if any, shown by the University [for such failure or contravention] may withhold from the University the grants proposed to be made out of the Fund of the Commission."
WP(C).No.33004 OF 2019(A) 25
17. The Search Committee in the instant case was constituted, pursuant to Ext.P1 notification for selection of a Vice-Chancellor and not in accordance with the UGC Regulations, 2010. UGC Regulations were made by the Commission in exercise of powers conferred under Section 26(1) (e) and (g) of the University Grants Commission Act, 1956 and under the above mentioned provisions, Commission is empowered to make regulations defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University and the post of Vice-Chancellor.
18. The controversy in the judgment in APJ Abdul Kalam Technological University and Another (supra) pertained to an affiliation of new B.Tech course wherein the provisions of AICTE and UGC were elaborately discussed. It was held that AICTE Act was traced at Entry No.66 of List-I of 7th Schedule of Constitution. Since the Technical Universities are governed by the provisions of AICTE, in paragraph 59 thereof, it was held that the WP(C).No.33004 OF 2019(A) 26 universities cannot dilute the standards prescribed by AICTE, as they would have the power to stipulate enhanced norms and standards.
19. But in the instant case, the matter is not with regard to the affiliation whereby the decision of the University in initiating the process of selection for the post of Vice-Chancellor, is deviated by an act of the Syndicate. The question with regard to the applicability of UGC Regulation in the process of appointment of Vice-Chancellor asking for issuance of a writ of quo warranto came to be pondered by the Division Bench of Madurai Bench of Madras High Court in K.V Jeyaraj and another (supra) wherein it was noticed that the dispute was not of factual nature but a legal dispute as holding of the office of Vice-Chancellor was questioned on the premise that a person to be appointed to the post should be a distinguished academician with a minimum ten (10) years of experience as the Professor in the University or ten (10) years of experience in an equivalent position in a reputed research and/or academic WP(C).No.33004 OF 2019(A) 27 administrative Organization and the contesting respondent did not have minimum 10 years of experience as Professor but 31 years of teaching experience as Associate Professor. The question was also framed whether the University Regulations 2010 are mandatory or directory and whether they would have an overriding effect upon the provisions of the University Act and statutes. After noticing the regulations and the provisions of the Act, Madurai Bench in penultimate paragraph held that since the contesting respondent did not satisfy the eligibility criteria, stipulated by UGC Regulation 2010 for appointment as Vice-Chancellor, it cannot be white washed on the plea that the regulations were not mandatory in nature. During the discussion, it also surfaced that the University Grants Commission in its 487th meeting held on 18th & 19th of July 2012 decided to scrap paragraph 7.3.0 of the Annexure to the 2010 Regulations, which was of no consequence as it was pending approval of the Central Government.
20. The aforementioned judgement was challenged WP(C).No.33004 OF 2019(A) 28 in Supreme Court in Kalyani Mathivanan (supra) and by noticing the provisions of Universality Act ie., Madurai Kamaraj University Act, 1965 as well as University Regulations 2010, the supreme Court in its penultimate paragraph of the judgment held as follows:
62. In view of the discussion as made above, we hold:
62.1 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 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. The 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 UGC 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 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 WP(C).No.33004 OF 2019(A) 29 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 G.O. (ID) 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. Jeyaraj v. Chancellor of Universities'. The appeals are allowed but in the facts and circumstances of the case, there shall be no order as to costs.
In the aforementioned judgment, it has been held that UGC Regulations 2010 are directory for the Universities and colleges and the other higher educational institutions under the purview of State Legislature as the matter has been left to the State Government to adopt and implement the Scheme.
21. Since the University Grants Commission did not take any action under Section 14, the provisions of Section 13 of the 2015 Act regarding the process for appointment to the post of Vice-Chancellor would prevail and not 2010 Regulations. Thus once Section 13 envisaged the constitution of members of the Search Committee, the argument of the learned counsel for the WP(C).No.33004 OF 2019(A) 30 petitioner to the effect that the Chief Secretary would not be a competent person to be a member of Search committee as he would have a control over the University, pales into insignificance.
The questions raised have been answered in the above manner. Writ petition is devoid of merit, accordingly it is dismissed.
SD/-
AMIT RAWAL
sab JUDGE
WP(C).No.33004 OF 2019(A)
31
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.J3-
345-2017-H.EDN. DATED 30.7.2018
INVITING APPLICATIONS FROM ELIGIBLE CANDIDATES FOR THE SELECTION OF VICE- CHANCELLOR IN APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PROVISIONS OF HE UGC REGULATIONS 2010, PERTAINING TO THE QUALIFICATIONS AND PROCESS OF SELECTION OF VICE-CHANCELLORS.
EXHIBIT P3 TRUE COPY OF SECTION 13, SUB-SECTIONS (4), (5) AND (6) OF THE APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY ACT 2015.
EXHIBIT P4 TRUE COPY OF GOVERNMENT ORDER, GO(P)NO.392/2010/H.EDN., DATED 10.12.2010, THIRUVANANTHAPURAM, ADOPTING AND IMPLEMENTING EXT.P2 UGC REGULATIONS 2010, WITH EFFECT FROM 18.9.2010.
EXHIBIT P5 TRUE COPY OF THE TIMES OF INDIA REPORT DATED 9.9.2018, INDICATING THAT FOUR CANDIDATES WERE SHORT LISTED AND INVITED FOR A "CONVERSATION" WITH THE SEARCH COMMITTEE ON 11.9.2018.
EXHIBIT P6 TRUE COPY OF THE 2ND NOTIFICATION NO.J3-407-H.EDN. DATED 21.12.2018 INVITING APPLICATIONS FROM ELIGIBLE CANDIDATES FOR THE SELECTION OF VICE- CHANCELLOR IN APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY.
EXHIBIT P7 TRUE COPY OF THE NOTIFICATION DATED 21.2.2019 OF THE REGISTRAR OF THE APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY INDICATING THE 1ST RESPONDENT HAD BEEN APPOINTED AS THE VICE CHANCELLOR ON 19.2.2019.
WP(C).No.33004 OF 2019(A) 32 EXHIBIT P8 TRUE COPY OF THE REPLY DATED 29.5.2019 FROM THE 4TH RESPONDENT HIGHER EDUCATION DEPARTMENT TO AN RTI APPLICATION OF THE PETITIONER (WITH ENGLISH TRANSLATION.) EXHIBIT P9 TRUE COPY OF THE REPLY DATED 12.6.2019 FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE TO AN RTI APPLICATION FROM THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE REPLY DATED 17.6.2019 FROM THE GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA TO AN RTI APPLICATION FROM THE PETITIONER. EXHIBIT P11 TRUE COPY OF THE REPLY DATED 25.7.2019 FROM THE 4TH RESPONDENT HIGHER EDUCATION DEPARTMENT TO AN RTI APPLICATION FROM THE PETITIONER (WITH ENGLISH TRANSLATION.) EXHIBIT P12 TRUE COPY OF THE REPLY DATED 4.10.2019 FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE TO AN RTI APPLICATION FROM THE PETITIONER.
EXHIBIT P13 TRUE COPY OF THE REPLY DATED 23.10.2019 THE GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA TO AN RTI APPLICATION FROM THE PETITIONER. EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED 7.11.2019 FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE IN FORMING THE PETITIONER THAT COPIES OF THE DOCUMENTS PERTAINING TO THE SEARCH COMMITTEE'S RECOMMENDATIONS 'IN WRITING' OF THE CREDENTIALS OF THE CANDIDATES, COULD BE OBTAINED IF THE REQUIRED FEE WAS REMITTED.
WP(C).No.33004 OF 2019(A) 33 EXHIBIT P15 TRUE COPY OF THE CHALAN RECEIPT DATED 12.11.2019 INDICATING THAT THE PETITIONER HAD REMITTED THE REQUIRED FEE FOR OBTAINING DOCUMENTS FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE. EXHIBIT P16 TRUE COPY OF THIS INFORMATION DATED 14.11.2019 FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE CONTAINING THE MINUTES OF THE SEARCH COMMITTEE MEETINGS ALONG WITH THE INDIVIDUAL AND SEPARATE RECOMMENDATIONS OF ITS MEMBERS.
EXHIBIT P17 TRUE COPY OF THE RELEVANT PAGES 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 (2ND AMENDMENT) REGULATIONS 2013, NO.F.1-2/2009 (EC/PS) VI VOL-II, DATED 13.6.2013 EXHIBIT P18 TRUE COPY OF THE RELEVANT PAGES, PERTAINING TO THE SELECTION OF A VICE CHANCELLOR, IN THE UGC REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNVIERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATION, 2018, NO.F.1-2/2017 (EC/PS, DATED 18.7.2018 RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(A) PHOTOCOPY OF THE NOTIFICATION NO GS6- 4061/2017 DATED 19.2.2019 OF THE 2ND RESPONDENT EXHIBIT R3(a) TRUE COPY OF THE UGC REGULATION NO.F.1-2/2009 (EC/PS) V(I) VOL-II DATED 13/06/2013 (MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN THE UNIVERSITIES IN THE HIGHER EDUCATION (2ND AMENDMENT), REGULATIONS 2013.