Dr. Premachandran Keezhoth vs The Chancellor Kannur University

2023 INSC 1032 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7700 OF 2023

DR. PREMACHANDRAN KEEZHOTH & ANR. …..APPELLANT(S)

VERSUS

THE CHANCELLOR KANNUR UNIVERSITY & ORS. …..RESPONDENT(S)

JUDGMENT

J. B. PARDIWALA, J.:

For the convenience of the exposition, this judgement is divided in the following

parts: -

INDEX A. Factual Matrix ...................................................................................... 4

i) Notification dated 27.10.2021 constituting the Selection Committee ... 5 Signature Not Verified ii) Notification dated 01.11.2021 inviting applications for selection of Digitally signed by Sanjay Kumar Date: 2023.11.30 Vice-Chancellor .................................................................................... 6 10:50:43 IST Reason:

iii) Letter of the Minister for Higher Education / Pro-Chancellor dated 22.11.2021 recommending reappointment of the Respondent No. 4 .... 7

Page 1 of 72

iv) Notification dated 22.11.2021 withdrawing the Notification dated 01.11.2021 inviting applications from the elligible candidates............ 9

v) Letter of the Minister for Higher Education / Pro-Chancellor proposing reappointment of Vice-Chancellor ...................................... 9

vi) Reappointment Notification dated 23.11.2021 ..................................... 10

B. Relevant observations made by the Ld. Single Judge ....................... 11 C. Relevant observations made by the Division Bench in Appeal ........ 13 D. Submissions on behalf of the Appellant(s).......................................... 15 E. Submissions on behalf of Respondent No. 2 - State of Kerala ......... 21 F. Submissions on behalf of Respondent No. 3 - Kannur University... 26 G. Submissions on behalf of Respondent No. 4 - Vice-Chancellor........ 28 H. Submissions on behalf of Respondent No. 1 - Chancellor………… 29 I. Relevant Provisions of the Kannur University Act, 1996 and the UGC Regulations, 2018 ........................................................................ 35 J. Writ of Quo Warranto .......................................................................... 39 K. Questions of Law Formulated ............................................................. 45 L. Analysis .................................................................................................. 46

i) Whether reappointment is permissible in respect of a Tenure Post? .... 46

ii) Whether the outer-age limit stipulated under sub-section (9) of Section 10 of the Act 1996 is applicable in the case of reappointment of Vice-Chancellor? .............................................................................. 48

iii) Whether the reappointment of Vice-Chancellor has to follow the same process as a fresh appointment under Section 10 of the Act 1996? ..... 54

iv) Did the Chancellor abdicate or surrender his statutory power of reappointment of the Vice-Chancellor? ................................................ 58

M. Final Conclusion ................................................................................... 70

Page 2 of 72 " 'Intention of the Legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication."

[Lord Watson in Salomon v. Saloman & Co., (1897) AC 22, 38]

1. We are tempted to preface our judgment with the aforesaid observations of

Lord Watson in Soloman (supra), as we need to keep in mind the principle of law

as explained therein for the purpose of interpretation of Section 10(9) and Section

10(10) respectively of the Kannur University Act, 1996 (for short, “the Act

1996”). In other words, the object or the intention behind enacting the two

provisions referred to above.

2. This appeal is at the instance of two unsuccessful original writ petitioners

before the High Court. The appellant No. 1 herein in his capacity as the elected

member of the Senate of Kannur University and the appellant No. 2 herein in his

capacity as the member of the Academic Council of the said University together

questioned the legality and validity of reappointment of the respondent No. 4

herein, namely, Dr. Gopinath Ravindran as the Vice-Chancellor of the Kannur

University by filing Writ Petition (C) No. 26975 of 2021 in the High Court of

Kerala, primarily on the ground that the respondent No. 4 was not eligible for Page 3 of 72 reappointment as the Vice-Chancellor of the Kannur University. The writ

application referred to above came to be rejected by the learned Single Judge of

the High Court vide the judgment and order dated 15.12.2021. The judgment

rendered by the learned Single Judge of the High Court was challenged before a

Division Bench of the High Court by filing the Writ Appeal No. 1698 of 2021.

The challenge in the appeal also failed. The Division bench dismissed the appeal

vide the judgment and order dated 23.02.2022 thereby affirming the judgment and

order passed by the learned Single Judge declining to issue a writ of Quo

Warranto.

A. FACTUAL MATRIX

3. The facts are jejune. The respondent No. 4 herein was appointed as the

Vice-Chancellor of the Kannur University vide the Notification dated 24.11.2017

duly issued by the Chancellor of the Kannur University. The tenure of the

respondent No. 4 as the Vice-Chancellor was for a period of four years. As the

tenure of the respondent No. 4 as the Vice-Chancellor of the University was

coming to an end, the Chancellor initiated steps for selection and appointment of

a new Vice-Chancellor in the said University. The first step in the said process

was the issue of a Notification dated 27.10.2021 constituting a Selection

Committee of three members. The Notification dated 27.10.2021 reads thus:

Page 4 of 72

i) Notification dated 27.10. 2021 con stituting the Selection Co mmittee

“No.G53 1283/2021 Governors Secretariat Kerala Raj Bhavan Thiruvananthapuram 27th October 2021

NOTIFICATION In exercise of the powers conferred under Section 10, read with sub sections (1)(2) and (3) of the Kannur University Act, 1996, the Chancellor of the University is pleased to constitute a Selection Committee comprising of the following members to make recommendation (s) towards the selection and appointment of a new Vice Chancellor in the said University.

1. Dr. B. Ekbal - (Nominee of the University Senate) (Former Vice Chancellor, University of Kerala and former Member, State Planning Board)

2. Prof. B. Thimme Gowda - (Nominee of the University Grants Commission) Vice Chairman, Karnataka State Higher Education Council (Former Vice Chancellor, Bangalore University & Karnataka State Rural Development and Panchayat Raj University

3. Prof. VK Ramachandran (Nominee of the Chancellor) Vice Chairperson, Kerala State Planning Board (Former HoD, Economic Analysis Unit, Indian Statistical Institute, Bengaluru) I, Prof. VK Ramachandran shall be the Convener of the Committee and the Committee shall tender its recommendation within three months from the date of this order as laid down in sub section (4), Section 10 of the Kannur University Act, 1996.

By Order of the Governor/Chancellor Sd/-

(Dr. Devendra Kumar Dhodawat, IAS) Principal Secretary to Governor/Chancellor”

Page 5 of 72

4. Thereafter, Notification dated 01.11.2021 was issued by the Additional

Chief Secretary, Higher Education, State of Kerala inviting applications from

eligible candidates. The Notification dated 01.11.2021 reads thus:

ii) Notification dated 01.11. 2021 inviting applicatio ns for selection of Vice -Cha ncellor

“B2/88/2021/H. EDN Dated: 1.11.2021

NOTIFICATION

In exercise of the powers conferred by Section 19(1) (2) and (3) of the Kannur University Act,1996, the Chancellor, Kannur University has constituted a Selection Committee to make recommendations for the appointment of a new Vice Chancellor, in the Kannur University.

Applications are invited by the Selection Committee for the selection of Vice Chancellor, Kannur University from eligible candidates. The qualification and experience are as prescribed in Clause 7.3(i) of the UGC notification dated 18.7.2018. Applicants should not have completed sixty years of age as on the date of notification, as provided in section 10 of Kannur University Act, 1996.

Applications in hard copy and soft copy (by e mail only) with bio data, proof of experience, qualifications etc., in the attached format should reach the Additional Chief Secretary to Government, Higher Education Department, Government Secretariat, Annexe II. Fourth Floor, Thiruvananthapuram - 695001 and highereducationbdepartment@gmail.com on or before 5 PM on 30.11.2021.

Sd/-

Dr. Venu, IAS Additional Chief Secretary Higher Education, Environment Archaeology, Archives & Museum Departments.”

Page 6 of 72

5. It appears that in the meantime, the Minister for Higher Education and

Social Justice in her capacity as the Pro-Chancellor addressed a letter to the

Governor/Chancellor dated 22.11.2021 recommending reappointment of the

respondent No. 4 herein for a second term as the Vice-Chancellor of the

University. The letter dated 22.11.2021 reads thus:

iii) Letter of Pro -Cha ncellor dated 22.11. 2021 re co mme nding re -app ointment o f the Re spo ndent N o. 4

“D.O. LETTER NO. 401/2021/M (H.Edn & SJ) DATED 22/11/2021 Honourable Governor, Kind attention of Honourable Governor is invited to the fact that the term of office of Ex. Vice Chancellor of Kannur University is ending on November 23,2021 Notification for the selection of new Vice Chancellor was issued on November 1.2021.

Dr. Gopinath Raveendran is currently holding the post of Vice Chancellor. He is an eminent academician and able administrator. He has ushered the University to greater heights. A learned professor with an excellent academic record, he was Professor of History of Jamia Millia Islamia, Delhi. He has also been Academic Visitor, Dept. of Social Police, London School of Economics and Political Science and has administrative experience as Honorary Director, Nelson Mandela Centre for Peace and Conflict Resolution, Jamia Millia Islamia and as Member secretary, ICHR. He has indeed been an asset to Kannur University, an institution still in its infancy. The remarkable achievements of the university in academic rating is the result of the hard work put in by the faculty and staff of the University under the able leadership of Dr. Gopinath Raveendran. The NAAC has upgraded the status of the University from B to B. He was instrumental in digitizing the University by introducing Digital Document Filling System (DDFS) and enthusiastically directed the University to amend its status in tune with UGC Regulations, 2018. He also initiated steps for starting a separate Research Directorate

Page 7 of 72 with the aim of improving research standards in the University.

During his tenure, the University signed several MOUs with reputed national and international organization. Under his stewardship, the University also started a Business incubation Centre and established an Institution's Innovation Council to encourage the innovative potential of researchers and students.

Kannur University under his able leadership, rose to eminence as one of the premier university in the country. It is therefore my considered opinion that Dr. Gopinath Raveendran may be allowed to continue for another term as Vice Chancellor. Its continuation will immensely benefit Kannur University Section 10 (10) of Kannur University Act provides for the reappointment of incumbent Vice Chancellor for a second term and· does not stipulate any restriction on age. I request your Excellency to be pleased to cancel the notification dated 27.10.20 appointing a Search-cum-Selection committee for identifying the person to be appointed as Vice Chancellor. I also request Your Excellency's pleasure in cancelling the notification dated 1.11. 2021 and in re-appointing Dr. Gopinath Raveendran for a continuous second term as Vice Chancellor of Kannur University. Thank you.

Sincerely, Dr. R. Bindu Minister for Higher Education and Social Justice and Pro-Chancellor Sri Arif Mohammed Khan Excellency The Governor of Kerala Bhavan”

6. It is pertinent to note that on the very same day and date i.e., 22.11.2021,

the Additional Chief Secretary to the Government, recalled the Notification dated

01.11.2021 referred to above. The Notification dated 22.11.2021 recalling the

earlier Notification dated 01.11.2021 inviting applications from the eligible

candidates reads thus:

Page 8 of 72

iv) Notification dated 22.11. 2021 re calling the Notifi cation dated 01. 11.20 21 inviting applications from th e eligible candidates

“ NOTIFICATION DATED: 22.11.2021 The notification no. B2/88/2021/H.EDN dated 01/11/2021 inviting application for the selection of Vice-Chancellor to Kannur University is withdrawn.

Dr. V. Venu, IAS Additional Chief Secretary to Government.

Higher Education Department.”

7. On 22.11.2021, the Pro-Chancellor/Minister for Higher Education

addressed one another letter to the Chancellor which reads thus:

v) Letter of Pro -Cha ncellor propo sing re-ap point ment of Vice -Chan cellor

“D.O. LETTER NO. 406/2021/M (H.Edn & SJ) DATED 22/11/2021 Honourable Chancellor, The term of Dr. Gopinath Raveendran, Vice Chancellor of Kannur University will cease on 23 November 2021.

As per D.O. No. GS3-1283/2021 dated 22.11.2021 from the office of your Excellency, steps have been taken to withdraw notification inviting applications to select a Vice Chancellor for Kannur University. As Pro Chancellor of Kannur University. I consider it my privilege to propose the name of Dr. Gopinath Raveendran, the present incumbent Vice Chancellor to be re-appointed as Vice Chancellor of Kannur University for a second continuous term beginning from 24.11.2021.

Thank you,

Sincerely, Dr. R. Bindu Pro-Chancellor, Kannur University Minister for Higher Education Sri Arif Mohammed Khan His Excellency, The Governor of Kerala Chancellor, Kannur University.” Page 9 of 72

8. Ultimately the final notification came to be issued dated 23.11.2021 by

order of the Governor/Chancellor reappointing the respondent No. 4 herein as

Vice-Chancellor of the Kannur University for a period of four years w.e.f.

24.11.2021. The Notification dated 23.01.2021 reads thus:

vi) Re-ap point ment Notifi cation dated 2 3.11.2 021

“GOVERNMENT'S SECRETARIAT KERALA RAJ BHAVAN NOTIFICATION No.GS3.1283/2021(3) Dated: Thiruvananthapuram 23rd November, 2021

In exercise of the powers conferred under the Kannur University Act, 1996 and the UGC Regulations, 2018, the Chancellor of the University is pleased to re-appoint Dr. Gopinath Ravindran (Professor, Department of History, Jamia Millia Islamia, New Delhi) as the Vice Chancellor of the Kannur University, for a period of four years, with effect from 24th November, 2021.

By order of the Government/Chancellor (Dr. Davendra Kumar Dhodawat, IAS) Principal Secretary to Government/Chancellor.”

9. The above referred Notification dated 23.11.2021 was made the subject

matter of challenge by the appellants herein before a learned Single Judge of the

High Court. The challenge to the notification referred to above, reappointing the

respondent No. 4 as the Vice-Chancellor for a further term of four years was

essentially on two grounds. First, in view of Section 10(9) of the Act 1996, no

person who is more than sixty years of age can be appointed as Vice-Chancellor.

Page 10 of 72 In other words, the outer age limit for being appointed as the Vice-Chancellor of

the University being sixty years, the respondent No. 4 could not have been

reappointed as the Vice-Chancellor having crossed the age of sixty years.

Secondly, even for the purpose of reappointment, the entire procedure necessary

for being appointed as the Vice-Chancellor for the first time should have been

undertaken. In other words, the procedure prescribed in Section 10 of the Act

1996 ought to have been followed even at the time of reappointment.

B. RELEVANT OBSERVATIONS MADE BY THE LD. SINGLE JUDGE

10. As noted above, the challenge before the learned Single Judge failed. The

writ petition came to be dismissed by the learned Single Judge holding as under:

“6. From the perusal of the provisions of Section 10, it is evident that Vice-Chancellor can be appointed by Chancellor on the recommendation of the committee appointed by him which consists of three members with one elected by Senate, another by Chairman of the University Grants Commission and third by the Chancellor. The chancellor shall appoint one of the members of the committee to his convenience and committee shall make its recommendation within a period of three months of appointment. University is not precluded to unanimously recommend the name of only one person and in that process, Chancellor shall appoint that person to be Vice- Chancellor, but, it may submit a panel of three names within the period and the Vice-Chancellor shall be appointed from among the persons in the panel. The aforementioned procedure at the time of the initial appointment, for a period of four years, in 2017 was followed. The

Page 11 of 72 first term was expiring after the completion of four years and it is in that background, notice Ext.P2 was published but the Secretary of Department of Higher Education notified of withdrawal with immediate effect, for as per provisions of Sub section (10), Vice- Chancellor can be re-appointed, but the term is restricted to two (2).

It is now to be seen as to whether on the basis of statutory procedure provided in the Act ibid and on analysis of judgments cited, can this Court interfere in the process of appointment or not.

xxx xxx xxx

10. The expression 'appointment' and 're-appointment' have different connotation; for undergoing the re-appointment the qualifications are prescribed under Clause 7.3 of the UGC regulations ibid and there is no age bar and for reappointment, criteria of age would not be applicable. No doubt, for appointment, the entire procedure prescribed under Section 10 is to be followed. At the time of the initial appointment, in the year 2007, all the parameters were considered for appointment as per the procedure laid down therein but for re-appointment as per proviso to sub-Section (10) there is no requirement for undertaking the task of constitution of a Selection Committee as was done during the initial appointment. As per the pleading and submissions, there has not been any incident or lack of integrity, transparency as provided in the UGC regulations.

Considering the provisions of applicable laws to my mind, notice Ext.P2 was withdrawn vide Ext.P3 on 22.11.2021 for the simple reason the party respondent i.e., the 4th respondent was not disqualified at the time of initial appointment. It cannot be said that there was any violation of the statutory provisions for reconsideration for the purpose of re-appointment, thus, in such circumstances, writ of quo-warranto cannot be issued.” (Emphasis supplied)

Page 12 of 72 C. RELEVANT OBSERVATIONS MADE BY THE DIVISION BENCH

IN APPEAL.

11. The writ appeal filed by the appellants herein before the Division Bench of

the High Court also failed. The Division Bench in its impugned judgment held as

under:

“20. On an analysis of the said provision, it is clear that the Vice- Chancellor shall be appointed by the Chancellor on the recommendation of a committee appointed by him for the purpose. In the case on hand, the appointment of the 4th respondent in the year 2017 for a period of 4 years in contemplation of sub-Section 10 of Section 10, and in contemplation of law is admitted. It is also an ·admitted fact that the eligibility and qualification of the 4th respondent at the initial stage of appointment is undoubted. It is also quite clear and evident from the provisions of Section 10 that a clear cut procedure and modalities are prescribed in the said provision to select the Vice Chancellor.

21. One of the important aspects that is to be noted is that as per sub-

Section 9 of Section 10, it is clearly specified that no person who is more than sixty years of age shall be appointed as Vice-Chancellor. But, when it comes to sub-Section 10 of Section 10, it is made explicit that the Vice-Chancellor shall hold office for a term of four years from the date on which he enters upon his office and shall be eligible for re-appointment. However, interdiction is made as per the proviso thereto, by making it clear that, a person shall not be appointed as Vice Chancellor for more than 2 terms. It is significant to note that sub-Section 10 of Section 10 of Act, 1996 is conjunctive in nature and not distinctive. Which thus means, the statute itself has made a clear cut procedure with respect to the re-appointment and has made it clear that the Vice Chancellor who holds the office for a term of 4 years consequent to the initial appointment, shall be eligible for re- appointment.

22. No doubt, if there is any manner of shortcomings on the part of the Vice Chancellor initially appointed, so as to affect the academic Page 13 of 72 excellence, moral issues or otherwise to have any adverse consequence to hold the post of Vice Chancellor, it would be different. But, this is a case where the appellants have not raised any sort of such allegations against the 4th respondent. Merely because a notification was issued to conduct a selection, that by itself will not dissuade the Government/Chancellor to recommend and re-appoint the existing Vice Chancellor.”

xxx xxx xxx

30. Therefore, after assimilating the factual and legal situations and understanding the issues, we are of the considered opinion that in the matter of re-appointment, the age bar prescribed under Section 10(9) for appointment of the Vice Chancellor would not come into play, because the Vice Chancellor who has appointed before attaining the age of 60 years, is entitled to continue for a term of four years and shall be eligible for re-appointment.

31. Taking into account all the above intrinsic aspects with regard to the appointment of the Vice Chancellor, eligibility, qualification etc., and also the relevant inputs of the UGC Regulations, 2018, we have no hesitation to hold that the learned single Judge was right in dismissing the writ petition. Even though various contentions were advanced and several judgments were cited by the respective Senior Counsel in regard to the intricacies of issuance of a writ of quo warranto, we are not inclined to go into that question, since we find that the re- appointment of the 4th respondent was made in accordance with law, and therefore he can never be said to be an usurper to the post. Having rendered the findings as above, the arguments advanced strenuously by the learned Senior Counsel Sri. George Poonthottam, relying upon the term 'eligibility', contained under Section 10(10) of the Act 1996 in the matter of making reappointment by referring to various legal dictionaries, we do not find much force in the same.

32. Before we part with the judgment, it is only appropriate that the Press release issued by the office of the Chancellor (Honourable Governor) of the University is discussed. On a perusal of Annexure A2 Press Release dated 03.02.2022, it is clear that right from the publication of selection notification dated 01.11.2021 issued on

Page 14 of 72 behalf of the selection committee uptill the reappointment are narrated.

33. Be that as it may, it is clearly specified in the Press Release that on 23rd November, 2021, Kerala Raj Bhavan issued a notification re-appointing the 4th respondent as the Vice Chancellor of the Kannur University. Other aspects are also dealt with in the Press Release, which we do not propose to traverse through, being unnecessary.

34. Taking into account the factual and legal circumstances deliberated above, we are of the clear and considered opinion that the appellants have not made out any case of jurisdictional error or other legal infirmities susceptible to be interfered with in the judgment of the learned single Judge.” (Emphasis supplied)

12. In such circumstances referred to above, the appellants (original writ

petitioners) are here before this Court with the present appeal.

D. SUBMISSIONS ON BEHALF OF THE APPELLANT(S)

13. Mr. Dama Seshadri Naidu and Mr. George Poonthottam, the learned Senior

Counsel appearing for the appellants made the following submissions: -

a. The impugned judgment proceeds on an erroneous assumption that once

an appointment to the post of Vice-Chancellor is made through proper

channel, the reappointment of the same incumbent to such office upon

expiry of the first term can be made bypassing the original procedure

prescribed, including the constitution of a Search-cum-Selection

Page 15 of 72 Committee as mandated by the University Grants Commission

(Minimum Qualifications for Appointment of Teachers and other

Academic Staff in Universities and Colleges and Measures for the

Maintenance of Standards in Higher Education) Regulations, 2018 (for

short, ‘the UGC Regulations’). While doing so the High Court has

assumed that there is a distinction in procedure for ‘appointment’ and

‘reappointment’, whereas there is no such distinction recognised under

the service law jurisprudence.

b. If the impugned judgment is to be upheld, then for reappointment as a

Vice-Chancellor under the proviso to Section 10(10) of the Kannur

University Act, there is no requirement for undertaking the exercise of

forming and consulting the Selection Committee as mandated under the

UGC Regulations and as was done during the initial appointment. Going

by this rationale, a person can be reappointed, even though there may be

better qualified and more deserving candidates eligible and qualified to

hold the office. This obviously is not the letter and spirit of the Kannur

University Act and the UGC Regulations, which aims at providing the

highest standards of education. In such circumstances, it is essential to

follow the entire selection process, even in cases of reappointment.

Page 16 of 72 c. On the date of reappointment i.e., 24.11.2021, the respondent No. 4 had

crossed the age of 60 years which is the outer age limit for being

appointed to the post of Vice-Chancellor under Section 10(9) of the

Kannur University Act. Therefore, the respondent No. 4 was not eligible

for being reappointed as the Vice-Chancellor in 2021.

d. The notification dated 01.11.2021 was withdrawn only with a view to

overcome the hurdle of the age limit, and thereby, bypass the prescribed

procedure for appointment.

e. Section 10(10) of the Kannur University Act is very specific and clear.

The language of the provision unequivocally spells out the legislative

intent that if a person is once given an appointment, it would only enable

him an opportunity to be considered for fresh appointment for one more

term. The express language of the provision does not grant a candidate,

who is already appointed as the Vice-Chancellor, to evade the

mandatory eligibility criteria and to be appointed as the Vice-

Chancellor again. The distinction drawn by the High Court between the

terms “appointment” and “reappointment” relying on Section 10(10) is

totally perverse.

f. The High Court erred in proceeding on the premise that since the

respondent No. 4 was eligible for appointment on the first occasion, he

Page 17 of 72 was also entitled for reappointment and thus the entire process for

appointment need not be undertaken afresh. This appears to be the logic

behind the withdrawal of Notifications calling for fresh applications.

g. The High Court ought to have appreciated that the constitution of the

Select Committee and preparation by the panel is prerequisite for the

appointment of Vice-Chancellor of University. If the contention that the

UGC Regulations do not impose any age restriction for appointment as

the Vice-Chancellor is accepted, then the UGC Regulations do not

provide for the reappointment of the Vice-Chancellor as well.

h. Section 10(10) of the Kannur University Act contemplates

reappointment and not an extension of the term of the Vice-Chancellor.

For this reason, the notification dated 01.11.2021 was issued calling for

applications from eligible candidates for the post of Vice-Chancellor.

The said notification stipulated that the candidate must satisfy the

eligibility criteria mentioned in Clause 7.3(i) of the UGC Regulations,

and should not be more than 60 years of age on the date of issuing the

notification. When appointment is made by virtue of Section 10(10), the

law does not provide an exemption to be followed in the case of an

incumbent who is holding the post of Vice-Chancellor.

Page 18 of 72 i. The reliance placed by the High Court on the decisions of the Rajasthan

High Court and Jammu & Kashmir High Court, in its impugned

judgment is not correct as the two High Courts had failed to take into

consideration the UGC Regulations which provides for the method and

procedure for appointment of the Vice-Chancellor. The appointment of

the Vice-Chancellor can only be done in accordance with the procedure

as laid therein and the central legislation fully occupies the issue.

j. The reappointment was based on the request of the State Government

and not on any independent evaluation. Such a request is wholly

unwarranted as the State Government has no say in the appointment or

reappointment of the Vice-Chancellor.

k. The initial appointment of the respondent No. 4 as the Vice-Chancellor

was also contrary to the provisions of the UGC Regulations 2010 more

particularly Clause 7.3, which stipulates that the appointment shall be

made after following the due process of identification of 3 to 5 names

by the Search-cum-Selection Committee. However, the minutes of the

Search-cum-Selection Committee dated 20.11.2017 indicates that only

one single name, i.e., the name of respondent No. 4, was recommended.

Hence, the initial appointment itself being void ab initio, the

reappointment is also void.

Page 19 of 72

14. With a view to fortify the aforesaid submissions the learned Senior Counsel

placed reliance on the following decisions:

(i) S.P. Gupta v. Union of India (First Judges Case), 1981 Supp

SCC 87,

(ii) State of West Bengal v. Anindya Sundar Das, 2022 SCC OnLine

SC 1382,

(iii) State of Himachal Pradesh v. Kailash Chand Mahajan, 1992

Supp (2) SCC 351,

(iv) Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179,

(v) Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S., 2022 SCC

OnLine SC 1473,

(vi) Dr. L.P. Agarwal v. Union of India and Others, (1992) 3 SCC

526,

(vii) Dept. of Commerce v. US House of Representatives, 1999 SCC

OnLine US SC 10,

15. In such circumstances referred to above, the learned Senior Counsel prayed

that there being merit in the appeal, the same may be allowed and the Notification

reappointing the respondent No. 4 as the Vice-Chancellor of the Kannur

University be set aside.

Page 20 of 72

E. SUBMISSIONS ON BEHALF OF RESPONDENT NO. 2 - THE

STATE OF KERALA

16. Mr. K.K. Venugopal, the learned Senior Counsel appearing for the State of

Kerala made the following submissions:

a. The seminal issue which arises in the present case is the conflict

between the provisions of the UGC Regulations, which is a subordinate

legislation made under Section 26(1)(e) and (g) respectively of the

University Grants Commission Act, 1956 (‘UGC Act’), and the State

laws made under Entry 25 of List III dealing with education.

b. The UGC Regulations make express provisions for the manner in which

a selection has to be made for the appointment of a Vice-Chancellor

through a Search-cum-Selection Committee consisting of persons of

eminence in the sphere of higher education and who are not connected

in any manner with the University concerned or its colleges. The

Visitor/Chancellor shall appoint the Vice-Chancellor out of the Panel

of three-five names recommended by the Search-cum-Selection

Committee.

c. The different state laws made under Entry 25 of List III dealing with

the same subject have provisions which give a dominant status to the

Page 21 of 72 State Governments, and do not provide for the identical procedure

provided for by the UGC Regulations.

d. It has been held recently, in a judgment of this Court in Gambhirdan

K. Gadhvi (supra) (2 Judges) which is followed in Anindya Sundar Das

(supra) (2 Judges), that the UGC Regulations form a part of the UGC

Act, 1956 for the reason that it requires that the regulations made under

the Act shall be laid before the Parliament. Even though Section 26 of

the UGC Act does not provide for these regulations being part of the

Act, nevertheless the Court held that the mere fact of laying would

result in the regulations being made part of the Act.

e. A catena of judgments of this Court have held to the same effect. What

has been missed in holding so is that the subordinate legislation,

whether of rules or regulations, could be read as part of the Act, but, for

different purposes. The real effect of this statement of the law is that

Article 254 of the Constitution would have to be read as – where a law

made by Parliament as well as the regulations or rules made under any

Central Act is repugnant to the provisions of a law made by the

legislature of a State, the law made by Parliament as well as the

regulations or rules made under any Central Act will prevail. The

provision will now mean that the law made by Parliament, or the

Page 22 of 72 regulations or rules made under any Central Act, if repugnant to the law

made by the legislature of a State, then the law made by the State, to the

extent of the repugnancy, shall be void.

f. By reading as aforesaid, the consequences would be far reaching. For

this purpose, one should look at the very nature and source of making

regulations or rules under the Central Act. The Government of India

(Allocation of Business) Rules, 1961 would allocate the particular

subject of the Act to a particular minister, who would then have to

decide on what the rule should be. It is possible, as in the case of the

UGC Act, that many of the provisions made in the rules or regulations

may not find a place in the body of the Act, and, the only provision,

which could be possibly invoked would be the main provision of sub-

section (1) of the rule making section, in which it would be stated that

the regulations or rules may be made for the purposes of the Act. In the

case of the UGC Act, the regulation making power is conferred upon

the UGC, a statutory body acting under the Government, and not on the

Government itself.

g. The result is that a vast unbridled arbitrary power is vested in the

executive where no definite guidelines are provided for in any particular

section of the Act, and where the Act is totally silent on the aspects that

Page 23 of 72 are covered by the legislations. Such an arbitrary unguided power by

itself would violate Article 14 of the Constitution of India, and the

regulation making power would have to be struck down.

h. Additionally, the procedure and method of making regulations or rules

which have to be laid before the House is contained in Rule 235 of “the

Rules of Procedure and Conduct of Business in Lok Sabha”, which

states: “The Speaker shall, in consultation with the Leader of the House,

fix a day or days or part of a day as the Speaker may think fit for the

consideration and passing of an amendment to such regulation, rule,

sub-rule, bye-law etc., of which notice may be given by a member:”

i. In ‘Parliamentary Procedure: Law Privileges Practice and Precedents’

by Subhash C. Kashyap, Third Edition Page 596, it is stated that where

a statute provides that rules shall be laid before Parliament and shall be

subject to a modification made by Parliament, if a member gives a

notice for modification of the Rules, the Government is bound to find

time for discussion of the motion. The motion for modification contains

a recommendation to the Rajya Sabha for concurrence, and the effect

of the passing of the motion by both the Houses is that the Government

is bound to amend the rules accordingly.

Page 24 of 72 j. It has been held in the judgment in Gambhirdan K. Gadhvi (supra) that

the UGC regulations, though not so stated in the UGC Act, are part of

the UGC Act, and hence, would prevail over the repugnant sections of

the State Act, which would be rendered void to the extent of the

repugnancy.

k. A series of judgments of this Court state that subordinate legislation

becomes a part of the Act, even though the section itself does not say

so. These include State of U.P. v. Babu Ram Upadhya, (1961) 2 SCR

679, Express Newspaper (P) Ltd. v. Union of India, 1959 SCR 12,

U.P. Power Corpn. Ltd. v. NTPC Ltd., (2009) 6 SCC 235, Udai Singh

Dagar v. Union of India, (2007) 10 SCC 306, and State of T.N. v. Hind

Stone, (1981) 2 SCC 205.

l. On the other hand, there is a line of judgments which states that unless

the Act provides that the rules be deemed as enacted in the Act, a

provision of the rule cannot be read as a part of the Act. This includes

Hotel Balaji v. State of A.P., 1993 Supp (4) SCC 536, Yogendra

Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183, and State of

Mysore v. H. Sanjeeviah, (1967) 2 SCR 361.

m. None among these aspects which are crucial to the interpretation of

Article 254 of the Constitution have been considered anywhere in the

Page 25 of 72 judgments on this issue, of whether the UGC Regulations are equivalent

to the laws made by Parliament or not. This being so, the judgments

being sub silentio, would not have any binding precedent.

n. The judgments of this Court relating to the UGC Act in Gambhirdan

K. Gadhvi (supra) and Anindya Sundar Das (supra) are sub silentio and

would not have any binding precedent, as great violence is being done

to the Constitution, far beyond the intention of the founding fathers of

the Constitution.

The reliance was placed on the decisions of this Court in Municipal

Corpn. of Delhi v. Gurnam Kaur, (1989) 1 SCC 101, para 12 and State

of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, para 41.

F. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 3 -

KANNUR UNIVERSITY

17. Mr. Shailesh Madiyal, the learned counsel appearing for the Kannur

University made the following submissions:

a. The High Court has rightly observed that the age bar prescribed under

Section 10(9) for appointment of the Vice-Chancellor would not be

applicable at the time of reappointment as the Vice-Chancellor who was

appointed before attaining the age of 60 years, is entitled to continue for

Page 26 of 72 a term of four years and shall be eligible for reappointment under Section

10(10) of the Act 1996.

b. Section 10(9) of the Act 1996, clearly specifies that no person who is

more than sixty years of age shall be appointed as Vice-Chancellor. But,

when it comes to Section 10(10) of the Act 1996, it states that the Vice-

Chancellor shall hold office for a term of four years from the date on

which he enters upon his office and shall be eligible for reappointment.

However, the proviso makes it clear that a person shall not be appointed

as Vice-Chancellor for more than 2 terms. Section 10(10) of the Act

should be read conjunctively and not distinctively. The statute itself has

provided for the procedure with respect to the reappointment and has

made it clear that the Vice-Chancellor holding office shall be eligible for

reappointment. The other eligibility criteria prescribed do not, therefore

apply to 'reappointment' under Section 10(10). Hence, the reappointment

is not to be considered as a fresh appointment upon completion of the

first term.

c. The age limit has been fixed even in the matter of reappointments in the

Mahatma Gandhi University Act, 1985; Kerala Agricultural University

Act, 1971; APJ Abdul Kalam Technological University Act, 2015; and

the Thunchath Ezhuthachan Malayalam University Act, 2013. Therefore,

Page 27 of 72 the statute would explicitly specify the age limit in case of

reappointments and when the statue does not provide for it, the age limit

prescribed for appointment cannot be applied even in the case of

reappointments.

G. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 4 – VICE

CHANCELLOR.

18. Mr. Basavaprabhu S. Patil, the learned Senior Counsel appearing for the

respondent No. 4 made the following submissions:

a. The questions of law, as formulated by the appellants are procedural in

nature.

b. This Court in Anindya Sundar Das (supra) on similar facts concerning

reappointment of Vice-Chancellor of Calcutta University, clarified that

reappointment does not entail the same procedural formalities as

appointment and there is a clear distinction in law between the two.

c. The High Court proceeded on the correct premise that Section 10(10)

read with Clause 7.3 of the UGC Regulations only prescribes the

procedure for the initial appointment to the post of Vice-Chancellor. The

respondent No. 4 at the time of initial appointment fulfilled all the

necessary qualifications required to be appointed, and therefore, even at

the time of reappointment such eligibility conditions stood fulfilled.

Page 28 of 72 Clause 7.3 does not talk of reappointment and thus would not be

applicable to the respondent No. 4 since the reappointment was not a

fresh appointment by any stretch of imagination.

d. Section 10(9) and Section 10(10) respectively are two separate & distinct

provisions and as such should be read conjunctively and not

disjunctively.

e. Neither Section 10(10) nor the UGC Regulation prescribe for any

limitation on reappointment of a person as Vice-Chancellor. Section 10

(9) only specifies that no person shall be ‘appointed’ as Vice- Chancellor

above the age of 60. The term reappointment has, in the wisdom of the

legislature, not been used in the Statute for the express purpose that

Section 10(10) existed and to facilitate the continuation of eligible,

qualified and experienced person on such post.

H. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1-

CHANCELLOR

19. The learned Attorney General for India appearing for the Chancellor made

the following submissions:

a. The plain reading of regulation 7.3, indicates that the selection of Vice-

Chancellor should be through proper scrutiny of merit by a panel of 3 to

5 persons (Search-cum-Selection Committee) through a public

Page 29 of 72 notification. The Search-cum-Selection Committee should be of persons

of eminence in the sphere of Higher Education and the members should

not be in any manner connected with the university concerned or its

colleges. The Regulations further mandate that one of the members of

the Search-cum-Selection Committee shall be nominated by the UGC for

selection of Vice-Chancellor of State. In the present case, Regulation No.

7.3 of the UGC Regulations has not been complied with at all and

therefore on this ground alone the reappointment of the respondent No.

4 as the Vice-Chancellor should be cancelled by a writ of quo-warranto.

b. The State Government having adopted the UGC Regulations, the

Regulations made by the Parliament under Entry 25 of List III shall

prevail over the State legislation. Once the UGC Regulations prescribe

the procedure and method for appointment of Vice- Chancellor, the

University has to comply with the Regulations, which has not been

followed in the present case. Therefore, the High Court erred in not

following the UGC Guidelines.

20. The learned Attorney General invited the attention of this Court to a press

release issued by the Kerala Raj Bhavan dated 03.02.2022 which is at Annexure

P-18 at page 136:

Page 30 of 72

“03 February 2022 PRESS RELEASE Kannur Varsity: Facts grossly distorted.

Kerala Raj Bhavan strongly refutes the claim in some news reports that it was on the direction of Hon'ble Governor that the name of Dr. Gopinath Ravindran was suggested for reappointment as Vice Chancellor, Kannur University. The truth is that the same was initiated by the Chief Minister and Higher Education Minister.

To set the record straight, Raj Bhavan would like to place the chronology of events on the 21st, 22nd and 23rd of November, 2021.

The tenure of the Vice Chancellor, Kannur University was to end on the 23rd of November. A selection committee had already been constituted vide notification dated 27.10.2021 to select and appoint a new Vice Chancellor.

The Additional Chief Secretary, Higher Education Department, Government of Kerala had also issued a notification dated 01.11.2021 on behalf of the Selection Committee to invite the applications to the post of the Vice Chancellor.

While this process was on 21st November 2021, as deputed by Chief Minister, Shri K.K. Raveendranath, Legal Adviser to Chief Minister, met Hon'ble Governor at Kerala Raj Bhavan at 11.30 am. He conveyed to Hon'ble Governor, the Government's desire to reappoint Dr. Gopinath Ravindran as Vice Chancellor and informed that a formal request to this effect from the Minister for Higher Education was on the way to Raj Bhavan.

Hon'ble Governor, who had a different view on the matter, informed him that the proposal appeared legally untenable since the due process of selection was already in motion. On this, the Legal Advisor informed that the Government has examined the matter in detail and

Page 31 of 72 that the request was legally sound to withstand any legal scrutiny. He informed that Government had the legal advice and produced some typed papers.

Hon'ble Governor inquired about its source, as it was unsigned.

The Legal Advisor to the Chief Minister said it was the opinion of the Advocate General of Kerala and repeated the plea to consider the request of the Government to reappoint Dr. Gopinath Ravindran as Vice Chancellor, Kannur University.

At this juncture, Hon'ble Governor said the instant opinion said to be from Advocate General but without his signature and seal, was of no significance.

To this, the Legal Advisor said that he will produce the legal opinion bearing the signature and seal of Advocate General without delay.

As submitted by Legal Advisor to the Chief Minister earlier, a letter written by Dr. R. Bindu, Minister for Higher Education reached Raj Bhavan at 01.30 pm on 22.11.2021. The letter had highlighted Dr. Gopinath Ravindran's capabilities and desirability to be appointed for another term as Vice Chancellor.

In this letter, she had clearly requested Hon'ble Chancellor to "be pleased to cancel the notification dated 27.10.2021 appointing a Search-Cum-Selection Committee for identifying the person to be appointed as Vice Chancellor".

She also requested Hon'ble Chancellor's "pleasure in cancelling the notification dated 01.11.2021 and in re-appointing Dr Gopinath Ravindran for a continuous second term as Vice Chancellor of Kannur University".

Page 32 of 72 On 22nd November by 12.10 pm, Shri R. Mohan, Officer on Special Duty to Chief Minister and the Legal Advisor to Chief Minister had met the Hon'ble Governor, repeated their request and in support, submitted the signed legal opinion of the Advocate General which was addressed to the Additional Chief Secretary, Higher Education Department.

This opinion of the Advocate General substantially endorsed the request made earlier by Legal Advisor to Chief Minister in the personal meeting with the Governor and the request of the Higher Education Minister in her letter.

The eight-page opinion of the Advocate General which is addressed to the Additional Chief Secretary, Higher Education Department says that there was no legal bar in reappointing Dr. Gopinath Ravindran as Vice Chancellor, Kannur University, and that the age bar of 60 years fixed in the Kannur University Act, in as much as the same is contrary to the UGC Regulations, is without the authority of law and as such, inapplicable. The Advocate General summed up his opinion as under:-

"1. If the Hon'ble Chancellor accepts this recommendation, the notification dated 27.10.2021, appointing a Search Committee for identifying the person to be appointed as Vice Chancellor of the Kannur University may be withdrawn.

2. Pro-Chancellor may be permitted to submit necessary proposal for the re-appointment of the present incumbent of the post of Vice- Chancellor of the Kannur University as Vice Chancellor of the said University for a further continuous term of four years".

This opinion of the Advocate General was also forwarded separately to Kerala Raj Bhavan by the Minister for Higher Education on 22.11.2021 itself.

Page 33 of 72 In the light of the legal opinion thus received from the Advocate General, the file was processed and Hon'ble Governor agreed to accept the proposal of the Higher Education Minister.

At 04.30 pm, Principal Secretary to Governor wrote to Additional Chief Secretary, Higher Education, conveying the decision of the Hon'ble Chancellor "to withdraw the Notification dated 27.10.2021 and subsequent Corrigendum dated 03.11.2021" and "to permit the State Government to submit necessary proposal for the reappointment of the present incumbent in the post of Vice Chancellor Kannur University".

At 10.10 pm on the same day Kerala Raj Bhavan received the next letter from the Minister for Higher Education, informing that "steps have been taken to withdraw notification inviting applications" and that as Pro Chancellor, she was proposing the name of Dr. Gopinath Ravindran, the present incumbent Vice Chancellor to be re-appointed as Vice Chancellor of Kannur University for a second continuous term beginning from 24.11.2021.

Accordingly, on 23rd November, 2021, Kerala Raj Bhavan issued notification reappointing Dr. Gopinath Ravindran as Vice Chancellor, Kannur University.

Thus, the argument in the news reports that the 'Minister had only proposed a name in response to the Governor's letter', is far from the truth, which is clear from the chronology of events (which was also mentioned in Hon'ble Governor’s letter to Chief Minister on 08th December 2021).

In brief, the process of selection of Vice Chancellor, Kannur University which was set in motion vide Kerala Raj Bhavan notification dated 27.10.2021 came to an end consequent to the request from the Minister Higher Education, OSD to Chief Minister and Legal Advisor to the Chief Minister duly supported by the legal

Page 34 of 72 opinion of the Advocate General, Kerala, culminated in the reappointment of Dr. Gopinath Ravindran as Vice Chancellor, Kannur University.” (Emphasis supplied)

21. In such circumstances, the learned Attorney General for India prayed that

the reappointment of the respondent No. 4 as the Vice-Chancellor being contrary

to the UGC guidelines, the same deserves to be set at naught by issue of writ of

quo warranto.

I. RELEVANT PROVISIONS OF THE KANNUR UNIVERSITY ACT,

1996 & THE UGC REGULATIONS, 2018

22. Before adverting to the rival submissions canvassed on either side, we must

look into the relevant provisions of the Kannur University Act as well as the

relevant regulations of the UGC.

23. Section 10 of the Kannur University Act reads thus:

“(1) The Vice-Chancellor shall be appointed by the Chancellor on the recommendation of a committee appointed by him for the purpose (hereinafter referred to as the committee).

(2) The committee shall consist of three members, one elected by the Senate, one nominated by the Chairman of the University Grants Commission and the third nominated by the Chancellor.

(3) The Chancellor shall appoint one of the members of the committee to be its convener.

Page 35 of 72 (4) The committee shall make its recommendation within a period of three months of its appointment or within such further period, not exceeding one month, as the Chancellor may specify in this behalf.

(5) In case the committee unanimously recommends the name of only one person, the Chancellor shall appoint that person to be the Vice-

Chancellor.

(6) In the case the committee is unable to recommend a name unanimously, it may submit a panel of three names to the Chancellor within the period specified in or under sub-section (4) and the Chancellor shall appoint one of the persons in the panel to be the Vice- Chancellor.

(7) In case the committee fails to make a unanimous recommendation as provided in sub-section (5) or to submit a panel as provided in sub- section (6), each member of the committee may submit a panel of three names to the Chancellor and the Vice-Chancellor shall be appointed from among the persons mentioned in the panels.

(8) Non-submission of a panel under sub-section (7) by any member of the committee shall not invalidate the appointment of the Vice- Chancellor.

(9) No person who is more than sixty years of age shall be appointed as Vice-Chancellor.

(10) The Vice-Chancellor shall, hold office for a term of four years from the date on which he enters upon his office and shall be eligible for re-appointment:

Provided that a person shall not be appointed as Vice-Chancellor for more than two terms.”

Page 36 of 72

24. Section 10 of the Act 1996 referred to above, envisages distinct situations

namely:

(a) Appointment of a Vice-Chancellor by the Chancellor out of a panel of

three names recommended by the search committee constituted by the

State Government;

(b) No person above sixty years of age is eligible to be appointed as a

Vice-Chancellor;

(c) Reappointment in respect of which, the power is vested in the

Chancellor under Section 10(10); and

(d) The proviso attached to sub-section (10) of the Section 10 stipulating

that a person shall not be appointed as Vice-Chancellor for more than

two terms.

25. Regulation 7.3 of the UGC Regulations deals with Vice-Chancellors and

reads as follows:

“7.3. VICE CHANCELLOR:

A person possessing the highest level of competence, integrity, morals and institutional commitment is to be appointed as Vice-Chancellor. The person to be appointed as a Vice-Chancellor should be a distinguished academician, with a minimum of ten years’ of experience as Professor in a University or ten years’ of experience in a reputed research and / or academic administrative organisation with proof of having demonstrated academic leadership.

ii. The selection for the post of Vice-Chancellor should be through proper identification by a Panel of 3-5 persons by a Search-cum-

Page 37 of 72 Selection-Committee, through a public notification or nomination or a talent search process or a combination thereof. The members of such Search-cum-Selection 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 cum-Selection Committee shall give proper weightage to the 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. One member of the Search cum Selection Committee shall be nominated by the Chairman, University Grants Commission, for selection of Vice Chancellors of State, Private and Deemed to be Universities.

iii. The Visitor/Chancellor shall appoint the Vice Chancellor out of the Panel of names recommended by the Search-cum-Selection Committee.

iv. The term of office of the Vice-Chancellor shall form part of the service period of the incumbent making him/her eligible for all service related benefits.” (Emphasis supplied)

26. Few salient features of the Regulation 7.3 of the UGC Regulations referred

to above are thus:

(a) The selection of the Vice-Chancellor should be through proper

identification by a panel of 3-5 persons by constituting a Search-cum-

Selection Committee through a public notification or nomination or

a talent search process or a combination of all the four.

Page 38 of 72

(b) The members of the Search-cum-Selection Committee should be

persons of eminence in the field of higher education and they shall

not be connected in any manner with the university concerned or its

colleges.

(c) The Selection Committee for the purpose of preparing the panel shall

give proper weightage to the academic excellence, exposure to the

higher education system in the country and abroad and adequate

experience in academic and administrative governance. The panel

shall place its recommendation before the Chancellor.

(d) One member of the Selection Committee would be nominated by the

Chairman, UGC.

J. WRIT OF QUO WARRANTO

27. Quo warranto is a judicial remedy against an intruder or usurper of an

independent substantive public office or franchise or liberty. The usurper is asked

‘by what authority’ (quo warranto) he is in such office, franchise, or liberty. A

writ of quo warranto thus poses a question to the holder or occupier of a public

office, and that question is: “Where is your warrant of appointment by which you

are holding this office?” If the answer is not satisfactory, the usurper can be ousted

by this writ.

Page 39 of 72

28. The writ of quo warranto is an ancient Common Law remedy of a

prerogative nature. It was a writ of right used by the Crown against a person

claiming any office, franchise, or liberty to inquire by what authority he was in

the office, franchise of liberty. In case his claim was not well founded or there

was non-use, neglect, misuse, or abuse of the office, he was to be ousted.

29. Quo warranto is a writ that lies against a person who usurps any franchise,

liberty, or office.

In Corpus Juris Secundum, quo warranto is defined thus;

“Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and to oust the holder if his claim is not well founded, or if he has forfeited his right.”

Blackstone, states: “The ancient writ of quo warranto was in the nature of a writ

of right for the King against any office, franchise or liberty of the Crown to inquire

by what authority he supported his claim, in order to determine the right.”

30. Quo warranto is a remedy or procedure whereby the State inquires into the

legality of the claim which a party asserts to an office or franchise, and to oust

him from its enjoyment if the claim be not well founded, or to have the same

declared forfeited and recover it, if, having once been rightfully possessed and

enjoyed; it has become forfeited for mis-user or non-user.

Page 40 of 72

31. In B.R. Kapur v. State of T.N. and Another reported in (2001) 7 SCC 231,

after referring to Halsbury's Laws of England, Words and Phrases and leading

decisions on the point, it was observed that a writ of quo warranto is a writ which

lies against the person who is not entitled to hold an office of public nature and is

only a usurper of the office. Quo warranto is directed to such person who is

required to show by what authority he is entitled to hold the office. The challenge

can be made on various grounds, including the ground that the possessor of the

office does not fulfill the required qualifications or suffers from any

disqualification, which debars him to hold such office. It was further stated that

on being called upon to establish valid authority to hold a public office, if such

person fails to do so, a writ of quo warranto shall be directed against him. It shall

be no defence by the holder of the office that the appointment was made by the

competent authority, who under the law is not answerable to any court for

anything done in performance of duties of his office. The question of fulfilling

legal requirements and qualifications necessary to hold a public office would be

considered in the proceedings independent of the fact as to who made the

appointment and the manner in which the appointment was made.

32. Any person may challenge the validity of an appointment of a public office,

whether any fundamental or other legal right of his has been infringed or not. But

the court must be satisfied that the person so applying is bona fide and there is a

Page 41 of 72 necessity in public interest to declare judicially that there is a usurpation of public

office. If the application is not bona fide and the applicant is a mere pawn or a

man of straw in the hands of others, he cannot claim the remedy. Though the

applicant may not be an aspirant for the office nor has any interest in appointment,

he can apply as a private relator, or an ordinary citizen.

33. These rival submissions would need to be analyzed. However, before we

enter into a substantive analysis of the submissions, it would be appropriate to

deal with the procedural objection regarding the limits of the writ of quo

warranto.

34. Through a line of cases, this Court has laid out the terms on which the writ

of quo warranto may be exercised. In The University of Mysore and Anr. v. C.D.

Govinda Rao and Anr., a Constitution Bench of this Court, speaking through

Justice Gajendragadkar (as he then was), held that: (1964) 4 SCR 575

“Broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the Executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of

Page 42 of 72 the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not.

(Emphasis supplied)

35. In High Court of Gujarat and Another v. Gujarat Kishan Mazdoor

Panchayat and Ors. reported in (2003) 4 SCC 712, in his concurring opinion in

a three-Judge Bench, Justice SB Sinha, held that:

“22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact on the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India [(1993) 4 SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464], SCC para 74.)

23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana (2002) 6 SCC 269.)”

36. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage

Board Employees' Assn. reported in (2006) 11 SCC 731, the limitations of the

writ of quo warranto were elaborated upon by a two-Judge Bench of this Court.

The court observed:

Page 43 of 72

“49. … The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.

xxx xxx xxx

51. It is settled law by a catena of decisions that the court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain v. Union of India [(1993) 4 SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464] was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, may it be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person, that is, the non-appointee to assail the legality or correctness of the action and that a third party has no locus standi to canvass the legality or correctness of the action.

Further, it was declared that public law declaration would only be made at the behest of a public-spirited person coming before the court as a petitioner…” (Emphasis supplied)

37. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and Ors.

reported in (2014) 1 SCC 161, another two-Judge Bench of this Court reiterated

that:

“21. …the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action

Page 44 of 72 should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority.

(Emphasis supplied)

38. More recently, in Bharati Reddy v. State of Karnataka and Others

reported in (2018) 6 SCC 162, a three-Judge Bench of this Court, of which one of

us (Justice D.Y. Chandrachud) was a part, noted the line of precedent clarifying

the remit of the writ of quo warranto.

39. Through these decisions, the Court has settled the position that the writ of

quo warranto can be issued where an appointment has not been made in

accordance with the law. Accordingly, the rival contentions must be analyzed by

dealing with the scheme of the statutory provisions governing the appointment

and reappointment of the Vice-Chancellor.

K. QUESTIONS OF LAW FORMULATED.

40. Having heard the learned counsel appearing for the parties and having gone

through the materials on record the following questions of law fall for our

consideration:

(i) Whether reappointment is permissible in respect of a tenure post?

(ii) Whether the outer age limit of sixty years for the appointment of Vice-

Chancellor as stipulated under sub-section (9) of Section 10 of the Act

Page 45 of 72 1996 is to be made applicable even in the case of reappointment of the

Vice-Chancellor for one more term of four years?

(iii) Whether the reappointment of the Vice-Chancellor has to follow the

same process as a fresh appointment by setting up a selection committee

under Section 10(1) of the Act 1996?

(iv) Did the Chancellor abdicate or surrender his statutory power of

reappointment of the Vice-Chancellor?

L. ANALYSIS

i) Whether reappointment is permissible in respect of a Tenure Post?

41. It was argued on behalf of the appellants that in the case of a tenure post

such as the post of Vice-Chancellor, there can be no reappointment. In other

words, at the end of the tenure the appointment automatically comes to an end and

there can only be a fresh appointment and not reappointment.

42. In the aforesaid context, it is necessary to understand what is meant by a

“tenure post”. The word “Tenure” is derived from the Latin word tenere which

means “to hold”. The Black’s Law Dictionary defines “tenure” in the context of

a post or office as follows [See: Henry Campbell Black on “Black’s Law

Dictionary”, 1968, 4th Edition Pg. 1639]: -

“TENURE IN OFFICE. Right to perform duties and receive emoluments thereof.”

Page 46 of 72

43. This Court in its decision in Dr. L.P. Agarwal (supra), while examining

what is meant by a “tenure post” held that it is a post where the person appointed

to it is entitled to continue in it till his term is complete unless it is curtailed for

justifiable reasons. The relevant observations read as under: -

“16. …Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. …”

44. A similar view as aforesaid was taken by this Court in P. Venugopal v.

Union of India reported in (2008) 5 SCC 1.

45. In another decision of this Court in J.S. Yadav v. State of Uttar Pradesh

and Another reported in (2011) 6 SCC 570, it was held that a person appointed

to a tenure post only goes out once the tenure is completed. The relevant

observations are reproduced below: -

“17. An employee appointed for a fixed period under the statute is entitled to continue till the expiry of the tenure and in such a case there can be no occasion to pass the order of superannuation for the reason that the tenure comes to an end automatically by efflux of time….”

46. We are not impressed with the submission canvassed on behalf of the

appellants that the post of the Vice-Chancellor being a “tenure post”

reappointment is not permissible. The statute itself has provided for Page 47 of 72 reappointment with some object in mind. The ordinary meaning that can be

ascribed to the term “reappointment” is the act or process of deciding essentially

that someone should continue in a particular job. Ordinarily, the object behind

providing for reappointment is twofold. First is “retention” i.e., where the

incumbent to the office/post during his term is found to be extraordinary and has

established himself or herself to be an asset to the institution, then in such

circumstance, such person is retained with a view to allow him to continue on the

same post for one more term. Secondly, having regard to the nature of the post

the organization or institution may not be in a position to fill up the post in a time

bound manner and in such circumstances, the provision for reappointment may

enable the organization or institution to relieve itself of the tedium of going

through the entire selection process afresh every time the post becomes vacant.

47. In view of the aforesaid, we hold that reappointment is permissible even in

case of a tenure post.

ii) Whether the outer-age limit stipulated under sub-section (9) of Section 10 of the Act 1996 is applicable in case of reappointment of the Vice- Chancellor?

48. On a plain reading of sub-section (9) of Section 10 of the Act 1996, it

appears that the person sought to be appointed as a Vice-Chancellor must not be

more than sixty-years of age at the time of appointment i.e., it provides the outer

Page 48 of 72 age limit for appointment. While sub-section (10) of Section 10 of the Act 1996

provides that upon appointment, the term of the Vice-Chancellor would be for

four years and that he shall be eligible for reappointment. The proviso attached to

sub-section (10) stipulates that no person shall be appointed as Vice-Chancellor

for more than two terms.

49. A close reading of the statutory provisions of Section 10 of the Act 1996

would reveal that sub-section (9) deals with a situation prior to or leading upto the

appointment of Vice-Chancellor whereas sub-section (10) contemplates a

situation after the appointment of Vice-Chancellor has been made. This is

discernible from a very fine but pertinent distinction between the language of the

two provisions. Sub-section (9) which provides the outer age limit for

appointment uses the word “person”. This connotes that the Vice-Chancellor is

yet to be appointed whereas sub-section (10) uses the word “Vice-Chancellor”

which connotes that it is applicable to the incumbent holding the office of Vice-

Chancellor or simpliciter the Vice-Chancellor after having been appointed.

50. Thus, in our view sub-section (9) of Section 10 of the Act 1996 will apply

only at the stage of appointment of Vice-Chancellor and would have no

application whatsoever when it comes to reappointment of Vice-Chancellor under

sub-section (10). This is reinforced from the words “shall be eligible for re-

appointment” occurring in sub-section (10) which connotes that the same is an

Page 49 of 72 enabling provision whereby the Vice-Chancellor by virtue of holding his office is

deemed eligible for reappointment irrespective of the other provisions.

51. We are conscious of the fact that, the proviso to sub-section (10) which

provides that the Vice-Chancellor shall not be appointed for more than two terms

also uses the word “person” which in our opinion is a deliberate choice. We say

so because the proviso deals with a situation where the Vice-Chancellor has

demitted office by virtue of lapse of his tenure.

52. The aforesaid aspect may be looked at from one another angle. If we were

to hold that the outer age limit provided in sub-section (9) would apply even to

reappointment, then the same would effectively mean that only those persons who

are appointed as Vice-Chancellor at the age of fifty-five or below could be

considered for reappointment. Such an interpretation would result in conditions

being read into sub-section (10) which have not been prescribed by the legislature.

Had the intent of legislature been otherwise, sub-section (10) or the words “shall

be eligible for re-appointment” would have been specifically qualified by or made

subject to the words “sub-section (9)” or “provisions of this section”.

53. If sub-section (9) is interpreted so as to be made applicable even to

reappointment as provided in sub-section (10), then the result would be that any Page 50 of 72 person who is appointed as Vice-Chancellor at the age of fifty-six or more would

not be eligible for reappointment, thereby rendering sub-section (10) and its

proviso completely otiose and meaningless in such cases.

54. This would also severely curtail the scope of the selection committee while

considering candidates for the post of Vice-Chancellor, as the selection committee

in such case would be inclined to consider younger candidates over older and

possibly more qualified and experienced ones who may be more suitable

considering the coveted nature of the post and the duties expected to be

discharged. Moreover, it would inhibit a Vice-Chancellor who has already held

office and proven himself to be a valuable asset during his tenure from being

reappointed if he happens to be of more than sixty-years of age. This would

frustrate the very purpose of ‘reappointment’ which given the nature of the post

of Vice-Chancellor is all the more important as it is the Vice-Chancellor who is

responsible for the day-to-day functioning as well as the overall performance of

the University, its faculty, students etc.

55. Even otherwise, the interpretation as sought to be placed by the appellants

would lead to a very absurd situation, where a Vice-Chancellor of sixty-one years

age cannot be reappointed to hold the office of Vice-Chancellor, however, at the

same time another person would still be able to hold the office of Vice-Chancellor

Page 51 of 72 at the very same age of sixty-one years only by reason of him being appointed at

the age of fifty-nine years. This appears to be bereft of any logic, more particularly

when sub-section (9) does not say that a person shall hold office of Vice-

Chancellor till he attains the age of sixty years and rather uses the expression “No

Person who is more than sixty years of age shall be appointed as Vice-

Chancellor”.

56. The doctrine of purposive construction may be taken recourse to for the

purpose of giving full effect to the statutory provisions, and the courts must state

what meaning the statute should bear, rather than rendering the statute a nullity,

as statutes are meant to be operative and not inept. The courts must refrain from

declaring a statute to be unworkable. The rules of interpretation require that

construction which carries forward the objectives of the statute, protects interest

of the parties and keeps the remedy alive, should be preferred looking into the text

and context of the statute. Construction given by the court must promote the object

of the statute and serve the purpose for which it has been enacted and not efface

its very purpose. The courts strongly lean against any construction which tends to

reduce a statute to futility. The provision of the statute must be so construed as to

make it effective and operative. The court must take a pragmatic view and must

keep in mind the purpose for which the statute was enacted as the purpose of law

itself provides good guidance to courts as they interpret the true meaning of the Page 52 of 72 Act and thus legislative futility must be ruled out. A statute must be construed in

such a manner so as to ensure that the Act itself does not become a dead letter and

the obvious intention of the legislature does not stand defeated unless it leads to a

case of absolute intractability in use. The court must adopt a construction which

suppresses the mischief and advances the remedy and to suppress subtle

inventions and evasions for continuance of the mischief, and pro privato

commodo, and to add force and life to the cure and remedy, according to the true

intent of the makers of the Act, pro bono publico. The court must give effect to

the purpose and object of the Act for the reason that legislature is presumed to

have enacted a reasonable statute. (Vide M. Pentiah v. Muddala

Veeramallappa [AIR 1961 SC 1107], S.P. Jain v. Krishna Mohan

Gupta [(1987) 1 SCC 191], RBI v. Peerless General Finance and Investment

Co. Ltd. [(1987) 1 SCC 424], Tinsukhia Electric Supply Co. Ltd. v. State of

Assam [(1989) 3 SCC 709], SCC p. 754, para 118, UCO Bank v. Rajinder Lal

Capoor [(2008) 5 SCC 257] and Grid Corpn. of Orissa Ltd. v. Eastern Metals

and Ferro Alloys [(2011) 11 SCC 334].)

57. Thus, in view of the aforesaid, we hold that the outer age limit of sixty years

provided in sub-section (9) of Section 10 of the Act 1996 will not apply, when it

comes to reappointment under sub-section (10) of Section 10 of the Act 1996.

Page 53 of 72

iii) Whether the reappointment of the Vice-Chancellor has to follow the same process as a fresh appointment under Section 10 of the Act 1996?

58. Reappointment of Vice-Chancellor has been provided under sub-section

(10) of Section 10 of the Act 1996. The proviso to sub-section (10) of the Act

1996 further makes the intention of the legislature to provide for reappointment

more clear. The legislature has not thought fit to prescribe any particular

procedure or any particular mode or manner of reappointment. The UGC

Regulations are also silent as regards the reappointment of Vice-Chancellor.

59. The language of sub-section (10) of Section 10 of the Act 1996 is plain and

simple. The provision does not confer right to seek reappointment. There is only

one way of reading the provision, which is, that a Vice-Chancellor once

appointed, subject to the proviso to sub-section (10) of Section 10, is eligible to

be considered for reappointment. What this implies is that an incumbent Vice-

Chancellor may not have to reapply along with other candidates and compete for

the same position once again. Reappointment essentially means the incumbent

Vice-Chancellor would receive another term of four years if the Chancellor deems

fit without reopening the position for new applications or without constituting a

select committee. “Re” means again, and is freely used as prefix. It gives colour

of “again” to the verb with which it is placed. “Reappointment” is an act or process

of being appointed again.

Page 54 of 72

60. Where the appointment is to be made for the first time or where the same

person is being appointed as a Vice-Chancellor for the second time, but not in

continuation of the first term, the procedure provided under Section 10 of the Act

1996 must be gone through. However, in the case of reappointment immediately

upon the tenure of the first term coming to an end, there is no requirement to initiate

the entire process of appointment as provided under Section 10 of the Act 1996.

61. In the aforesaid context, we may refer to a decision of this Court in the case

of Anindya Sunder Das (supra), authored by one of us Dr. D.Y. Chandrachud,

CJI. In the said case, the High Court at Calcutta had allowed a petition under

Article 226 of the Constitution seeking a writ of quo warranto against the Vice-

Chancellor of Calcutta University. The High Court held that the State Government

had no authority to appoint or reappoint the Vice-Chancellor under Section 8 of

the Calcutta University Act, 1979 (for short, “the Act 1979”) or by taking recourse

to the residuary provisions of Section 60 of the Act 1979. As a consequence, the

order issued by the Special Secretary to the Government of West Bengal

reappointing the incumbent Vice-Chancellor of Calcutta University was set aside.

The High Court held that the Vice-Chancellor had no authority to hold that office

on the basis of the order of appointment. The judgment of the Calcutta High Court

was challenged before this Court in Civil Appeal No. 6706 of 2022. One of the

issues that fell for consideration of this Court in the said case was, whether the

Page 55 of 72 same procedure which was provided for appointment of a Vice-Chancellor under

Section 8(1) was required to be followed at the time of reappointment.

62. It was argued that there is a distinction in law between appointment and

reappointment because in the case of the latter the zone of consideration is

restructured to persons already holding posts and in such case the suitability of

the incumbent which was assessed at the time of initial appointment need not be

reassessed.

63. This Court in the aforesaid case took the view that reappointment of the

Vice-Chancellor need not follow the same process as a fresh appointment by

setting up a selection committee. We may reproduce the relevant observations

made by this Court.

“45. It would be appropriate to also analyze whether the re- appointment of the VC has to follow the same process as a fresh appointment, by setting up a selection committee under Section 8(1) of the Act, as indicated by the Chancellor.

46. Section 8(6) stipulates the manner in which a vacancy in the office of the VC which occurs by reason of death, resignation, expiration of the term of office, removal or otherwise shall be filled up. The provision indicates that such vacancy shall be filled up in accordance with the provisions of sub-Section (1) of Section 8 of the Act. Section 8(6) has to be read in conjunction with Section 8(1) since the former expressly refers to the latter. The reference to the provisions of sub- Section (1) for filling up a vacancy on the expiration of the term of office will not obviously apply to a case of reappointment because the procedure contemplated by Section 8(1)(b) of a search committee would not attach to a reappointment. On this aspect, the High Court Page 56 of 72 has correctly disagreed with the petitioner before it and noted that amended Section 8(2)(a) which provides for the re-appointment of a VC for another term does not require that the procedure prescribed in Section 8(1) has to be followed for re-appointment” (Emphasis supplied)

64. We are conscious of the fact, that in Anindya Sundar Das (supra) the afore-

stated line of reasoning was adopted by this Court in view of the amendment that

was carried out whereby the original expression “subject to provisions of this

section” in the provision dealing with reappointment was deleted, in other words,

by virtue of such amendment the reappointment was no longer subject to the

provision / section detailing the ordinary procedure for appointment of Vice-

Chancellor, and thus, this Court had no hesitation in holding that the legislature’s

intent was to allow reappointment by the Chancellor itself without following the

ordinary process of appointment.

65. In the case at hand, sub-section (10) of Section 10 of the Act, 1996, provides

for reappointment and does not even contain the words “subject to provisions of

this section”. This in our opinion is as good as to reflect the legislature’s intention

of permitting reappointment without following the ordinary process of

appointment of Vice-Chancellor.

66. Thus, we hold that it is not necessary to follow the procedure of

appointment as laid down in Section 10 of the Act 1996 for the purpose of

reappointment.

Page 57 of 72

iv) Did the Chancellor abdicate or surrender his statutory power of reappointment of the Vice-Chancellor?

67. Before we proceed to answer the question whether the Chancellor abdicated

or surrendered his statutory power of reappointment, we must try to understand

the stance of the Chancellor in the present litigation as discernible from the

counter-affidavit filed by him. We are quite perplexed with the stance of the

Chancellor. The Chancellor wants this Court to allow the appeal and declare that

the reappointment of the respondent No. 4 as Vice-Chancellor is not sustainable

in law. The Chancellor says so because according to him the reappointment of the

respondent No. 4 is in conflict with the UGC Regulations.

68. The UGC Regulations are enacted by the UGC in exercise of powers under

Sections 26(1)(e) and 26(1)(g) of the UGC Act 1956. The Regulations framed

under the said Act, are laid before each House of the Parliament. Therefore, being

a subordinate legislation, the UGC Regulations becomes a part of the Act. In case

of any conflict between the State legislation and the Central Legislation, the

Central Legislation shall prevail by applying the rule/principle of repugnancy as

enunciated in Article 254 of the Constitution as the subject “Education” is in the

Concurrent List (Entry No. 25 of List III) of the VII Schedule of the Constitution.

Therefore, any appointment or reappointment as a Vice-Chancellor contrary to

the provisions of the UGC Regulations could be said to be in violation of the

statutory provisions. However, the moot question is whether in the present case, Page 58 of 72 there is any conflict between the State Legislation and the UGC Regulations? The

UGC Regulations more particularly the Regulation 7.3 which, we have referred

to in the earlier part of our judgment only talks about appointment of Vice-

Chancellor. The UGC Regulations provide for the procedure to be adopted for

appointment of Vice-Chancellor. The UGC Regulations are silent in so far as

reappointment of the Vice-Chancellor is concerned. There is no specific

procedure prescribed by the UGC under its regulations for the purpose of

reappointment of Vice-Chancellor. The entire focus of the Chancellor is on the

aforesaid. However, nothing has been said in the counter-affidavit filed on behalf

of the Chancellor as regards Chancellor’s own independent satisfaction or

judgment for the purpose of reappointment of the respondent No. 4 as Vice-

Chancellor.

69. It is in such circumstances that we have thought fit to pose a question

whether the Chancellor abdicated his statutory power?

70. It has been stated by Wade and Forsyth in Administrative Law, 7th Edn. at

pp. 358-59 under the heading “Surrender, Abdication, Dictation” and sub-heading

“Power in the wrong hands” as below:

“Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting

Page 59 of 72 to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them….

Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise….” (Emphasis supplied)

71. It is a well settled (and indeed, bedrock) principle of administrative law that

if a statute expressly confers a statutory power on a particular body or authority

or imposes a statutory duty on the same, then such power must be exercised or

duty performed (as the case may) by that very body or authority itself and none

other. If the body or authority exercises the statutory power or performs the

statutory duty acting at the behest, or on the dictate, of any other body or person,

then this is regarded as an abdication of the statutory mandate and any decision

taken on such basis is contrary to law and liable to be quashed. It is important to

keep in mind that, in law, it matters not that the extraneous element is introduced

(i.e., the advice, recommendation, approval, etc. of the person not empowered by

the statute is obtained or given) in good faith or for the advancement of any goal

or objection howsoever laudable or desirable. The rule of law requires that a

statutory power vests in the body or authority where the statute so provides, and

likewise, the discharge of the statutory duty is the responsibility of the body or

Page 60 of 72 authority to which it is entrusted. That body or authority cannot merely

rubberstamp an action taken elsewhere or simply endorse or ratify the decision of

someone else.

72. The concept of discretionary power and the mode of its exercise by

statutory functionaries was an issue considered by this Court in Union of India v.

Kuldeep Singh reported in (2004) 2 SCC 590, where in paragraphs 20, 21 and 22,

it was held thus;

“20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary). In its ordinary meaning, the word “discretion” signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary.)

21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will Page 61 of 72 and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (per Lord Halsbury, L.C., in Sharp v. Wakefield [(1891 AC 173: (1886-90) All ER Rep 651 (HL)]. (Also See S.G. Jaisinghani v. Union of India (AIR 1967 SC 1427).

22. The word “discretion” standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in it implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility….” (Emphasis supplied)

73. Again, in Clariant International Ltd. and Another v. Securities &

Exchange Board of India reported in (2004) 8 SCC 524, this Court reiterated

these principles thus;

“27. In Kruger v. Commonwealth of Australia [(1997) 146 Aus LR 126] it is stated:

“Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention.....”

Page 62 of 72

28. The discretionary jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object sought to be achieved and the reasons for granting such wide discretion (See Narendra Singh v. Chhotey Singh [(1983) 4 SCC 131 : 1983 SCC (Cri) 788].

xxx xxx xxx

29. A discretionary jurisdiction, furthermore, must be exercised within the four corners of the statute. [See Akshaibar Lal (Dr.) v.

Vice-Chancellor, Banaras Hindu University [(1961) 3 SCR 386 : AIR 1961 SC 619] and also para 9-022 of de Smith, Woolf and Jowell:

Judicial Review of Administrative Action, 5th Edn., p.445].”

74. Similar are the principles laid down in Joint Action Committee of Air Line

Pilots' Association of India (ALPAI) and Others v. Director General of Civil

Aviation and Others reported in (2011) 5 SCC 435, where it has been held that:

“26. ... It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide Purtabpore Co. Ltd. v. Cane Commr. of Bihar [(1969) 1 SCC 308 : AIR 1970 SC 1896], Chandrika Jha v. State of Bihar [(1984)2 SCC 41 : AIR 1984 SC 322], Tarlochan Dev Sharma v. State of Punjab [(2001) 6 SCC 260 : AIR 2001 SC 2524] and Manohar Lal v. Ugrasen [(2010) 11SCC 557 : (2010) 4 SCC (Civ)524 : AIR 2010 SC 2210].

Page 63 of 72

27. Similar view has been reiterated by this Court in Commr. of Police v. Gordhandas Bhanji (AIR 1952 SC 16), Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia [(2004) 2 SCC 65 : AIR 2004 SC 1159] and Pancham Chand v. State of H.P. [(2008) 7 SCC 117 : AIR 2008 SC 1888] observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme.

28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner.” (Emphasis supplied)

75. In Hardwari Lal, Rohtak v. G.D. Tapase, Chandigarh and

others reported in AIR 1982 Punjab and Haryana 439 (Full Bench) the powers of

the Governor with respect to the appointment/removal of the Vice-Chancellor of

Maharshi Dayanand University, Rohtak under the Maharshi Dayanand University

(Amendment) Act, 1980 were considered wherein a direction was sought with

regard to the renewal of the term of the Vice-Chancellor of the said University.

Certain promises had been made in connection with the same while making such

appointment. The Court held that as the Governor was the ex officio Chancellor

of the University, therefore, by virtue of his office, he was not bound to act under

the aid and advice of the Council of Ministers. Under Article 154 of the

Constitution, the executive powers of the State are vested in the Governor which

Page 64 of 72 may be exercised by him either directly, or through officers subordinate to him,

in accordance with the provisions of the Constitution. Article 161 confers upon

the Governor, a large number of powers including the grant of pardon, reprieves,

respites or remissions of punishment, etc. Such executive power can be exercised

by him only in accordance with the aid and advice of the Council of Ministers.

Article 162 states that the executive power of the State shall extend to all such

matters with respect to which the Legislature of the State has the power to make

laws. Therefore, the said provision widens the powers of the Governor. Article

166(3) of the Constitution further bestows upon the Governor the power to make

rules for more convenient transactions of business of the Government of the State

and also for the purpose of allocating among the Ministers of State such business.

There are several ways by which, a power may be conferred upon the Governor,

or qua the Governor, which will enable him to exercise the said power by virtue

of his office as Governor. Therefore, there can be no gainsaying that all the powers

that are exercisable by the Governor by virtue of his office can be exercised only

in accordance with the aid and advice of the Council of Ministers except insofar

as the Constitution expressly, or perhaps by necessary implication, provides

otherwise.

76. Thus, in such a situation, the statute makes a clear-cut distinction between

two distinct authorities, namely, the Chancellor and the State Government. When

Page 65 of 72 the legislature intentionally makes such a distinction, the same must also be

interpreted distinctly, and while dealing with the case of the Vice-Chancellor, the

Governor, being the Chancellor of the University, acts only in his personal

capacity, and therefore, the powers and duties exercised and performed by him

under a statute related to the University, as its Chancellor, have absolutely no

relation to the exercise and performance of the powers and duties by him while

he holds office as the Governor of the State.

77. Hardwari Lal (supra) has been referred to and relied upon by this Court

in Bhuri Nath and Others v. State of J&K and Others reported in (1997) 2

SCC 745. In the said case, the question that arose was in relation to whether

the Governor was bound to act in accordance with the aid and advice of the

Council of Ministers, or whether he could exercise his own discretion,

independent of his status and position as the Governor, by virtue of him being

the ex officio Chairman of the Shri Mata Vaishno Devi Shrine Board under

the Shri Mata Vaishno Devi Shrine Act, 1988. The Shrine Board discharges

functions and duties, as have been described under the Act in the manner

prescribed therein, and thus, after examining the scheme of the Act, this Court

held that, “In Hardwari Lal case [AIR 1982 P&H 439 : (1982) 1 SLR 39] , a

Full Bench of the Punjab and Haryana High Court was to consider whether

the Governor in his capacity as the Chancellor of Maharshi Dayanand

Page 66 of 72 University was to act under Maharshi Dayanand University Act, 1975

(Haryana Act No. 25 of 1975) in his official capacity as Chancellor or with

aid and advice of the Council of Ministers. The Full Bench, after elaborate

consideration of the provisions of the Act and the statutes, came to observe in

para 121 at p. 476 that the Act and the statutes intended that the State

Government would not interfere in the affairs of the University. The State

Government is an authority quite distinct from the authority of the Chancellor.

The State Government cannot advise the Chancellor to act in a particular

manner. The University, as a statutory body, autonomous in character, has

been given certain powers exercisable by the Chancellor in his absolute

discretion without any interference from any quarter. In the appointment of

the Vice-Chancellor or the Pro-Vice-Chancellor, the Chancellor is not

required to consult the Council of Ministers. Though by virtue of his office as

Governor, he becomes the Chancellor of the University, but while discharging

the functions of his office, he does not perform any duty or exercise any power

of the office of the Governor individually. However, while discharging the

functions as a Chancellor, he does every act in his discretion as Chancellor

and he does not act on the aid and advice of his Council of Ministers. The

performance of the functions and duties under the Constitution with the aid

and advice of the Council of Ministers is distinct and different from his

Page 67 of 72 discharge of the powers and duties of his office as Chancellor of the

University. Under the Act and the statute, the Chancellor has independent

existence and exercises his powers without any interference from any quarter.

Therefore, the office as a Chancellor held by the Governor is a statutory office

quite distinct from the office of the Governor. Same view was taken by the

Andhra Pradesh High Court in Kiran Babu case [AIR 1986 AP 275 : (1986)

1 An LT 36].”.

78. Bearing the aforesaid principles of law in mind, we proceed to consider

whether there was any independent application of mind or satisfaction on the part

of the Chancellor in reappointing the respondent No. 4 as Vice-Chancellor. The

facts narrated by us in the earlier part of our judgment speak for themselves. The

Chancellor had already initiated the steps for appointment of a new Vice-

Chancellor and this is evident by the fact that a selection committee was also

constituted vide Notification dated 27.10.2021. It appears that at that point of time

reappointment of the respondent No. 4 as Vice-Chancellor in accordance with

sub-section (10) of Section 10 of the Act 1996 was not in the mind of the

Chancellor.

79. The State of Kerala issued Notification dated 01.11.2021 inviting

applications from eligible candidates. All of a sudden, the Minister for Higher

Education and Social Justice in his capacity as the Pro-Chancellor addressed a

Page 68 of 72 letter to the Chancellor dated 22.11.2021 recommending reappointment of the

respondent No. 4 herein for a second term as Vice-Chancellor. It is also pertinent

to note that on 22.11.2021 itself the notification inviting application from the

eligible candidates was withdrawn. On the same date, the Minister addressed one

another letter to the Chancellor stating that the respondent No. 4 be reappointed

as Vice-Chancellor of Kannur University. On the very same day i.e., on

23.11.2021, the notification reappointing the respondent No. 4 as Vice-Chancellor

was issued.

80. It appears from the press release issued by the Kerala Raj Bhavan dated

03.02.2022 that the opinion of the Advocate General was also sought for in

connection with reappointment of the respondent No. 4 as Vice-Chancellor. The

very first para of the press release states that “Kerala Raj Bhavan strongly refutes

the claim in some news reports that it was on the direction of Hon'ble Governor

that the name of Dr. Gopinath Ravindran was suggested for reappointment as

Vice Chancellor, Kannur University. The truth is that the same was initiated by

the Chief Minister and Higher Education Minister.” The last part of the report

is also relevant. It states that the process of selection of Vice-Chancellor which

was set in motion vide Notification dated 27.10.2021 came to an end consequent

to the request from the Minister of Higher Education and the opinion of the

Advocate General, State of Kerala.

Page 69 of 72

81. The aforestated facts make it abundantly clear that there was no

independent application of mind or satisfaction or judgment on the part of the

Chancellor and the respondent No. 4 came to be reappointed only at the behest of

the State Government.

82. Under the scheme of the Act 1996 and the statutes, the Chancellor plays a

very important role. He is not merely a titular head. In the selection of the Vice-

Chancellor, he is the sole judge and his opinion is final in all respects. In

reappointing the Vice-Chancellor, the main consideration to prevail upon the

Chancellor is the interest of the university.

83. The Chancellor was required to discharge his statutory duties in accordance

with law and guided by the dictates of his own judgment and not at the behest of

anybody else. Law does not recognise any such extra constitutional interference

in the exercise of statutory discretion. Any such interference amounts to dictation

from political superior and has been condemned by courts on more than one

occasions.

M. FINAL CONCLUSION

84. It is now well settled that a writ of quo warranto lies if any appointment to

a public office is made in breach of the statute or the rules. In the case on hand,

we are not concerned with the suitability of the respondent No. 4. The “suitability” Page 70 of 72 of a candidate for appointment to a post is to be judged by the appointing authority

and not by the court unless the appointment is contrary to the statutory

rules/provisions. We have reached to the conclusion that although the notification

reappointing the respondent No. 4 to the post of Vice-Chancellor was issued by

the Chancellor yet the decision stood vitiated by the influence of extraneous

considerations or to put it in other words by the unwarranted intervention of the

State Government.

85. It is the Chancellor who has been conferred with the competence under the

Act 1996 to appoint or reappoint a Vice-Chancellor. No other person even the

Pro-Chancellor or any superior authority can interfere with the functioning of the

statutory authority and if any decision is taken by a statutory authority at the

behest or on a suggestion of a person who has no statutory role to play, the same

would be patently illegal.

86. Thus, it is the decision-making process, which vitiated the entire process of

reappointment of the respondent No. 4 as the Vice-Chancellor. The case on hand

is not one of mere irregularity.

87. We emphasise on the decision-making process because in such a case the

exercise of power is amenable to judicial review.

Page 71 of 72

88. In Chief Constable of the North Wales Police v. Evans reported in (1982)

1 WLR 1155 : (1982) 3 All ER 141 (HL), Lord Brightman observed thus: (WLR

p. 1174 G)

“… Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

89. In view of the aforesaid, we allow this appeal.

90. The impugned judgment and order passed by the High Court dated

23.02.2022 is hereby set aside. As a consequence, the Notification dated

23.11.2021, reappointing the respondent No. 4 as the Vice-Chancellor of the

Kannur University is hereby quashed.

91. Pending application(s) if any shall stand disposed of.

………………….……………CJI.

(Dr. Dhananjaya Y. Chandrachud)

………….………………….. J.

(J.B. Pardiwala)

…...………………………….J. (Manoj Misra)

New Delhi:

Date: November 30, 2023.

Page 72 of 72