TaxTMI 
TaxTMI 
2023 (11) TMI 1289
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Selection Committee 5 ii) Notification dated 01.11.2021 inviting applications for selection of Vice-Chancellor 6 iii) Letter of the Minister for Higher Education / Pro-Chancellor dated 22.11.2021 recommending reappointment of the Respondent No. 4 7 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 Warr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ame 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 [email protected] on or before 5 PM on 30.11.2021. Sd/- Dr. Venu, IAS Additional Chief Secretary Higher Education, Environment Archaeology, Archives & Museum Departments." 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: "D.O. LETTER NO. 401/2021/M (H.Edn & SJ) DATED 22/11/2021 Honourable Governor, Kind attent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h-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: "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 E....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, 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. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pose of re-appointment, thus, in such circumstances, writ of quo-warranto cannot be issued." (Emphasis supplied) 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nto, 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 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. Othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cases of reappointment. 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 perver....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tipulates 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. 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 pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent 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 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 subsection (1) of the rule making section, in which it would be st....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9) 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 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 plac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent 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. 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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'bl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nister 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. In the light of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. (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 ViceChancellor. (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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lent 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 Regulat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uthority 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. 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 es....
X X X X Extracts X X X X
X X X X Extracts X X X X
....om 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 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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.,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent 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 reappointment" occurring in sub-section (10) which connotes that the same is an 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 r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o 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 Act and thus legislative futility must be ruled out. A statute must be construed in such a manner so as to ensure t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....usly 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 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 aforestated 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lor. 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 ViceChancellor. 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rained 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 and private aff....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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]. 27. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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 d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ischarging 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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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" 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 th....