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2003 DIGILAW 277 (HP)

ARVIND CHAUHAN v. STATE OF HIMACHAL PRADESH

2003-09-15

R.L.KHURANA, V.K.GUPTA

body2003
JUDGMENT CMP No. 1522 of 2003. V.K. Gupta, CJ.—For the reasons stated, the application is allowed. Because the amendments sought and prayed for in the application are totally innocuous in nature and do not in any manner change the complexion of the case and the nature of the reliefs prayed for, there is no reason to refuse the prayer for amendment. The amended writ petition has been filled. It be taken on record. Application is disposed of. CWP No. 725/2003 2. Admit. Rule D.B. 3. With the consent of the parties, this petition is being finally disposed of today itself at this stage. Parties also submit that they do not want to file any other pleadings, except the only reply affidavit which has been filed on behalf of respondent No. 2 and even though no formal reply has been filed by respondent No. 4, yet because Mr. Khidtta appears for him and we also see that reply filed on behalf of respondent No. 2 has been supported by the affidavit of respondent No. 4, this reply is being treated by respondent No. 4 as well. 4. Under Section 15 of the H.P. University Act, 1970, it has been laid down that the Registrar, who is the Secretary of the Court, the Executive Council and the Academic Council, is to be appointed in the manner laid down in the Statutes, either by selection or on deputation, from amongst those eligible as per the existing provisions of the First Ordinances of the University. For ready reference Section 15 may be reproduced as here under, which reads thus:— "15. Registrar:— There shall be a Registrar who shall be the Secretary of the Court, the Executive Council and the Academic Council and shall be appointed in the manner laid down in the Statutes by selection or by deputation from amongst those eligible under the existing provisions of the First Ordinances of the University and shall exercise such powers and discharge such duties as may be prescribed by the Statues; Provided that the existing incumbent of the office of Registrar shall continue to hold office till he vacates it by appointment by transfer as the Controller of Examinations in terms of Section 15-A or by retirement, resignation or otherwise." 5. In so far as the issue relating to the manner in which the Registrar has to be appointed, as noticed, Section 15 says that the manner of his appointment shall be laid down in the Statutes but he shall be appointed either by selection or on deputation basis but every such person who may be appointed, either by selection or by deputation, has to be eligible under the existing provisions of the First Ordinances of the University. Eligibility, therefore, is prescribed in the First Ordinances. We repeat, the manner of appointment as laid down in the Statutes but the eligibility has been prescribed in the First Ordinances of the University. Let us, therefore, first have a look at the Statutes in respect of the manner of appointment of the Registrar. Statute 4(1) which alone is relevant for this purpose, reads thus:— "4. Registrar.—(1) The Registrar shall be a whole-time salaried officer of the University and he shall be appointed by the Executive Council on the recommendation of a Selection Committee constituted for the purpose on such terms and conditions, as may be prescribed by the Ordinances; Provided that a person appointed as Registrar shall retire from office when he completes the age of 60 years; Provided further that the first Registrar shall be appointed by the Chancellor for a term not exceeding five years." 6. Statute 4(1), therefore, clearly suggests that the Registrar shall be appointed by the Executive Council on the recommendation of the Selection Committee. The manner of appointment, therefore, as laid down in Statute 4(1) is that the Appointing Authority of the Registrar is Executive Council and the Executive Council shall make the appointment on the recommendation of a Selection Committee. Now, let us look at the Ordinances for finding out the eligibility criteria. Ordinance 27.5 reads thus :— "27.5 To be eligible for the selection to the post of Registrar a person must have the following minimum qualifications:— Masters degree in any faculty with five years experience as a Principal in a College affiliated to or maintained by the University. OR Teaching Experience as a Reader in a University, with five years administrative experience. OR Masters degree in any Faculty with five years experience as a Deputy Registrar or in an equivalent post in a University or Board of School Education. OR Teaching Experience as a Reader in a University, with five years administrative experience. OR Masters degree in any Faculty with five years experience as a Deputy Registrar or in an equivalent post in a University or Board of School Education. OR Masters degree in any Faculty with five years administrative experience in the Central or State Government administrative service (on deputation if necessary). OR Masters degree of a recognised University or its equivalent qualification with at least 10 years administrative experience in a University or an educational institution." 7. A cumulative reading of Statute 4(1) and Ordinance 27.5, in the light of the statutory requirement as contained in Section 15 (supra), suggests also that irrespective of whether the appointment is by selection or on deputation basis, the eligibility criteria as laid down in Ordinance 27.5 alone is applicable and for a valid reason. After all, the office of the Registrar of a University is not only an administrative appointment, pure and simple. Undoubtedly the Registrar of a University does perform mainly functions of administrative nature, yet he is supposed to be an academician also because, being the Registrar of a University he has to closely interact with the members of the teaching Faculty including the Vice Chancellor as well as the students and research scholars. A Registrar therefore, if he is possessed of inferior academic qualification is ill-equipped to perform his functions effectively. It is, therefore, for this reason that the Ordinances provided that even if a Registrar is appointed on deputation basis, he must be possessed of atleast Masters degree in any Faculty because any lesser qualification would perhaps be not commensurate with the requirements of the office of the Registrar, we were not referred to any other Ordinance, Statute or any provision of law which prescribes anything to the contrary in so far as eligibility criteria is concerned. Ordinance 27.5, inter alia, in so far it refers to the eligibility of a candidate for appointment as a Registrar on deputation basis is concerned, says that such a person (sought to be appointed on deputation) must be possessed of a Masters degree in any Faculty with five years administrative experience in the Central or State Government Administrative Service. We repeat that with respect to appointment by deputation, there is no separate eligibility criteria prescribed any where else and Ordinance 27.5 alone is applicable. We repeat that with respect to appointment by deputation, there is no separate eligibility criteria prescribed any where else and Ordinance 27.5 alone is applicable. Now it is the undisputed case of the respondents, including respondent No. 4 whose appointment as a Registrar has been challenged in this petition for issuance of a writ of quo-warranto, that respondent No. 4 is not possessed of Masters Degree in any of the Faculties; possessing Masters degree in any Faculty was a sine qua non for his appointment as a Registrar. In addition to that, the candidate being appointed on deputation basis must also have five years Administrative experience in government service. We have not been told in the Reply affidavit filed by respondent No. 2 or on the basis of the contemporaneous record, that respondent No. 4 at the time of his appointment had such five years administrative experience. This is one aspect of the matter. 8. On 29th March, 2003 vide communication No. Per (A-IV)B (G)-1/HPU dated 29th March, 2003, the Government of Himachal Pradesh had placed the services of respondent No. 4 at the disposal of the University of Himachal Pradesh for his appointment as a Registrar. On 3rd April, 2003 vide Office Order No. 14-35/76-HPU (Estt.) (1), respondent No. 4 was appointed as the Registrar of H.P. University by order of the Vice Chancellor under Statute 4(2) of the Statutes. This order reads thus :— "OFFICE ORDER" The Vice Chancellor under Statute 4(2) of the First Statutes of the Himachal Pradesh University has been pleaded to appoint Sh. R.D. Panwar, HAS, whose services have been placed at the disposal of the University on deputation by the State Government in Public Interest vide Notification No. Per (A-IV) B(6)-l/2003 dated 29th March, 2003, as Registrar of the University with immediate effect." 9. Since the appointment was made under Statute 4(2), let us have a look at Statute 4(2) which reads thus:— "4. (2) When the office of the Registrar is vacant or when the Registrar is by reason of illness or absence for any other cause unable to perform the duties of his office, the duties of the office shall be performed by such person as the Vice-Chancellor may appoint for the purpose." 10. (2) When the office of the Registrar is vacant or when the Registrar is by reason of illness or absence for any other cause unable to perform the duties of his office, the duties of the office shall be performed by such person as the Vice-Chancellor may appoint for the purpose." 10. A reading of the order dated 3rd April, 2003 in the light of Statute 4(2), on its very face suggests that, first of all the appointment of respondent No. 4 as a Registrar has not been made by the prescribed Appointing Authority, namely the Executive Council on the recommendation of the Selection Committee (refer to Statute 4(1),- and secondly Statute 4(2) was wrongly invoked and applied in appointing respondent No. 4 as Registrar by the order of Vice Chancellor. Statute 4(2) only talks of a contingent situation where owing to Registrars office having fallen vacant, the Vice Chancellor has been empowered to issue an order entrusting the task of performing the duties of the office of the Registrar to such a person as he may appoint in this behalf. Statute 4(2), does not relate to the appointment of a Registrar on regular basis. It caters only to a situation of a temporary nature. Appointment of Respondent No. 4 as Registrar Vide Order dated 3rd April, 2003 was patently bad in law and totally in violation of statute 4(1) since he was not appointed by the Executive Council. Vice-Chancellor had no power to appoint him on regular basis. Appointment by the Executive Council also has to be on the recommendation of a Selection Committee. Statute 4(1) clearly mandates that. The intention behind prescribing the requirement of the Selection Committee recommending the name to the Executive council of a qualified and eligible person for appointment as a Registrar is to ensure that the Executive Council has the advantage and benefit of an Expert Body which before making its recommendation has gone into the eligibility criteria and qualifications etc. as also the merit and suitability. The Selection Committee naturally is supposed to be comprised of Experts, looking into all aspects before it would make a recommendation to the Executive Council. 11. as also the merit and suitability. The Selection Committee naturally is supposed to be comprised of Experts, looking into all aspects before it would make a recommendation to the Executive Council. 11. Based on the aforesaid facts, therefore, we have no doubt in our minds that neither respondent No. 4 was possessed of (and is possessed of) the requisite eligibility qualification and experience for being appointed as Registrar, nor was his appointment made in accordance with the Statutes and the Ordinances. He all along was usurper of this office. 12. The documents filed as Annexures alongwith the writ petition as also with the reply on behalf of respondent No. 2 suggests that the University of Himachal Pradesh is presently beset with some internal problems of a wide magnitude and that everything does not seem to be fine and okay as far as the University affairs are concerned, as it present. It is apparently in the aforesaid background that the Chancellor of the University on 29th August, 2003 sent a communication to Universitys Vice Chancellor and its Executive Council wherein, inter alia, the Chancellor called upon the Vice Chancellor and the Executive Council, amongst others for taking up the issue of filling up the posts of Registrar, Controller of Examinations and the Finance Officer, which at present are being-occupied by "adhoc appointees", by regular appointments and to remove the occupants of the above referred posts, if they are not holding the minimum eligibility qualifications prescribed for holding the said posts and their replacement by eligible persons till the regular appointments take place (Emphasis supplied by us). For a better understanding of the aforesaid two requirements of the Chancellor as projected in the aforesaid communication, we reproduce hereinbelow the relevant extract of the aforementioned communication. Paras (3) and (4) read thus:— "(3) Immediate steps may be taken to fill in the posts of the Registrar, the Controller of Examinations and the Finance Officer, which are at present occupied by ad-hoc appointees, by regular appointments. (4) Immediate steps may be taken to remove any of the occupants of the above referred posts if they are not holding the minimum eligibility qualifications prescribed for holding the posts and their replacement by eligible persons till the regular appointments take place." 13. (4) Immediate steps may be taken to remove any of the occupants of the above referred posts if they are not holding the minimum eligibility qualifications prescribed for holding the posts and their replacement by eligible persons till the regular appointments take place." 13. It hardly needs to be emphasised that the Chancellor must have been concerned about the affairs of the University and must have been informed about the fact of the appointments of various officers, including the Registrar, allegedly wrongly made on the ground of lack of eligibility criteria. We need not emphasise more. 14. On 1st September, 2003 the Vice Chancellor has passed two orders; first bearing NO. 14-35/76-HPU (Estt.), whereby respondent No. 4 has been repatriated to his parent department and relieved from the office of the Registrar, H.P. University and secondly one Prof. Suresh Kapur, of the Department of Laws has been assigned the duties of the office of Registrar in terms of Statute 4(2). In so far as the first order is concerned, learned Advocate General appearing for respondent No. 1 has submitted before us that the Vice Chancellor had no power to do so. With reference to the aforesaid submission of learned Advocate General, we may refer to Section 12-C of the H.P. University Act, 1970 which defines the powers and duties of the Vice Chancellor. As per this section, the Vice Chancellor is the principal executive and academic officer of the University. Sub-sections (1) to (8) of this section confer upon the Vice Chancellor powers of wide amplitude relating to the exercise of general supervision and control of the affairs of the University. He is held responsible for the proper and efficient functioning of the University. He has also been entrusted with the powers of ensuring observance of the provisions of H.P. University Act, 1970, Statutes, Ordinances and Regulations and to ensure their observance he has been given the powers necessary for that purpose. Sub-sections (3) and (4) of Section 12-C of the Act, apart from other provisions, not only confer the aforesaid powers upon the Vice Chancellor, but also cast upon him an obligation to act in furtherance of the provisions of the Act. If, therefore, the Vice Chancellor found that respondent No. 4 was not possessed of requisite eligibility criteria, he had no option but to order his repatriation. If, therefore, the Vice Chancellor found that respondent No. 4 was not possessed of requisite eligibility criteria, he had no option but to order his repatriation. This, after he repeatedly had called upon respondent No. 4 to convey to him the qualifications possessed by him and respondent No. 4 declining to do so. This apart, apparently, the Vice Chancellor also was carrying into effect the wishes and desires, and implementing the directions of Chancellor as conveyed to him on 29th August, 2003 (supra). In so far as the second order passed on 1st September, 2003 assigning the duties of Vice Chancellor to Prof. Suresh Kapur is concerned, apparently this order has been passed in exercise of the powers vesting in the Vice Chancellor under Statute 4(2) because the office of Registrar consequent upon the repatriation of respondent No. 4 has admittedly fallen vacant and someone has to be assigned the task of performing the duties of that office. It is no ones contention that Prof. Suresh Kapur is not eligible for performing those duties. Even in the reply-affidavit filed on behalf of respondent No. 2 no disqualification has been attributed to Prof. Suresh Kapur in his being assigned the duties as above mentioned. 15. Interestingly respondent No. 4 has also not challenged or assailed the aforesaid repatriation order dated 1.9.2003. 16. In an earlier part of this order, we made references to certain goings on in the University as at present. Mr. M.S. Chandel, learned Advocate General, appearing for respondent No. 1 sharing our concern has gone a step further and submitted that respondent No. 4 in his capacity as the Registrar is possessed of documents and papers which have some vital bearing and close connection with the affairs of the University in the sense that these papers and documents might be required by the Vigilance Department in some on-going criminal investigation with respect to these matters. We equally if not more, share this concern of the learned Advocate General because we ourselves are very keen that whatever documents and papers respondent No. 4 has in his possession, which are relevant for any criminal investigation should be properly preserved and should not land in the possession of any unauthorised person. We equally if not more, share this concern of the learned Advocate General because we ourselves are very keen that whatever documents and papers respondent No. 4 has in his possession, which are relevant for any criminal investigation should be properly preserved and should not land in the possession of any unauthorised person. To ensure this, we direct both the State of Himachal Pradesh through Vigilance Department as well as respondent No. 4, that they both in coordination with each other, shall ensure that these papers and documents as are presently in possession of respondent No. 4 are made over by this respondent to the concerned Investigating Officer of the State Vigilance Department who is investigating this case so that these documents are properly kept in safe custody and are not tampered with, destroyed or, improperly dealt with in any manner. 17. The contents of the Chancellors communication dated 29th August, 2003 and the concern expressed by the learned Advocate General also about the affairs of the University, has impelled us to form a definite opinion that the important office of the Registrar cannot be allowed to remain vacant even for a day longer than required. Respondent No. 4 has been ordered repatriation. Prof. Suresh Kapur is not the regular Registrar and has only been assigned the task of performing the duties of Registrar by way of purely stop-gap arrangement in terms of Statute 4(2), which deals with transitory situations of interim nature. We, therefore, direct that till the office of Registrar is filled up on a regular basis, Prof. Suresh Kapur shall not take any important policy decision nor shall involve himself in important financial matters or dealings, and he shall only deal with routine affairs of the University, including signing of routine papers and documents, Certificates, Degrees etc. etc. With a view to ensuring that this situation is brought to an end sooner than later, we direct respondent No. 3 to ensure that the meeting of the Executive Council of the University is called very early, preferably within one week so that the Executive Council takes a decision about the appointment of the Registrar on regular basis as soon as it is possible. If the Executive Council feels any difficulty with respect to its functioning on the aforesaid aspect, it shall be open to it to obtain directions as well as guidance from the Chancellor of the University in accordance with the provisions of H.P. University Act, 1970. We also permit the parties, or the Executive Council, or any other functionary to approach this Court for any clarification, modification or otherwise, if any difficulty is even faced in the implementation of these directions. 18. The writ petition is accordingly disposed of. By issuance of a writ of quo warranto we hold that respondent No. 4 not being eligible and also having illegally been appointed, had wrongly been occupying the post of Registrar and he accordingly stands rightly repatriated to his parent department. He has thus ceased to be the Registrar, H.P. University. The post of Registrar which has now fallen vacant shall accordingly be filled up in the light of the directions hereinabove. Till such time this post is filled up on regular basis. Prof. Suresh Kapur, the person appointed in terms of Statute 4(2) to perform the duties of Registrar, H.P University vide order dated 1st September, 2003 passed by the Vice Chancellor (Annexure P-12) shall, subject to the directions hereinabove issued, continue to be the Registrar of Himachal Pradesh University. 19. Copies of this order, duly authenticated by the court Secretary, be supplied to the learned counsel for the parties. Petition disposed of.