M. Abdul Rahiman, Pro Vice Chancellor v. State of Kerala, Represented By Secretary to Government
2018-07-26
A.MUHAMED MUSTAQUE
body2018
DigiLaw.ai
JUDGMENT : 1. This writ petition is filed challenging termination of the petitioner as Pro-Vice-Chancellor of A.P.J. Abdul Kalam Technological University consequent upon resignation of Dr.Kuncheria P.Isaac on 31/12/2017. 2. The short issue to be considered in this writ petition is whether appointment of Pro-Vice-Chancellor is co-terminus with that of Vice Chancellor or not. The Chancellor, taking note of clause 7.2.0 of UGC Minimum Qualification Regulations, 2010, was of the view that the office of Pro-Vice-Chancellor is coterminus with the office of Vice Chancellor. Indisputably, the appointment was not made as coterminus. The statutory provisions under A.P.J.Abdul Kalam Technological University Act, 2015 ('University Act, 2015' for short) do not indicate that the office of the Pro-Vice-Chancellor is co-terminus with that of Vice Chancellor. The Chancellor, by placing reliance on the Full Bench Judgment of this Court in WPC 19796/2018 Radhakrishnan Pillai v. Travancore Devaswom Board [ 2016 (2) KLT 245 (F.B.)] was of the view that the State law is in conflict with the U.G.C. Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education, 2010 ('U.G.C. Regulations, 2010', for short) which was made in exercise of the powers conferred under the University Grants Commission Act, 1956 ('U.G.C. Act, 1956', for short) is inoperative and void. Accordingly, following the judgment of the Full Bench, the Chancellor by the impugned order directed the petitioner to vacate the office of the Pro-Vice- Chancellor. 3. It is appropriate in this context to refer UGC Regulations, 2010, in regard to the selection of Vice chancellor and Pro-Vice-Chancellor, which reads as follows: “7.0.0. SELECTION OF Pro-Vice-Chancellor/VICE - CHANCELLOR OF UNIVERSITIES: 7.1.0. PRO-VICE-CHANCELLOR: The Pro-Vice-Chancellor may be a whole time Professor of the University and shall be appointed by the Executive Council on the recommendation of Vice-Chancellor. 7.2.0. The Pro-Vice-Chancellor shall hold office for a period which is co-terminus with that of Vice-Chancellor. However, it shall be the prerogative of the Vice-Chancellor to recommend a new Pro-Vice-Chancellor to the Executive Council, during his tenure. These Regulations, for selection of Pro-Vice-Chancellor shall be adopted by the concerned University through amendment of their Act/Statute. Appointment of Pro-Vice-Chancellor in University Act, 2015 reads thus: “15.
However, it shall be the prerogative of the Vice-Chancellor to recommend a new Pro-Vice-Chancellor to the Executive Council, during his tenure. These Regulations, for selection of Pro-Vice-Chancellor shall be adopted by the concerned University through amendment of their Act/Statute. Appointment of Pro-Vice-Chancellor in University Act, 2015 reads thus: “15. Appointment, powers and duties of the Pro-Vice-Chancellor:- (1) The Chancellor shall appoint a person recommended by the Government, who is working in the field of engineering, technology and having the qualifications prescribed in the Statutes, to be the Pro-Vice-Chancellor, who shall be a fulltime salaried officer of the University. (2) No person who is more than sixty years of age shall be appointed as Pro-Vice-Chancellor. (3) The term of appointment of the Pro-Vice-Chancellor shall be for a period of four years and if found eligible for reappointment, he may be appointed for the next four years also: Provided that no person who is more than sixty years of age shall be eligible for reappointment. (4) The salary and other conditions of service of the Pro-Vice-Chancellor shall be as determined by the Chancellor. (5) Subject to the provisions of this Act and the Statutes, Ordinances and Regulations, the powers and duties of the Pro-Vice-Chancellor shall be determined by the Chancellor in consultation with the Vice-Chancellor and-the Pro-Vice-Chancellor shall exercise such powers and perform such duties in due course.” 4. The learned Senior Counsel for the petitioner argued that UGC Regulations, 2010, never intended that the office of the Pro-Vice-Chancellor is co-terminus with the Vice Chancellor. It is also argued that without declaring Section 15 of the University Act, 2015, as void, the Chancellor could not have ordered Pro-Vice-Chancellor to vacate the office. It is further argued that the Full Bench decision in Radhakrishnan Pillai's case (supra) was related to a dispute in regard to minimum qualification for appointment of teachers and other academic staff and therefore, it has no application to the facts involved in this case. 5. The learned Senior Counsel for the Chancellor defended the above order, placing reliance on the above Full Bench judgment as well as the judgment of the Madhya Pradesh High Court in State of M.P. And Another v. Mahendra Kumar Saraf and Ors. [ 2005 (4) MPHT 185 ]. Mahendra Kumar's case was relied upon by the learned Senior Counsel to amplify the meaning of the term 'coterminus' intended under the UGC Regulations, 2010. 6.
[ 2005 (4) MPHT 185 ]. Mahendra Kumar's case was relied upon by the learned Senior Counsel to amplify the meaning of the term 'coterminus' intended under the UGC Regulations, 2010. 6. I have also heard Shri Krishna Moorthy, learned Standing Counsel appearing for the University as well as for the University Grants Commission. The learned counsel pointed out that the UGC Regulations, 2010, are having a statutory character and it is for the Court to interpret such Regulations and University Grants Commission cannot clarify about the intention of the Regulation by way of an affidavit or statement. 7. There are apparent differences in the method of appointment of Pro-Vice-Chancellor in the University Act, 2015, from that of the UGC Regulations, 2010. The UGC Regulation, 2010, refers that the Pro-Vice- Chancellor shall be appointed by the Executive Council on the recommendation of the Vice Chancellor. Under Section 15 of the University Act, 2015, the Chancellor is the appointing authority based on the recommendation made by the Government. The Chancellor has no case that the appointment was void as it is in conflict with the UGC Regulations, 2010. The Full Bench judgment in Radhakrishna Pillai's case (supra) was arising from a dispute as to the application of qualification for appointment of teachers and the academic staff. Such qualifications are prescribed for co-ordination and determination of standards in the institutions for higher education. UGC Regulations, 2010, are made by virtue of the power referable to the UGC Act, 1956, a Central enactment. The power of the Union is referable to Entry 66, List I of Seventh Schedule of the Constitution of India. In regard to the power of the State, it is referable under Entry 25, List III Concurrent List. Such power of the State is subject to the provisions of Entry 66, List I. Therefore, by virtue of Entry 25 itself, the Central law will prevail, so far as the co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. That is to say, if the University Grants Commission had prescribed any Regulations to achieve standards of higher education, that would prevail over any law made by the State. 8. A State law may be inconsistent with the Union law in myriad of circumstances. Repugnancy of conflict will have to be viewed from the angle whether existence of both laws lead to different results.
8. A State law may be inconsistent with the Union law in myriad of circumstances. Repugnancy of conflict will have to be viewed from the angle whether existence of both laws lead to different results. If both the Central and State law are related to the same field and same aspect of the same subject, it cannot stand together at the same time, it can be said that there exist repugnancy or conflict. If the two enactments as above are incapable of reconciliation, the Central law will pro tanto supersede the State law. It is not because of the incompetency of the State law but for the inconsistency of the State law with the Central law. 9. On an analysis of Section 15 of the University Act, 2015, along with clause 7.2.0 of the UGC Regulations, 2010, it can be seen that the procedure for selection and the nature of tenure of the office are inconsistent. Section 15 refers to the office of the Pro-Vice-Chancellor as a tenure post and treating such holder of the post as full time salaried officer of the University. Section 15(3) States that a Pro- Vice-Chancellor is also eligible for reappointment. On the other hand, the office of the Pro-Vice-Chancellor as referred under the UGC Regulation is a pleasure appointment of the Vice Chancellor. Clause 7.1.0 gives certain hint as to the mode of appointment to be made. It refers, Pro-Vice-Chancellor may be the whole time Professor of the University, apparently refering to the same University. Evidently, the University Grants Commission conceived the office of the Pro-Vice- Chancellor with an expectation to work in co-ordination with the Vice Chancellor. Under the University Act, the powers and duties of the Pro-Vice-Chancellor are determined by the Chancellor in consultation with the Vice Chancellor. Under the UGC Regulations, appointment being prerogative appointment by the Vice Chancellor, the nature of powers and duties to be discharged by the Pro-Vice-Chancellor will have to be decided by the Vice Chancellor himself. Inconsistency as above on the face of two laws clearly points out that Section 15 of the University Act, 2015, laying down the procedure for selection is repugnant to UGC Regulations, 2010.
Inconsistency as above on the face of two laws clearly points out that Section 15 of the University Act, 2015, laying down the procedure for selection is repugnant to UGC Regulations, 2010. If any provisions made by law of the State Legislation are repugnant to any provisions of law made by the Parliament to the extent of repugnancy, the State law is void, under Article 254 of the Constitution of India. 10. The Full Bench of this Court in categorical terms in para.14 of Radhakrishnan's case (supra) held that in view of the adoption of UGC Regulations, 2010, by the State of Kerala with effect from 18.9.2010, the Universities and affiliated colleges in the State are bound to comply with the UGC Regulations, 2010. An argument may arise whether the procedure for selection and prescriptions of tenure of the office could not have any direct bearing on the standards of higher education being only directory. The Full Bench had not distinguished mandatory and directory nature of the UGC Regulations, 2010. Apart from that, if the provisions are inconsistent beyond any reconciliation, this Court cannot say that UGC Regulations, 2010, are not binding in regard to the selection procedure and to the tenure of office. No doubt, where a harmonious reading is possible and this will not lead to a different result, the Court can adopt such course. But this is not possible when both laws are inconsistent and irreconcilable, and that cannot stand together to operate at the same time. 11. A question arises as to the power of the Chancellor to pass the impugned order in the context of UGC Regulations, 2010. As per the UGC Regulation, 2010, the Executive Council is the appointing authority to appoint the Pro-Vice-Chancellor on the recommendation of the Vice Chancellor. If this Court has to hold that UGC Regulations, 2010, would apply, then the irresistible conclusion is that the Chancellor has no power to take a decision in this regard. It is only to be decided by the appointing authority. The Chancellor, while holding that, Section 15 has no application as it is void, the same provision cannot be relied upon to exercise the power of the appointing authority to pass the order directing the Pro-Vice- Chancellor to vacate the office. The Chancellor had not ordered that the appointment of the Pro-Vice- Chancellor is void in the light of the UGC Regulations, 2010.
The Chancellor had not ordered that the appointment of the Pro-Vice- Chancellor is void in the light of the UGC Regulations, 2010. In such circumstances, the Chancellor has no power under the UGC Regulation, 2010, or under the University Act, 2015, to pass the order directing the Pro-Vice-Chancellor to vacate the office. The Chancellor's power to remove the Vice Chancellor under Section 10(4) of the University Act, 2015, cannot be exercised to remove the Pro-Vice-Chancellor. There is no provision either in the University Act, 2015, or in the UGC Regulations, 2010, as to the manner in which the Pro-Vice-Chancellor can be removed. In view of the fact that under the UGC Regulations, 2010, appointment of Pro-Vice-Chancellor is a pleasure appointment to be made by the Executive Council on recommendation made by the Vice Chancellor, the Pro-Vice-Chancellor can hold the Office only during the pleasure of the Vice Chancellor. If reliance has to be placed on the University Act, 2015, the appointing authority is the Chancellor. However, on an application of UGC Regulations, 2010, the Chancellor has no role in the matter of appointment. In such circumstance, I have to hold that the Chancellor has no power to pass an order directing the petitioner to vacate the office of the Pro-Vice-Chancellor. 12. On an analysis of the UGC Regulations, 2010, in regard to appointment of Pro-Vice-Chancellor, it is clear that the appointment is a pleasure appointment to be made by the Executive Council on the recommendation of the Vice Chancellor. Both Vice Chancellor and Pro- Vice-Chancellor are having fixed period of office, that is the intention of the UGC Regulations, 2010. The intention is very clear; there shall be no stalemate or deadlock in administration on account of any difference of opinion between the Vice Chancellor and the Pro- Vice-Chancellor. The Pro-Vice-Chancellor's duty therefore, is to work in tandem with the Vice Chancellor. The normal tenure of Pro-Vice-Chancellor to hold office is for a period which is co-terminus with that of the Vice Chancellor. But that does not mean that the Pro-Vice-Chancellor cannot continue in the office if the Vice Chancellor demits the office prior to his fixed period. Clause 7.2.0 of the UGC Regulations, 2010, has two parts; one refers to the period and; the other refers to the prerogative nature of the appointment.
But that does not mean that the Pro-Vice-Chancellor cannot continue in the office if the Vice Chancellor demits the office prior to his fixed period. Clause 7.2.0 of the UGC Regulations, 2010, has two parts; one refers to the period and; the other refers to the prerogative nature of the appointment. The second part gives the clear intention behind the Regulation by the use of the adjective 'new' before the Pro-Vice-Chancellor stating it to be a pleasure appointment. The continuation of any incumbent in the office would depend upon the discretion of the incoming Vice Chancellor, that means, any Pro-Vice-Chancellor cannot, as a matter of right, claim the office for a fixed period; it is also left to the discretion of the Vice Chancellor. That be the case, the only person, who can decide whether the petitioner can continue in the office is the Vice Chancellor. The phrase 'co-terminus', therefore, has to be understood in the context of prerogative to be exercised by the Vice Chancellor. Being a pleasure appointment, the continuation of the Pro-Vice- Chancellor in the office therefore, depends upon the prerogative to be exercised by the Vice Chancellor. Thus, I am of the considered view that Pro-Vice- Chancellor cannot be ordered to vacate the office on account of demitting office by the Vice Chancellor before his term. The continuation of Pro-Vice- Chancellor in the office after resignation of Vice Chancellor depends upon the pleasure of the incoming Vice Chancellor. 13. In the light of the discussions as above, the writ petition is only to be allowed. Accordingly, the writ petition is allowed and the impugned order is set aside. The petitioner can continue in the office subject to any decision to be taken by the competent authority in the light of the proposition of law referred above. No orders as to costs.