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Andhra High Court · body

2019 DIGILAW 300 (AP)

P. Muniratnam Reddy v. State of Andhra Pradesh

2019-11-02

C.PRAVEEN KUMAR, M.SATYANARAYANA MURTHY

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JUDGMENT : C. Praveen Kumar, J. 1. The present petition came to be filed by one, Prof. P. Muniratnam Reddy, a retired Professor of Southeast Asian and Pacific Studies from Sri Venkateswara University and resident of Tirupati, Chittoor District, seeking issuance of writ of mandamus to declare the action of the 2nd respondent in issuing G.O. Rt. No. 273, Higher Education (UE) Department, dated 17.12.2018, G.O. Rt. No. 274, Higher Education (UE) Department, dated 17.12.2018, G.O. Rt. No. 275, Higher Education (UE) Department, dated 17.12.2018, G.O. Rt. No. 276, Higher Education (UE) Department, dated 17.12.2018 and G.O. Ms. No. 103, Higher Education (UE) Department, dated 11.5.2018, appointing the Principal Secretary to Government, Higher Education Department, Government of Andhra Pradesh as a State Government Nominee in the Search Committees constituted for selection of Vice-Chancellors to be appointed for respondent Nos. 5 to 9-Universities, as illegal and arbitrary and in violation of UGC Regulations, 2010 and 2018 and G.O. Ms. No. 38, dated 23.6.2016 and consequently, set aside the same by directing the 2nd respondent to reconstitute fresh Search Committees in accordance with UGC Regulations 2010 and 2018 for selection and appointment of Vice-Chancellors for the respondent Nos. 5 to 9-Universities. 2. It is said that after the advent of Andhra Pradesh Universities Act, 1991, all the 13 Universities, including respondent Nos. 5 to 9 Universities, are deemed to have been reconstituted under the Act 4 of 1991. It is further stated that as per Section 11 of the A.P. Universities Act, the Government shall constitute a Search Committee consisting of (1) a nominee of Executive Council; (2) a nominee of the University Grants Commission and (3) a nominee of the State Government and the Constitution of such Search Committee is detailed under UGC Regulations, 2010 and 2018. The Universities Grant Commission has also framed University Grant Commission (Minimum qualifications for appointment of Teachers and other Academic staff in the Universities and Colleges and other measures for the maintenance of the standards in Higher Education) Regulations, 2010 (for short, 'UGC Regulations, 2010'). It is said that the Government of Andhra Pradesh has issued G.O. Ms. No. 38, dated 23.6.2016 for implementation of UGC Regulations-2010. The said Government Order imports specifically the modus that is defined in UGC Regulations, 2010, which is more specifically detailed under Regulation 2.6, which deals with appointment of Vice-Chancellors to Universities. 3. It is said that the Government of Andhra Pradesh has issued G.O. Ms. No. 38, dated 23.6.2016 for implementation of UGC Regulations-2010. The said Government Order imports specifically the modus that is defined in UGC Regulations, 2010, which is more specifically detailed under Regulation 2.6, which deals with appointment of Vice-Chancellors to Universities. 3. It is stated that the Division Bench of this Court in the case of Osmania University Teachers Association (OUTA), rep. by its General Secretary and others v. Union of India and others, 2002 (4) ALT 682 , laid down that UGC Regulations are mandatory and binding on the Universities inasmuch as they are not mere recommendatory and has in fact set aside the whole selection process for ignoring the UGC Regulations. Further, under similar circumstances, the Division Bench of this Court in PIL Nos. 6 and 7 of 2016 and WP Nos. 673 and 1702 of 2016, held that, having adopted the UGC Regulations, 2010, the Government has to follow the same in the appointment of Vice-Chancellors. Further, WP No. 43581 of 2018 filed questioning the dilution of eligibility criteria for applying for the post of Vice-Chancellors was also disposed of by this Court, after recording an undertaking from the Government that they would follow the UGC Regulations, 2018 strictly and would proceed in accordance with the said Regulations in appointing Vice-Chancellors for various Universities. 4. The affidavit filed in support of the writ petition further states that in view of the specific directives given in the UGC Regulations, it is mandatory for the Government to select its nominee to be empanelled in the Search Committee for appointment of Vice-Chancellors, who shall not be connected in any manner with the University concerned or its colleges, in addition to being a person of eminence in the sphere of higher education. The Executive Council is the primary authority in the Universities, which has vast powers conferred on it vide Section 19 of A.P. Universities Act, 1991, which define the powers and duties of the Executive Council. In total derogation to the said Regulations, the Government has now proceeded to appoint Principal Secretary to the Government, Higher Education Department, an IAS Officer as its nominee to be a Member in the Search Committee constituted for appointment of Vice-Chancellors to the respondent Nos. 5 to 9-Universities. In total derogation to the said Regulations, the Government has now proceeded to appoint Principal Secretary to the Government, Higher Education Department, an IAS Officer as its nominee to be a Member in the Search Committee constituted for appointment of Vice-Chancellors to the respondent Nos. 5 to 9-Universities. Further, inclusion of Principal Secretary, Higher Education Department, Government of Andhra Pradesh, as a Member in the Search Committee constituted for selecting the Vice-Chancellors for Universities is in total violation of UGC Regulations 2010 and 2018 and also in derogation to G.O. Ms. No. 38, Higher Education (UE) Department, dated 23.6.2016. The Principal Secretary, Department of Higher Education, cannot be equated to be a person of eminence in the field of Higher Education and he is also an authority directly connected with the administration of Universities and colleges affiliated to them, inasmuch as he is a Class-I Ex-Officio Member of the Executive Council under A.P. Universities Act, 1991. 5. It is further averred that the Principal Secretary to the Government being ex-officio member of the Executive Council in all the Universities shall take part in deciding a nominee of the Executive Council to be included in the Search Committees constituted for selection of Vice-Chancellors. Therefore, the ex-officio member having selected a nominee of the Executive Council also cannot include himself as a nominee of the Government in the Search Committee, as such, his presence in the Search Committees is in total violation of UGC Regulations 2010 and 2018 and also the mandate prescribed in the form of modus for selection of Vice-Chancellors as per G.O. Ms. No. 38, dated 23.6.2016 and hence the above mentioned Government Orders issued constituting Search Committees for the above mentioned Universities is illegal and liable to be set aside. 6. Respondent No. 2 filed counter-affidavit stating that the appointment of the Principal Secretary, Higher Education in the Search Committee is in contravention of the UGC Regulations of the year 2010, which was adopted by the State vide G.O. Ms. No. 38, Higher Education [UE] Department, dated 23.6.2016. In G.O. Ms. No. 38 the State had specifically adopted the manner of appointment as defined in UGC Regulations of 2010 and the same is enumerated as per Regulation 2.6. Regulation 2.62 is similar to Regulation No. 7.3(ii) UGC Regulations, 2010, the relevant portion of which reads as follows: "........... No. 38, Higher Education [UE] Department, dated 23.6.2016. In G.O. Ms. No. 38 the State had specifically adopted the manner of appointment as defined in UGC Regulations of 2010 and the same is enumerated as per Regulation 2.6. Regulation 2.62 is similar to Regulation No. 7.3(ii) UGC Regulations, 2010, the relevant portion of which reads as follows: "........... The members of the above Search Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges...." 7. It is stated that in Kalyani Mathivanan v. K.V. Jeyaraj and, others, (2015) 6 SCC 363 , it was held that once the State adopts the statutory prescription of the UGC, it cannot act or frame rales repugnant to the UGC statutory regulations. The regulations show that the person who has been nominated as a member of Search Committee shall not be connected in any manner with the University concerned or its colleges. By reason of the provisions of the A.P. Universities Act, 1991 as amended from time to time, ex officio, the Secretary, Higher Education is one of Class-I Officer in the Executive Council and thus is in that capacity connected with the University. Respondent No. 2 relied upon a decision in D. Manohar Rao v. The State of Telangana and others, 2017 (4) ALT 697 , in support of its contention. It is further stated in the counter that the University Regulations once adopted by the State disables a Member to be a Member of the Search Committee, if he was otherwise connected in any manner to the University concerned or its colleges. It is further stated in the counter that all the appointments made in pursuance of the recommendation of the Search Committee comprising the Principal Secretary, in terms of the impugned G.O. would be patently repugnant to the statutory regulations prescribed by the UGC. 8. Respondent No. 8-Dravidian University has filed counter stating that, the main aim and object of the petitioner is to destroy the administration of the University without appointing the Vice-Chancellors for his ill-motive and instigation. 8. Respondent No. 8-Dravidian University has filed counter stating that, the main aim and object of the petitioner is to destroy the administration of the University without appointing the Vice-Chancellors for his ill-motive and instigation. The petitioner has miserably failed to state how the public is aggrieved by the present G.Os., issued by the 2nd respondent and procedure contemplated for appointment of the Vice-Chancellor in the State of A.P. The Regulations of 2010 and the Regulations of 2018 read as under: "The members of the above Search Committee shall be persons of eminence in the sphere of Higher Education and shall not be connected in any manner with the University concerned or its colleges." The G.O. Ms. No. 38, issued on 23.6.2016, is for implementation of UGC Regulations 2010-Revision of Appendix to G.O. Ms.No. 14, dated 20.2.2010. The petitioner has conveniently mislead the Hon'ble Court by not referring the contents in G.O. Ms. No. 14 appendix containing UGC Regulations. 9. It is further stated that G.Os., such as 208, 14 and 38 are passed after many years after Regulations being issued by the UGC for the purpose of the implementation of the revised pay scales, but not for any other purposes. If the preamble or the Headings of the G.Os. and conclusions are keenly observed, it is clear that they are issued only for the purpose of pay scales, as the G.Os. at the end states as:- "This order issues with concurrence of Finance (Expr.HE) Department vide their U.O. No. 793/78/Expr.HE/2010, dated 18.2.2010", such as, in the G.O. Ms. No. 38: In Kalyani Mattivanam v. K.V. Jayaraj and others (supra), the Apex Court interpreted the legal connotation of the said Regulations as being only recommendatory in nature and that they are not mandatory. 10. A counter came to be filed by the respondent No. 9-Krishnadevaraya University contending that the impugned G.Os. are issued, constituting the Search Committee to suggest a panel of three members for appointment as Vice-Chancellors to the 5th to 9th respondent Universities and then recommend to the Governor who is the Chancellor under the University Act. The Search Committee shall submit a panel of three persons to the Government in alphabetical order from among whom the State Government shall recommend one person to the Chancellor for appointment as Vice-Chancellor and Chancellor shall appoint such person as Vice-Chancellor. The Search Committee shall submit a panel of three persons to the Government in alphabetical order from among whom the State Government shall recommend one person to the Chancellor for appointment as Vice-Chancellor and Chancellor shall appoint such person as Vice-Chancellor. If the petitioner is really aggrieved by the constitution of Search Committees, he should have approached the Governor by way of a representation ventilating his grievance of any irregularity. Without doing so, stalling the process of selection, by approaching this Court, after a lapse of many years and without explaining any delay, is bad in law. The petitioner has miserably failed to state how the public is aggrieved by the present G.Os. It is said that if the PIL is allowed as claimed, the appointments which were made during the period of the Vice-Chancellors would become null and void. As per the contents of the affidavit it appears that the petitioner has worked at various association forums in the University as Lecturer, Reader and Professor, Secretary/President and getting his pensionary and other benefits out of the posts held by him. That being so, the petitioner has no locus standi to file this PIL. 11. It is further stated in the counter that the UGC Regulations 2010 and 2018 or any Regulations which cannot override Section 11 of A.P. Universities Act, 1991, unless it is amended accordingly, as per the judgment of the Apex Court in Kalyani Mathivanam v. K.V. Jayaraj and others (supra). It is stated that a Division Bench of this Court in WA No. 1491 of 2012 and Batch while dealing with the very same UGC Regulations 7.3.0 and G.O. Ms. No. 14 and the provisions of the University Act in the selection of the post of the Vice-Chancellor, categorically held that these Regulations which are issued in the form of a Government Order by the State Government are only administrative rules, and not rules of law and they have no statutory force to override the provisions of law. It is further stated that pursuant to the issuance of impugned G.Os., for constituting Search Committee by the 1st respondent, the 1st respondent conducted Search Committee meeting and processed the same for this respondent University and the Hon'ble Chancellor/Governor after thoroughly going into the matter has appointed the Vice-Chancellor to our 9th respondent University. Hence, seeks to dismiss the writ petition. 12. Hence, seeks to dismiss the writ petition. 12. From the material available on record, it appears that Vice-Chancellors appointed to Sri Venkateswara University, Dravidian University and Sri Krishnadevaraya University have resigned. No Vice-Chancellor is appointed to Sri Padmavathi Mahila Viswavidhyalayam. Insofar as Adikavi Nannaya University is concerned, it is pleaded that a writ petition in the form of Quo Warranto is pending consideration. 13. The point for consideration is, whether the procedure prescribed under the Regulation has been followed while appointing Vice-Chancellors? 14. According to Section 11 of the Andhra Pradesh Universities Act, 1991, a Search Committee shall consists of (i) a nominee of the Executive Council; (ii) a nominee of the University Grants Commission, and (iii) a nominee of the State Government. At the same time, as per Regulation No. 7.3(ii) of the UGC Regulations, the selection for the post of Vice-Chancellor should be through proper identification by a Panel of 3 to 5 persons by a Search-cum-Selection Committee, through a public notification or nomination or a talent search process or a combination thereof. The members of the above Search Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges. (iii)........... (iv)........... 15. Section 18 of the Andhra Pradesh Universities Act, 1991 deals with office of the University, duties, period etc., which consists of (1) Ex-officio members (i) the Vice-Chancellor; (ii) the Rector; (iii) The Secretary to Government in the Education Department or an Officer in the Education Department nominated by the Government; (iv) the Secretary to Government in the Finance and Planning (Finance Wing) Department or an officer in the Finance and Planning (Finance Wing) Department nominated by the Government; and (v) the Director of Higher Education/the Commissioner of Collegiate Education. 16. Section 19 of the Andhra Pradesh Universities Act, 1991, deals with powers and duties of the Executive Council. 16. Section 19 of the Andhra Pradesh Universities Act, 1991, deals with powers and duties of the Executive Council. The Executive Council shall be the Executive Authority of the University and shall have the power,-(1) to direct the form, custody and use of the common seal of the University; (2) to hold, control and administer the property and funds of the University; (3) to enter into, vary, carry out and cancel contracts on behalf of the University in exercise of performance of the powers and duties assigned to it by the Act and the statutes; (4)(a) to accept on behalf of the University, endowments, bequests, donations and other transfer of property made to it; (b) to administer all funds placed at the disposal of the University for specific purposes; (5) subject to such statutes as may be prescribed in this behalf,-(i) to appoint the teachers of the University below the rank of lecturers; (ii) to appoint the teachers of the University and above the rank of lecturers on the recommendations of the Selection Committee constituted for the purpose. 17. The Principal Secretary to Government, Higher Education Department being a member of the Executive Council is directly connected with the affairs of the University. Therefore, appointing the Principal Secretary to Government, Higher Education Department, as a member of the Search Committee would be contrary to the guidelines. 18. Even in the counter filed by the Government it is stated that all the appointments made in pursuance of the recommendation of the Search Committee comprising the Principal Secretary in terms of the G.O. would be patently repugnant to the statutory regulations prescribed by the UGC. 19. At this stage, it would be useful to refer to the case in D. Manohar Rao v. The State of Telangana and others (supra), wherein the Hon'ble Division Bench of this Court while allowing an identical matter, held as under: '(1) We hold that the vesting of power of appointment of Chancellor and Vice-Chancellor with the Government by way of Act Nos. 7 and 8, in the absence of any prescription as to the qualifications and the eligibility as stipulated under Statute 1 Clause (1) pertaining to the Chancellor and Statute 2 Clause (1) pertaining to the Vice-Chancellor of the Schedule is illegal and unconstitutional. (2) Declaring G.O. Ms. Nos;28 and 29, Higher Education (UE) Department, dated 11.9.2015 and G.O. Ms. 7 and 8, in the absence of any prescription as to the qualifications and the eligibility as stipulated under Statute 1 Clause (1) pertaining to the Chancellor and Statute 2 Clause (1) pertaining to the Vice-Chancellor of the Schedule is illegal and unconstitutional. (2) Declaring G.O. Ms. Nos;28 and 29, Higher Education (UE) Department, dated 11.9.2015 and G.O. Ms. No. 38, Higher Education (UE&VC) Department, dated 19.12.2015 and G.O. Ms. No. 1, Higher Education (UE&VC) Department, dated 5.1.2016 as illegal, without jurisdiction and unconstitutional and contrary to the A.P. Reorganization Act, 2014. (3) In the circumstances, we issue the following directions: (a) Respondents shall adhere to UGC Regulations, 2010 for appointment to the post of Vice-Chancellors. (b) Respondents shall consider the persons of eminence in the academic or public life, preferably with Doctoral degree as Chancellors. (c) The respondent shall make appointments pursuant to the notification dated 20.12.2015 strictly as per the above directions/declarations. (d) If any appointments are made pending these writ petitions contrary to the above declarations/directions, the same shall stand set aside. 20. Therefore, once the UGC regulations are adopted by the State, the same are binding on the Government and Regulation 7.3.0 of the UGC Rules as adopted by the State, disables a person to be a member of the Search Committee if he is otherwise connected with University or college in any manner. 21. As stated above, the Principal Secretary to Government, Higher Education, who has every role to play in the administration of University and its colleges cannot be a Member of the Search Committee, more so, being the ex-officio Member of the Executive Council of the Universities. 22. Accordingly, the writ petition is allowed and the G.Os. issued by the Government viz., G.O. Rt. No. 273, Higher Education (UE) Department, dated 17.12.2018, G.O. Rt. No. 274, Higher Education (UE) Department, dated 17.12.2018, G.O. Rt. No. 275, Higher Education (UE) Department, dated 17.12.2018, G.O. Rt. No. 276, Higher Education (UE) Department, dated 17.12.2018 and G.O. Ms. No. 103, Higher Education (UE) Department, dated 11.5.2018, are hereby set-aside and consequently the 2nd respondent is directed to reconstitute fresh Search Committee, if not already constituted, in accordance with UGC Regulations. No orders as to costs. 23. Consequently, interlocutory applications pending, if any, shall stand closed.