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Himachal Pradesh High Court · body

2021 DIGILAW 478 (HP)

Dr Dharam Pal Singh v. State Of H P & Ors.

2021-07-29

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - The writ petitioner, through the instant writ petition, has made an endeavor, for this Court making a writ of quo warranto, to set aside the selection and consequent appointment of co-respondent No.3, as, Vice-Chancellor of respondent No.4/ Himachal Pradesh University. 2. Through, an advertisement borne in Annexure P-4, the Governor (Chancellor) constituted a Search Committee for recommending a panel of names for appointment as Vice-Chancellor of the Himachal Pradesh University, Shimla. Also, through Annexure P-4, the Search Committee invited applications from the aspirants concerned. Annexure P-4 of 6.1.2018, spells therein all the requisite terms and conditions, and, as, become embodied in Para 7.3.0 of the University Grants Commission Regulations-2010 read with Section 12(1) of the Himachal Pradesh University Act, 1970 (For short "UGC Regulations 2010") and also projects them, to be the prime anchor for the Search Committee making selection(s) of the aspirants concerned, to, the coveted post. However, through Annexure P-5, made on 30.6.2018, the date for the aspirants making an application for appointment to the post of Vice Chancellor, became extended till 20th July, 2018. 3. Annexure P-6 of 18.7.2018, encloses the qualifications possessed by co-respondent No.3, for his hence succoring his claim, vis--vis, his fullest eligibility for his being considered for selection, and, for his being appointed to the coveted post of Vice Chancellor of Himachal Pradesh University, Shimla. 4. On 2.8.2018, respondent No.3 was appointed as Vice-Chancellor, Himachal Pradesh University, and, on 3.8.2018, respondent No.3 assumed the charge of the Office of Vice-Chancellor of respondent No.4/Himachal Pradesh University. 5. The gravamen of the entire lis is rested, upon, Para 7.3.0 (i) (for short "clause") of UGC Regulations 2010, which is extracted hereinafter:- "persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vice-Chancellors. The Vice-Chancellor to be appointed should be a distinguished academician, with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/or academic administration organization." 6. A perusal of clause(supra) reveals that any aspirant, aspiring for appointment to the coveted post of Vice-Chancellor, hence compulsorily being a distinguished academician, and, his also holding a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/ or academic administrative organization. 7. A perusal of clause(supra) reveals that any aspirant, aspiring for appointment to the coveted post of Vice-Chancellor, hence compulsorily being a distinguished academician, and, his also holding a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/ or academic administrative organization. 7. Though the writ petitioner, does not challenge, the constitution of the Search Committee for its hence making recommendations, of the aspirants concerned, to the post of Vice- Chancellor of respondent No.4. However he challenges the trite factum of co-respondent No.3, possessing the requisite experience (supra) and as appertains to his serving for 10 years as Professor in a University. The writ petitioner draws, the, attention of this Court to Annexure P-10. Annexure P-10 are the minutes of the proceedings of the Executive Council, as, become drawn on 19.3.2011. Though, he does not challenge the recommendations, as made therein, for the promotion of respondent No.3 as a Professor w.e.f 1.1.2009. However, he argues that even if co-respondent No.3 became recommended to the promotional post of Professor w.e.f 1.1.2009, nonetheless he contends that co-respondent No.3, did not work, or function, as, a Professor from the year 2009 till 2011. He hence submits that the non-working of co- respondent No.3 as a Professor in a university from the year 2009 till 2011, does not confer, in him the requisite functional experience of 10 years, as a professor, in the Himachal Pradesh University, as is required rather by the afore extracted clause, to be possessed by him. 8. The afore submission is merit-worthy, as it is supported, by a judgment rendered by the Hon'ble Apex Court in Civil Appeal No. 5410 of 1991, titled as Union of India versus M. Bhaskar and others, (1996) 4 SCC 416 , relevant paragraph 15 whereof stands extracted hereinafter:- "The aforesaid decision has been challenged in this appeal by the Union of India by contending that 2 years' period of experience has to be reckoned, not from 11.10.1988, but from 21.9.1989. There is no dispute that the eligibility condition is 2 years' experience in Grade II. Now, this respondent having really started working in Grade -II pursuant to the order of 21.9.1989, he could not have gained experience prior to the date he had joined pursuant to this order. There is no dispute that the eligibility condition is 2 years' experience in Grade II. Now, this respondent having really started working in Grade -II pursuant to the order of 21.9.1989, he could not have gained experience prior to the date he had joined pursuant to this order. The mere fact that his promotion in Grade II was notionally made effective from 11.10.1988 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the person promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of the actual promotion." 9. Be that as it may any validation by this Court of the afore submission may not perse constrain this Court to make a writ of quo warranto, whereupon the selection and consequent appointment of respondent No.3, as, Vice Chancellor of Himachal Pradesh University, may hence become annulled. The reason(s) for forming the afore conclusion becomes drawn from a supplementary affidavit sworn by the Secretary, to the Governor, wherein it has been suggested, that the writ petitioner has filed the instant writ petition with an oblique motive. Further more, it has been clarified in paragraph 5 of the supplementary affidavit sworn by the Secretary of the Governor, that the facts relating to the notional and actual promotion were not in the knowledge of the Search Committee, as, the same were not categorically and specifically mentioned by respondent No.3 in his application, and, that any contention carried in the reply on affidavit of 28.4.2021, that respondent No. 3 in his application rather purportedly falsely revealing qua his possessing the requisite qualification, becomes sequelled by mere oversight, and, that the afore contention as carried in the afore reply on affidavit, as, furnished to the writ petition may not be assigned any credence. Even though care and caution was required to be made by the Officer swearing the reply on affidavit of 28.4.2021. Even though care and caution was required to be made by the Officer swearing the reply on affidavit of 28.4.2021. However the fulcrum of the lis may not be rested upon the afore, rather may hence become rested, upon, the factual matrix available hereat, and upon the application/non-application, vis--vis, the respondent No.3, of the requisite functional experience, as, becomes enshrined in the clause (Supra). 10. The State of Himachal Pradesh/respondent No.1, while making a reply to the writ petition, has contended that the mandate of clause (supra) of UGC Regulations, 2010 has not been adopted by the State Government. Consequently, it has to be adjudicated whether (a) clause (supra) was mandatorily required to be adopted by the State of H.P (b) and if adopted whether clause supra holds the fullest clout and sway in so far as the writ petitioner's claim is concerned (c) and whether for valid non-adoption of clause (supra) by the State Government, the writ petition becomes dismissable. 11. Initially it has to be adjudged whether the mandate of clause supra, as carried, in the UGC notification of 18.9.2010, required its adoption by the State of Himachal Pradesh. The afore conundrum is set at rest by a decision, of the Hon'ble Apex Court rendered in titled as Kalyani Mathivanan versus K.V Jeyaraj and others., (2015) 6 SCC 363 Relevant paragraphs 62.4 and 62.5 whereof, stand extracted hereinafter:- "62.4 The UGC Regulations, 2010 are directory for the universities, colleges and other higher educational institutions under the purview of the State legislation as the matter has been left to the State Government to adopt and implement the Scheme. Thus, the UGC Regulations, 2010 are partly mandatory and is partly director. 62.5 The UGC Regulations, 2010 having not been adopted by the State of Tamil Nadu, the question of conflict between the State legislation and the statutes framed under the Central legislation does not arise. Once they are adopted by the State Government, the state legislation to be amended appropriately. In such case also there shall be no conflict between the State legislation and the Central legislation." 12. In Kalyani'case (supra), It has been explicitly spelt that UGC Regulations, 2010 are directory for Universities, colleges and other higher educational institutions, under the purview of State legislations, as the matter has been left to the State Government, to adopt and implement the scheme. In Kalyani'case (supra), It has been explicitly spelt that UGC Regulations, 2010 are directory for Universities, colleges and other higher educational institutions, under the purview of State legislations, as the matter has been left to the State Government, to adopt and implement the scheme. In sequel, the nuance of the mandate carried in Paragraphs 62.4 and 62.5 of Kalyani's case (supra), is that latitude and leverage, is, left to the State Government, to adopt and implement the UGC Regulations, 2010, especially when Colleges and other higher educational institutions are under the purview of the State legislation. Since Himachal Pradesh University is governed by its own statutes, as, become enacted by the H.P State legislative Assembly. Therefore the mandate carried in paragraphs (supra), of the verdict recorded in Kalyani's case (supra), that in so far as colleges and other higher educational institutions hence falling under the purview of State legislation(s), and, in respect whereof there exists validly enacted ordinances and statutes, hence governing and regulating, any academic activity or courses streams taught therein(s) rather the aforesaid rule(supra) is merely directory. In sequel in respect of Himachal Pradesh University, the UGC Regulations of 2010, are not mandatory rather are directory, given the State of Himachal Pradesh in its reply to the writ petition rather speaking about valid non-adoption of clause (supra) by it. Consequently, any detraction from clause (supra) may not invite or attract the ill-sequel, of the selection as Vice Chancellor of respondent No.3, rather warranting annulment. 13. Be that as it may, since the necessity of adoption of the clause (supra) by the State of Himachal Pradesh, has also been with vividity, pronounced in paragraphs 62.4 and 62.5 of Kalyani's case (supra), whereas, the mandate of clause (supra) remains un-adopted by the State of Himachal Pradesh. 13. Be that as it may, since the necessity of adoption of the clause (supra) by the State of Himachal Pradesh, has also been with vividity, pronounced in paragraphs 62.4 and 62.5 of Kalyani's case (supra), whereas, the mandate of clause (supra) remains un-adopted by the State of Himachal Pradesh. Therefore, this Court reiteratedly concludes, that the UGC Regulations of 2010, and, especially the mandate supra carried therein, and, appertaining to the requisite functional experience (Supra) to be possessed, by the aspirants concerned who seek their selection and appointment, to the post of Vice Chancellor, rather are not mandatory in nature, contrarily are directory in nature, and, any breach visited upon the mandate (supra) of UGC Regulations, of 2010, by co-respondent No.3, and or, by the Search Committee or by the appointing authority, would not make this Court, to become constrained to issue a writ of quo warranto, for therethrough(s) the selection and appointment of co-respondent No.3, as, Vice Chancellor of Himachal Pradesh University, becoming annulled. 14. However, the petitioner has contended, on anvil of a notification existing at page 154, of the paper book labeled as Annexure R-1, contents whereof are extracted hereinafter, that the stand as projected by respondent No.1 that UGC Regulations of 2010, more specifically, the mandate of clause (supra) of UGC, Regulations, 2010, has not been adopted by the State Government, is both flimsy, and, spurious. "I am directed to refer to the subject cited above and to say that the UGC has notified the Regulations 2010 on 30th June 2010 vide which the stages of promotion under CAS of incumbent and newly appointed Assistant Professors/Associate professors has also been notified. Now, the Government has decided to adopt the Academic Performance Indicator (API) and Performance Based Appraisal System (PBAS) for holding the meeting of DPC for the grant of scales under CAS. It is, therefore, requested to send the proposal to the Government to hold the DPC of incumbents who are becoming eligible on or after 1-1- 2009 to be placed in Pay Band-IV. In addition to this it has also been decided that the action in the letter No. EDN-H (8) B (7)34-2/2009 (Sr. Sel.) dated 18th May, 2011 be deferred till further order. In addition to this it has also been decided that the action in the letter No. EDN-H (8) B (7)34-2/2009 (Sr. Sel.) dated 18th May, 2011 be deferred till further order. You are therefore, requested to send the proposal to the Government after collecting the API and PBAS proforma from the eligible incumbents to hold the meeting of DPC so that the eligible lecturer be placed in pay Band-IV." 15. However in his making the afore submission he has faltered, as, in the opening sentence thereof, there is a reference to the UGC Regulations of 2010 rather only with respect to the promotion of newly appointed Assistant Professors and Associate Professors. Therefore, the afore opening sentence, does not gain any conclusion, that the mandate of clause (supra) of UGC Regulations, 2010 has also been adopted. Contrarily, when the second sentence thereof makes echoings, that a decision has been made to adopt the Academic Performance Indicator (API)and Performance Based Appraisal System (PBAS), hence for holding the meetings of the DPC(s) concerned, rather hence in the making(s) of selection(s)/appointment(s), and, promotion(s) to the post of Assistant Professor/Associate professor. Consequently, the inference which is garnered from Annexure R-1, is that when there is completest reticence therein, with respect to the State of Himachal Pradesh rather adopting the clause (supra) carried in UGC Regulations, 2010, and, as appertains to the coveted post. Thereupon, no capital can be drawn from Annexure R-1, by the petitioner, in so far as its purportedly making an echoing that there-through, the Government of Himachal Pradesh, has adopted clause 7.3.0 of UGC Regulations 2010, which however, remains unexplicitly adopted, whereas, it was required to be explicitly adopted, and, as appertaining to the qualifications to be possessed by the aspirants, who seek selection and appointment to the coveted post of Vice Chancellor of Himachal Pradesh, University, Shimla. Even otherwise, since the petitioner does not either label as tainted, the membership of the search committee nor when he casts malafies qua the members of the search committee. Consequently, when the search committee is taint free, thereupon its expertise in making the apposite selection, is unquestionable nor its opinion can be substituted by the Court. 16. In view of the above, I find no merit in the petition, the same is accordingly dismissed. All pending applications are dismissed as such.