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2022 DIGILAW 1062 (KER)

S. Jayaram v. University of Kerala

2022-12-08

DEVAN RAMACHANDRAN

body2022
JUDGMENT : The petitioner, who is stated to be an elected member of the Senate of the University of Kerala (the ‘University’ for short), seeks that the Search-cum-Selection Committee constituted by the Chancellor of the said University, as per Ext.P3, be directed to be proceeded with the process of selection to the post of its Vice Chancellor. 2. Sri.George Poonthottam – learned Senior Counsel, instructed by Smt.Ann Mariya Francis, appearing for the petitioner, explained the genesis of the controversy, saying that when the erstwhile Vice Chancellor of the University was nearing his term – which was to end on 24.10.2022 -the Chancellor called upon the Senate to nominate their member to the Search-cum-Selection Committee, under the provisions of Section 10 of the Kerala University Act, 1974 (the ‘Act’ for short). He asserted that the meeting of the Senate, convened on 15.07.2022, nominated a certain Dr.V.K.Ramachandran as their member; but that on 04.08.2022, he withdrew, citing personal reasons. 3. The learned Senior Counsel then submitted that the Registrar of the University, thereafter, intimated the Office of the Chancellor about the above said development and requested that 'new steps' be taken to constitute the Search-cum-Selection Committee; consequent to which, the Chancellor issued a notification, dated 05.08.2022, constituting it – a copy of which is on record as Ext.P3 – including the nominee of the University Grants Commission (UGC), along with that of his; and making it clear that third member will be included as and when the nomination is received from the University. 4. Sri.George Poonthottam predicated that the Chancellor had issued Ext.P3 in the best interests of the University and that of its students; but that the Senate, which met on 20.08.2022, refused to nominate their member and requested him to withdraw the said notification, on the ground that it was illegal and contrary to Section 10(1) of the 'Act'. He added that, it transpires that some correspondence were thereupon exchanged between the two functionaries, leading the Senate to meet on 11.10.2022; but that because majority of its members abstained from it, it was adjourned for want of quorum. 5. He added that, it transpires that some correspondence were thereupon exchanged between the two functionaries, leading the Senate to meet on 11.10.2022; but that because majority of its members abstained from it, it was adjourned for want of quorum. 5. The learned Senior Counsel further submitted that, while so, pending consideration of two or three other matters relating to expulsion of the members of the Senate by the Chancellor -by this Court, the Senate again met on 04.11.2022; and resolved that they have reconsidered their decision taken on 20.08.2022; but that they will nominate their member only after the Chancellor withdraws Ext.P3 notification. 6. Sri.George Poonthottam argued that thus, a pattern has been exhibited by the Senate of the University in refusing to nominate their member to the Search-cum-Selection Committee under the sanction of Section 10(1) of the 'Act'; and hence, that his client has been constrained to approach this Court – solely to protect the interests of the students and that of the institution – seeking that the Chancellor be directed to complete the selection process of the Vice Chancellor, pursuant to Ext.P3 notification and in terms of Ext.P9 communication subsequently issued by him to the Search-cum-Selection Committee – granting them three months from 05.11.2022 to make recommendations for such purpose. 7. The learned Senior Counsel then fortified the reliefs sought in this writ petition arguing that Chancellor is fully empowered to constitute even a two member Search-cum-Selection Committee, as has been done in Ext.P3 notification, because, Regulation 7.3 of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (the 'UGC Regulations 2018'), only mandates that there must be more than one member for such a Committee – one of whom to be nominated by the Chairman of the UGC; and all of whom shall be persons of eminence in the sphere of higher education, not connected in any manner with the University or its colleges. He asserted that, this luculently demonstrates that the 'UGC Regulations 2018' permit a Committee with less than three members; and hence, that the one constituted by the Chancellor through Ext.P3 cannot be alleged to be illegal, because the provisions of the Section 10(1) of the 'Act' is subservient to the 'UGC Regulations 2018', as has been declared by the Hon’ble Supreme Court in several judgments, including in Gambhirdan K.Gadhvi v. State of Gujarat and others [ (2022) 5 SCC 179 ], State of West Bengal v. Anindya Sundar Das & others [2022 LiveLaw (SC) 831] and Professor (Dr.) Sreejith P.S and others v. Dr.Rajasree M.S. and others [SLP (Civil) Nos.21108/21109 of 2021]. 8. Sri.George Poonthottam thus asserted that, when the Senate refuses to nominate a member, then it would be fully open to the Chancellor to continue with the search-cum-selection processes through a Committee constituted of two members, since it would not run contrary to the 'UGC Regulations 2018'. 9. The learned Senior Counsel, on the edifice of the factual assertions earlier made by him, then impelled an adjuvant contention that, since the Senate of the University has refused to perform their statutorily mandated duty of nominating a member to the Search-cum-Selection Committee, directions become requisite to be issued to the Chancellor to act as per Section 7(4) of the 'Act' -to suspend or dismiss them, so as to ensure proper administration of the University, including through interim measures; and adscititiously prayed that it be so ordered. 10. Sri.S.Gopakumaran Nair, learned Senior Counsel, instructed by Sri.S.Prasanth – learned Standing Counsel for the Chancellor, submitted that a statement has been filed on record, in which it has been explained why and in what manner Ext.P3 notification was compelled to be issued by his client. The learned Senior Counsel submitted that, even though the incumbent Vice Chancellor was known to be retiring on 24.10.2022, the Senate of the University was not acting with the urgency which was expected out of it; however, conceding that it had nominated the aforementioned Dr.V.K.Ramachandran on 15.07.2022. The learned Senior Counsel submitted that, even though the incumbent Vice Chancellor was known to be retiring on 24.10.2022, the Senate of the University was not acting with the urgency which was expected out of it; however, conceding that it had nominated the aforementioned Dr.V.K.Ramachandran on 15.07.2022. He added that, but, when Dr.V.K.Ramachandran withdrew, the Chancellor thought it fit in the circumstances, to issue Ext.P3 notification, making it clear therein that, as and when the third member is nominated by the Senate under the mandate of Section 10(1) of the 'Act', he/she shall be included in the Search-cum-Selection Committee, thus rendering it capable to function within the statutory scheme. The learned Senior Counsel submitted that, however, the laudable intent of the Vice Chancellor was not merely unappreciated by the Senate, but opposed by it, adopting a resolution on 20.08.2022, literally challenging him and requiring him – though couched as a request – to withdraw this notification, impelling it as a condition precedent for them to make the nomination of their member. 11. Sri.S.Gopakumaran Nair further submitted that the Chancellor did not act in haste even thereafter, but awaited further action from the Senate; and that it transpires, as has been already explained, that its meeting was scheduled on 11.10.2022, but which was defeated for want of quorum by the members, abstaining themselves deliberately; which was followed by a subsequent meeting on 04.11.2022, in which, though the earlier decision was stated to have been reconsidered, in effect, same was reiterated by maintaining that unless the Chancellor withdraws Ext.P3 notification, no nomination would be made by them to the Committee. 12. Sri.S.Gopakumaran Nair explained that, therefore, in the afore circumstances, the Chancellor found no other option, but to issue Ext.P9, asking the Search-cum-Selection Committee -constituted through Ext.P3, to complete their processes and to furnish a panel to him, as provided under the 'UGC Regulations 2018', within a period of three months from 05.11.2022. He added that if this is also not done, then all resultant consequences would follow at the instance of his client. 13. He added that if this is also not done, then all resultant consequences would follow at the instance of his client. 13. Sri.S.Gopakumaran Nair supplemented his afore submissions asserting that it is a great tragedy that one of the most esteemed and the largest Universities in Kerala is now running without a full time Vice Chancellor; and that, this certainly would lead to irreparable prejudice and deleterious consequences to its students, which is reflected in as much as that several thousands of seats in the various colleges affiliated to it are remaining vacant. 14. Sri.Thomas Abraham – learned Standing Counsel for the University, submitted that he does not intend or wish to make any comment, either against or in favour, of the two functionaries involved in this case; but that he would attempt to assist this Court on the legal aspects involved. He pointed out that Section 10(1) of the 'Act' has been drafted in conformity with the earlier UGC Regulations, namely 'UGC Regulations 2010'; and that it also runs in tandem with the provisions contained in the subsequent 'UGC Regulations 2018'. He maintained that, therefore, normally, any notification under it could have been issued only as per its terms and not otherwise. 15. On hearing Sri.Thomas Abraham as afore, I asked him pointedly whether he has instructions from the University as to whether its Senate would be willing to nominate a member to the Search-cum-Selection Committee, to be constituted as per Section 10(1) of the 'Act'; to which, his response was that, in regular circumstances, there would be no such impediment. He added that, however, to the best of his information -though he did not want to take any sides -the Senate appears to be under an apprehension that Ext.P3 notification is contrary to Section 10(1) of the 'Act', particularly, because it contains only two members, one of whom has also been shown as the Convener of the Search-cum-Selection Committee. He hastened to explain that he is not making this submission as a counsel for the University, but only as an officer of this Court, to place on record the germane forensic aspects. He then added that, as far as the University is concerned, they are anxious to see that a new Vice Chancellor is selected in terms of the 'UGC Regulations 2018' read with Section 10(1) of the 'Act'; and placed in office at the earliest. He then added that, as far as the University is concerned, they are anxious to see that a new Vice Chancellor is selected in terms of the 'UGC Regulations 2018' read with Section 10(1) of the 'Act'; and placed in office at the earliest. He concluded, affirming that if Ext.P3 notification is withdrawn or set aside, the Senate will be willing, even going by their own resolutions, to nominate a member to the Search-cum-Selection Committee, so that the Chancellor can then issue a fresh notification in terms of Section 10 of the 'Act'. 16. Sri.Thomas Abraham further submitted that a counter affidavit has been filed on behalf of respondents 1 to 3, wherein, all the relevant documents -to show the chronology of events that led to the controversy -have been produced. He affirms that Ext.R1(d) is the letter from the Office of the Chancellor to the Registrar of the University dated 14.07.2022, seeking that a nominee of the Senate be made to the Search-cum-Selection Committee; and that Ext.R1(e) is the letter of the University, addressed to the aforementioned Dr.V.K.Ramachandran, appointing him so. He confirmed that Dr.V.K.Ramachandran did not accept the nomination and that this led to Exts.R1(f) and R1(g) letters being issued from the Office of the Chancellor of the University, again seeking the nominee of the Senate. He added that even before the University could act, the Chancellor issued Ext.P3 notification; and hence that, as stated above, if the same is withdrawn, then the Senate will make nomination, so as to enable a fresh notification to be issued by the Chancellor. 17. Sri.Achuth Kylas – learned counsel appearing for respondents 8 and 9, submitted that, as rightly argued by Sri.S.Gopakumaran Nair – learned Senior Counsel for the Chancellor, the absence of a full time Vice Chancellor for the Kerala University is causing great detriment to it. He pointed out that the interests of the students are in jeopardy and alleged that, this year, more than five thousand to six thousand seats have been left vacant, imputing that this is also on account of the bad impression being caused by the open ventilation of disputes between the two functionaries. He pointed out that the interests of the students are in jeopardy and alleged that, this year, more than five thousand to six thousand seats have been left vacant, imputing that this is also on account of the bad impression being caused by the open ventilation of disputes between the two functionaries. He then added that Ext.P3 notification may not be allowed to be implemented in as much as the search and selection of the Vice Chancellor, because it is likely to be again challenged by someone in future and the University of Kerala may face the same fate as some other Universities as seen recently; adding that his clients do not contend that Ext.P3 is illegal, but that it is incomplete and perhaps, therefore, not tenable. 18. Sri.R.T.Pradeep, learned counsel representing respondents 7 and 8 -who are stated to be the members of the Senate of the Kerala University -adopted the afore submissions of Sri.Achuth Kylas, adding that everyone is concerned that University is functioning without a full time Vice Chancellor. He submitted that, therefore, his clients pray that law be followed and the new Vice Chancellor be directed to be appointed at the earliest. 19. The afore narrative of the rival contentions of the parties render it perspicuous that there is no dispute that Kerala University must now obtain a new Vice Chancellor at the earliest. 20. The singular points of controversy is whether Ext.P3 notification is valid; and if the Senate was justified in imposing a condition on the Chancellor that it be withdrawn before they nominate their person to the Search-cum-Selection Committee. 21. Before answering the afore, I must record that this Court is firm in its opinion that, to the extent to which the provisions of the 'Act' are not in conflict with the 'UGC Regulations 2018', it should certainly be given full effect. This is a fundamental principle of interpretation of Statutes and I find no reason to deviate from the same. 22. That said, I see no reason to observe to the contrary that Section 10(1) of the 'Act' answers the requirements under Regulation 7.3 of the 'UGC Regulations 2018', though the latter do not specify the number of members to be included in the Search-cum-Selection Committee. 22. That said, I see no reason to observe to the contrary that Section 10(1) of the 'Act' answers the requirements under Regulation 7.3 of the 'UGC Regulations 2018', though the latter do not specify the number of members to be included in the Search-cum-Selection Committee. However, said Regulation makes it limpid that all members should be persons of eminence in the sphere of higher education; and when Section 10(1) of the 'Act' provides that three members of the said Committee ought to be (a) a nominee of the Chairman of the University Grants Commission; (b) a nominee of the Chancellor; and (c) one elected by the Senate, I do not think that the constitution of such a Committee is impermissible or illegal. 23. That said, the Chancellor issued Ext.P3 notification, including therein his nominee, as also that of the Chairman of the UGC; rendering it crystally clear that, as and when the Senate of the University nominates their member, he/she would be included therein. 24. At first glance, there can be little objection to this, but the controversy has its genesis in the fact that the Chancellor, while issuing the said notification, also nominated the Convener of the Committee; and this appears to have spurred the Senate to the opinion that it is rendered illegal; and it, therefore, resolved on 20.08.2022, to request him to withdraw the same, before they nominate their member. In effect, what the Senate required was that Ext.P3 notification be withdrawn by the Chancellor and that he issue a new one, under Section 10(1) of the 'Act', after it nominates its member also. 25. The Chancellor, however, appears to have not acceded to the above 'request' and hence, various events happened, as have been narrated above, ending with the subsequent meeting of the Senate on 04.11.2022, whereby, they stood firm on their earlier decision not to nominate their member until Ext.P3 is withdrawn. Of course, the resolution uses the word 'request', but it is clear therefrom that it has imposed the same as a pre-condition on the Chancellor, before they would nominate their member. 26. It is in the afore context that the petitioner alleges that the Senate of the University is dictating to the Chancellor and refusing to abide by the mandate of Section 10(1) of the 'Act'. 27. 26. It is in the afore context that the petitioner alleges that the Senate of the University is dictating to the Chancellor and refusing to abide by the mandate of Section 10(1) of the 'Act'. 27. As I have already said above, the question really is if the Chancellor could have issued Ext.P3 notification without the member of the Senate being nominated; and whether the Senate could have put a pre-condition on the said Authority for them to make such nomination. 28. On the first of the afore aspects, I am prima facie of the firm view that Ext.P3 can never be seen to be a full notification, as correctly argued by Sri.Achuth Kylas, because it concedes in no uncertain terms that a third member is awaited. Obviously, and which is not disputed by Sri.S.Gopakumaran Nair – learned Senior Counsel for the Chancellor, as and when a third member is nominated by the Senate, a new notification will certainly have to be issued by the Chancellor, within the ambit of Section 10(1) of the 'Act', read with Regulation 7.3 of the 'UGC Regulations 2018'. 29. However, this was lost to the Senate, when they settled their resolutions as stated above, because they appear to be under the erroneous impression that Ext.P3 is a final notification and which will require to be withdrawn before they make their nomination; thus, leading to a fresh notification to be issued by the Chancellor. 30. Sadly, the controversy has been unnecessarily foisted – without blaming any of the sides at this stage -solely because, it was not properly understood that Ext.P3 will certainly have to be succeeded by a new notification, as and when a nominee of the Senate is named by them. 31. If this had been known to the Senate and had they been so advised, perhaps the present imbroglio would have never arisen. 32. That said, coming to the second limb of the contentions of the petitioner, I have already given the Senate of the University the benefit of doubt that they may have acted under a wrong advice or impression that Ext.P3 was a final notification and that the nomination by them would only be a formality. 32. That said, coming to the second limb of the contentions of the petitioner, I have already given the Senate of the University the benefit of doubt that they may have acted under a wrong advice or impression that Ext.P3 was a final notification and that the nomination by them would only be a formality. The fact remains, as I have already declared above, that, at the best, Ext.P3 can only be seen to be a provisional notification – without entering into the question whether it is permissible – and that, as and when their nomination is made by the Senate, a fresh notification will certainly have to be issued by the Chancellor. 33. Viewed from such perspective, the actions of the Senate were perhaps unnecessary, but it is too early for me to now conclude affirmatively that they have acted in deliberate defiance of the provisions of law. However, I must add that, had there any such misgiving regarding Ext.P3 notification, they should have opened up channels of discussion to dispel the same, which would have ensured the imperative necessity of an amiable collaboration between the functionaries to be kept alive in its true democratic spirit, which alone is the foundational basis of the efficiency and integrity of the system and of the University. 34. I must, however, again advert at this stage to the assertion of Sri.George Poothottam, learned Senior Counsel, that the Senate had met on 04.11.2022, on a special notice, with the agenda to reconsider their earlier decision dated 20.08.2022. However, even though a resolution is stated to have been adopted by them on that date, reconsidering their earlier view, it still puts a condition on the Chancellor to withdraw Ext.P3, before they make the nomination. 35. This, in my firm view, was unnecessary and perhaps impermissible because, certain other matters are pending before this Court, wherein, the validity of Ext.P3 has been challenged by a few Senators; and hence, no demand could have been made by the Senate on the Chancellor to withdraw it -its validity being under the seizen of this Court even at this time. I, however, leave it there. 36. As matters now stand, the urgent and imperative requirement is that the Search-cum-Selection Committee be constituted at the earliest and a new Vice Chancellor be appointed to the Kerala University. I, however, leave it there. 36. As matters now stand, the urgent and imperative requirement is that the Search-cum-Selection Committee be constituted at the earliest and a new Vice Chancellor be appointed to the Kerala University. This can brook no further delay, the earlier incumbent in the office having retired on 24.10.2022. 37. However, even the above being so, this Court cannot accede to the prayer of the petitioner that the Search-cum-Selection Committee constituted under Ext.P3 notification be asked to make recommendation because, as said above, same is still cohate, without its third member mentioned therein. Contrary to the impression of the petitioner, Ext.P3 has not constituted a two member Committee, but a three member one; with the third one awaited to be nominated by the Senate of the university. It is hence unnecessary to say specifically that such a Committee cannot be asked to move forward to search or settle a panel for appointment of the new Vice Chancellor. 38. Resultantly and since the learned Senior Counsel and the learned counsel for the parties are ad idem that the University requires a Vice Chancellor at the earliest, I deem it appropriate to dispose of this writ petition, without acceding to any of the reliefs sought for by the petitioner; but with the following directions: a) The competent Authority of the University of Kerala will nominate their member, for inclusion in the Search-cum-Selection Committee to be constituted by the Chancellor under the provisions of Section 10(1) of the 'Act', read with Regulation 7.3 of the 'UGC Regulations 2018', within a period of one month from the date of receipt of a copy of this judgment. I record that the University has sought liberty of seeking an extension, due to any valid circumstance to arise, which will be considered, if made through a proper application. b) On the nomination being so made by the competent Authority of the University, Exts.P3 and P9 will stand inoperative; and the Chancellor will make a fresh notification under Section 10(1) of the 'Act', read with Regulation 7.3 of the 'UGC Regulations 2018'; and then proceed to ensure the selection of the new Vice Chancellor, within the earliest time frame. b) On the nomination being so made by the competent Authority of the University, Exts.P3 and P9 will stand inoperative; and the Chancellor will make a fresh notification under Section 10(1) of the 'Act', read with Regulation 7.3 of the 'UGC Regulations 2018'; and then proceed to ensure the selection of the new Vice Chancellor, within the earliest time frame. c) If, for any reason, the competent Authority of the University refuses or fails to act as per the direction (a) above, the Chancellor can appositely act in terms of the 'Act' read with the 'UGC Regulations 2018' following imperative procedure under both. This writ petition is thus ordered.