Calcutta High Court (Appellete Side)
Professor Saikat Maitra vs State Of West Bengal And Others on 4 August, 2022
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Kausik Chanda
W.P.A. No.17398 of 2022
PROFESSOR SAIKAT MAITRA
-VERSUS-
STATE OF WEST BENGAL AND OTHERS
For the petitioner : Mr. Bikash Ranjan Bhattacharya, Sr. Adv.,
Mr. Soumya Majumdar, Adv.,
Mr. Dwip Raj Basu, Adv.,
Mr. Uttam Kumar Mandal, Adv.
For the State : Mr. S.N. Mookherjee, Ld. A.G.,
Mr. Swapan Kumar Datta, Ld. A.G.P.,
Mr. T.M. Siddiqui, Adv.,
Mr. Sandip Dasgupta, Adv.,
Mr. Saaqib Siddiqui, Adv.,
Mr. Aviroop Mitra, Adv.,
Mr. Tapas Kumar Mandal, Adv.
For respondent no.2 : Mr. Suranjan Dasgupta, Adv.,
For respondent no.3 : Mr. Amitava Chaudhuri, Adv.,
Mr. N. Roy, Adv.
Hearing concluded on : 02.08.2022
Judgment on : 04.08.2022
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Kausik Chanda, J.:-
Since the relevant facts of this case are not disputed by the parties,
this petition is disposed of without inviting affidavits from the respondents.
2. The petitioner was appointed the Vice-Chancellor of Maulana Abul
Kalam Azad University of Technology (in short, "the said University") for a
period of four years by an order dated February 21, 2017, issued by the
Principal Secretary, Department of Higher Education, Science & Technology
and Biotechnology and also by the Secretary to the Chancellor of the said
University.
3. Thereafter by an order dated February 26, 2021, the Principal
Secretary, Higher Education Department, University Branch, re-appointed
the petitioner as the Vice-Chancellor of the said University for a further
period of four years with effect from February 27, 2021, or till he attained
the age of 65 years whichever was earlier.
4. The factual backdrop in which the petitioner was re-appointed is
somewhat peculiar. To appreciate the facts preceding the re-appointment of
the petitioner as the Vice-Chancellor, the said order dated February 26,
2021, is reproduced below:
"GOVERNMENT OF WEST BENGAL
HIGHER EDUCATION DEPARTMENT
(UNIVERSITY BRANCH)
BIKASH BHABAN, SALT LAKE
KOLKATA-700091
No. 389-Edn (U)/TU-05/2004 (Pt-I) Date: 26.02.2021
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NOTIFICATION
Whereas, the tenure of Prof. Saikat Maitra, existing
Vice Chancellor of the Maulana Abul Kalam Azad
University of Technology, West Bengal is going to expire
on 26.02.2021 afternoon on being completing four years
term, and
Whereas, the State Government has constituted a
Search Committee for appointment of regular Vice
Chancellor of the University in terms of rules 9 (1) (c)
appended to the Maulana Abul Kalam Azad University of
Technology, West Bengal Act, 2000 vide this
Department's Notification No. 900-Edn (U) dated
10.10.2020, and
Whereas, it is considered expedient that the office
of the Vice Chancellor being the highest administrative
and academic office of the University cannot be left
vacant after expiry of the term of present Vice
Chancellor, and
Whereas, the Department's above noted proposal
has been placed before the Hon'ble Chancellor of the
University twice for approval in terms of rule 9 of the
West Bengal State Universities (Terms and Conditions of
Service of the Vice Chancellors & the Manner and
Procedure of Official Communication) Rules, 2019, but
the said proposal has not yet been approved by Hon'ble
Chancellor till date, and
Whereas, the constituting Act of the University is
silent in regard to the best action to be taken in such
situation and thus there is no other option but to invoke
the provisions of section 30 of the said Act in view of
removing the present difficulty arises due to non
approval of the Department's proposal by the Hon'ble
Chancellor, and
Therefore, in view of the above and in exercise of
the powers conferred by section 30 of the Maulana Abul
Kalam Azad University of Technology, West Bengal Act,
2000, and in terms of the provisions of rule 9 (5) (b)
appended to the Schedule of the said Act, the Governor
is hereby pleased to re-appoint Prof. Saikat Maitra, the
existing Vice Chancellor of the University as the Vice
Chancellor of the Maulana Abul Kalam Azad University
of Technology, West Bengal for a period of four years
w.e.f 27.02.2021 forenoon, or till he attain the age of
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sixty-five years, or until further order, whichever is
earlier.
Sd/-
Principal Secretary
No.389/1(7)-Edn (U)/TU-05/2004 (Pt-I) Date: 26.02.2021
Copy forwarded for information and/or for taking
necessary action to:-
1. The Vice Chairman (Academic), WBSCHE, 147-A,
Rashbehari Avenue, Kolkata-700029,
2. The Vice Chancellor, Maulana Abul Kalam Azad
University of Technology, Wes Bengal, NH-12, Simhat,
Haringhata, Nadia, PIN-741249,
3. The Registrar, Maulana Abul Kalam Azad University of
Technology, Wes Bengal, NH-12, Simhat, Haringhata,
Nadia, PIN-741249,
4. Special Secretary (University), H. E. Department,
Bikash Bhaban, Salt Lake, Kolkata-700091,
5. PS to HMIC, H. E. Department, Bikash Bhaban, Salt
Lake; Kolkata-700091,
6. Sr. PA to Principal Secretary, H. E. Department,
Bikash Bhaban, Salt Lake, Kolkata-700091,
7. Office Copy.
Sd/-
Assistant Secretary (Law)"
5. By the order impugned dated July 29, 2022, issued by the Assistant
Secretary, Department of Higher Education, the said order dated February
26, 2021, re-appointing the petitioner for a further period of four years was
rescinded and respondent no.3 was given the temporary charge of the office
of the Vice-Chancellor of the said University for a period of six months or
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until the appointment of a Vice-Chancellor of the University whichever was
earlier.
6. The said order dated July 29, 2022, is quoted below:
"GOVERNMENT OF WEST BENGAL
HIGHER EDUCATION DEPARTMENT
BIKASH BHABAN, SALT LAKE
KOLKATA-700091
No.645-Edn (U)/TU-01/2004(Pt-III) Date: 29.07.2022
NOTIFICATION
Subject: Rescission of Department's Order No. 389-Edn
(U)/TU-01/2004 (Pt-III) dated 26.02.2021
The Governor is pleased hereby in the interest of
public service to rescind the Department's Order No.
389-Edn (U)/TU-01/2004 (Pt-III) dated 26.02.2021 with
immediate effect. It is further ordered that Prof.
Malayendu Saha, the Chairman of the West Bengal Joint
Entrance Examinations Board and the erstwhile Vice
Chancellor of the Kalyani University shall be temporarily
in charge of the office of the Vice Chancellor, Maulana
Abul Kalam Azad University of Technology, West Bengal,
in addition to his duties as Chairman West Bengal Joint
Entrance Examinations Board, for a period of six months
or until appointment of a Vice Chancellor of the Maulana
Abul Kalam Azad University of Technology, West Bengal
following due process, or until further order, whichever is
earlier.
This is issued in the interest of Education in the
State of West Bengal with approval of the competent
authority in the State Government.
Sd / -
Assistant Secretary"
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7. Since the said order dated July 29, 2022, did not contain any specific
reason for termination from the service of the petitioner in the midway, the
State was directed to produce the relevant note-sheets to ascertain the
reason behind the issuance of the said order.
8. Learned Advocate General, S.N. Mookherjee, appearing for the
State has produced the original note-sheets which ultimately resulted in
issuance of the impugned order dated July 29, 2022, before the Court.
9. The State suggests that there was a complaint by a private individual
against the re-appointment of the petitioner to the post of Vice-Chancellor.
On the basis of the said complaint, the opinion of Law Department of the
State was sought. The Law Department opined that the petitioner was
illegally appointed by invoking Section 30 of Maulana Abul Kalam Azad
University of Technology, West Bengal, Act, 2000 (hereinafter referred to as
"the said Act of 2000". Sub-section (3) of Section 30 of the said Act of 2000,
makes it clear that no order could be made under Section 30 after the
expiry of a period of two years from the date on which the Act came into
force. Therefore, the petitioner could not be re-appointed on February 26,
2021, by invoking Section 30 of the said Act of 2000, which came into
operation on and from July 20, 2000.
10. The learned Advocate General submits that there is no personal
allegation against the petitioner as to his performance or otherwise, but
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since he was reappointed without any authority of law, the State had
rectified the mistake by issuance of the impugned order dated July 29,
2022.
11. By placing reliance upon the judgment reported at (2018) 15 SCC
463 (Union of India v. Raghuwar Pal Singh), Mr. Mookherjee, learned
Advocate General, argued that the re-appointment of the petitioner was a
nullity and therefore, the petitioner was not given any opportunity of
hearing before the order impugned was issued.
12. Mr. Soumya Majumdar, learned advocate being led by Mr. Bikash
Ranjan Bhattacharya, learned senior advocate, on the other hand, has
argued that the power of the State to give any direction to the University to
remove any difficulty can be traced to Section 19 of the West Bengal
Universities and Colleges (Administration and Regulation) Act, 2017 (in
short, "the said Act of 2017"). In the impugned order, though it has been
mentioned that the State re-appointed the petitioner in exercise of power
under Section 30 of the said Act of 2000, such exercise was authorised
under Section 19 of the said Act of 2017.
13. The learned Advocate General has disputed the applicability of
Section 19 of the said Act of 2017 in the present case. He submits that the
said Section 19 empowers the State to remove difficulties that may arise in
applying the provisions of the said Act of 2017 only. According to the
learned Advocate General, the appointment of a Vice-Chancellor of the said
8
University is completely covered by the said Act of 2000. Therefore, the re-
appointment of the petitioner cannot be justified by taking recourse to
Section 19 of the said Act of 2017. The State has rightly undone its mistake
in re-appointing the petitioner in exercise of power under Section 30 of the
said Act of 2000, which was not in force at the relevant point of time.
14. From the submission of the respective parties, the only point that
arises for consideration is whether the State had the authority to re-appoint
the petitioner following its power to remove the difficulties under Section 30
of the said Act of 2000 or whether such power could be exercised under
Section 19 of the said Act of 2017.
15. It is necessary to quote Section 30 of the said Act of 2000, which
runs as follows:
Removal of "30. (1) If, by reason of any provision of this Act,
difficulties
any difficulty arises in giving effect to the
provisions of section 25, the first Vice-
Chancellor shall refer such difficulty to the State
Government which may make such order or do
such thing, not inconsistent with the provisions
of that section, as appears to it to be necessary
or expedient for removing the difficulty.
(2) If, on account of any lacuna or omission in
the provisions of this Act, or for any other
reason whatsoever, any difficulty arises as to the
first constitution of any authority of the
University under this Act, or otherwise, in giving
effect to the provisions of this Act, the State
Government may, as occasion may require, by
order do anything which appears to it to be
necessary for the purpose of removing the
difficulty, notwithstanding anything to the
contrary contained elsewhere in this Act or in
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any other law for the time being in force.
(3) Notwithstanding anything contained in
sub-section (1) or sub-section (2), no order shall
be made under this section after the expiry of a
period of two years from the date on which this
Act comes into force."
16. There cannot be any doubt that Section 30 has been engrafted in the
said Act of 2000 to remove any difficulty in giving effect to the transitory
provision of Section 25 of the said Act of 2000. Sub-section (3) of Section 30
makes it clear that the said provision could not be invoked after the expiry
of a period of two years from July 20, 2000, i.e. the date of commencement
of the said Act of 2000. Therefore, there was no occasion on the part of the
State to invoke the said provision on February 26, 2021, to re-appoint the
petitioner by way of removal of difficulties.
17. To appreciate the applicability of Section 19 of the said Act 2017, it is
necessary to note that the said Act was introduced with an object to provide
better administration and to improve the quality of education in the State-
aided higher education institutions in West Bengal and for such other
matters connected therewith and incidental thereto.
18. By virtue of Section 2, the said Act applies to all Universities
established by or under any Act of the State Legislature and are receiving
financial assistance from the State Government in any form. Chapter V of
the said Act deals with the Administration of Universities. The relevant
portion of the said Chapter V is quoted below:
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Administration of "CHAPTER V
Universities.
Administration of Universities
13. (1) Notwithstanding anything
contained in any other law for the time
being in force or in any custom or usage to
the contrary, wherever it is proposed to
nominate a person by the Chancellor in any
body or authority of any University or other
body corporate, such person shall
henceforth be nominated by the Chancellor
in consultation with the State Government.
(2) Notwithstanding anything contained
in any other law for the time being in force
or in any custom or usage to the contrary,
no University, without the prior approval of
the State Government, shall, after the
commencement of this Act,-
(a) permit any person to work under
the University beyond the
prescribed age of superannuation
except in the manner notified by
the state Government;
(b) dispose of or sell any immovable
property of the University;
(c) declare setting up or conversion of
any post of Officer or teacher of
the University;
(d) such other act or acts as may be
prescribed by the State
Government.
(3) The State Government may, subject to
availability of fund, allow the application for
creation of teaching, non-teaching and
officers' posts in such University on its
discretion, after considering the need for
staff in the University.
(4) The State Government may, by order,
from time to time, revise the scale of pay
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attached to the post of teachers, officers or
non-teaching employees or sanction any new
allowance thereof.
(5) The State Government may, by order,
regulate the expenditure of a University and
may revise such rules from time to time."
19. Section 18 confers power upon the State Government to give
directions to any College or in any University in any matter not inconsistent
with the provisions of this Act and the College and the University shall be
duty bound to comply with such direction.
20. Section 19 authorises the State to remove any difficulty as may arise
in applying the provisions of the Act to any College or University covered
under the Act.
21. Sections 18 and 19 of the said Act of 2017 are quoted below:
Powers to give "18. The State Government shall have the
directions.
power to give directions to any college or in
any University in any matter not
inconsistent with the provisions of this Act
and the college or the University shall be
duty bound to comply.
Power to remove
difficulties.
19. (1) The State Government shall have the
power to remove any difficulty as may arise
in applying the provisions of this Act to any
college or University covered under this Act.
(2) The decision of the State
Government shall, in every case, be final in
regard to any dispute in between the State
Government and the College or the
University in effecting the provisions of this
Act."
22. Even if after reading the aforesaid provisions there is any doubt in
anyone's mind as to the applicability of the said Act of 2017 in case of
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appointment of a Vice-Chancellor, the same can be cleared by reading the
rules namely, the West Bengal State Universities (Terms and Conditions of
Service of the Vice Chancellor & the Manner and Procedure of Official
Communication) Rules, 2019, which has been framed under the rule-
making power of the State under Section 17 of the said Act of 2017.
23. The relevant provisions of the said rules are quoted below:
"3. Office of the Vice Chancellor/ Pro-Vice
Chancellor:-
(1) The Office of the Vice Chancellor shall be
deemed to be a Public Office and shall remain
open on all week days, except holidays.
(2) The Vice Chancellor may, in his discretion keep
open his office on any holiday if he considers
that an urgent business in relation to the
University is required to be done.
(3) All employees of the University shall assist to
the Vice Chancellor and the Pro-Vice Chancellor
in performing all his works and duties as
prescribed under the Act as and when the Vice
Chancellor and the Pro-Vice Chancellor so
requires.
(4) During the absence of Vice Chancellor from his
Office, either by reasons of leave, illness or
otherwise, the charge of the Office of the Vice
Chancellor shall be given to a Pro-Vice
Chancellor, and if not available, the charge
shall be given to another Vice Chancellor or
Pro- Vice Chancellor of a nearby State-aided
University with the approval of the State
Government. If they are not available, the
charge shall be given to the senior most Dean of
the University, and if he is not available, to the
senior most Professor of the University, with the
intimation to the Department.
(5) The person holding charge of the Office of the
Vice Chancellor shall only discharge to do the
routine functions of the University but shall not
13
hold any meeting of the Senate/Court/
Governing Board or the Syndicate/ Executive
Council of the University without prior
permission of the State Government.
(6) All decisions taken by the person holding the
charge of the Office of the Vice Chancellor
under sub-rule (4), shall require ratification by
the Vice Chancellor, failing which such decision
shall cease to have effect.
(7) During absence of the Pro-Vice Chancellor from
his Office either by reasons of leave, illness or
otherwise, the Vice Chancellor shall handover
charge of the Office of the Pro-Vice Chancellor
to the senior most Dean of the University, and if
he is not available, to the senior most Professor
of the University, with an intimation to the
Department.
...
5. Terms and condition of service of the Vice
Chancellors and the Pro-Vice Chancellors of State-
aided Universities:-
(1) There shall be a Service Book to be maintained in
the University and a copy of which shall be kept
in the Department for all the Vice Chancellors
and the Pro-Vice Chancellors of the University
and shall be updated periodically, both in the
University and in the Department.
(2) The Service Book shall contain the details
regarding joining in the post of Vice Chancellor,
or a Pro- Vice Chancellor, as the case may be,
emolument received, leave taken, details
regarding academic and administrative
performances, details regarding visit to various
academic and administrative programme, details
regarding foreign visit and such other things as
may be directed by the State Government from
time to time.
(3) The Service Book maintained for the period of the
tenure of a Vice Chancellor or a Pro-Vice
Chancellor shall be part of his original Service
Book maintained with his parent employer and
shall be taken into account for all purposes.
(4) The Vice Chancellor shall on his attaining the age
of usual superannuation from his parent service
may at his option, receive pension and other
retirement benefits from the University where he
is so appointed.
(5) After expiry of the period of usual
superannuation, if a person appointed or
reappointed as the Vice Chancellor, his pay and
allowances shall be fixed in a manner similar to
that of the employees of the State Government
who has been reemployed after attaining the date
of usual superannuation.
(6) Every Vice Chancellor and the Pro-Vice
Chancellor shall be entitled to thirty days Earned
Leave and fourteen days Casual Leave in a
Calendar year.
(7) The Vice chancellor and the Pro-Vice Chancellor
shall also be entitled to all other leaves as
enjoyed by other Officers of the University.
(8) All kinds of leave enjoyed by a Vice Chancellor or
the Pro-Vice Chancellor shall be recorded in their
Service Book.
(9) All application for leave, except casual leave, shall
be made at least seven days prior to the intended
days of leave sought either in writing, or in
electronic form to the Department.
6. Obligations of the Vice Chancellor:-
(1) No prior permission of the Department shall be
necessary if the Vice Chancellor or the Pro Vice
Chancellor of any State-aided University desires
to move beyond the territorial jurisdiction of the
State of West Bengal for any official business or
otherwise for a period not more than seven days
including holidays:
Provided that the Vice Chancellor or the Pro Vice
Chancellor concerned shall be required to send
an intimation in advance, in writing to the
Department for his intended visit:
Provided further that in every case prior
permission of the State Government is necessary
if such movement is for more than seven days
including holidays.
(2) In every case, prior permission of the Chief
Minister to the Government of West Bengal shall
be necessary if any Vice Chancellor or the Pro
Vice Chancellor desires to move outside India for
any reasons whatsoever.
(3) No Vice Chancellor shall execute or sign or cause
to be signed by any person associated with the
University, any Memorandum of Understanding
(MOU) or agreement with any person or any
Institute of Learning or with any other authority
on behalf of the University without the prior
approval of the Department.
(4) Every Vice Chancellor visiting any Indian or
foreign University or any Institute of Learning for
any academic or administrative purpose for and
on behalf of the University with which he is
associated, shall submit a detailed report to the
Department with the copy to Minister
immediately after his return.
7. Procedure regarding conducting enquiry, issuing
show cause or taking any penal measures against
the Vice Chancellor and the pro-Vice Chancellor:-
(1) on receipt of a complaint against any Vice
Chancellor or Pro-Vice Chancellor, the
Department may, if it considers necessary,
constitute a one man Enquiry Committee by the
Vice Chairman (Academic) of the West Bengal
State Council of Higher Education or the Vice
Chancellor of any other State-aided University to
conduct a preliminary enquiry into the
allegations levelled against the Vice Chancellor or
the Pro Vice Chancellor concerned.
(2) The Committee so constituted shall submit its
report to the Department within thirty days from
its constitution, in respect of such complaint.
(3) If upon consideration of the preliminary enquiry
report, the Department proposes to initiate
disciplinary proceeding against a Vice Chancellor
or Pro Vice Chancellor, the Department shall
draw up a Charge sheet containing the article of
charges, statement of imputation of charges, list
of documents proposed to be relied upon, and a
list of witness to prove the charges and serve the
same upon the charged official.
(4) On receipt of the written statement of defence, if
the Department is not satisfied with the reply,
the Department shall appoint an Enquiry Officer
to conduct an inquiry into the charges leveled
against the Vice Chancellor or Pro-Vice
Chancellor. If the Department is satisfied with
the written statement of defence, no further steps
need to be taken.
(5) Other procedure of conducting Disciplinary
proceedings shall be similar to that of the
procedure followed in case of Government
employees in the rank of Group 'A'.
(6) The findings of the Inquiry Officer shall be
submitted to the Department as early as possible
for consideration.
(7) If the Inquiry Officer returns a finding that the
charges are proved, the Department shall record
reasons for accepting or not accepting such
finding partially or in its entirety. However, if the
Inquiry Officer returns findings of innocence in
favour of the Vice Chancellor or the Pro-Vice
Chancellor and the Department disagree with the
finding, the Department shall give its reasons for
such disagreement.
(8) The Department may thereafter communicate its
decision on the findings of the Inquiry Officer to
the Chancellor for taking necessary action.
(9) If the Chancellor expresses his disagreement with
the decision of the Department, he shall submit
his reasoning of such disagreement in writing
and revert back to the Minister for
reconsideration.
(10) The Minister shall again communicate his
recommendation to the Chancellor's reference
made under sub-rule (8), with or without
modification, as he deems fit and such decision
of the Minister shall be approved by the
Chancellor.
(11) If the decision approved by the Chancellor goes
against the Vice Chancellor or Pro Vice
Chancellor, the report of the Inquiry Officer,
reasons recorded by the Department on the
inquiry report, the reasons for disagreement of
the Chancellor and the recommendation of the
Minister shall be served upon the Vice Chancellor
or the Pro-Vice Chancellor, calling upon him to
submit his written submission on all the
documents and to show cause within fifteen days
as to why he shall not be removed as the Vice
Chancellor or Pro Vice Chancellor of the
University.
(12) If the Department is satisfied with the reply of the
Vice Chancellor or Pro Vice Chancellor, all
further proceedings will be dropped and he shall
be informed accordingly. In case of
dissatisfaction, the Department shall issue
appropriate order as it deems fit.
(13) If the Vice Chancellor or the Pro Vice Chancellor
is not satisfied with the action taken, he may
prefer an appeal before a Tribunal to be
constituted by the State Government for this
purpose.
(14) The constitution, powers and functions of such
Tribunal mentioned under sub-rule (13) shall be
such as may be determined and notified by the
State Government, from time to time.
8. Mode of communication by the Chancellor and
Vice Chancellors with the State Government:-
(1) Notwithstanding anything contained in any
Statutes, Ordinances, and Regulations or in any
rules, customs or usages to the contrary for the
time being in force, in every case, all
communications proposed to be made to the
Chancellor by the Vice Chancellor, of a State-
aided University, shall be addressed to the
Secretary of the Department.
(2) Notwithstanding anything contained in any
Statutes, Ordinances, Regulations, rules,
customs or usages to the contrary for the time
being in force, the meeting of the Senate/Court
or the Syndicate/ Executive Council or the
Governing Board or of any other Bodies or
authorities of the University, as the case may be,
shall be convened by the Vice Chancellor with an
intimation to the Department and the
Department, may intimate the same wherever
necessary, to the Chancellor for record.
(3) Notwithstanding anything contained in any
Statutes, Ordinances, Regulations, rules,
customs or usages to the contrary for the time
being in force, all notice regarding Convocation
shall be brought to the notice of the Department.
(4) Notwithstanding anything contained in any
Statutes, Ordinances, Regulations, rules,
customs or usages to the contrary for the time
being in force, all proposals for conferring any
Honorary Degree to any person shall be placed
before the Department for concurrence the
Department shall send the list of awardees to the
Chancellor for his confirmation.
(5) Every communication proposed to be made by the
Chancellor to any State-aided University shall be
routed through the Department and action on
such communication shall be taken once the
same is endorsed by the Department. However,
there shall be no Chancellor's Secretariat.
(6) Any complaint received by the Chancellor
regarding the affairs of any State-aided University
shall be forwarded to the Department and the
Department, if deems fit, may cause an enquiry
or investigation on such complaint and may
recommend appropriate action to be taken in this
regard as per procedure prescribed in rule (7).
9. Mode of consultation by the Chancellor with the
State Government/Minister: -
For nominating any person in any Body or Authority or
Committee of any University the mode of consultation by
the Chancellor with the State Government/Minister shall
be as follows:-
(a) The Minister shall suggest at least three names
for each nomination amongst which the
Chancellor shall select one as his nominee in any
Body or Authority or Committee of the University
and shall communicate the same to the Minister
in return.
(b) If the Chancellor disagrees with the names
proposed by the Minister, he shall record reasons
in writing and revert back to the Minister.
(c) The Minister shall communicate his views in
writing as he considers necessary and in such
case the Chancellor shall finalize his nominee
from amongst the names provided by the Minister.
(d) In case of appointment of the Vice Chancellor of a
University, the Chancellor shall maintain the
order of preference of names placed before him.
(e) Notwithstanding anything contained in any
Statutes, Ordinances and regulations of any
University, the Chairman of any Body or Authority
or Committee of any University shall be decided
by the University in consultation with the State
Government unless the same has been specifically
provided in the Constituting Act of the University."
24. A bare perusal of the aforesaid provisions makes it clear that
appointment or re-appointment of a Vice-Chancellor are not excluded from
the purview of the said Act of 2017 read with the aforesaid rules namely,
the West Bengal State Universities (Terms and Conditions of Service of the
Vice Chancellor & the Manner and Procedure of Official Communication)
Rules, 2019.
25. The State, therefore, cannot contend that the Act of 2017 has got no
manner of application in appointment of a Vice-Chancellor of the
University. In fact, the order impugned itself suggests that the proposal for
appointment of the Vice-Chancellor of the University was placed before the
Hon'ble Chancellor of the University for approval in terms of Rule 9 of the
West Bengal State Universities (Terms and Conditions of Service of the Vice
Chancellor & the Manner and Procedure of Official Communication) Rules,
2019.
26. In that view of the matter, it must be held that the State is within its
right to pass appropriate directions under Section 19 of the said Act of
2017, relating to the appointment or re-appointment of a Vice-Chancellor of
the University.
27. It is also pertinent to mention that the learned Advocate General has
fairly admitted that the State suggested three names for the post in
question before the Chancellor placing the petitioner at no.1 position. Rule
9(d) of the West Bengal State Universities (Terms and Conditions of Service
of the Vice Chancellor & the Manner and Procedure of Official
Communication) Rules, 2019, mandates that the Chancellor should
maintain the order of preference of names placed before him. Therefore, it
is apparent that it was the desire of the State that the petitioner should be
appointed as the Vice-Chancellor of the said University but when the
required approval could not be obtained from the Chancellor, the State
itself appointed the petitioner invoking its power to remove the difficulties.
28. The order dated February 26, 2021 re-appointing the petitioner as a
Vice-Chancellor of the University cannot be said to be without any
authority of law. Though the said order mentions a wrong provision, the
said power of the State, in fact, has been exercised under Section 19 of the
Act of 2017. It is well-settled that mentioning a wrong provision of law by
itself is not sufficient to invalidate the exercise of power when such power
can be traced to a different provision of law.
29. In that view of the matter, the order impugned cannot be sustained
as the same was uncalled for. Accordingly, the order dated July 29, 2022,
issued by the Assistant Secretary, Department of Higher Education, is set
aside.
30. The respondents will allow the petitioner to join the post of Vice-
Chancellor within three working days from the date of this order and for
that purpose it may not be necessary to hand over the charge to the
petitioner by respondent no.3.
31. It should be clarified that in this writ petition only the authority of
the State to exercise the power under Section 19 of the said Act of 2017 in
appointing a Vice-Chancellor has been decided. The justification for such
exercise of power has not been gone into by this Court since it is not the
case of the State the order of re-appointment is otherwise bad in law.
32. Accordingly, W.P.A. No.17398 of 2022 is allowed.
33. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
(Kausik Chanda, J.)
Later
After the judgment is delivered, Mr. Amitava Chaudhuri, learned
advocate appearing for the University and Mr. Tapas Kumar Mandal,
learned advocate appearing for the State, pray for stay of operation of the
judgment and order. Such prayer is considered and rejected.
(Kausik Chanda, J.)
