Calcutta High Court (Appellete Side)
An Anupam Bera vs The Union Of India & Ors on 19 June, 2023
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16+24 19.06.2023 WPA (P) 263 OF 2023
RP Ct. No. 01
AN Anupam Bera
Vs.
The Union of India & ors.
with
WPA (P) 274 of 2023
Pulak Narayan Dhar
Vs.
The Union of India & ors.
(Appearance in WPA (P) 263 OF 2023):
Ms. Susmita Saha Dutta
Mr. Niladri Saha
Ms. Madhurima Basu
... For the petitioner
Mr. S. N. Mookherjee, Ld. A.G.
Md. Galib
Mr. Parikshit Goswami
... For the State
Mr. Ashoke Kr. Chakraborti, Ld. A.S.G.
Mr. Billwadal Bhattacharyya
Mr. Tarunjyoti Tewari
... For the U.O.I.
Mr. Anil Kr. Gupta
Ms. Debjani Ghosal
... For the U.G.C.
(Appearance in WPA (P) 274 OF 2023):
Mr. Mohit Gupta
Ms. Ruby Mukherji
... For the petitioner
Mr. Ashoke Kr. Chakraborti, Ld. A.S.G.
Mr. Billwadal Bhattacharyya
Mr. Tarunjyoti Tewari
... For the U.O.I.
Mr. Anil Kr. Gupta
Ms. Debjani Ghosal
... For the U.G.C.
1. These two writ petitions have been filed as
Public Interest Litigation with virtually identical prayers in.
In WPA (P) 263 of 2023, the petitioner seeks for a
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declaration declaring the West Bengal Ordinance No. 1 of
2023 as ultra vires by which the provisions of the various
University Acts in the State of West Bengal was amended
with regard to the
Constitution of India of the Search-cum-Selection
Committee for the purpose of recommending the names for
appointment as Vice Chancellors of various Universities of
West Bengal by the Chancellor, His Excellency, the
Governor of West Bengal.
2. The petitioner would contend that by virtue of
the impugned Ordinance practically three nominees of the
State Government are there in the five member Search-
cum-Selection Committee and this was not the ratio which
was spelt out by the Division Bench of this Court in the
case of Anupam Bera vs. The State of West Bengal in WPA(P)
170 of 2022. It is further stated the U.G.C. Regulations,
2018 state that the Chancellors is the appointing authority
of the Vice Chancellors but the impugned Ordinance heavily
loading the Search-cum-Selection Committee with the
nominees of the different functionaries and/or
instrumentalities of State virtually takes away the powers of
the Chancellor to appoint an experienced and meritorious
academician to administer the University. It is further
stated that the authority of the Chancellor, His Excellency,
the Governor of West Bengal has diluted and virtually
treated as a signing authority after picking any one from the
panel recommended by the Search-cum-Selection
Committee, majority of whose members are the nominees of
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different functionaries, instrumentalities of the State
Government, without any kind of discretion.
3. The petitioner in WPA (P) 274 of 2023 wherein
also an identical prayer has been made challenging the
impugned Ordinance would submit that overwhelming
majority of the State Government in the Search-cum-
Selection Committee is illegal. It is contrary to the settled
principles of law laid down by the Hon'ble Supreme Court
wherein it has been held that there should be least
interference of the Government in the matter of
appointment of various teaching staff of Schools and/or
Colleges and/or Universities in India.
4. Learned counsel for the petitioner has drawn
our attention to paragraph 52 of the judgment of Hon'ble
Supreme Court in the case of Gambhirdan K. Gadhvi
versus State of Gujarat & ors. reported in (2022) 5
Supreme Court Cases 179 to buttress her submission
that the State Government should adopt the U.G.C.
Regulation, 2018 and amend the said legislation
appropriately so that no room is left for any manipulation,
arbitrariness, nepotism and favouritism before any fresh
appointment as Vice Chancellors in the State and the
Universities thereunder are made. Learned counsel for the
petitioner has also placed reliance in support of her case
on the decision of the Constitution Bench of the Hon'ble
Supreme Court in the case of T. N. Pai Foundation vs.
State of Karnataka reported in (2008) 8 SCC 481 and
has referred to paragraphs 51 and 52 of the said judgment
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wherein it has been held Government's nominees in the
educational process must be resisted and that the State aid
was not to be confused with State control over academic
policies and practices. Thus, it is submitted that if the
impugned Ordinance is allowed to stand, the fair decision
will not be arrived at. In this regard, the learned counsel
has also referred to U.G.C. Regulations, 2018 and, in
particular, Regulation 7.3 deals with Vice Chancellors.
5. Learned Advocate General representing the
State, learned Additional Solicitor General, learned counsel
representing the U.G.C. have accepted the notice on behalf
of the State Government, Union of India and U.G.C.
respectively.
6. Learned Additional Solicitor General has
referred to Entry 25 of List 3 as also Entry 63 to 66 of List 1
and submitted that there are Constitution Bench decision
which would require the impugned Ordinance to be placed
before the President of India for approval as the subject falls
in the Concurrent List.
7. After we have heard the learned counsel for
the parties elaborately, we are of the view that the writ
petitions should be entertained and respondents should be
directed to file their affidavits. We have noticed that prior to
the impugned Ordinance, the respective State Universities
Act provided for constitution of such Committee and it had
only three nominees, one being the nominee of Chancellor,
His Excellency, the Governor of West Bengal, one nominee
of the State Government and an Academician not below the
rank of the Professor of the Central University or a State
aided University or a National Institute of Higher Learning
to be nominated by the Senate. By way of illustration, we
have referred to the Calcutta University Act, 1979. Further,
the proviso states that nominees as mentioned in the said
provision, shall not be the persons associated with the
concerned University for which the Search-cum-Selection
Committee is constituted. Earlier, the petitioner, Anupam
Bera had filed a Public Interest Litigation before this Court
being WPA (P) 170 of 2022 challenging the validity of the
West Bengal University Laws (Amendment) Act, 2012 and
West Bengal Laws (Amendment) Act, 2014 and prayed for
issuance of a writ of quo-warranto questioning the
appointment of the respondent nos. 5 to 35 as Vice
Chancellors of different Universities within the State of West
Bengal. By judgment dated 14.03.2023, the said writ
petition was allowed and it was held that the U.G.C.
Regulations, 2018 will prevail over the conflicting provisions
of the concerned State Universities relating to appointment
of the Vice Chancellors under which the private
respondents therein were appointed as Vice Chancellors.
Further, it was held that the Vice Chancellors who were
appointed and/or re-appointed and/or whose tenure was
extended giving additional charge by the State Government
who do not possess minimum educational qualification
condition or appointed without following due process of law
was held to be unsustainable and without authority of law
that they have no right to continue as Vice Chancellors by
virtue of such unsustainable orders. Thus, in terms of the
said decision, the State Universities Act had to be amended
to be in tune with U.G.C. Regulations, 2019. As noted
above, Regulation 7.3 deals with appointment of Vice
Chancellors and Clause 2(ii) of Regulation 7.3 states that
one member of the Search-cum-Selection Committee shall
be nominated by the Chairman of the U.G.C. for selection of
the Vice Chancellors of the State, private and deemed to be
Universities.
8. On perusal of the impugned Ordinance, we
find that the said requirement as directed by the Division
Bench in the earlier judgment has been complied with and
the nominee of the Chairman of the U.G.C. has been
included as a Member of the Search-cum-Selection
Committee. Other nominations for which the petitioner
cannot have an objection are the nominees of the
Chancellor, His Excellency, the Governor of West Bengal
which was in tune with the provisions of un-amended
provisions of various Universities Act in the State of West
Bengal. The objection the petitioner is that where the
nominee of the Hon'ble Chief Minister and one nominee of
the Chairman of the West Bengal State Council of Higher
Education have been made thereby virtually increasing the
Government nominees to 3 out of 5 members. The question
would be whether a nominee of the Hon'ble Chief Minister
and one nominee of the Chairman of the West Bengal State
Council of Higher Education is required to be made and by
virtue of such inclusion whether it would be ultra vires the
provisions of the Constitution of India and would lead to
governmental nominee of the educational process in the
matter of selection of the Vice Chancellors.
9. Therefore, we wish to examine this question for
which the affidavits are required to be filed by the respective
respondents. Learned counsel for the petitioner submits
that in the meantime, the impugned Ordinance should not
be given effect to. The learned Advocate General, on
instruction, has submitted that pursuant to the impugned
Ordinance, the Search-cum-Selection Committee has not
been constituted for any of the Universities in the State of
West Bengal. This submission is taken on record. We
grant the respondents three weeks time to file their
affidavit-in-opposition and affidavit-in-reply thereto, if any,
be filed within two weeks thereafter. In the event, there
appears to be any move to constitute the Search-cum-
Selection Committee in accordance with the impugned
Ordinance, we grant liberty to the learned counsel for the
petitioner to mention before this Court for appropriate
interim order.
10. List the matter on 31.07.2023 for further
consideration.
11. Affidavit of service filed in Court today be kept
with the record.
(T. S. Sivagnanam)
Chief Justice
(Ajay Kumar Gupta, J.)
