Calcutta High Court (Appellete Side)
Anupam Bera vs The State Of West Bengal & Ors on 14 March, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(Appellate Side)
WPA (P) 170 of 2022
with
CAN 1 of 2022
Reserved on: 06.02.2022
Pronounced on: 14.03.2023
Anupam Bera
...Appellant
-Vs-
The State of West Bengal & Ors.
...Respondents
Present:-
Ms. Susmita Saha Dutta
Mr. Asit Kumar Manna
Mr. Niladri Saha
Ms. Madhurima Basu
... ... for the petitioner
Mr. Sauvik Nandy
Mr. Avijit Chakraborty
... ... for the applicant
Mr. S.N. Mookherjee, AG
Mr. Md. Ghalib
... ... for the State
Mr. Tarunjyoti Tewari
... ... for the UOI
Mr. Abhrotosh Majumder, Sr. Adv.
Mr. Nilotpal Chatterjee
... ... for the respondent no.9
Mr. N. C. Bihani
... ... for Burdwan University
Mr. Soumya Mazumder
Mr. Suranjan Dasgupta
Mr. Uttam Mandal
... ... for the respondent no.20
Mr. Joydip Kar, Sr. Adv.
Mr. Soumya Mazumder
Mr. A. Ray
Mr. P. Ghosh
... ... for the respondent no.35
Mr. Riaz Abedin
Mr. Asif Dewan
... ... for the respondent no.11
Mr. Amitava Chaudhuri
Mr. N. Roy
... ... for the respondent nos.10 & 17
2 WPA(P) 170 of 2022
Mr. Anil Kumar Gupta
... ... for the UGC
Mr. Subhrangshu Panda
... ... for the respondent no.31
Ms. Debjani Sengupta
Ms. Shahina Haque
Ms. Koyel Bag
... ... for the Vidyasagar University
Mr. Raghunath Chakraborty
Ms. Amrita De
... ... for the Alia University
Mr. Arunangshu Chakraborty
Mr. Aswini Bera
Ms. Geneya Mukherjee
... ... for the respondent nos.23 and 29
Mr. Soumya Majumder
Ms. Sanjukta Dutta
... ... for the respondent nos.15 and 22
Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA,
CHIEF JUSTICE
THE HON'BLE JUSTICE RAJARSHI BHARADWAJ,
JUDGE
Prakash Shrivastava, CJ:
1. The petitioner being General Secretary of one Jatiyatabadi
Adhyapak O Gabeshak Sangha, a registered society and organization of
educationist, has filed the present public interest petition challenging the
validity of West Bengal University Laws (Amendment) Act, 2012 and
West Bengal Laws (Amendment) Act, 2014 and has prayed for writ of
quo warranto questioning the appointments of respondent nos. 5 to 35 as
Vice-Chancellors of different Universities within the State of West
Bengal.
2. The plea of the petitioner is that the provisions of the West
Bengal University Laws (Amendment) Act, 2012 (for short, 'Act of
2012') and West Bengal University Laws (Amendment) Act, 2014 (for
short, 'Act of 2014') are ultra vires of the provisions of the Constitution
of India, University Grants Commission Act and the UGC Regulations
3 WPA(P) 170 of 2022
of 2010 and 2018. Further plea of the petitioner is that the respondent
Vice-Chancellors have been appointed either by a Search Committee
which was not properly constituted or without constituting any such
Committee. Some of the appointments are also being challenged on the
ground that they do not fulfill the minimum eligibility criteria of 10
years experience as Professor in the University or 10 years experience in
a reputed research and/or academic administrative organization as
prescribed in the UGC Regulation. Some of the appointments have also
been questioned on the ground that the appointments have been made in
defiance of specific order or without specific approval of the Chancellor,
who in law, is the sole appointing authority for Vice-Chancellor post. A
plea has also been taken that the appointment of some of the respondent
Vice-Chancellors have been made contrary to the provisions contained
in the UGC Regulations, 2018.
3. Submission of learned counsel for the petitioner is that
provisions of the Act of 2012 and Act of 2014 run counter to the UGC
Regulations, 2018 as the minimum qualifications prescribed in the
impugned Acts for the post of Vice-Chancellors stands diluted and these
provisions prescribed minimum qualification lower than the one
prescribed in the UGC Regulations, 2018. A further plea has been raised
that in terms of the UGC Regulations, 2018, the Search Committee for
appointment of Vice-Chancellors must have a nominee of the Chairman,
UGC which was missing in the Search Committee formed for
appointment of the respondent Vice-Chancellors. She further submits
that the UGC Regulations have statutory force having being framed
under the UGC Act, 1956 and that the UGC Regulations are applicable
in the State of West Bengal even if the UGC Scheme has not been
4 WPA(P) 170 of 2022
accepted by the State and the State has no option in this regard. In
support of this submission, she has placed reliance upon the judgment of
the Hon'ble Supreme Court in the matter of Professor (Dr.) Sreejith
P.S. vs. Dr. Rajasree M.S. and Others reported in 2022 SCC OnLine
SC 1473. She has also referred to relevant entries of List I and List III of
Schedule 7 and Article 254 of the Constitution and has submitted that in
case of conflict, the Central Legislation will prevail. In support of this
submission, she has placed reliance upon the judgment of the Hon'ble
Supreme Court in the matter of Gambhirdan K. Gadhvi vs. State of
Gujarat and Others reported in (2022) 5 SCC 179. She has also
submitted that some of the respondent Vice-Chancellors have been
appointed by the State taking recourse to the removal of difficulty clause
which is not permissible and in support of her submission, she has
placed reliance upon the judgment of the Hon'ble Supreme Court in the
matter of State of West Bengal vs. Anindya Sundar Das and Others
reported in (2022) SCC OnLine SC 1382. She has submitted that the
appointing authority for the office of Vice-Chancellor is the Chancellor,
therefore, the appointments made by the State cannot be sustained and
that if the initial appointment itself is defective, then extension by the
proper authority cannot cure the defect. Learned counsel for the
petitioner has also relied upon the judgment of the Hon'ble Supreme
Court in the matter of Baharul Islam and Others vs. Indian Medical
Association and Others reported in 2023 SCC OnLine SC 79 and has
further submitted that UGC Regulations, 2018 are mandatory whereas
UGC Regulations, 2010 were directory since they were applicable to
those who had adopted the Scheme. She submits that there is no question
of exercising discretion while issuing the writ of quo warranto against
5 WPA(P) 170 of 2022
the respondent Vice-Chancellors because they are holders of high
position and it is not the issue of their livelihood as they will go back to
their original places.
4. Learned counsel for the UGC has supported the argument of the
learned counsel for the petitioner and has submitted that the Search
Committee is required to be constituted in terms of the UGC Regulations
and the minimum eligibility prescribed in the UGC Regulations cannot
be diluted by the State enactment.
5. Learned Advocate General appearing on behalf of the State has
opposed the petition and has submitted that a review petition has been
filed before the Hon'ble Supreme Court against the judgment in the case
of Anindya Sundar Das and Others (supra). He submits that UGC
Regulations, 2018 are not applicable in the State of West Bengal and
they are not binding on the Universities established under the State Act.
He submits that by the UGC Regulations, 2018, the earlier Regulations
have been superseded, therefore, the UGC Regulations, 2010 are no
longer existing from the date of publication of UGC Regulations, 2018.
He has further submitted that UGC Regulations, 2018 have been
published subsequent to the Scheme of the Central Government dated
2nd of November, 2017. He has submitted that implementation of the
revised scale under the Scheme was subject to acceptance of all the
conditions. Placing reliance upon the judgment in the matter of Kalyani
Mathivanan vs. K. V. Jeyaraj and Others reported in (2015) 6 SCC
363, he has submitted that UGC Regulations are directory in nature and
they are not binding on the State if not adopted by the State. He has also
submitted that in the Division Bench judgment of this Court in the case
of Anindya Sundar Das vs. State of West Bengal & Ors. in WPA (P)
6 WPA(P) 170 of 2022
55 of 2022 dated 13.09.2022, the applicability and effect of UGC
Regulations has been decided as pure question of law. He has also
submitted that UGC Regulations, 2018 have not been adopted by the
State, therefore, the judgment relied upon by learned counsel for the
petitioner in this regard are distinguishable. He has also submitted that
most of the respondent Vice-Chancellors fulfill the minimum
qualification of 10 years of experience. He has also referred to the
judgment of the Learned Single Bench dated 4th of August, 2022 passed
in WPA No. 17398 of 2022 and has submitted that State can take
recourse of removal of difficulty clause for appointment and
reappointment of Vice-Chancellors. He has also submitted that the relief
of the writ of quo warranto is discretionary and discretion may not be
exercised against the Vice-Chancellors who fulfill the minimum
eligibility criteria, against whom there are no complaints and whose
appointments have been challenged belatedly. In support of his
submission, he has placed reliance upon the judgments of the Bombay
High Court in the matter of Bhairul Chunilal Marwadi vs. State of
Bombay and Others reported in AIR 1954 Bom 116, the Delhi High
Court in the matter of P.L. Lakhanpal vs. A. N. Ray and Others
reported in ILR (1974) 1 Delhi 725 (FB), the Calcutta High Court in the
matter of Shri Anil Kumar Xalxo vs. The Lieutenant Governor,
Andaman & Nicobar Islands reported in 2019 (5) CHN (Cal) 54, the
Kerala High Court in the matter of K. J. Joseph vs. Hon'ble Justice, K.
Sukumaran and others reported in AIR 1987 Ker 140 and the Hon'ble
Supreme Court in the matter of Dr. M. S. Mudhol and Another vs. S.
D. Halegkar and Others reported in (1993) 3 SCC 591.
7 WPA(P) 170 of 2022
6. Learned counsel appearing for 31 respondent Vice-Chancellors
has submitted the chart to show that term of some of the Vice-
Chancellors have expired, appointment of some of the Vice-Chancellors
were approved by the State, some of the Vice-Chancellors fulfill the
eligibility of 10 years experience as Professor. He submits that the
provision to have one nominee of the Chairman of the UGC in the
Search Committee is not binding on the State. In support of his
submission, he has referred to Entry 66 List I and Entry 25 List III of
Schedule 7 and has submitted that the State University Acts have been
framed under Entry 25 List III whereas UGC Regulations have been
framed under Entry 66 List I, therefore, there is no question of conflict
and provisions of State Act will prevail. In support of his submission, he
has placed reliance upon the judgment of the Hon'ble Supreme Court in
the matter of Tamil Nadu Medical Officers Association and Others
vs. Union of India and Others reported in (2021) 6 SCC 568. He has
further submitted that the UGC Regulations are not applicable to the
State and the Regulations are only recommendatory and not binding on
the State. In support of his submission, he has placed reliance upon the
judgments of the Hon'ble Supreme Court in the matter of Annamalai
University Represented By Registrar vs. Secretary To Government,
Information And Tourism Department And Others reported in
(2009) 4 SCC 590 and in the matter of Praneeth K and Others vs.
University Grants Commission (UGC) and Others reported in 2020
SCC OnLine SC 688. Arguing on the issue of repugnancy, he has
placed reliance upon the judgments of the Hon'ble Supreme Court in the
matter of State of Kerala and Others vs. Mar Appraem Kuri
Company Limited and Another reported in (2012) 7 SCC 106 and in
8 WPA(P) 170 of 2022
the matter of Union of India and Others vs. G.S. Chatha Rice Mills
and Another reported in (2021) 2 SCC 209. He has further submitted
that when the appointee possesses minimum qualification, no writ of quo
warranto is required to be issued. In support of his submission, he has
placed reliance upon the judgment of the Hon'ble Supreme Court in the
matter of Gambhirdan K. Gadhvi vs. State of Gujarat and Others
reported in (2022) 5 SCC 179. He has also submitted that if the initial
appointment by the State is rectified, the ratification relates back to the
original appointment and in support of his submission, he has placed
reliance upon the judgment of the Hon'ble Supreme Court in the matter
of National Institute of Technology and Another vs. Pannalal
Choudhury and Another reported in (2015) 11 SCC 669.
7. Learned counsel for the respondent no. 23 and 29 has submitted
that these respondents were appointed by the Chancellor, therefore, their
appointments do not suffer from any illegality.
8. Learned counsel for the respondent no. 20 pressing CAN 1 of
2022 has made a prayer for expunging of name of respondent no. 20 by
submitting that the appointment made by the State under removal of
difficulty clause was cancelled which was subject matter of challenge in
WPA No. 17398 of 2022 and the said petition was allowed by the Single
Bench which has attained finality, therefore, now the appointment of
respondent no. 20 cannot be questioned. He submits that the same issue
cannot be adjudicated twice and in support of his submission, he has
placed reliance upon judgments of the Hon'ble Supreme Court in the
matter of Sri Gangai Vinayagar Temple and Another vs. Meenakshi
Ammal and Others reported in (2015) 3 SCC 624 and in the matter of
State of Jharkhand Through SP, Central Bureau of Investigation vs.
9 WPA(P) 170 of 2022
Lalu Prasad Yadav Alias Lalu Prasad reported in (2017) 8 SCC 1. He
has further submitted that the West Bengal University of Technology
Act which is applicable to respondent no. 20 as amended by Section 25
read with Schedule 9 of the amended Act is in line with the UGC
Regulations, therefore, the appointment is in accordance with law. He
submits that respondent no. 20 fulfills all the eligibility conditions,
qualifications and experience.
9. Learned counsel for respondent no. 15, 22 and 35 has submitted
that respondent no. 15 is the senior-most Vice-Chancellor in the country.
He has further submitted that the tenure of respondent no. 35 will be
over on 17th of March, 2023. He has placed reliance upon the judgments
of the Hon'ble Supreme Court in the matter of Modern Dental College
and Research Centre and Others vs. State of Madhya Pradesh and
Others reported in (2016) 7 SCC 353 and in the matter of Maa Vaishno
Devi Mahila Mahavidyalaya vs. State of Uttar Pradesh and Others
reported in (2013) 2 SCC 617.
10. We have heard the learned counsels for the parties and have
perused the record.
11. Before entering into the merits of the matter, it would be
appropriate to take a look at the relevant legal provisions. The
University Grants Commission Act, 1956 has been enacted to make
provision for the coordination and determination of standards in
Universities and for that purpose, to establish a University Grants
Commission. The University Grants Commission, in exercise of the
powers conferred by Clauses (e) and (g) of sub-section (1) of Section 26
read with Section 14 of the UGC Act, 1956 in supersession of the earlier
Regulations of 2010 has framed the University Grants Commission
10 WPA(P) 170 of 2022
(Minimum Qualification for Appointment of Teachers and Other
Academic Staff in University and Colleges and Other Measures for
Maintenance and Standards of Higher Education) Regulations, 2018 (for
short, 'UGC Regulations, 2018'). Regulation 7.3 of UGC Regulation,
2018 deals with the appointment of Vice-Chancellor and reads as under:
"7.3. VICE CHANCELLOR:
i. A person possessing the highest level of competence,
integrity, morals and institutional commitment is to be
appointed as Vice-Chancellor. The person to be appointed
as a Vice-Chancellor should be a distinguished
academician, with a minimum of ten years' of experience
as Professor in a University or ten years' of experience in a
reputed research and / or academic administrative
organisation with proof of having demonstrated academic
leadership.
ii. The selection for the post of Vice-Chancellor should be
through proper identification by a Panel of 3-5 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 such Search-cum-
Selection 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.
While preparing the panel, the Search cum-Selection
Committee shall give proper weightage to the academic
excellence, exposure to the higher education system in the
country and abroad, and adequate experience in academic
and administrative governance, to be given in writing
along with the panel to be submitted to the
Visitor/Chancellor. One member of the Search cum-
Selection Committee shall be nominated by the Chairman,
University Grants Commission, for selection of Vice
Chancellors of State, Private and Deemed to be
Universities.
11 WPA(P) 170 of 2022
iii. The Visitor/Chancellor shall appoint the Vice Chancellor
out of the Panel of names recommended by the Search-
cum-Selection Committee.
iv. The term of office of the Vice-Chancellor shall form part
of the service period of the incumbent making him/her
eligible for all service related benefits."
12. In terms of the above Regulation, minimum 10 years experience
as Professor in a University or 10 years of experience in a reputed
research and/or academic administrative organization with proof of
having demonstrated academic leadership is an essential eligibility
condition. Clause ii of the Regulation provides for selection of Vice-
Chancellor through a Search-cum-Selection Committee in which it is
necessary to have one member nominated by the Chairman, UGC. It is
worth noting that the similar eligibility condition and clause relating to
nominee of the Chairman in the Search Committee was contained in the
UGC Regulations, 2010 also.
13. In the present case, respondent Vice-Chancellors in different
Universities have been appointed under the provisions of the Acts
respectively governing those Universities. The West Bengal University
Laws (Amendment) Act, 2012 was enacted to amend the Calcutta
University Act, 1979, the North Bengal University Act, 1981, the
Burdwan University Act, 1981, the Vidyasagar University Act, 1981, the
Kalyani University Act, 1981, the West Bengal State University
(Barasat, North 24-Parganas) Act, 2007, the Gour Banga University Act,
2007, the Sidho-Kanho Birsha University Act, 2010, the Jadavpur
University Act, 1981, the Rabindra Bharati Act, 1981, the Netaji Subhas
Open University Act, 1997, the Bengal Engineering and Science
University Shibpur Act, 2004, the West Bengal University of
12 WPA(P) 170 of 2022
Technology Act, 2000, the Coochbehar Panchanan Barma University
Act, 2012 and the Kazi Nazrul University Act, 2012. In the Calcutta
University Act, 1979, Section 8 of the Act relating to the appointment
of a Vice-Chancellor was amended to the following effect:
"(2) in section 8, sub-section (1), -
(a) for clause (a), the following clause shall be substituted:-
"(a) The Vice-Chancellor shall be a distinguished
academic with proven competence and integrity, and
having a minimum of ten years of experience in a
University system of which at least five years shall be
as professor or ten years of experience in a reputed
research or academic administrative organization of
which at least five years shall be in an equivalent
position of professor.";
(b) for sub-clause (ii) of clause (c), the following sub-clause
shall be substituted:-
"(ii) a nominee of the State Government.";"
14. The above provision requires minimum five years experience as
professor. Similar amendments were made in the other University Acts
covered by the amendment Act of 2012. Subsequently, by the West
Bengal University Laws (Amendment) Act, 2014, the amendment in the
above University Acts were made. Section 8 of the Calcutta University
Act, 1979 was amended to the following effect:
"2. In the Calcutta university Act, 1979, for clause (c) of
sub-section (1) of section 8, the following clause shall be
substituted:-
"(c) The Search Committee shall be constituted in the
following manner:-
(i) an academician, not below the rank of the Vice-
Chancellor of a Central or State-aided University
or the Director of a National institute of higher
learning, to be nominated by the Chancellor in
13 WPA(P) 170 of 2022
consultation with the Minister and such nominee
shall be the Chairperson of the Committee;
(ii) an academician, not below the rank of a Professor
of a Central or State-aided University or national
institute of higher learning, to be nominated by
the State Government;
(iii) an academician, not below the rank of a Professor
of a Central or State-aided University or national
institute of higher learning, to be nominated by
the Senate;
Provided that the nominees, as mentioned
under sub-clauses (i), (ii) and (iii) shall not be the
persons associated with the concerned University
for which the Search Committee is
constituted."."
15. The above amended provision does not contain any clause
relating one nominee of the Chairman of the UGC as required by
Regulation, 2018. Similar amendments have been made in other
University Acts also by the amendment Act of 2014.
16. The Calcutta University Act, 1979 contains following Section 60
relating to removal of difficulty clause:
"60. 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, as occasion may
require, may 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 any other law."
17. Similar removal of difficulty clause exists in the other
University Acts also.
14 WPA(P) 170 of 2022
18. It is undisputed that in almost all the respondent Universities,
similar amendments were made and similar position in law is existing.
19. It is also undisputed that all the State University Acts contain
similar provision for appointment of Vice-Chancellors. For ready
reference, Sections 7 and 8 of the Calcutta University Act are
reproduced below:
"7. (1) The Governor shall, by virtue of his office, be the
Chancellor of the University. He shall be the head of the
University and the President of the Senate and shall, when
present, preside at the meetings of the Senate.
(2) ...
(3) The Chancellor shall exercise such powers as may be
conferred on him by or under the provisions of this Act.
x x x
8. (1) (a) The Vice-Chancellor shall be a distinguished
academic with proven competence and integrity, and
having a minimum of ten years of experience in a
University system of which at least five years shall be as
professor or ten years of experience in a reputed research
or academic administrative organization of which at least
five years shall be in an equivalent position of professor.
(b) The Vice-Chancellor shall be appointed by the
Chancellor out of the panel of three names recommended
in order of preference by the Search Committee
constituted by the State Government. While preparing the
panel, the Search Committee must give proper weightage
to academic excellence, exposure to the higher education
system in the country and abroad and adequate
experience in academic and administrative governance
and reflect the same in writing while submitting the panel
to the Chancellor.
(c) The Search Committee shall be constituted in the
following manner:-
(i) an academician not below the rank of the Vice-
Chancellor of a Central or State-aided University or the
Director of a National institute of higher learning, to be
nominated by the Chancellor in consultation with the
Minister, and such nominee shall be the Chairperson of
the Committee,
(ii) an academician, not below the rank of a Professor
of a Central or State-aided University or national institute
of higher learning, to be nominated by the State
Government;
(iii) an academician, not below the rank of a
Professor of a Central or State-aided University or
National institute of higher learning, to be nominated by
the Senate:
Provided that the nominees, as mentioned under sub-
clauses (i), (ii) and (iii) shall not be the persons associated
15 WPA(P) 170 of 2022
with the concerned University for which the Search
Committee is constituted.
(2) (a) The Vice-Chancellor shall hold office for a period of
four years appointed as such in terms of the provisions of
sub-section (1), and shall be eligible for reappointment for
another term of four years subject to the satisfaction of
the State Government and on the basis of his past
academic excellence and administrative success
established during his term of office in the capacity of
Vice-Chancellor, or till he attains the age of seventy years,
whichever is earlier.
(b) The Chancellor may, notwithstanding the expiration of
the term of office of the Vice-Chancellor, allow him to
continue in office for a period not more than two years at
a time in consultation with the Minister, which shall
under no circumstances be extended beyond the age of
seventy years, subject to the satisfaction of the State
Government and on the basis of his past academic
excellence and administrative success established during
his term of office in the capacity of Vice-Chancellor.
(3) The Vice-Chancellor shall be a whole-time officer of
the University and shall be paid from the University Fund
such salary and allowances as the Chancellor may decide
in consultation with the State Government.
(4) the Vice-Chancellor may resign his office by writing
under his hand addressed to the Chancellor.
(5) If -
(a) the Vice-Chancellor is, by reasons of leave, illness
or other cause, temporarily unable to exercise the powers
and perform the duties of his office, or
(b) a vacancy occurs in the office of the Vice-
Chancellor by reason of death, resignation, removal,
expiry of term of his office or otherwise,
then, during the period of such temporary inability or
pending the appointment of a Vice-Chancellor, as the
case may be, the Chancellor in consultation with the
Minister may appoint a person to exercise the powers and
perform the duties of the Vice-Chancellor.
(6) The vacancy in the office of the Vice-Chancellor
occurring by reason of death, resignation or expiry of the
term of his office, removal or otherwise shall be filled up
by appointment of a Vice-Chancellor in accordance with
the provisions of sub-section (1) within a period of six
months from the date of occurrence of the vacancy, and
such period shall be held to include any period for which
a Vice-Chancellor is allowed to continue in office under
clause (b) of sub-section (2), or a person is appointed by
the Chancellor in consultation with the Minister to
exercise the powers and perform the duties of the Vice-
Chancellor under sub-section (5).
(7) the Vice-Chancellor may be removed from his office by
the Chancellor if he is satisfied that the incumbent, -
16 WPA(P) 170 of 2022
(a) has become insane and adjudged by a competent
court to be of unsound mind; or
(b) has become an undischarged insolvent and
stands so declared by a competent Court; or
(c) has been physically unfit and incapable of
discharging function due to protracted illness or physical
disability; or
(d) has willfully omitted or refused to carry out the
provisions of this Act or has committed breach of any of
the terms and conditions of the service contract or has
abused or misused the powers vested in him or if the
continuance in the office of the Vice Chancellor is
detrimental to the interest of the University; or
(e) has been proved to be guilty of criminal breach of
trust or criminal negligence or gross financial irregularity
or impropriety or gross negligence of duty; or
(f) has shown incompetence to perform or has
persistently made default in the performance of the duties
imposed on him by or under this Act; or
(g) has been convicted by a court for any offence
within the concept and meaning of the Code of Criminal
Procedure, 1973; or
(h) is a member of, or otherwise associated with, any
political party or acts in any partisan manner while in
office.
Explanation. - For the purpose of this sub-clause,
whether any party is a political party or any association is
a political association or any act of the Vice-Chancellor is
partisan, decision of the Chancellor thereon shall be final:
Provided that the Vice-Chancellor shall be given a
reasonable opportunity to show cause by the Chancellor
before taking recourse for his removal under clauses (d),
(e), (f), (g) and (h)."
20. Since this Court is dealing with the issue of appointment of
Vice-Chancellor, therefore, it would be relevant to take note of the
important role which the Vice-Chancellor performs in the affairs of the
University. Hon'ble Supreme Court in the matter of Gambhirdan K.
Gadhvi (supra) has noted the role of the Vice-Chancellor and need to
have a competent person as Vice-Chancellor by holding that:
"53. It is to be noted that the post of Vice-Chancellor of
the university is a very important post so far as the university is
concerned. Being a leader and head of the institution, the Vice-
Chancellor of the university has to play very important role.
While academic qualifications, administrative experience,
17 WPA(P) 170 of 2022
research credentials and track record could be considered as
basic eligibility requirements, the greater qualities of a Vice-
Chancellor would be one who is a true leader and a passionate
visionary. A Vice-Chancellor needs to be one who understands
and handles the affairs of the university as ethical business and
maintains a pellucidity in his conduct towards the betterment of
the university as well as the students therein. A Vice-Chancellor
should be one who can inspire students and guarantee entry of
high quality teachers into the university system. A Vice-
Chancellor functions as a bridge between the executive and
academic wings of a university as he is the head of both a
"teacher" and an "administrator"."
21. Various issues which are raised in this writ petition needs to be
examined considering the above provisions in law. Mainly following
issues arise for consideration of this Court in this writ petition:
(i) Whether taking recourse to removal of difficulty clause, the
State Government is competent to appoint the Vice-Chancellor?
(ii) Whether the State Government is empowered to extend the
tenure of the Vice-Chancellor on expiry of his tenure?
(iii) Whether the UGC Regulations, 2018 are applicable in the
State of West Bengal?
(iv) Whether the appointment of the respondent Vice-
Chancellors not fulfilling the minimum eligibility conditions of
10 years experience as Professor as prescribed in Regulation
7.3.i of UGC Regulations, 2018 is a valid appointment?
(v) Whether appointment of the respondents as Vice-Chancellor
by a Search Committee constituted without having a nominee of
Chairman of the UGC as required by Regulation 7.3.ii of UGC
Regulations, 2018 can be said to be a lawful appointment?
18 WPA(P) 170 of 2022
(vi) Whether the provisions of the amended Acts of 2012 and
2014 to the extent they are in contravention of the provisions of
UGC Regulations, 2018 can be enforced?
22. So far as the first issue is concerned, it relates to appointment of
the Vice-Chancellor taking recourse to the removal of difficulty clause
by the State Government. A similar issue had come up before this Court
in WPA (P) 55 of 2022 in the matter of Anindya Sundar Das vs. State
of West Bengal & Ors. when the appointment of the Vice-Chancellor
of the Calcutta University was challenged and writ of quo warranto was
prayed on the ground that the State Government was not competent to
appoint the Vice-Chancellor. The Division Bench of this Court had
considered Sections 7 and 8 of the Calcutta University Act, 1979 and
had also taken note of Section 60 of the Act relating to removal of
difficulty clause and had reached to the conclusion that the Governor is
empowered to act as Chancellor of the University and in terms of
Section 8, Vice-Chancellor is to be appointed by the Chancellor. This
Court had found that only the Chancellor had the power to appoint,
reappoint or temporarily appoint or remove the Vice-Chancellor. This
Court had further found that taking shelter of Section 60 of the Act, the
State cannot usurp the power of the Governor and appoint the Vice-
Chancellor. Accordingly, while allowing the writ petition, this Court had
found that the State had no authority to appoint or reappoint the Vice-
Chancellor, either under Section 8 of the Act or by taking recourse to the
residuary Section 60 of the Act. Accordingly, the appointment of Vice-
Chancellor of the Calcutta University made by the State was set aside by
issuing a writ of quo warranto.
19 WPA(P) 170 of 2022
23. Against the aforesaid Division Bench Judgment of this Court,
Civil Appeal Nos. 6706 of 2022 and 6707 of 2022 were preferred which
have been decided by the Hon'ble Supreme Court by the judgment dated
11th of October, 2022 reported in 2022 SCC OnLine SC 1382 in the
matter of State of West Bengal vs. Anindya Sundar Das & Ors.
Hon'ble Supreme Court while dismissing the appeal has held that:
"45. The issue is whether the deletion of the expression
"subject to the provisions of this section" in the amended
provisions of Section 8(2)(a) would lead to the inference that the
power of reappointment has been taken away from the
Chancellor and entrusted to the State government. The
submission to that effect which has been urged on behalf of the
appellants cannot be accepted.
46. The effect of the words "subject to the provisions of this
section" in Section 8(2)(a) in its unamended form was that the
reappointment would have to be in a manner provided in Section
8, which obviously included Section 8(1). Deletion of those
words in Section 8(2)(a), as amended, would mean that the
procedure which has been prescribed for making the
appointment of a VC, namely the appointment of a search
committee and the preparation of a panel, would not be attracted
in the case of a reappointment. In the case of a reappointment, a
VC who has completed a term of four years would be eligible
subject to the satisfaction of the State government and on the
basis of their past academic excellence and administrative record
during the term of office held as a VC. Significantly, Section
8(2)(a) speaks of the satisfaction of the State government and
past academic excellence and administrative success during the
term of office. Fulfilment of those conditions makes a person
eligible for being reappointed as a VC.
47. It is a settled principle of law that a statute must be read
to avoid a construction which would make certain provisions or
terms meaningless or redundant. In Union of India v. Hansoli
Devi12, a Constitution Bench of this Court reiterated the dictum
20 WPA(P) 170 of 2022
in the decision of the Constitution Bench in Aswini Kumar
Ghose v. Arabinda Bose13, that "it is not a sound principle of
construction to brush aside words in a statute as being inapposite
surplusage, if they can have appropriate application in
circumstances conceivably within the contemplation of the
statute." The Court in Hansoli Devi14 reiterated the decision of
the Privy Council in Quebec Railway, Light Heat & Power Co.
Ltd. v. Vandry15 observing that the "legislature is deemed not to
waste its words or to say anything in vain and a construction
which attributes redundancy to the legislature will not be
accepted except for compelling reasons." An effort must be
made to read the provisions of the statute in a holistic manner so
as to imbue it with meaning and content.
48. There is neither an express provision nor a necessary
intendment by which it could be inferred that the power which is
entrusted to the Chancellor to appoint a VC is taken away in the
case of a reappointment. There is no intrinsic reason or rationale
to accept the interpretation which has been urged on behalf of
the State of West Bengal. A reappointment is the appointment of
an existing incumbent who fulfils the conditions of eligibility.
The fulfilment of the conditions makes a person eligible for
reappointment. The power of appointment including of
reappointment is entrusted to the Chancellor and not to the State
government. The amended provisions of Section 8(2)(a) cannot
therefore be construed to mean that the power of reappointment
has been taken away from the Chancellor and entrusted to the
State government. Reading the provisions in such a manner,
would make the provisions entrusting the power of appointment
of the VC with the Chancellor redundant."
24. It has further been held that:
"53. Faced with the view of the Chancellor, the State
government attempted to get around the situation by purporting
to exercise its powers under Section 60. Section 60 provides as
follows:
21 WPA(P) 170 of 2022
"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, as occasion may require, may 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 any other law."
54. Section 60 contemplates a situation where inter alia
any difficulty arises in giving effect to the provisions of the Act
"on account of any lacunae or omission" in its provisions or for
any other reason whatsoever. In such cases, the State
government is empowered, as the occasion may require, to do
anything which appears to it to be necessary for removing the
difficulty notwithstanding anything to the contrary contained
elsewhere in the Act or any other law. Where there is a specific
provision, as in the present case Section 8(2)(a), it was not open
to the State government to conjure up a lacunae or omission and
purportedly exercise the power to remove difficulties. A
"removal of difficulty clause" has been construed in Madeva
Upendra Sinai v. Union of India16, which reads as follows:
"39. To keep pace with the rapidly increasing
responsibilities of a welfare democratic State, the
Legislature has to turn out a plethora of hurried legislation,
the volume of which is often matched with its complexity.
Under conditions of extreme pressure, with heavy demands
on the time of the Legislature and the endurance and skill
of the draftsman, it is well nigh impossible to foresee all
the circumstances to deal with which a statute is enacted or
to anticipate all the difficulties that might arise in its
working due to peculiar local conditions or even a local
law. This is particularly true when Parliament undertakes
legislation which gives a new dimension to socio-
economic activities of the State or extends the existing
22 WPA(P) 170 of 2022
Indian laws to new territories or areas freshly merged in
the Union of India. In order to obviate the necessity of
approaching the Legislature for removal of every
difficulty, howsoever trivial, encountered in the
enforcement of a statute, by going through the time-
consuming amendatory process, the Legislature sometimes
thinks it expedient to invest the Executive with a very
limited power to make minor adaptations and peripheral
adjustments in the statute, for making its implementation
effective, without touching its substance. That is why the
"removal of difficulty clause", once frowned upon and
nick-named as "Henry VIII clause" in scornful
commemoration of the absolutist ways in which that
English King got the "difficulties" in enforcing his
autocratic will removed through the instrumentality of a
servile Parliament, now finds acceptance as a practical
necessity, in several Indian statutes of post-independence
era."
55. The State government chose the incorrect path under
Section 60 by misusing the "removal of difficulty clause" to
usurp the power of the Chancellor to make the appointment. A
government cannot misuse the "removal of difficulty clause" to
remove all obstacles in its path which arise due to statutory
restrictions. Allowing such actions would be antithetical to the
rule of law. Misusing the limited power granted to make minor
adaptations and peripheral adjustments in a statute for making its
implementation effective, to side-step the provisions of the
statute altogether would defeat the purpose of the legislation.
56. Accordingly, the High Court in our view was justified
in coming to the conclusion that "in the guise of removing the
difficulties, the State cannot change the scheme and essential
provisions of the Act".
25. Thus, it has been settled by the Hon'ble Supreme Court that
when power is conferred upon the Chancellor to appoint or reappoint the
Vice-Chancellor, the State Government cannot usurp that power taking
23 WPA(P) 170 of 2022
recourse to the removal of difficulty clause which is worded in the
manner contained in Section 60 of the Calcutta University Act, 1979. In
the present case, it is undisputed that there is no significant difference in
the provisions relating to the appointment or reappointment of Vice-
Chancellor or removal of difficulty clause in the different Acts under
which the respondent Vice-Chancellors have been appointed as that of
the Calcutta University Act, 1979.
26. Facts
on record indicate that some of the respondent Vice-
Chancellors have been appointed by the State Government taking
recourse to the provisions of the removal of difficulty clause which in
substance is the same as Section 60 of the Calcutta University Act, 1979,
therefore, in view of the judgment of the Hon'ble Supreme Court in the
case of Anindya Sundar Das and Ors. (supra), their appointment
cannot be sustained.
27. The connected issue is in respect of issuance of writ of quo
warranto as against the respondent no. 20. Undisputedly, respondent no.
20 was reappointed as Vice-Chancellor of Maulana Abul Kalam Azad
University of Technology by the order of the Principal Secretary of the
Higher Education Department taking recourse to removal of difficulty
clause contained in Section 20 of the West Bengal University of
Technology Act, 2000. Against the cancellation of the said appointment,
respondent no. 20 had filed WPA 17398 of 2022 and learned Single
Judge by the judgment dated 4th of August, 2022 had allowed the writ
petition. The view taken by the learned Single Judge in WPA 17398 of
2022 runs counter to the view of the Hon'ble Supreme Court in the
matter of Anindya Sundar Das (supra). The judgment of the Hon'ble
Supreme Court is binding on this Court under Article 141 of the
24 WPA(P) 170 of 2022
Constitution, therefore, the plea raised by the learned counsel for the
respondent no. 20 based upon the judgment of the learned Single Bench
of this Court in WPA 17398 of 2022 cannot be sustained. Learned
counsel for the respondent no. 20 has placed reliance upon the judgment
in the case of Sri Gangai Vinayagar Temple and Another (supra) and
Lalu Prasad Yadav Alias Lalu Prasad (supra), in support of his plea
double jeopardy but in the facts of the present case, such a principle is
not attracted as the appointment of the respondent no. 20 clearly runs
counter to the judgment of the Hon'ble Supreme Court in the case of
Anindya Sundar Das (supra). Hence, CAN 1 of 2022 is rejected.
28. The second issue is in respect of the legality of the orders issued
by the State Government extending the tenure of those respondent Vice-
Chancellors who were initially appointed as Chancellor. This Court in
the matter of Anindya Sundar Das (supra) has already taken the view
after considering the provisions of Section 8 of the Calcutta University
Act, 1979 that the power of appointment, reappointment, extension of
tenure solely lies with the Chancellor and the State Government, taking
recourse to the removal of difficulty clause, cannot usurp that power.
Once the power to reappoint or extend the tenure is vested with the
Chancellor and the same cannot be usurped by the State under removal
of difficulty clause, then the State is required to show as to how or under
which provision, the State had passed the order reappointing or
extending the tenure of some of the respondent Vice-Chancellors. In the
present case, some of the respondent Vice-Chancellors were initially
appointed by the Chancellor but their tenures have been extended by the
State Government without any authority of law. Hence, the orders
25 WPA(P) 170 of 2022
extending their tenure as Vice-Chancellor passed by the State
Government cannot be sustained.
29. At this stage, it would be relevant to mention the undisputed
position that while reappointing the Vice-Chancellors or extending their
tenure, the State Government had issued the orders exercising the power
of the Governor, using the word 'Governor' but during the course of
argument, it has not been disputed by the learned Advocate General that
those orders are by the State Government and Governor has been
mentioned since his powers were exercised by the State.
30. When the State has no power to appoint or reappoint the Vice-
Chancellor, the State cannot appoint Vice-Chancellor by giving
additional charge, therefore orders passed by the State Government
giving additional charge of Vice-Chancellor are also bad in law.
31. The following respondents were appointed/reappointed/their
tenure extended as Vice-Chancellors of respective Universities by the
State Government invoking the provisions of removal of difficulty
clause contained in the Act or they were given additional charge of
Vice-Chancellor by the State. The details of such appointments are as
under:
i. Respondent no. 5 - By order dated 21.12 2021 appointed by
the State as Vice-Chancellor for a period of one year w.e.f.
23.12. 2021.
ii. Respondent no. 6 - By order dated 29.06.2021 appointed by
the State as Vice-Chancellor for a period of one year w.e.f.
01.07.2021.
26 WPA(P) 170 of 2022
iii. Respondent no. 7 - By order dated 02.12.2021 appointed by
the State as Vice-Chancellor for a period of one year w.e.f.
03.12.2021.
iv. Respondent no. 8 - By order dated 25.02.2021 appointed by
the State as Vice-Chancellor for a period of four years.
v. Respondent no. 9 - By order dated 27.08.2021 appointed by
the State as Vice-Chancellor for a period of four years
w.e.f. 28.08.2021. [Appointment already set aside in the
case of Anindya Sundar Das (supra)]
vi. Respondent no. 11 - Additional charge of Vice-Chancellor
given by the State Government by order dated 14.01.2022.
vii. Respondent no. 12 - Appointed by the State Government by
the order dated 25.02.2021 for a period of four years w.e.f.
03.03.2021.
viii. Respondent no. 13 - Tenure extended by the State by order
dated 28.01.2022 for a period of one year w.e.f. 30.01.2022.
ix. Respondent no. 14 - By order dated 15.12.2021, tenure
extended by the State for a period of one year w.e.f.
16.12.2021.
x. Respondent no. 15 - By order dated 23.06.2021, tenure
extended by the State for a period of two years w.e.f.
24.06.2021.
xi. Respondent no. 16 - By order dated 21.05.2022, tenure
extended for a period of six months w.e.f. 13.05.2022.
xii. Respondent no. 17 - By order dated 18.12.2020 appointed
by the State as Vice-Chancellor for a period of four years.
27 WPA(P) 170 of 2022
xiii. Respondent no. 18 - Tenure extended by the State by order
dated 29.08.2022 for a period of one year w.e.f. 01.09.2022.
xiv. Respondent no. 19 - By order dated 02.11.2022, tenure
extended by the State for a period of three months w.e.f.
03.11.2022.
xv. Respondent no. 20 - By order dated 26.02.2021, reappointed
by the State as Vice-Chancellor for a period of 4 years
w.e.f. 27.02.2021.
xvi. Respondent no. 21 - By order dated 26.02.2022, additional
charge as Vice-Chancellor was given by the State w.e.f.
01.03.2022.
xvii. Respondent no. 22 - By order dated 10.06.2021, tenure
extended for a period of two years w.e.f. 11.06.2021.
xviii. Respondent no. 23 - By order dated 14.09.2022, reappointed
by the State as Vice-Chancellor for six months w.e.f.
19.09.2022.
xix. Respondent no. 24 - By order dated 14.09.2021, additional
charge as Vice-Chancellor was given by the State w.e.f.
15.09.2021.
xx. Respondent no. 25 - By order dated 17.02.2022, appointed
by the State as Vice-Chancellor for a period of one year
w.e.f. 20.02.2022.
xxi. Respondent no. 26 - By order dated 14.01.2022, additional
charge of Vice-Chancellor was given by the State w.e.f.
16.01.2022.
28 WPA(P) 170 of 2022
xxii. Respondent no. 27 - By order dated 05.01.2022, tenure as
Vice-Chancellor was extended by the State for a period of
one year w.e.f. 06.01.2022.
xxiii. Respondent no. 28 - By order dated 22.02.2021, reappointed
as Vice-Chancellor by the State for a period of four years
w.e.f. 23.02.2021.
32. The tenure of some of the above respondents has expired and
there is no material on record indicating that their tenure has been
extended. Therefore, their appointment, reappointment, extension of
tenure, giving additional charge is by the State Government without their
being any order of the Chancellor is unsustainable, but at this stage, no
case for issuing the writ of quo warranto against them arises.
33. So far as the respondent nos. 6, 8, 12, 15, 17, 18, 20 and 22 are
concerned by virtue of above orders, their tenure as Vice-Chancellor still
subsists, therefore, if they are continuing on the basis of the above
unsustainable orders, then they have no authority to continue, therefore,
a case of issuing the writ of quo warranto against them is made out.
34. The other issues are hereby decided together.
35. The Entry 66 of List I (Union List) of Seventh Schedule of the
Constitution provides for co-ordination and determination of standards
in institutions for higher education etc. and reads as under:
"66. Co-ordination and determination of standards in
institutions for higher education or research and scientific and
technical institutions."
36. Entry 25 of the List III (Concurrent List) deals with education
and reads as under:
"25. Education, including technical education, medical
education and universities, subject to the provisions of entries
29 WPA(P) 170 of 2022
63, 64, 65 and 66 of List I; vocational and technical training of
labour."
37. Article 254 of the Constitution provides for eventuality in case
of inconsistency between laws made by the Parliament and laws made
by the State Legislatures and reads as under:
"254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States.--(1) If any
provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision of an
existing law with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of clause (2), the
law made by Parliament, whether passed before or after the law
made by the Legislature of such State, or, as the case may be,
the existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the repugnancy, be
void.
(2) Where a law made by the Legislature of a State with
respect to one of the matters enumerated in the Concurrent List
contains any provision repugnant to the provisions of an earlier
law made by Parliament or an existing law with respect to that
matter, then, the law so made by the Legislature of such State
shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State."
38. The UGC Act, 1956 has been enacted to make provisions for co-
ordination and determination of standards of Universities and for that
purpose to establish the University Grants Commission. Section 12 of
the Act provides for functions of the Commission and Section 14
provides for consequences of failure of the Universities to comply with
30 WPA(P) 170 of 2022
the recommendation of the Commission. Section 26 contains powers to
make regulation. Sub-Section (g) thereto empowers it to make
regulations and regulate the maintenance of standards and co-ordination
of work or facilities in the Universities. Section 28 of the Act requires
the Regulations framed under the UGC Act to be laid before different
Houses of Parliament. It is only when both the Houses of Parliament
approve Regulations, the same can be given effect to.
39. It has been contended before this Court by the learned Counsel
for the respondents that the Acts governing different Universities
containing the provisions for appointment of Vice-Chancellors have
been enacted by the State under Entry 25 of List III of Seventh
Schedule.
40. In such a situation, to the extent that the State legislation is in
conflict with the Central legislation though the former is purported to
have been made under Entry 25 of the Concurrent List but in effect
encroaches upon legislation including subordinate legislation made by
the Centre under Entry 25 of the Concurrent List or to give effect to
Entry 66 of the Union List, the same would be void and inoperative.
This aspect has been considered by the Hon'ble Supreme Court in the
matter of State of T.N. v. Adhiyaman Educational & Research
Institute and Others reported in (1995) 4 SCC 104 wherein it has been
held that:
"41. What emerges from the above discussion is as follows:
(i) The expression 'coordination' used in Entry 66 of the
Union List of the Seventh Schedule to the Constitution does not
merely mean evaluation. It means harmonisation with a view to
forge a uniform pattern for a concerted action according to a
certain design, scheme or plan of development. It, therefore,
31 WPA(P) 170 of 2022
includes action not only for removal of disparities in standards
but also for preventing the occurrence of such disparities. It
would, therefore, also include power to do all things which are
necessary to prevent what would make 'coordination' either
impossible or difficult. This power is absolute and unconditional
and in the absence of any valid compelling reasons, it must be
given its full effect according to its plain and express intention.
(ii) To the extent that the State legislation is in conflict with
the Central legislation though the former is purported to have
been made under Entry 25 of the Concurrent List but in effect
encroaches upon legislation including subordinate legislation
made by the Centre under Entry 25 of the Concurrent List or to
give effect to Entry 66 of the Union List, it would be void and
inoperative.
(iii) If there is a conflict between the two legislations, unless
the State legislation is saved by the provisions of the main part
of clause (2) of Article 254, the State legislation being repugnant
to the Central legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the
Union List or is repugnant to the law made by the Centre under
Entry 25 of the Concurrent List, will have to be determined by
the examination of the two laws and will depend upon the facts
of each case.
(v) When there are more applicants than the available
situations/seats, the State authority is not prevented from laying
down higher standards or qualifications than those laid down by
the Centre or the Central authority to short-list the applicants.
When the State authority does so, it does not encroach upon
Entry 66 of the Union List or make a law which is repugnant to
the Central law.
(vi) However, when the situations/seats are available and the
State authorities deny an applicant the same on the ground that
the applicant is not qualified according to its standards or
qualifications, as the case may be, although the applicant
satisfies the standards or qualifications laid down by the Central
32 WPA(P) 170 of 2022
law, they act unconstitutionally. So also when the State
authorities de-recognise or disaffiliate an institution for not
satisfying the standards or requirement laid down by them,
although it satisfied the norms and requirements laid down by
the Central authority, the State authorities act illegally."
41. In the matter of Annamalai University Represented By
Registrar vs. Secretary To Government, Information And Tourism
Department And Others reported in (2009) 4 SCC 590, Hon'ble
Supreme Court in paragraph 42 has held that the provisions of UGC Act
are biding upon the Universities whether conventional or open and that
the subordinate legislation when validly made becomes part of the Act.
42. In the case of Kalyani Mathivanan (supra) in reference to
UGC Regulations 2010, the issue came up before the Hon'ble Supreme
Court if in respect of appointment and eligibility criteria of Vice-
Chancellors there is conflict between the State University Act and the
UGC Regulations which one will prevail, Hon'ble Supreme Court had
reiterated the legal position in this regard as under:
"53. The aforesaid judgment makes it clear that to the
extent the State legislation is in conflict with the Central
legislation including subordinate legislation made by the Central
legislation under Entry 25 of the Concurrent List shall be
repugnant to the Central legislation and would be inoperative."
43. Thus, UGC Regulations have been found to be subordinate
legislations by the Hon'ble Supreme Court in the matter of Kalyani
Mathivanan (supra).
44. Considering the provisions of UGC Regulations 2010, Hon'ble
Supreme Court had found that UGC Regulations 2010 were not applied
to the universities, colleges and other higher educational institutions
coming under the purview of the State Legislature unless the State
33 WPA(P) 170 of 2022
Government wish to adopt and implement the Scheme subject to the
terms and conditions therein; in that background, Hon'ble Supreme
Court in the matter of Kalyani Mathivanan (supra) had held that:
"62. In view of the discussion as made above, we hold:
62.1. To the extent the State legislation is in conflict with
the Central legislation including subordinate legislation made by
the Central legislation under Entry 25 of the Concurrent List
shall be repugnant to the Central legislation and would be
inoperative.
62.2. The UGC Regulations being passed by both the
Houses of Parliament, though a subordinate legislation has
binding effect on the universities to which it applies.
62.3. The UGC Regulations, 2010 are mandatory to
teachers and other academic staff in all the Central universities
and colleges thereunder and the institutions deemed to be
universities whose maintenance expenditure is met by UGC.
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 directory."
45. It is worth noting that UGC Regulations 2010 have been
superseded now by UGC Regulations 2018.
46. In the matter of Baharul Islam and Others vs. Indian Medical
Association and Others reported in 2023 SCC OnLine SC 79, the
High Court had struck down Assam Rural Health Regulatory Act, 2004
finding the State Act to be in conflict with the Indian Medical Council
Act, 1956. Considering the issue, Hon'ble Supreme Court had found
that any law made under Entry 25 List III by State Legislature is always
subject to Entry 66 of List I. Accordingly, Hon'ble Supreme Court held
34 WPA(P) 170 of 2022
that no State Legislature has the legislative competence to pass any law
which would be contradictory to or would be in conflict with IMC Act,
1956 and the Rules and Regulations made thereunder. Hon'ble Supreme
Court in this regard held that:
"85. In the result, we arrive at the following conclusions:
(i) Entry 25 of List III of the Seventh Schedule of
the Constitution of India deals with the subject
education which is in the Concurrent List under which
both the Parliament or the Union Legislature as well as
the State Legislatures have legislative competence to
legislate. However, Entry 25 of List III is subject
to, inter alia, Entry 66 of List I which is the Union List.
Entry 66 of List I deals with coordination and
determination of standards in institutions for higher
education or research and scientific and technical
institutions. Thus, when any law is made under Entry 25
of List III by a State Legislature, the same is always
subject to Entry 66 of List I. In other words, if any law
made by the Parliament comes within the scope of Entry
66 of List I, then the State Legislation would have to
yield to the Parliamentary law.
Thus, where one Entry is made "subject to" another
Entry, it would imply that, out of the scope of the former
Entry, a field of legislation covered by the latter Entry
has been reserved to be specifically dealt with by the
appropriate legislature.
(ii) In the instant case, it is held that the IMC Act,
1956 is a legislation made by the Parliament for the
purpose of coordination and determination of standards
in medical education throughout the Country. The said
law, along with the Rules and Regulations made
thereunder are for the purpose of determination of
standards of medical education throughout India. Thus,
determination of standards in medical education in India
35 WPA(P) 170 of 2022
is as per the IMC Act, 1956 which is a Central Law.
This is in respect of modern medicine or allopathic
medicine within the scope of Entry 66 of List I and not
under Entry 25 of List III of the Seventh Schedule.
Therefore, a State Legislature which passes a law in
respect of allopathic medicine or modern medicine
would be subject to the provisions of the IMC Act,
1956 and the Rules and Regulations made thereunder.
This would imply that no State Legislature has the
legislative competence to pass any law which would be
contradictory to or would be in direct conflict with
the IMC Act, 1956 and the Rules and Regulations made
thereunder. In other words, the standard in medical
education insofar as modern medicine or allopathy is
concerned, having been set by the IMC Act, 1956 and
the Rules and Regulations made thereunder or by any
subsequent Act in that regard, such as the Medical
Council of India Act, 2019, the State Legislature has no
legislative competence to enact a law which is in
conflict with the law setting the standards of medical
education in the context of modern medicine or
allopathic medicine, which has been determined by
Parliamentary Legislation as well as the Rules. In other
words, a State Legislature has no legislative competence
to enact a law in respect of modern medicine or
allopathic medicine contrary to the said standards that
have been determined by the Central Law...."
47. In the matter of Gambhirdan K. Gadhvi (supra), the
appointment of Vice-Chancellor of Sardar Patel University in the State
of Gujarat was challenged and writ of quo warranto was prayed on the
ground that the appointment was contrary to the provisions contained in
the UGC Regulations. Hon'ble Supreme Court found that the UGC
Regulations being subordinate legislation, becomes part of the Act and
36 WPA(P) 170 of 2022
the appointment of Vice-Chancellor found contrary to the UGC
Regulations was set aside by holding as under:
"50. It cannot be disputed that the UGC Regulations are
enacted by the UGC in exercise of powers under Sections
26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the
UGC Act every rule and regulation made under the said Act,
shall be laid before each House of Parliament. Therefore, being a
subordinate legislation, UGC Regulations becomes part of the
Act. In case of any conflict between the State legislation and the
Central legislation, Central legislation shall prevail by applying
the rule/principle of repugnancy as enunciated in Article 254 of
the Constitution as the subject "education" is in the Concurrent
List (List III) of the Seventh Schedule to the Constitution.
Therefore, any appointment as a Vice-Chancellor contrary to the
provisions of the UGC Regulations can be said to be in violation
of the statutory provisions, warranting a writ of quo warranto.
51. In view of the above discussion and for the reasons
stated above, the appointment of Respondent 4 as Vice-
Chancellor of the SP University -- Respondent 2 herein, is
contrary to the UGC provisions, namely, UGC Regulations,
2018. We hence allow the present writ petition and issue a writ
of quo warranto quashing and setting aside the appointment of
Respondent 4 as the Vice-Chancellor of SP University. The
present petition is accordingly, allowed."
48. In the above judgment, Hon'ble Supreme Court had also found
that the Search Committee was not constituted as per UGC Regulations,
2018 and the concerned respondent did not fulfill the eligibility criteria
of 10 years teaching work experience as Professor in the university
system as provided in UGC Regulations, 2018.
49. In the matter of Professor (Dr.) Sreejith P.S. (supra), the
precise issue which is involved in the present petition has been
considered. In that case also, the writ of quo warranto was sought
37 WPA(P) 170 of 2022
challenging the appointment of the Vice-Chancellor of APJ Abdul
Kalam Technological University and the same defence was raised by
the respondent and the petition was opposed on the ground that unless
UGC Regulations are adopted by the State Government, the University
Act enacted by the State shall prevail and that the UGC Regulations,
2010 were directory for the Universities as the matter was left to the
State Government to adopt and implement the same. Hon'ble Supreme
Court had rejected the said argument by specifically holding that:
"23. The decision of this Court in the case of Gambhirdan
K. Gadhvi (supra) has been subsequently followed by this Court
in the recent decision of this Court in the case of Anindya
Sundar Das (supra) while considering the appointment of the
Vice Chancellor of Calcutta University. In the said decision, it is
also observed and held in paragraph 56 that in view of the
decision in the case of Gambhirdan K Gadhvi (supra), even if
the provisions of the State Act allowed the appointment of the
Vice Chancellor by the State government, it would have to be as
per the UGC Regulations and any appointment of Vice
Chancellor in violation of the UGC Regulations shall be void ab
initio. It is further observed that the UGC Regulations shall
become part of the statute framed by Parliament and, therefore,
shall prevail.
24. In view of the above two binding decisions of this
Court, any appointment as a Vice Chancellor made on the
recommendation of the Search Committee, which is constituted
contrary to the provisions of the UGC Regulations shall be void
ab initio. If there is any conflict between the State legislation and
the Union legislation, the Union law shall prevail even as per
Article 254 of the Constitution of India to the extent the
provision of the State legislation is repugnant. Therefore, the
submission on behalf of the State that unless the UGC
Regulations are specifically adopted by the State, the UGC
Regulations shall not be applicable and the State legislation shall
38 WPA(P) 170 of 2022
prevail unless UGC Regulations are specifically adopted by the
State cannot be accepted."
50. In the matter of Anindya Sundar Das (supra) wherein the
appointment of Vice-Chancellor of Calcutta University was under
challenge and writ of quo warranto was prayed, Hon'ble Supreme
Court while affirming the judgment of the High Court has considered
the issue of applicability of the UGC Regulations, 2018 and has found it
to be applicable and the appointment of the Vice-Chancellor by the
State Government to be in violation of the UGC Regulations by holding
as under:
"58. The University Grants Commission (Minimum
Qualifications for appointment of Teachers and Other Academic
Staff in Universities and Colleges and Measures for the
Maintenance of Standards in Higher Education) Regulations
2018 have been issued to prescribe, inter alia. the minimum
qualifications for appointment and other service conditions of
University and College teachers.
59. Regulation 1.2 of the UGC Regulations provides that
they are applicable to:
"every University established or incorporated by or
under a Central Act, Provincial Act or a State Act, every
Institution including a Constituent or an affiliated College
recognized by the Commission, in consultation with the
University concerned under Clause (i) of Section 2 of the
University Grants Commission Act, 1956 and every
Institution deemed to be a University under Section 3 of
the said Act."
60. Regulation 7.3 provides for the minimum
qualifications of a VC, selection procedure and the appointment
procedure. Regarding the appointment of the VC, Regulation 7.3
states that:
7.3 Vice Chancellor:
[...]
39 WPA(P) 170 of 2022
(iii) The Visitor/Chancellor shall appoint the Vice
Chancellor out of the Panel of names recommended by the
Search-cum-Selection Committee.
61. In Gambhirdan K Gadhvi v. State of Gujarat, the
Sardar Patel University Act 1955, expressly vested the power of
appointment of the Vice Chancellor in the State government
(instead of the Chancellor). Despite the appointment being in
terms of the statutory provisions of the Sardar Patel University
Act 1955, the Court issued a writ of quo warranto setting aside
the appointment of the Vice Chancellor by relying upon the
UGC Regulations 2018. This Court, holding that the UGC
Regulations were binding, held that:
49. Therefore, when the appointment of Respondent 4
is found to be contrary to the UGC Regulations, 2018 and
the UGC Regulations are having the statutory force, we
are of the opinion that this is a fit case to issue a writ of
quo warranto and to quash and set aside the appointment
of Respondent 4 as the Vice-Chancellor of the SP
University.
50. It cannot be disputed that the UGC Regulations are
enacted by the UGC in exercise of powers under Sections
26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per
the UGC Act every rule and regulation made under
the said Act, shall be laid before each House of
Parliament. Therefore, being a subordinate legislation,
UGC Regulations becomes part of the Act. In case of
any conflict between the State legislation and the
Central legislation, Central legislation shall prevail by
applying the rule/principle of repugnancy as
enunciated in Article 254 of the Constitution as the
subject "education" is in the Concurrent List (List III)
of the Seventh Schedule to the Constitution. Therefore,
any appointment as a Vice-Chancellor contrary to the
provisions of the UGC Regulations can be said to be in
violation of the statutory provisions, warranting a writ of
quo warranto.
40 WPA(P) 170 of 2022
(emphasis supplied)
62. In view of the decision in Gambhirdan K Gadhvi,
even if the provisions of the Act allowed the appointment of the
Vice Chancellor by the State government, it would be in
violation of the UGC Regulations. The Regulations become part
of the statute framed by Parliament and will prevail.
63. For the above reasons, we hold that the judgment of
the High Court is correct in law and on fact and does not warrant
interference in appeal. The State government could not have
issued the order re-appointing the VC."
51. In the subsequent judgment in the matter of Prof. Narendra
Singh Bhandari vs. Ravindra Jugran and Others reported in 2022
SCC OnLine SC 1555, Hon'ble Supreme Court, taking note of the
judgments in the case of Gambhirdan K. Gadhvi (supra), in the case
of Anindya Sundar Das (supra) and in the case of Professor (Dr.)
Sreejith P.S. (supra) has reiterated that even otherwise than adopting
the UGC Regulations, the State Government was bound to follow
and/or act as per the UGC Regulations, 2018 by observing as under:
"28. From the note sheet dated 5.8.2020, it appears that
only one name was placed before the State Government/the
Chief Minister for approval. Under the circumstances, the
appointment of the appellant as Vice-chancellor of the
University was just contrary to Section 10 of the University Act,
2019 r/w Regulation 7.3.0 of the UGC Regulations, 2018. At
this stage, it is required to be noted that as observed and held by
this Court in the cases of Gambhirdan K.
Gadhvi (supra); Anindya Sundar Das (supra); and Dr. Rajasree
M.S. (supra), in a case where there is a conflict between the State
University Act and the UGC Regulations, 2018 to the extent
State legislation is repugnant, the UGC Regulations, 2018 shall
prevail. As observed hereinabove, UGC Regulations, 2018 were
adopted by the State Government and the State Government was
41 WPA(P) 170 of 2022
otherwise bound to follow and/or act as per the UGC
Regulations, 2018."
52. Thus, the issue is concluded by the aforesaid judgments that
UGC Regulations, 2018 are applicable and the appointments which
have been made in violation of the UGC Regulations, 2018 cannot be
sustained. In the present case, some of the respondent Vice-Chancellors
do not fulfill the minimum qualification of 10 years' experience as
professor in the university or 10 years' of expertise in a reputed
research and/or administrative organization with proof of having
demonstrated academic leadership, therefore, their appointment is
contrary to Regulation 7.3.i of UGC Regulations, 2018. It is also
undisputed that the Search Committee formed for the appointment of all
the respondent Vice-Chancellors did not have one Member nominated
by the Chairman, University Grants Commission as required by
Regulation 7.3.ii, therefore, their appointments are contrary to
Regulation 7.3.ii of UGC Regulations, 2018.
53. In view of the above analysis, it is held that the impugned
provisions of amended Acts of 2012 and 2014 to the extent they are
repugnant to the UGC Regulations, 2018 relating to appointment of
Vice-Chancellor cannot be sustained and the State is directed to
consider making suitable amendments in the concerned Acts to bring
them in conformity with the UGC Regulations, 2018 preferably within
a period of six months.
54. So far as the judgment in the matter of Tamil Nadu Medical
Officers Association and Others (supra) and Modern Dental College
and Research Centre and Others (supra) are concerned, the reliance
has been placed in respect of scope of Entry 66 of List I but the
42 WPA(P) 170 of 2022
Regulations of 2018 are not under challenge in this petition and their
scope and applicability has already been considered in the matter of
Gambhirdan K. Gadhvi (supra) and Anindya Sundar Das (supra).
So far as the judgment in the matter of Annamalai University
Represented By Registrar (supra) and Praneeth K and Others
(supra) on the plea that the Regulations of 2018 are recommendatory is
concerned, that issue has already been settled by the judgment in the
case of Anindya Sundar Das (supra), Gambhirdan K. Gadhvi
(supra) and Professor (Dr.) Sreejith P.S. (supra). So far as the
reliance upon the judgment in the case of Mar Appraem Kuri
Company Limited and Another (supra) and G.S. Chatha Rice Mills
and Another (supra) in respect of the issue of repugnancy are
concerned, the UGC Regulations, 2018 have already been found to be
applicable by the Hon'ble Supreme Court in the judgments noted above
and the amendment in the State Acts run contrary to the same. So far as
the judgment relied upon by learned counsel for the respondent in
support of the plea that once the appointee possesses minimum
qualification, no writ of quo warranto is to be issued, in the present
case, the issue is not only of minimum eligibility condition but in
respect of the deficiency in the constitution of the Selection Committee
as also appointment by the State which had no power to appoint the
Vice-Chancellor. So far as the reliance upon the judgment in the matter
of National Institute of Technology and Another (supra) is
concerned, there is no issue of rectification when the State itself did not
have power to appoint and when the procedure of appointment was
contrary to the Regulations. So far as the reliance upon the judgment in
the case of Maa Vaishno Devi Mahila Mahavidyalaya (supra) by the
43 WPA(P) 170 of 2022
learned counsel for the respondent nos. 15, 22 and 35 is concerned, the
issue involved therein was entirely different relating to affiliation and
recognition to the institutions.
55. It is also worth noting at this stage that the tenure of some of
respondents has expired in the meanwhile and neither their terms have
been extended nor fresh appointment to the post of Vice-Chancellor in
the concerned Universities had been made, therefore, at this stage,
question of issuing writ of quo warranto against them does not arise as
they are not holding the Office of the Vice-Chancellor as on date.
56. So far as the other respondent Vice-Chancellors who are
appointed/reappointed, holding additional charge or tenure extended by
order of the State and are still working on the strength of those order
without any approval of Chancellor are concerned, their appointments
are found to be unsustainable being in contravention of the provisions
of law, therefore, a question arises if writ of quo warranto be issued
against them.
57. Hon'ble Supreme Court in the case of Gambhirdan K. Gadhvi
(supra) has considered as to when the writ of quo warranto can be
issued and has held as under:
"16. When a writ of quo warranto will lie has been dealt
with by this Court in Rajesh Awasthi v. Nand Lal Jaiswal. In
para 19, it has been observed and held as under: (SCC p. 514)
"19. A writ of quo warranto will lie when the
appointment is made contrary to the statutory provisions.
This Court in Mor Modern Coop. Transport Society
Ltd. v. Financial Commr. & Secy to Govt. of
Haryana held that a writ of quo warranto can be issued
when appointment is contrary to the statutory provisions.
In B. Srinivasa Reddy, this Court has reiterated the legal
position that the jurisdiction of the High Court to issue a
44 WPA(P) 170 of 2022
writ of quo warranto is limited to one which can only be
issued if the appointment is contrary to the statutory
rules. The said position has been reiterated by this Court
in Hari Bansh Lal wherein this Court has held that for
the issuance of writ of quo warranto, the High Court has
to satisfy itself that the appointment is contrary to the
statutory rules."
17. In Armed Forces Medical Assn. v. Union of India, it
has been observed by this Court that strict rules of locus standi
are relaxed to some extent in a quo warranto proceedings. It is
further observed in the said decision that broadly stated, the quo
warranto proceeding affords a judicial remedy by which any
person, who holds an independent substantive public office or
franchise or liberty, is called upon to show by what right he
holds the said office, franchise or liberty, so that his title to it
may be duly determined, and in case the finding is that the
holder of the office has no title, he would be ousted from that
office by a judicial order. It is further observed that in other
words, the procedure of quo warranto gives the judiciary a
weapon to control the executive from making appointments to
public office against law and to protect citizens from being
deprived of public office to which they have a right. These
proceedings also tend to protect the public from usurpers of
public office. It is further observed that it will, thus, be seen that
before a person can effectively claim a writ of quo warranto, he
has to satisfy the Court that the office in question is a public
office and is held by a usurper without legal authority, and that
inevitably would lead to an enquiry, as to, whether, the
appointment of the alleged usurper has been made in accordance
with law or not.
18. Thus, as per the law laid down in a catena of
decisions, the jurisdiction of the High Court to issue a writ of
quo warranto is a limited one, which can only be issued when a
person is holding the public office does not fulfil the eligibility
criteria prescribed to be appointed to such an office or when the
appointment is contrary to the statutory rules. Keeping in mind
the law laid down by this Court in the aforesaid decisions on the
jurisdiction of the Court while issuing a writ of quo warranto,
the factual and legal controversy in the present petition is
required to be considered.
45 WPA(P) 170 of 2022
19. Respondent 4 is holding the post of Vice-Chancellor.
The post of Vice-Chancellor in a university can be said to be a
public office. There cannot be any dispute about the same. It is
nobody's case that holding the post of Vice-Chancellor cannot be
said to be holding a post of public office."
58. In the present case also, respondent Vice-Chancellors are
appointed on the post of Vice-Chancellor which is a public office and
their appointments have been found to be in violation of the provisions
of law. Hence, if they are still holding the post by virtue of those orders,
a case for issuing the writ of quo warranto against them is made out.
59. Learned counsel for the respondents, placing reliance upon the
judgments of the Hon'ble Supreme Court in the matter of Dr. M. S.
Mudhol and Another (supra), the Bombay High Court in the matter
of Bhairul Chunilal Marwadi (supra), the Delhi High Court in the
matter of P.L. Lakhanpal (supra), the Calcutta High Court in the
matter of Shri Anil Kumar Xalxo (supra) and the Kerala High Court
in the matter of K. J. Joseph (supra) has taken the plea that the
discretion should be exercised in favour of the respondents because
they fulfill the minimum eligibility condition.
60. This Court has already taken note of the importance of the post
of Vice-Chancellor in the University, therefore, it is essential that the
appointment of the Vice-Chancellor should be strictly in accordance
with the provisions of the Act. It would not be in the interest of the
students and administration of the universities to continue the
concerned respondents as Vice-Chancellor of the University once it is
found that they have been appointed without following the due
procedure and contrary to the provisions of the Act and that too by an
authority not competent to appoint.
46 WPA(P) 170 of 2022
61. In view of the above, writ petition is allowed and it is directed
that:
i. The provisions of UGC Regulations, 2018 will prevail over
the conflicting provisions of the concerned State
Universities Act, relating to appointment of Vice-
Chancellor, under which the respondent Vice-Chancellors
have been appointed.
ii. The appointment of those respondent Vice-Chancellors who
are appointed, reappointed, whose tenure extended or who
are given additional charge by the order of the State
Government or who do not possess minimum eligibility
condition or appointed without following the due procedure
are held to be unsustainable and without the authority of
law. Therefore, they have no right to continue as Vice-
Chancellors by virtue of such unsustainable orders.
62. The writ petition is accordingly disposed of.
(PRAKASH SHRIVASTAVA)
CHIEF JUSTICE
(RAJARSHI BHARADWAJ)
JUDGE
Kolkata
14.03.2023
________
PA(RB)
(A.F.R. / N.A.F.R.)
