Dr. Nalin Kumar Shastree vs Prof. K.K. Aggarwal And Anr.
2007 Latest Caselaw 1931 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The petitioner, in these writ proceedings, challenges the appointment of the first respondent as Vice Chancellor of the Guru Gobind Singh Indraprastha University (``hereafter ``the University'`) on 01.12.2003.

2. The University, a respondent in these proceedings was established under the Indraprastha Vishwavidyalya Act, 1998 (hereafter called ``the Act'`). The Act was brought into force with effect from 28.07.1998. The undisputed facts are that the first respondent, on his acceptance of the offer, was issued, an appointment letter dated 30.11.1998. According to the letter, of offer, the appointment took effect from the date the first respondent took charge of his office; he did so. Before his appointment, the said respondent was working as Professor in the Regional Engineering College, Kurukshetra. He was permitted deputation by the parent institution, for five years.

3. On 01.12.2003, the Chancellor of the University, viz the Lt. Governor of Delhi, issued the impugned order, re-appointing the first respondent. The said order reads as follows:

RAJ NIWAS : DELHI

ORDER

By virtue of the power vested in me by Section 10(2) of Indraprastha Vishwavidyaalaya Act, 1998 read with Clause 3 of the Indraprastha Vishwavidyalaya (first) Statutes, 1998, I order reappointment of Prof. K.K. Aggarwal, Vice Chancellor, Guru Gobind Singh Indraprastha University, for another terms of five years from 1 December 2003.

All other terms and conditions of his appointment will be unchanged.

Sd/-

Vijai Kapoor

Chancellor

Guru Gobind Singh Indraprastha University

1 December 2003.

4. The Petitioner challenges the legality of the impugned order. It is averred that the appointment of the first respondent is contrary to the Act, and the Statutes framed under its provisions. It is alleged that after expiration of the first respondent's tenure of appointment, the respondents were bound to adhere to the procedure provided for, which under Section 10(2) has to be in the prescribed manner. It is averred that the manner of filling the post of Vice Chancellor has been prescribed by the First Statutes. Statute 3(2) mandates that the Chancellor has to appoint the Vice-Chancellor from a panel of three names recommended by the Selection Committee. The composition of the Selection Committee is prescribed by Statute 3(3). A search committee is set up under Statute 3(4) by the Selection Committee; the recommendation of the search committee is forwarded to the selection Committee under Statute 3(5), which draws up the panel.

5. According to the petitioner the procedure prescribed by Statutes 3(4) and 3(5) which are binding and have to be followed by the respondents, was in fact breached. The impugned order, re-appointing the first respondent, is, therefore, illegal and liable to be quashed, through a writ of quo warranto.

6. The second respondent in its counter affidavit denies that the impugned order is illegal. According to its averments, the re-appointment was lawful. It relies upon Section 40(a), which provides that appointment to the post of first Vice - Chancellor is governed by terms and conditions specified in the Statute. According to Section 8(1), the Lt. Governor of Delhi is constituted the Chancellor. The first Respondent was appointed by the Chancellor in terms of Section 40(a). In terms of Statute 3(6) such Vice-Chancellor is eligible for appointment for not more than one term.

7. The first and second respondent have questioned maintainability of the proceedings; it is averred by them that the petitioner was working as Registrar of the University form 08.05.2003 to 23.12.2004 His tenure was terminated. That was challenged by a Writ Petition, pending on the file of this Court; rule was issued in those proceedings on 14.03.2005. In these circumstances, his assailing the impugned order after lapse of more than 3 years, has been questioned. It is alleged, by the first respondent, that the writ petition is motivated with oblique consideration and not bona fide.

8. Mr. Shambu Prasad Singh, learned Counsel, contended that the provisions of Statutes 3(3) to 3(5) are binding, by virtue of Section 10(2) of the Act. They were undisputedly not adhred to; the first respondent's re-appointment, which was nothing but an appointment on fresh tenure, was therefore illegal.

9. Learned Counsel contended that the impugned order is arbitrary and liable to be declared as such, as it amounts to violation of Article 16(1) of the Constitution of India. Once the statute intervened and regulated the manner of appointment, it was not open to the second respondent to by-pass its binding provisions, and adopt the devise of extending the tenure of the first respondent through the impugned order, re-appointing him. The procedure required constitution of a selection committee, which in turn is to constitute a search committee to recommend a panel of candidates, each suitable to the post. This in turn would lend transparency and objectivity to the selection process. In completely ignoring the procedure laid down by law, the respondents acted unlawfully; in such circumstances, a writ of quo warranto would lie.

10. Counsel for the petitioner relied upon a judgment of the Supreme Court reported as B.R. Kapur v. State of Tamil Nadu as well as the judgment in R.K. Jain v. UOI 1993(4) SCC 119. It was submitted that the procedural limitations applicable to prerogative writs do not attach to a claim for quo-warranto once the claimant established that the office or post, was not filled in accordance with law. The holder of such officer post forfeits the authority to occupy it. In such a case, considerations such as laches, standing, conduct of the petitioner etc. become irrelevant. Counsel emphasized that quo-warranto is a remedy conceived in public interest and aimed and ensuring that pretenders to public posts are not allowed to occupy them.

11. Mr. Gopal Subramaniam, learned ASG appeared on behalf of the University, which was not a party to the proceeding but sought to implead itself. Mr. G.D. Goel, counsel appeared on behalf of the first respondent. It was contended on behalf of the respondents that appointment of the first respondent was made under Section 40 (a) of the Act in 1998. At that stage there was and there could not have been any dispute about his eligibility. The Chancellor was empowered to adopt the procedure most suited to make the first appointment of the Vice Chancellor. It was contended that the first respondent's academic credentials weighed pre-dominently with the official respondents in determining that he had sufficient eminence and distinction to be appointed as Vice Chancellor. Once appointed, he was entitled to re-appointment under Statute S 3(6) of the Statutes. Learned Counsel contended that the procedure for re-appointment is not subject to the procedure prescribed in Statutes 3(2) to 3 (5).

12. Learned Counsel urged that the petition is motivated by ill will. It was submitted that the petitioner was aware of appointment of the first respondent and indeed functioned as Registrar of the University till his tenure was terminated in 2004 He did not feel aggrieved ever during his tenure. In fact the impugned order re-appointing the first respondent was made when the petitioner was Registrar, yet he chose to challenge it four years later.

13. It was lastly contended that the non-obstante clause in Section 40 empowered the second respondent and the Chancellor to re-appoint the first respondent for a term without following the procedure outlined in Statute 3(2) to 3(5) i.e. the appointment of Search Committee which would recommend names, from which a panel would be drawn by the Selection Committee. If such a restrictive interpretation were to be given, the purpose of entitling an incumbent to re-appointment under Statute 3(6) would be frustrated.

14. It would be necessary to extract the relevant provisions of the Act, and First Statutes, which are as follows:

A Provisions of the The Indraprastha Vishwavidyalaya Act, 1998

9. The following shall be the officers of the University:

(1) The Vice-Chancellor;

(2) the Pro Vice-Chancellors;

(3) the Deans;

(4) the Registrars;

(5) the Controller of Finance; and

(6) such other officers as may be declared by the Statues to be the officers of the University.

xxx xxx xxx

10. (1) The Vice-Chancellor shall be a scholar of eminence having administrative experience in a national level institution of learning.

(2) The Vice-Chancellor shall be appointed by the Chancello9r in such manner, for such term and on such emoluments and other conditions of service as may be prescribed.

(3) The Vice-Chancellor shall be the principal academic and executive officer of the University and shall exercise supervision and control over the affairs of the University and ggive effect to the decisions of all the authorities of the University.

 xxx    xxx    xxx
 

40. Notwithstanding anything contained in this Act and the Statues -
  

(a) the first Vice-Chancellor, the first Registrars and the Controller of Finance shall be appointed by the Chancellor and they shall be governed by the terms and condtiions of service specified by the Statutes;

(b) the first Court and the first Boar4d of Management shall consist of not more than twenty five members and eleven members respectively who shall be nominated by the Chancellor and shall hold office for a term of three years; and

(c) the members of the first Planning Board shall be nominated by the Chancellor and shall hold office for a terms of three years.

B Extracts from the First Statutes

Government of the National Capital Territory of Delhi (Directorate of Higher Education)

No.F.18(88)/92/CB/Edn./1036 Dated the 19th of August, 1998

NOTIFICATION

No.F.18(88)/92/CB/Edn. - In pursuance of the provisions of Sub-section (1) of Section 26 of the Indraprastha Vishwavidyalaya Act, 1998 (9 of 1998), the Government of the National Capital Territory of Delhi, with the prior approval of the Chancellor of the Indraprastha Vishwavidyalaya, hereby makes the following first Statutes, namely P-

FIRST STATUTES

1. (1)These Statutes may be called the Indraprastha Vishwavidyalaya (first) Statutes, 1998.

(2) They shall comes into force on the date of thier publication in the official Gazette.

3. (1) The Vice-Chancellor or shall be a wholetime salaried officer of the University.

(2 The Vice-Chancellor shall be appointed by the Chancellor from a panel of three names (written in the alphabetical order) recommended by the selection committee constituted under Clause (3).

(3) The selection committee referred to in Clause (2) shall be headed by the Chierf Justice of the Delhi High Court and shall consist of -

(a) the Secretary to the Government of India in the Department of Science and Technology; and

(b) the Chief Secretary to the Government who shall be the member secretary of the selection committee.

(4) For suggesting names of persons for consideration of the selection committee, there shall be constituted a search committee consisting of the following:

(a) The Vice Chancellor of an Indian University.

(b) The Director, All India Institute of Medical Sciences, New Delhi.

(c) The Director, Indian Institute of Technology, Delhi.

(d) The Director, Indian Institute of Management, Ahmedabad.

(e) The Secretary in the Education Department of the Government who shall be the member-secretary of the committee.

(5) The search committee shall forward the names (in the alphabetical order) to the member secretary of the selection committee.

Provided that the selection committee may also consider names not suggested by the search committee.

(6) The Vice-chancellor shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for reappointment for not more than one term:

Provided that the person appointed as Vice-chancellor shall, on completion of sixty five years of age during his terms of office, cease to hold office.

15. The factual narrative is largely undisputed. The question to be decided is whether the Chancellor is bound to follow the procedure outlined in Statutes 3(2) to 3(5), while re-appointing the first Vice -Chancellor-in this case, the first respondent.

16. The petitioner has nowhere disputed or questioned the first respondent's appointment in 1998. This assumes some significance because he chose not to question the first respondent's academic credentials to be deemed distinguished or eminent meriting appointment under Section 40 (a). In such a situation the question is whether re-appointment under Statute 3(6) should be treated as a fresh appointment for which the procedure of a selection process under the preceding provisions (to be undertaken by the Committee constituted for the purpose, which in turn constitutes a Search Committee, considers the name recommended to it, and forwards a panel to the Chancellor), has to be necessarily followed.

17. The scheme of the Act shows that the Vice Chancellor is an authority under the Act. He is the Chief Executive Officer constituted as such supervising and control its affairs (Section 10(3). He is appointed by the Chancellor in the manner prescribed under the Act. Section 40 enacts that the first Vice Chancellor among other officials shall be appointed by the Chancellor and governed by terms and conditions by the Statutes. The conditions prescribed for appointment of a Vice Chancellor have been prescribed by Statute 3.

18. A composite and harmonious construction of Statute 3 and Section 40(a) would imply that the Legislature intended that notwithstanding the express provisions of the Act and the statutes, the Chancellor could appoint the Vice- Chancellor but upon the terms and conditions mentioned in the Statutes. Though seemingly contrary, yet in reality there is no such dichotomy in the concept. The effect of the two provisions is that so far as the method of appointment of the first Vice Chancellor is concerned, the Chancellor will not be inhibited by the procedure prescribed in Statute 3. However, as regards other conditions of service the appointment of the first Vice Chancellor would be governed by the Statutes. If this interpretation is given, the logical corollary is that the appointment under Section 40(a), of the first Vice Chancellor would contain the right of re-appointment under Section 3 (6).

19. Now a complete reading of Statutes nowhere reflects the intention of the rule maker that the procedure for reappointment is the same as outlined in Statute 3 (2) to 3(5). A contrary interpretation if preferred, would defeat the purpose of Statute 3(6). Besides such an interpretation would be facially unsupportable because a five year period would be too tenuous and brief, as each incumbent would then be subjected to vagaries of the Selection process all over again even though he is deemed eligible for re-appointment.

20. In view of the above interpretation I am of the opinion that the contentions of the petitioner are unmerited. Since the legality of the first respondent's appointment has been decided, it is unnecessary to express any opinion on the maintainability of the petition or the locus standi of the petitioner.

21. In view of the above findings the writ petition and pending applications cannot succeed. They are accordingly dismissed without any order as to costs.