Professor(Dr.)Sreejith P.S vs Dr.Rajasree M.S
2021 Latest Caselaw 5168 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE AMIT RAWAL

      FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942

                       WP(C).No.33004 OF 2019(A)

PETITIONER/S:
                PROFESSOR(DR.)SREEJITH P.S
                'ASHTAPATHY', KANIYANKUNNU, EAST KADUNGALLOOR,
                U.C.COLLEGE.P.O., ALUVA-683102, KERALA.
                BY ADV. SRI.SHYAM KRISHNAN

RESPONDENT/S:
       1      DR.RAJASREE M.S.,
              TC.20/1679(1), MITHILA, SASTRI NAGAR, KARAMANA.P.O.,
              THIRUVANANTHAPURAM, KERALA - 695002.
              NOW WORKING AS VICE-CHANCELLOR OF APJ ABDUL KALAM
              TECHNOLOGICAL UNIVERSITY, CET CAMPUS,
              THIRUVANANTHAPURAM-695016.
       2      THE CHANCELLOR,
              APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, KERALA RAJ
              BHAVAN, THIRUVANANTHAPURAM-695001.
       3      APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
              CET CAMPUS, THIRUVANANTHAPURAM-695016, REPRESENTED BY
              ITS REGISTRAR.
       4      GOVERNMENT OF KERALA,
              REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER
              EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM-695001.
       5      THE UNIVERSITY GRANTS COMMISSION,
              REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR
              MARG, NEW DELHI-110002.
              R1 BY ADV. SRI.O.V.RADHAKRISHNAN (SR.)
              R1 BY ADV. SMT.K.RADHAMANI AMMA
              R1 BY ADV. SRI.P.KRISHNANKUTTY NAIR (KOLLAMALA)
              R2 BY ADV. SRI.K.JAJU BABU (SR.)
              R2 BY SMT.M.U.VIJAYALAKSHMI, COUNSEL FOR THE
              CHANCELLOR OF UNIVERSITIES IN KERALA
              R3 BY ADV. SRI.ELVIN PETER, SC, APJ ABDUL KALAM
              TECHNOLOGICAL UNIVERSITY
              R4 BY GOVERNMENT PLEADER
              R4 BY SRI.K.K.RAVINDRANATH, ADDL.ADVOCATE GENERAL
              R4 BY SRI.P.G.PRAMOD, GOVERNMENT PLEADER
              R5 BY SRI.S.KRISHNAMOORTHY, CGC

OTHER PRESENT:
             GP SRI B HARISH KUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
02-02-2021, THE COURT ON 12-02-2021 DELIVERED THE FOLLOWING:
 WP(C).No.33004 OF 2019(A)

                                  2




                            JUDGMENT

Dated this the 12th day of February 2021

The petitioner through the instant writ petition has

invoked the writ jurisdiction seeking issuance of writ of

quo warranto by declaring the appointment of first

respondent to the post of Vice Chancellor of APJ Abdul

Kalam Technological University as void ab initio; writ of

mandamus to publish fresh notification for selection of

Vice Chancellor and to declare the provision of age bar of

61 years in Section 13(5) of the APJ Abdul Kalam

Technological University Act (hereinafter called '2015 Act)

for appointing the Vice-Chancellor, would not apply to the

petitioner.

2. Before this Court could deal with the facts and

the pleas raised, would keep in mind that the jurisdiction

of High Court to issue quo warranto is limited and can be

only issued, when a person holding a public office lacks

eligibility or if appointment is contrary to statutory rules WP(C).No.33004 OF 2019(A)

and the public office is held by an usurper without any

legal authority. A person seeking such action is to satisfy

the Court that the office in question was a public office

and held by an usurper. Keeping in view the jurisdictional

parameters of the writ court, the facts of the present case

in narrow compass are as under:

3. Higher Education Department, Government of

Kerala vide notification dated 30.7.2018, Ext.P1 invited

application from eligible candidates for selection of Vice-

Chancellor in the 3rd respondent University. The

notification clearly mentioned that Sub Sections (5) and

(6) of Section 13 of the APJ Abdul Kalam Technological

University Act 2015 (hereinafter called the University

Act) were to be followed.

4. The University Grants Commission caused

Regulations 2010 by exercising the powers under Section

26 (e) of the University Grants Commission Act, 1956,

which lays down the qualifications and process of

selection of Vice Chancellor by giving the nomenclature

as "Minimum Qualifications For Appointment of Teachers WP(C).No.33004 OF 2019(A)

And Other Academic Staff In Universities And Colleges

And Other Measures For The Maintenance Of Standards

In Higher Education". Clause 7.3.0 (i) of Regulation

2010, Ext.P2 lays down the qualifications for Vice

Chancellor, whereas 7.3.0 (ii) the procedure of selection

and clause 7.3.0 (iii) appointment of Vice Chancellor from

panel of names recommended by the Selection

Committee.

5. Government of Kerala vide order dated

10.12.2010, adopted and implemented UGC Regulations

2010 with effect from 18.9.2010 as evidenced from

Ext.P4. Two notifications were issued by the 4 th

respondent/Government for selection of the Vice

chancellor. As per the first notification Ext.P1, there

were four short listed candidates, including the petitioner

and the first respondent, they were invited for a

'conversation' with the Search Committee on 11.9.2018 as

evidenced from Times of India report, Ext.P5. But the

petitioner received the information that the 'conversation'

was postponed.

WP(C).No.33004 OF 2019(A)

6. The second notification was issued in December

2018, Ext.P6, the qualifications and experience required

for the post remained same as given in the first

notification, Ext.P1. But the petitioner did not receive

any communication inviting him for a 'conversation' as

was done in past and came to know that the 2 nd

respondent/ Chancellor on 19.2.2019 vide Ext.P7

appointed the 1st respondent Dr.Rajasree M.S, as Vice-

Chancellor of the 3rd respondent University. In order to

ascertain information with regard to the appointment of

the first respondent, whether it was fair, legal and

transparent an application under RTI was submitted

which was replied vide communication dated 7.11.2019

from the office of the 2nd respondent wherein it was

directed to submit fees for copies of the documents

sought under RTI pertained to Search Committee's

recommendations and credentials of the candidates. The

2nd respondent divulged relevant information by

furnishing copies of the minutes of the Search Committee

along with the individual and separate recommendation of WP(C).No.33004 OF 2019(A)

members, vide Ext.P16.

7. Learned counsel appearing on behalf of the

petitioner submitted that on perusal of the

aforementioned information, it was revealed that 22

(twenty two) candidates out of 26 (twenty six) applicants

were found eligible. The Committee shortlisted 5 (five)

candidates. However the Search Committee for the

reasons best known left out the petitioner; the other three

members included and suggested only one name. In this

background, the appointment of the first respondent has

been challenged by taking the following pleas:

a. Clause 7.3.0 (ii) of Ext.P2 Regulation, provides

that the members of the Search Committee shall be

person of eminence in the sphere of higher education and

shall not be connected in any manner with University

concerned or its colleges. The aforementioned provision

was manifestly violated on nomination of the Chief

Secretary of the State as a member and Convenor of the

committee by the Chancellor. The Chief Secretary by no

stretch of imagination can be a person of eminence in the WP(C).No.33004 OF 2019(A)

sphere of higher education as he has a deep and

pervasive control over the administrative and financial

matters of the University concerned and cannot be said to

be a person 'not connected in any manner' with the 3 rd

University. It is settled law that the participation of the

persons without the legal authority vitiates the

deliberation of the statutory provision and the decision

would be rendered void ab initio.

b. The plea of the University that the Regulation

2010 were amended in 2013 whereby the Search

Committee 'could' as per University Act 2015 be

permitted to include Chief Secretary as a member, is

wholly unsustainable. While deciding the composition of

Search committee, Government could have resorted to

Ext.P3 University Act 2015, only if it contained provisions

which would enhance or increase the standards

prescribed by the 2010 Regulations. In fact the

inclusion of Chief Secretary clearly encroached upon the

field occupied by Entry 66 of the Union List and thus

would be a breach of the parameters of Article 254 of the WP(C).No.33004 OF 2019(A)

Constitution of India, resulting in repugnancy and

illegality. In support of the aforementioned contention,

various judgments were cited and of latest Visveswariah

Technological University and Another v. Krishnendu

Halder and others [(2011) 4 SCC 606]. It was

submitted that by that time, UGC had already come out

with Regulation 2018, with effect from 18.7.2018.

c. The mandate of Ext.P2 UGC Regulations, 2010

provides that while preparing the panel, Search

committee, 'must' furnish Chancellor 'in writing' full

particulars of merits of candidates. Ext.P14 reveals that

out of 26 applicants, 22 were found to be 'eligible' and

only 5 were shortlisted and invited for a 'conversation'.

Search Committee could not have resorted to the

provisions of Section 13(4) of the University Act, by

recommending a single candidate against the clear and

unambiguous Central legislation/Regulations 2010

amounting to change of Rules of game after the game had

started, which was not permissible in law.

d. Second Respondent/Chancellor was prevented from WP(C).No.33004 OF 2019(A)

an opportunity, of proceeding, the most suitable

candidates as Search Committee confined the

recommendation only of a single person and the decision

reveals undue haste and resulting into issuance of

appointment letter in favour of the respondent No.1.

8. It is settled law that the manner of doing a

particular Act, if prescribed under statute/ act must be

done in that manner. Thus the deviation from the Rules

and consequent violations cannot rule out applicability of

malice. By summing up the aforementioned arguments,

learned counsel for the petitioner cited the judgment of

the Hon'ble Supreme Court in Central Electricity

Supply Utility of Odisha v. Dhobei Sahoo and others

(2014 (1) SCC 161 and the Division Bench judgment of

this Court in Premkumar T.R v. Mahatma Gandhi

University and Others (2018 (2) KHC 21, K.V

Jeyaraj and another v. The Chancellor of

Universities, Raj Bhavan, Gunidy, Chennai and

others [2014(3) LLN 458], APJ Abdul Kalam

Technological University and Another v. Jai Bharath WP(C).No.33004 OF 2019(A)

College of Management and Engineering

Technology and Others (Civil Appeal No.4016 of

2020) on the point of repugnancy between UGC

regulations 2010, University Act and violation of Article

254 of the Constitution of India. Emphasis was laid to

paragraphs 32 to 45 and 41 to 60 of the decision in APJ

Abdul Kalam Technological University (supra).

9. On the contrary, learned counsel for the

University laid reliance to provisions of Section 13 of

2015 Act, particularly sub Section 2 thereof prescribing

the appointment of Vice-chancellor by Chancellor on the

recommendation of the Government from among the

panel of names recommended by a Search Committee

consisting of three members.

i. one member elected by the Board of Governors.

ii. one member nominated by the AICTE.

iii. the Chief Secretary of the State, who shall be the

convenor of the Committee.

10. The attention of this Court was also drawn to the

provisions of sub Section 4 of Section 13 of 2015 Act, WP(C).No.33004 OF 2019(A)

where the Search Committee was empowered to

recommend unanimously a panel of not less than three

suitable persons from amongst the eminent persons in the

field of engineering sciences. The names shall be in

English alphabetical order. The report shall also be

accompanied by a detailed write-up on the suitability of

each person included in the panel; with a saving clause

that in case the committee fails to make a unanimous

recommendation as provided, each member of the

committee could submit the name of one person each to

the Chancellor. The non submission of the name by any

member of the Committee shall not invalidate the

appointment of the Vice-Chancellor. The age prescribed

for consideration of appointment of the Vice-chancellor

was not more than 61 years and conditions of his

appointment to hold office was for a period of four years

from the date on which he enters upon his office or till

attainment of the age of sixty five years, whichever was

earlier. The invocation of the aforementioned provisions

was derived from the provisions of 2013 Regulations as WP(C).No.33004 OF 2019(A)

per Clause 7.3.0 (iii) whereby Search Committee for the

purpose of appointment of Vice Chancellor was

empowered to follow the procedure as per the

'Act/Statue' of the concerned University.

11. The notification in the aforementioned case was

caused on 30.7.2018 which envisaged that the selection

of Vice-Chancellor was to be made in accordance with the

UGC Regulations and provisions contained in the 2015

Act and not only 2010 Regulations. The constitution of

the Search Committee for selection of the Vice Chancellor

of the University was made as per the 2015 Act. The

Search Committee could not unanimously recommend a

panel of not less than 3 (three) suitable persons from

amongst the eminent persons in the field of engineering

sciences, then each member of the Committee was

empowered to submit name of one person each to the

Chancellor. It was not mandatory that the selection of

Vice-Chancellor of the University was to be made only

from among the panel. But in case the committee failed

to make a unanimous recommendation, each member was WP(C).No.33004 OF 2019(A)

entitled to send name of one person each to the

Chancellor. Thus the argument of the learned counsel

for the petitioner that there was no panel, was liable to be

rejected. Though University Grants Commission,

Regulations 2013 were withheld from the notice of this

Court, the entire pleadings has been brought on record by

counter affidavit, Ext.R3(a).

12. It was next contended that judgment of the

Division Bench of the Madras High Court in K.V Jeyaraj

and another (supra) was taken up in Supreme Court

and vide judgment in Kalyani Mathivanan v. K.V

Jeyaraj and Others [(2015) 6 SCC 363], the same has

been set aside by holding UGC Regulations 2010 to be

directory for the Universities, Colleges and other higher

educational institutions under the purview of State

legislature as the matter has been left to the State

Government to adopt and implement the scheme. Thus,

the UGC Regulations, 2010 are partly mandatory or partly

directory. University was established by virtue of Act of

2015 and the provisions of Section 13 were incorporated WP(C).No.33004 OF 2019(A)

by keeping in view the Regulations 2013 and thus would

not have any erroneous effect in respect of the selection

of the Vice Chancellor nor there was any illegality in

constitution of Search Committee.

13. The notification Ext.P1 was in consonance with

the provisions of clause 7.3.0 of 2013 Regulations and not

2010. Had there been a deviation in publishing the

provisions of the Act / Statute, the UGC had full power to

take stringent action as per the provisions of Section 14

of the University Grants Commission Act. In the absence

of the same, the selection cannot be said to be vitiated or

void abinitio in law. By concluding the argument, prayer

was made for dismissing the writ petition with exemplary

costs.

14. I have heard the learned counsel for the parties

and appraised the paper book. In view of the submissions

in this writ petition, the points to be answered would be:

1. Constitution of committee

2. Whether UGC Regulations 2010 or 2013 would

be applicable or;

WP(C).No.33004 OF 2019(A)

3. The provisions of Section 13 of 2015 Act.

For answering the aforementioned points, it would be

appropriate to extract relevant notifications Exts.P1 and

P6, UGC Regulations 7.3.0 of 2010, Ext.P2, UGC

Regulations 2013, Ext.R3(a) and Sections 12 and 13 of

A.P.J Abdul Kalam Technological University Act, 2015.

A. NOTIFICATION, Ext.P1 DATED 30.7.2018

Applications are invited by the Search Committee from eligible candidates for the selection of Vice Chancellor in All Abdul Kalam Technological University. Thiruvananthapuram. Qualification and experience are as prescribed in the Clause 7.3.0 (i)(ii) of UGC notification dated 30/06/2010, and Clause (5),(6) Section 13 of APJ Abdul Kalam Technological University Act. Preference: will be given to candidates having Ph.D.

Clause 7.3.0. (i) and (ii) of UGC Notification dated 30/6 2010 reads as follows:

i. Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vice Chancellors The Vice - Chancellor to be appointed should be a distinguished academician, with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/or academic administrative organization

ii. The selection of Vice - Chancellor should be through proper identification of a Panel of 3-5 names by Search Committee through a public Notification or nomination or a talent search process or in combination. The members of the above Search Committee shall be persons of eminence in the sphere of higher education WP(C).No.33004 OF 2019(A)

and shall not be connected in any manner with the University concerned or its colleges. While preparing the panel, the Search committee must give proper weightage to academic excellence, exposure to the higher education system 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 Vice Chancellor In respect of State and Central Universities, the following shall be the constitution of the Search Committee.

a) a nominee of the Visitor/Chancellor, who should be the Chairperson of the Committee

b) a nominee of the Chairman, University Grants Commission.

c) a nominee of the Syndicate/Executive Council/ Board of Management of the University.

Clause (5), (6) of Section 13 of the APJ Abdul Kalam Technological University Act reads as follows:

5) No person who is more than sixty one years of age shall be appointed as Vice-Chancellor and after the appointment, he shall, subject to the terms and conditions of his appointment, hold office for a period of four years from the date on which he enters upon his office or till he attains the age of sixty five years, whichever is earlier.

6) The person appointed as Vice-Chancellor will be eligible for re appointment provided he has not attained the maximum age mentioned in sub-section (5)

Signed applications in hard copy with bio data, proof of experience, qualification, vision statement ete in the prescribed proforma should reach the Principal Secretary to Government, Higher Education Department Government Secretariat (Annex II), Thiruvananthapuram- 695 001 on or before 5 pm on 29/08/2018:For more details visit www.kerala.gov.in www.highereducation kerala.gov.in w ww.ktu.edu.in.

WP(C).No.33004 OF 2019(A)

B. SECOND NOTIFICATION, Ext.P6 DATED 21.12.2018

Applications are invited by the Search Committee from eligible candidates for the selection of Vice Chancellor in APJ Abdul Kalam Technological University, Thiruvananthapuram. Qualification and experience are as prescribed in the Clause 7.3.0 (i),(ii) of UGC notification dated 30/06/2010, and Clause (5),(6) Section 13 of APJ Abdul Kalam Technological University Act. Preference will be given to candidates having Ph.D.

Clause 7.3.0. (i) and (ii) of UGC Notification dated 30/06/2010 reads as follows:

i. Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vice Chancellors. The Vice Chancellor to be appointed should be a distinguished academician, with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/or academic administrative organization

ii. The selection of Vice Chancellor should be through proper identification of s Panel of 3-5 names by a Search Committee through a Public Notification of nomination or a talent search process or in combination. The members of the Search 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 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 to be given in writing along with the panel to be submitted to the Visitor/Chancellor. In respect of State and Central Universities, the following shall be the constitution of the Search Committee WP(C).No.33004 OF 2019(A)

a) a nominee of the Visitor/Chancellor, who should be the Chairperson of the Committee

b) a nominee of the Chairman, University Grants Commission.

c) a nominee of the Syndicate /Executive Council/ Board of Management of the University

Clause (5),(6) of Section 13 of the APJ Abdul Kalam Technological University Act reads as follows:

5)No person who is more than sixty one years old age shall be appointed as Vice-Chancellor and after the appointment, he shall. subject to the terms and conditions of his appointment, hold office for a period of four years from the date on which he enters upon his office or till he attains the age of sixty five years, whichever is earlier

6. The person appointed as Vice-Chancellor will be eligible for re appointment provided he has not attained the maximum age

Signed applications in hard copy and soft copy with bio data, proof of experience and qualification, vision statement etc in the prescribed proforma should reach the Principal Secretary to Government, Higher Education Department, Government Secretariat (Annex Thiruvananthapuram-695 001 The soft copy should be sent by mail to [email protected] The last date for receipt of application is 21/01/2019, For more details visit www.

highereducation kerala.gov.in/ www.kerala gov.in.

C. CLAUSE 7.3.0 OF UNIVERSITY GRANTS COMMISSION REGULATIONS, 2010, EXT.P2

7.3.0. VICE-CHANCELLOR:

(i) Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vice-Chancellors. The Vice-Chancellor WP(C).No.33004 OF 2019(A)

to be appointed should be a distinguished academician, with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and / or academic administrative organization.

(ii) The selection of Vice-Chancellor should be through proper identification of a Panel of 3-5 names by a Search Committee through a public Notification or nomination or a talent search process or in combination. The members of the above Search 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 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 to be given in writing along with the panel to be submitted to the Visitor/Chancellor. In respect of State and Central Universities, the following shall be the constitution of the Search Committee.

(a) a nominee of the Visitor/Chancellor, who should be the Chairperson of the Committee.

(b) a nominee of the Chairman, University Grants Commission.

(c) a nominee of the Syndicate/ Executive Council / Board of Management of the University.

(iii) The Visitor/Chancellor shall appoint the Vice Chancellor out of the Panel of names recommended by the Search Committee.

(iv) The conditions of service of the Vice Chancellor shall be prescribed in the Statutes of the Universities concerned in conformity with these Regulations.

(v) The term of office of the Vice Chancellor shall form part of the service period of the incumbent concerned making him/her eligible for all service related benefits.

WP(C).No.33004 OF 2019(A)

4. CLAUSE 7.3.0 OF UNIVERSITY GRANTS COMMISSION (2 nd AMENDMENT) REGULATIONS, 2013, EXT.R3(a)

7.3.0 VICE CHANCELLOR:

i. Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vies-Chancellors The Vice-Chancellor to be appointed should be a distinguished academician with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/or academic administrative organization

ii.The selection of Vice Chancellor should be through proper identification of a panel of 3-5 names by a Search Committee through a pubic notification or nomination or a talent search process or in combination The members of the above Search Committee shall be persons of eminence in the sphere of higher education and shall not be corrected in any manner with the university concerned or its colleges. 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 to be given in writing along with the panel to be submitted to the Visitor/Chancellor. The constitution of the Search Committee could be as per the Act/ Statutes of the concerned university

iii. The Visitor/ Chancellor shall appoint the Vice Chancellor out of the Panel of names recommended by the Search Committee

iv. The conditions of services of the Vice Chancellor shall be as prescribed in the Act Statutes of the university consented in conformity with the Principal Regulations.

v. The term of office of the Vice Chancellor shall form part of the service period of the incumbent concerned making him/her eligible for all service related benefits."

5. SECTION 12 AND 13 OF A.P.J ABDUL KALAM TECHNOLOGICAL UNIVERSITY ACT, 2015 WP(C).No.33004 OF 2019(A)

12. Officers of the University - The following shall be the officers of the University namely

(i)the Vice-Chancellor:

(ii)the Pro-Vice-Chancellor;

(iii) the Registrar:

(iv) the Finance Officer;

          (v)     the Controller of Examinations
          (vi)     the Dean (Research);
          (vii) the Dean (Academic):

(viii) such other persons in the service of the University as may be declared by the Statutes to be officers of the University,

13. The Vice-Chancellor

(I) The Vice-Chancellor shall be the principal executive and academic officer of the University. He shall be the ex-officio Chairman of the Executive Committee and of the Academic Committee.

(2) The first Vice-Chancellor shall be appointed by the Chancellor on the recommendation of the Government and thereafter the Vice-Chancellor shall be appointed by the Chancellor from among a panel of names recommended by a Search Committee consisting of the following members, namely:

(i)one member elected by the Board of Governors:

(ii) one member nominated by the AICTE

(iii) the Chief Secretary of the State, who shall be the Convenor of the Committee

(3) The process of preparing a panel shall begin at least three months before the probable date of occurrence of the vacancy of the Vice-Chancellor and shall be completed within the time-limit fixed by the Chancellor. The Chancellor, however, may extend such time-limit, if, in the exigency of the circumstances, it is necessary to do so. However, the process of preparation of the panel shall be completed within a period of three months, including the period so extended.

WP(C).No.33004 OF 2019(A)

4. The Committee shall recommend unanimously a panel of not less than three suitable persons from amongst the eminent persons in the field of engineering sciences. The names shall be in English alphabetical order. The report shall be accompanied by a detailed write-up on the suitability of each person included in the panel. In case the Committee fails to make a unanimous recommendation as provided, each member of the Committee may submit the name of one person each to the Chancellor. The non submission of the name by any member of the Committee shall not invalidate the appointment of the Vice-Chancellor.

(5) No person who is more than sixty one years of age shall be appointed as Vice-Chancellor and after the appointment, he shall, subject to the terms and conditions of his appointment, hold office for a period of four years from the date on which he enters upon his office or till he attains the age of sixty five years, whichever is earlier.

(6) The persons appointed as Vice-Chancellor will be eligible for re-appointment provided he has not attained the maximum age mentioned in sub-section 5.

14. The Division Bench of this Court in

Premkumar T.R (supra) set aside the appointment of

Vice-Chancellor on the premise that the incumbent was

unqualified to hold the post of Vice-Chancellor as the post

of Director of State Institute of Educational Technology

(SIET) for more than 10 years was not equal to the post of

Professor in the University and regarding composition of

Selection Committee ie., a member of senate and WP(C).No.33004 OF 2019(A)

syndicate ought not to have been part of Committee and

one of the three members ie., MLA could not be a person

of eminence in the sphere of education. The

aforementioned matter was taken up before the Supreme

Court; the matter was remitted and by that time there was

no occasion for the Court to adjudicate as the term of the

appointed Vice-Chancellor had already expired; the writ

petition was rendered as infructuous.

15. On juxtaposing of Regulations ie. Clause 7.3.0

(ii) of University Grants Commission Regulations, 2010,

Ext.P2 viz-a-viz clause 7.3.0 (ii) of University Grants

Commission Regulations, 2013, Ext.R3(a), it is revealed

that the members of the Search Committee should be of

persons of eminence in the sphere of higher education

and shall not be connected in any manner of the

University concerned. But the only thing added is 'the

constitution of the Search Committee could be as per the

Act/Statutes of the concerned University'.

16. A.P.J Abdul Kalam Technological University Act

came into force only in 2015 when UGC 2013 Regulations WP(C).No.33004 OF 2019(A)

were in force. On plain and simple reading of Section 13

of 2015 Act, extracted above, University incorporated the

procedure of constitution of Committee and appointment,

for the purpose of appointment of Vice-Chancellor. As

per Sub Section 2 of Section 13 of 2015 Act, the Chief

Secretary of the State shall be the convenor of the

Committee. University Grants Commission did not find

the provisions of Section 13 of 2015 Act to be incongruous

with 2013 Regulations for the simple reason, had it been

so UGC is empowered to take action against the

University by applying the provisions of Section 14 of the

University Grants Commission Act. The same reads thus:

"Consequences of failure of Universities to comply with recommendations of the Commission - If any University [grants affiliation in respect of any course of study to any college referred to in sub-section (5) of section 12A in contravention of the provision of that sub-section or] fails within a reasonable time to comply with any recommendation made by the Commission under section 12 or section 13, [or contravenes the provision of any rule made under clause (f) or clause (g) of sub- section (2) of section 25, or of any regulation made under clause (e) of sub-section (2) of Section 25, or of any regulation made under clause (e) or clause (f) or clause (g) of section 26] the Commission, after taking into consideration the cause, if any, shown by the University [for such failure or contravention] may withhold from the University the grants proposed to be made out of the Fund of the Commission."

WP(C).No.33004 OF 2019(A)

17. The Search Committee in the instant case was

constituted, pursuant to Ext.P1 notification for selection

of a Vice-Chancellor and not in accordance with the UGC

Regulations, 2010. UGC Regulations were made by the

Commission in exercise of powers conferred under

Section 26(1) (e) and (g) of the University Grants

Commission Act, 1956 and under the above mentioned

provisions, Commission is empowered to make regulations

defining the qualifications that should ordinarily be

required of any person to be appointed to the teaching

staff of the University and the post of Vice-Chancellor.

18. The controversy in the judgment in APJ Abdul

Kalam Technological University and Another (supra)

pertained to an affiliation of new B.Tech course wherein

the provisions of AICTE and UGC were elaborately

discussed. It was held that AICTE Act was traced at Entry

No.66 of List-I of 7th Schedule of Constitution. Since the

Technical Universities are governed by the provisions of

AICTE, in paragraph 59 thereof, it was held that the WP(C).No.33004 OF 2019(A)

universities cannot dilute the standards prescribed by

AICTE, as they would have the power to stipulate

enhanced norms and standards.

19. But in the instant case, the matter is not with

regard to the affiliation whereby the decision of the

University in initiating the process of selection for the

post of Vice-Chancellor, is deviated by an act of the

Syndicate. The question with regard to the applicability

of UGC Regulation in the process of appointment of

Vice-Chancellor asking for issuance of a writ of quo

warranto came to be pondered by the Division Bench of

Madurai Bench of Madras High Court in K.V Jeyaraj

and another (supra) wherein it was noticed that the

dispute was not of factual nature but a legal dispute as

holding of the office of Vice-Chancellor was questioned on

the premise that a person to be appointed to the post

should be a distinguished academician with a minimum

ten (10) years of experience as the Professor in the

University or ten (10) years of experience in an equivalent

position in a reputed research and/or academic WP(C).No.33004 OF 2019(A)

administrative Organization and the contesting

respondent did not have minimum 10 years of experience

as Professor but 31 years of teaching experience as

Associate Professor. The question was also framed

whether the University Regulations 2010 are mandatory

or directory and whether they would have an overriding

effect upon the provisions of the University Act and

statutes. After noticing the regulations and the provisions

of the Act, Madurai Bench in penultimate paragraph held

that since the contesting respondent did not satisfy the

eligibility criteria, stipulated by UGC Regulation 2010 for

appointment as Vice-Chancellor, it cannot be white

washed on the plea that the regulations were not

mandatory in nature. During the discussion, it also

surfaced that the University Grants Commission in its

487th meeting held on 18th & 19th of July 2012 decided to

scrap paragraph 7.3.0 of the Annexure to the 2010

Regulations, which was of no consequence as it was

pending approval of the Central Government.

20. The aforementioned judgement was challenged WP(C).No.33004 OF 2019(A)

in Supreme Court in Kalyani Mathivanan (supra) and by

noticing the provisions of Universality Act ie., Madurai

Kamaraj University Act, 1965 as well as University

Regulations 2010, the supreme Court in its penultimate

paragraph of the judgment held as follows:

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

62.5. The UGC Regulations, 2010 having not been adopted by the State of Tamil Nadu, the question of conflict between the State legislation and the Statutes framed under the Central legislation does not arise.

Once they are adopted by the State Government, the State legislation to be amended appropriately. In such case also there shall be no conflict between the State WP(C).No.33004 OF 2019(A)

legislation and the Central legislation.

63. In view of the reasons and finding as recorded above, we uphold the appointment of Dr Kalyani Mathivanan as Vice-Chancellor. Madurai Kamaraj University as made by G.O. (ID) No. 80, Higher Education (H2) Department, Government of Tamil Nadu dated 9-4-2012 and set aside the impugned common judgment and order dated 26-6-2014 passed by the Division Bench of the Madras High Court, Madurai Bench in K.V. Jeyaraj v. Chancellor of Universities'. The appeals are allowed but in the facts and circumstances of the case, there shall be no order as to costs.

In the aforementioned judgment, it has been held

that UGC Regulations 2010 are directory for the

Universities and colleges and the other higher educational

institutions under the purview of State Legislature as the

matter has been left to the State Government to adopt and

implement the Scheme.

21. Since the University Grants Commission did not

take any action under Section 14, the provisions of

Section 13 of the 2015 Act regarding the process for

appointment to the post of Vice-Chancellor would prevail

and not 2010 Regulations. Thus once Section 13

envisaged the constitution of members of the Search

Committee, the argument of the learned counsel for the WP(C).No.33004 OF 2019(A)

petitioner to the effect that the Chief Secretary would not

be a competent person to be a member of Search

committee as he would have a control over the University,

pales into insignificance.

The questions raised have been answered in the

above manner. Writ petition is devoid of merit,

accordingly it is dismissed.

SD/-

                                           AMIT RAWAL

   sab                                          JUDGE
 WP(C).No.33004 OF 2019(A)



                            APPENDIX
   PETITIONER'S/S EXHIBITS:

   EXHIBIT P1          TRUE COPY OF THE NOTIFICATION NO.J3-
                       345-2017-H.EDN. DATED 30.7.2018

INVITING APPLICATIONS FROM ELIGIBLE CANDIDATES FOR THE SELECTION OF VICE- CHANCELLOR IN APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY.

EXHIBIT P2 TRUE COPY OF THE RELEVANT PROVISIONS OF HE UGC REGULATIONS 2010, PERTAINING TO THE QUALIFICATIONS AND PROCESS OF SELECTION OF VICE-CHANCELLORS.

EXHIBIT P3 TRUE COPY OF SECTION 13, SUB-SECTIONS (4), (5) AND (6) OF THE APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY ACT 2015.

EXHIBIT P4 TRUE COPY OF GOVERNMENT ORDER, GO(P)NO.392/2010/H.EDN., DATED 10.12.2010, THIRUVANANTHAPURAM, ADOPTING AND IMPLEMENTING EXT.P2 UGC REGULATIONS 2010, WITH EFFECT FROM 18.9.2010.

EXHIBIT P5 TRUE COPY OF THE TIMES OF INDIA REPORT DATED 9.9.2018, INDICATING THAT FOUR CANDIDATES WERE SHORT LISTED AND INVITED FOR A "CONVERSATION" WITH THE SEARCH COMMITTEE ON 11.9.2018.

EXHIBIT P6 TRUE COPY OF THE 2ND NOTIFICATION NO.J3-407-H.EDN. DATED 21.12.2018 INVITING APPLICATIONS FROM ELIGIBLE CANDIDATES FOR THE SELECTION OF VICE- CHANCELLOR IN APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY.

EXHIBIT P7 TRUE COPY OF THE NOTIFICATION DATED 21.2.2019 OF THE REGISTRAR OF THE APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY INDICATING THE 1ST RESPONDENT HAD BEEN APPOINTED AS THE VICE CHANCELLOR ON 19.2.2019.

WP(C).No.33004 OF 2019(A)

EXHIBIT P8 TRUE COPY OF THE REPLY DATED 29.5.2019 FROM THE 4TH RESPONDENT HIGHER EDUCATION DEPARTMENT TO AN RTI APPLICATION OF THE PETITIONER (WITH ENGLISH TRANSLATION.)

EXHIBIT P9 TRUE COPY OF THE REPLY DATED 12.6.2019 FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE TO AN RTI APPLICATION FROM THE PETITIONER.

EXHIBIT P10 TRUE COPY OF THE REPLY DATED 17.6.2019 FROM THE GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA TO AN RTI APPLICATION FROM THE PETITIONER.

EXHIBIT P11 TRUE COPY OF THE REPLY DATED 25.7.2019 FROM THE 4TH RESPONDENT HIGHER EDUCATION DEPARTMENT TO AN RTI APPLICATION FROM THE PETITIONER (WITH ENGLISH TRANSLATION.)

EXHIBIT P12 TRUE COPY OF THE REPLY DATED 4.10.2019 FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE TO AN RTI APPLICATION FROM THE PETITIONER.

EXHIBIT P13 TRUE COPY OF THE REPLY DATED 23.10.2019 THE GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA TO AN RTI APPLICATION FROM THE PETITIONER.

EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED 7.11.2019 FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE IN FORMING THE PETITIONER THAT COPIES OF THE DOCUMENTS PERTAINING TO THE SEARCH COMMITTEE'S RECOMMENDATIONS 'IN WRITING' OF THE CREDENTIALS OF THE CANDIDATES, COULD BE OBTAINED IF THE REQUIRED FEE WAS REMITTED.

WP(C).No.33004 OF 2019(A)

EXHIBIT P15 TRUE COPY OF THE CHALAN RECEIPT DATED 12.11.2019 INDICATING THAT THE PETITIONER HAD REMITTED THE REQUIRED FEE FOR OBTAINING DOCUMENTS FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE.

EXHIBIT P16 TRUE COPY OF THIS INFORMATION DATED 14.11.2019 FROM THE 2ND RESPONDENT CHANCELLOR'S OFFICE CONTAINING THE MINUTES OF THE SEARCH COMMITTEE MEETINGS ALONG WITH THE INDIVIDUAL AND SEPARATE RECOMMENDATIONS OF ITS MEMBERS.

EXHIBIT P17 TRUE COPY OF THE RELEVANT PAGES OF THE UGC MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATION (2ND AMENDMENT) REGULATIONS 2013, NO.F.1-2/2009 (EC/PS) VI VOL-II, DATED 13.6.2013

EXHIBIT P18 TRUE COPY OF THE RELEVANT PAGES, PERTAINING TO THE SELECTION OF A VICE CHANCELLOR, IN THE UGC REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNVIERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATION, 2018, NO.F.1-2/2017 (EC/PS, DATED 18.7.2018

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(A) PHOTOCOPY OF THE NOTIFICATION NO GS6-

4061/2017 DATED 19.2.2019 OF THE 2ND RESPONDENT

EXHIBIT R3(a) TRUE COPY OF THE UGC REGULATION NO.F.1-2/2009 (EC/PS) V(I) VOL-II DATED 13/06/2013 (MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN THE UNIVERSITIES IN THE HIGHER EDUCATION (2ND AMENDMENT), REGULATIONS 2013.