Kannur University Act, 1996 – Section 10(9) and Section 10(10) – Re-appointment of Vice-Chancellor – It is the Chancellor who has been conferred with the competence under the Act 1996 to appoint or reappoint a Vice-Chancellor

i) Notification dated 27.10.2021 constituting the Selection Committee

ii) Notification dated 01.11.2021 inviting applications for selection of Vice-Chancellor

iii) Letter of the Minister for Higher Education / Pro-Chancellor dated 22.11.2021 recommending reappointment of the Respondent No. 4

iv) Notification dated 22.11.2021 withdrawing the Notification dated 01.11.2021 inviting applications from the elligible candidates

v) Letter of the Minister for Higher Education / Pro-Chancellor proposing reappointment of Vice-Chancellor

vi) Reappointment Notification dated 23.11.2021

i) Whether reappointment is permissible in respect of a Tenure Post?

ii) Whether the outer-age limit stipulated under sub-section (9) of Section 10 of the Act 1996 is applicable in the case of reappointment of Vice-Chancellor?

iii) Whether the reappointment of Vice-Chancellor has to follow the same process as a fresh appointment under Section 10 of the Act 1996?

iv) Did the Chancellor abdicate or surrender his statutory power of reappointment of the Vice-Chancellor?

” ‘Intention of the Legislature’ is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.”

[Lord Watson in Salomon v. Saloman & Co., (1897) AC 22, 38]

“No.G53 1283/2021

In exercise of the powers conferred under Section 10, read with sub sections (1)(2) and (3) of the Kannur University Act, 1996, the Chancellor of the University is pleased to constitute a Selection Committee comprising of the following members to make recommendation (s) towards the selection and appointment of a new Vice Chancellor in the said University.

1. Dr. B. Ekbal – (Nominee of the University Senate) (Former Vice Chancellor, University of Kerala and former Member, State Planning Board)

2. Prof. B. Thimme Gowda – (Nominee of the University Grants Commission) Vice Chairman, Karnataka State Higher Education Council (Former Vice Chancellor, Bangalore University & Karnataka State Rural Development and Panchayat Raj University

3. Prof. VK Ramachandran (Nominee of the Chancellor) Vice Chairperson, Kerala State Planning Board (Former HoD, Economic Analysis Unit, Indian Statistical Institute, Bengaluru)

I, Prof. VK Ramachandran shall be the Convener of the Committee and the Committee shall tender its recommendation within three months from the date of this order as laid down in sub section (4), Section 10 of the Kannur University Act, 1996.

“B2/88/2021/H. EDN Dated: 1.11.2021

In exercise of the powers conferred by Section 19(1) (2) and (3) of the Kannur University Act, 1996, the Chancellor, Kannur University has constituted a Selection Committee to make recommendations for the appointment of a new Vice Chancellor, in the Kannur University.

Applications are invited by the Selection Committee for the selection of Vice Chancellor, Kannur University from eligible candidates. The qualification and experience are as prescribed in Clause 7.3(i) of the UGC notification dated 18.7.2018. Applicants should not have completed sixty years of age as on the date of notification, as provided in section 10 of Kannur University Act, 1996.

Applications in hard copy and soft copy (by e mail only) with bio data, proof of experience, qualifications etc., in the attached format should reach the Additional Chief Secretary to Government, Higher Education Department, Government Secretariat, Annexe II. Fourth Floor, Thiruvananthapuram – 695001 and highereducationbdepartment@gmail.com on or before 5 PM on 30.11.2021.

“D.O. LETTER NO. 401/2021/M (H.Edn & SJ) DATED 22/11/2021

Honourable Governor,

Kind attention of Honourable Governor is invited to the fact that the term of office of Ex. Vice Chancellor of Kannur University is ending on November 23,2021 Notification for the selection of new Vice Chancellor was issued on November 1.2021.

Dr. Gopinath Raveendran is currently holding the post of Vice Chancellor. He is an eminent academician and able administrator. He has ushered the University to greater heights. A learned professor with an excellent academic record, he was Professor of History of Jamia Millia Islamia, Delhi. He has also been Academic Visitor, Dept. of Social Police, London School of Economics and Political Science and has administrative experience as Honorary Director, Nelson Mandela Centre for Peace and Conflict Resolution, Jamia Millia Islamia and as Member secretary, ICHR. He has indeed been an asset to Kannur University, an institution still in its infancy.

The remarkable achievements of the university in academic rating is the result of the hard work put in by the faculty and staff of the University under the able leadership of Dr. Gopinath Raveendran. The NAAC has upgraded the status of the University from B to B. He was instrumental in digitizing the University by introducing Digital Document Filling System (DDFS) and enthusiastically directed the University to amend its status in tune with UGC Regulations, 2018. He also initiated steps for starting a separate Research Directorate with the aim of improving research standards in the University. During his tenure, the University signed several MOUs with reputed national and international organization. Under his stewardship, the University also started a Business incubation Centre and established an Institution’s Innovation Council to encourage the innovative potential of researchers and students.

Kannur University under his able leadership, rose to eminence as one of the premier university in the country. It is therefore my considered opinion that Dr. Gopinath Raveendran may be allowed to continue for another term as Vice Chancellor. Its continuation will immensely benefit Kannur University Section 10 (10) of Kannur University Act provides for the reappointment of incumbent Vice Chancellor for a second term and- does not stipulate any restriction on age.

I request your Excellency to be pleased to cancel the notification dated 27.10.20 appointing a Search-cum-Selection committee for identifying the person to be appointed as Vice Chancellor. I also request Your Excellency’s pleasure in cancelling the notification dated 1.11. 2021 and in re-appointing Dr. Gopinath Raveendran for a continuous second term as Vice Chancellor of Kannur University. Thank you.

Sri Arif Mohammed Khan

Excellency The Governor of Kerala Bhavan”

The notification no. B2/88/2021/H.EDN dated 01/11/2021 inviting application for the selection of Vice-Chancellor to Kannur University is withdrawn.

Honourable Chancellor,

The term of Dr. Gopinath Raveendran, Vice Chancellor of Kannur University will cease on 23 November 2021.

As per D.O. No. GS3-1283/2021 dated 22.11.2021 from the office of your Excellency, steps have been taken to withdraw notification inviting applications to select a Vice Chancellor for Kannur University. As Pro Chancellor of Kannur University. I consider it my privilege to propose the name of Dr. Gopinath Raveendran, the present incumbent Vice Chancellor to be re-appointed as Vice Chancellor of Kannur University for a second continuous term beginning from 24.11.2021.

Thank you,

Sri Arif Mohammed Khan

His Excellency, The Governor of Kerala

Chancellor, Kannur University.”

“GOVERNMENT’S SECRETARIAT

KERALA RAJ BHAVAN

NOTIFICATION

No.GS3.1283/2021(3)

In exercise of the powers conferred under the Kannur University Act, 1996 and the UGC Regulations, 2018, the Chancellor of the University is pleased to re-appoint Dr. Gopinath Ravindran (Professor, Department of History, Jamia Millia Islamia, New Delhi) as the Vice Chancellor of the Kannur University, for a period offour years, with effect from 24th November, 2021.

By order of the Government/Chancellor (Dr. Davendra Kumar Dhodawat, IAS) Principal Secretary to Government/Chancellor.”

“6. From the perusal of the provisions of Section 10, it is evident that Vice-Chancellor can be appointed by Chancellor on the recommendation of the committee appointed by him which consists of three members with one elected by Senate, another by Chairman of the University Grants Commission and third by the Chancellor. The chancellor shall appoint one of the members of the committee to his convenience and committee shall make its recommendation within a period of three months of appointment. University is not precluded to unanimously recommend the name of only one person and in that process, Chancellor shall appoint that person to be Vice- Chancellor, but, it may submit a panel of three names within the period and the Vice-Chancellor shall be appointed from among the persons in the panel. The aforementioned procedure at the time of the initial appointment, for a period of four years, in 2017 was followed. The first term was expiring after the completion of four years and it is in that background, notice Ext.P2 was published but the Secretary of Department of Higher Education notified of withdrawal with immediate effect, for as per provisions of Sub section (10), Vice Chancellor can be re-appointed, but the term is restricted to two (2).

It is now to be seen as to whether on the basis of statutory procedure provided in the Act ibid and on analysis of judgments cited, can this Court interfere in the process of appointment or not.

xxx xxx xxx

10. The expression ‘appointment’ and ‘re-appointment’ have different connotation; for undergoing the re-appointment the qualifications are prescribed under Clause 7.3 of the UGC regulations ibid and there is no age bar and for reappointment, criteria of age would not be applicable. No doubt, for appointment, the entire procedure prescribed under Section 10 is to be followed. At the time of the initial appointment, in the year 2007, all the parameters were considered for appointment as per the procedure laid down therein but for re-appointment as per proviso to sub-Section (10) there is no requirement for undertaking the task of constitution of a Selection Committee as was done during the initial appointment. As per the pleading and submissions, there has not been any incident or lack of integrity, transparency as provided in the UGC regulations. Considering the provisions of applicable laws to my mind, notice Ext.P2 was withdrawn vide Ext.P3 on 22.11.2021 for the simple reason the party respondent i.e., the 4th respondent was not disqualified at the time of initial appointment. It cannot be said that there was any violation of the statutory provisions for reconsideration for the purpose of re-appointment, thus, in such circumstances, writ of quo-warranto cannot be issued. ” (Emphasis supplied)

“20. On an analysis of the said provision, it is clear that the Vice Chancellor shall be appointed by the Chancellor on the recommendation of a committee appointed by him for the purpose. In the case on hand, the appointment of the 4th respondent in the year 2017 for a period of 4 years in contemplation of sub-Section 10 of Section 10, and in contemplation of law is admitted. It is also an admitted fact that the eligibility and qualification of the 4th respondent at the initial stage of appointment is undoubted. It is also quite clear and evident from the provisions of Section 10 that a clear cut procedure and modalities are prescribed in the said provision to select the Vice Chancellor.

21. One of the important aspects that is to be noted is that as per subSection 9 of Section 10, it is clearly specified that no person who is more than sixty years of age shall be appointed as Vice-Chancellor. But, when it comes to sub-Section 10 of Section 10, it is made explicit that the Vice-Chancellor shall hold office for a term of four years from the date on which he enters upon his office and shall be eligible for re-appointment. However, interdiction is made as per the proviso thereto, by making it clear that, a person shall not be appointed as Vice Chancellor for more than 2 terms. It is significant to note that sub-Section 10 of Section 10 of Act, 1996 is conjunctive in nature and not distinctive. Which thus means, the statute itself has made a clear cut procedure with respect to the re-appointment and has made it clear that the Vice Chancellor who holds the office for a term of 4 years consequent to the initial appointment, shall be eligible for reappointment.

22. No doubt, if there is any manner of shortcomings on the part of the Vice Chancellor initially appointed, so as to affect the academic excellence, moral issues or otherwise to have any adverse consequence to hold the post of Vice Chancellor, it would be different. But, this is a case where the appellants have not raised any sort of such allegations against the 4th respondent. Merely because a notification was issued to conduct a selection, that by itself will not dissuade the Government/Chancellor to recommend and re-appoint the existing Vice Chancellor.”

xxx xxx xxx

30. Therefore, after assimilating the factual and legal situations and understanding the issues, we are of the considered opinion that in the matter of re-appointment, the age bar prescribed under Section 10(9) for appointment of the Vice Chancellor would not come into play, because the Vice Chancellor who has appointed before attaining the age of 60 years, is entitled to continue for a term of four years and shall be eligible for re-appointment.

31. Taking into account all the above intrinsic aspects with regard to the appointment of the Vice Chancellor, eligibility, qualification etc., and also the relevant inputs of the UGC Regulations, 2018, we have no hesitation to hold that the learned single Judge was right in dismissing the writ petition. Even though various contentions were advanced and several judgments were cited by the respective Senior Counsel in regard to the intricacies of issuance of a writ of quo warranto, we are not inclined to go into that question, since we find that the re- appointment of the 4th respondent was made in accordance with law, and therefore he can never be said to be an usurper to the post. Having rendered the findings as above, the arguments advanced strenuously by the learned Senior Counsel Sri. George Poonthottam, relying upon the term ‘eligibility’, contained under Section 10(10) of the Act 1996 in the matter of making reappointment by referring to various legal dictionaries, we do not find much force in the same.

32. Before we part with the judgment, it is only appropriate that the Press release issued by the office of the Chancellor (Honourable Governor) of the University is discussed. On a perusal of Annexure A2 Press Release dated 03.02.2022, it is clear that right from the publication of selection notification dated 01.11.2021 issued on behalf of the selection committee uptill the reappointment are narrated.

33. Be that as it may, it is clearly specified in the Press Release that on 23rd November, 2021, Kerala Raj Bhavan issued a notification re-appointing the 4’h respondent as the Vice Chancellor of the Kannur University. Other aspects are also dealt with in the Press Release, which we do not propose to traverse through, being unnecessary.

34. Taking into account the factual and legal circumstances deliberated above, we are of the clear and considered opinion that the appellants have not made out any case of jurisdictional error or other legal infirmities susceptible to be interfered with in the judgment of the learned single Judge.” (Emphasis supplied)

a. The impugned judgment proceeds on an erroneous assumption that once an appointment to the post of Vice-Chancellor is made through proper channel, the reappointment of the same incumbent to such office upon expiry of the first term can be made bypassing the original procedure prescribed, including the constitution of a Search-cum-Selection Committee as mandated by 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 (for short, the UGC Regulations). While doing so the High Court has assumed that there is a distinction in procedure for appointment and reappointment, whereas there is no such distinction recognised under the service law jurisprudence.

b. If the impugned judgment is to be upheld, then for reappointment as a Vice-Chancellor under the proviso to Section 10(10) of the Kannur University Act, there is no requirement for undertaking the exercise of forming and consulting the Selection Committee as mandated under the UGC Regulations and as was done during the initial appointment. Going by this rationale, a person can be reappointed, even though there may be better qualified and more deserving candidates eligible and qualified to hold the office. This obviously is not the letter and spirit of the Kannur University Act and the UGC Regulations, which aims at providing the highest standards of education. In such circumstances, it is essential to follow the entire selection process, even in cases of reappointment.

c. On the date of reappointment i.e., 24.11.2021, the respondent No. 4 had crossed the age of 60 years which is the outer age limit for being appointed to the post of Vice-Chancellor under Section 10(9) of the Kannur University Act. Therefore, the respondent No. 4 was not eligible for being reappointed as the Vice-Chancellor in 2021.

d. The notification dated 01.11.2021 was withdrawn only with a view to overcome the hurdle of the age limit, and thereby, bypass the prescribed procedure for appointment.

e. Section 10(10) of the Kannur University Act is very specific and clear. The language of the provision unequivocally spells out the legislative intent that if a person is once given an appointment, it would only enable him an opportunity to be considered for fresh appointment for one more term. The express language of the provision does not grant a candidate, who is already appointed as the Vice-Chancellor, to evade the mandatory eligibility criteria and to be appointed as the Vice Chancellor again. The distinction drawn by the High Court between the terms “appointment” and “reappointment” relying on Section 10(10) is totally perverse.

f. The High Court erred in proceeding on the premise that since the respondent No. 4 was eligible for appointment on the first occasion, he was also entitled for reappointment and thus the entire process for appointment need not be undertaken afresh. This appears to be the logic behind the withdrawal of Notifications calling for fresh applications.

g. The High Court ought to have appreciated that the constitution of the Select Committee and preparation by the panel is prerequisite for the appointment of Vice-Chancellor of University. If the contention that the UGC Regulations do not impose any age restriction for appointment as the Vice-Chancellor is accepted, then the UGC Regulations do not provide for the reappointment of the Vice-Chancellor as well.

h. Section 10(10) of the Kannur University Act contemplates reappointment and not an extension of the term of the Vice-Chancellor. For this reason, the notification dated 01.11.2021 was issued calling for applications from eligible candidates for the post of Vice-Chancellor. The said notification stipulated that the candidate must satisfy the eligibility criteria mentioned in Clause 7.3(i) of the UGC Regulations, and should not be more than 60 years of age on the date of issuing the notification. When appointment is made by virtue of Section 10(10), the law does not provide an exemption to be followed in the case of an incumbent who is holding the post of Vice-Chancellor.

i. The reliance placed by the High Court on the decisions of the Rajasthan High Court and Jammu & Kashmir High Court, in its impugned judgment is not correct as the two High Courts had failed to take into consideration the UGC Regulations which provides for the method and procedure for appointment of the Vice-Chancellor. The appointment of the Vice-Chancellor can only be done in accordance with the procedure as laid therein and the central legislation fully occupies the issue.

j. The reappointment was based on the request of the State Government and not on any independent evaluation. Such a request is wholly unwarranted as the State Government has no say in the appointment or reappointment of the Vice-Chancellor.

k. The initial appointment of the respondent No. 4 as the Vice-Chancellor was also contrary to the provisions of the UGC Regulations 2010 more particularly Clause 7.3, which stipulates that the appointment shall be made after following the due process of identification of 3 to 5 names by the Search-cum-Selection Committee. However, the minutes of the Search-cum-Selection Committee dated 20.11.2017 indicates that only one single name, i.e., the name of respondent No. 4, was recommended. Hence, the initial appointment itself being void ab initio, the reappointment is also void.

(i) S.P. Gupta v. Union of India (First Judges Case), 1981 Supp SCC 87,

(ii) State of West Bengal v. Anindya Sundar Das, 2022 SCC OnLine SC 1382,

(iii) State of Himachal Pradesh v. Kailash Chand Mahajan, 1992 Supp (2) SCC 351,

(iv) Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179,

(v) Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S., 2022 SCC OnLine SC 1473,

(vi) Dr. L.P. Agarwal v. Union of India and Others, (1992) 3 SCC 526,

(vii) Dept. of Commerce v. US House of Representatives, 1999 SCC OnLine US SC 10,

a. The seminal issue which arises in the present case is the conflict between the provisions of the UGC Regulations, which is a subordinate legislation made under Section 26(1)(e) and (g) respectively of the University Grants Commission Act, 1956 (UGC Act), and the State laws made under Entry 25 of List III dealing with education.

b. The UGC Regulations make express provisions for the manner in which a selection has to be made for the appointment of a Vice-Chancellor through a Search-cum-Selection Committee consisting of persons of eminence in the sphere of higher education and who are not connected in any manner with the University concerned or its colleges. The Visitor/Chancellor shall appoint the Vice-Chancellor out of the Panel of three-five names recommended by the Search-cum-Selection Committee.

c. The different state laws made under Entry 25 of List III dealing with the same subject have provisions which give a dominant status to the State Governments, and do not provide for the identical procedure provided for by the UGC Regulations.

d. It has been held recently, in a judgment of this Court in Gambhirdan K. Gadhvi (supra) (2 Judges) which is followed in Anindya Sundar Das (supra) (2 Judges), that the UGC Regulations form a part of the UGC Act, 1956 for the reason that it requires that the regulations made under the Act shall be laid before the Parliament. Even though Section 26 of the UGC Act does not provide for these regulations being part of the Act, nevertheless the Court held that the mere fact of laying would result in the regulations being made part of the Act.

e. A catena of judgments of this Court have held to the same effect. What has been missed in holding so is that the subordinate legislation, whether of rules or regulations, could be read as part of the Act, but, for different purposes. The real effect of this statement of the law is that Article 254 of the Constitution would have to be read as – where a law made by Parliament as well as the regulations or rules made under any Central Act is repugnant to the provisions of a law made by the legislature of a State, the law made by Parliament as well as the regulations or rules made under any Central Act will prevail. The provision will now mean that the law made by Parliament, or the regulations or rules made under any Central Act, if repugnant to the law made by the legislature of a State, then the law made by the State, to the extent of the repugnancy, shall be void.

f. By reading as aforesaid, the consequences would be far reaching. For this purpose, one should look at the very nature and source of making regulations or rules under the Central Act. The Government of India (Allocation of Business) Rules, 1961 would allocate the particular subject of the Act to a particular minister, who would then have to decide on what the rule should be. It is possible, as in the case of the UGC Act, that many of the provisions made in the rules or regulations may not find a place in the body of the Act, and, the only provision, which could be possibly invoked would be the main provision of subsection (1) of the rule making section, in which it would be stated that the regulations or rules may be made for the purposes of the Act. In the case of the UGC Act, the regulation making power is conferred upon the UGC, a statutory body acting under the Government, and not on the Government itself.

g. The result is that a vast unbridled arbitrary power is vested in the executive where no definite guidelines are provided for in any particular section of the Act, and where the Act is totally silent on the aspects that are covered by the legislations. Such an arbitrary unguided power by itself would violate Article 14 of the Constitution of India, and the regulation making power would have to be struck down.

h. Additionally, the procedure and method of making regulations or rules which have to be laid before the House is contained in Rule 235 of “the Rules of Procedure and Conduct of Business in Lok Sabha”, which states: “The Speaker shall, in consultation with the Leader of the House, fix a day or days or part of a day as the Speaker may think fit for the consideration and passing of an amendment to such regulation, rule, sub-rule, bye-law etc., of which notice may be given by a member:”

i. In Parliamentary Procedure: Law Privileges Practice and Precedents by Subhash C. Kashyap, Third Edition Page 596, it is stated that where a statute provides that rules shall be laid before Parliament and shall be subject to a modification made by Parliament, if a member gives a notice for modification of the Rules, the Government is bound to find time for discussion of the motion. The motion for modification contains a recommendation to the Rajya Sabha for concurrence, and the effect of the passing of the motion by both the Houses is that the Government is bound to amend the rules accordingly.

j. It has been held in the judgment in Gambhirdan K. Gadhvi (supra) that the UGC regulations, though not so stated in the UGC Act, are part of the UGC Act, and hence, would prevail over the repugnant sections of the State Act, which would be rendered void to the extent of the repugnancy.

k. A series of judgments of this Court state that subordinate legislation becomes a part of the Act, even though the section itself does not say so. These include State of U.P. v. Babu Ram Upadhya, (1961) 2 SCR 679, Express Newspaper (P) Ltd. v. Union of India, 1959 SCR 12, U.P. Power Corpn. Ltd. v. NTPC Ltd., (2009) 6 SCC 235, Udai Singh Dagar v. Union of India, (2007) 10 SCC 306, and State of T.N. v. Hind Stone, (1981) 2 SCC 205.

l. On the other hand, there is a line of judgments which states that unless the Act provides that the rules be deemed as enacted in the Act, a provision of the rule cannot be read as a part of the Act. This includes Hotel Balaji v. State of A.P., 1993 Supp (4) SCC 536, Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183, and State of Mysore v. H. Sanjeeviah, (1967) 2 SCR 361.

m. None among these aspects which are crucial to the interpretation of Article 254 of the Constitution have been considered anywhere in the judgments on this issue, of whether the UGC Regulations are equivalent to the laws made by Parliament or not. This being so, the judgments being sub silentio, would not have any binding precedent.

n. The judgments of this Court relating to the UGC Act in Gambhirdan K. Gadhvi (supra) and Anindya Sundar Das (supra) are sub silentio and would not have any binding precedent, as great violence is being done to the Constitution, far beyond the intention of the founding fathers of the Constitution.

The reliance was placed on the decisions of this Court in Municipal Corpn. of Delhi v. Gurnam Kaur, (1989) 1 SCC 101, para 12 and State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, para 41.

a. The High Court has rightly observed that the age bar prescribed under Section 10(9) for appointment of the Vice-Chancellor would not be applicable at the time of reappointment as the Vice-Chancellor who was appointed before attaining the age of 60 years, is entitled to continue for a term of four years and shall be eligible for reappointment under Section 10(10) of the Act 1996.

b. Section 10(9) of the Act 1996, clearly specifies that no person who is more than sixty years of age shall be appointed as Vice-Chancellor. But, when it comes to Section 10(10) of the Act 1996, it states that the Vice Chancellor shall hold office for a term of four years from the date on which he enters upon his office and shall be eligible for reappointment. However, the proviso makes it clear that a person shall not be appointed as Vice-Chancellor for more than 2 terms. Section 10(10) of the Act should be read conjunctively and not distinctively. The statute itself has provided for the procedure with respect to the reappointment and has made it clear that the Vice-Chancellor holding office shall be eligible for reappointment. The other eligibility criteria prescribed do not, therefore apply to ‘reappointment’ under Section 10(10). Hence, the reappointment is not to be considered as a fresh appointment upon completion of the first term.

c. The age limit has been fixed even in the matter of reappointments in the Mahatma Gandhi University Act, 1985; Kerala Agricultural University Act, 1971; APJ Abdul Kalam Technological University Act, 2015; and the Thunchath Ezhuthachan Malayalam University Act, 2013. Therefore, the statute would explicitly specify the age limit in case of reappointments and when the statue does not provide for it, the age limit prescribed for appointment cannot be applied even in the case of reappointments.

a. The questions of law, as formulated by the appellants are procedural in nature.

b. This Court in Anindya Sundar Das (supra) on similar facts concerning reappointment of Vice-Chancellor of Calcutta University, clarified that reappointment does not entail the same procedural formalities as appointment and there is a clear distinction in law between the two.

c. The High Court proceeded on the correct premise that Section 10(10) read with Clause 7.3 of the UGC Regulations only prescribes the procedure for the initial appointment to the post of Vice-Chancellor. The respondent No. 4 at the time of initial appointment fulfilled all the necessary qualifications required to be appointed, and therefore, even at the time of reappointment such eligibility conditions stood fulfilled. Clause 7.3 does not talk of reappointment and thus would not be applicable to the respondent No. 4 since the reappointment was not a fresh appointment by any stretch of imagination.

d. Section 10(9) and Section 10(10) respectively are two separate & distinct provisions and as such should be read conjunctively and not disjunctively.

e. Neither Section 10(10) nor the UGC Regulation prescribe for any limitation on reappointment of a person as Vice-Chancellor. Section 10 (9) only specifies that no person shall be appointed as Vice- Chancellor above the age of 60. The term reappointment has, in the wisdom of the legislature, not been used in the Statute for the express purpose that Section 10(10) existed and to facilitate the continuation of eligible, qualified and experienced person on such post.

a. The plain reading of regulation 7.3, indicates that the selection of ViceChancellor should be through proper scrutiny of merit by a panel of 3 to 5 persons (Search-cum-Selection Committee) through a public notification. The Search-cum-Selection Committee should be of persons of eminence in the sphere of Higher Education and the members should not be in any manner connected with the university concerned or its colleges. The Regulations further mandate that one of the members of the Search-cum-Selection Committee shall be nominated by the UGC for selection of Vice-Chancellor of State. In the present case, Regulation No. 7.3 of the UGC Regulations has not been complied with at all and therefore on this ground alone the reappointment of the respondent No. 4 as the Vice-Chancellor should be cancelled by a writ of quo-warranto.

b. The State Government having adopted the UGC Regulations, the Regulations made by the Parliament under Entry 25 of List III shall prevail over the State legislation. Once the UGC Regulations prescribe the procedure and method for appointment of Vice- Chancellor, the University has to comply with the Regulations, which has not been followed in the present case. Therefore, the High Court erred in not following the UGC Guidelines.

Kerala Raj Bhavan strongly refutes the claim in some news reports that it was on the direction of Hon’ble Governor that the name of Dr. Gopinath Ravindran was suggested for reappointment as Vice Chancellor, Kannur University. The truth is that the same was initiated by the Chief Minister and Higher Education Minister.

To set the record straight, Raj Bhavan would like to place the chronology of events on the 21st, 22nd and 23rd of November, 2021.

The tenure of the Vice Chancellor, Kannur University was to end on the 23rd of November. A selection committee had already been constituted vide notification dated 27.10.2021 to select and appoint a new Vice Chancellor.

The Additional Chief Secretary, Higher Education Department, Government of Kerala had also issued a notification dated 01.11.2021 on behalf of the Selection Committee to invite the applications to the post of the Vice Chancellor.

While this process was on 21st November 2021, as deputed by Chief Minister, Shri K.K. Raveendranath, Legal Adviser to Chief Minister, met Hon’ble Governor at Kerala Raj Bhavan at 11.30 am. He conveyed to Hon’ble Governor, the Government’s desire to reappoint Dr. Gopinath Ravindran as Vice Chancellor and informed that a formal request to this effect from the Minister for Higher Education was on the way to Raj Bhavan.

Hon’ble Governor, who had a different view on the matter, informed him that the proposal appeared legally untenable since the due process of selection was already in motion. On this, the Legal Advisor informed that the Government has examined the matter in detail and that the request was legally sound to withstand any legal scrutiny. He informed that Government had the legal advice and produced some typed papers.

Hon’ble Governor inquired about its source, as it was unsigned.

The Legal Advisor to the Chief Minister said it was the opinion of the Advocate General of Kerala and repeated the plea to consider the request of the Government to reappoint Dr. Gopinath Ravindran as Vice Chancellor, Kannur University.

At this juncture, Hon’ble Governor said the instant opinion said to be from Advocate General but without his signature and seal, was of no significance.

To this, the Legal Advisor said that he will produce the legal opinion bearing the signature and seal of Advocate General without delay.

As submitted by Legal Advisor to the Chief Minister earlier, a letter written by Dr. R. Bindu, Minister for Higher Education reached Raj Bhavan at 01.30 pm on 22.11.2021. The letter had highlighted Dr. Gopinath Ravindran s capabilities and desirability to be appointed for another term as Vice Chancellor.

In this letter, she had clearly requested Hon’ble Chancellor to “be pleased to cancel the notification dated 27.10.2021 appointing a Search-Cum-Selection Committee for identifying the person to be appointed as Vice Chancellor”.

She also requested Hon’ble Chancellor’s “pleasure in cancelling the notification dated 01.11.2021 and in re-appointing Dr Gopinath Ravindran for a continuous second term as Vice Chancellor of Kannur University”.

On 22nd November by 12.10 pm, Shri R. Mohan, Officer on Special Duty to Chief Minister and the Legal Advisor to Chief Minister had met the Hon’ble Governor, repeated their request and in support, submitted the signed legal opinion of the Advocate General which was addressed to the Additional Chief Secretary, Higher Education Department.

This opinion of the Advocate General substantially endorsed the request made earlier by Legal Advisor to Chief Minister in the personal meeting with the Governor and the request of the Higher Education Minister in her letter.

The eight-page opinion of the Advocate General which is addressed to the Additional Chief Secretary, Higher Education Department says that there was no legal bar in reappointing Dr. Gopinath Ravindran as Vice Chancellor, Kannur University, and that the age bar of 60 years fixed in the Kannur University Act, in as much as the same is contrary to the UGC Regulations, is without the authority of law and as such, inapplicable. The Advocate General summed up his opinion as under :-

“1. If the Hon’ble Chancellor accepts this recommendation, the notification dated 27.10.2021, appointing a Search Committee for identifying the person to be appointed as Vice Chancellor of the Kannur University may be withdrawn.

2. Pro-Chancellor may be permitted to submit necessary proposal for the re-appointment of the present incumbent of the post of Vice Chancellor of the Kannur University as Vice Chancellor of the said University for a further continuous term offour years”.

This opinion of the Advocate General was also forwarded separately to Kerala Raj Bhavan by the Minister for Higher Education on 22.11.2021 itself.

In the light of the legal opinion thus received from the Advocate General, the file was processed and Hon’ble Governor agreed to accept the proposal of the Higher Education Minister.

At 04.30 pm, Principal Secretary to Governor wrote to Additional Chief Secretary, Higher Education, conveying the decision of the Hon’ble Chancellor “to withdraw the Notification dated 27.10.2021 and subsequent Corrigendum dated 03.11.2021” and “to permit the State Government to submit necessary proposal for the reappointment of the present incumbent in the post of Vice Chancellor Kannur University”.

At 10.10 pm on the same day Kerala Raj Bhavan received the next letter from the Minister for Higher Education, informing that “steps have been taken to withdraw notification inviting applications” and that as Pro Chancellor, she was proposing the name of Dr. Gopinath Ravindran, the present incumbent Vice Chancellor to be re-appointed as Vice Chancellor of Kannur University for a second continuous term beginning from 24.11.2021.

Accordingly, on 23rd November, 2021, Kerala Raj Bhavan issued notification reappointing Dr. Gopinath Ravindran as Vice Chancellor, Kannur University.

Thus, the argument in the news reports that the Minister had only proposed a name in response to the Governor’s letter’, is far from the truth, which is clear from the chronology of events (which was also mentioned in Hon’ble Governors letter to Chief Minister on 08th December 2021).

In brief, the process of selection of Vice Chancellor, Kannur University which was set in motion vide Kerala Raj Bhavan notification dated 27.10.2021 came to an end consequent to the request from the Minister Higher Education, OSD to Chief Minister and Legal Advisor to the Chief Minister duly supported by the legal opinion of the Advocate General, Kerala, culminated in the reappointment of Dr. Gopinath Ravindran as Vice Chancellor, Kannur University. ” (Emphasis supplied)

“(1) The Vice-Chancellor shall be appointed by the Chancellor on the recommendation of a committee appointed by him for the purpose (hereinafter referred to as the committee).

(2) The committee shall consist of three members, one elected by the Senate, one nominated by the Chairman of the University Grants Commission and the third nominated by the Chancellor.

(3) The Chancellor shall appoint one of the members of the committee to be its convener.

(4) The committee shall make its recommendation within a period of three months of its appointment or within such further period, not exceeding one month, as the Chancellor may specify in this behalf.

(5) In case the committee unanimously recommends the name of only one person, the Chancellor shall appoint that person to be the Vice-Chancellor.

(6) In the case the committee is unable to recommend a name unanimously, it may submit a panel of three names to the Chancellor within the period specified in or under sub-section (4) and the Chancellor shall appoint one of the persons in the panel to be the Vice-Chancellor.

(7) In case the committee fails to make a unanimous recommendation as provided in sub-section (5) or to submit a panel as provided in subsection (6), each member of the committee may submit a panel of three names to the Chancellor and the Vice-Chancellor shall be appointed from among the persons mentioned in the panels.

(8) Non-submission of a panel under sub-section (7) by any member of the committee shall not invalidate the appointment of the Vice-Chancellor.

(9) No person who is more than sixty years of age shall be appointed as Vice-Chancellor.

(10) The Vice-Chancellor shall, hold office for a term of four years from the date on which he enters upon his office and shall be eligible for re-appointment:

Provided that a person shall not be appointed as Vice-Chancellor for more than two terms. “

(a) Appointment of a Vice-Chancellor by the Chancellor out of a panel of three names recommended by the search committee constituted by the State Government;

(b) No person above sixty years of age is eligible to be appointed as a Vice-Chancellor;

(c) Reappointment in respect of which, the power is vested in the Chancellor under Section 10(10); and

(d) The proviso attached to sub-section (10) of the Section 10 stipulating that a person shall not be appointed as Vice-Chancellor for more than two terms.

“7.3. VICE CHANCELLOR:

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.

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. ” (Emphasis supplied)

(a) The selection of the Vice-Chancellor should be through proper identification by a panel of 3-5 persons by constituting a Search-cum-Selection Committee through a public notification or nomination or a talent search process or a combination of all the four.

(b) The members of the Search-cum-Selection Committee should be persons of eminence in the field of higher education and they shall not be connected in any manner with the university concerned or its colleges.

(c) The Selection Committee for the purpose of preparing the panel 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. The panel shall place its recommendation before the Chancellor.

(d) One member of the Selection Committee would be nominated by the Chairman, UGC.

“Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and to oust the holder if his claim is not well founded, or if he has forfeited his right. “

“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 judicial order. 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 a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. 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 the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. (Emphasis supplied)

“22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact on the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India [(1993) 4 SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464], SCCpara 74.)

23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana (2002) 6 SCC 269.)”

“49. … The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.

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51. It is settled law by a catena of decisions that the court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain v. Union of India [(1993) 4 SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464] was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, may it be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person, that is, the non-appointee to assail the legality or correctness of the action and that a third party has no locus standi to canvass the legality or correctness of the action. Further, it was declared that public law declaration would only be made at the behest of a public-spirited person coming before the court as a petitioner. ” (Emphasis supplied)

“21. … the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority. (Emphasis supplied)

(i) Whether reappointment is permissible in respect of a tenure post?

(ii) Whether the outer age limit of sixty years for the appointment of Vice- Chancellor as stipulated under sub-section (9) of Section 10 of the Act 1996 is to be made applicable even in the case of reappointment of the Vice-Chancellor for one more term of four years?

(iii) Whether the reappointment of the Vice-Chancellor has to follow the same process as a fresh appointment by setting up a selection committee under Section 10(1) of the Act 1996?

(iv) Did the Chancellor abdicate or surrender his statutory power of reappointment of the Vice-Chancellor?

“TENURE IN OFFICE. Right to perform duties and receive emoluments thereof. “

“16. … Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. …”

“17. An employee appointed for a fixed period under the statute is entitled to continue till the expiry of the tenure and in such a case there can be no occasion to pass the order of superannuation for the reason that the tenure comes to an end automatically by efflux of time..”

“45. It would be appropriate to also analyze whether the reappointment of the VC has to follow the same process as a fresh appointment, by setting up a selection committee under Section 8(1) of the Act, as indicated by the Chancellor.

46. Section 8(6) stipulates the manner in which a vacancy in the office of the VC which occurs by reason of death, resignation, expiration of the term of office, removal or otherwise shall be filled up. The provision indicates that such vacancy shall be filled up in accordance with the provisions of sub-Section (1) of Section 8 of the Act. Section 8(6) has to be read in conjunction with Section 8(1) since the former expressly refers to the latter. The reference to the provisions of sub-Section (1) for filling up a vacancy on the expiration of the term of office will not obviously apply to a case of reappointment because the procedure contemplated by Section 8(1)(b) of a search committee would not attach to a reappointment. On this aspect, the High Court has correctly disagreed with the petitioner before it and noted that amended Section 8(2)(a) which provides for the re-appointment of a VCf for another term does not require that the procedure prescribed in Section 8(1) has to be followed for re-appointment” (Emphasis supplied)

“Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them…. Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise.. ” (Emphasis supplied)

“20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin’s Law Dictionary). In its ordinary meaning, the word “discretion ” signifies unrestrained exercise of choice or will; freedom to act according to one’s own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one s own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin’s Law Dictionary.)

21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (per Lord Halsbury, L. C., in Sharp v. Wakefield [(1891 AC 173: (1886-90) All ER Rep 651 (HL)]. (Also See S.G. Jaisinghani v. Union of India (AIR 1967 SC 1427).

22. The word “discretion” standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in it implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility…. ” (Emphasis supplied)

“27. In Kruger v. Commonwealth of Australia [(1997) 146 Aus LR 126] it is stated:

“Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention.”

28. The discretionary jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object sought to be achieved and the reasons for granting such wide discretion (See Narendra Singh v. Chhotey Singh [(1983) 4 SCC 131 : 1983 SCC (Cri) 788].

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29. A discretionary jurisdiction, furthermore, must be exercised within the four corners of the statute. [See Akshaibar Lal (Dr.) v. Vice-Chancellor, Banaras Hindu University [(1961) 3 SCR 386: AIR 1961 SC 619] and also para 9-022 of de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th Edn., p.445]. “

“26. … It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide Purtabpore Co. Ltd. v. Cane Commr. of Bihar [(1969) 1 SCC 308: AIR 1970 SC 1896], Chandrika Jha v. State of Bihar [(1984)2 SCC 41: AIR 1984 SC 322], Tarlochan Dev Sharma v. State of Punjab [(2001) 6 SCC 260 : AIR 2001 SC 2524] and Manohar Lal v. Ugrasen [(2010) 11SCC 557 : (2010) 4 SCC (Civ)524 : AIR 2010 SC 2210].

27. Similar view has been reiterated by this Court in Commr. of Police v. Gordhandas Bhanji (AIR 1952 SC 16), Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia [(2004) 2 SCC 65 : AIR 2004 SC 1159] and Pancham Chand v. State of H.P. [(2008) 7 SCC 117: AIR 2008 SC 1888] observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme.

28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner. ” (Emphasis supplied)

“… Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. “