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TMI Blog2022 (10) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... the order issued by the Special Secretary to the Government of West Bengal on 27 August 2021 re-appointing the incumbent VC of Calcutta University was set aside. The High Court has held that the VC had no authority to hold that office on the basis of the order of appointment. Both the State of West Bengal and Dr. Sonali Chakravarti Banerjee, the VC whose appointment has been set aside, are in appeal. 2. By a notification dated 28 August 2017, the Chancellor of Calcutta University appointed Professor Dr. Sonali Chakravarti Banerjee as the VC of Calcutta University. The notification was in exercise of the powers conferred by Section 8(1)(a) read with Section 8(2)(a) of the Act. The term of appointment was for a period of four years with effect from the date on which she joined office or until she attained the age of sixty-five or until further orders, whichever is the earliest. 3. The term of office of the VC was to end on 27 August 2021. The State government in the Higher Education Department submitted proposals for the re-appointment of the VC for a period of four years to the Chancellor on 4 June 2021 and 17 June 2021 which were not accepted as the Chancellor sought certain clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for appointment of teachers and other academic staff in University and Colleges and measures for the maintenance of standards in Higher Education) Regulations 2018. UGC Regulations 7. The petition was opposed on behalf of the State government by submitting that: (i) In terms of the unamended provisions of Section 8, the procedure prescribed in Sub-section (1) has to be followed for re-appointment; (ii) This position was altered by the 2019 amendment to the Act; (iii) The appointment and re-appointment of a VC stand on a different footing and the power of reappointment is vested with the State government and not the Chancellor; (iv) Even if the Chancellor is the re-appointing authority, he has no discretion once a recommendation is made by the State government upon its satisfaction; and (v) Since the Chancellor has not taken any action in terms of Section 8(2)(a), the State government had no option but to re-appoint the incumbent VC by taking recourse to the provisions of Section 60. 8. The incumbent VC who had been re-appointed by the State government was impleaded as a party to the proceeding and urged that: (i) There is a distinction in law between appointment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de only by a Visitor/Chancellor. This in the view of the High Court came in the way of the State government making the appointment and, in this context, it relied upon a judgment of this Court in Ghambirdan K. Gadhvi v. State of Gujarat (2022) 5 SCC 179. 12. On behalf of the Petitioners before the High Court, it was urged during the course of those proceedings that the same procedure which was provided for appointment of a VC Under Section 8(1) was required to be followed at the time of re-appointment. On the other hand, the State government relied on the amended provisions of Section 8(2)(a). On this point, the High Court disagreed with the Petitioner and noted that amended Section 8(2)(a) which provides for the re-appointment of a VC for another term does not require that the procedure prescribed in Section 8(1) should be followed for re-appointment. In the amendment of 2019, the expression "following the provisions of Sub-section (1)" were deleted from Section 8(2)(a). The High Court did not therefore subscribe to the submission of the Petitioner before it that the same procedure was required to be followed for the re-appointment of a VC as prescribed for the purpose of appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) The Vice-chancellor shall hold office for a term of four years or till he attains the age of sixty-five years, whichever is earlier, and shall be eligible for re-appointment for another term of four years or till he attains the age of sixty-five years, whichever is earlier, following the provisions of Sub-section (1). Sub-section (2) of Section 8 as amended reads as follows: (2)(a) The Vice-Chancellor shall hold office for a period of four years appointed as such in terms of the provisions of Sub-section (1), and shall be eligible for reappointment for another term of four years subject to the satisfaction of the State Government and on the basis of his past academic excellence and administrative success established during his term of office in the capacity of Vice-Chancellor, or till he attains the age of seventy years, whichever is earlier. Section 8(2)(b) as amended is in the following terms: 8(2)(b) The Chancellor may, notwithstanding the expiration of the term of the office of the Vice-Chancellor, allow him to continue in office for a period not more than two years at a time in consultation with the Minister, which shall under no circumstances be extended beyond the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrative success" of the incumbent VC recommended her re-appointment for a further term of four years or until she attains the age of 70 years, whichever is earlier. The State government submitted that since the VC had already been appointed for an earlier term there was no requirement of a fresh search committee for the purpose of a reappointment. However, according to the State government, the Chancellor was not in agreement with the interpretation of the amended provisions since the State government opined that when a reappointment was proposed under amended Section 8(2)(a) there was no necessity of undergoing a further selection process. The State government urged that Section 8(2)(a) only postulates satisfaction of the State government and does not require the concurrence of the Chancellor. In other words, according to the State government, it has unfettered rights in the matter of reappointment to the post of VC. This submission has been rejected by the High Court. 19. Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing on behalf of the State of West Bengal urged that: (i) The power conferred by Section 8(5) on the Chancellor to appoint a person to exercise the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the High Court in the present case specifically holds that the procedure which is prescribed by Section 8(1)(b) of constituting the search committee does not apply to a reappointment; and (iii) Section 8 envisages distinct situations namely: a. Appointment of a VC by the Chancellor out of a panel of three names recommended by the Search Committee constituted by the State government; b. Reappointment in respect of which the power is vested in the State government Under Section 8(2)(a); c. Extension of the term of a VC beyond the expiration of the term of office Under Section 8(2)(b) by the Chancellor in consultation with the Minister; d. A temporary appointment of the VC which is made by the Chancellor in consultation with the Minister Under Section 8(5). 22. These rival submissions would need to be analyzed. However, before we enter into a substantive analysis of the submissions, it would be appropriate to deal with the procedural objection regarding the limits of the writ of quo warranto. 23. Through a line of cases, this Court has laid out the terms on which the writ of quo warranto may be exercised. In University of Mysore v. C.D. Govindra Rao (1964) 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, SCC para 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.) 25. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Assn. (2006) 11 SCC 731, the limitations of the writ of quo warranto were elaborated upon by a two judge Bench of this Court. The court observed: 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. [...] 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] was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest liti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the VC to exercise the powers and perform the duties of the office by reasons of leave, illness or other causes; and b. A vacancy occurring in the office of VC upon the death, resignation, removal, expiry of term of office or otherwise. (Section 8(5)). 30. Section 8 makes provisions for firstly, the conditions of eligibility for holding the office of a VC; secondly, the term for which the office would be held; thirdly, the procedure for appointment; and fourthly, who has the power to make the appointment. 31. The conditions of eligibility for holding the post of VC are stipulated in Section 8(1)(a) namely (i) a distinguished academic with proven competency and integrity; (ii) (a) minimum of ten years of experience in a University system of which at least five years shall be as a professor; or (b) ten years of experience in a reputed research or academic administrative organization of which at least five years shall be in a position equivalent to a professor. 32. The term of office of a VC, including in the case of a reappointment, is four years or until the attainment of the age of 70 years, whichever is earlier. Where the term of office of a VC has expired, Section 8(2)(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State government on the basis of academic excellence and administrative success during the period when the individual held office of VC. Significantly, Section 8(2)(a) is a provision which prescribes the term, namely, the initial term of four years and if an incumbent is reappointed, a further period of four years. Moreover, Section 8(2)(a) stipulates the conditions subject to which the VC would be eligible for reappointment for another term of four years. 36. Section 8(2)(a) is sought to be interpreted by the Appellants as indicating that the power of reappointment is taken away from the Chancellor and is entrusted to the State government. This would be an incorrect reading of the statutory provision. Section 8(2)(a) provides for (i) the term of office of a VC; (ii) eligibility for reappointment; (iii) the term of office upon reappointment; (iv) the conditions subject to which a person shall be eligible for reappointment; and (v) the outer age limit of 70 years. The expression "subject to the satisfaction of the State government" cannot by a process of inferential reasoning be construed to vest the power of reappointment in the State government. 37. The provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2)(a) speaks of the satisfaction of the State government and past academic excellence and administrative success during the term of office. Fulfilment of those conditions makes a person eligible for being reappointed as a VC. 41. It is a settled principle of law that a statute must be read to avoid a construction which would make certain provisions or terms meaningless or redundant. In Union of India v. Hansoli Devi (2002) 7 SCC 273, a Constitution Bench of this Court reiterated the dictum in the decision of the Constitution Bench in Aswini Kumar Ghose v. Arabinda Bose 1953 SCR 1, that "it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute." The Court in Hansoli Devi supra reiterated the decision of the Privy Council in Quebec Railway, Light Heat & Power Co. Ltd. v. Vandry AIR 1920 PC 181 observing that the "legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons." An effort must be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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. 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 VC for another term does not require that the procedure prescribed in Section 8(1) has to be followed for re-appointment. 47. Faced with the view of the Chancellor, the State governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered in the enforcement of a statute, by going through the time-consuming amendatory process, the Legislature sometimes thinks it expedient to invest the Executive with a very limited power to make minor adaptations and peripheral adjustments in the statute, for making its implementation effective, without touching its substance. That is why the "removal of difficulty clause", once frowned upon and nick-named as "Henry VIII clause" in scornful commemoration of the absolutist ways in which that English King got the "difficulties" in enforcing his autocratic will removed through the instrumentality of a servile Parliament, now finds acceptance as a practical necessity, in several Indian statutes of post-independence era. 49. The State government chose the incorrect path Under Section 60 by misusing the "removal of difficulty clause" to usurp the power of the Chancellor to make the appointment. A government cannot misuse the "removal of difficulty clause" to remove all obstacles in its path which arise due to statutory restrictions. Allowing such actions would be antithetical to the Rule of law. Misusing the limited power granted to make minor adaptations and peripheral adjustments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GC Regulations were binding, held that: 49. Therefore, when the appointment of Respondent 4 is found to be contrary to the UGC Regulations, 2018 and the UGC Regulations are having the statutory force, we are of the opinion that this is a fit case to issue a writ of quo warranto and to quash and set aside the appointment of Respondent 4 as the Vice-Chancellor of the SP University. 50. It cannot be disputed that the UGC Regulations are enacted by the UGC in exercise of powers Under Sections 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every Rule and Regulation made under the said Act, shall be laid before each House of Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between the State legislation and the Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject "education" is in the Concurrent List (List III) of the Seventh Schedule to the Constitution. Therefore, any appointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations can be said to be in violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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