20 Feb 2023 1:18 PM GMT
The Kerala High Court on Thursday upheld a single bench order which refused to interfere with appointment of Professor (Dr.) Ciza Thomas as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University.The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, however emphasised that her appointment under Section 13(7) of the A.P.J. Abdul...
The Kerala High Court on Thursday upheld a single bench order which refused to interfere with appointment of Professor (Dr.) Ciza Thomas as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, however emphasised that her appointment under Section 13(7) of the A.P.J. Abdul Kalam Technological University Act, 2015 is for a period not exceeding six months in the aggregate till the regular Vice-Chancellor assumes office.
The bench added that the State can replace her, even before expiry of said six months, by following the UGC procedure and suggesting a panel of a minimum of three other names to the Chancellor.
Thomas was appointed based on an order passed by the Chancellor, who is the Governor of the State. The bench was considering the appeal filed by State Government against the order of the Single Judge dismissing its plea against Chancellor's order. The authorities have been in disagreement as to who should hold the post.
Earlier, the State had suggested the name of Dr. Saji Gopinath. Dissatisfied with this recommendation, the Chancellor returned his name. Thereafter, the Additional Secretary to the Government sent the name of the Secretary of the Higher Education Department. The Chancellor did not respond to the request and taking note of the situation prevailing in the University, appointed Ciza Thomas as VC-in charge.
The division bench said that while the particular circumstances under which the name of Ciza Thomas had been recommended as VC did not warrant the issuance of a writ of quo warranto, the same did not mean that she had been conferred with the right to continue in the temporary post as a matter of right. It observed,
"In the case of appointment to a fortuitous post, without there being a selection, based on a choice of the appointing authority as a stop-gap arrangement, the appointee cannot claim any right to continue for a fixed term or till regular hand is replaced. The appointment being a stop-gap arrangement, it is always open for the recommending authority to recommend any other name to replace such an appointee. It is in the domain of the recommending authority to decide whether such appointee is to be replaced or not. As noted above, there is no legal right for an appointee to continue for a fixed period".
The Court was therefore of the view that it would be for the State Government to decide whether any other names could be recommended to replace Thomas or not. "It is purely within the realm of the Government to adopt such course." It added,
"It is appropriate for the State Government, while recommending such names, to follow the procedure of sending a panel of a minimum of three names, in light of the UGC Regulation as far as the regular appointment is concerned. Though it is not related to temporary appointments, the very objective of the UGC Regulations is to eschew arbitrariness and to ensure fair play while recommending such names. Therefore, we are of the view that the Government is free to suggest a panel of a minimum of three other names to the Chancellor to replace the 3rd respondent".
The matter comes in light of the Apex Court decision in Dr. Sreejith PS v. Dr. Rajasree M.S. & Anr, dated 21.10.2022, declaring the appointment of the incumbent VC Dr MS Rajasree as void ab initio, holding that she had been appointed contrary to UGC Regulations. Thomas was appointed by the Chancellor, in the interregnum consequent to the Dr. Rajasree vacating the office.
Section 13(7) of the APJ Abdul Kalam Technological University Act permits appointment of VC not exceeding 6 months till regular VC assumes office. It was alleged that the Chancellor appointed Thomas without there having been the recommendation of the State Government. The Single Judge had dismissed the plea stating that the compass within which the issue had to be decided fell within the statutory provisions of the KTU Act.
"At the outset we note that there is no UGC Regulation governing the appointment of VC temporarily, till regular appointment is made", the Court noted.
The Court referred to Section 13(7), and ascertained that the provision has three parts - the first referring to recommendation, ie, the authority of the Government to recommend names; secondly, the nature of persons who could be recommended for appointment as VC by virtue of the office they hold; and thirdly, the power of the Chancellor to appoint the VC.
"The State Government's power to recommend the names cannot be countered, inasmuch as the State is competent to legislate under List III by Entry 25. The phrase 'recommendation' in this context means the authority to initiate the process to make an appointment and choose the candidate. This being a temporary appointment, the field of choice is limited with reference to a certain category of officials", the Court noted.
The Court noted that the second part was the most important regarding the category of officers, who can be suggested for appointment.
The Court noted that the UGC Regulations, 2010, replaced by those of 2018 prescribes the qualifications, and eligibility to be appointed as VC. It added that the power of UGC is traceable under Entry 66 of List 1.
The Court thus noted that any legislations or regulations by the State in regard to appointment would thus be subject to the UGC Regulations. "Therefore, State Government can only recommend such officers who possess necessary qualifications as prescribed by UGC", it observed. It thus noted that if any of the categories of the officers were not so found to be qualified, then their names could not be recommended.
It went on to observe,
"Undoubtedly, the Chancellor has been conferred with the power to appoint the persons who possess necessary qualifications as prescribed by UGC as VC. The Chancellor in that process cannot overlook authority of State government to recommend any qualified names for appointment as VC. When statute prescribes a particular mode be it directory or mandatory, that has to be followed for such appointment, and cannot be disregarded while making such appointments. We therefore are of the view that the procedure that ought to be followed must be in accordance with the statutory provisions as referred under Section 13(7)".
As regards the issuance of quo warranto, the Court noted that the same is related to public interest and related to public office, and that was the reason why the rule relating to locus standi was diluted with respect to quo warranto. "There cannot be any doubt as to the right of the State Government to approach this Court invoking quo warranto jurisdiction". The Court thus noted that the act done ought to have been done against public interest in order to invoke the same.
"The two theoretical aspects that may need to be considered while considering the relief as to quo warranto: one is based on doctrine of necessity, as rightly pointed out by Sri.R.Sankaranarayanan, learned Additional Solicitor General; and the other is the theory of consequentialism. The Doctrine of Necessity justifies the means to end; the Theory of Consequentialism justifies ends to means. There may be laches or breach in adhering to procedure, that may not necessarily result in issuing a quo warranto if the means and ends could be justified in the particular circumstances. It is only when there is a total disregard to the procedure established by law, and public office is usurped by an incumbent, the Court is compelled to issue a quo warranto. Therefore, the court will have to analyze the particular circumstances, under which a public office is occupied by a person", the Court observed.
The Court noted that in this case, the Chancellor did not disregard the authority of the State government in appointing Thomas, who is a qualified person, but had in fact, sought the views of the Director of Technical Education. The latter had forwarded the name of VC of Digital University, Dr. Saji Gopinath, which was however, returned by the Chancellor on the opinion that his qualification was under cloud.
The Court took the view that the Chancellor, who holds a high dignity office, any act done by him would be done in bona fide.
"Mere procedural lapses if any, cannot result in issuance of quo warranto, since the same is related to public interest, and it is only when the appointment is adverse to the larger public does the court need to issue quo warranto", it was held.
It is in this context that the Court took the firm view that the particular circumstances under which the Chancellor made the appointment did not warrant the issuance of quo warranto.
It however went on to add that it would be appropriate for the State to recommend any other name in a panel of minimum three to the Chancellor to replace Thomas.
As regards the other directions that had been issued by the Single Judge, the Court observed that the writ petition had been confined to the appointment of Thomas by the Chancellor disregarding the authority of the Government to make the recommendation.
"All other directions, according to us, are unwarranted in this case and we set aside the same.", it held.
The writ appeal was accordingly disposed of.
Case Title: State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor
Citation: 2023 LiveLaw (Ker) 90
Click Here To Read/Download The Judgment