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Quashing The Appointment Of MG University VC: Kerala HC Issues Fresh Order On Realizing That It Had Referred To An Overruled Judgment [Read Judgment]

Apoorva Mandhani
26 Feb 2018 9:12 AM GMT
Quashing The Appointment Of MG University VC: Kerala HC Issues Fresh Order On Realizing That It Had Referred To An Overruled Judgment [Read Judgment]
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Kerala High Court, on Thursday, recalled its judgment rendered on Monday, when it had quashed Dr. Babu Sebastian’s appointment as Mahatma Gandhi University’s Vice-Chancellor (VC).

The Bench comprising Chief Justice Antony Dominic and Justice Dama Seshadri Naidu issued a fresh judgment after realizing that it had extensively referred to the Madras High Court's judgment in the case of K. V. Jeyaraj v. Chancellor of Universities, which had already been overruled by the Supreme Court.

Interestingly, the Court had, in its earlier judgment, also referred to the Apex Court judgment in the case of Kalyani Mathivanan v. Jeyaraj, which had overruled the Madras High Court judgment. Addressing this as a "regrettable faux pau", the Court immediately took responsibility and informed the concerned Counsel that it would be rendering a fresh judgment.

It, however, clarified, "The recalling, we may observe, was only to remove references to the judgment that stood nullified and ceased to exist, for the doctrine of merger applies. Even without K. V. Jeyaraj, we hold, the ratio of our judgment and the case outcome remain unaffected."

The challenge

The Court was hearing a Petition filed by an environmentalist, Mr. Premkumar, who had alleged that despite not having the requisite qualifications to hold the post, Dr. Sebastian had managed to "to sneak into the post of the Vice Chancellor of Mahatma Gandhi University (M.G. University), misusing the cloud commanded by him in the corridors of power".

He had further challenged the constitution of the selection committee, which had comprised of E.K. Bharat Bhushan, the then Chief Secretary; Balaram, a UGC nominee and Director of Indian Institute of Science(IISc), Bengaluru; and MLA Benny Behanan, nominated in his capacity as a member of both the Senate and the Syndicate.

Mr. Premkumar had contended Mr. Behanan should not have been a part of this committee, as UGC Regulations, 2010 prescribe that the nominee of the Syndicate should have eminence in the sphere of higher education and should not have any connection with the university concerned or the affiliated college.

The Court then noted that the following two issues arose for its consideration:

 (1) Has Mr. Premkumar approached the Court on time, seeking a public law remedy?

(2) Was Dr. Babu Sebastian qualified to hold the post of VC?

Delay in approaching the Court

With regard to the first issue, the Court noted that Dr. Sebastian has been the VC for more than three years, and that his total tenure of four years will end in about six months. It, however, opined that the Petition at hand did not suffer from laches, observing,

"The plea of delay or laches should be allowed no play because the person holds the public office as a usurper; the usurper’s continuance affects the public interest. The court must see that the larger public interest and the basic tenets of good governance are not thrown to the winds.

Given the above proposition of law, we must hold that the writ petition suffers from no laches; rather laches, if any, are inconsequential. In other words, Premkumar’s delayed approach does not defeat his demand that Dr. Sebastian should account for the position he holds."

Validity of Dr. Sebastian's appointment

At the outset, the Court clarified that the State of Kerala had adopted the UGC Regulations and hence, these would apply to the appointment. It then noted that as per the UGC guidelines, the VC should be (a) a distinguished academician, (b) with at least ten years of experience as Professor in a University system or (c) ten years of experience in an equivalent position in a reputed research or academic administrative organization.

It then held that Dr. Sebastian did not satisfy the prescribed criteria for appointment as a VC, observing, "...we are compelled to conclude that the post of Director in SIET cannot be likened to that of a Professor... We, therefore, hold that Dr. Sebastian lacked the qualification to the post of Vice-Chancellor."

The Court further refused to take into account the University's achievements under Dr Sebastian guidance, opining, "Indeed in his counter-affidavit, Dr. Sebastian has listed out the achievements the University has to its credit under his stewardship. They appear, no doubt, to be commendable. Without sounding pejorative or uncharitable to Dr. Sebastian's proclaimed achievements, we must observe, as a matter of metaphor, that unqualified, a man may perform miracles treating many medical maladies, yet he cannot be called a Doctor—for he remains a quack.

Under these circumstances, we regret out inability to allow Dr. Sebastian to overcome a fundamental deficit or defect— qualification—to justify his claim to the post of Vice-Chancellor. The performance or achievements are post-appointment. The appointment flawed, there can be no retroactive defect curing or justification supplying."

Procedural lapse in selection

Apart from holding that Dr. Sebastian was not qualified to hold the post, the Court also noted that the search committee constituted for making the appointment was not validly constituted, objecting to Mr. Behanan's inclusion in the same.

It observed, "There is no material, particularly, the details of his qualifications, for this Court to hold that he is a person of eminence in the sphere of higher education. That said, we cannot ignore the fact that he is connected with the University; he is a part of both the Senate and the Syndicate, contrary to the statutory mandate...

... So we have no other option than holding that the composition of the Search Committee is flawed."

However, while cancelling the appointment, the Court clarified that the decisions taken by Dr. Sebastian during his tenure would stand, observing, "Dr. Babu Sebastian has held, all along, in these three and half years, the pivotal post of Vice Chancellor. While holding that post, he may have performed numerous duties connected with that office, could have passed countless orders, and must have taken a plethora of policy decisions. They all must be, as a matter of necessity, saved, by applying the de facto doctrine. And we do so."

Read the Judgments Here

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