Kerala High Court Allows VCs Of Universities To Continue Till Governor Passes Final Order Against Them After Show Cause Notice
In a special sitting held on Monday, the Kerala High Court granted relief to eight Vice Chancellors of Universities in Kerala, who were asked by the Chancellor of the Universities(the Governor of Kerala Arif Mohammed Khan) to resign today.
The Court held that all of them could continue in their positions till a final order is passed by the Chancellor/Governor against them on the basis of the show-cause notice issued by the Chancellor to them today. The Court thus, set aside the the communications issued by the Chancellor asking the VCs of the Universities to resign vide its judgment dated 24.10.2022.
The Court expressed reservations regarding the Governor's communication issued on October 23 which asked the VCs to resign today by 11 AM. The Court said that nobody can be asked to resign. "It does not require much judgments to say no one can be asked to tender resignation", a single bench of Justice Devan Ramachandran noted in the order. The bench took note of the fact the Chancellor issued show-cause notices to the petitioners today. This means that the relevance of the directions issued by the Governor yesterday is lost and that the Vice Chancellors are still in service.
The Court also wondered how the Governor could have said that the Vice Chancellors will cease to be in office with effect from October 21 if he is of the opinion that their appointments were void ab-initio.
The Court added that a proper enquiry and thought ought to have been invested, particularly when the petitioners had specific cases to their factual scenarios.
The Court has left open all the contentions of the parties, including the argument that the Governor has no jurisdiction to initiate the action.
It was on October 23 that the Governor, the Chancellor of the Universities, issued the direction to nine Vice Chancellors to tender their resignations by 11.30 AM today on the ground that their appointments were illegal. The Governor referred to the recent decision of the Supreme Court which set aside the appointment of Dr. MS Rajashree as the VC of the APJ Abdul Kalam Technological University on the ground that the Search Committee forwarded only one name to the Chancellor instead of a panel of three to five names. Quoting from the above decision, the Governor stated that the appointment of the VC will be void-abinitio if the search committee was constituted illegally.
The Governor's direction was issued to (1) Dr VP Mahadevan Pillai, VC of University of Kerala, (2) Dr.Sabu Thomas, VC of Mahatma Gandhi University, (3) Dr. KN Madhusoodhanan, VC of Cochin University of Science and Technology, (4) Dr K Riji John, VC of Kerala University of Fisheries and Ocean Studies, (5) Dr.Gopinath Ravindran, VC of Kannur University, (6) Dr MS Rajashree, VC of APJ Abdul Kalam Technological University, (7) Dr.MV Narayanan, VC of Sree Sankaracharya University of Sanskrit, (8) DR MK Jayaraj, VC of Calicut University and (9) Dr V Anil Kumar Thuncahthezhuthachan Malayalam University.
Crux of legal arguments raised by petitioners.
Before the High Court, these Vice Chancellors raised a contention that the Chancellor has no statutory power to direct the resignation of the Vice Chancellors. The Chancellor cannot act beyond the powers conferred on him by the relevant University Acts.
"...the Chancellor has no advisory jurisdiction or inherent general power to request the Vice Chancellors to resign from the post or to issue any power to declare the VC seeks to hold office based on a law laid down by the Supreme Court in the absence of any challenge directly to such appointments", the petition filed avers.
During the hearing today, it was submitted by Senior Advocate P. Ravindran, on behalf of one of the VCs that, as per the provisions of the University Act, "the Chancellor can remove a Vice Chancellor only on grounds of misappropriation, or mismanagement of funds or misbehaviour by an order in writing", and added that the exercise of even these powers are subject to reasonable restrictions. The Senior Counsel submitted that what was interesting to note in this case was that the Chancellor had issued the show - cause notice after declaring the appointments of the VCs as void, and submitted that the said show cause notice was only an "afterthought".
The Counsel further submitted that the judgment of the Supreme Court in the case relating to the VC of the APJ Abdul Kalam Technological University cannot be blindly applied against other VCs, without ascertaining the individual facts and circumstances.
The Chancellor, by issuing the directive without affording an opportunity of hearing to the VCs, has violated the principles of natural justice, the petitioners submitted.
On the pointed question of the Court as to whether the Chancellor has to remain a mute spectator when he comes to know that the appointment itself was wrong, it was submitted by the Senior Counsel Ravindran that, "The Chancellor is the appointing authority which can exercise only such of those powers which have been conferred on him by the statute; if such is the case, this notice is totally without authority".
It was submitted by the Counsels on behalf of the petitioners that until the appointment as such was challenged, the Chancellor could not act suo motu.
On the submission by the Senior Advocate Ranjith Thampan in Court today that the Governor was attempting to create a turmoil in politics, the Court emphasized that it would solely be focusing on the aspect of law, and requested all counsels to "forebear from referring to politics".
Advocate Elvin Peter, on behalf of the MG University VC, submitted that the said VC was demitting office on this day, and the order of the Governor would cast a stigma, to which the Court agreed. On the repeated question by the Court as to whether the Chancellor could later rectify his error, if he feels he had made a mistake before and thereby issue such notice, Peter also submitted that the appointment itself had been made following a procedure, and the Chancellor could not act in this manner. He added that the Supreme Court's judgment in the Technological University case was based on the UGC Regulations of 2010, which mandated that the Search Committee should forward a panel of names. However, such a mandate is not there in the 2018 Regulations, under which the appointment of the petitioner has been made.
Advocate P.C. Sasidharan on behalf of VC of CUSAT, also submitted in this regard that the Chancellor was an administrative authority who could not review the decision unless the review power was conferred. "Otherwise there will be anarchy", the Counsel submitted before the Court today. It was submitted that the Chancellor could not act unilaterally but had to wait until it was challenged.
Advocate Raghuraj on behalf of the Malayalam University VC submitted that unlike other Universities, the statute does not allow the Chancellor to remove the VC and that the former was completely bound by the statute.
Advocate M.P. Sreekrishnan on behalf of the VC of Kalady University submitted that the statute empowered the Chancellor to exercise the said power on sufficient reasons, however, in the instant case, the said VC had been found to be the most suitable by the Search Committee, and on this ground, to set aside the impugned notification by the Chancellor.
Arguments raised on behalf of the Chancellor
"Is it true that you have now sent show-cause notices to persons? How do you send them notices after holding that they have ceased to be in office?", Justice Devan Ramachandran asked the Governor's counsel Senior Advocate Jaju Babu.
The judge also questioned the haste with which the letters were issued saying it was "troubling".
Senior Advocate Jaju Babu clarified that the letter was to be seen as "an appeal or a pious hope, that they will resign in light of the Supreme Court judgment". He submitted that the impugned communications were issued in good faith that going by the Apex Court decisions, the appointments of the VCs in question were in fact, void ab initio. He argued that the same was done to avoid any embarrassment to the VCs by giving them an option of an honourable exit.
He submitted that the Apex Court in judgments had found fault with the Chancellors for not acting as per the declarations of law, and it was in this circumstance that the notices were issued. "Since none of these VCs took the easy option of resignation, the Chancellor has issued the individual notices to show cause for 10 days and only after it is considered that he will take action", he submitted.
Stand of the State
During the hearing, the bench orally told Additional Advocate General Ashok M Cherian that the State cannot take sides with anyone in the matter. The AAG replied that the State is not taking any states. He further informed the bench that the Governor has issued a letter to the State Government seeking police protection in Universities when the Acting Vice Chancellors are to take charge.
After a hearing which lasted for over two hours, the bench disposed of all the nine petitions with the above directions.
Case Title: Sabu Thomas v. The Chancellor, Mahatma Gandhi University & Ors. and Other Connected Cases
Citation: 2022 LiveLaw (Ker) 545
Click Here To Read/Download The Judgment
Live-updates posted from the hearing available here :