'When Minister Takes Rigid View, Consultation Is Wasted Effort': Calcutta High Court Upholds Appointments Of Interim-VCs By Governor

The Calcutta High Court today dismissed a petition filed by a retired Professor, seeking directions to annul the appointments of thirteen interim Vice-Chancellors in State Universities, which were made by the Governor of West Bengal acting as Chancellor of the said Universities. The petitioner had challenged these appointments on the ground that they were bad in law for being made without consulting the relevant state ministry, as was statutorily required.

While dismissing the plea, a Bench of Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta held that the petitioner had failed to show any public cause in their PIL and that the State’s support of the same may give rise to connotations that the petitioner was being used as a “tool” to indirectly challenge the orders of the Governor.

It opined: 

“The writ petitioner has miserably failed to point out as to what is the public interest which has been affected and curiously enough the State of West Bengal which did not raise any objection to the orders passed by the Hon’ble Chancellor has now toed the line of the writ petitioner and outrightly supporting the case of the writ petitioner and virtually stepped into the shoes of the writ petitioner. Therefore, are well justified in forming an opinion that the writ petitioner has been used as a tool with a view to indirectly challenge the orders issued by the Hon’ble Chancellor. However, we do not wish to go deep into this matter and we leave it as such as we are satisfied that there is no illegality in the orders issued by the Chancellor in favour of the private respondent herein and a writ of quo-warranto would not lie.”

While the Bench noted that the plea may have been dismissed as non-maintainable without going into its merits, they nevertheless went into the arguments advanced by both sides to determine whether the non-consultation of the minister-in-charge was indeed illegal.

Brief background of the dispute:

In 2022, the Government of West Bengal had appointed Vice-Chancellors for 24 State Universities under the West Bengal University Laws Amendment (Act) 2012 and the West Bengal University Laws Amendment (Act) 2014.

The validity of these laws vis-à-vis the UGC regulations 2018, was challenged in a Writ Petition [WPA (P) 170 of 2022 Anupam Bera v. State of West Bengal and Others], and subsequently, a division bench of the Calcutta High Court held that the UGC Regulations 2018 will prevail over the conflicting provisions of the concerned State University Acts relating to the appointment of Vice Chancellors.

To comply with such directions, the West Bengal University Laws (Amendment) Ordinance 2023 was promulgated to make the University Laws in West Bengal in consonance with the UGC Regulations, 2018.

Accordingly, the Minister-in-Charge, Department of Higher Education, sent a proposal to the Governor/Chancellor, proposing a list of 27 candidates to be appointed as interim-Vice Chancellors to the aforesaid vacant posts for a period of six months.

The Governor subsequently made two appointments from the list proposed by the minister-in-charge, and the State government had assented to these appointments as well.

As far as thirteen out of the remaining vacancies were concerned, the petitioners claimed that the Governor had made unilateral appointments to the same, without consulting the relevant state-ministry, and thus the petitioners and the State of West Bengal challenged such appointments.

It was claimed by the petitioner that as a result of a division bench ruling in the case of Anupam Bera v State of WB, the appointments of 24 Vice-Chancellors was held to be unsustainable in law, due to not being in consonance with the relevant UGC statute. Subsequently, when these vacancies arose, the State of West Bengal, had sent a list of 27 eligible candidates for the post of interim VC, to the Governor, for his approval, as Chancellor of the Universities.

It had been argued that, while the Governor selected 2 candidates from the state’s list of 27, many of the remaining vacancies were filled up by the Governor out of his own volition, and without any consultation with the State, as was required under Section 9(1)(a) of the West Bengal University Act (Amendment) Ordinance, 2013, as well as the various University Acts. As such, petitioners had prayed for a writ of quo warranto, to quash the said appointments.

Governor's order only authorises a senior professor to discharge the duties of VC; only an interim arrangement

To examine this contention, the Court looked at the language used in the communication made by the Governor in making the impugned appointments. It was noted by the Bench that the words used therein were “authorise” and not “appoint.” It opined:

“The question would be as to whether the order is in the nature of an appointment of an interim Vice Chancellor or otherwise. The order which was passed earlier [in appointing the two candidates recommended by the State] specifically uses the word “interim Vice Chancellor” and in those cases it states that it was issued in consultation with the Minister in accordance with the relevant provision of the statute governing the University.

However, the marked distinction in the orders dated 31st May, 2023 issued to [impugned appointees] does not used the word “interim Vice Chancellor” rather it authorises the concerned professor to exercise the powers and perform the duties of Vice Chancellor till further orders. Therefore, the phraseology clearly shows that the order is an interim arrangement, that is, until further orders the concerned professor has been authorised to exercise powers and perform the duties of the Vice Chancellor. The person who is authorised to do a particular duty cannot claim that he has been appointed to the post, in other words, the person can and shall perform the duties attached to the post though not appointed to the post.”

Governor has inherent powers to make interim arrangements

In holding that the power of the Governor as Chancellor of the Universities was inherent in authorising a senior professor to carry out the duties of interim Vice-Chancellor for administrative purposes as a stop-gap, till a permanent appointment was made, the Court went into the complications that would arise if a university was left without a Vice-Chancellor. The Bench relied on the Supreme Court case of B Srinivas Reddy v Karnatka Urban Water Supply (2006) and observed:

“Let us visualise the consequences that may flow if a university remains without a Vice Chancellor, in other words the university will remain without its “head”. Considering the importance of establishing the university, such institutions cannot be left without a “head” as several duties and responsibilities much of which are onerous are cast upon the “head” of the Institution. Therefore, we find there is no error of law committed by the Hon’ble Chancellor in making an interim arrangement by authorising certain professors of the very same university or for some other universities to exercise the powers and perform the duties of the Vice Chancellor of a particular university till further orders. In such circumstances, a writ of quo-warranto cannot lie as the orders issued in favour of the private respondent are not orders of appointment rather they are orders authorising the concerned person to do certain acts and perform certain duties”

No effective consultation possible when Ministry has taken a rigid stand

In dealing with the contention that the Governor did not carry out a consultation process with the State Government, the Court remarked that in a consultation process, the burden of consultation would lie on the consultee-State Government, and not on the consulter-Governor.

It was held that even so, the list of names that was sent by the State to the Governor was not even a panel of candidates, but instead candidates who had been earmarked against particular vacancies.

The Court observed, that in such a situation, the “rigid” nature of the consultation undertaken by the minister-in-charge takes away any scope for consultation from the end of the Governor. Even so, it was held that the Governor had considered the list sent by the State and appointed two candidates as interim-Vice Chancellors, thereby making it a “deemed consultation” as he had considered the exhaustive list of candidates sent by the State. In referring to various Supreme Court cases, it held:

“Therefore, when the final decision is with the consultor, the manner, method and mode of consultation has to be left with the consultor and the consultee cannot dictate terms to the consultor that the consultation has to be in a particular mode or methodology. As mentioned, consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points to evolve a correct or at least satisfactory solution. Therefore, for a consultor and a consultee to hold consultation, there should be exchange of views. If one of the parties is rigid the question of commencing a dialogue or consultation does not arise as one of the parties has already made up its mind. Therefore, when the consultee takes a definite stand and communicates the same to the consultor, all that the consultor can do is to take the said opinion as the final opinion of the consultee and then proceed to take a final decision in the matter. This is precisely what has happened in the case on hand.”

It was observed that, when the Ministry had taken an apparent rigid view on the appointment of particular candidates in its list of 27 names to the Governor, the process of consultation is a wasted effort. Further, the fact that the Chancellor had selected two candidates from the list sent by the Minister, showed that he had considered the views of the minister, and agreed upon two out of the twenty-seven names, suggesting consultation had already happened. The Court remarked:

“The Minister in-charge states that 27 persons have to be appointed as Interim Vice Chancellors of the respondent universities, has not given a panel of names to the Hon’ble Chancellor so as to initiate a dialogue or in other words to commence the consultation process. Therefore, when the Minister-in-charge takes such a rigid view, the question of the consultor namely the Hon’ble Chancellor inviting the Minister in-charge for a dialogue or consultation is a fait-accompli and a wasted effort as no results will emanate thereby.

That apart, we find from the 27 names, the Chancellor has selected two names and those professors have been now authorised to exercise the powers of the Vice Chancellor of the respective universities. This decision/action of the Hon’ble Chancellor pre-supposes a consultation. In other words, Minister-in-charge has already conveyed his view which according to him was final as only 27 names were furnished along with the names of the universities to which they have to be appointed as Interim Vice Chancellor. This pool of names was considered by the Chancellor and a decision has been taken by the Hon’ble Chancellor to authorise two out of those 27 to perform the duties of the Vice Chancellors of two Universities and in respect of others the Hon’ble Chancellor has taken a decision which as an appointing authority is entitled to deal with the matter. Therefore, even on this count the petitioner has to necessarily fail.”

Lastly, in setting aside the order of a Special Commissioner to the State of West Bengal who, through a circular sent to the Registrars of the various Universities, held that the appointments of the respondent-Vice Chancellors were bad in law, the Court held that such a Special Commissioner would not have any power to question or nullify the executive decisions taken by the Governor acting as Chancellor of the Universities. It observed:

The Special Commissioner is not empowered to nullify an order passed by the Hon’ble Chancellor and the order 12th June, 2023 passed by the Special Commissioner is a clear inroad and interference with the exercise of the powers of the Hon’ble Chancellor which needs to be deprecated. It is not for the Special Commissioner to state that the appointment of Vice Chancellor cannot be accepted as valid appointment. Unfortunately, the Special Commissioner has not appreciated the tone, tenor and purpose for which the order dated 31st March, 2023 were issued in favour of the private respondents authorising them to exercise the powers and perform the duties of the Vice Chancellor of the respective universities. Therefore, the proceedings of the Special Commissioner dated 12th June, 2023 is wholly devoid of jurisdiction and cannot be enforced.

In disposing of the Writ petition, the Court clarified, that those persons who had only been “authorised” to act as Vice-Chancellors would not be eligible to receive the salary of a Vice-Chancellor, but instead would continue to receive the same pay which they were entitled to prior to such authorisation, or any other emoluments that may accrue from such authorisation.

We hold that the incumbent professors who have been authorised to perform the duties of the Vice Chancellor of the respondent universities shall be entitled to draw the pay and allowances as applicable to the post held by them prior to issuance of the orders but would be entitled to draw the allowance, if any, applicable to the [persons] authorised to perform as a Vice Chancellor of the respective universities” it observed.

Coram: Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta

Case: Dr Sanat Kumar Ghosh V. The Chancellor, University of Kalyani And Others

Citation: 2023 LiveLaw (Cal) 176

Click Here To Read/Download Judgment