State Govt Has No Power To Appoint Or Reappoint Vice-Chancellors Of State Universities: Calcutta High Court Quashes 29 Appointments

In a significant order, the Calcutta High Court has ruled that the State has no authority to appoint, re-appoint, or extend the tenures of Vice Chancellors of the universities in the state of West Bengal.

It has further held that the appointment of Vice-Chancellors should be strictly in accordance with the provisions of law.

The division bench comprising of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj, have ordered the removal of Vice-Chancellors of nearly 29 universities in the State, who were appointed/re-appointed by the state government based on the amendments to the West Bengal Universities Act carried out in 2012 and 2014.

The order came in a Public Interest Litigation (PIL) that was filed challenging the validity of the amendments carried out in 2012 and 2014 stating that they are unconstitutional and in complete violation of UGC regulations. The petition had further challenged the appointment of some Vice-Chancellors, on the ground that they were appointed without proper search committees, did not meet minimum eligibility criteria, or were appointed without approval of the Chancellor, and were therefore in defiance of the UGC regulations.

Submissions of the Petitioner’s Counsel:

1. Provisions of the Act of 2012 and 2014 run counter to the 2018 UGC Regulations as the minimum qualifications prescribed in the impugned Acts for the post of Vice-Chancellors stands diluted and these provisions prescribed minimum qualification lower than the one prescribed in the UGC Regulations, 2018.
2. In terms of the UGC Regulations 2018, the Search Committee for appointment of Vice-Chancellors must have a nominee of the Chairman (UGC) which was missing in the Search Committee formed for appointment of the respondent Vice-Chancellors.
3. The UGC Regulations, created under the UGC Act, 1956, hold statutory force and are applicable in West Bengal, even if the state hasn't adopted the UGC Scheme. In support of this submission, reliance was placed upon the Supreme Court judgement Professor (Dr.) Sreejith P.S. vs. Dr. Rajasree M.S. and Others reported in 2022 SCC OnLine SC 1473.
4. Some respondent Vice-Chancellors have been appointed by the State taking recourse to the removal of the difficulty clause which is not permissible. In support of this submission, reliance was placed upon the Supreme Court judgement State of West Bengal vs. Anindya Sundar Das and Others reported in (2022) SCC OnLine SC 1382.
5. Appointing authority for the office of Vice-Chancellor is the Chancellor, therefore, the appointments made by the State cannot be sustained and that if the initial appointment itself is defective, then extension by the proper authority cannot cure the defect. In support of this submission, reliance was placed upon the Supreme Court judgement Baharul Islam and Others vs. Indian Medical Association and Others reported in 2023 SCC OnLine SC 79.
6. The 2018 UGC Regulations are mandatory whereas 2010 UGC Regulations were directory since they were applicable to those who had adopted the Scheme.
7. There is no question of exercising discretion while issuing the writ of quo warranto against the respondent Vice-Chancellors because they are holders of high position and it is not the issue of their livelihood as they will go back to their original places.

Submissions of the Advocate General (appearing on behalf of the State):

1. A review petition has been filed before the Hon’ble Supreme Court against the judgement in the case of Anindya Sundar Das and Others (supra), and that in the Division Bench judgement in this case, the applicability and effect of UGC Regulations has been decided as pure question of law.
2. UGC Regulations 2018 are not applicable in the State of West Bengal and they are not binding on the Universities established under the State Act.
3. By the UGC Regulations 2018, the earlier Regulations have been superseded, therefore, the UGC Regulations, 2010 are no longer existing from the date of publication of UGC Regulations, 2018.
4. UGC Regulations 2018 have been published subsequent to the Scheme of the Central Government dated 2nd of November, 2017.
5. Implementation of the revised scale under the Scheme was subject to acceptance of all the conditions.
6. UGC Regulations are directory in nature and they are not binding on the State if not adopted by the State. In support of this submission, reliance was placed upon the judgement in the matter of Kalyani Mathivanan vs. K. V. Jeyaraj and Others reported in (2015) 6 SCC 363, he has submitted that
7. UGC Regulations, 2018 have not been adopted by the State, therefore, the judgement relied upon by learned counsel for the petitioner in this regard are distinguishable.
8. Most of the respondent Vice-Chancellors fulfil the minimum qualification of 10 years of experience.
9. State can take recourse of removal of the difficulty clause for appointment and reappointment of Vice-Chancellors.
10. Relief of the writ of quo warranto is discretionary and discretion may not be exercised against the Vice-Chancellors who fulfil the minimum eligibility criteria, against whom there are no complaints and whose appointments have been challenged belatedly. In support of this submission, reliance was placed upon the Supreme Court judgement in the matter of the Bombay High Court in the matter of Bhairul Chunilal Marwadi vs. State of Bombay and Others.

Broad submissions forwarded by the counsels appearing for the other respondents were as follows:

1. Referring to the judgment in Tamil Nadu Medical Officers Association and Others vs. Union of India and Others reported in (2021) 6 SCC 568, the respondents submitted that the provision to have one nominee of the Chairman of the UGC in the Search Committee is not binding on the State.
2. UGC Regulations are not applicable to the State and the Regulations are only recommendatory and not binding on the State. In support of this submission, reliance was placed upon the Supreme Court judgement Annamalai University Represented By Registrar vs. Secretary To Government, Information And Tourism Department And Others reported in (2009) 4 SCC 590 and Praneeth K and Others vs. University Grants Commission (UGC) and Others reported in 2020 SCC OnLine SC 688.
3. When the appointee possesses minimum qualification, no writ of quo warranto is required to be issued. In support of this submission, reliance was placed upon the Supreme Court judgement Gambhirdan K. Gadhvi vs. State of Gujarat and Others reported in (2022) 5 SCC 179.
4. If the initial appointment by the State is rectified, the ratification relates back to the original appointment. In support of this submission, reliance was placed upon the Supreme Court judgement National Institute of Technology and Another vs. Pannalal Choudhury and Another reported in (2015) 11 SCC 669.

Issues for consideration before the Court

I. Whether taking recourse to removal of the difficulty clause, the State Government is competent to appoint the Vice-Chancellor?

II. Whether the State Government is empowered to extend the tenure of the Vice-Chancellor on expiry of his tenure?

III. Whether the UGC Regulations, 2018 are applicable in the State of West Bengal?

IV. Whether the appointment of the respondent Vice- Chancellors not fulfilling the minimum eligibility conditions of 10 years experience as Professor as prescribed in Regulation 7.3.i of UGC Regulations, 2018 is a valid appointment?

V. Whether appointment of the respondents as Vice-Chancellor by a Search Committee constituted without having a nominee of Chairman of the UGC as required by Regulation 7.3.ii of UGC Regulations, 2018 can be said to be a lawful appointment?

VI. Whether the provisions of the amended Acts of 2012 and 2014 to the extent they are in contravention of the provisions of UGC Regulations, 2018 can be enforced?

Judgement:

The bench held, “This Court has taken note of the importance of the post of vice-chancellor in the university, therefore, it is essential that the appointment of the vice chancellor should be strictly in accordance with the law. It would not be in the interest of the students and administration of the universities to continue the concerned respondents as vice chancellor of the university once it is found that they have been appointed without following the due procedure and contrary to the provisions of the Act and that too by an authority not competent to appoint”

On the first issue which relates to the appointment of the Vice-Chancellor taking recourse to the removal of difficulty clause by the State Government, the bench held, "Facts on record indicate that some of the VCs have been appointed by the State Government taking recourse to the provisions of the removal of difficulty clause which in substance is the same as Section 60 of the Calcutta University Act, 1979, therefore, in view of the judgment of the top court in the case of Anindya Sundar Das, their appointment cannot be sustained”

With respect to the second issue which was in respect of the legality of the orders issued by the State Government extending the tenure of those respondent Vice- Chancellors who were initially appointed as Chancellor, the bench noted, "Once the power to reappoint or extend the tenure is vested with the chancellor and the same cannot be usurped by the State under removal of difficulty clause, then the State is required to show as to how or under which provision, the State had passed the order reappointing or extending the tenure of some of the VCs”

The bench further noted, “In the present case, some of the respondent Vice-Chancellors were initially appointed by the Chancellor but their tenures have been extended by the State Government without any authority of law. Hence, the orders extending their tenure as vice chancellor passed by the State government cannot be sustained…When the State has no power to appoint or reappoint the vice chancellor, the State cannot appoint vice chancellor by giving additional charge, therefore orders passed by the State government giving additional charge of vice-chancellor are also bad in law”

Dealing with the other issues, the bench stated, "... UGC Regulations, 2018 are applicable and the appointments which have been made in violation of the UGC Regulations, 2018 cannot be sustained. In the present case, some of the respondent Vice-Chancellors do not fulfil the minimum qualification of 10 years’ experience as professor in the university or 10 years’ of expertise in a reputed research and/or administrative organisation with proof of having demonstrated academic leadership, therefore, their appointment is contrary to Regulation 7.3.i of UGC Regulations, 2018.

It is also undisputed that the Search Committee formed for the appointment of all the respondent Vice-Chancellors did not have one Member nominated by the Chairman, University Grants Commission as required by Regulation 7.3.ii, therefore, their appointments are contrary to Regulation 7.3.ii of UGC Regulations, 2018.”

In view of the above analysis, the bench held that, "the impugned provisions of amended Acts of 2012 and 2014 to the extent they are repugnant to the UGC Regulations, 2018 relating to appointment of Vice-Chancellor cannot be sustained and the State is directed to consider making suitable amendments in the concerned Acts to bring them in conformity with the UGC Regulations, 2018 preferably within a period of six months."

The court stated that it is essential that the appointment of the Vice-Chancellor should be strictly in accordance with the provisions of the Act, and in view of the same, allowed the writ petition while also passing the following directions:

i. The provisions of UGC Regulations, 2018 will prevail over the conflicting provisions of the concerned State Universities Act, relating to appointment of Vice- Chancellor, under which the respondent Vice-Chancellors have been appointed.

ii. The appointment of those respondent Vice-Chancellors who are appointed, reappointed, whose tenure extended or who are given additional charge by the order of the State Government or who do not possess minimum eligibility condition or appointed without following the due procedure are held to be unsustainable and without the authority of law. Therefore, they have no right to continue as Vice- Chancellors by virtue of such unsustainable orders.

Case Title: Anupam Bera vs State of West Bengal WPA (P) 170 of 2022

Case Title: 2023 LiveLaw (Cal) 69

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