Kerala High Court Dismisses State Government's Plea Against Chancellor Appointing Ciza Thomas As VC In-Charge Of KTU

The Kerala High Court on Tuesday dismissed the petition filed by the State Government against the order of the Chancellor appointing Ciza Thomas as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University. 

Justice Devan Ramachandran observed that there was no doubt that Thomas was fully qualified going by the UGC Regulations, since it permits experience in both teaching and research, and since she was working as the Senior Joint Director in Directorate of Technical Education, the choice was justified. 

As regards the dispute in the seniority of Thomas (the 3rd respondent herein), the Court found that excluding the earlier VC, she was ranked 9th in the list of persons found eligible. It observed that although the first person found qualified had been offered by the Chancellor, the same was politely refused, and considering that the others in the list were already occupied in other posts at other places, and she was the only person in Thiruvananthapuram, the said justification was compelling. 

"Even when fingers could be pointed against the Chancellor in having relied upon the inputs of 'some educationists', in its final analysis, his choice can never be found to be at fault, and in any event, there is not even a whisper or an assertion sotto vocce even by the Government that he has acted with bias or mala fide in having appointed 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. 

In the plea filed through Senior Government Pleader V. Manu, it was argued by the State that Thomas's appointment by the Chancellor is not in conformity with the provisions of the APJ Abdul Kalam Technological University Act, 2015. The State had argued that only the Vice Chancellor of any other University or the Pro-Vice Chancellor of the university, or the secretary to the government higher education department, as recommended by the government, could be appointed as the VC to hold office till a regular VC is selected.

It is seen that as an interim measure, KTU's Registrar had earlier recommended the name of Dr. Saji Gopinath, Vice Chancellor, Digital University of Kerala to the Chancellor in accordance with Section 13(7) of the Act, which the Chancellor did not accept since the said person also suffered from a similar/analogous defect as pointed out by the Apex Court, and that steps had been initiated for his removal. Although the State on its part averred that in order to avoid a stalemate in the university, the government had then recommended the name of Principal Secretary to the Government's Higher Education Department for the post of Vice Chancellor of the University, on November 3rd, the Chancellor had ordered Thomas to take over as officiating VC of the university and exercise the powers and functions attached with the post, pending the appointment of a regular Vice Chancellor, and until further orders.

Stating that Thomas was neither the VC of any other university nor the pro Vice Chancellor, the State had said, "Even if for argument's sake, it is admitted that the UGC Regulations 2018 is to override the Act even in matters of appointment of Vice Chancellor - in charge, it is most humbly submitted that there is no provision in the UGC Regulations 2018 contrary to Section 13(7) of the Act".

Thus, the Government in the instant case, was seeking a writ of certiorari quashing the Chancellor's order appointing Dr. Ciza Thomas, and a writ of quo warranto on the ground that Thomas was an usurper in the position. 

It was argued by Advocate General K Gopalakrishna Kurup that as had been held by the Apex Court, in case of any conflict between UGC Regulations and the provisions of the KTU Act, the former prevails. In case of 'regular VC', the said Regulations prevails; however, in case of any 'temporary vacancy', it is the Act which prevails since the former does not even envisage the same. He therefore asserted that the Chancellor could not have travelled beyond the recommendations made by the Government, and that which has been provided for in the provisions of the Act, and hence, the order ought to have been quashed. He thus submitted that the Chancellor had acted beyond the vires of binding statutory stipulations. It was further contended that since the Government was challenging the action of the Chancellor and not the Governor, the instant writ petition is maintainable. 

It was additionally submitted by the AG that even if it was admitted that the Chancellor was right in not accepting the recommendation of the Government, he ought to have reverted to the Government so that a suitable candidate could be found. It was submitted that the Chancellor did not even attempt to do so, but continued with his course of action based on some extraneous inputs. The appointment of Thomas by the Chancellor was also argued by the AG to be illegal since she was not qualified nor did she have the necessary seniority or experience. 

On behalf of the Chancellor, Senior Counsel Gopakumaran Nair, argued that Section 13(7) of the Act operates in violation of UGC Regulations 2018, and is an affront to the declaration of Apex Court. Even assuming Section 13(7), he added that when the Government made the first recommendation, the Chancellor responded to it saying the said person and many other VCs also suffered from the same infirmity, which was accepted by the Government. 

Thereafter, the Government proposed the Secretary to Government, Higher Education, as the new VC, which was also rejected by the Chancellors office, but not officially intimated for the reason that a bureaucrat and non-academician being posted as VC was against the spirit of the UGC norms and the Apex Court verdict.

In the Additional Statement that was filed on November 28, 2022, it was averred that since the two options were already exhausted, the only option before them was to recommend the Pro Vice Chancellor of the same University, whose appointment the Counsels argued could not be considered due to the co-terminus clause in the UGC Regulations, and because the appointment of the Vice Chancellor, on whose recommendation the Pro Vice Chancellor was appointed, was found to be ab initio void. It has been contended that it was on these grounds that the Chancellor's office had initiated steps to identify an Academic eligible to hold the temporary charge of Vice Chancellor of the University.

When the Director of Technical Education (DTE) was asked to provide a list of professors with ten years of experience posted in the two reputed Government Engineering Colleges in Trivandrum, but the same wasn't forthcoming, some educationists who called on the Chancellor, provided him with a list of Professors with Academic Grade Pay (AGP) status. It was submitted that the Chancellor had requested the Director herself to take the position, but the same was politely refused, and it was in this light that the Chancellor had to rely upon other inputs. Although there were four other senior professors above Dr. Ciza Thomas, as senior Joint Director with AGP, they were however, positioned at various Government Engineering Colleges based at Kottayam, Idukki, Palakkad and Wayanad respectively. It was in this light that the Thomas had been appointed by the Chancellor in good faith, and with bona fide intentions.

"Although the UGC regulations do not envisage an acting / Interim Vice Chancellor of a University, the fact remains that when the regular Vice Chancellor ceases to be in office on whatever reasons, the vacancy has to be filled up by an interim arrangement by appointing a suitable and qualified person to carry out the powers and discharge the duties and functions of the office of Vice Chancellor, lest the entire administration of the university shall come to stand still and paralyzed. But, it does not mean that the person placed in charge of the Vice Chancellor has only the routine powers of discharging the day to day affairs and not a full fledged Vice Chancellor. It is submitted that Sec.13(7) also does not make out such a distinction, and for all practical and legal purposes the person placed in charge could function as the Vice Chancellor until the regular vice Chancellor is appointed", it was further submitted.

Senior Counsel Gopakumaran Nair further submitted that the Government was attempting to make aspersions on the intentions of the Chancellor when the truth remained that he had no other option but to find a suitable person with all requisite qualifications as per UGC Regulations in the interregnum. He added that this arrangement was only a temporary one, and a new VC could be appointed without any delay with the cooperation of the University.  

Advocate George Poonthottam submitted that even going by the UGC Regulations, Thomas was qualified for the post. 

Senior Advocate S. Krishnamurthy going by the stipulations in the Act and the Regulations, the Principal Secretary could never have been recommended by the Government, and that he could not even have been considered, much less appointed even for a single day. As a further submission, with respect to the ProVC, it was submitted that as per Regulation 7.2 of the UGC Regulations, the term of ProVC is coterminus with that of VC, and since the Apex Court had declared the term of VC as void ab initio, the term of ProVC was also untenable. On these grounds, it was argued that the Chancellor was completely within his powers to select a new person to act as VC in charge in the interregnum until a new VC was appointed. 

The Standing Counsel of the University Advocate Elvin Peter PJ submitted that University would abide by any decision of the Court. 

On the aspect of maintainability, the Court found in favour of the Government that the act of the Chancellor was in contravention of the statutory scheme. It observed that although the Governor acts as the Chancellor, he acts in accordance with the statutory provisions in the latter capacity, thus being amenable to writ jurisdiction. 

The Court thereon perused Section 13(7) of the Act and Regulation 7.3 of the UGC Regulations. The Court noted that even the Government impelled no contrary case that at least 4 judgments of the Apex Court had laid down that the VC is to be appointed by Chancellor in implicit compliance of UGC Regulations. 

"The responsibility of Chancellor to act in conformity of law is now far more", the Court observed. 

The Court observed that the Chancellor could thus, only make appointment in accordance with Section 13(7) of the Act. When a temporary vacancy arises in office of VC, the Chancellor, on the recommendation of Government must appoint one among 3 choices: A. VC of another University in Kerala; B. ProVC of same University or C. the Principal Secretary. However, the Chancellor asserted herein that the same could not be done. 

The Court found that the view of the UGC regarding its Regulations was binding on the Court, it being the author of the same, and hence found merit in the opinion that the VC even for a day had to satisfy the requirement

"It is hence incontestable, that even the Act recognizes appointment under Section 13(7) to be that of VC and nothing else; the only difference is that the appointment is to temporary vacancy". 

When there is no contra provision in Act as regards qualifications of VC and since any such would fall foul of declarations of SC, any such appointment could only be done subject to qualifications and requirements of UGC Regulations, 2018, the Court found. 

Position of VC being most acme in a University, the Court said that it could never countenance the assertion that anyone without the requisite qualification could function even for a short period. 

The Court noted that as a thumb rule, it being now well-established in law that Governments cannot be allowed any role in affairs of Universities, as per settled positions of law, and any such would have to be frowned upon. 

The Court also took note that the recommendation of Government as regards Principal Secretary to Higher Education Department is "unfortunate", since the VC has to satisfy the requirements under the UGC Regulations, 2018, and the Government itself had admitted that he was a bureaucrat without any experience in teaching. 

As regards the first choice of VCs of other Universities, the Government had made its first recommendation in favour of Dr. Saji Gopinath, which the Chancellor had qualms that his appointment was also untenable. This was also accepted by the Government. 

As regards the 3rd choice, the Court noted that the Government never made a recommendation in favour of the ProVC. 

"In this regard, there arises one aspect which is vitally germane, namely, whether present incumbent in post of ProVC could be reckoned to be in office after Apex Court decision finding appointment of incumbent VC void ab initio", the Court noted. The Court thus noted the submission of the Chancellor that since the appointment of the earlier VC was determined by the Apex Court to be void ab initio, the was under bona fide belief that the appointment of incumbent PorVC was also affected, and the Government had thus run out of all options under the Act. 

The Court noted in this regard that there was nothing in Section 13(7) to make it incumbent on Government to make recommendations on the order mentioned therein, and thus the impression of the Chancellor was baseless. However, the Court noted that as regards the appointment of the ProVC, since the Apex Court had declared that the earlier VC had attained no term at all, being void ab initio, 

"It could only mean she was never in office.. viewed in that perspective, as per Regulation 7.2, ProVC can hold office only coterminus with the VC. Hence, if VC had no term at all, it would be rather puerile to observe that ProVC can continue..", the Court observed. The Court however, quickly added that it did not propose to declare that the post of ProVC was also void ab initio, and decided to leave it there. 

The Court further added that since the recommendation of ProVC was never made by Government, it could not find fault with the Chancellor in holding the impression that the Government did not intend to make such recommendation. 

As regards the question as to whether the Chancellor was obliged to consult the Government again and again, the Court observed that, "surely it would have been in interest of comity between two high functionaries that Chancellor reply to Government before appointing Thomas". Section 17(3) of Act allows Government to recommend only one among 3 choices therein and no other, and when all the choices were rendered untenable, and when it became impossible for Government to make further recommendation, a further deliberation would have been a futility. "Should the Chancellor have left the post to be unfilled? Certainly not!", noted the Court. 

The Court thus found that if Thomas was indeed found to be qualified in accordance with UGC Regulations, no fault could be found on the part of the Chancellor in appointing her in the interregnum period. 

The Court thus noted that since the Chancellor has been able to obtain a duly qualified person as the VC without any favoritism, there was no requirement of State to have challenged the same. 

The Court further noted that it would have been better in this case if the two constitutional functionaries could have ironed out their differences prior, but quickly added that it was only a hope, and not an advice. 

The Court further beseeched the stakeholders to appoint a VC on regular basis without any delay by constituting a selection committee, and that if this is done, the State could also be happy since the tenure of the 3rd respondent could be confined to the smallest period. 

"I hope stakeholders remember that appointment of 3rd is only for a very short period which is not even worth disputing", the Court observed while dismissing the petition. 

The Court however, recorded the argument of Standing Counsel Elvin Peter P.J. that the 3rd respondent was refusing to open the files which were to be signed and acted upon by her that had been placed before her, and directed that if it was so, the Chancellor had to take strict note of the same, and take stringent action to resolve the imbroglio.

Case Title: State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor

Citation: 2022 LiveLaw (Ker) 621

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