Kerala High Court Says Governor Could Not Have Asked VCs To Resign, Questions Haste In Issuing Direction

The Kerala High Court on Monday observed that the Governor Arif Mohammed Khan, in his capacity as the Chancellors of nine universities, could not have asked the Vice Chancellors to resign. The Court made this observation in the order passed in the writ petitions filed by eight Vice Chancellors challenging the instruction issued to them by the Governor on October 23 to resign by today 11.30 AM.

The Court has accordingly, set aside the communications issued by the Chancellor asking the VCs of the Universities to resign. 

Citing the judgment passed by the Supreme Court on October 21 setting aside the appointment of the VC of Dr APJ Abdul Kalam Technological University, the Governor stated that the nine persons "ceased to be the Vice Chancellor of the respective Universities with effect from 21.10.2022" as their appointments were contrary to the UGC regulations. The nine VCs rushed to the Kerala High Court challenging the Governor's communication and a single bench of Justice Devan Ramachandran held a special sitting on Diwali vacation day at 4 PM to hear them.

During the course of the day, the Governor issued notices to the VCs to show-cause by 5 PM of November 3 as to why their appointments are not illegal and void abinitio. The Court asked the Governor's lawyer why show-cause notices have been issued after holding that they have ceased to be VCs.

"How do you send them notices after holding that they have ceased to be in office?", Justice Devan Ramachandran asked Senior Advocate Jaju Babu, who represented the Governor. The judge also asked how the Governor could have said that the Vice Chancellors will cease to be in office with effect from October 22 if he is of the opinion that their appointments were void ab-initio.

"If the Supreme Court judgment says appointment is void abinitio, how can you given them time? And, what was the hurry in issuing the letter?That is also troubling", Justice Ramachandran asked the Governor's lawyer.

The senior lawyer replied that the Governor's communication of October 23 need only be seen as an "advise or a pious hope" that the VCs will resign in the light of the Supreme Court judgment. However, this submission did not impress the bench.

"It does not require much judgments to say no one can be asked to tender resignation. Interestingly, Jaju Babu, learned senior counsel, says the communication was and advise to save the VCs from ignominy. The Court cannot accept such an advice and for that reason the communication has to fail", the bench noted in the order.

The bench further noted that in the light of the show-cause notices issued by the Governor today, the October 23 communication has "lost its relevance". Also, the show-cause notices mean that the Vice Chancellors are still continuing in office.

"A proper enquiry and thought had to be invested particularly when petitioners have specific cases to their factual scenarios, some of them saying judgments of the Supreme Court do not apply to them and that Chancellor does not have jurisdiction.

With the senior counsel on behalf of the Chancellors now saying show-cause notices have been issued, the relevance of impugned communications is lost. It obviously mean they are in service and they can continue until they are removed as per law", the Court noted in the order.

The Court allowed the VCs to continue in their offices till the Governor passes a final order against them. It left all contentions raised by the parties, including the argument that the Governor has no power or jurisdiction to initiate the action, open.

During the oral hearing, the bench asked the petitioners' lawyers whether the Governor has no power to initiate action if it is found that the appointment was made illegally. The petitioners' argued that the Chancellor can only act per the relevant University laws governing each Universities and that the VC can be removed only on specified grounds such as misbehaviour or misappropriation of funds. They also raised an argument that the Governor becomes a "functus officio" after the appointment has been done. Disagreeing, Justice Ramachandran said, "appointing authority does not become functus officio".

When the hearing got heated up in between, after a counsel submitted that the Governor was "creating a turmoil in politics", Justice Ramachandran asked the lawyers to "forbear from referring to politics" and to focus only on law. The judge also expressed displeasure when a counsel asked "how can he do it?" in reference to Governor's action.

"Let us be temperate. How can VC use words like "how can he do that". Let us be temperate. At least in my court, I don't allow....Let us not start with the assumption that the Chancellor is acting with animosity. That is why I said let us be temperate in using words", the judge orally said.

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.

Case Title: Dr. 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