Supreme Court Reserves Judgment On WB Govt Appeal Against HC Judgment Ousting Vice-Chancellor of Calcutta University

The Supreme Court, on Friday, reserved judgment in the petition filed by the State of West Bengal assailing the order of the Calcutta High Court, whereby the decision of the State to re-appoint Sonali Chakravarti Banerjee as Vice-Chancellor (VC) of Calcutta University was set aside.

The State Government's petition along with that of the ousted Vice-Chancellor was listed before a Bench comprising Justices D.Y. Chandrachud and Hima Kolhi.

By way of a notification dated August 27, 2021 the Vice-Chancellor had been re-appointed to the post with effect from August 28, 2021 for a period of 4 years or till she attains 70 years, whichever is earlier.

A practicing advocate of the Calcutta High Court, Anindya Sundar Das had filed a public interest litigation before the Calcutta High Court contending that the Vice-Chancellor had been reappointed to the post in August 2021 by the Principal Secretary of the State's Higher Education Department in violation of the provisions of the Calcutta University Act, 1979. The High Court had allowed the petition holding that the State Government lacked authority to make the re-appointment.

At the outset Justice Chandrachud enquired, "Does the State Govt. have the power to re-appoint VC?"

Senior Advocate, Mr. Singhvi appearing on behalf of the State of West Bengal apprised the Bench that the amended Section 8(2) of the Calcutta University Act, 1979 provides for a categorically distinct procedure for the re-appointment of VC. He pointed out that the procedure for appointment of VC under Section 8(1), requires the approval of the Chancellor (Governor of West Bengal) and it is distinct from the procedure of re-appointment, which is to be given effect to by the State Government.

The relevant portion of amended Section 8(2) of the Act reads as -

" 8. The Vice-Chancellor

[...]

(2) (a) The Vice-Chancellor shall hold office for a period of four years appointed as such in terms of the provisions of sub-section (1), and shall be eligible for reappointment for another term of four years subject to the satisfaction of the State Government and on the basis of his past academic excellence and administrative success established during his term of office in the capacity of Vice-Chancellor, or till he attains the age of seventy years, whichever is earlier."

He submitted that though the findings in paragraph 29 and 31 of the impugned judgment of the High Court was in favour of State's authority to re-appoint, the conclusion was diametrically contrary. The High Court had concluded that the State Government did not have the power to re-appoint the VC.

The relevant paragraphs of the impugned judgment referred to by Mr. Singhvi are as under -

"29. The amended Section 8(2)(a) provides for the reappointment for another term and it does not provide for following the same procedure for reappointment as contained in Section 8(1) of the Act. The legislature has omitted such a provision which was earlier incorporated by the West Bengal University Laws (Amendment) Act, 2011, in Section 8(2)(a). In view of judgment of the Hon'ble Supreme Court in Malik Zarid Khalid (supra), such omissions gain significance to gather the legislative intention. It is also worth noting that Section 8(6) of the Act provides for appointment on expiry of tenure of office but does not relate to reappointment which has been specifically provided in Section 8(2)(a) of the Act."

[...]

31. Hence, this Court is unable to accept the contention of the learned Counsel for the petitioner that the same procedure is required to be followed for reappointment of the Vice-Chancellor as contained in Section 8(1) of the Act."

Arguing that the High Court order had held against his client though the categorical findings were in its favour, Mr. Singhvi remarked -

"See, operation successful but patient dies in the next paragraph (Para 32 - High Court concludes). It concludes - 'Thus, we find that the State had no authority to appoint or reappoint the Vice-Chancellor..'. This judgment was reserved for many months, there must be some mix up somewhere."

Senior Advocate, Mr. Ranjit Kumar, appearing on behalf of the original petitioner, averred that the State Government's order of re-appointment itself suggests that it was forwarded to the Chancellor for his approval on two occasions, which was not accepted.

Justice Chandrachud observed that the State Government had sought the Chancellor's approval by invoking a wrong provision -

"See, the comedy of errors, they (State) have invoked a wrong provision. They need not have gone to the Chancellor at all. They made a mistake. Everybody was in error. We will now go to the provision."

Mr. Kumar referred to Section 8(5)(b) and Section 8(6) and submitted that when both the provisions are read together it shows that the procedure under Section 8(1) is to be followed which categorically states that 'Vice-Chancellor shall be appointed by the Chancellor'. Section 8(5)(b) and Section 8(6) are extracted below -

"8.5.If –

[...]

(b) a vacancy occurs in the office of the Vice-Chancellor by reason of death, resignation, removal, expiry of term of his office or otherwise, then, during the period of such temporary inability or pending the appointment of a Vice-Chancellor, as the case may be, the Chancellor in consultation with the Minister may appoint a person to exercise the powers and perform the duties of the Vice-Chancellor.

8.6. The vacancy in the office of the Vice-Chancellor occurring by reason of death, resignation or expiry of the term of his office, removal or otherwise shall be filled up by appointment of a Vice-Chancellor in accordance with the provisions of sub-section (1) within a period of six months from the date of occurrence of the vacancy, and such period shall be held to include any period for which a Vice-Chancellor is allowed to continue in office under clause (b) of sub-section (2), or a person is appointed by the Chancellor in consultation with the Minister to exercise the powers and perform the duties of the Vice-Chancellor under sub-section (5)."

Refuting Mr. Kumar's submission, Mr. Singhvi argued that, Sections 8(5) and 8(6) would come into play only when the State Government decides not to re-appoint or when there is no satisfaction of the State Government.

Mr. Kumar asserted that insertion of the expression 'satisfaction of the State Government' in Section 8(2) by way of an amendment, does not take away the Chancellor's power to appoint the VC. He relied on UGC Guidelines, 2018 to submit that the same requires the VC's appointment to be made by the Chancellor. It was also emphasised upon that though the Chancellor does not make decisions pertaining to the appointment of the VC on his own, the Chancellor ought not to be bypassed in the process.

Considering Mr. Kumar's submission, Justice Chandrachud asked Mr. Singhvi -

"In the original Section 8(2)(a)...who had the power? After the amendment in 2019 what is the change that is brought about?"

The Judge was of the opinion -

"The original power given to the Chancellor is not substituted by the amendment. It only introduces a condition. Re-appointment in a fresh appointment, with some modification…"

Mr. Singhvi reiterated that 'satisfaction of the State Government' in Section 8(2)(a) makes it abundantly clear that the State Government had the power to re-appointment. Only the procedure for appointment entails the approval of the Chancellor; for reappointment there is no such requirement.

Justice Chandrachud, opined that Section 8(2)(a) might not give power to appoint, but gives a voice to the State Government to determine if a person is eligible for re-appointment. However, he took note of Mr. Singhvi's argument that by inserting 'satisfaction of State Govt' the power to appoint VC now rests with the State Government.

Juxtaposing the amended and unamended Section 8(2)(a), Mr. Singhvi asserted that the intention of the amendment was to change the mode of appointment.

Justice Chandrachud reckoned -

"Such a badly drafted amendment. Obviously, your client amended it in 2019 to get over the Chancellor, but it is badly drafted."

Mr. Singhvi responded saying that the benefit of bad drafting cannot enure to the original petitioner, who was seeking direction of the Court to issue writ of quo warranto.

Senior Advocate, Mr. Jaideep Gupta representing the ousted VC supported the submissions made on behalf of the State of West Bengal, He also argued that Section 8 provides five different ways of appointments and none of them overlap. It was stated that if they overlap then the provisions would not be workable.

Upon hearing the Counsels for the parties involved, Justice Chandrachud stated -

"One thing that is bothering us is S.8(2)(a) does not specifically say who will appoint. It says 'subject to the satisfaction of the State'.

He noted that Section 8(2)(a) talks about the VC being 'eligible' for reappointment. In his opinion the drafting of the provision is such that it looks like the 'satisfaction of the State Government' merely makes one eligible to be re-appointed and does not confer power on the State Government to re-appoint the VC.

"What is the consequence of satisfaction? That they become eligible for appointment. Is that an indicator that the appointment power is still with the Chancellor."

The Apex Court has now reserved judgment in the pleas. 

[Case Title: State of West Bengal v. Anindya Sundar Das SLP(C) No. 16270/2022]