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1.K.V.Jeyaraj Vs. 1.The Chancellor of Universities, - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Judge
Appellant1.K.V.Jeyaraj
Respondent1.The Chancellor of Universities,
Excerpt:
before the madurai bench of madras high court dated:26. 06.2014 coram the honourable mr.justice v.ramasubramanian and the honourable ms.justice v.m.velumani writ petition (md) nos.11350 of 2012 and writ petition (md) nos.3318 of 2013 1.k.v.jeyaraj ... petitioner in w.p(md)no.11350 of 2012 2.i.ismail ... petitioner in w.p(md)no.3318 of 2013 vs. 1.the chancellor of universities, raj bhavan, guindy, chennai 600 022. 2.state of tamil nadu, rep by the principal secretary, department of higher education, secretariat, chennai 9. 3.university grants commission, rep by its chairman, bahadur shah zafar marg, new delhi 110 002. 4.kalyani mathivanan, vice chancellor, madurai kamaraj university, palkalai nagar, madurai 21. 5.madurai kamaraj university, rep by the registrar, palkalai nagar, madurai 625.....
Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

26. 06.2014 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN and THE HONOURABLE MS.JUSTICE V.M.VELUMANI Writ Petition (MD) Nos.11350 of 2012 and Writ Petition (MD) Nos.3318 of 2013 1.K.V.Jeyaraj ... Petitioner in W.P(MD)No.11350 of 2012 2.I.Ismail ... Petitioner in W.P(MD)No.3318 of 2013 Vs. 1.The Chancellor of Universities, Raj Bhavan, Guindy, Chennai 600 022. 2.State of Tamil Nadu, Rep by the Principal Secretary, Department of Higher Education, Secretariat, Chennai 9. 3.University Grants Commission, Rep by its Chairman, Bahadur Shah Zafar Marg, New Delhi 110 002. 4.Kalyani Mathivanan, Vice Chancellor, Madurai Kamaraj University, Palkalai Nagar, Madurai 21. 5.Madurai Kamaraj University, Rep by the Registrar, Palkalai Nagar, Madurai 625 021. 6.S.S.Chandran Babu (R-6 impleaded as per order dated 17.02.2014 in M.P(MD)No.1 of 2013) 7.The Madurai Kamaraj University, Rep by the Registrar, Palkalai Nagar, Madurai 625 021. 8.Kalyani Mathivanan, The Vice Chancellor, Madurai Kamaraj University, Palkalai Nagar, Madurai 21. 9.S.S.Chandran Babu (R3 impleaded as per order dated 17.02.2014 in M.P(MD)No.2 of 2013) ... Respondents in both W.Ps. Prayer in W.P(MD)No.11350 of 2012: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Quo Warranto to show cause under what authority the 4th respondent continuous to hold the office of the Vice Chancellor, Madurai Kamaraj University. Prayer in W.P(MD)No.3318 of 2013: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Quo Warranto to show cause under what authority the 2nd respondent continues to hold the office of the Vice Chancellor, Madurai Kamaraj University and made vide G.O.(1D)No.80, Higher Education (H2), dated 09.04.2012. !For Petitioner : Mr.G.R.Swaminathan (In W.P(MD)No.3318/2013) For Petitioner : Mr.T.Lajapathi Roy (In W.P(MD)No.11350/2012) For University : Mr.Isaac Mohanlal For 4th and 6th Respondent : Mr.T.R.Rajagopalan, (In W.P(MD)Nos.11350/2012 Senior Counsel for &3318/2013) Mrs.N.Krishnaveni For 6th and 3rd Respondent: Mr.Y.Krishnan (In W.P(MD)Nos.11350/2012 and 3318/2013) For State : Mr.A.L.Somayaji, Advocate General assisted by Mr.M.Alagudevan, Special Government Pleader. :COMMON

ORDER

V.RAMASUBRAMANIAN,J.

These Writ Petitions are for the issue of a Writ of Quo Warranto to direct the person (who is arrayed as the fourth respondent in the first writ petition in W.P(MD)No.11350 of 2012 and the second respondent in the second writ petition in W.P(MD)No.3318 of 2013) holding the office of Vice Chancellor in the Madurai Kamaraj University, to show cause under what authority she continues to hold the office of the Vice Chancellor of the University.

2. We have heard M/s. T.Lajapathi Roy and G.R.Swaminathan, learned counsel for the petitioners, Mr.A.L.Somayaji, learned Advocate General appearing for the State, Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the incumbent holding the post of Vice Chancellor, Mr.Isaac Mohanlal, learned counsel appearing for the University and Mr.Y.Krishnan, learned counsel for the impleaded party.

3. When the post of Vice Chancellor of the Madurai Kamaraj University fell vacant in 2011-2012, the Government constituted a Search Committee to appoint a suitable candidate. The names of 104 persons were considered. The Search Committee appears to have short-listed the names of three persons by name (1) Dr.R.Jayaraman, Professor of Management Studies (Retd.,), Member Secretary, Centre for Entrepreneurship Development, Madurai (2) Dr.Kalyani Mathivanan, Head of the Department of English, Ethiraj College for Women, Chennai-8 and (3) Dr.T.Ramasamy, Professor of History(on lien) Registrar, Bharathidasan University, Tiruchirapalli.

4. Eventually, by G.O.(1D)No.80, Higher Education (H2) Department, dated 09.04.2012, the fourth respondent in the first writ petition was selected and appointed as Vice Chancellor for a period of three years with effect from the date of assumption of office. Challenging her selection, one of the aspirants by name Dr.K.V.Jeyaraj came up with the first writ petition in W.P(MD)No.11350 of 2012, praying for the issue of Writ of Quo Warranto. Subsequently, another aspirant by name Dr.I.Ismail came up with the second writ petition in W.P(MD)No.3318 of 2013 for the very same relief. Therefore, both the writ petitions were taken up together for disposal.

5. Fortunately, there is less of a factual dispute than of a legal dispute in this case. The short ground on which the entitlement of the fourth respondent to hold office of the post of Vice Chancellor is questioned, is that as per the University Grants Commission Regulations 2010, the person to be appointed as Vice Chancellor should be a distinguished academician, with a minimum 10 years of experience as Professor in a University system or 10 years of experience in an equivalent position in a reputed research and/or academic administrative organization. The contesting respondent admittedly did not have a minimum of 10 years of experience as ".Professor". but she claims to have had about 31 years of teaching experience as ".Associate Professor". and that the same is equivalent to the post of Professor in a University system.

6. All the respondents including the State, the University as well as the contesting respondent admit the factual position that the fourth respondent did not hold the post of Professor at any point of time in her entire academic career. They also admit that as per the University Grants Commission Regulations 2010, the person to be appointed should have a minimum of 10 years of experience as Professor. But the contention of the respondents are two fold namely; a) that the fourth respondent was holding an equivalent position and hence, the requirement of University Grants Regulations 2010 stands satisfied; and (b) that in any case the Statutes of the University did not prescribe such a qualification and hence, the UGC Regulations cannot overrule the prescription contained in the Statutes of the University.

7. In the light of the above admitted factual position and the two contentions advanced by the respondents, we think that two questions arise for consideration in these writ petitions:- (i) Whether the post of Associate Professor, held by the fourth respondent in a private aided college could be considered as an equivalent post, satisfying the requirements of Paragraph 7.3.0 of the University Grants Commission Regulations 2010; and (ii) Whether the University Grants Commission Regulations 2010 are mandatory or directory and whether they would have an overriding effect upon the provisions of the University Act and the Statutes.

8. Before we proceed to consider the above two questions that arise for consideration, we must record one fact namely that though the respondents had raised the question of maintainability of the writ petitions, in the counter affidavits filed by them, the said issue was not pressed into service in the course of arguments. This is on account of two facts namely, (a) that the writ petitioners themselves were aspirants and their names were also considered as part of the 104 names originally taken up for consideration and (b) that in any case, the question of locus standi in such cases, has paled into insignificance in the light of the development of law, as traced by the Supreme court in Central Electricity Supply Utility of Odisha Vs.Dhobei Sahoo and others, (2014) 1 SCC161 Since the Supreme Court has referred to several earlier decisions on the same issue, we are not going into greater detail. In Paragraph 21 of the said decision, the Supreme Court pointed out that the jurisdiction of the High Court to issue a Writ of Quo Warranto is a limited one and can be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to statutory rules. It was further pointed out by the Supreme Court that the concept of locus standi which is strictly applicable to service jurisprudence, should not be allowed to have any entry, for such allowance is likely to exceed the limits of Quo Warranto. The basic purpose of a Writ of Quo Warranto, it was pointed out by the Supreme Court, is to confer jurisdiction on the Constitutional courts to see that the public office is not held by a usurper without any legal authority. While this Court exercising the jurisdiction to issue a Writ of Quo Warranto, cannot test the suitability of a candidate, the Court can certainly look into the eligibility. Therefore, the issue of of maintainability of the writ petitions, was actually given up by the respondents at the time of hearing. Hence, we proceed to consider only the above two questions. Question No.1 9. As we have pointed out above, the first question that arises for our consideration is whether or not the post of Associate Professor, held by the fourth respondent in a private aided college could be considered as an equivalent post, satisfying the requirements of Paragraph 7.3.0 of the University Grants Commission Regulations 2010.

10. In exercise of powers conferred under clauses (e) and (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956, the University Grants Commission framed certain Regulations known as ".University Grants Commission Regulations On Minimum Qualifications For Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education, 2010".. These regulations were notified on 30.06.2010 and they were issued in supercession of the previous set of regulations issued in the year 2000. Under Regulation 1.2 of these regulations, they were made applicable to every University incorporated by or under a Central Act or a State Act and every institution including a constituent or an affiliated college recognized by the Commission, in consultation with the Universities concerned under section 2(f) of the University Grants Commission Act, 1956. Interestingly, Regulation 1.2 declared that these regulations would apply even to every institution deemed to be a University under Section 3 of the University Grants Commission Act, 1956.

11. Regulation 2 of the 2010 Regulations stipulates that the minimum qualifications for appointment and other service conditions of University and College Teachers, Librarians and Directors of Physical Education and Sports, as a measure for the maintenance of standards in higher education, shall be as provided in the Annexure to these regulations.

12. The consequences of failure of the Universities to comply with the recommendations of the Commission are indicated in Regulation 3 which reads as follows:- If any University Grants affiliation in respect of any course of study to any college referred to in sub-section (5) of Section 12-A in contravention of the provisions of the sub-section, or fails within a reasonable time to comply with any recommendations made by the Commission under Section 12 or Section 13, or contravenes the provisions of any rule made under clause (f) of sub-section (2) of Section 25 or of any regulations made under clause (e) or clause (f) of clause (g) of sub-section (1) of Section 26, the Commission after taking into consideration the cause, if any, shown by the University for such failure or contravention, may withhold from the University the grants proposed to be made out of the fund of the Commission 13. The Annexure to the 2010 Regulations, deals with various issues such as (i) coverage, (ii) pay scales, pay fixation formula and age of superannuation etc., (iii) recruitment and qualifications (iv) direct recruitment of Professors, Principal, Associate Professors, Assistant Professors etc., in various Departments (v) selection committees and guidelines on selection procedures (vi) selection procedures (vii) selection of Pro-Vice chancellor / Vice Chancellor of Universities (viii) duty leave, study leave, sabbatical leave etc.,.

14. From a careful perusal of the Annexure to the 2010 Regulations, it could be seen that the prescriptions contained therein are supposed to be all comprehensive as they deal with almost all types of service matters such as the method of recruitment, qualifications, pay scales, leave etc., 15. Insofar as the selection of Pro-Vice chancellor and Vice Chancellor of Universities is concerned, Paragraph 7 of the Annexure to the 2010 Regulations deals with the same in extenso. Though, the controversy on hand is confined only to paragraph 7.3.0, it would be better to have a look at the paragraph in entirety. Hence, it is extracted as follows: 7.0.0 Selection of Pro-Vice Chancellor / Vice Chancellor of Universities:- 7.1.0 Pro Vice Chancellor The Pro-Vice Chancellor may be a whole time Professor of the University and shall be appointed by the Executive Council on the recommendation of Vice Chancellor. 7.2.0 The Pro Vice Chancellor shall hold office for a period which is co- terminus with that of Vice Chancellor. However, it shall be the prerogative of the Vice Chancellor to recommend a new Pro Vice Chancellor to the Executive Council, during his tenure. These Regulations, for selection of Pro Vice Chancellor shall be adopted by the concerned University through amendment of their Act/Statute. 7.3.0 Vice Chancellor i)Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vice Chancellors. The Vice Chancellor to be appointed should be a distinguished academician, with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and / or academic administrative organization. ii)The selection of Vice Chancellor should be through proper identification of a Panel of 3-5 names by a Search Committee through a public notification or nomination or a talent search process or in combination. The members of the above Search Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges. While preparing the panel, the search committee must give proper weightage to academic excellence, exposure to the higher education system in the country and abroad, and adequate experience in academic and administrative governance to be given in writing along with the panel to be submitted to the Visitor/Chancellor. In respect of State and Central Universities, the following shall be the constitution of the Search Committee. a)a nominee of the Visitor/Chancellor, who should be the Chairperson of the Committee b)a nominee of the Chairman, University Grants Commission, c)a nominee of the Syndicate /Executive Council/Board of Management of the University iii)The Visitor/Chancellor shall appoint the Vice Chancellor out of the Panel of names recommended by the Search Committee. iv)The conditions of service of the Vice Chancellor shall be prescribed in the Statutes of the Universities concerned in conformity with these Regulations. v)The term of office of the Vice Chancellor shall form part of the service period of the incumbent concerned making him/her eligible for all service related benefits. 7.4.0.The Universities/State Governments shall modify or amend the relevant Act/Statutes of the Universities concerned within 6 months of adoption of these Regulations.

16. As could be seen from paragraph 7.3.0 (i), the Vice Chancellor to be appointed should be a distinguished academician with a minimum of 10 years experience as Professor in a University system or 10 years of experience in an equivalent position in a reputed research and/or academic administrative organization. The manner in which paragraph 7.3.0 (i) is worded, has given rise to a contention that the fourth respondent herein held an equivalent position. As per the counter affidavits of the Government as well as the fourth respondent she was originally appointed as an Assistant Professor in a private aided college by name Ethiraj College for Women, Chennai on 16.01.1981. Thereafter, she completed her Doctorate degree in English in 1994 and was recognised as a Research Guide for M.Phil., students from the year 1995 and as a Research Guide for Ph.D., students from 1998. She was also awarded, D.Litt. in English by the University of Madras in the year 2003. She became an Associate Professor of English in the same college and appears to have become the Head of Department of English also. But at the time of her appointment as Vice Chancellor, she was holding only the post of Associate Professor and not the post of Professor.

17. Therefore, the first question that falls for consideration is whether the posts of Associate Professor and Professor are equivalent posts or not. Though the learned counsel for the University contended that none of the colleges in the State has the post of Professor and that in all Government and Private aided Colleges, the Associate Professors themselves become the Heads of Departments, we do not think that posts of Professor and Associate Professor could be taken to be equivalent.

18. Paragraph 4.0.0 of the Annexure to the 2010 Regulations, stipulates the qualifications for direct recruitment to the posts of Principal, Professor and Associate Professor. The distinction between these posts can be better appreciated if the qualifications stipulated in paragraph 4.0.0 for these posts are presented in the form of tabulation. The tabulation is as follows: Professor Associate Professor Principal A.(i)An eminent scholar with Ph.D qualification(s) in the concerned/allied/relevant discipline and published work of high quality, actively engaged in research with evidence of published work with a minimum of 10 publications as books and/or research/policy papers. i)Good academic record with a Ph.D degree in the concerned/allied/ relevant disciplines. A Master's degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University. (ii)A minimum of ten years of teaching experience in university/college, and/or experience in research at the University/National level institutions/industries, including experience of guiding candidates for research at doctoral level ii)A Master's degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) ii)A Ph.D Degree in concerned/allied/ relevant discipline(s) in the institution concerned with evidence of published work and research guidance. iii)Contribution to educational innovation, design of new curricula and courses, and technology  mediated teaching learning process iii)A minimum of eight years of experience of teaching and/or research in an academic/research position equivalent to that of Assistant Professor in a University, College or Accredited Research Institution/ industry excluding the period of Ph.D research with evidence of published work and a minimum of 5 publications as books and/or research/policy papers iii)Associate Professor/ Professor with a total experience of fifteen years of teaching /research/administration in Universities, Colleges and other institutions of higher education. iv)A minimum score as stipulated in the Academic Performance indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Appendix III. iv)Contribution to educational innovation, design of new curricula and courses, and technology  mediated teaching learning process with evidence of having guided doctoral candidates and research students. iv)A minimum score as stipulated in the Academic Performance indicator (API) based Performance Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges. OR B. An outstanding professional, with established reputation in the relevant field, who has made significant contributions to the knowledge in the concerned/allied/relevant discipline to be substantiated by credentials. v)A minimum score as stipulated in the Academic Performance indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Appendix III.

19. The above tabulation would show that for appointment to the post of Professor, one should have a minimum of 10 years of teaching experience, including an experience of guiding candidates for research at the doctorate level. But for appointment to the post of Associate Professor, it is enough if the aspirant has a minimum of 8 years of experience. Similarly, for appointment to the post of Professor, the candidate should produce evidence of published works with a minimum of 10 publications as books, but for the post of Associate Professor one must have only a minimum of 5 publications as books.

20. Moreover, the scales of pay of the posts of Professor and Associate Professor are different. The post of Associate Professor carries a lesser scale of pay than that of the post of Professor.

21. Even in the matter of constitution of Selection Committees and Guidelines of selection procedures as evolved in Paragraph 5.0.0, both these posts stand on different footings. Under Paragraph 6.4.8 of the Annexure to the 2010 Regulations, an Associate Professor becomes eligible for promotion to the next higher post of Professor. In other words, Paragraph 6.4.8 and Paragraph 6.4.9 clearly indicate that the post of Professor is a promotional post to the post of Associate Professor, even under the Career Advancement Scheme. Paragraph 6.4.8 and 6.4.9 read as follows:- 6.4.8.Associate Professor completing three years of service in stage 4 and possessing a Ph.D Degree in the relevant discipline shall be eligible to be appointed and designated as Professor and be placed in the next higher grade (Stage 5), subject to (a) satisfying the required credit points as per API based PBAS methodology provided in Table I-III of Appendix IV stipulated in these Regulations and (b) an assessment by a duly constituted selection committee as suggested for the direct recruitment of Professor. Provided that no teacher, other than those with a Ph.D., shall be promoted or appointed as Professor. 6.4.9. In the case of Associate Professors in Colleges, promotion to the post of Professor under CAS shall be further subject to Clause 6.5.1 and 6.5.2 of this Regulation.

22. Paragraph 6.5.0 deals with the post of Professors in Under Graduate and Post Graduate Colleges. As per the prescription contained therein, 10 percent of the number of posts of Associate Professor in an Under Graduate College shall be that of Professors and shall be subject to the same criterion for selection/appointment as that of Professors in Universities. It also prescribes that there shall be no more than one post of Professor in each Department. Even the ratio is fixed for promotion as well as the direct recruitment to the post of Professor, in paragraph 6.5.1 and 6.5.2. They read as follows:- 6.5.1(i).Ten percent of the number of posts of Associate Professor in an Under Graduate College shall be that of Professors and shall be subject to the same criterion for selection/appointment as that of Professors in Universities. Provided that there shall be no more than one post of Professor in each Department; Provided further that one fourth (25%) of the posts of Professor in Under Graduate Colleges shall be directly recruited or filled on deputation by eligible teachers and the remaining three fourths (75%) of posts of Professors shall be filled by CAS promotion from among eligible Associate Professors of the relevant department of the Under Graduate College. For avoidance of doubt, it is clarified that sanctioned posts include the posts approved under both direct recruitment and CAS promotion. ii)Identification of posts of Professor in an Under Graduate College for being filled through direct recruitment/deputation shall be carried out by the affiliating/concerned University acting in consultation with the College. Where the number of posts of Professor worked out as a percentage of the number of posts of Associate Professor for CAS promotion or direct recruitment/deputation is not an integer, the same shall be rounded off to the next higher integer. iii)The selection process is to be conducted by the University by receiving PBAS proformas from eligible Associate Professors based on seniority and three times in number of the available vacancies. In case the number of candidates available is less than three times the number of vacancies, the zone of consideration will be limited to the actual number of candidates available. The selection shall be conducted through the API scoring system with PBAS methodology and selection committee process stipulated in these Regulations for appointment of Professors. For direct recruitment of the 25% of the posts, the 'Rota-Quota system shall be followed starting with promotions and the direct recruitment quota shall be rotated in an alphabetical order. 6.5.2.There shall be one post of Professor in each Department of a Post Graduate College which shall be subject to the same criterion for selection/appointment as that of Professors in Universities, provided that one fourth (25%) of the posts of Professor shall be filled on deputation/direct recruitment from among eligible teachers and the remaining three fourths (75%) of posts shall be filled through merit promotion from among the eligible Associate Professors in the relevant department of the Post Graduate college. Identification of posts of Professor in a Post Graduate College for being filled through direct recruitment/deputation shall be carried out by the affiliating/concerned University acting in consultation with the College. The decision regarding whether the posts of Professor will be for CAS promotion or direct recruitment/deputation shall be within the competence of the University acting in consultation with the College. Where the number of posts of Professor for CAS promotion or direct recruitment/deputation worked out as a percentage of the total number of posts in a Post Graduate College is not an integer, the same shall be rounded off to the next higher integer. The selection process is to be conducted by the University by receiving PBAS proformas from eligible Associate Professors based on seniority and three times in number of the available vacancies. In case the number of candidates available is less than three times the number of vacancies, the zone of consideration will be limited to the actual number of candidates available. The selection shall be conducted through the API scoring system with PBAS methodology, selection committee process stipulated in these Regulations for appointment of Professors. For direct recruitment of the 25% of the posts, the 'Rota Quota system' shall be followed starting with promotion and the direct recruitment quota shall be rotated in an alphabetical order. Therefore, it is clear that the post of Professor is a promotional post to the post of Associate Professor and hence, the contention that the post of Associate Professor is an equivalent post to that of Professor is to be rejected.

23. There is no denial of the fact that the post of Associate Professor carries a lesser scale of pay than that of Professor and that the post of Associate Professor belongs to the feeder category to the post of Professor. Therefore, it is not open to the respondents to contend that both these posts are equivalent posts.

24. The alternative contention advanced by the respondents that no one is holding the post of Professor in any Government or aided Colleges as on date, is falsified by the records.

25. The petitioners have applied for information under the Right to Information Act, 2005 and have obtained information to the effect that a majority of 104 candidates whose names came up for consideration, held the posts of Professor. Even among the three names short listed by the Search Committee for eventual consideration, two of them, by name Dr.R.Jayaraman and Dr.T.Ramasamy were Professors. The letter dated 16.07.2012 sent by the Public Information Officer in the Governor's Secretariat, under the Right to Information Act, discloses this fact. The Annexure to question No.4 contained in the said letter dated 16.07.2012 reads as follows:- 4.Following are the three applicants short listed for consideration by the Search Committee for the Vice Chancellorship of Madurai Kamaraj University:

1. Dr.R.Jayaraman, Professor of Management Studies (Retd.,), Member Secretary, Centre for Entrepreneurship Development, Madurai. 2.Dr.Kalyani Mathivanan, Head of the Department of English, Ethiraj College for Women, Chennai-8 (the contesting respondent herein). 3.Dr.T.Ramasamy, Professor of History (on lien)Registrar, Bharathidasan University, Tiruchirapalli 620 024.

26. Therefore, the contention that no person holding the post of Professor was available in any of the Government or aided Colleges, can never be accepted. The fact that the post of Associate Professor cannot be considered as equivalent to the post of Professor, cannot be disputed in the light of the provisions of the Regulations as well as in the light of the different pay scales. Hence, we hold on the first contention that the fourth respondent herein did not satisfy the eligibility criteria as stipulated in paragraph 7.3.0 of the Annexure to the University Grants Commission Regulations, 2010. The post that she held was not an equivalent post, so as to satisfy the prescription contained in paragraph 7.3.0 (i) of the Annexure. As a matter of fact, Mr.G.R.Swaminathan, learned counsel for the petitioner, is right in his contention as to how the prescription contained in paragraph 7.3.0(i) is to be read. If properly read, paragraph 7.3.0 (i) would show that a person to be appointed as Vice Chancellor should be a distinguished academician with a minimum of--- ".i) 10 years of experience as Professor in a university system or ii) 10 years of experience in an equivalent position in a reputed research or academic administrative organization"..

27. The expression equivalent position would not go with the expression Professor. The first limb, namely ".the Professor in a University system". stands independently of the second limb namely, ".an equivalent position in a reputed research and or academic administrative organization".. Therefore, we have no hesitation in concluding that the fourth respondent did not satisfy the eligibility criteria as prescribed in paragraph 7.3.0 of the Annexure to the University Grants Commission Regulations 2010. Question No.2 28. The conclusion that we have reached in respect of the first question would naturally take us to the next contention as to whether the prescriptions contained in paragraph 7.3.0 of the Annexure to the University Grants Commission Regulations, 2010 is mandatory or directory and as to whether they could override the provisions of the University Act and the Statutes of the University. According to the respondents, the post of Vice Chancellor is not a teaching post and hence, the prescription contained in paragraph 7.3.0 could at the most be taken to be directory and not mandatory. It is the contention of the respondents that all the Regulations issued by the University Grants Commission in exercise of the power conferred by Section 26(1) (e) in relation to the teaching staff and maintenance of standards may be mandatory in nature. But according to them, the post of Vice Chancellor is not a teaching post and that therefore, that part of the Regulations dealing with non teaching posts could never be considered to be mandatory but only recommendatory in terms of Section 12 (I) of the University Grants Commission Act, 1956. Hence, the respondents contend that the University Grants Commission Regulations 2010 cannot override the provisions of the Madurai Kamaraj University Act and the Statutes of the University.

29. In support of the above contention, the respondents rely upon a decision of the High Court of Bombay in Public Interest Litigation No.80 of 2011, delivered on 11.05.2012 in Suresh Patilkhede Vs. The Chancellor. In the said case, the Chancellor of Pune University (Governor of Maharashtra) formed a Search Committee consisting of three persons one of whom was the former Chief Justice of the Punjab and Haryana High Court. The Search Committee invited applications and nominations from academicians who fulfilled the qualifications as prescribed by the Higher and Technical Education Department of the State Government. The newspaper advertisement inviting applications, was challenged on the ground that the qualifications prescribed by the State Government were in violation of the University Grants Commission Regulations, 2010. After referring to Article 246 of the Constitution of India with reference to Entry 66 in List I and Entry 25 in Concurrent List, the Division Bench of the Bombay High Court held that University Grants Commission Regulations 2010 were only recommendatory in nature in terms of Section 12(d) of the University Grants Commission Act, 1956 and that in relation to non teaching posts, the Regulations cannot be treated as mandatory as in the case of regulations traceable to Section 26(e) of the University Grants Commission Act, 1956. Therefore, eventually the Division Bench of the Bombay High Court upheld the procedure adopted by the Search Committee and dismissed the writ petition holding that the University Grants Commission Regulations 2010 cannot supersede or override the prescriptions issued by the State Government. This decision of the Division Bench of the Bombay High Court was also affirmed by the Supreme Court with dismissal of the Special Leave Petition even at the admission stage.

30. The respondents also rely upon a decision of the Andhra Pradesh High Court to the same effect in Acharya N.G.Ranga Agricultural University Vs. M.Devender Reddy, CDJ2013APHC076 But we should point out at the outset that the decision of the A.P. High court is not directly on the point, though it was held therein that the Government cannot direct the UGC guidelines to be implemented till the State enactment is amended. Moreover, this decision is in conflict with the decision of a Division Bench of this court in Secretary, Kamaraj College Vs. D.S.Arulmani {2008 (2) MLJ593, wherein we have held that the UGC Regulations, 2000 are mandatory.

31. The respondents also rely upon a policy decision taken by the University Grants Commission in its 487th meeting held on 18th and 19th of July 2012. In the said meeting, the University Grants Commission has decided to delete Paragraph 7.3.0 from the University Grants Commission Regulations. Though the said decision is not yet approved by the Central Government leading to an amendment of the University Grants Commission Regulations 2010, the respondents claim that the decision taken by the University Grants Commission to delete Paragraph 7.3.0 is an indicator to show that the prescription contained therein is only recommendatory or directory and not mandatory.

32. We have carefully considered the above submissions.

33. In our considered view, the second question before us, actually has three facets namely:- a) Whether the post of vice chancellor is not to be considered as part of the teaching staff; b) Whether the Madurai Kamaraj University Act and the Statutes issued thereunder prescribe a different set of qualifications for the post of Vice Chancellor than those prescribed by the University Grants Commission Regulations, 2010 leading to a conflict; and c) Whether in the event of a conflict between the State enactment and the University Grants Commission Regulations, 2010, the provisions of the State enactment would prevail. Facet-1 34. Let us now take up the first facet namely, whether the Vice Chancellor of a University is to be considered as a member of the teaching staff or not. The Division Bench of the Bombay High Court, on whose decision, a heavy reliance is placed by the respondents, considered this question in Paragraph 13 of its judgment and held that the Vice Chancellor of a University is an Administrative Head and that he cannot be considered as a member of the teaching staff merely because he is considered to be the Academic Head.

35. But a careful perusal of the decision of the Bombay High Court in Suresh Patilkhede would show that the conclusion reached by the Bombay High Court in Paragraph 13 of its decision is with reference to the provisions of the Maharashtra Universities Act, 1994. The Bombay High Court has not cited the relevant provisions of the Maharashtra Universities Act, 1994 in Paragraph 13 of its decision, to come to the conclusion that did it (at least in respect of educational qualifications required for the post). Therefore, we are unable to see whether the provisions of the Maharashtra Universities Act, 1994 are in pari materia with the provisions of the Madurai Kamaraj University Act, 1965 or not.

36. Before proceeding to see whether the Vice Chancellor of the Madurai Kamaraj University could be considered as a member of the teaching staff or not, it is necessary to have a look at the relevant provisions of the Madurai Kamaraj University Act,1965.

37. Section 2 of the Madurai Kamaraj University Act, 1956 defines the words Principal and Teachers in clauses (i) and (m) respectively. The expression Vice Chancellor is not defined under Section 2. However, the definition of the expressions Principal and Teachers do not include within their purview the Vice Chancellor. This is why it is contended by the respondents that the Vice Chancellor is not a Teacher within the meaning of Section 2 (m) of the Act.

38. Section 9 of the Act deals with the Chancellor. Section 10 deals with the Pro-Chancellor and Section 11 deals with the Vice Chancellor. Section 11 reads as follows: 11.The Vice Chancellor (1) Every appointment of the Vice Chancellor shall be made by the Chancellor from out of a panel of three names recommended by the Committee referred to in sub-section (2). Such panel shall not contain the name of any member of the said Committee. [Provided that if the Chancellor does not approve any of the persons in the panel so recommended by the Committee, he may take steps to constitute another Committee, in accordance with sub-section (2), to give a fresh panel of three different names and shall appoint one of the persons named in the fresh panel as the Vice Chancellor].. 2)For the purpose of sub-section (1), the Committee shall consist of three persons of whom one shall be nominated by the Senate, one shall be nominated by the Syndicate and one shall be nominated by the Chancellor. Provided that the person so nominated shall not be a member of any of the authorities of the University. 3)The Vice Chancellor shall hold office for a period of three years and shall be eligible for re-appointment for not more than two successive terms. 4)When any temporary vacancy occurs in the office of the Vice Chancellor or if the Vice Chancellor is, by reason of absence or for any other reason, unable to exercise the powers and perform the duties of his office, the Syndicate shall, as soon as possible, make the requisite arrangements for exercising the powers and performing the duties of the Vice Chancellor. 5)The Vice Chancellor shall be a whole time officer of the University and shall be entitled to such emoluments, allowances and privileges as may be prescribed by the statutes.

39. Section 12 of the Act lists out the powers and duties of the Vice Chancellor. It reads as follows: 12. Powers and duties of the Vice Chancellor:- 1)The Vice Chancellor shall be the academic head and the principal executive officer of the University and shall, in the absence of the Chancellor and Pro Chancellor, preside at meetings of the Senate and at any convocation of the University. He shall be a member ex-officio and Chairman of the Syndicate, the Academic Council and the Finance Committee and shall be entitled to be present at and to address any meeting of any authority of the University but shall not be entitled to vote thereat unless he is a member of the authority concerned. 2) It shall be the duty of the Vice Chancellor to ensure that the provisions of this Act, the statutes, ordinances and regulations are observed and carried out and he may exercise all powers necessary for this purpose. 3) The Vice Chancellor shall have power to convene meetings of the Senate, the Syndicate, the Academic Council and the Finance Committee. 4)(a) In any emergency which in the opinion of the Vice Chancellor requires that immediate action should be taken, he may take such action with the sanction of the Chancellor or the Pro Chancellor, as the case may be and shall as soon as may be thereafter report his action to the officer or authority who or which would have originally dealt with the matter (b) When action taken by the Vice Chancellor under this sub-section affects any person in the service of the University, such person shall be entitled to prefer an appeal to the Syndicate within thirty days from the date on which he has notice of such action. 5) The Vice Chancellor shall give effect to the orders of the Syndicate regarding the appointment, suspension and dismissal of the teachers and servants of the University and shall exercise general control over the affairs of the University. 6) The Vice Chancellor shall exercise such other powers as may be prescribed.

40. A careful look at Sections 11 and 12 of the Act would show the following:- i) that though they prescribe several things such as the method of appointment of the Vice Chancellor, the authority competent to appoint the Vice Chancellor as well as the tenure of the Vice Chancellor, they do not prescribe qualifications or eligibility criteria for appointment to the post; ii) that the Vice Chancellor under Section 12(1), is not merely the Principal Executive Officer of the University, but he is also the Academic Head; iii) that the Vice Chancellor is the Chairman of the Syndicate as well as the Academic Council; iv) that the Vice Chancellor is vested with the power and obligation to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are observed; and v) that the Vice Chancellor is obliged to give effect to the orders of the Syndicate regarding the appointment or dismissal etc., of teachers and servants of the University and he is vested with general control over the affairs of the University.

41. In order to understand the residual powers conferred upon the Vice Chancellor under sub Sections (2) and (5) of Section 12, we must actually have a look at Section 4 which enlists the powers of the University itself. Under Section 4, the University itself has certain objects and powers such as (i) the provision for instruction and training in such branches of learning as it may determine; (ii) the provision for research and for the advancement and dissemination of knowledge (iii) holding of examinations and the conferment of degrees, diplomas and other academic distinctions, maintenance and management of institutes of research, University, Colleges, laboratories, libraries, museums etc., (iv) the institution of lectureship, readership, professorship, etc., and (v) the institution and award of fellowship, scholarship etc., 42. A careful look at Section 4 of the Act would show that the objects and powers of the Madurai Kamaraj University are so delineated, that the University is expected to serve as the beacon light of higher education. It is in the light of the objects and powers of the University prescribed under Section 4 that the prescription in Section 12 (1) that the Vice Chancellor shall be the Academic Head of the University, has to be understood.

43. It is true that when the seeds of western education were sown in this country about 150 years ago, men of eminence from various walks of life were appointed as Vice Chancellors. Several Judges of this Court have adorned the post of Vice Chancellor of various Universities including the Madras University itself. But apart from being great (and rare) Judges, those men were also distinguished academicians who excelled in various fields. Students of Indian History would know that Sir John George Woodraff who was a Judge of the Calcutta High Court and who retired as the Officiating Chief Justice of the same Court, collaborated with Ameer Ali in publishing the Civil Procedure Code. He was a great Sanskrit scholar who authored books on Mantra Sastra and Tantra Satra. After retiring as the Officiating Chief Justice, he served as a Reader in law in the Oxford University for seven years. Great Jurists, both (Lawyers and Judges) such as Sir Subramanya Ayyar, Sir P.S.Sivaswamy Ayyar, Justice F.D.Oldfield were among a few who became the Vice Chancellors of Madras University, ever since its inception about 150 years. But today, it is not possible to continue with the same legacy for two reasons, namely:- (a) that we do not have such tall men of great eminence and (b) that today the field is regulated by law.

44. Therefore, it is not possible to accept the contention that drawing inspiration from the past, one need not be a Professor or even a teacher to become a Vice Chancellor. As a matter of fact, several committees were constituted in the past about 70 years by the Government of India, to improve the standards of Universities. Recently, a study was conducted by two persons by name K.Sudha Rao, Vice Chancellor, Karnataka State Open University, Mysore and Advisor ASERF and Mithilesh Kr.Singh, Senior Fellow, (ASERF), New Delhi analysing the different methods adopted for the appointment of Vice Chancellors in Indian Universities in comparison to those adopted by some foreign Universities.

45. This paper indicates that as per the reports of the Radhakrishnan Commission (1948:422-23), Kothari Commission (1964-1966:333- 35), Gnanam Committee (1990:

27. 30) and Ramlal Parikh Committee (1993:

15. 17), the Vice Chancellors have an important role in maintaining the quality and relevance of universities. The highlights of some of the committees were extracted in the said paper by the learned authors as follows:- Generally the Vice-Chancellor should be a distinguished educationist or eminent scholar in any of the disciplines or professions, with a high standing in his/her field and adequate administrative experience. We are not generally in favour of appointment of persons who have retired from other fields. An exception to this general recommendation should be made only in the case of very outstanding persons whose association with the universities would be desirable from every point of view and should not be made an excuse for 'accommodating' or 'rewarding individuals who do not fulfill the conditions laid down. A Vice-Chancellor is one who stands for the commitment of the university to scholarship and pursuit of truth. (Kothari Commission 1964-66:

334. A Vice-Chancellor should be a person with vision and (have) qualities of academic leadership with ability for administration. He should command high respect among all sections of the society. The Vice Chancellor should be a distinguished academic...(who) has commitment to the values for which the universities stand...He must have the ability to provide leadership to the university by his academic worth, administrative competence and moral stature. (Kothari Commission 1964-66:

334. Parikh Committee was not in favour of appointing government officials as VC's. Quoting the Kothari Commission Report, the Parikh Committee mentions that the Vice Chancellor is the most important functionary in a university not only on the administrative side but is also charged with the responsibility of creating the right atmosphere for teachers and students. The universities need distinguished and dignified persons as VCs and it is necessary to ensure that they are treated with dignity and regard, which the office merits. (Ramlal Parikh Committee 1993:

15. . The Vice- Chancellor is the most important functionary in a university, not only on the administrative side but also for securing the right atmosphere for the teachers and the students to do their work effectively and in the right spirit. (Report of the Committee on Model Act for Universities 1964:

11. The Vice-Chancellor being the principal executive and academic officer of the university, should exercise general supervision and control over the affairs of the university and give effect to the decision of all its authorities. He shall be the ex-officio Chairman of the Court, Executive Council, Academic Council, Finance Committee and Selection Committees and shall, in the absence of the Chancellor preside at any convocation of the university for conferring degrees. It shall be the duty of the Vice- Chancellor to see that the provisions of the Act, Statutes and Ordinances and Regulations are fully observed and he should have the power necessary for the discharge of this duty. (Gajendragadkar Committee on the Governance of the University, 1971:

60. . In accordance with Regulation 1 for the office of VC (Statutes and Ordinances of Cambridge University, June 2002:

655. .... the VC is of a stature and his/her presence commensurate to lead a distinguished academic institution. The stated mission of the University is to contribute to society through the pursuit of education, learning, and research at the highest international levels of excellence. The VC must be of exceptional calibre with academic credibility, clear strategic vision, and outstanding leadership qualities. He/she should have strong management skills and senior level experience gained in a complex institution and the ability to bring them to bear in a democratic, self governing university. The ability to promote the University in a regional, national and international context, and to increase the financial resources available to the University, should be key, particularly in order to realize the full potential of the University. 46. Therefore, with great respect, we are unable to subscribe to the view expressed by the Bombay High Court in paragraph 13 of its decision in Suresh Patilkhede that the Vice Chancellor need not be considered as a member of the academic teaching staff.

47. In an interesting Article, titled Why Socrates should be in the Boardroom in Research Universities, published in 2010 by Amanda H. Goodall, Leverhulme Fellow, Warwick Business School, the author points out two contrasting events that happened in 2003 and 2004. It is common knowledge that Cambridge University came into existence in 1209 and almost about 800 years later, a distinguished Anthropologist, by name Alison Richard, was appointed as the 344th President or Vice-chancellor of Cambridge. She was an acclaimed academician. In contrast to what happened at Cambridge in 2003, Oxford University appointed in 2004, a person by name John Hood, who was not an academic but was only a businessman. He became the first head of Oxford University, ever since the year 1230, to be elected to the Vice- chancellorship from outside the University's current academic body. The paper authored by Amanda Goodall considered the question as to why Cambridge and Oxford chose such different individuals to lead their ancient and reputed institutions. The central theme of the paper was as to whether there was a relationship between University performance and leadership by an accomplished researcher. Eventually, after analysing the statistics from about 100 Universities throughout the world, the author came to the conclusion, supported by evidence that Research Universities should be led by top scholars. The conclusions reached by the author could be summarised as follows: (i) That the best Universities in the world are led by more established scholars; (ii) That scholar-leaders are considered to be more credible leaders in Universities, commanding greater respect from their academic peers. (iii) That setting an organisation's academic standards is a significant part of the function of the Vice-chancellor and hence one should expect the standard bearer to first bear that standard. (iv) That a leader, who is an established scholar, signals the institution's priorities, internally to its faculties and externally to potential new academic recruits, students, alumni, donors and the media. (v) That since scholarship cannot be viewed as a proxy for either management experience or leadership skills, an expert leader must also have expertise in areas other than scholarship.

48. If University Grants Commission Regulations, 2010, will have to be given effect to (subject to our finding on the next two facets of question No.2), the Vice Chancellor should actually be a distinguished academician. Today, Albert Einstein cannot be appointed as the Vice Chancellor of any university (at least in India) unless he fulfills the qualifications prescribed by University Grants Commission, the reason being that after a legislative enactment lays down the objective criteria, there is no place for subjective satisfaction.

49. We do not mean to say that the fourth respondent is not an academician. She has always been a teacher and Mr.A.L.Somayaji, learned Advocate General took great pains to highlight the academic and other achievements of the fourth respondent. But we are solely on the question as to whether we could concur with the opinion of the Bombay High Court that a Vice Chancellor is not part of the teaching staff. There may be a hair splitting difference between being part of an academic stream and being part of the teaching faculty. But it is not possible for us to accept the interpretation that one can be the academic head but cannot be considered as part of the teaching staff. Facet No.2 50. The Second facet of the issue on hand, is as to whether the Madurai Kamaraj University Act and the Statutes issued thereunder prescribe a different set of qualifications than those stipulated by the University Grants Commission Regulations 2010 or not.

51. We have already extracted Sections 11 and 12 of the Madurai Kamaraj University Act, 1965. Though, these two provisions indicate (i) the method of appointment, (ii) the authority competent to make appointment (iii) the term of office and (iv) the powers and duties of the Vice Chancellor, they do not prescribe the eligibility criteria for persons to be appointed as Vice Chancellors. Insofar as the post of Chancellor is concerned, Section 9 (i) stipulates the one and only eligibility criteria namely that he shall be the Governor of Tamil Nadu. Similarly, the Minister of State of Tamil Nadu in charge of the Portfolio of Education is declared by Section 10(1) to be the Pro-Chancellor. Therefore, for the posts of Chancellor and Pro-Chancellor, the Act contains at least one and only eligibility criteria. But for the post of Vice Chancellor, Sections 11 and 12 do not prescribe any qualification, either educational or otherwise. Even if the Act does not prescribe any qualifications, at least the Statutes of the University could prescribe. But they also do not.

52. Section 30 of the Madurai Kamaraj University Act 1965, enlists the matters, which could be provided in the Statutes of the University. Section 31 lays down the procedure for making Statutes. Similarly Sections 32 and 33, indicate as to how Ordinances could be issued and the matters for which provisions could be made in the Ordinances. Section 34 indicates how regulations could be made. The Statutes of the Madurai Kamaraj University, issued under Section 31 of the Act, contain certain provisions relating to Chancellor, Pro-Chancellor and the Vice Chancellor.

53. Chapter V of the Statues, contains elaborate provisions regarding the office of Vice Chancellor. Statute 1 of Chapter V of the Statutes stipulates that the Vice Chancellor shall be appointed by the Chancellor from out of a panel of three names recommended by the Committee referred to in Statute 5. If the Chancellor does not approve any of those names recommended by the Committee, he can reconstitute the Committee with a mandate to recommend a fresh panel of three different names. Statute 2(1) of Chapter V declares that the Vice Chancellor shall be a whole time Officer of the University and the academic head and Principal Executive Officer of the University. Statute 2(5) empowers the Vice Chancellor to exercise a general control over all the affairs of the University. Statute 2 (10) confers residual powers upon the Vice Chancellor to exercise all such powers not expressly mentioned therein, which are necessary for or incidental to carrying on the administration of the University and its affairs.

54. Statute 5 of Chapter V states that the Committee for the Selection of Vice Chancellor shall consist of three persons, of whom, one should be nominated by the Senate, one by the Syndicate and one by the Chancellor. A detailed procedure is prescribed in Statute 6 for the nomination and election of a member of the Search Committee by the Senate. Statute 8 lays down the procedure for the selection of members. Similarly, Statute 10 prescribes the procedure for nomination and election of a person by the Senate to the Search Committee. Statute 11 obliges the Registrar to report to the Chancellor, the names of persons elected by the Senate and the Syndicate to the Committee. After the Chancellor nominates the third member, the names of all the three members of the Committee should be published in the Gazette.

55. In other words, Statutes 1 to 11 of Chapter V contains only the procedure for the constitution of a Search Committee and the method of short-listing of candidates by the Search Committee.

56. Statute 12 of Chapter V indicates the procedure to be adopted by the Search Committee. It reads as follows: 12. The Committee shall meet soon after the names of 3 members are published and submit to the Chancellor a panel containing the names of 3 persons suitable for holding the office of the Vice Chancellor. While submitting the panel to the Chancellor the Committee shall also send a statement showing the age, educational qualification, academic and administrative experience and other distinctions of each of the 3 persons whose names are included in the panel. The panel shall be in alphabetical order.

57. After the Search Committee submits the names of three persons eligible for holding the office of Vice Chancellor, the Chancellor is entitled to appoint one of them, by virtue of Statute 13. Incidentally Statutes 14 and 14-A are worth noting and hence they are reproduced as follows: 14. The Vice Chancellor shall be paid salary of Rs.3,000/- per mensum plus a special allowance of Rs.1,000/- per mensum. 14.A. The Vice Chancellor shall be provided with a car or in lieu thereof an allowance of Rs.250/- p.m. He shall also be provided with rent free quarters, without collecting electricity consumption charges, cost of maintenance of garden and water charges etc., if any.

58. Unfortunately, the Statutes of the Madurai Kamaraj University do not appear to have undergone a change periodically, with reference to the revision of pay scales of teachers as recommended by the University Grants Commission. Therefore, as per the Statutes 14 and 14-A, the salary of the Vice Chancellor is only Rs.3000/- per month with some allowances. But it was admitted by the learned counsel for all the respondents that the Vice Chancellor of the University is now paid salary, as recommended by the University Grants Commission in the University Grants Commission Regulations, 2010. In other words, the logic applied by the Bombay High Court that the University Grants Commission Regulations 2010, cannot override the Statutes of the University Act, is not acceptable to the respondents when it comes to the question of pay and allowances. To put it bluntly, the respondents would not accept any prescription contained in the University Grants Commission Regulations, 2010 insofar as the qualifications are concerned, but would like to follow the University Grants Commission Regulations, 2010 in respect of pay and allowances.

59. Other than the provisions contained in Chapter V of the Statutes, we do not find anything else in the Act or the Statutes, that prescribe the educational qualifications or other eligibility criteria for the office of the Vice Chancellor. At the cost of repetition, it should be pointed out that the Madurai Kamaraj University Act 1965 and the Statutes issued thereunder contain provisions with regard to (i) the appointing authority (ii) the method of selection (iii) the procedure for selection and (iv) the pay and allowances for the office of the Vice Chancellor. But there is no provision either in the Madurai Kamaraj University Act, 1965 or in the Statutes of the University that prescribes the educational qualifications or other eligibility criteria for selection of a person for appointment as Vice Chancellor. Therefore, it is clear that this particular area or field is left unoccupied and in a vacuum by the Madurai Kamaraj University Act, 1965 and the Statutes. It is needless to point out that where a State or Central enactment leaves an area unoccupied or vacant, the vacuum can be filled up by the Central or State enactments, as the case may be, especially when the matter in respect of which both enactments have come into force, falls in the Concurrent List in the 7th Schedule to the Constitution.

60. There is yet another aspect, which we cannot lose sight of. Today, in the absence of any prescription in the Madurai Kamaraj University Act, 1965 and the Statutes issued thereunder, about the educational qualifications and eligibility criteria for appointment as Vice Chancellor, the Chancellor can appoint anyone and then contend that the field is left unoccupied by the State Act. In other words, if we accept the contention that the educational qualifications and eligibility criteria prescribed in the University Grants Commission Regulations, 2010, are not applicable for the post of Vice Chancellor, then any one without any qualifications whatsoever, can also be appointed, especially in view of the absence of any prescription in this regard, in the University Act and the Statutes. Though it has not gone to such an extreme in this case, we only wish to point out that the argument of the respondents will lead to a completely dangerous proposition to accept, especially in the light of the status of higher education in the country. Therefore, we hold that the Madurai Kamaraj University Act and the Statutes issued thereunder do not prescribe any qualifications, either educational or otherwise, for a person to be appointed as Vice Chancellor. In such circumstances, we have to consider whether we can leave this unoccupied space to be filled up by any subjective satisfaction on the part of the Appointing Authority or whether we should interpret law in such a manner that this vacuum is filled up by University Grants Commission Regulations 2010 or not. We would prefer the latter than the former. Facet No.3:

61. Our discussion and conclusion on facets 1 and 2, would take us to the third facet of the second question namely, whether in the event of a conflict between the terms of the Central and State enactments, the provisions contained in the State enactment would prevail over the University Grants Commission Regulations, 2010 or not.

62. But the answer to this issue is too obvious to state. Neither the Madurai Kamaraj University Act, 1965 nor the Statutes issued thereunder contain any prescription either with regard to the educational qualifications or with regard to the eligibility criteria for appointment to the post of Vice Chancellor. This particular field is completely left unoccupied by the State enactment. Repugnancy in terms of Article 254 of the Constitution would arise only when there is inconsistency between the laws made by the Parliament and the laws made by the Legislatures of States. Once it is admitted that the matter is covered by Entry 25 in List III of the 7th Schedule to the Constitution, it would be clear that Article 254 of the Constitution could be invoked only when the provision contained in the said legislation is repugnant to the law made by the Parliament or the State Legislature as the case may be. If it seeks to fill up a vacuum or when it covers an unoccupied field, the question of repugnancy does not arise. As a matter of fact, there is a repugnancy between Statutes 14 and 14-A of Chapter V of the Madurai Kamaraj University Act and the UGC Regulations, insofar as the pay and allowances of the Vice Chancellors are concerned. This is the only area in respect of which there is a repugnancy. Therefore, it is clear that the contention as though there was repugnancy and that therefore, the prescription contained in the State enactment has to prevail over the University Grants Commission Regulations, 2010 is thoroughly misconceived.

63. In the decision of the Bombay High Court relied upon by the respondents, no issue was raised with respect to the educational qualifications and other eligibility criteria fixed by the State Government. It could be seen from Paragraph 11 of the judgment of the Bombay High Court that the express provisions of Section 12(1) of the Maharashtra Universities Act, 1994 with regard to the constitution of the committee and the method of short-listing of candidates were directly in conflict with the method of selection and the constitution of Committee as provided by the University Grants Commission Regulations, 2010. From the decision of the Bombay High Court, it is seen that there was no dispute with regard to the educational qualifications or the eligibility criteria. There is nothing in the decision of the Bombay High Court to show that the Maharashtra Universities Act, 1994 contained some educational qualifications and eligibility criteria for Vice Chancellors that were in conflict with University Grants Commission Regulations, 2010.

64. While matters such as the constitution of a Committee, the procedure to be followed by the Committee, and the method of short-listing of candidates are all procedural in nature and it may not really matter whether the State enactment prevails over the Central enactment or vice versa, the same logic may not hold good insofar as the educational qualifications and eligibility criteria are concerned. The University Grants Commission is actually an expert body to determine the qualifications for appointment not only of teaching staff but also of all other officers and authorities. Therefore, at least when the State enactment is silent about the qualifications and eligibility criteria for appointment to the post of Vice Chancellor, the University Grants Commission Regulations, 2010 cannot be thrown to the winds.

65. In University of Delhi Vs. Raj Singh, AIR1995SC336 a challenge was made before the Delhi High Court to the University Grants Commission Regulations, 1991 that related to the qualifications required for a person to be appointed to the teaching staff of a University. The challenge was on the ground that the regulations were beyond competency of University Grants Commission and that they were only directory and not mandatory. The Delhi High Court held the regulations to be valid and mandatory and that the Delhi University was obliged under law to comply there with. The University of Delhi went on appeal to the Supreme Court. The Supreme Court pointed out that the University Grants Commission is invested with the powers specified in various clauses of Section 12 and that they included the power to recommend to a University, the measures necessary for the improvement of University education and to advise in respect of the action to be taken for the purpose of implementing such recommendation. On the applicability of the Regulations issued by the University Grants Commission, the Supreme Court pointed out in paragraph 21 that the Regulations are intended to have a widest possible application. Considering the object of the Regulations and the power of the University Grants Commission to issue Regulations, the Supreme Court held that the University's autonomy was not in any way entrenched upon by the Regulations. After referring to Regulation 2 of the University Grants Commission Regulations, 1991, the Supreme Court pointed out that the 1st proviso to clause 2 permits relaxation in the prescribed qualifications, provided it is made with the prior approval of the University Grants Commission. Therefore, there is no use in contending that the Regulations are merely are recommendatory in nature especially when the field is unoccupied by the State Legislature.

66. In Visveswaraiah Technological University Vs. Krishnendu Halder and others, 2011 4 SCC606 the Supreme Court considered the question whether the eligibility criteria for admission to engineering courses stipulated by the State Government/ University could be relaxed for candidates meeting minimum eligibility criteria of AICTE on the ground that a large number of seats have remained unfilled. After pointing out that the main object of prescribing the eligibility criteria is not to ensure that all seats in colleges are filled, but to ensure that excellence in standards of education is maintained, the Supreme Court held that while the State or University cannot lower the standards laid down by the Central body, it can always prescribe higher standards, consistent with the object of promoting excellence in higher education. Therefore, even in cases where there is a conflict, the Court is bound to uphold a prescription which sets higher standards and which seeks to promote excellence in higher education. When such is the case even in cases where there is a conflict, the case on hand where there is no conflict, cannot support the contention of the respondents.

67. As rightly pointed out by the learned counsel for the petitioners, the State of Tamil Nadu has repeatedly issued orders implementing the recommendations of the University Grants Commission for the revision of pay scales of persons appointed in Colleges and Universities. The recommendations of the University Grants Commission for revision of pay scales have been implemented at least from the year 1988 to our knowledge. The recommendations made in 1986 were implemented by a set of Government Orders passed in December 1988. Thereafter, the next set of recommendations were implemented under G.O.111, dated 23.03.1999 with effect from 01.01.1996. The recommendations made in the year 2006 were implemented by G.O.Ms.No.350, Higher Education Department, dated 09.09.2009 with effect from 01.01.2006. Therefore, the very same persons including the fourth respondent herein who enjoyed the benefit of revision of pay scales on the basis of the recommendations of the University Grants Commission, cannot now contend that they were merely recommendatory and not binding upon the State. By the very same logic, the contention that there is no post of Professor has also to be rejected, in view of the fact that whenever the recommendations of University Grants Commission for revision of pay scales were implemented, 10% of the posts were directed to be delineated as Professors.

68. The fact that the University Grants Commission itself has passed a resolution in its 487th meeting held on 18th and 19th of July 2012 to scrap Paragraph 7.3.0 of the Annexure to the 2010 Regulations, is of no consequence. The Regulations issued under Section 26 of the University Grants Commission Act, cannot come into effect except by way of a notification issued in the Official Gazette. Under sub Section (2) of Section 26, no regulation could be made except with the previous approval of the Central Government. The resolution passed in the 487th meeting of the University Grants Commission has not so far received the approval of the Central Government nor has it been notified in the Official gazette. Therefore, the mere resolution of the Commission cannot override the provisions of the regulations, notified in the Official Gazette with the prior approval of the Central Government. In any case, the appointment of the fourth respondent was made in April 2012, much before the 487th meeting of the Commission. Therefore, the same cannot be relied upon. Facts disclosed by the File 69. Though our findings on questions 1 and 2 are to the effect (i) that the post of Associate Professor held by the fourth respondent was not equivalent to that of Professor and (ii) that Paragraph 7.3.0 of Annexure to the University Grants Commission Regulations 2010 have a binding effect the Chancellor, in view of the fact that it occupies a field left vacant by the State enactment, we also summoned the records to satisfy our conscience. We actually wanted to see whether the respondents had taken a conscious decision not to follow the prescription contained in Paragraph 7.3.0 of the Annexure to the Regulations by taking umbrage under the State enactment. In other words, we wanted to test whether the second contention now raised by the respondents was an after thought or an invention made just for the purpose of defending the appointment or whether the Search Committee itself went by the very same argument.

70. But the file produced before us discloses two things. They are (i) that a few representations had actually been sent by various forums including the Tamil Nadu Federation of Faculties Association pointing out the requirement under the University Grants Commission Regulations, 2010 and the non fulfilment of the same, by the fourth respondent and (ii) that the fourth respondent had projected herself to be a Professor and Head of the Department.

71. In the Curriculum Vitae submitted by the fourth respondent on 07.03.2012, which is found from pages 255 up to 287 of the file circulated to us, she has described herself as Professor and Head of the Department in English. In 257 of the file, there is a brief self introductory note, containing the passport size photograph of the fourth respondent. This brief note is appended to the letter dated 07.03.2012 sent by the fourth respondent to the Search Committee. In the very first sentence of that self introductory note which contains her photograph, she has described herself to be the Professor and Head of the Department of English. Again in page 259, the fourth respondent has indicated her designation to be 'Professor and Head of the Department of English, Ethiraj College for women.

72. There is nothing on record to show (i) that despite the fourth respondent's representation to be the Professor and Head of the Department, the Search Committee correctly understood her only to be an Associate Professor and (ii) that the Search Committee consciously took a decision to overrule the requirement of Paragraph 7.3.0 of the Annexure to the University Grants Commission Regulations and to fall back upon the State enactment. Therefore, it is clear that the second contention raised by the respondents on the basis of the judgment of the Bombay High Court in Suresh Patilkhede is only an invention legally made post facto, after the appointment was challenged. Hence, the decision of the Bombay High Court cannot at all be relied upon. In the case before the Bombay High Court, the Search Committee, issued an advertisement clearly stipulating that the State enactment would be followed. Therefore, even before the selection was made, the decision of the Search Committee to consciously overlook the University Grants Commission Regulations was challenged.

73. But in this case, the Search Committee do not appear to have thought of this aspect at all. The Search Committee could not even have contemplated and weighed the consequences of giving a go-bye to Paragraph 7.3.0 of the Annexure to the University Grants Commission Regulations, 2010 in view of the fact that the fourth respondent presented herself as Professor and Head of Department. Therefore, neither the Search Committee nor the Chancellor had an occasion to consider whether or not she fulfilled the eligibility criteria or whether or not the non fulfilment of the eligibility criteria prescribed by University Grants Commission could be saved by any prescription contained in the University Act. Therefore, we are of the view that the new discovery made by the learned counsel for the University in the course of the hearing of the writ petition could at the most qualify for the award of a Doctorate degree but would not save the appointment of the fourth respondent. Any decision of a statutory authority, has to be tested only on the touching stone of their own decision making process and not on the touching stone of legal inventions made post facto.

74. Therefore, we are of the view that the fourth respondent did not satisfy the eligibility criteria stipulated by the University Grants Commission Regulations, 2010 for appointment as Vice Chancellor and that the non fulfilment of such eligibility criteria cannot be completely white washed on the specious plea that the University Grants Commission Regulations, 2010 are not mandatory. Hence, the appointment of the fourth respondent is liable to be set aside. Therefore, the writ petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed. After we pronounced orders, Mr.Isaac Mohanlal, learned counsel who appeared for the University made an appeal to grant a Certificate in terms of Article 133(1)(b) of the Constitution. 2.We have considered the request. 3.It is true that there are several Universities in the country where even bureaucrats have been appointed as Vice Chancellors. Therefore, the question as to whether the University Grants Commission Regulations, 2010 have to be followed in letter and spirit, is a question that needs in our opinion to be decided by the Supreme Court. Therefore, in terms of Article 133(1)(b), we grant Certificate to the respondents to appeal to the Supreme Court. To 1.The Chancellor of Universities, Raj Bhavan, Guindy, Chennai 600 022. 2.The Principal Secretary, Government of Tamil Nadu, Department of Higher Education, Secretariat, Chennai 9. 3.University Grants Commission, Rep by its Chairman, Bahadur Shah Zafar Marg, New Delhi 110 002. 


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