Appointment based on the recommendation of a search committee, constituted contrary to the provisions of the UGC Regulations, is illegal and void ab initio: Supreme Court

   

Supreme Court: In an appeal filed against the judgment passed by the Kerala High Court, wherein the division bench of the High Court has confirmed the judgment passed by the Single Judge refusing to issue writ of quo warranto to declare the appointment of the respondent as Vice Chancellor (‘VC’) of the APJ Abdul Kalam Technological University as void ab initio, the division bench of *M.R Shah and C.T. Ravikumar held that the UGC Regulations were applicable with respect to the appointment of VC in the State Universities and the appointment shall be always as per the relevant provisions of the UGC Regulations amended from time to time. Therefore, the Court rejected the submissions that unless the UGC Regulations are specifically adopted by the State, the UGC Regulations shall not be applicable, and the State legislation shall prevail.

Further, it was held that the appointment of respondent is based on the recommendations made by the search committee, which was not a duly constituted search committee as per the UGC Regulations, thus, the appointment of respondent can be said to be illegal and void ab initio, and, therefore, the writ of quo warranto was required to be issued.

The respondents contended that unless the UGC Regulations are adopted by the State Government, the University Act enacted by the State shall prevail, and that the UGC Regulations, 2010 are directory for the universities and for the other higher educational institutions under the provisions of the State legislature, as the matter has been left to the State Government to adopt and implement the scheme

The Court noted that the Single Judge dismissed the writ petition relying upon Kalyani Mathivanan v. K.V. Jeyaraj, (2015) 6 SCC 363, and observing that “unless the UGC Regulations are specifically adopted by the State Government, the State legislation shall prevail”. Therefore, the Single Judge opined that once the search committee was constituted as per Section 13 of the University Act enacted by the State, the appointment of the respondent, can be said to be by a duly constituted search committee, thus it cannot be said to be illegal.

There were two issues in the present case:

1. Whether, while making the appointment of respondent as VC, the appointment should be as per the prevailing UGC Regulations or in effect of the provisions of the University Act, 2015 (State Act)?

The Court relied on Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179, wherein it was held that “the appointment of VC cannot be made outside the scope of the applicable UGC Regulations, even if the State Act concerned prescribes diluted eligibility criteria, vis-à-vis the criteria prescribed in the applicable UGC Regulations, further if the State Act is not on a par with the UGC Regulations, it must be amended to bring it on a par with it, and until then it is the applicable UGC Regulations that shall prevail. Further, UGC Regulations being a subordinate legislation, become part of the Act, and in case of any conflict between the State legislation and the Central legislation, the Central legislation, i.e., the applicable UGC Regulations shall prevail by applying the principle of repugnancy under Article 254 of the Constitution as the subject “education” is contained in the Concurrent list of Schedule VII of the Constitution”

The Court also relied on Kalyani Mathivanan (supra), wherein it was held that “to the extent the State legislation is in conflict with the Central legislation including subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List, the same shall be repugnant to the Central legislation and would be inoperative” and further noted that in the case of Kalyani Mathivanan (supra), the Court was considering the UGC Regulations, 2010, which were silent regarding the post of VC.

Thus, the Court held that any appointment as a VC, made on the recommendation of the search committee, which is constituted contrary to the provisions of the UGC Regulations shall be void ab initio. Further, if there is any conflict between the State legislation and the Union legislation, the Union law shall prevail even as per Article 254 of the Constitution of India to the extent the provision of the State legislation is repugnant.

Moreover, it was noted that in the present case vide order dated 10.12.2010, the UGC Regulations have been specifically adopted by the State Government, and that in order dated 27.03.2010, while adopting the UGC Regulations, it was specifically observed that all the universities shall incorporate the UGC Regulations in their Statutes and Regulations within one month from the date of the said order and Government will initiate steps to amend the Acts of the Universities and the Special Rules to give effect to the stipulations of the UGC Regulations. Thus, merely because the subsequent amendment has not been specifically adopted by the State cannot be a ground to contend that the amendment to the Regulations shall not be binding on the State Universities.

2. Whether the Search Committee constituted to recommend the name of the respondent as VC of the University can be said to be duly constituted Committee?

The Court referred to the relevant clauses of the UGC Regulations, 2013 and Section 13 of the APJ Abdul Kalam Technological University Act, 2015 relating to the appointment of the VC, and said that as per Clause 7.3.0 of the UGC Regulations, 2013, the selection of the VC should be through proper identification of a panel of 3-5 names by a search committee and the members of the 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. It further provides that the Chancellor shall appoint the VC out of the names recommended by the search committee.

The Court noted that even as per Section 13(4) of the University Act, 2015, the committee shall recommend unanimously a panel of not less than three suitable persons from amongst the eminent persons in the field of engineering sciences, which shall be placed before the Chancellor. Further, in the present case, only the respondent’s name was recommended to the Chancellor. It was also noted that as per the UGC Regulations also, the Chancellor shall appoint the VC out of the panel of names recommended by the search committee, therefore, when only one name was recommended and the panel of names was not recommended, the Chancellor had no option to consider the names of the other candidates. Thus, the appointment of the respondent can be said to be contrary to the provisions of the UGC Regulations as well as even to the University Act, 2015.

Thus, the Court held that the appointment of respondent is based on the recommendations made by the search committee, which was not a duly constituted search committee, as per the UGC Regulations.

[Professor Sreejith P.S v. Dr. Rajasree M.S., 2022 SCC OnLine SC 1473, decided on 21-10-2022]


*Judgment by: Justice M.R Shah

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