DR. PREMACHANDRAN KEEZHOTH & ANR. v. THE CHANCELLOR KANNUR UNIVERSITY & ORS.

“45. It would be appropriate to also analyze whether the re- appointment of the VC has to follow the same process as a fresh appointment, by setting up a selection committee under Section 8(1) of the Act, as indicated by the Chancellor.

46. Section 8(6) stipulates the manner in which a vacancy in the office of the VC which occurs by reason of death, resignation, expiration of the term of office, removal or otherwise shall be filled up. The provision indicates that such vacancy shall be filled up in accordance with the provisions of sub-Section (1) of Section 8 of the Act. Section 8(6) has to be read in conjunction with Section 8(1) since the former expressly refers to the latter. The reference to the provisions of sub-Section (1) for filling up a vacancy on the expiration of the term of office will not obviously apply to a case of reappointment because the procedure contemplated by Section 8(1)(b) of a search committee would not attach to a reappointment. On this aspect, the High Court has correctly disagreed with the petitioner before it and noted that amended Section 8(2)(a) which provides for the re-appointment of a VC for another term does not require that the procedure prescribed in Section 8(1) has to be followed for re-appointment” (Emphasis supplied)

64Copy pinpoint64. We are conscious of the fact, that in Anindya Sundar Das (supra) the afore-stated line of reasoning was adopted by this Court in view of the amendment that was carried out whereby the original expression “subject to provisions of this section” in the provision dealing with reappointment was deleted, in other words, by virtue of such amendment the reappointment was no longer subject to the provision / section detailing the ordinary procedure for appointment of Vice-Chancellor, and thus, this Court had no hesitation in holding that the legislature’s intent was to allow reappointment by the Chancellor itself without following the ordinary process of appointment.

65Copy pinpoint65. In the case at hand, sub-section (10) of Section 10 of the Act, 1996, provides for reappointment and does not even contain the words “subject to provisions of this section”. This in our opinion is as good as to reflect the legislature’s intention of permitting reappointment without following the ordinary process of appointment of Vice-Chancellor.

DR. PREMACHANDRAN KEEZHOTH & ANR. v. THE 425 CHANCELLOR KANNUR UNIVERSITY [J. B. PARDIWALA, J.]

66Copy pinpoint66. Thus, we hold that it is not necessary to follow the procedure of appointment as laid down in Section 10 of the Act 1996 for the purpose of reappointment. iv) Did the Chancellor abdicate or surrender his statutory power of reappointment of the Vice-Chancellor?

67Copy pinpoint67. Before we proceed to answer the question whether the Chancellor abdicated or surrendered his statutory power of reappointment, we must try to understand the stance of the Chancellor in the present litigation as discernible from the counter-affidavit filed by him. We are quite perplexed with the stance of the Chancellor. The Chancellor wants this Court to allow the appeal and declare that the reappointment of the respondent No. 4 as Vice-Chancellor is not sustainable in law. The Chancellor says so because according to him the reappointment of the respondent No. 4 is in conflict with the UGC Regulations.

68Copy pinpoint68. The UGC Regulations are enacted by the UGC in exercise of powers under Sections 26(1)(e) and 26(1)(g) of the UGC Act 1956. The Regulations framed under the said Act, are laid before each House of the Parliament. Therefore, being a subordinate legislation, the UGC Regulations becomes a part of the Act. In case of any conflict between the State legislation and the Central Legislation, the Central Legislation shall prevail by applying the rule/principle of repugnancy as enunciated in Article 254 of the Constitution as the subject “Education” is in the Concurrent List (Entry No. 25 of List III) of the VII Schedule of the Constitution. Therefore, any appointment or reappointment as a Vice-Chancellor contrary to the provisions of the UGC Regulations could be said to be in violation of the statutory provisions. However, the moot question is whether in the present case, there is any conflict between the State Legislation and the UGC Regulations? The UGC Regulations more particularly the Regulation 7.3 which, we have referred to in the earlier part of our judgment only talks about appointment of Vice- Chancellor. The UGC Regulations provide for the procedure to be adopted for appointment of Vice-Chancellor. The UGC Regulations are silent in so far as reappointment of the Vice-Chancellor is concerned. There is no specific procedure prescribed by the UGC under its regulations for the purpose of reappointment of Vice-Chancellor. The entire focus of the Chancellor is on the aforesaid. However, nothing has been said in the counter-affidavit

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filed on behalf of the Chancellor as regards Chancellor’s own independent satisfaction or judgment for the purpose of reappointment of the respondent No. 4 as Vice-Chancellor.

69Copy pinpoint69. It is in such circumstances that we have thought fit to pose a question whether the Chancellor abdicated his statutory power?

70Copy pinpoint70. It has been stated by Wade and Forsyth in Administrative Law, 7th Edn. at pp. 358-59 under the heading “Surrender, Abdication, Dictation” and sub-heading “Power in the wrong hands” as below: “Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them…. Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise….” (Emphasis supplied)

71Copy pinpoint71. It is a well settled (and indeed, bedrock) principle of administrative law that if a statute expressly confers a statutory power on a particular body or authority or imposes a statutory duty on the same, then such power must be exercised or duty performed (as the case may) by that very body or authority itself and none other. If the body or authority exercises the statutory power or performs the statutory duty acting at the behest, or on the dictate, of any other body or person, then this is regarded as an abdication of the statutory mandate and any decision taken on such basis is contrary to law and liable to be quashed. It is important to keep in mind that, in law, it matters not that the extraneous element is introduced (i.e., the advice, recommendation, approval, etc. of the person not empowered by the statute is obtained or given) in good faith or for the advancement of any goal or

DR. PREMACHANDRAN KEEZHOTH & ANR. v. THE 427 CHANCELLOR KANNUR UNIVERSITY [J. B. PARDIWALA, J.]

objection howsoever laudable or desirable. The rule of law requires that a statutory power vests in the body or authority where the statute so provides, and likewise, the discharge of the statutory duty is the responsibility of the body or authority to which it is entrusted. That body or authority cannot merely rubberstamp an action taken elsewhere or simply endorse or ratify the decision of someone else.

72Copy pinpoint72. The concept of discretionary power and the mode of its exercise by statutory functionaries was an issue considered by this Court in Union of India v. Kuldeep Singh reported in (2004) 2 SCC 590, where in paragraphs 20, 21 and 22, it was held thus; “20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin’s Law Dictionary). In its ordinary meaning, the word “discretion” signifies unrestrained exercise of choice or will; freedom to act according to one’s own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one’s own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin’s Law Dictionary.)

21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not

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arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (per Lord Halsbury, L.C., in Sharp v. Wakefield [(1891 AC 173: (1886-90) All ER Rep 651 (HL)]. (Also See S.G. Jaisinghani v. Union of India (AIR 1967 SC 1427).

22. The word “discretion” standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in it implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility….” (Emphasis supplied)

73Copy pinpoint73. Again, in Clariant International Ltd. and Another v. Securities & Exchange Board of India reported in (2004) 8 SCC 524, this Court reiterated these principles thus; “27. In Kruger v. Commonwealth of Australia [(1997) 146 Aus LR 126] it is stated: “Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention.....”

28. The discretionary jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object sought to be achieved and the reasons for granting such wide discretion (See Narendra Singh v. Chhotey Singh [(1983) 4 SCC 131 : 1983 SCC (Cri) 788]. xxx xxx xxx

29. A discretionary jurisdiction, furthermore, must be exercised within the four corners of the statute. [See Akshaibar Lal (Dr.) v. Vice- Chancellor, Banaras Hindu University [(1961) 3 SCR 386 : AIR 1961

DR. PREMACHANDRAN KEEZHOTH & ANR. v. THE 429 CHANCELLOR KANNUR UNIVERSITY [J. B. PARDIWALA, J.]

SC 619] and also para 9-022 of de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th Edn., p.445].”

74Copy pinpoint74. Similar are the principles laid down in Joint Action Committee of Air Line Pilots’ Association of India (ALPAI) and Others v. Director General of Civil Aviation and Others reported in (2011) 5 SCC 435, where it has been held that: “26. ... It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide Purtabpore Co. Ltd. v. Cane Commr. of Bihar [(1969) 1 SCC 308 : AIR 1970 SC 1896], Chandrika Jha v. State of Bihar [(1984)2 SCC 41 : AIR 1984 SC 322], Tarlochan Dev Sharma v. State of Punjab [(2001) 6 SCC 260 : AIR 2001 SC 2524] and Manohar Lal v. Ugrasen [(2010) 11SCC 557 : (2010) 4 SCC (Civ)524 : AIR 2010 SC 2210].

28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any

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guideline or direction to the authority under the statute to act in a particular manner.” (Emphasis supplied)

75Copy pinpoint75. In Hardwari Lal, Rohtak v. G.D. Tapase, Chandigarh and others reported in AIR 1982 Punjab and Haryana 439 (Full Bench) the powers of the Governor with respect to the appointment/removal of the Vice-Chancellor of Maharshi Dayanand University, Rohtak under the Maharshi Dayanand University (Amendment) Act, 1980 were considered wherein a direction was sought with regard to the renewal of the term of the Vice-Chancellor of the said University. Certain promises had been made in connection with the same while making such appointment. The Court held that as the Governor was the ex officio Chancellor of the University, therefore, by virtue of his office, he was not bound to act under the aid and advice of the Council of Ministers. Under Article 154 of the Constitution, the executive powers of the State are vested in the Governor which may be exercised by him either directly, or through officers subordinate to him, in accordance with the provisions of the Constitution. Article 161 confers upon the Governor, a large number of powers including the grant of pardon, reprieves, respites or remissions of punishment, etc. Such executive power can be exercised by him only in accordance with the aid and advice of the Council of Ministers. Article 162 states that the executive power of the State shall extend to all such matters with respect to which the Legislature of the State has the power to make laws. Therefore, the said provision widens the powers of the Governor. Article 166(3) of the Constitution further bestows upon the Governor the power to make rules for more convenient transactions of business of the Government of the State and also for the purpose of allocating among the Ministers of State such business. There are several ways by which, a power may be conferred upon the Governor, or qua the Governor, which will enable him to exercise the said power by virtue of his office as Governor. Therefore, there can be no gainsaying that all the powers that are exercisable by the Governor by virtue of his office can be exercised only in accordance with the aid and advice of the Council of Ministers except insofar as the Constitution expressly, or perhaps by necessary implication, provides otherwise.

DR. PREMACHANDRAN KEEZHOTH & ANR. v. THE 431 CHANCELLOR KANNUR UNIVERSITY [J. B. PARDIWALA, J.]

76Copy pinpoint76. Thus, in such a situation, the statute makes a clear-cut distinction between two distinct authorities, namely, the Chancellor and the State Government. When the legislature intentionally makes such a distinction, the same must also be interpreted distinctly, and while dealing with the case of the Vice-Chancellor, the Governor, being the Chancellor of the University, acts only in his personal capacity, and therefore, the powers and duties exercised and performed by him under a statute related to the University, as its Chancellor, have absolutely no relation to the exercise and performance of the powers and duties by him while he holds office as the Governor of the State.

77Copy pinpoint77. Hardwari Lal (supra) has been referred to and relied upon by this Court in Bhuri Nath and Others v. State of J&K and Others reported in (1997) 2 SCC 745. In the said case, the question that arose was in relation to whether the Governor was bound to act in accordance with the aid and advice of the Council of Ministers, or whether he could exercise his own discretion, independent of his status and position as the Governor, by virtue of him being the ex officio Chairman of the Shri Mata Vaishno Devi Shrine Board under the Shri Mata Vaishno Devi Shrine Act, 1988. The Shrine Board discharges functions and duties, as have been described under the Act in the manner prescribed therein, and thus, after examining the scheme of the Act, this Court held that, “In Hardwari Lal case [AIR 1982 P&H 439 : (1982) 1 SLR 39] , a Full Bench of the Punjab and Haryana High Court was to consider whether the Governor in his capacity as the Chancellor of Maharshi Dayanand University was to act under Maharshi Dayanand University Act, 1975 (Haryana Act No. 25 of 1975) in his official capacity as Chancellor or with aid and advice of the Council of Ministers. The Full Bench, after elaborate consideration of the provisions of the Act and the statutes, came to observe in para 121 at p. 476 that the Act and the statutes intended that the State Government would not interfere in the affairs of the University. The State Government is an authority quite distinct from the authority of the Chancellor. The State Government cannot advise the Chancellor to act in a particular manner. The University, as a statutory body, autonomous in character, has been given certain powers exercisable by the Chancellor in his absolute discretion without any interference from any quarter. In the appointment of the Vice-Chancellor or the Pro-Vice-Chancellor, the Chancellor is not required to consult the Council of Ministers. Though by

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virtue of his office as Governor, he becomes the Chancellor of the University, but while discharging the functions of his office, he does not perform any duty or exercise any power of the office of the Governor individually. However, while discharging the functions as a Chancellor, he does every act in his discretion as Chancellor and he does not act on the aid and advice of his Council of Ministers. The performance of the functions and duties under the Constitution with the aid and advice of the Council of Ministers is distinct and different from his discharge of the powers and duties of his office as Chancellor of the University. Under the Act and the statute, the Chancellor has independent existence and exercises his powers without any interference from any quarter. Therefore, the office as a Chancellor held by the Governor is a statutory office quite distinct from the office of the Governor. Same view was taken by the Andhra Pradesh High Court in Kiran Babu case [AIR 1986 AP 275 : (1986) 1 An LT 36].”.

78Copy pinpoint78. Bearing the aforesaid principles of law in mind, we proceed to consider whether there was any independent application of mind or satisfaction on the part of the Chancellor in reappointing the respondent No. 4 as Vice-Chancellor. The facts narrated by us in the earlier part of our judgment speak for themselves. The Chancellor had already initiated the steps for appointment of a new Vice-Chancellor and this is evident by the fact that a selection committee was also constituted vide Notification dated 27.10.2021. It appears that at that point of time reappointment of the respondent No. 4 as Vice-Chancellor in accordance with sub-section (10) of Section 10 of the Act 1996 was not in the mind of the Chancellor.

79Copy pinpoint79. The State of Kerala issued Notification dated 01.11.2021 inviting applications from eligible candidates. All of a sudden, the Minister for Higher Education and Social Justice in his capacity as the Pro-Chancellor addressed a letter to the Chancellor dated 22.11.2021 recommending reappointment of the respondent No. 4 herein for a second term as Vice-Chancellor. It is also pertinent to note that on 22.11.2021 itself the notification inviting application from the eligible candidates was withdrawn. On the same date, the Minister addressed one another letter to the Chancellor stating that the respondent No. 4 be reappointed as Vice-Chancellor of Kannur University. On the very same day i.e., on 23.11.2021, the notification reappointing the respondent No. 4 as Vice-Chancellor was issued.

DR. PREMACHANDRAN KEEZHOTH & ANR. v. THE 433 CHANCELLOR KANNUR UNIVERSITY [J. B. PARDIWALA, J.]

80Copy pinpoint80. It appears from the press release issued by the Kerala Raj Bhavan dated 03.02.2022 that the opinion of the Advocate General was also sought for in connection with reappointment of the respondent No. 4 as Vice- Chancellor. The very first para of the press release states that “Kerala Raj Bhavan strongly refutes the claim in some news reports that it was on the direction of Hon’ble Governor that the name of Dr. Gopinath Ravindran was suggested for reappointment as Vice Chancellor, Kannur University. The truth is that the same was initiated by the Chief Minister and Higher Education Minister.” The last part of the report is also relevant. It states that the process of selection of Vice-Chancellor which was set in motion vide Notification dated 27.10.2021 came to an end consequent to the request from the Minister of Higher Education and the opinion of the Advocate General, State of Kerala.

81Copy pinpoint81. The aforestated facts make it abundantly clear that there was no independent application of mind or satisfaction or judgment on the part of the Chancellor and the respondent No. 4 came to be reappointed only at the behest of the State Government.

82Copy pinpoint82. Under the scheme of the Act 1996 and the statutes, the Chancellor plays a very important role. He is not merely a titular head. In the selection of the Vice-Chancellor, he is the sole judge and his opinion is final in all respects. In reappointing the Vice-Chancellor, the main consideration to prevail upon the Chancellor is the interest of the university.

83Copy pinpoint83. The Chancellor was required to discharge his statutory duties in accordance with law and guided by the dictates of his own judgment and not at the behest of anybody else. Law does not recognise any such extra constitutional interference in the exercise of statutory discretion. Any such interference amounts to dictation from political superior and has been condemned by courts on more than one occasions. M. FINAL CONCLUSION

84Copy pinpoint84. It is now well settled that a writ of quo warranto lies if any appointment to a public office is made in breach of the statute or the rules. In the case on hand, we are not concerned with the suitability of the respondent No. 4. The “suitability” of a candidate for appointment to a post is to be judged by the appointing authority and not by the court unless the

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appointment is contrary to the statutory rules/provisions. We have reached to the conclusion that although the notification reappointing the respondent No. 4 to the post of Vice-Chancellor was issued by the Chancellor yet the decision stood vitiated by the influence of extraneous considerations or to put it in other words by the unwarranted intervention of the State Government.

85Copy pinpoint85. It is the Chancellor who has been conferred with the competence under the Act 1996 to appoint or reappoint a Vice-Chancellor. No other person even the Pro-Chancellor or any superior authority can interfere with the functioning of the statutory authority and if any decision is taken by a statutory authority at the behest or on a suggestion of a person who has no statutory role to play, the same would be patently illegal.

86Copy pinpoint86. Thus, it is the decision-making process, which vitiated the entire process of reappointment of the respondent No. 4 as the Vice-Chancellor. The case on hand is not one of mere irregularity.

87Copy pinpoint87. We emphasise on the decision-making process because in such a case the exercise of power is amenable to judicial review.

88Copy pinpoint88. In Chief Constable of the North Wales Police v. Evans reported in (1982) 1 WLR 1155 : (1982) 3 All ER 141 (HL), Lord Brightman observed thus: (WLR p. 1174 G) “… Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

89Copy pinpoint89. In view of the aforesaid, we allow this appeal.

90Copy pinpoint90. The impugned judgment and order passed by the High Court dated 23.02.2022 is hereby set aside. As a consequence, the Notification dated 23.11.2021, reappointing the respondent No. 4 as the Vice-Chancellor of the Kannur University is hereby quashed.

91Copy pinpoint91. Pending application(s) if any shall stand disposed of.

Headnotes prepared by: Appeal allowed. Ankit Gyan