The Calcutta High Court has set aside the appointment order of August 27, 2021 issued by the Special Secretary, Government of West Bengal, re-appointing the respondent No. 4 as Vice Chancellor of Calcutta University.
The Division Bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj allowed a PIL filed by an Advocate, questioning the appointment of the respondent no. 4 as Vice-Chancellor of Calcutta University.
He also prayed for a writ of mandamus to initiate a fresh process for appointment of the Vice-Chancellor.
The respondent no. 4 was appointed as Vice-Chancellor of the Calcutta University on August 28, 2017 for a period of four years and her term had expired on August 27, 2021. The Chancellor, in terms of Section 8(2)(b) of the Calcutta University Act, 1979 had extended the term of the Office of Vice Chancellor for a period of 3 months with the rider that the selection process will commence and the Vice-Chancellor will be appointed by following the due process. Thereafter, the impugned notification dated 27th August, 2021 has been issued in the purported exercise of power conferred by Section 60 read with Section 8(2) of the Act under the signature of the Special Secretary to the Government of West Bengal, Higher Education Department, whereby the respondent no. 4 has been reappointed as Vice-Chancellor of the University of Calcutta with effect from 28th August, 2021 for a period of 4 years or till she attains the age of 70 years.
It is noted by the Bench that the petitioner has prayed for issuing a writ of quo warranto, which can be issued mainly in following circumstances:
i. When the person is found to be holding public office without fulfilling eligibility criteria prescribed for such appointment,
ii. When the appointment is made contrary to the statutory rule.
The first issue which arises for consideration of the High Court is whether the State Government is competent to appoint respondent no. 4 as Vice-Chancellor of Calcutta University?
Section 2(10) of the Act defines ‘Governor’ to mean the Governor of the State of West Bengal. Section 2(20)(a) of the Act defines State Government to mean the Government of West Bengal in the High Education Department. In terms of Section 7(1) of the Act, the Governor is the Chancellor of the University by virtue of his office. Section 7(3) of the Act empowers the Chancellor to exercise the powers that are conferred on him by or under the provisions of the Act.
Section 8(1)(b) of the Act, in clear terms, provides that the ViceChancellor will be appointed by the Chancellor. Under Section 8(2)(b) of the Act, the Chancellor has the power to continue as Vice-Chancellor after expiration of the term of his office up to a period of 2 years or 70 years of age whichever is earlier. In terms of Section 8(5) of the Act, the temporary appointment of the Vice-Chancellor is made by the Chancellor and Sub-section 7 of Section 8 of the Act empowers the Chancellor to remove the Vice-Chancellor on the satisfaction of the prescribed conditions. Thus, the scheme of Section 8 of the Act makes it clear that it is only the Chancellor who has the power to appoint, reappoint or temporarily appoint or to remove the Vice-Chancellor. Section 8 of the Act does not confer any power to the State Government to appoint or reappoint the Vice-Chancellor.
The Bench observed that the original term of respondent no. 4 as ViceChancellor of the Calcutta University expired on 28th of August, 2021 and the State Government by order dated 27th of August, 2021 has reappointed the respondent no. 4 as Vice-Chancellor of the Calcutta University with effect from 28th of August, 2021 for a period of 4 years or till she attains the age of 70 years, whichever is earlier. Section 8 of the Act does not empower the State to issue such an order of reappointment.
While issuing the reappointment order dated 27th of August, 2021, the State Government had invoked the provisions of Section 60 of the Act. Section 60 of the Act provides for removal of difficulties arising in giving effect to the provisions of the Act and empowers the State Government to pass necessary orders for the purpose of removing the difficulties. In the facts of the case, taking shelter of Section 60 of the Act, the State could not have usurped the power of the Governor and appointed the ViceChancellor , the Bench further observed.
Relying on the case of the Allahabad High Court in the matter of Joti Prasad Upadhya vs. Kalka Prasad Bhatnagar and Others reported in AIR 1962 ALL 128 , the High Court held that the Government exercising the power as chancellor under Section 7(3) of the Act had the exclusive power to appoint or re-appoint or temporarily appoint the Chancellor under Section 8 of the Act.
“In a statute, removal of difficulties clause, also nick-named as “Henry VIII clause”, is incorporated for a limited purpose to obviate the necessity of approaching the legislature on trivial issue relating to enforcement of statute. This clause gives executive very limited power to make minor adaptation and adjustment in statute but by taking shelter of this clause executive cannot alter the substance of statute or act contrary to the scheme of the Act. “
Thus, the Court clarified that in the guise of removing the difficulty, the State cannot change the scheme and essential provisions of the Act.
UGC regulation, namely, University Grants Commission (Minimum Qualifications for appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education), Regulations, 2018, which provide for appointment of Vice-Chancellor only by visitor/Chancellor also comes in the way of the State in making such appointment.
Further stand of the respondents is that the State Government in terms of Section 8(2)(a) of the Act had submitted the proposal for reappointment of respondent no. 4 to the Chancellor but the Chancellor had sought certain clarifications on some issues and had suo motu extended the tenure of the respondent no. 4 for 3 months which was not in confirmity with the proposal of reappointment for 4 years, hence, power under Section 60 of the Act was exercised by the State and respondent no. 4 was reappointed as Vice-Chancellor by the State. Such a plea put forth by the respondent State does not justify its action under Section 60 of the Act because the State cannot act contrary to the provisions of Section 8 of the Act and exercise the power of appointment of Vice-Chancellor which under the Act has been conferred upon the Chancellor , the Court held.
The Bench opined that the State Government has no power under the Act to appoint or reappoint the Vice-Chancellor, therefore, the order of reappointment of the respondent no. 4 dated 27th of August, 2021 as Vice-Chancellor, Calcutta University, issued by the State Government has no legal force and is void in the eyes of law and non-existent, hence liable to be set aside. It is a fit case for issuing the writ of quo warranto.
The amended Section 8(2)(a) provides for the reappointment for another term and it does not provide for following the same procedure for reappointment as contained in Section 8(1) of the Act. The legislature has omitted such a provision which was earlier incorporated by the West Bengal University Laws (Amendment) Act, 2011, in Section 8(2)(a). In view of judgment of the Supreme Court in Malik Zarid Khalid (supra), such omissions gain significance to gather legislative intention. It is also noted by the High Court that Section 8(6) of the Act provides for appointment on expiry of tenure of office but does not relate to reappointment which has been specifically provided in Section 8(2)(a) of the Act.
“Thus, we find that the State had no authority to appoint or reappoint the Vice-Chancellor either under Section 8 of the Act or by taking recourse to the residuary Section 60 of the Act, therefore, the order of appointment dated 27th of August, 2021 issued by Special Secretary, Government of West Bengal, re-appointing the respondent No. 4 as Vice Chancellor of the Calcutta University cannot be sustained and is hereby set aside and the prayer for issuance of writ of quo warranto against the respondent No. 4 is allowed by holding that respondent no. 4 has no authority to hold the office of the Vice-Chancellor, Calcutta University on the basis of appointment order dated 27th of August, 2021”, the order read.