STATE OF WEST BENGAL v. ANINDYA SUNDAR DAS & Ors.

University Act 1955, the Court issued a writ of quo warranto setting aside the appointment of the Vice Chancellor by relying upon the UGC Regulations 2018. In view of the decision in Gambhirdan K Gadhvi, even if the provisions of the Act allowed the appointment of the Vice Chancellor by the State government, it would be in violation of the UGC Regulations. The Regulations become part of the statute framed by Parliament and will prevail. The judgment of the High Court is correct in law and on fact and does not warrant interference in appeal. The State government could not have issued the order re-appointing the VC. [Paras 55, 56 and 57][973-E; 974-D-E] Gambhirdan K Gadhvi v State of Gujarat (2022) 5 SCC 179 - relied on. Case Law Reference [2013] 14 SCR 621 [2018 ] 3 SCR 137 (1964) 4 SCR 575 (2003) 4 SCC 712 (2006) 11 SCC 731 (2014) 1 SCC 161 (2018) 6 SCC 162 referred to referred to followed relied on relied on relied on relied on [2002] 2 Suppl. SCR 324 referred to [1953] SCR 1 [1975] 2 SCR 640 (2022) 5 SCC 179 referred to relied on relied on Para 9 Para 11 Para 23 Para 24 Para 25 Para 26 Para 27 Para 41 Para 41 Para 48 Para 55 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6706 of 2022. G From the Judgment and Order dated 13.09.2022 of the High Court of Calcutta in WPA (P) No.55 of 2022. With H Civil Appeal No. 6707 of 2022. STATE OF WEST BENGAL v. ANINDYA SUNDAR DAS & ORS. 953 Dr. Abhishek Manu Singhvi, Jaideep Gupta, Sr. Advs., Ms. Astha Sharma, Nipun Saxena, Amit Bhandari, Ravinder Singh, Ms. Raveesha Gupta, Ms. Mantika Haryani, Shreyas Awasthi, Kunal Chatterji, Ms. Maitrayee Banerjee, Rohit Bansal, Advs. for the Appellant. Ranjit Kumar, Sr. Adv., Kabir Shankar Bose, Mukul Singh, Amit Mishra, Venkata Raghuvamsy D., Kshitij Mittal, Abhijeet, Surjendu Shankar Das, Sunil Fernandes, Nupur Kumar, Ms. Diksha Dadu, Divyansh Tiwari, Ms. Muskan Surana, Advs. for the Respondents. The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

#1. By its judgment dated 13 September 2022, a Division Bench of the High Court at Calcutta allowed a petition under Article 226 of the Constitution seeking a writ of quo warranto against the Vice- Chancellor1 of Calcutta University. The High Court held that the State government had no authority to appoint or re-appoint the VC under Section 8 of the Calcutta University Act 19792 or by taking recourse to the residuary provisions of Section 60 of the Act. As a consequence, the order issued by the Special Secretary to the Government of West Bengal on 27 August 2021 re-appointing the incumbent VC of Calcutta University was set aside. The High Court has held that the VC had no authority to hold that office on the basis of the order of appointment. Both the State of West Bengal and Dr Sonali Chakravarti Banerjee, the VC whose appointment has been set aside, are in appeal.

#2. By a notification dated 28 August 2017, the Chancellor of Calcutta University appointed Professor Dr Sonali Chakravarti Banerjee as the VC of Calcutta University. The notification was in exercise of the powers conferred by Section 8(1)(a) read with Section 8(2)(a) of the Act. The term of appointment was for a period of four years with effect from the date on which she joined office or until she attained the age of sixty-five or until further orders, whichever is the earliest.

#3. The term of office of the VC was to end on 27 August 2021. The State government in the Higher Education Department submitted proposals for the re-appointment of the VC for a period of four years to the Chancellor on 4 June 2021 and 17 June 2021 which were not accepted as the Chancellor sought certain clarifications. 1 VC 2 the Act A B C D E F G H 954 SUPREME COURT REPORTS [2022] 13 S.C.R. A B C D E F G H

#4. On 17 August 2021, the Chancellor suo moto accorded an extension to the tenure of the VC for a period of three months under Section 8(2)(b) of the Act.

#5. The State government issued a notification on 27 August 2021 stating that: (i) While extending the tenure of the VC, the Chancellor had invoked Section 8(2)(b) without consultation with the Minister, which was mandatory; (ii) (iii) The step taken by the Chancellor of the University was void ab initio, particularly in light of provisions of Rule 9 of the West Bengal State Universities (Terms and Conditions of Service of the Vice Chancellors and the Manner and Procedure of Official Communication) Rules 2019; The Chancellor of the University had not agreed with the proposal of the State government and initiated a step without fulfilling the requisite legal pre-condition of consultation with the Minister; (iv) The provisions of the Act are “silent to deal with the situation”; (v) The State government “has no other option but to invoke the provisions of Section 60”; and (vi) The incumbent VC was being re-appointed with effect from 28 August 2021 for a period of four years or until she attains the age of seventy, whichever is earlier, in terms of the provisions of Section 60 read with Section 8(2)(b) of the Act as amended in 2019.

#6. The order of the State government re-appointing the VC was questioned in a public interest petition instituted by an alumnus of Calcutta University who is also a practicing advocate. The submissions before the High Court in support of the petition under Article 226 were that: (i) (ii) The State government had no power to re-appoint the VC since both the power to appoint and re-appoint is vested with the Chancellor; In terms of Section 8(6), the procedure which is prescribed in Section 8(1) for initial appointment has to be followed for the purpose of re-appointment as well; STATE OF WEST BENGAL v. ANINDYA SUNDAR DAS & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.] 955 (iii) The amended provisions of Section 8(2) do not constitute a complete code and the entire section has to be interpreted; A (iv) The provisions of the Act could not have been by-passed by invoking Section 60; (v) The re-appointment of the VC without following the procedure prescribed in Section 8(1) eliminates competition and was in contravention of Article 14 of the Constitution; (vi) The appointment of the VC by the State was contrary to the UGC (Minimum qualifications for appointment of teachers and other academic staff in University and Colleges and measures for the maintenance of standards in Higher Education) Regulations 2018.3

#7. The petition was opposed on behalf of the State government by submitting that: (i) (ii) (iii) In terms of the unamended provisions of Section 8, the procedure prescribed in sub-Section (1) has to be followed for re-appointment; This position was altered by the 2019 amendment to the Act; The appointment and re-appointment of a VC stand on a different footing and the power of reappointment is vested with the State government and not the Chancellor; (iv) Even if the Chancellor is the re-appointing authority, he has no discretion once a recommendation is made by the State government upon its satisfaction; and (v) Since the Chancellor has not taken any action in terms of Section 8 (2)(a), the State government had no option but to re-appoint the incumbent VC by taking recourse to the provisions of Section 60.

#8. The incumbent VC who had been re-appointed by the State government was impleaded as a party to the proceeding and urged that: (i) There is a distinction in law between appointment and re- appointment because in the case of the latter, the zone of 3 UGC Regulations B C D E F G H 956 SUPREME COURT REPORTS [2022] 13 S.C.R. A B C D (ii) consideration is restricted to persons already holding the post and in such cases the suitability of the incumbent which was assessed at the time of initial appointment need not be reassessed; In the case of a re-appointment, Section 8(2)(a) prescribes that academic excellence and administrative success are the only factors which are to be taken into consideration for re-appointment and the procedure which is prescribed by Section 8(1) is not attracted; and (iii) No writ of quo warranto can be issued where the suitability of the VC for re-appointment is sought to be questioned.

#9. The Division Bench of the High Court relied upon the judgments of this court in Central Electricity Supply Utility of Odisha v. Dhobei Sahoo4 and Bharati Reddy v. State of Karnataka5 andnoted that a writ of quo warranto can be issued when: (i) (ii) A person holding public office lacks eligibility criteria prescribed for such appointment; and The appointment is made contrary to the statutory provisions or rules.

#10. The reasons adduced by the High Court in support of its E judgment were: (i) (ii) Under Section 7(1), the Governor of the State of West Bengal is the Chancellor of the University; Section 8(1)(b) confers the powers of appointment on the Chancellor; (iii) Under Section 8(2)(b), the Chancellor has the power to continue the VC after the expiration of the term of his office up to a period of two years or until the attainment of the age of 70 years whichever is earlier; (iv) (v) In terms of Section 8(5), a temporary appointment of the VC may be made by the Chancellor; and Section 8(7) empowers the Chancellor to remove the VC on satisfaction of prescribed conditions.