R1
& 2 BY SPL. GOVERNMENT PLEADER SMT.GIRIJA GOPAL R3 BY ADV.SRI.SAJITH KUMAR
V. ADDL.R3 IS IMPLEADED AS PER ORDER DATED 03.6.2014 IN I.A.NO.7116/14.
APPENDIX
PETITIONER(S)' EXHIBITS:
-------------------------------------
EXHIBIT P1: TRUE COPY OF THE COVERING LETTER
FORWARDING THE BIO DATA THROUGH PROPER CHANNEL AND COPY OF THE BIO DATA
FURNISHED TO THE SEARCH COMMITTEE.
EXHIBIT P2: TRUE COPY OF THE SHOW CAUSE
NOTICE NO.G.S.3-1716/2012 DATED 21.12.2013 ISSUED TO THE PETITIONER.
EXHIBIT
P3: TRUE COPY OF THE REPLY DATED 04.01.2013 OF THE PETITIONER TO THE SHOW CAUSE
NOTICE (WITHOUT ANNEXURES).
EXHIBIT P4: TRUE COPY OF THE ORDER
NO.G.S.3-1716/2012 DATED 12.05.2014.
EXHIBIT P5: TRUE COPY OF THE NOTIFICATION
NO.G.S.3-1122/2014 DATED 12.05.2014.
EXHIBIT P6: TRUE COPY OF THE COUNTER
AFFIDAVIT FILED IN W.P.(C) NO.1847/2013 ON BEHALF OF THE STATE GOVERNMENT AND
THE SEARCH COMMITTEE.
EXHIBIT P7: TRUE COPY OF THE DETAILED BIO DATA OF THE
PETITIONER. EXHIBIT P8: TRUE COPY OF THE CERTIFICATE DATED 13.06.2013 ISSUED BY
THE CENTRAL UNIVERSITY TO THE PETITIONER.
RESPONDENT(S)' EXHIBITS:
---------------------------------------
EXHIBIT R3(A): COPY OF THE ORDER
NO.GS3-1716/2012 DATED 26TH NOVEMBER, 2012.
EXHIBIT R3(B): COPY OF THE RELEVANT
PAGES OF THE IST BIO DATA FURNISHED BY MR.GEORGE.
EXHIBIT R3(C): COPY OF THE
LETTER DATED 31.3.2013 SUBMITTED BY DR.A.V.GEORGE.
EXHIBIT R3(D): COPY OF THE LETTER NO.GS3-1716/2012 DATED 18.3.2013 ISSUED TO
THE CHIEF SECRETARY.
EXHIBIT R3(E): COPY OF THE LETTER NO.GS3-1716/2012 DATED
18/3/2013 ISSUED TO MR.A.V.GEORGE.
EXHIBIT R3(F): COPY OF THE DOCUMENT DATED
5/1/2013 SHOWING RECEIPT OF APPOINTMENT ORDER BY MR.A.V.GEORGE. EXHIBIT R3(G):
COPY OF THE APPOINTMENT ORDER DATED 14/8/2012 TO MR.GEORGE.
EXHIBIT R3(H): COPY
OF THE RELIEVING ORDER DATED 28/11/2012 TO MR.GEORGE.
EXHIBIT R3(I): COPY OF
THE LETTER DATED 23/3/2013 GIVEN BY CHIEF SECRETARY TO THE ADVOCATE GENERAL
ALONG WITH STATEMENT OF FACTS.
EXHIBIT R3(J): COPY OF THE LETTER DATED
10/6/2013 ISSUED TO THE CHIEF SECRETARY. EXHIBIT R3(K): COPY OF THE LETTER
DATED 10/6/2013 ISSUED TO THE CHIEF SECRETARY.
EXHIBIT R3(L): COPY OF THE
AFFIDAVIT DATED 2/9/2013 IN W.P.(C). NO.13317/2013 BY MR.A.V.GEORGE.
EXHIBIT
R3(M): COPY OF THE RELEVANT PAGES OF THE REPORT MADE BY THE ADDITIONAL CHIEF
SECRETARY, HIGHER EDUCATION.
EXHIBIT R3(N): COPY OF THE JUDGMENT DATED 8/1/2013
IN W.P.(C). NO.24003/2013.
EXHIBIT R2(A): COPY OF PRESS RELEASE DATED
20.12.2012.
EXHIBIT R2(B): COPY OF PRESS DATED 20.12.2012 ISSUED BY THE PUBLIC
RELATIONS OFFICER, MG UNIVERSITY.
EXHIBIT R2(C): COPY OF BIO DATA DATED
18.12.2012.
EXHIBIT R2(D): COPY OF BIO DATA DATED 26.12.2012. EXHIBIT R2(E):
COPY OF BIO DATA DATED 03.01.2013.
EXHIBIT R2(F): COPY OF NOTIFICATION
NO.GS3/1716/2012 DATED 5.1.2013.
EXHIBIT R2(G): COPY OF COMMUNICATION DATED
10.06.2013.
J U
D G M E N T
The legality of the order of the Chancellor of the Mahatma Gandhi
University, removing the petitioner from the office of the Vice- Chancellor of
the University, is the issue that comes up for consideration in this writ
petition.
The brief facts necessary for the disposal of this writ petition are
as follows;
2. The office of the Vice-Chancellor of the Mahatma Gandhi
University having fallen vacant, proceedings were initiated in accordance with
the provisions of the
Mahatma Gandhi University Act, 1985
(hereinafter referred
to as the 'MGU Act') for appointing a new incumbent to the said office. As a
first step in that direction, the Chancellor of the University issued a
notification dated 26.11.2012 constituting a three member committee as
contemplated in Section 10 of the MGU Act. The Chief Secretary of the State was
the nominee of the Chancellor in the said committee and he was also to be the
Convener of the committee. While the committee began to receive applications
from interested candidates immediately after its constitution, pursuant to a
meeting held by the members of the committee on 20.12.2012, it was decided by
the committee to receive applications from interested candidates till
28.12.2012, before commencing the process of shortlisting of candidates for
submission to the Chancellor. Thereafter, on 31.12.2012, the committee
submitted two panels of names. Two members of the panel submitted a panel of
three names and the other member submitted a separate panel of three names.
From among the panel of names submitted by two members of the committee, the
Chancellor appointed the petitioner as the Vice-Chancellor of the University
vide Notification dated 05.01.2013.
3. Immediately
after the appointment of the petitioner as the Vice-Chancellor of the
University, the Chancellor received representations from the 3rd respondent
citing certain irregularities in the appointment of the petitioner. The
Chancellor, thereupon, vide Ext.R2 (g) communication, forwarded the same to the
Chief Secretary for necessary action. The Chief Secretary, as convener of the
committee, caused the 2nd respondent to conduct a detailed enquiry in the
matter and submit a report to him. Ext.R3 (m) is a copy of that report and
therein it was opined that the appointment of the petitioner as Vice-Chancellor
was tainted and invalid on account of misidentification, misrepresentation,
deception and misleading the appointing authority.
4. In the
meanwhile, the 3rd respondent preferred a writ petition - W.P.(C).No.13317/2013
- in the nature of a Public Interest Litigation, challenging the appointment of
the petitioner as the Vice- Chancellor of the University and praying inter alia
for a direction to the Chancellor to hear and dispose the representations
preferred by him before the Chancellor. Another writ petition - W.P.(C).
No.24003/2013 - was also preferred by the 3rd respondent seeking a writ of quo
warranto against the appointment of the petitioner as the Vice-Chancellor. Both
the aforementioned writ petitions were disposed by this Court, by separate
judgments dated 08.01.2014, finding that insofar as the Chancellor was seized
of the matter regarding the validity of the appointment of the petitioner as
Vice- Chancellor, the writ petitions were not maintainable before it. These
judgments came to be passed because, while the writ petitions were pending, and
based on interim orders passed therein, the Chancellor had caused Ext.P2 show
cause notice to be issued to the petitioner seeking his explanation with regard
to the findings in Ext.R3 (m) report as also the contents of the
representations received by the Chancellor from the 3rd respondent.
5. It is relevant
to note that, on receipt of Ext.P2 show cause notice and on coming to know of
Ext. R3 (m) report relied upon therein, the petitioner preferred W.P.(C).No.29926/2013
challenging Ext.R3 (m) report as also W.P.(C).No.32310/2013 challenging Ext.P2
show cause notice. The latter writ petition was disposed by judgment dated
27.12.2013 directing the Chancellor to consider the objections of the
petitioner against the show cause notice. Based on this judgment, the former
writ petition was dismissed as infructuous. Although, the petitioner approached
the Supreme Court against the judgments in W.P.(C).Nos.29926/2013 and
32310/2013, through SLP Nos.6599-6600/2014, the same were eventually dismissed
as withdrawn. The petitioner, thereafter, preferred Ext.P3 reply to the show
cause notice issued by the Chancellor. He was also afforded an opportunity of
hearing before the Chancellor. Subsequently, when there was a change in the
office of the Chancellor, he was afforded a fresh opportunity of hearing before
the new Chancellor. The Chancellor then passed Ext.P4 order dated 12.05.2014,
removing the petitioner from the office of the Vice-Chancellor of the Mahatma
Gandhi University. By Ext.P5 notification, issued on the same day, the
Chancellor also conferred the powers of the Vice-Chancellor on the Pro-Vice
Chancellor of the University.
6. A perusal of
Ext.P4 order of the Chancellor reveals that the three issues that came up for
consideration before the Chancellor were as follows:
Whether the petitioner was
disqualified from holding the post of Vice-Chancellor insofar as he did not
possess the qualifications prescribed by the UGC for the post of Vice-
Chancellor?
Whether the petitioner had attempted to make misrepresentation in
his bio-data by falsely suggesting that he was "Head of Department of
Environmental Sciences, Central University of Kerala" at the time when he
was considered for appointment as Vice-Chancellor of the Mahatma Gandhi
University? and
If the petitioner had so misinterpreted and that had resulted
in his being appointed as Vice- Chancellor, Mahatma Gandhi University, could he
be proceeded against only under Section 7 (10) of the Mahatma Gandhi University
Act or could the appointing authority exercise its inherent powers to remove
him from office?
7. It is seen from Ext.P4 order that the Chancellor did not
deem it necessary to go into the first question since the Government had
admitted that the UGC Regulations were not being adopted into the University
Statute. As regards the second question, it was found that the petitioner had
clearly misrepresented facts regarding the position held by him as on the date
of his consideration for the post and that this amounted to a commission of
fraud upon the appointing authority. As regards the third question, it was
found that the appointing authority had inherent power to determine the service
of an appointee on the ground that the appointment is vitiated on account of
misrepresentation made by the appointee. It was also found that in such cases,
the provisions of Section 7 (10) of the MGU Act did not apply. It is these
findings in Ext.P4 order that are impugned by the petitioner in the present
writ petition.
8. Counter
affidavits have been filed on behalf of the 2nd and 3rd respondents. In the
counter affidavit filed on behalf of the 2nd respondent that stand taken is
that the petitioner had, by misrepresenting material facts, secured appointment
to the post of Vice-Chancellor of the MG University. The manner in which,
according to the respondents, the petitioner went about that task is also
detailed in the said counter affidavit. In the counter affidavit filed on
behalf of the 3rd respondent emphasis is laid on the fact of misrepresentation
by the petitioner of his status at the time of submitting his bio-data for the
post of Vice-Chancellor of the MG University. The delayed attempts of the
petitioner to try and get the mistake corrected are also emphasized therein to
suggest that the said actions lacked bona fides.
9. I have heard
learned Senior Counsel Sri. M.K. Damodaran and Sri. Gopalakrishna Kurup,
assisted by Advocates Sri. P.K.Vijayamohanan and Gilbert George Correya, on
behalf of the petitioner, the learned Advocate General Sri. K.P Dandapani,
assisted by Advocate Smt. Girija Gopal, on behalf of the 1st and 2nd
respondents and Advocate Sri V. Sajith Kumar on behalf of the 3rd respondent.
10. The issue to
be decided in this case is the legality of the finding in Ext.P4 order that the
petitioner had, through the bio-data submitted by him to the committee
constituted to assist the Chancellor, misled the said committee and the
appointing authority by falsely stating in his bio-data that he was serving as
the Head of the Department of Environmental Science in the Central University
of Kerala, Kasaragod during the relevant time when, in fact, he was not. The
other issue to be considered is whether the Chancellor can, in exercise of
inherent powers, remove a person who has been appointed as a Vice-Chancellor,
on grounds other than those expressly mentioned in Section 7 of the MGU Act.
11. Learned
Senior Counsel Sri.M.K.Damodaran and Sri. Gopalakrishna Kurup, appearing on
behalf of the petitioner, would submit that:
The petitioner had submitted only
two copies of his bio-data to the committee constituted by the Chancellor to
select the Vice-Chancellor. The said copies contained corrections which clearly
indicated that the petitioner had held the post of Head, Department of
Environmental Science, at the Central University of Kerala, Kasaragod, only
till 29.11.2012 and that he had re-joined Christ College, Irinjalakuda, on
superannuation on 30.11.2012, as Head, Department of Geology and Environmental
Science. The petitioner had not submitted any copy of his bio-data prior to
Ext.P1 copy that was sent under cover of letter dated 26.12.2012. Ext.P1 was
sent in response to the press release dated 23.12.2012 that indicated that the
last date for submission of the bio-data was 28.12.2012. There was nothing on
record to show that the members of the search committee had been misled by the
contents of the bio-data. In fact, a reading of Ext.P2 show cause notice would
indicate that the allegation against the petitioner was that he had distorted
and falsified his bio-data to show that, at the time of applying for the post
of Vice-Chancellor of MG University, he was a candidate who had experience in
the "University System". Such a falsification of the bio-data, even
if established, could not have had the effect of misleading the committee
members. This is because the said representation could have had a relevance
only if the standards prescribed by the UGC were to be met by a candidate
seeking appointment to the post of Vice-Chancellor and it was the admitted
stand of the Government that the standards prescribed by the UGC were not being
adopted into the University Statute. The respondents never had a case that the
petitioner was not qualified to hold the post in question. In fact, in Ext.P6
counter affidavit filed by the State Government, in a writ petition filed by
the 3rd respondent challenging the appointment of the petitioner as
Vice-Chancellor, the State Government had clearly indicated their stand that
the selection process and appointment of the petitioner was done strictly in
conformity with the provisions of the MGU Act and that the search committee
had, by a decision of majority of its members, recommended the name of the
petitioner for the post. The said counter affidavit is dated 05.07.2013 and the
change in the stand of the respondents as seen from Ext.P2 dated 21.12.2013 is
suspicious. The power of the Chancellor, to remove the petitioner from the post
of Vice-Chancellor to which he was validly appointed, was traceable only to
Section 7 of the MGU Act. Other than this power, the Chancellor did not have
any inherent power to remove the petitioner from his post. Alternatively, even
if it is assumed that the Chancellor did have inherent powers, the said powers
were not properly exercised insofar as there has been no independent
consideration of the issue by the Chancellor in the instant case. A perusal of
Ext.R3 (m) report of the 2nd respondent clearly revealed that the 2nd
respondent had exceeded his mandate, while furnishing the said report to the
Chief Secretary who was the convener of the search committee, by making
suggestions and recommendations for the removal of the petitioner from the post
of Vice-Chancellor of the MG University. The Chancellor, by placing reliance on
this report while issuing Ext.P4 order, had virtually acted under dictation and
failed to act independently while taking the decision therein. Reliance is
placed on the decisions reported in
Deepak v. University of Kerala [2014 (1)
KLT 520]
and
Ashok v. Chancellor, Kerala Veterinary and Animal Sciences
University [2012 (3) KLT 829]
to contend that Ext.P4 decision of the Chancellor
is vitiated on account of his acting under dictation.
12. Per contra,
the submissions of the learned Advocate General, briefly put, are as follows:
The petitioner had submitted three sets of bio-data to the committee
constituted by the Chancellor to select the Vice-Chancellor. The first of these
was Ext.R2 (c), which was submitted by the petitioner, in person, to the Chief
Secretary sometime between the 10th and 18th of December 2012. The second set,
produced as Ext.R2 (d), was received by the committee on 27.12.2012 and the
third set, produced as Ext.R2 (e), was received by the committee on 03.01.2013.
While receiving Ext.R2 (d) bio-data, the Principal Secretary, Higher Education
department had endorsed the words "already entered" on the covering
letter sent by the petitioner, indicating thereby that another bio-data of the
petitioner had already been received by the committee earlier. The stand of the
petitioner Ext.R2 (c) bio-data had never been submitted by him was therefore,
factually incorrect. The contention of the petitioner that only Ext.R2 (d)
bio-data, that was submitted immediately after 20.12.2012, could be considered
since it was the one submitted after the date of the press release calling for
applications, is factually incorrect because the press release referred to by
the petitioner did not call for applications but was one that intimated all
concerned that applications would be received by the committee only till
28.12.2012. While, Ext.R2 (c) bio-data, which was the one relied upon by the
selection committee while making the selection, showed the address of the
petitioner as "Head, Department of Environmental Science, Central University
of Kerala, Kasaragod", the same representation was also contained, at
different places, in the other bio-data's submitted by the petitioner,
notwithstanding that there had been some corrections incorporated therein by
the petitioner. The said representation misled the members of the search
committee while recommending his name for appointment as Vice-Chancellor.
Insofar as the petitioner had, by misrepresenting material facts, secured
appointment to the post of Vice- Chancellor of the MG University, it was well
within the powers of the Chancellor to remove him from the post de hors the
powers under Section 7 of the MGU Act. It is settled law that fraud and
misrepresentation vitiate any appointment secured through those means and hence
Ext.P4 order of the Chancellor that removed the petitioner from the post of
Vice-Chancellor, after complying with the rules of natural justice, could not
be legally assailed. Reliance is placed on the following decisions to
substantiate the said contention viz.
Jainendra Singh v. State of Uttar Pradesh
through Principal Secretary, Home and Others [(2012) 8 SCC 748]
Kendriya
Vidyalaya Sangathan and Others v. Ram Ratan Yadav [(2003) 3 SCC 437]
A.P. Public Service Commission v. Koneti Venkateswarulu and Others [(2005) 7 SCC
177]
S.P. Chengalvaraya Naidu (Dead) by LRS. v. Jagannath (Dead) by LRS. and
Others [(1994) 1 SCC 1]
Indian Bank v. Satyam Fibres (India) Pvt. Ltd. [(1996)
5 SCC 550]
and
Bhaurao Dagdu Paralkar v. State of Maharashtra and Others
[(2005) 7 SCC 605].
The power of the Chancellor to remove the petitioner from
the post of Vice-Chancellor is not traceable only to Section 7 of the MGU Act.
The Chancellor does have inherent powers to remove a person who has secured his
appointment by misleading the selection committee and the appointing authority.
Reliance is placed on the decision reported in
Dr. Bool Chand v. Chancellor,
Kurukshetra University [AIR 1968 SC 292]
for this purpose. In the alternative,
it is submitted that even in circumstances where the proceedings concluded against
the petitioner by the Chancellor are found to be legally vitiated, the Court
can, while deciding whether or not to grant the discretionary relief under
Article 226 of the Constitution in favour of the petitioner, consider factors
such as the petitioner's conduct and character, the nature of the post to which
he seeks appointment, and whether he is a person suitable for appointment to
the said post. In support of this contention reliance is placed on the
decisions reported in
State of Maharashtra and Others v. Prabhu [(1994) 2 SCC
481]
and
Devendra Kumar v. State of Uttaranchal and Others [(2013) 9 SCC 363]
13.
Adv.Sri.V.Sajith Kumar, appearing on behalf of the 3rd respondent would submit
that Ext.R3 (a) would show that it was very possible that the petitioner had,
in fact, submitted a bio-data to the convener of the search committee on a date
between the 10th and 18th of December, 2012. Ext.R3 (a) is the notification
dated 26.11.2012 whereby the Chancellor constituted the search committee. The
said notification indicated that the recommendation by the committee was to be
made within a period of one month from the date of the notification. It was
likely, therefore, that the petitioner submitted his bio-data to the convener
immediately thereafter. He would also point out that although Ext.R3 (d) letter
sent by the petitioner to the Chancellor, seeking to correct the mistake in the
designation shown against his name in the appointment order, is dated
31.01.2013, the said letter was actually received by the Chancellor only on
11.03.2013 as is evident from Ext.R3 (d) letter of the Chancellor. He also
refers to Ext.R3 (h) relieving order dated 28.11.2012 issued to the petitioner
by the Central University of Kerala wherein also he is not shown as Head of the
Department of Environmental Science. The said references are made to
demonstrate that the conduct of the petitioner is not worthy of one who seeks
appointment to the post of Vice- Chancellor of a University.
14. I have
considered the facts and circumstances of the case as borne out by the
pleadings and also the submissions made by the learned counsel. I have also
gone through the files of the Chancellor that were made available for my
perusal by the learned Advocate General.
15. At the outset, it must be noted
that the jurisdiction I am called upon to exercise in this case is one of
judicial review under Article 226 of the Constitution of India. Accordingly, I
am required to examine Ext.P4 order of the Chancellor of the University with a
view to ensuring that it conforms to the requirements of legality, rationality
and procedural propriety and, further, not hit by the legal vice of Wednesbury
unreasonableness. The jurisdiction is not an appellate one and hence I need
concern myself only with the manner in which the decision was arrived at and
whether the said decision was in accordance with law.
16. Ext.P4 order
of the Chancellor of the MG University, that is impugned in this writ petition,
is premised on the finding that the petitioner had, through the bio-data submitted
by him, suppressed material information and made a false statement that had
weighed with the search committee, as also the appointing authority, while
appointing him to the post of Vice-Chancellor of the MG University. To test the
legality of the said order, therefore, one has to examine whether the
Chancellor was justified in arriving at the finding that (i) there was a
misrepresentation by the petitioner, either through suppression of material
information or through the making of false statements, to the members of the
search committee and (ii) the misrepresentation was such that it misled the
committee into taking a decision that conferred some benefit or advantage to
the petitioner. An examination of the first aspect requires me to peruse the material
that was made available by the petitioner to the search committee in connection
with the consideration of his candidature for the post in question. The matter
gets a bit complicated here because the petitioner maintains that he had
submitted only two copies (Exts.R2 (d) and R2(e)) of his bio-data to the
convener of the search committee, both under cover of his letter dated
26.12.2012, whereas the respondents would maintain that there were three copies
of his bio- data that were available with them viz. the two referred to by the
petitioner and an earlier copy (Ext.R2(c)) that was handed over by the
petitioner, in person, to the convener of the search committee sometime between
10.12.2012 and 18.12.2012. While Ext.R2(e) need not be looked into since it is
admitted by both sides that the said copy was received by the search committee
only on 03.01.2013, much after 31.12.2012 when the search committee met to make
the selection, the question as to whether Ext.R2(c) was available with the
search committee becomes relevant because it is the specific case of the
respondents that that is that copy of the bio-data that they considered while
recommending the petitioner for the post. Further, the said copy of the
bio-data did not contain the corrections or inscriptions that are found on
Ext.R2(d) copy through which the petitioner appears to have indicated that his
tenure as the Head of the Department of Environmental Sciences at the Central
University of Kerala was only up to 29.11.2012.
17. A perusal of
the files, that were made available to me during the course of the hearing,
reveals that Ext.R2(c) copy of the bio-data was indeed available before the
search committee when they met on 31.12.2012 to conduct the selection.
Although, by that date, they also received Ext.R2(d) copy of the bio-data, the
unauthenticated inscriptions in the said copy were apparently not noticed by
the search committee on 31.12.2012. This may have been, as counsel for the 2nd
respondent put it, on account of the fact that the search committee did not
realize the significance of another copy of a bio- data which they had already
received from the petitioner. In fact, Ext.R2(d) copy carries on the face of it
a stamp showing its receipt on 27.12.2012 and an endorsement by the Principal
Secretary (Higher Education) stating "already entered". It is
apparent, however, that on the date when the search committee met to make the
selection, they had before them both Exts. R2(c) and R2(d) copies of the
bio-data and they appear to have relied only on Ext.R2(c) while making the
selection.
18. The search
committee, that met to sift through the applications and finalise a panel of
three names for submission to the Chancellor, was not unanimous in its choice
of names. While two of the three members of the panel, including the convener
thereof, suggested a panel of three names including that of the petitioner, the
panel suggested by the UGC nominee did not contain the name of the petitioner.
It may not be out of place to note here that the petitioner was the only
person, among those empanelled, who was not designated as a Professor. It is
also relevant to note that when the panel, suggested by the majority of the
members of the search committee, was forwarded to the Chancellor for the
latter's decision, the names of the empanelled persons were listed with
specific mention of their current designation. Accordingly, the names of those
empanelled were shown as: Prof. G.Gopa Kumar, UGC-Emeritus Fellow, University
of Kerala. Prof. V.Prasannakumar, Professor of Geology and Director,
Inter-University Centre for Geospatial Information Science and Technology.
Dr.A.V.George, Head, Department of Environmental Science, Central University of
Kerala, Kasaragod.
19. I have
thought it fit to mention this aspect here because, sans any other material
available on record to gauge the criteria adopted by the search committee for
empanelment of the candidates, the reference to the current designation of the
empanelled persons, in addition to their names, does suggest a possibility of
the designation of the person having been a criteria for the choice of
candidates. It is pointed out that the particular designation of the petitioner
as Head, Department of Environmental Sciences, Central University of Kerala,
would have had relevance only if the UGC Regulations were adopted into the
University Statutes and, insofar as in the instant case the State Government
had since decided not to adopt the UGC Regulations into the University
Statutes, the factual misrepresentation, if any, could not have had any
relevance or significance. I am not impressed with the above contention since
in my opinion, it ignores the distinction between considerations of eligibility
and suitability. While for the purposes of determining a candidate's
eligibility for the post, the qualifications prescribed under the Statute would
be relevant, different considerations may apply when what is considered is his
suitability for the post. In the context of a consideration of suitability, the
issue as to whether a representation by the petitioner had the effect of
misleading the search committee or not, has to be examined not in the light of
the petitioner's perception of what was relevant but in the light of what the
committee perceived as a relevant criteria. On a perusal of the files in the
instant case, the possibility of the designation of the petitioner as Head of
the Department of Environmental Sciences, Central University of Kerala, having
weighed with the search committee while determining his suitability for
empanelment, cannot be ruled out.
20. It is against
the above backdrop that one has to examine whether the Chancellor was justified
in holding that the representations in the petitioner's bio-data amounted to a
misrepresentation of facts to the members of the search committee. As already
noted, Ext.R2(c) bio-data, that was admittedly relied upon by the search
committee, contained a clear representation that the petitioner was then
holding the post of Head of the Department of Environmental Sciences at the
Central University of Kerala. Although, the petitioner would vehemently contend
that this copy of his bio-data was never sent by him or handed over in person
to the convener of the search committee, in the absence of any material to
suggest the contrary, one has to place reliance on the fact that the said copy
of the bio-data, carrying the signature of the petitioner, was received at the
office of the Chief Secretary on 19.12.2012, as evidenced by the seal of the
said office on the face of the document. Under these circumstances, the view of
the Chancellor, that the representation as regards current designation in the
said document, amounted to a clear misrepresentation of facts that misled the
committee while empanelling him as a candidate for the post in question cannot,
when viewed in the context of the criteria that was apparently adopted by the
search committee, be held to be either arbitrary or unreasonable.
21. The
petitioner also has a contention that insofar as he had submitted Ext.R2(d)
copy of his bio-data, that contained unauthenticated inscriptions thereon to
suggest that he held the post of Head, Department of Environmental Science,
Central University of Kerala only up to 29.11.2012, and the said document was
admittedly available in the office of search committee on 31.12.2012 when they
met to finalise the panel, the search committee could have avoided any
confusion with regard to his current designation by referring to the said copy
of the bio-data. Attractive though this contention might appear at first blush,
it has to be noticed, as was done by the Chancellor in Ext.P4 order, that the
said copy of the bio-data also contained the same representation, as regards
his holding the post of Head, Department of Environmental Science, Central
University of Kerala, at many other places. In this view of the matter,
Ext.R2(d) copy of the bio-data, more than clarifying the actual position, could
only have added to the confusion since it was, on the face of it, ambiguous in
what it stated. At any rate, since the search committee admittedly did not
place reliance on the said document, nothing turns thereon save to the extent
of examining whether, by not referring to the said document, the search
committee had, in some way, contributed to the confusion. In the light of the
criteria, which in all likelihood was adopted by the search committee, I do not
think the corrections in Ext.R2 (d) copy of the bio-data could have come to the
aid of the petitioner.
22.
Before
parting with this issue, I must express my shock and surprise at the
indifferent and irresponsible manner in which the petitioner seems to have
pursued his application for appointment to what is, undoubtedly, a prestigious
post in academic circles. The fact that (a) the original version of the
bio-data was prepared using a computer, (b) that the first copy of the bio-data
sent in support of his application contained factual mistakes, probably on
account of a non- updating of the details contained therein, and (c) that in
the subsequent copies of the bio-data, the few corrections that were made, were
inscribed by hand without authenticating the same and without incorporating the
same corrections in other parts of the document, all point to the rather
nonchalant manner in which the petitioner sought to pursue a serious matter.
The office of the Vice- Chancellor of the MG University, is of very great
importance in the scheme of University level education in the State. The MGU
Act describes him as the principal academic and executive officer of the
University having administrative control over all the other officers of the
University. He is also the Chairman of the Senate, the Syndicate, the Academic
Council and the Finance Committee of the University. The manner of his
appointment, through a committee constituted by the Governor of Kerala who, by
virtue of his office, is the Chancellor of the University, and the elaborate
procedure by which alone he can be removed from his office, as stipulated in
the MGU Act, indicate the exalted position that he occupies in academic circles.
An applicant to such a post cannot, in my opinion, afford to be imprudent in
his ways.
23. I now advert
to the contention of the petitioner that in passing Ext.P4 order, the
Chancellor was effectively acting under the dictates of the State Government and
hence the decision in Ext.P4 was vitiated in law. The contention is based on
the settled position in law that a Governor of the State, while exercising the
functions of a Chancellor under the University Statute, acts not in the
gubernatorial role, on the aid and advise of the council of ministers, but as a
statutory authority called upon to exercise the powers vested in him under the
Statute. The recent decision of a division bench of this court in
Deepak v.
University of Kerala [2014 (1) KLT 520]
reiterates this legal position.
Dealing with the manner in which the Governor was to act when functioning as
the Chancellor of the University, the court held as follows:
"In view of
the contentions raised by the parties, the first question we will have to consider
is whether there is a decision by the first respondent Chancellor. Quite
clearly, in view of the exposition of law contained in 1990 (1) KLT 681 it is
clear that when the Governor is exercising his power ex-officio as a Chancellor
of the University he is acting purely as a statutory authority. He does not
even have the immunity extended to him by virtue of Art.361 of the Constitution
in relation to his acts as Governor. He is not expected to act on the advice of
the Council of Ministers. When he acts as Chancellor, he is expected to act as
an independent statutory authority just as in the case of any other statutory
authority. It is incumbent on him to pose the correct question. He must be
guided by relevant matters. He must eschew irrelevant considerations. The
repository of every statutory power is only to act for public good. He must
imbibe the object of the Act under which he acts and he must effectuate the
object of the Act in ultimate analysis. In other words, even in the matter of
withdrawal of nomination, he must be guided by what is in the best interest of
the University. Of course, needless to say, he has to act bona fide. This is
not to say that he cannot seek legal advice on a matter in which he entertains
doubts as to the legal position, but at the end of the day when he takes a
decision, the decision must be entirely his. It should not be dictated to by
anyone."
24. The matter to be examined here is whether the Chancellor,
while passing Ext.P4 order, took an independent decision in the matter without
being dictated to by the State Government. No doubt, the records in the instant
case reveal that on receiving complaints regarding the appointment of the
petitioner as Vice-Chancellor, the Chancellor had called for a report from the
Chief Secretary of the State who was the convener of the search committee that
empanelled the candidates. The Chief Secretary, in turn, called for a report
from the 2nd respondent. Ext.R3(m) is that report. Counsel for the petitioner
repeatedly referred to paragraphs 78 and 79 of the said report to emphasise
that the report that was to serve as nothing more than a fact-finding report,
contained findings as regards the culpability of the petitioner and even a
recommendation for his removal from office. Had the Chancellor mechanically
adopted this report and removed the petitioner from his post, his action would
have been legally vitiated. In the instant case, however, the Chancellor caused
Ext.P2 notice to be issued to the petitioner wherein the contents of Ext.R3(m)
report, together with the suggestions and recommendations in it, were
reproduced and the petitioner's comments called for in response to the said
report, as also the representation received by the Chancellor from the 3rd
respondent. In Ext.P3 reply submitted by the petitioner in response to Ext.P2
notice, the petitioner has dealt with all the allegations against him by
furnishing his explanations thereto. Thereafter, the petitioner was afforded an
opportunity of hearing before the Chancellor. Later, when there was a change of
incumbent in the office of the Chancellor, he was given a further opportunity
of hearing before the new incumbent. The files disclose that the hearing notes
in respect of both the hearings were placed before the Chancellor who passed
Ext.P4 order and the order itself was passed after obtaining independent legal
advice in respect of matters on which the Chancellor required clarification. On
a perusal of Ext.P4 order and the file noting leading up to it, I am convinced
that the decision of the Chancellor in Ext.P4 order was one that was
independently arrived at by the Chancellor and not legally vitiated. The mere
fact that Ext.P2 notice issued to the petitioner contained a verbatim
reproduction of the findings and suggestions of the 2nd respondent in Ext.R3(m)
report, cannot be a reason to assume that the Chancellor had not acted
independently while passing Ext.P4 order. As a matter of fact, a mere reading
of Ext.P4 order of the Chancellor would belie the contentions of the petitioner
in this regard. The challenge to Ext.P4 order of the Chancellor on this ground
is therefore repelled. Further, in the light of the above finding, I do not
deem it necessary to dwell upon the alternate contention of the respondents
that even in circumstances where the proceedings concluded against the
petitioner by the Chancellor are found to be legally vitiated, the Court can,
while deciding whether or not to grant the discretionary relief under Article
226 of the Constitution in favour of the petitioner, consider factors such as
the petitioner's conduct and character, the nature of the post to which he
seeks appointment, and whether he is a person suitable for appointment to the
said post.
25. Lastly, I
must deal with the contention of the petitioner that, having been appointed as
a Vice-Chancellor of the MG University, the power to remove him from his office
could be exercised by the Chancellor only in terms of Section 7 of the MGU Act.
In other words, the contention is that de hors Section 7 of the MGU Act, there
is no inherent power in the Chancellor to remove a person from the office of
the Vice-Chancellor. In my opinion, the contention of the petitioner ignores
the basic distinction between the removal of an employee for proved misconduct
and the removal of an employee on the ground that the employment itself was
secured through fraudulent means. In the former, there is an employer -
employee relationship that comes into existence, which is thereafter governed
by the statutory or contractual conditions of service applicable to the
employee. In the latter, the existence of the employer - employee relationship
itself is denied. An occasion for exercise of power under Section 7 of the MGU
Act arises only in a case where the employer-employee relationship between the
University and the petitioner validly comes into existence and is not affected
by any vitiating circumstances. An illegality that affects the creation of the
relationship, however, stands on a different footing. A Chancellor who seeks to
nullify an illegal appointment does not exercise the power under Section 7 of
the MGU Act but merely acts on the settled legal premise that the investment by
a Statute, of a power to appoint, carries with it a power to determine such
employment. No doubt, the power cannot be exercised arbitrarily but only, as
observed by the Supreme Court in
Dr. Bool Chand v. Chancellor, Kurukshetra
University [AIR 1968 SC 292]
"for a good cause ie. in the interests of
the University and only when it is found after due enquiry, held in a manner consistent
with the rules of natural justice, that the holder of the office is unfit to
continue as a Vice-Chancellor."
26. The courts have always frowned upon an
appointment that is obtained by misrepresentation of material facts as was
noticed in a recent decision of the Supreme Court in the case of
Devendra Kumar
v. State of Uttaranchal and Ors. [(2013) 9 SCC 363]
It is now a settled
proposition of law that
Where an applicant gets an office by misrepresenting
the facts or by playing fraud upon the competent authority, such an order
cannot be sustained in the eye of law. In such cases, the Court does recognise
that dishonesty should not be permitted to bear fruit and benefit those persons
who have resorted to fraud or misrepresentation. As a matter of fact, courts
have thought it fit not to entertain petitions on behalf of such persons so as
to prevent a perpetration of the fraud.
The appointment obtained by the
petitioner, having been found to be vitiated on account of the
misrepresentation by the petitioner, was necessarily voidable at the option of
the employer. The action of the Chancellor in annulling the appointment was,
therefore, legally valid and wholly justified. For the reasons aforementioned,
I find Ext.P4 order, removing the petitioner from the post of Vice-Chancellor
of the University, to be legal and valid. The writ petition fails and is
accordingly dismissed but without any order as to costs.
Before parting with
this case, I must acknowledge the valuable assistance rendered to this Court during
the hearing by learned counsel appearing on both sides. A word of appreciation
must, in particular, be said of Adv.Smt.Girija Gopal whose lucid and persuasive
submissions, backed by meticulous research, rendered them worthy of emulation
by junior members of the bar.
