@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashThis is the writ petition filed for the issuance of a writ in the nature of Quo Warranto or any other appropriate writ calling upon the second Respondent to show under what authority of law he is holding the office of the Vice Chancellor of Indian Maritime University at Utthandi, Chennai and consequently seeks for a declaration that the post of the Vice Chancellor of Indian Maritime University, Chennai as vacant.
2. This Court without admitting the writ petition gave notice on admission and directed the counsel for the Petitioner to serve Respondents privately. On being served, the second Respondent has filed a counter affidavit, dated 24.7.2011 justifying his appointment. He has also filed a typed set of documents containing certain documents. The first Respondent Union of India has also filed a counter affidavit, dated 17.8.2011. The said counter affidavit was sworn to by the Under Secretary to the Government of India, Ministry of Shipping.
3. The Petitioner claimed that he is the State Organizer of the Revolutionary Students Youth Front (RSYF), a students'' organisation fighting for the cause of students and education. The Motto of the Students'' Organization is "Education to All and Jobs to All". The said organization was established during the year 1980 and it is known for its activities which are held in democratic manner. During the year January, 2011, the Petitioner came to know from the newspaper report that a First Information Report has been registered against the second Respondent on the ground of having possession of assets disproportionate to his known sources of income. There were also complaints from students of the Indian Maritime University which is an University established by the Central Act 22/2008 known as the Indian Maritime University Act, 2008 (for short IMU Act). The said Act was brought into force with effect from 14.11.2008. After setting out various provisions of the said Act, the Petitioner referred to Section 12, wherein the post of Vice Chancellor and the nature of appointment has been set out. u/s 12, the Vice Chancellor of the University has to be appointed by the Visitor in such manner as may be prescribed by the Statutes. The Vice Chancellor is declared as the principal, executive and academic officer of the University. He shall exercise general supervision and control over the affairs of the University. He must give effect to the decisions of all the authorities of the University. Thereafter, the other powers of the Vice Chancellor are set out in the said provision.
4. u/s 29 of the IMU Act, the first Statutes are set out in the Schedule. Thereafter the Executive Council of the Indian Maritime University was given power to make new or additional statutes from time to time. Such power also include power to amend or repeal any Statutes referred to u/s 29(1). Any new Statutes or any amendment or repeal of existing statutes will have effect only if it is assented by the Visitor, who is the President of India. It is also provided u/s 29(5) that notwithstanding anything in the said section, the Visitor can make new or additional statutes or amend or repeal statutes referred to in Section 29(1) during the first period of three years immediately after the commencement of this Act. But the Visitor has also been directed to make within one year from expiry of the first statutes, such detailed statutes as he may consider necessary and such detailed statutes shall be placed before the Houses of Parliament. Under the Statute No. 2.1, the Vice Chancellor has to be appointed by the Visitor from the panel of not less than 3 persons having experienced in the field of Human Resources Management, Maritime, Public Administration, Marine or Port Administration. But it is also stated that the Visitor need not approve any one of the names and can call for a fresh name. The Vice Chancellor who is so appointed can hold the office for a term of five years from the time when he enters upon the office or until he reaches the age of 65 years.
5. Therefore, the Petitioner contended that the person who is so appointed as a Vice Chancellor should be an eminent educationist in the area such as Maritime Mangement, General Management, Science and Technology with Ph.D Degree. It is also claimed by the Petitioner that recruitment rules have been framed for the post of the Vice Chancellor and they were published in the Gazetteer of India, dated 12.5.2009. Under Chapter 9, recruitment rules under the caption Academic and Administrative Service deals with the post of the Vice Chancellor. It is described as the chief Executive Officer. It is also stated that the person who is qualified to be the Vice Chancellor must be an eminent educationist in the area of Maritime Management, General Management, Science and Technology with Ph.D Degree. In the publication made by the Indian Maritime University for the University Teaching and Non Teaching Employees Rules relating to the terms and conditions of service, the same has been reproduced. But notwithstanding these rules, the second Respondent has been appointed by the President of India without constituting any committee under Statutes No. 2.2 and no panel of three names were prepared. The second Respondent had done B.A.(Economics) in 1978, M.A. (Economics) in April, 1980. He had secured Ph.D from the University of Bombay in 1987 and his thesis related to Industrial Sickness. He had also obtained Post Graduate Diploma in Human Resource Management from Pondicherry Central University in December, 1996. His profile related to research and academic experience do not any way relate to any maritime science or maritime studies. He was only the Board of Director of Tamilnadu Maritime Academy, which was an autonomous institute established by Poompuhar Shipping Corporation owned by the Government of Taml Nadu. Under no stretch of imagination, he can be called as an eminent educationist. It is also claimed that the FIR, dated 12.1.2011 was filed by the CBI at Chennai for offences under Sections 109 IPC read with 13(2) and 13(1)(e) of the Prevention of Corruption Act, 1988. The second Respondent had secured an anticipatory bail from this Court on 25.1.2011. Therefore, it was stated that he cannot hold the office of the Vice Chancellor under the aforesaid reasons.
6. In the counter affidavit filed by the first Respondent Government of India, it is stated that the allegations made by the Petitioner on the basis of newspaper report cannot be relied upon. It is admitted that a criminal case has been registered by the CBI against the second Respondent. The status of investigation was not known to the Government of India. So far as the appointment of the second Respondent was concerned, the Visitor of the Indian Maritime University u/s 46 of the IMU Act is entitled to appoint the first Chancellor or first Vice Chancellor notwithstanding anything contained in the Act or statutes. The first Vice Chancellor so appointed by the Visitor shall hold the office for a period of three years. Therefore, it was contended that the appointment of the second Respondent was not in contravention of the provisions of the IMU Act. It was also stated that the provisions contained u/s 12 will come into operation only on the appointment of the next Vice Chancellore. Since the first Vice Chancellor, i.e. the second Respondent was appointed u/s 46, the question of disqualification will not arise. Since the Government of India had not received any communication from the CBI or from any other authority by itself cannot bring any disqualification.
7. In the counter affidavit filed by the second Respondent, the very same contentions have been stated. It is also stated by him that recruitment rules for the post of Vice Chancellor was not in existence at the time of his appointment and they were framed subsequently and approved by the first Executive Council at its meeting held on 28.11.2010. The other allegations made by the Petitioner relating to admission of students in excess of sanctioned strength was also denied. It was stated that students were admitted through All India Common Entrance Test and purely on merit basis. The requirement of search panel to recommend three names for the first admission does not arise in the light of Section 46 and that the other qualification will arise only for the next appointment of Vice Chancellor.
8. It is in this context, the claim of the Petitioner will have to be considered. Section 46 of the IMU Act read as follows:
46. Notwithstanding anything contained in this Act and the Statutes,
a. the first Chancellor and the first Vice-Chancellor shall be appointed by the Visitor and each of the said officers shall hold office for a term of three years;
b. the first Registrar and the first Finance Officer shall be appointed by the Visitor on the recommendation of the Vice-Chancellor and each of the said officers shall hold office for a term of two years;
c. the first Court and the first Executive Council shall consist of not more than fifteen members, who shall be nominated by the Visitor and they shall hold office for a term of two years;
d. i. the first Planning Board shall consist of not more than fifteen members, who shall be nominated by the Visitor out of a panel submitted by the Vice-Chancellor and they shall hold office for a term of two years; and
ii. the first Planning Board shall, in addition to the powers and functions conferred on it by this Act, exercise the powers of the Academic Council, until the Academic Council is constituted under the provisions of this Act and the Statutes, and in the exercise of such powers, the Planning Board may co-opt such members as it may decide:
Provided that if any vacancy occurs in the above offices or authorities, the same shall be filled by appointment or nomination as the case may be, by the Visitor, and the person so appointed or nominated shall hold office for so long as the officer or member in whose place he is appointed or nominated would have held that office, if such vacancy had not occurred.
9. Therefore, the entire premises under which the writ petition was filed falls to the ground. There is no requirement of constituting a committee and sending the panel of three members. In view of the non obstante clause contained u/s 46, the Petitioner cannot press into service the recruitment rules which came into existence subsequent to the appointment of the second Respondent. The rules which are adopted by the University also made only after the appointment of the second Respondent.
10. The question whether the second Respondent forfeits his office in view of registration of FIR cannot be decided in this writ petition as this writ petition was filed for the issuance of writ in the nature of quo warranto and that the merits or demerits of the second Respondent cannot be gone into in this writ petition. In this context, it is necessary to refer to certain decisions of the Supreme Court which may have a bearing on the writ petition.
11. The Supreme Court vide its judgment in
The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law.#
12. The said judgment came to be quoted with approval subsequently by the Supreme Court in A.N. Shashtri v. State of Punjab reported in 1988 127 SCC 6.
13. In a decision in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat reported in (2003) 4 SCC 712, S.B. Sinha, J. in his concurring opinion dealt with the scope of issuance of writ in the nature of quo warranto. He also held that while issuance of writ, it has to be decided whether it is writ in the nature of certiorari or writ of quo warranto and that in case for the issuance of writ in the nature of quo warranto, the jurisdiction of the High Court is limited one. He had also held that in doing so, the court is not merely making public declaration, but will not consider the respective impact of the candidates or other factors which may be relevant for the issuance of writ. He had also stated that it will be issued only when the appointment is contrary to statutory rules. In this context, it is necessary to refer to paragraphs 22 and 23 of the said judgment which reads as follows:
22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, SCC para 74.)
23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana)
14. The same view was reiterated by the subsequent decision of the Supreme Court in N. Kannadasan v. Ajoy Khose reported in (2009) 7 SCC 1. In paragraphs 134 and 135, the Supreme Court had observed as follows:
134. Indisputably, a writ of quo warranto can be issued inter alia when the appointment is contrary to the statutory rules as has been held by this Court inHigh Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat and R.K. Jain v. Union of India. (See also Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana) In Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, this Court has stated that it is not for the court to embark upon an investigation of its own to ascertain the qualifications of the person concerned. (See also Arun Singh v. State of Bihar) We may furthermore notice that while examining if a person holds a public office under valid authority or not, the court is not concerned with technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. [See Kashinath G. Jalmi (Dr.) v. Speaker].
135. Issuance of a writ of quo warranto is a discretionary remedy. Authority of a person to hold a high public office can be questioned inter alia in the event an appointment is violative of any statutory provisions. There concededly exists a distinction in regard to issuance of a writ of quo warranto and issuance of a writ of certiorari. The scope and ambit of these two writs are different and distinct. Whereas a writ of quo warranto can be issued on a limited ground, the considerations for issuance of a writ of certiorari are wholly different.
15. If it is seen in this context, the Petitioner has not made out any case for the issuance of writ as prayed for by him. In the absence of any statutory disqualification, the writ in the nature of quo warranto cannot be issued. At the same time, whether the second Respondent is involved in serious misdemeanor is entirely an issue which the first Respondent has to consider. Since in their counter affidavit, it was stated that they have not received any report from the investigation agency, one only can be consoled that as and when such report is received, it is always open to them to take an appropriate action so that persons holding high office are not under any cloud or there are no grey areas in their continuance in the office. However, at present, the present writ petition must fail. But the disposal of the writ petition will not preclude the Petitioner from moving appropriate quarters with their other complaints.
16. Accordingly, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed.
