Calcutta HC Sets Aside Reappointment Of Vice-Chancellors

In the case of Anupam Bera v State of West Bengal, Division Bench of Calcutta High Court has set aside the West Bengal Education Department’s decision to appoint or re-appoint Vice-Chancellors from 24 state universities based on the amendments made in the West Bengal Universities Act in 2012 and 2014. The High Court held that the appointments made were “unsustainable and without the authority of law. Let us understand the laws pertaining to appointment of Vice-Chancellors by the Governor, whether Governor’s power of appointing Vice-Chancellors are discretionary power and also important recommendations of Sarkaria and Punchhi Commission’s Report.

PIL Filed by College Teachers

• Public Interest Litigation (PIL) was filed by a forum of college teachers alleging that appointments were made in violation of University Grants Commission Regulations 2018 and the appointment were not approved by the then Governor of West Bengal who is also the Chancellor of State Universities according to the State University legislations.
• The controversy regarding appointment of Vice-Chancellors are not new and have also been witnessed in the state of Kerala and Tamil Nadu.    
• It was because of the constrained relation between Governor and Chief Minister in West- Bengal, the government earlier decided to make its Chief Minister the chancellor of its state-run universities by amending the State Universities Act.

Decision of the Calcutta High Court

• Appointment Made Without Governor’s Approval – The Court further held that the appointments were made without the approval of the Governor who is the ex-officio Chancellor of the State-aided universities as per the State Universities Act of West Bengal. The appointments were done during the regime of former West Bengal Governor Jagdeep Dhankhar who had not given his approval to the order of the state higher education department for appointment of Vice-Chancellors. 
• Power Cannot be Usurped by State – Once the power to reappoint or extend the tenure is vested with the Chancellor (who is the Governor), it cannot be usurped by the State. And if the state government extends the tenure of VCs, it has to show the laws under which it is doing so.
• The provisions of UGC Regulations, 2018 will prevail over the conflicting provisions of the concerned State Universities Act, relating to appointment of Vice-Chancellor. Some of the Vice-Chancellors did not fulfill the minimum eligibility criteria of 10 years’ experience as professor in the university or 10 years’ experience in a reputed research and/or academic administrative organisation, as prescribed in the UGC regulation.
• Search Committee not formed as per UGC Regulations 2018 – Search Committee formed by the state government for selection of Vice Chancellors of State/Private Universities did not have one member nominated by the Chairman of University Grants Commission. This violated the UGC Regulations of 2018.
• Directions to State – Amendments made in the West Bengal Universities Act in 2012 and 2014 to the extent they are repugnant to the UGC Regulations, 2018 relating to appointment of Vice-Chancellor cannot be sustained and the State is directed to consider making suitable amendments in the concerned Acts to bring them in conformity with the UGC Regulations, 2018 preferably within a period of six months.   

State Universities Act

• Constitution of India is silent on the role of Governor as Chancellors of State Universities.
• State Universities Act passed by respective state governments generally appoints Governor as the Chancellor of state universities by virtue of Governor’s office.
• For example, Uttar Pradesh State Universities Act, 1973 or West Bengal State Universities Act, 2007 appoints Governor as the Chancellors of all state universities.
• Thus, Chancellors hold statutory powers.

The Chancellor, by virtue of his office is a Head of the University and vested with the following powers:

• Appoints the Vice-Chancellors.
• Presides over the Convocation of the State Universities.
• Appoints nominees on various bodies like Senate, Syndicate, Board of Management, Selection Committee or Academic Council of the State Universities. 
• Grant leave or institute disciplinary action and award penalties.
• Power to hear representation of the employees and students.
• Power to take final decisions on election disputes with regard to the representation in different bodies of the universities and managing committees of its colleges.
• Power to nominate experts in the appointment of teachers of various categories in the  university.
• Convenes review meetings of Vice-Chancellors and concerned ministries.

Reasons to Replace Governor as Chancellor of all State Universities

• Governor while acting as Chancellor of State Universities takes decision without the aid and advise of Council of Minister. This discretionary based decision has become one of the major reasons of dispute.
• Continuous disputes on the appointment of Vice-Chancellors of state universities.
• Such disputes have resulted in strained relations between the appointed Governor and elected Chief Minister.
• The dispute has politicized the appointment of vice-chancellors across state universities.

Concern Expressed by Sarkaria Commission’s Report

• State University Acts generally provide that the Governor by virtue of his office, shall be the Chancellor or head of the University concerned and endowed with various powers such as appointment of vice-Chancellor.
• The question is whether the Governor’s functions as Chancellor of a University fall within the purview of Article 163(1).
• This would imply that a Governor is bound to act on the aid and advice of his Council of Ministers in the discharge of his functions as Chancellor except in so far as he is required by the statute to exercise any of the functions in his discretion.
• There have been instances where, in selecting Vice-Chancellors, Governors as Chancellors have acted in their discretion, over-ruling the advice of the Council of Ministers.
• First Instance –The question first arose when the Governor of Bombay had to nominate members of the Senate of the University of Poona in consultation with the Vice-Chancellor. The Attorney-General for India reportedly held that, as Chancellor, the Governor was not bound to act on the aid and advice of his Ministers. The position was later accepted by Pandit G.B. Pant as Chief Minister of Uttar Pradesh when a question arose about the role of the Governor as Chancellor of Universities in that States.
• Different Views of State Governments –According to one, Chancellor of a University (the Governor) is not bound to accept the advice of his Ministry. Yet another State Government has sought to make a distinction between the statutory functions of the Governor as Chancellor which can be challenged in a court of law, while the action taken by him in his capacity as Governor, which cannot be so challenged.
• First ARC’s View –In its report on “State Administration” First ARC recommended that the functions assigned to a Governor by statute (e.g. those of Chancellor of the University) should be exercised by him in his discretion. The Governor may consult the Chief Minister if he so wishes, but he should not be bound by the latter’s advice. The Commission surmised that the idea underlying the assignment of certain functions to the Governors by statute was to insulate them from political influence.

Reasons for Sarkaria Commission’s Recommendations:

The Commission bifurcated Governor’s Role, Powers & Duties into two categories:

1. Powers & Functions conferred on the Governor in his capacity as Governor constitute one such category. Such functions pertain to the office of the Governor, as provided for in Article 154(1) and are to be exercised by him on ministerial advice in accordance with Article 163(1). Further, by virtue of Article 361(1), the Governor enjoys personal immunity from answerability to any court for the exercise by him of such functions.
2. The other category of functions are those which a statute may confer on the Governor, not in his capacity as Governor but in a different capacity such as, for instance, the Chancellor of a University. Here, the Governor functions in pursuance of a statute in relation to the affairs of the University—not as Governor but as Chancellor, (irrespective of the fact that he holds the office in the University in an ex-officio capacity). Even though the governor is the chancellor by virtue of his office and would cease to be the Chancellor on ceasing to be Governor, it does not necessarily follow that the functions assigned to him as Chancellor of the University are to be performed by him in his capacity as the Governor. It has been held that the immunity given to the Governor, under Article 361(1) does not extend to the exercise of powers and duties falling under this category.

• The statutory functions of the Chancellor do not fall within the purview of Article 154(1) and cannot be regarded as ‘business of the Government of the State’ under Article 166(3), the reason being that the office of Chancellor is distinct from that of the Governor.
• The office of Chancellor, even though held by the Governor under a statute in an ex-officio capacity cannot be equated with the state. The former, being an officer of the University, is not obliged to seek the advice of the State Government in the matter of exercise of his functions such as the appointment of Vice-Chancellor under Article 163(1).The same view has been taken by the Andhra Pradesh High Court in M. Kiran Babu Vs. Government of Andhra Pradesh.
• Governor as Chancellor must act based on the state law –The Governor, in his capacity as Chancellor of a University, may possibly be required by the University’s statute (e.g. the Calcutta and the Burdwan University Acts) to consult a Minister mentioned in such statute on specified matters. In such cases, the Governor may be well advised to consult the Minister on other important matters also. In either case, there is no legal obligation for him to necessarily act on any advice received by him.

Punchhi Commission’s View

• The Governor should not be burdened with positions and powers which are not envisaged by the Constitution and which may expose the office to controversies or public criticism.
• This will allow the Governor to discharge the Constitutional obligations fairly and impartially.
• Conferring statutory powers on the Governor by State Legislatures have that potential and should be avoided.
• Making the Governor the Chancellor of the Universities and thereby conferring powers on him which may have had some relevance historically, has ceased with change of times and circumstances.
• The Council of Ministers will naturally be interested in regulating University education and there is no need to perpetuate a situation where there would be a clash of functions and powers.
• The Commission recommended that the Governor should not be assigned functions casually under any Statute and his role should be confined to the Constitutional provisions only.