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2015 Supreme(Ker) 779
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN & A.M. SHAFFIQUE, JJ.
K.D. PRATHAPAN – Petitioner
Versus
STATE OF KERALA & OTHERS – Respondents
W.P. (C) No. 24180 of 2012
Decided On : 22.7.2015
For the Petitioner:Sri. K. Ramakumar, Sri. S.M. Prasanth and Smt. Smitha George, Advocates.
For the Respondent: Sri. Millu Dandapani, (SC) K.V. & A.S. UTY, Sri. O.V. Radhakrishnan, Smt. K. Radhamani Amma, Sri. Antony Mukkath and Smt. Girija Gopal, Special Government Pleader.
The 2010 Regulations were not applicable to the appointment of Vice-Chancellor, as the University was not established under the UGC Act and the 2010 Regulations were not incorporated into the 2010 Act.
Headnote:
The Kerala Veterinary and Animal Sciences University Act, 2010 (2010 Act) established the Kerala University of Veterinary and Animal Sciences (University). Section 12(5) of the 2010 Act authorized the Chancellor to appoint the first Vice-Chancellor on the recommendation of the Government. The University Grants Commission (UGC) issued the UGC Regulations (on Minimum Qualifications for Appointment of Teachers, Other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education), 2010 (2010 Regulations). Regulation 7.3.0 of the 2010 Regulations prescribed minimum qualifications for the appointment of Vice-Chancellor, including a minimum of ten years of experience as a Professor in a University system. The petitioner, an Assistant Professor in the Kerala Agriculture University, filed a writ petition challenging the appointment of the fourth respondent as Vice-Chancellor of the University, arguing that he did not meet the minimum eligibility criteria under the 2010 Regulations. The fourth respondent, who had a Bachelor's Degree in Veterinary Science and a Master's Degree in Political Science, was appointed as Vice-Chancellor based on the Government's recommendation. The State Government adopted the UGC norms, but argued that the 2010 Regulations were not applicable to the appointment of Vice-Chancellor. The High Court dismissed the writ petition, holding that the plea of constructive res judicata barred the petitioner from raising the issue of the fourth respondent's eligibility, that the subsequent writ petition filed by the petitioner was dismissed as withdrawn without obtaining leave to file a fresh writ petition, and that the 2010 Regulations were not applicable to the appointment of Vice-Chancellor. The petitioner appealed to the Supreme Court.
Fact of the Case:
The petitioner, an Assistant Professor in the Kerala Agriculture University, filed a writ petition challenging the appointment of the fourth respondent as Vice-Chancellor of the University, arguing that he did not meet the minimum eligibility criteria under the 2010 Regulations. The fourth respondent, who had a Bachelor's Degree in Veterinary Science and a Master's Degree in Political Science, was appointed as Vice-Chancellor based on the Government's recommendation. The State Government adopted the UGC norms, but argued that the 2010 Regulations were not applicable to the appointment of Vice-Chancellor.
Finding of the Court:
The Supreme Court held that the plea of constructive res judicata did not bar the petitioner from raising the issue of the fourth respondent's eligibility, as the issue was not directly and substantially in issue in the previous writ petition. The Court also held that the subsequent writ petition was not barred, as the petitioner had obtained leave to file a fresh writ petition. However, the Court held that the 2010 Regulations were not applicable to the appointment of Vice-Chancellor, as the University was not established under the UGC Act and the 2010 Regulations were not incorporated into the 2010 Act.
Issues: (i) Whether the plea raised by the petitioner in this Writ Petition questioning the eligibility of respondent No. 4 to be appointed as Vice Chancellor shall be barred by the principle of constructive res judicata in view of judgment of the Division Bench in W.A. No. 347 of 2012 dated 30.07.2012 where the present petitioner was the sixth respondent? (ii) Whether the subsequent Writ Petition, W.P. (C) No. 18453 of 2012 filed by the petitioner questioning the competence of the fourth respondent to be appointed as Vice Chancellor having been dismissed as withdrawn by judgment dated 17.8.2012, without obtaining leave to file fresh Writ Petition, this Writ Petition cannot be entertained? (iii) Whether for appointment of the fourth respondent it was obligatory for the State to follow paragraph 7.3.0 of the 2010 Regulations framed by the University Grants Commission and the fourth respondent, who does not fulfill the above qualification mentioned therein could not have been appointed as Vice Chancellor of the University? (iv) Whether the appointment of the fourth respondent as Vice Chancellor of the University has been validly made in accordance with Section 12(5) of the 2010 Act? (v) Whether the appointment of the fourth respondent deserves to be set aside in this Writ Petition even if paragraph 7.3.0 is not applicable for the appointment of Vice Chancellor on the ground that the fourth respondent was not competent or worthy for the post of Vice Chancellor of the University?
Ratio Decidendi: (i) The plea of constructive res judicata did not bar the petitioner from raising the issue of the fourth respondent's eligibility, as the issue was not directly and substantially in issue in the previous writ petition. (ii) The subsequent writ petition was not barred, as the petitioner had obtained leave to file a fresh writ petition. (iii) The 2010 Regulations were not applicable to the appointment of Vice-Chancellor, as the University was not established under the UGC Act and the 2010 Regulations were not incorporated into the 2010 Act.
Final Decision: The Supreme Court dismissed the appeal, upholding the High Court's decision to dismiss the writ petition.
ASHOK BHUSHAN, J.
1. This Writ Petition, having treated as public interest litigation, has been filed by the petitioner praying for issue of writ of quo warranto against the fourth respondent, who is holding the office of Vice Chancellor of the Kerala University of Veterinary and Animal Sciences, Pookkode, Wayanad. Brief facts of the case, which emerge from the pleadings of the parties are:
2. The Kerala Veterinary and Animal Sciences University (hereinafter referred to as the University) has been established by a State legislation, namely, the Kerala Veterinary and Animal Sciences University Act, 2010 (hereinafter referred to as the 2010 Act). Section 12 of the 2010 Act relates to the Vice Chancellor. Under Section 12(5), the first Vice Chancellor is to be appointed by the Chancellor on the recommendation of the Government. The State Government recommended to the Chancellor the name of fourth respondent out of a panel of three names for appointment of the first Vice Chancellor. The fourth respondent, who was working with the Central Government, was appointed as Vice Chancellor by order of the Chancellor dated 29.12.2010 with effect from 29.12.2010. The petitioner, who is working as Assistant Professor in the Kerala Agriculture University, Thrissur, filed W.P. (C) No. 37836 of 2010 questioning the appointment of the petitioner as Vice Chancellor of the University. The State Government, in the meantime, passed an order on 21.10.2011 recalling the fourth respondent from the post of Vice Chancellor of the University. In view of the recalling of the appointment of the fourth respondent as Vice Chancellor, W.P. (C) No. 37830 of 2010 filed by the petitioner questioning the appointment of the fourth respondent was closed observing that in view of removal of the fourth respondent from the office of Vice Chancellor, the subject matter of the Writ Petition no longer survives for consideration on merits.
3. Against the notification dated 21.10.2011 recalling the fourth respondent from the post of Vice Chancellor, W.P. (C) No. 28284 of 2011 was filed by the fourth respondent. The said Writ Petition was dismissed by the learned Single Judge by judgment dated 08.12.2011. The Review Petition was also dismissed on 01.12.2012. W.A. No. 347 of 2012 filed by the fourth respondent was allowed by the Division Bench setting aside the order of the State Government dated 21.10.2011 recalling the fourth respondent from the post of Vice Chancellor. The Division Bench also directed the State Government to immediately restore the fourth respondent on the post of Vice Chancellor. In pursuance of the Division Bench judgment dated 30.7.2012, the State Government issued notification dated 13.08.2012 restoring the fourth respondent on the post of Vice Chancellor of the University. The petitioner again filed W.P. (C) No. 18453 of 2010. After the Government issued order dated 07.08.2012 in compliance of the judgment in the Writ Appeal, the petitioner moved an application in W.P. (C) No. 18453 of 2012 to permit him to withdraw the Writ Petition with liberty to file a fresh one. The prayer seeking liberty was opposed by the University. The learned Single Judge, however, refrained himself from going into the respective pleas and observed that it shall be open for the petitioner to seek remedy against the order dated 07.08.2012. W.P. (C) No. 18453 of 2012 was thus dismissed as withdrawn. After withdrawal of the aforesaid Writ Petition, the petitioner filed the present Writ Petition praying for the following reliefs:
(i) To issue a Writ of Quo-warranto calling upon the 4th respondent to show before this Hon'ble Court under what authority of law he is holding the post of Vice Chancellor of the Kerala University of Veterinary and Animal Sciences.
(ii) To call for the records leading upto Exhibit P8 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction.
(iii) To issue a writ of mandamus forbearing the 4th re
