Kerala Governor move to have VCs ousted not backed by law: Experts

Education is on the concurrent list. State universities have been constituted under relevant  statutes of the state enacted by their respective legislative Assemblies. Each university functions under the Act by which the institution has been constituted. The process of constituting search committees and the process of selecting the panel members for the appointment of the Vice-Chancellor (VC) is incorporated in the Act of each university.

The Chancellor has to comply with the procedures established by the statute of each university for the VC’s appointment and the individuals to other positions prescribed by the Act. The Governor’s decision demanding the resignation of the VCs of nine universities in Kerala does not have the backing of law, said experts.

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The Acts governing each university clearly do not carry any provisions empowering the Chancellor/Governor to seek the resignation of VCs. K Sasidharan Nair, the vice-chairman of Kerala Law Reforms Commission told The Federal, “No law authorises the Chancellor to do this. Resignation is a voluntary action and the VC can resign if he wants. Otherwise, there are specific grounds on which a VC can be removed from the position – it has to be either due to misconduct or misappropriation of funds.”

Dr P D T Achary, the former Lok Sabha secretary general dubbed the Governor’s move calling for resignation of the VCs as ‘absurd’. “There are provisions expressed in the law on how to remove a VC. The Chancellor has to initiate the proceedings of inquiry if there is an allegation of misconduct or misappropriation of funds and the final decision is subjected to a judicial review,” he told The Federal.

Also read: Kerala HC allows VCs to stay; ball then rolls back into Governor’s court

‘Subordinate legislation cannot override a State Act’

However, the Supreme Court’s recent decision declaring the appointment of the VC of APJ Abdul Kalam University as ‘ab-initio void’, has far-reaching consequences on the autonomy of all state universities in India. While setting aside the appointment of Rajasree M S, the VC of APJ Abdul Kalam University, a bench comprising Justices M R Shah and C T Revikumar held that the UGC regulations have a binding force on a state university, with respect to the relevant questions raised.

The judgment was given on an appeal filed against the Kerala high court’s ruling that refused to quash the appointment of the VC of APJ Abdul Kalam University, on the grounds that the UGC regulation will not be binding on the state university unless it is specifically adopted.

The UGC regulations stipulate that the search committee should submit a panel of not less than three persons (3 to 5) for the VC’s appointment and the Chancellor has to pick one from the list. The state university statutes stipulate a different procedure, in which, the search committee can submit a single person’s name if they arrive at a unanimous decision for the VC’s post. The minimum stipulation of submitting three names is not required.

For example, sections 10 (5) and 10 (6)  of Mahatma Gandhi University Act (1985) stated:  ‘In case the Committee unanimously recommends the name of only one person, the Chancellor shall appoint that person to be the Vice-Chancellor. In case the Committee is unable to recommend a name unanimously, the Vice-Chancellor shall be appointed by the Chancellor from among a panel of three names submitted to him by the committee within the period’.

The SC’s recent judgment stipulates that the universities are bound by the UGC regulations and they can override the University statutes. This is, in effect making the executive decision superior to an Act passed by the legislature, which is detrimental to the federal structure of the country, according to experts.

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“When there is a conflict with regard to the subjects in the concurrent list, the central law will prevail over the state legislation, but the question is how can a subordinate legislation such as the UGC regulations be given overriding power upon an Act passed by a state Assembly? The rules and regulations prepared by the executive to hold more power than a law made by the state legislature are detrimental to the spirit of federalism and the doctrine of the separation of powers,” N K Jayakumar, a constitution expert and the former secretary of Kerala legislative Assembly told The Federal.

Dr P D T Achary, too felt that, on the face of it,  there was an error in the SC judgment holding the APJ Abdul Kalam University’s VC appointment as ab-initio void. According to him, the subordinate legislation does not have the status of the parent Act. “When there is a repugnancy (between state law and central law in subjects under concurrent list), a subordinate legislation cannot override the state legislation. Though subordinate legislation is tabled in the Parliament, there is no procedure to approve it. It can only be modified, it does not go through the same procedure of an Act, and hence it cannot have the same status of a (parent) Act,” he told The Federal.

By holding that UGC regulations have overriding powers on the state University Acts, the SC missed this constitutional aspect, added Dr Achary.

‘UGC regulations are ultra-vires to the UGC Act’

The UGC regulations held by the SC as having a binding force on the state University Acts are even ultra-vires to its own parent Act, pointed out Dr Achary.

“The UGC Act (of 1956) does not say anything about the VC appointment. How can UGC make a regulation on a matter that has not been expressly incorporated in the parent Act?” asked Dr Achary. “Nowhere in the UGC Act, neither in the rule-making and regulation making powers, the appointment of the VC is referred to,” argued Dr P D T Achary.

The provisions for the appointment and removal of VCs are expressly incorporated in the respective state statues of the concerned universities. Hence, it is not the UGC regulation, but the state Act that has to be followed in the case of the appointment and removal of VCs, stressed the experts.

Also Watch: Political storm in Kerala over Governor seeking VCs’ resignation

‘Far-reaching consequences on not just VC appointments’

The SC’s decision that the UGC regulations are binding on the universities irrespective of their statutes has far-reaching implications. It does not just stop with the appointment of VCs in universities.

“There are differences in many other areas considering the UGC regulations and state statutes. The minimum age for the appointment of assistant/associate professors, the retirement age, etc., are not the same for many universities as stipulated by the UGC in their regulations,” said Prof Ilias, dean, member of the syndicate and the faculty of social sciences, Mahatma Gandhi University. According to him, even the power of the Public Service Commission, as the authority for selecting individuals to positions such as assistant professors in government colleges can be challenged.

Now the question is whether all other conflicting questions can be challenged in the court of law if the UGC regulations override the university statutes with retrospective effect? This will give rise to a plethora of litigation regarding the appointments of assistant professors, associate professors and professors, which will be detrimental to the delivery of Justice, according to experts. This will also jeopardise the autonomy of the state universities, not only in Kerala but in all the other states.

Worsening situation

Some universities are not required to submit the names of three to five persons for the appointment of VCs since their respective Acts do not stipulate it, as we have seen in the case of Mahatma Gandhi University. However, many other universities under question have to submit more than one name according to the parent Act.

For example, the Kerala University Act of 1969 requires a panel of three names to be recommended for the appointment of VC. Kerala University is one among the nine listed by the Chancellor for violating this provision. Undeniably, the universities did not strictly comply with the provisions in the Act and submitted single names for the appointment of the VC, which has been a custom for decades.

“The University Acts should have been amended from time to time to incorporate the UGC regulations if required. If they had acted in full compliance with the law, this situation could have been avoided,” Professor K M Seethi, the director of the School of International Relations in Mahatma Gandhi University told The Federal.

Besides, the government of Kerala, through an order dated December 10, 2010, adopted the UGC regulations. Instead of challenging the regulations that are contradictory to the state statutes, the government conceded and accepted it without raising a single question.

“These flaws from the government’s side should have been avoided. The Members of the Parliament have the duty to closely follow such regulations, introduced from time to time and to challenge them if they go against the interest of the state,” said advocate Harish Vasudevan, a Kerala high court lawyer.

It is almost certain that the universities in Kerala are moving towards an administrative crisis. Even if the governor takes the decision to remove the VCs of the nine universities, who have been asked to give an explanation by November 3, the Chancellor/Governor cannot make a replacement at his will. First of all, such an action will certainly be challenged before a court of law. Secondly, the search committees have to be reconstituted and they have to submit the panels, including 3 to 5 members to be selected as the VC for each university.

“This is not an easy process. Each University Act has to be amended accordingly to incorporate the relevant UGC Regulations. This is indeed a time-consuming process,” said Prof MH Ilias. There is no immediate solution to this contentious issue that has cropped up due to the ongoing unseemly row between the governor and the Kerala government, it seems.