This unseating of vice chancellors is defective

‘Repugnancy can come up only in between the provisions of the University Functions and the UGC Act, and not the restrictions of the UGC’. Photo Credit rating: Getty Pictures/iStockphoto

Two current judgments of the Supreme Court of India on the appointment of vice chancellors (VC) in Condition universities in violation of the laws of the University Grants Fee (UGC) are considerable in the context of better education in a federal region this kind of as India.

In the initially circumstance, Gambhirdan K. Gadhvi vs The State Of Gujarat(March 3, 2022), from Sardar Patel College, Gujarat, the Court (Justices MR Shah and BV Nagarathna) quashed the appointment of the incumbent Vice Chancellor on the ground that the lookup committee did not variety a panel for the appointment of VC, and, as a result, was not in accordance with the UGC Rules of 2018. It was held that due to the fact the Point out regulation was repugnant to the UGC laws, the latter would prevail and the appointment underneath the Condition law had become void ab initio,

In the second situation, from Kerala, ie, Professor (Dr) Sreejith PS vs Dr. Rajasree MS (October 21, 2022), with the Bench of Justices MR Shah and MM Sundresh, the appointment of the Vice Chancellor of the APJ Abdul Kalam Technological College, Thiruvananthapuram, was challenged on the ground that the look for committee encouraged only just one title, which is versus the UGC Restrictions. The challenge succeeded and the Court docket quashed the appointment of the VC on the ground that the provision relating to the search committee in the College Act is repugnant to the UGC Rules, and was hence void.

But this decision of the Supreme Court activated unparalleled developments in Kerala with the Condition Governor, Arif Mohammad Khan, who is the Chancellor of all the universities in Kerala, asking as several as 11 VCs of other universities of the State to resign immediately on the floor that their appointments too had develop into void soon after the Supreme Court’s judgement. The circumstance is now just before the Kerala Substantial Courtroom. No VC has resigned as for every the course of the Governor. This growth has intensified an currently raging struggle between the Remaining Democratic Entrance govt and the Governor, which is very likely to develop into fiercer with the Kerala Significant Court quashing the appointment of the VC of the Kerala College of Fisheries and Ocean Scientific tests on November 14 on the ground that this appointment was in violation of the UGC Rules.

At the main of the issue

In both of those these scenarios, the situation framed by the Supreme Court is about whether the appointment of VCs should be manufactured as for every the UGC Laws or the provisions of the State University Act. In a federal system the framing of these kinds of a problem by a courtroom might glimpse weird, but underneath the Indian Constitution both the Union and the Point out can legislate on a make any difference below the Concurrent listing. As education and learning is a issue on the concurrent record, this dilemma requirements to be tackled seriously. A VC is appointed by the Chancellor below the suitable College Act, but the Supreme Court docket has introduced in Posting 254 of the Constitution to rule that if the provisions of the Condition legislation are repugnant to the provisions of the Union law, the State legislation will grow to be void. In the cases described earlier mentioned, the apex court docket discovered that the lookup committee encouraged only a person name for the appointment of VC which violates the UGC Rules which call for a few to five names, and, therefore, the provision of the State regulation is void. Thus, the Court’s summary is that if any provision in the Condition university law is repugnant to the UGC Regulations, the latter will prevail and the previous will grow to be void. So, on one aspect we have an Act passed by a legislature and on the other we have laws created by a subordinate system this sort of as the UGC.

A conclusion that is defective

The Court’s summary that the provisions of the State College Functions are repugnant to the UGC restrictions below Short article 254 is defective.

There are several reasons for declaring this. Initial, a watchful looking through of Short article 254 would present that the repugnancy less than this Post relates to a State law and a substantive regulation created by Parliament. It implicitly excludes principles, polices, and so forth. Regulations and restrictions are built by subordinate authorities — in this situation the UGC — whilst the substantive regulation is built by the exceptional authority, namely Parliament. Article 254(2) claims “…the regulation so designed by the Legislature of this kind of Condition shall, if it has been reserved for the thing to consider of the President….” Below the term ‘law’ denotes the Invoice passed by the legislature and reserved for the thing to consider of the President which does not contain guidelines, restrictions, and so forth. Identical terms such as “any provisions of a legislation manufactured by Parliament” are made use of in this Article in the context of Parliament. So, it can only necessarily mean the substantive legislation and not the subordinate legislation. Thus, it becomes distinct that the repugnancy can come up only between the provisions of the University Functions and the UGC Act, and not the polices of the UGC.

2nd, the policies and laws manufactured by the subordinate authority, however laid in Parliament, do not go by the exact same course of action as a law. Usually these do not have to have the approval of Parliament. The policies and laws have an inferior status as in comparison to an Act. The Structure are not able to be assumed to equate the Act with the rules.

3rd, the Constitution does not, in basic phrases, determine the term legislation. The inclusive definition of legislation offered in Short article 13(2) is applicable only to that Report. It has no application to other Content articles, which signifies the expression regulation does not contain the rules, rules, and many others. for the purpose of short article 254.

Fourth, the laws built by a subordinate authority of the Union overriding a legislation designed by a Point out legislature would quantity to a violation of federal ideas and a negation of the concurrent legislative ability granted to the Point out by the Structure. Eventually, the UGC Polices on the appointment of VCs are outside the scope of the major provisions of the UGC Act as none of its provisions refers to the appointment of VCs.

Restrictions are not unbiased legislations. They must be inside the scope of the dad or mum Act as or else they will be ultra vires the act. A perusal of Segment 26 of the UGC Act, which empowers the UGC to make rules, would show that the appointment of a VC is not a subject on which the UGC can make polices. So, the UGC’s authorized authority to make required rules on the appointment of VCs of Condition universities requires to be re-examined urgently.

An challenge that is certain to point out legal rights

The Supreme Court did not in the circumstances above review the idea of repugnancy in advance of keeping that the Condition University legal guidelines are repugnant to the UGC Restrictions, and for that reason the appointments are void ab initio, Write-up 254 wants to be analyzed in depth ahead of achieving these types of conclusions. These kinds of an examination would make it crystal clear that a Point out regulation can be repugnant only to the Central Act, and not the rules and policies made there beneath. Considering the fact that this issue is sure with the suitable of States to take care of college education and learning, extra major believed wants to be presented to it. Even when there is repugnancy the Court docket has a duty to reconcile the provisions. The Supreme Court held S. Satyapal Reddy vs Govt. Of AP (1994) that “the courtroom has to make each individual try to reconcile the provisions of the seemingly conflicting rules and the courtroom would endeavor to give harmonious construction… The right exam would be regardless of whether result can be supplied to the provisions of equally the legislation or whether both the guidelines can stand together”. When this is completed in most of the scenarios, there would be no require to strike down a Condition legislation on the ground of repugnancy.

PDT Achary is previous Secretary-Common, Lok Sabha

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