MADURAI BENCH OF MADRAS HIGH COURT

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THE PRONOUNCEMENT OF HONORABLE JUSTICE RAMASUBRAMANIAN IN THE VC’S CASE AND THE WAKE UP CALL: I

        Though belated the Divisional Bench Order pronounced by Honourable Mr.Justice V. Ramasubramanian in Madurai Kamaraj University Vice-Chancellor’s case is a great relief and reassurance for those who fight in the name of academic freedom, accountability and excellence. The judgement has set aside the appointment of Dr. Kalyani Mathivanan as Vice-Chancellor for want of minimum eligibility as prescribed by UGC Regulation 2010. The 59 page judgement is a very straight forward and interesting piece of reading. No one interested in upholding the integrity of higher education, can afford to miss.

            Apart from the legal implications involved in the interpretations of laws, rules and regulations, the judgement also holds the mirror to the hollowness and total lack of commitment of the executive (the Governor, the Selection Committee, the Education Minister and of course the Chief Minister) in upholding the integrity of the state universities.

The salient points of the Judgement are as follows:

1.         The general but overarching principle in the first place the judgement establishes is that the UGC Regulation 2000 is mandatory and not recommendatory as the respondents (MKU and the VC) tried to establish. This means that when it comes to the appointment of Vice-Chancellor (for that matter Professors, Principals, Associate Professors) one ought to follow the regulations, especially in specifying educational qualifications and applying minimum eligibility conditions.

            [The court ruled that Dr. Kalyani Mathivanan did not meet the minimum eligibility conditions as per UGC Regulation 2010 as she did not possess the minimum 10 years experience as Professor.  Her claim that her position as ‘Associate Professor and Head of the Department’ in an affiliated College (Ethiraj College, Chennai), the court said cannot be equated with ‘Professorship’ in the system as provided by UGC Regulation 2010. Therefore her appointment was set aside]

2.   In arriving at the above conclusion the Hon’ble Judge resolved several issues that have been obfuscating educational administration for quite some time. First, is the issue of the conflict between the University Acts or acts passed by the State Governments and Regulations promulgated by the UGC Act.  Here, in this case, Madurai Kamaraj University Act 1965 was brought into question to defend the appointment of the VC saying that the said act did not specifically prescribe any educational qualification or minimum eligibility condition for the appointment of the VC. Therefore the selection committee had the freedom to choose anyone as VC as its wisdom permitted.

            (i) In fact the Madurai Kamaraj University Act 1965 spoke in detail about the office of the Vice Chancellor, procedure for appointment of the Vice Chancellor, powers vested with the Vice Chancellor, salary and emoluments for the Vice Chancellor etc. However, neither the act nor the statute passed by MKU from time to time, did not at any point speak about the ‘minimum eligibility in terms of qualification’ for the appointment of the Vice Chancellor. The court said that in this regard ‘there is a vast territory left unoccupied’ by the 1965 Act. This vacuum cannot be an excuse for the VC Selection Committee to exercise its powers arbitrarily. And such exercise of power the court held would defeat the very purpose of upholding merit and integrity of the higher educational system as has happened in the appointment of Dr. Kalyani Mathivanan. In the event of a vacuum, the only option available is to follow the UGC Regulations 2010, and it is mandatory.

     [The committee, although it discovered that Dr. Mathivanan did have experience only as Associate Professor, instead of disqualifying her at the face of it from the selection, ironically took a conscious decision “to overrule the requirement of paragraph 7.3.0 of the Annexure to the UGC Regulations (2010) and fall back on the State enactment”.  This was found untenable by the Division Bench which came down heavily saying that there cannot be test of excellence arbitrarily exercised].

      (ii)The present case according to the ruling is not a case of             repugnancy between the state act and the central act. This means that the State act (Madurai Kamaraj University Act 1965) and the UGC Regulation 2010 (backed by the central act namely UGC Act 1956) do not find any ground to come into conflict in the first place as it comes to minimum eligibility conditions for the appointment of the VC, as the MKU Act has fallen silent on the issue. To quote the Hon’ble Judge “Repugnancy in terms of Article 254 of the Constitution would arise only when there is inconsistency between the laws made by the Parliament and the laws made by the Legislatures of the States.  If it seeks to fill up a vacuum or when it covers an unoccupied field, the question of repugnancy does not arise”. Here the vacuum created by MKU Act/rules can only be filled up by UGC Regulation 2010 (central legislation). On this count also it becomes mandatory.

           (v)  The Hon’ble judge also took the stand that even if there is a real conflict as to the prescription of qualifications between the State and the Centre, “the court is bound to uphold a prescription which sets higher standards and which seeks to promote excellence in higher education”.  The bench in saying this has relied on the position already established by the Supreme Court of India.

      [The action of the Governor (Chancellor) in appointing Dr.Mathivanan has in fact lowered the eligibility condition which is untenable].

3.   The Bench also placed another reason why there could not be arbitrary exercise of power as to the selection of VCs. The Bench has held that over a period of more than 70 years in India, enactment of laws have come to regulate academic standards, eligibility and merit through objective criteria and not through subjective judgement of eminence as it did happen in the past. Then of course ‘tall men’ were appointed. No more it is possible. It needs to be noted here that Academic Performance Indicator (API) score and Performance Based Assessment System (PBAS) gains tremendous legal significance.

      This is where the Honourable Judge observed, “If University Grants Commission Regulation, 2010 will have to be given effect to … the Vice Chancellor should actually be a distinguished academician.  Today, Albert Einsterin cannot be appointed as Vice Chancellor of any university (at least in India) unless he fulfills the qualifications prescribed by University Grants Commission, the reason being that after legislative enactment lays down the objective criteria, there is no place for subjective satisfaction”.

4.   On the issue of invoking the Division Bench Judgement of Bombay High Court by the defendant is concerned, the Hon’ble Judge ruled that there was no substantial issue of conflict between Maharashtra University Act 1994 and the prescription of UGC Regulations 2010 as to the educational qualifications or minimum eligibility conditions for appointment.  The matter was related to procedure for short-listing of candidates.  The Hon’ble Judge ruled “…. And the method of short-listing of candidates are all procedural in nature and it may not really matter whether the state enactment prevails over the Central enactment or vice versa, the same logic may not hold good in so far as the educational qualifications and eligibility criteria are concerned.  The University Grants Commission is actually an expert body to determine the qualifications for the appointment not only of teaching staff but also all other officers and authorities”. He turned down the Bombay High Court order as not being relevant to the present case.

6.   The merit of the judgement also lies in the Hon’ble judge’s ruling that the ‘Vice-Chancellor is the academic head’ of the University.  Madurai Kamaraj Unviersity and the Vice Chancellor took the defense that the Vice Chancellor being an Administrative Head that he/she cannot be considered as a member of teaching staff and therefore the rigors of ‘academic qualification’ need not apply.  But, the Hon’ble Judge after making an elaborate analysis of Madurai Kamaraj University Act 1965 came to the categorical conclusion that though it is not explicitly stated there in the act, proper understanding of Section 4 of Madurai Kamaraj University Act would hold the Vice-Chancellor to be an academic head.  “It is in the light of the objects and powers of the University prescribed under Section 4 that the presumption in Section 12 (1) that the Vice Chancellor shall be the Academic Head of the University, has to be understood”.  In this regard also the Bench turned down the ruling of the Bombay High Court in Suresh Patilkhade case where it was held that the VC was an ‘academic head’ but does not belong to the stream of ‘academic staff.’

      The court has refused to recognize the hair splitting difference between ‘being academic head’ and ‘being part of academic staff’.  Both mean the same.  This underlines the inevitability of the Vice Chancellor meeting the minimum eligibility conditions and educational qualifications as demanded by UGC Regulations 2010, which is mandatory.  

7.  The Hon’ble Judge also exposed the dubiousness of claims by Madurai Kamaraj University as well the Vice Chancellor. The excuse that Madurai Kamaraj University Act did not prescribe any qualification for the Vice Chancellor gave the committee the freedom to lower the qualification and chose Dr. Kalyani Mathivanan. The Hon’ble judge raised the question, while Madurai Kamaraj University refused to follow UGC Regulation 2010 in matters of educational qualifications and minimum eligibility conditions, it allowed the salary and allowances to the Vice Chancellor as per UGC Regulations 2010. It implies that  as they followed Madurai Kamaraj Unviersity Act in the appointment, they should have allowed only Rs. 3000/- as monthly salary, Rs. 1000/- as monthly allowance and Rs. 250/- as car allowance and of course free accommodations as provided in the MKU Act..  Eligibility and service conditions cannot be separated and one cannot pick and choose as one’s convenience permits.

       The judgement has far reaching consequences and many heads are bound to roll. Let us wait and watch!

CHINNARAJ JOSEPH                                  01-07-2014