This Unseating of Vice Chancellors Is Faulty

Why in News?

• The article highlights that the top court’s conclusion that the provisions of the State University Act are repugnant to the regulations of the University Grants Commission under Article 254 is faulty propounding various grounds.
• The article discusses recent Supreme Court of India's decisions in which the court considered state law for the appointment of vice chancellors to be in conflict with central law (UGC regulation)
• These judgements are significant in the context of higher education in a federal country such as India.

 

Process of the Appointment of a Vice Chancellor under the UGC Regulations, 2018: 

• The VC of a university is appointed by the Visitor/Chancellor, from a panel of three to five names recommended by the duly constituted Search cum Selection Committee.
• The President of India is the ex-officio Visitor of all the Central Universities and the Governor of the respective states is the Chancellor of all the state universities.
• A visitor is empowered to call for a set of fresh names in case of dissatisfaction with the given panel.
• This system of appointment is not always uniform across all universities, and the procedures followed by different states differ, as the regulation is a directive and education is a subject matter of concurrent list (List III).

 

Background

• Faulty appointment process: A writ petition was filed before the Kerala High Court (October 21^st, 2022) to declare the appointment of Vice Chancellor of the APJ Abdul Kalam Technological University, Thiruvananthapuram as void on the following grounds:
  • The appointment of the Vice Chancellor was against the UGC Regulations.
  • For example, the Search Committee was required to recommend a panel of not less than three suitable persons to the Chancellor, however, in the present case, only one name was recommended
• Respondent defense: Unless the UGC Regulations are adopted by the State Government, the University Act enacted by the State shall prevail.
  • The UGC Regulations, 2018 are directory for higher educational institutions under the provisions of the State legislature as the matter has been left to the State Government to adopt and implement the scheme.
• The Kerala HC: It dismissed the writ petition relying upon its 2015 judgement by observing that unless the UGC Regulations are specifically adopted by the State Government, the State legislation shall prevail.
• Review petition in Supreme Court: The challenge succeeded and the Court quashed the appointment of the VC on the ground that the provision relating to the search committee in the State University Act is in conflict with the UGC Regulations and was therefore void.

 

SC observation in other case (Gambhirdan K. Gadhvi vs The State of Gujarat, March 2022)

• The apex court quashed the appointment of the incumbent Vice Chancellor of Sardar Patel University, Gujarat on the ground that the search committee did not form a panel for the appointment of VC, therefore, was not in accordance with the UGC Regulations of 2018.
• The appointment of Vice Chancellor must be as per the UGC Regulations, even if they have not been specifically adopted by the State.
• In case of any conflict between the State legislation and the Central legislation, the Central legislation shall prevail by applying the principle of repugnancy under Article 254 of the Constitution as the subject "education" is contained in the Concurrent List of Schedule VII of the Constitution.

 

About Doctrine of repugnancy under Article 254

• If any part of State law contradicts any part of a Central law or any part of a law of the subject matter of List III, the Central law shall prevail and the law made by the State legislature shall become void.

 

Subsequent developments:

Tussle between Governor and the state government: The Governor of Kerala, who is the Chancellor of all the universities in Kerala, asked as many as 11 VCs of other universities of the State to resign immediately, as their appointments too had become void after the SC’s judgment.

A conclusion that is faulty

• The Supreme Court’s conclusion is faulty on the following grounds:
• Article 254 exclude laws of subordinate authorities: A careful reading of Article 254 reveals that the repugnancy under this article relates to a State law and a substantive law made by Parliament.
  • It excludes rules, regulations, etc. made by subordinate authorities for example, in this case the repugnancy can arise only between the provisions of the University Acts and the UGC Act, and not the regulations of the UGC.
  • This is because, rules and regulations made by the subordinate authority, though laid in Parliament, do not require the approval of Parliament and have a secondary status as compared to an Act.
  • Hence the Constitution cannot be assumed to equate the Act with the rules.
• Definition of law under Article 13 and 254 varies: The inclusive definition of law given in Article 13(2) is applicable only to that Article. It has no application to other Articles, which means the term law does not include the rules, regulations, etc. for the purpose of Article 254.
• Violates federal principles: The regulations made by a subordinate authority of the Union overriding a law made by a State legislature will amount to a violation of federal principles and a negation of the concurrent legislative power granted to the State by the Constitution.
• Outside UGC’s jurisdiction: The Section 26 of the UGC Act states that the appointment of a VC is not a matter on which the UGC can make regulations.

Way ahead:

• Article 254 needs to be analysed in depth by the courts before reaching to any conclusion.
• The Supreme Court held (in S. Satyapal Reddy vs Govt. Of A.P. (1994)) that the court has to make every attempt to reconcile the provisions of the apparently conflicting laws and the court would endeavour to give harmonious construction.
• The proper test would be whether the provisions of both laws can be given effect or whether both laws can stand alone. In most situations, this would eliminate the need to quash a state legislation on the basis of repugnancy.