IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.12.2008 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.37252 of 2007 and M.P.No.1 of 2007 Dr.E.Muralidharan .. Petitioner -vs- 1.Union of India, rep.by Secretary, Higher Education, Ministry of Human Resources Development, Government of India, New Delhi-110 001. 2.Dr.M.S.Ananth Director, I.I.T, Madras, Chennai-600 036. 3.Dr.A.E.Muthunayagam, Chairman, Board of Governors, I.I.T. Madras, No.A-33, Pandit Colony, Kowdiar (P.O.), Tiruvananthapuram-695 003. 4.Dr.Usha Titus Former Registrar, I.I.T.Madras, Director Social Welfare Department, Government of Kerala, Kerala State Secretariat, Tiruvananthapuram-695 001. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of quo warranto to the first respondent to show on what authority the second respondent can hold the post of the Director of Indian Institute of Technology, Madras. For petitioner : Dr.E.Muralidharan, Petitioner-in-person For respondents : Mr.K.M.Venugopal, SCGSC(R1) Mr.Vijay Narayan, SC for Mr.Karthik Mukundan (R2&4) Mr.R.Parthiban (R3) ***** O R D E R Heard the arguments of Dr.E.Muralidharan, the petitioner appearing in person; Mr.K.M.Venugopal, learned Senior Central Government Standing Counsel appearing for the first respondent Union of India; Mr.Vijay Narayan, learned Senior Counsel leading Mr.Karthik Mukundan for respondents 2 and 4 and Mr.R.Parthiban, learned counsel appearing for the third respondent and perused the records. 2. This writ petition is filed questioning the authority of the second respondent to hold the post of the Director of Indian Institute of Technology, Madras (for short, 'I.I.T.(M)'). When the matter came up for admission, it was placed before a Division Bench treating it as a public interest litigation. However, the Division Bench, by its order dated 17.12.2007, observed as follows:- ''As the matter relates to appointment of the Director of I.I.T. Madras, it cannot be termed to be ''Public Interest Litigation''. However, it is open for the petitioner to confine the prayer for issuance of a writ of quo warranto as an adversary litigation. Let the matter be placed as a general writ petition before appropriate Court after necessary orders of the Hon'ble the Chief Justice". 3. Therefore, the matter was placed before the Single Bench. The Single Bench, by an order dated 12.8.2008, directed that the appointment of the second respondent will be subject to the result of the writ petition. Subsequently, the matter was taken up for final hearing. This Court by an order dated 22.9.2008 dismissed the writ petition as not maintainable in the light of the petitioner having moved the Honourable Supreme Court under Article 32 of the Constitution. 4. As against the same, the petitioner moved a writ appeal being W.A.No.1242 of 2008. The matter came up before the Division Bench presided by A.K.Ganguly, C.J. (as he then was) and the writ appeal was allowed by a judgment dated 28.11.2008. Paragraphs 13 and 14 of the said judgment reads as follows:- ''13. Following the principles laid down by the Supreme Court, this Court is of the opinion that the bar of res judicata does not operate in this case. The reasoning discussed in the aforesaid cases should apply herein a reverse situation namely, where a petition under Article 32, dismissed as withdrawn without any discussion on the merits of the case, that cannot bar the petitioner's access to a writ court under Article 226. 14. Therefore, the writ petition is maintainable and the impugned judgment of the learned Single Judge is accordingly set aside. The matter is remanded for fresh consideration on merits before K.Chandru, J. Since the matter is pending in this Court for some time, we hope and expect that the matter is disposed of by the learned Judge as early as possible, but preferably within a period of two months from date. We make it clear that we have not made any pronouncements on the merits of the case. The writ appeal is accordingly allowed. The interim order which was granted during the pendency of the writ petition, that the holding of office by the Director of I.I.T. viz., the fourth respondent herein, will abide by the result of the writ petition, continues. There shall be no order as to costs. Consequently, M.P.No.1 of 2008 is closed." The matter thus came to be listed before this Court. 5. Though the learned Senior Counsel appearing for the I.I.T.(M) submitted that they intend to prefer a SLP against the order of the Division Bench, no such proof was forthcoming. Further, since the Division Bench had also fixed a time limit for disposal of the writ petition, parties were directed to address arguments on the merits of the case, which they were kind enough to do. 6. The petitioner appearing in person submitted that the I.I.T.(M) is governed by the Institutes of Technology Act, 1961 (for short, 'the IT Act'). Section 17(1) of the IT Act provides that a Director of each Institute will be appointed by the Council with the prior approval of the Visitor. Therefore, he submitted that there was neither an appointment by the Council nor was there a proper approval by the Visitor, who is none other than the President of India. He also submitted that the term ''Council" as defined under Section 3(d) of the IT Act means the Council established in terms of Section 31(1) of the said Act. Section 31 of the IT Act reads as follows:- ''31.(1) With effect from such date as the Central Government may, by notification in the Official Gazette, specify in this behalf, there shall be established a central body to be called the Council. (2) The Council shall consist of the following members, namely:- (a) The Minister in charge of technical education in the Central Government, ex officio, as Chairman; (b) The Chairman of each Institute, ex-officio; (c) The Director of each Institute, ex-officio; (d) The Chairman, University Grants Commission, ex-officio; (e) The Director-General, Council of Scientific and Industrial Research, ex-officio; (f) The Chairman of the Council of the Indian Institute of Science, Bangalore, ex-officio; (g) The Director of the Indian Institute of Science, Bangalore, ex-officio; (h) Three persons to be nominated by the Central Government, one to represent the Ministry concerned with technical education, another to represent the Ministry of Finance and the third to represent any other Ministry; (i) One person to be nominated by the All India Council for Technical Education; (j) Not less than three, but not more than five persons to be nominated by the Visitor, who shall be persons having special knowledge or practical experience in respect of eudcation, industry, science or technology; (k) Three Members of Parliament, of whom two shall be elected by the House of the People from among its members and one by the Council of States from among its members. (3) An officer of the Ministry of the Central Government concerned with technical education shall be nominated by that Government to act as the Secretary of the Council." 7. Section 35 of the IT Act empowers the Central Government to make rules to carry out the purposes of Chapter III. The petitioner also referred to the statutes which are framed under Section 15 of the IT Act. The Statute No.15 refers to appointment on contracts and it reads as follows:- ''15. Appointment on Contracts: (1) Notwithstanding anything contained in these Statutes, the Board may, in special circumstances, appoint an eminent person on contract for a period not exceeding five years, with a provision of renewal for further period, provided that every such appointment and the terms thereof shall be subject to the prior approval of the Visitor. (2) Subject to the provisions contained in the Act, the Board may appoint any person on contract in the prescribed scales of pay and on the terms and conditions applicable to the relevant post for a period not exceeding five years with a provision of renewal for further period. For making such appointments, the Chairman may, at his discretion, constitute such ad hoc Selection Committees, as the circumstances of each case may require. (3) Notwithstanding anything contained in these Statutes, the Council may appoint an eminent person as Director on contract for a period not exceeding five years, with a provision for renewal for further periods provided that every such appointment and terms thereof shall be subject to the prior approval of the Visitor." (Emphasis Added) 8. A perusal of Statute No.15 will show that while for making appointments in terms of Statutes 15(1) and (2), the Board of Governors of the Institute have been empowered to make appointments. But the appointment of the Director under Statute 15(3) should be done by the Council. 9. Schedule 'A' prescribes the form of contract that has to be signed between the I.I.T. and its Director, who is appointed on contract. Para (2) of the Contract of Services set out in Schedule A of the Statutes reads as follows:- ''(2) The appointee shall be on service under the agreement for a period of ........ years with effect from ........... that is date of joining the post. ''Provided that if the appointee on conclusion of the period of service mentioned above is below 60 years of age, his service shall continue till the 30th June of the academic year in which the appointee concludes the said period of service or till he attains the age of 60, whichever is earlier." Statute No.7(3) makes it obligatory that the Institute and the Director appointed must enter into a contract of service in terms of Schedule 'A' and it shall be executed by the Chairman of the respective I.I.T. 10. The second respondent came to be appointed on 25.1.2002 with retrospective effect from 24.12.2001. Since it was a contractual appointment that too for a period of five years, it had to come to an end by 23.12.2006. The second respondent did not go out of office in terms of his contract on 23.12.2001. On the contrary, the fourth respondent Registrar issued an Office Order, that too, long after the expiry of the contract on 23.12.2006 stating that the second respondent will continue in office till 30.6.2007 in terms of his contract or till he attained the age of 62 years whichever is earlier. The authority for issuing such a retrospective order that too by the fourth respondent Registrar has not been explained by the respondent properly. Only a reference was made to the terms of agreement dated 24.12.2001. The agreement said to have been signed on 24.12.2001 was signed actually on a stamp paper purchased on 25.4.2001 (eight months prior to his appointment) as found from the stamp paper. It was purchased somewhere from Vellore which is 110 kms. away from Chennai. 11. Para 2 of the said agreement stipulated that the second respondent will be continuing in service for a period of five years with effect from 24.12.2001 and if the appointee on completion of the period of service is below 62 years, his service shall continue till 30th June of the Academic Year in which the appointee concludes the said period of service or till he attained the age of 62 years whichever is earlier. It is claimed that on the strength of this agreement, the second respondent continued in service till 30.6.2007 and as per the notification issued by the Registrar, the fourth respondent herein. 12. In the meanwhile, since the post of Director must fell vacant on 24.12.2006, i.e. the date on which the second respondent had completed his tenure, the first respondent Union of India sent a Circular dated 06.2.2007 to many persons who are supposed to be Academicians, Prominent Educationists and Prominent Scientists/Technologists of I.I.Ts/IISc, etc. Since it is the starting point of the present litigation, it is necessary to extract the Circular, dated 06.2.2007 sent by the Joint Secretary, Ministry of Human Resource Development (HRD), Department of Higher Education, New Delhi: ''I wish to bring to your kind notice that we have initiated the process for selection of a new Director of Indian Institute of Technology (I.I.T.) Madras. The post of Director of an I.I.T. is in the consolidated scale of pay of Rs.25,000/- per month. The appointment is on contractual basis for a period of five years as per terms and conditions laid down in The Institutes of Technology Act, 1961 and the Statutes thereunder. I shall be grateful if you kindly suggest a few names of eminent persons, preferably not more than 57 years of age, to be considered for appointment to the post of Director, I.I.T., Madras. You may kindly send their names along with their detailed bio-data to me preferably before 26th February, 2007." (Emphasis Added) 13. It is claimed that according to the said requisition, several names were nominated including the name of the second respondent. It is also claimed that his name was sponsored by the Director of I.I.T., Bombay. But it is not clear that despite the Circular of the Central Government prescribing that a candidate should not have preferably completed 57 years of age, still the name of the second respondent who had already completed 62 years was nominated by the Director of I.I.T., Bombay. Either he had not seen the Circular or that there was a determined effort to push the name of the second respondent for the said post. 14. The nominations thus received were altogether 18 in number and were shortlisted. The summary of the report prepared by the Joint Secretary was forwarded to the President of India, namely, Visitor of I.I.T.s. In the Summary for the Visitor prepared by the Joint Secretary dated 25.6.2006 (a copy of which was obtained by the petitioner by invoking the Right to Information Act) after referring to Statute No.15(3), it was stated that they were following the past procedure and that the composition of the Search-cum-Selection Committee was approved by the Honourable Minister for Human Resource Development, who himself is the ex-officio Chairman of the said Committee. The Committee had in its first meeting held on 16.5.2007, shortlisted seven candidates including the second respondent and called them for a personal discussion. Subsequently, at its next meeting, three other names were not considered because they had already appeared for selection to the post of Director, I.I.T., Kharagpur. It was also stated that one Prof.Madhusudan Chakraborty, who was called for personal discussion was out of country and the personal discussion with the six candidates including the second respondent was supposed to have taken place on 04th June 2007 at New Delhi. Thereafter, based upon the performance of the candidates during the personal discussion and the professional career and credentials of the candidates and their suitability for the post, the Search Committee recommended the name of the second respondent, viz., Dr.M.S.Ananth, for his re- appointment as Director, I.I.T.(M) for a period of five years or till he completes the age of 65 years, whichever is earlier. 15. Since the prior approval of the Visitor is required, the papers were sent to the Honourable President of India recommending the name of the second respondent. It was also indicated that the President's Secretariat, by a communication dated 28.6.2007, approved the proposal of the Search- cum-Selection Committee. In view of the approval given by the Visitor, the third respondent was informed about the approval of the re-appointment of the second respondent as Director, I.I.T.(M) and he was authorised to give a formal offer to the second respondent. 16. Thereafter, by a Circular dated 09.7.2007, it was informed to all that the President of India, in his capacity as Visitor of I.I.T.s, has approved the appointment or re-appointment of Prof.M.S.Ananth, Director, I.I.T.(M), with effect from 01.7.2007 for a period of five years or till he attains the age of 65 years, whichever is earlier. In the same Circular it was also informed that the second respondent had assumed office with effect from 01.7.2007. By virtue of this largesse conferred on the second respondent, the second respondent is expected to be in service till 14.11.2010, as his date of birth was 15.11.1945 and he will be attaining the age of 65 years on 14.11.2010. Thus he will barely be in office for a period of 3 = years and not five years as mentioned in the order. 17. It is important to note that even though the approval by the Visitor was communicated by the President's Secretariat only by a communication dated 28.6.2007, the agreement signed between the Chairman of the I.I.T.(M) and the second respondent was typed in a stamp paper purchased on 25.6.2007. It throws a considerable suspicion on the conduct of the second and third respondents. An argument was also advanced by the petitioner that many documents in the present case have been fabricated and were prepared only after coming to know that there will be challenge to his appointment before this Court. In the light of this factual background, the petitioner pleaded that the appointment of the second respondent was illegal as it was not done by the Council as required under law. 18. The learned Senior Counsel also agreed that the matter was yet to be placed before the Council and no meeting of the Council had taken place in the last 2 years. In the light of the same, the petitioner contended that the second respondent was an usurper of the office of Director of I.I.T. and this Court must issue the writ in the nature of quo-warranto against the second respondent. 19. Per contra, Mr.Vijay Narayan, learned Senior Counsel stated that the very same appointment was questioned by an other person and a Division Bench had dismissed the writ petition. The said writ petition was filed by one P.G.Samy @ Iraiyanar being W.P.No.25949 of 2007. Though it was a petition for issuance of a writ of quo warranto, the Division Bench proceeded to deal with it as if it was a public interest litigation. Thus, relying upon the decision reported in (1998) 7 SCC 273 (Dhuriyodana Sahu -vs- Jijendra Kumar Misra dismissed the said writ petition vide its order dated 23.8.2007. The following passage found in para 3 may be usefully extracted below:- ''3. The very reference to the contents of the affidavit filed by the petitioner in support of the writ petition does not show any illegality in the appointment of the first respondent. Even if it is a tenure post of the first respondent as a Director of I.I.T. by extending the tenure, it is not known as to how a writ of quo warranto will lie. There is absolutely no public interest involved in this case which purely relates to the service condition of the first respondent. The Supreme Court has held in Dhuriyodana Sahu -vs- Jijendra Kumar Misra reported in 1998 7 SCC 273 that no public interest litigation shall be entertained in respect of service matters." (Emphasis Added) 20. He also submitted that a challenge was made by an Ex-Member of Parliament against appointment of the previous Director of I.I.T. in W.P.No.12128 of 1998. A Division Bench dismissed the said writ petition vide its order dated 14.2.2000 after referring to the provisions of the IT Act and the Statutes framed thereunder. Paragraphs 19 to 22 of the said judgment may be usefully reproduced below:- ''19. Though the submission of the learned counsel appearing for the petitioner that the appointment of the first respondent as Director was not made by the Council and thereby the procedure prescribed has not been followed in letter is correct, in substance the appointment of the first respondent as Director has been made with the concurrence of the Council. Though the petitioner has originally raised an objection to the effect that no prior approval was obtained from the Visitor, the learned counsel has not pressed the said objection, in view of the fact that prior approval had been obtained from the Visitor. So, the said submission of the learned counsel that the appointment of the first respondent to the post of Director, without following the procedures contemplated under the Act, cannot be sustained, cannot be countenanced. 20. The only submission of the learned counsel appearing for the petitioner is that the procedures contemplated under the Act have not been strictly followed. It is not the case of the petitioner that the first respondent is not a fit or competent person for the said post. 21. While considering the objections regarding the appointment of the Chief Justice of India on the ground that the mandatory consultations comprehended were not made and the rule of seniority was not followed, the Full Bench of the Delhi High Court in the decision in P.L.Lakhanpal -vs- A.N.Ray, AIR 1975 Delhi 66 viewed that if the law requires that the appointment is to be made after fulfilling certain conditions and if such conditions are incapable of being fulfilled, then only the writ of quo warranto has to be issued, and, if any procedure has not been followed which can be followed, and after following such procedure, re-appointment can be made, then writ of quo warranto cannot be issued. .. .. .. ... " (Extracted portion of the judgment omitted) 22. In the present case, as no dispute was raised regarding competency of the first respondent to occupy the said post, he can be re-appointed by the Council. Merely because the said procedure of appointment by the Council was not followed, the Council has approved the said appointment by accepting the changes in the Council, and so this Court need not issue a writ of quo warranto. Moreover, the Chairman of the Council exercising power delegated to him the Council under Rule 5 of the Rules has passed the order. So, if such writ is issued, it would be futile, as the defect if any, can be cured by immediate re-appointment. As quo warranto is not a writ of right, and it is in the discretion of the Court, to refuse or grant it is according to the facts and circumstances of the case. In view of the above, we find it difficult to accept the submission of the learned counsel appearing for the petitioner, with respect to the appointment of the first respondent to the post of Director, I.I.T., Madras." It is not clear as to how these two decisions will have any bearing over the present case. 21. Though several contentions were raised by the petitioner and also an attempt was made to make the appointment of the second respondent being shrouded in mystery, this Court is concerned as to whether the second respondent was appointed by a competent authority. 22. The learned Senior Counsel for the I.I.T.(M) submitted that the Central Government had framed Rules, viz., The Council (Institutes of Technology) Rules, 1962 (for short, 'the Rules') dated 02.6.1962 in terms of Section 35 of the IT Act. Rule 5 of the Rules on which reliance is placed upon reads as follows:- ''5. Functions and manner of exercising thereof. - (a) The Council shall exercise such powers and perform such duties as are assigned to it by the Act. (b) The Council may exercise its functions either directly or delegate such of its functions as considered necessary to the Chairman of the Council. The actions taken by the Chairman of the Council, in exercise of such a delegation shall be reported to the Council at its next meeting. (c) Where it is not expedient to convene a meeting, the Secretary may with the approval of the Chairman of the Council, circulate such item or items as are considered necessary, among the members and obtain their comments to enable the Chairman of the Council to take decisions thereon. Such matters shall be reported to the Council at its next meeting. (d) The Council may set up such Committee or Committees, standing or ad hoc, with definite terms of reference as are considered necessary. The report or reports of such committee or Committees shall be placed for consideration and decisions of the Council at its meeting." (Emphasis Added) 23. According to the learned Senior Counsel that after the Rules were framed, the first Council had its meeting on