* HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY +WRIT PETITION No.10846 of 2007 % Dated 12-3-2008 #Between: Prof. V.S.S.Sastry … Petitioner AND The Ministry of Human Resource Development, Government of India, represented by its Secretary, Department of Secondary & Higher Education, Sastry Bhavan, New Delhi and five others. … Respondents ! Counsel for the petitioner: Sri S.Ramachandra Rao & Dr. K.Lakshminarasimha for Sri K.R.Prabhakar. ^Counsel for respondents: Sri Ravindra Srivastav & Sri Deepak Bhattarjee for R.1 to R.3. Sri S.M.Saxena for R.5 Sri K.Ramakanta Reddy for R.6. <Gist: >Head Note: ?Cases referred: [1]) Air 1968 SC 292 2) AIR 1967 SC 1305 3) AIR 1953 SC 49 4) AIR 2003 SC 2889 5) (1996) 3 SCC 709 6) (1997) 2 SCC 453 7) (2003) 4 SCC 104 8) AIR 1955 SC 191 9) AIR 1958 SC 532 10) (1988) 2 SCC 433 11) (1992) Suppl-II SCC 351 12) 1985(1) SCC 523 13) AIR 1952 SC 369 14) AIR 1953 SC 49 15)AIR 2003 SC 2889 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WEDNESDAY, THE 12TH DAY OF MARCH, TWO THOUSAND EIGHT ONLY WRIT PETITION No.10846 of 2007 Between: Prof. V.S.S.Sastry … Petitioner AND The Ministry of Human Resource Development, Government of India, represented by its Secretary, Department of Secondary & Higher Education, Sastry Bhavan, New Delhi and five others. … Respondents Counsel for the petitioner: Sri S.Ramachandra Rao & Dr. K.Lakshminarasimha for Sri K.R.Prabhakar. Counsel for respondents: Sri Ravindra Srivastav & Sri Deepak Bhattarjee for R.1 to R.3. Sri S.M.Saxena for R.5 Sri K.Ramakanta Reddy for R.6. This Court made the following: ORDER: (Per C.V.NAGARJUNA REDDY, J) In this Writ Petition, the petitioner sought for invalidation of Section 46(a) of the English and Foreign Languages University Act, 2006 (for short “the Act”) as being arbitrary, illegal and ultra vires of Sections 4(v) and 13 of the Act and violative of Articles 14, 16 and 21 of the Constitution of India, by issuance of a Writ of Mandamus. THE BACKGROUND FACTS: The Central Institute of English and Foreign Languages, Hyderabad was a Society registered under the Hyderabad Societies Registration Act, 1350 Fasli (for short “the CIEFL Society”). It was a premier Institution of the country for the study of English and major foreign languages. It was conferred the status of deemed University in July, 1973 under Section 3 of the University Grants Commission Act, 1956. Its Byelaws were framed on 25-6-1956 and amended from time to time. The Byelaws, inter alia, provided for appointment of Vice-Chancellor. Under Byelaw 22-A, the Vice-Chancellor shall be appointed as prescribed in the Rules and shall hold office for a term of five years on such terms and conditions as may be determined from time to time. The CIEFL Society’s registered Memorandum of Association (for short “the MOA”) as amended at its meeting held on 25-3-1992 and approved by the Ministry of Human Resource Development, Government of India, on 8-5-1992 envisaged the method of appointment of Vice-Chancellor. Rule 23 of the MOA provided that the appointment of the Vice-Chancellor shall be made by the Board of Governors with the approval of the Central Government. The Board of Governors comprised Secretary to the Government of India, Ministry of Education & SW (ex-officio); Nominee of the Central Government to represent the Ministry of Education; Nominee of the Central Government to represent the Ministry of Finance; Representative of the Central Advisory Board of Education nominated by the Central Government; Vice-Chancellor of Osmania University, Hyderabad (ex-officio); three members nominated by the Central Government; two other members nominated by the Central Government to represent the University Grants Commission and the Inter-University Board, respectively; Representative of the All India Council for Secondary Education, nominated by the Central Government; and the Director of the Institute (ex-officio). Consequent on completion of five years tenure by Professor Pramod Talgere as the Vice-Chancellor, the said post fell vacant on 5-3-2002. The Board of Governors appointed the petitioner as the Vice- Chancellor on 25-10-2002 and directed the CIEFL University to send his nomination to the Ministry of Human Resource Development for approval. Having kept the file pending for about two years, the Central Government by proceedings dated 3-9-2004 directed the Board to initiate the process of selection afresh through advertisement. The petitioner filed Writ Petition No.17402 of 2004 questioning the said proceedings, wherein a direction was given by this Court to the Government of India not to take any further steps in pursuance of the said proceedings, pending the said Writ Petition. While the said Writ Petition was pending, the Central Government withdrew the earlier proceedings and issued fresh proceedings dated 4-10- 2004 ordering for fresh selection process. The said proceedings were challenged by the petitioner in Writ Petition No.18402 of 2004. After a detailed consideration of the case, a learned Single Judge of this Court allowed the said Writ Petition and nullified proceedings dated 4-10-2004. The learned Single Judge held that the selection process was not in violation of Rule 23 of the MOA and the Rules of the CIEFL Society; that the Human Resource Ministry approved the proposal to appoint the petitioner as Vice- Chancellor on 2-1-2004; and that the Government of India cannot nullify the decision of the Board of Governors to appoint the petitioner without any reasons. On that premise, the learned Single Judge directed the file to be again circulated and the competent authority was directed to pass appropriate orders, after taking into account the entire material relating to the decision of the Board of Governors, within a period of three months from the date of receipt of the order. Writ Appeal No.202 of 2005 filed against the said judgment was dismissed by a Division Bench of this Court on 29-4-2005 and the SLP filed against the said judgment was also dismissed by the Supreme Court on 16-8-2005. After the petitioner filed Contempt Case No.1080 of 2005, the Government of India addressed letter dated 8-11-2005 to the Registrar of CIEFL Society, Hyderabad, wherein it was informed that in terms of Rule 23(a) of MOA of the CIEFL Society, Hyderabad, the competent authority approved the proposal of the appointment of the petitioner as Vice- Chancellor for a period of five years or until he attains the age of 65 years or until further orders, whichever is the earliest. The in-charge Registrar of the CIEFL Society in turn issued proceedings No.CIEFL/Admn/F.409/2005/11-A, dated 11-11-2005 appointing the petitioner as the Vice-Chancellor for a period of five years or until he attains the age of 65 years, whichever is earlier, with effect from the date he takes over charge of the post. The petitioner assumed office of the Vice- Chancellor on 11-11-2005. The Parliament enacted the Act, which received the assent of the President on 10-1-2007. Notification was published in the Gazette of India dated 01-08-2007 fixing 03-8-2007 as the appointed date for the Act to come into force. As a prelude for the Act to come into force, the Ministry of Human Resource Development, vide its letter dated 9-2-2007 addressed to the petitioner informed him that a Search Committee, consisting of three persons named therein, was constituted to recommend a panel of not less than three persons for the post of first Vice-Chancellor of the Central Institute of English and Foreign Languages University (for short “the University”); that the Committee would be visiting Hyderabad on 23d and 24th February, 2007 for an interactive meeting and the petitioner was requested to advise the concerned officials of the University to make necessary arrangements for accommodation and transport of the Members. Questioning the said letter, the petitioner filed Writ Petition No.3416 of 2007 and this Court initially granted interim order in favour of the petitioner and the same was vacated at the instance of respondents 1 to 3 on 1-5-2007. The petitioner filed the present Writ Petition by attacking the validity of Section 46(a) of the Act. After the Writ Petition was admitted, the petitioner filed WPMP No.25867 of 2007 seeking impleadment of respondent No.5, who was appointed as the first Vice- Chancellor of the University on 02.08.2007 and the said application was allowed by this Court on 21-9-1997. The petitioner also filed WPMP No.27869 of 2007 to implead the University as respondent No.6 and the said application was also allowed by this Court by order dated 11-12-2007. THE PLEADINGS: The following is the gist of the petitioner’s pleadings as could be culled out from his affidavit filed in the Writ Petition and the reply affidavit. The petitioner is appointed for a specific term and, therefore, he is entitled to continue in the office for five years from the date of his appointment or till he reaches 65 years of age, whichever is earlier. Both Byelaw 22-A of the CIEFL Society’s Byelaws and Clause 2 of the Schedule of the Act are couched in similar terms regarding the term of office of the Vice-Chancellor except with the difference that in the Act there is prohibition on reappointment of the Vice-Chancellor for the second term. Section 46(a), which is in the nature of a transitional provision, cannot be construed to have the effect of cutting short the term of the Vice-Chancellor appointed before the commencement of the Act and the said provision cannot be operated retrospectively to the petitioner’s detriment. Section 46(a) has no application to the present case as the office of Vice-Chancellor is not vacant nor the Act abolished the post of Vice- Chancellor and unless Parliament abolishes the post itself, a person holding the office cannot be removed from the said office and that no endemic changes have been made with regard to the method of selection and manner of appointment or the term of office under the new Act. Under the earlier Byelaws, the Government of India had the authority to grant approval or to reject the same and, in the present case, the Government of India is vested with the authority to appoint the Vice- Chancellor. In both the cases, the Government of India had played dominant role in the appointment of Vice- Chancellor. A perusal of the Scheme of the Act, in particular, the Schedule of the Act, shows that the entire Act was intended to remove the petitioner from the office. The petitioner’s candidature is viewed with suspicion for the reason that it was finalized during the previous regime and respondents 1 and 2 have been subjecting him to witch-hunting from the day he assumed the office of the Vice-Chancellor of the CIEFL Society. The provisions of the Act do not indicate dissolution of the CIEFL Society on the ground that it had failed to discharge its functions. Respondents 1 to 3, 5 and 6 filed separate counter-affidavits. Respondents 1 to 3 maintained that none of the fundamental rights of the petitioner is shown to have been violated; that the petitioner failed to make out a case of infringement of any of the constitutional provisions and, consequently, no case is made out for invalidating Section 46(a) of the Act; that the Act was passed by the Parliament, which admittedly has the competence to do so, and no mala fides or malice can be attributed to the Legislature; that the Act had been passed by the Parliament for achieving the laudable object in public interest and in the interest of promoting education, which is of national importance, as amply set out in the Objects and Reasons of the Act; that the petitioner failed to substantiate how Section 46(a) is arbitrary and ultra vires of Sections 4(v) and 13 of the Act or violative of Articles 14,16 and 21 of the Constitution of India; that if the provisions of Section 46 read as a whole, it would be clear that not only the first Vice-Chancellor but also the first Chancellor, first Registrar, first Finance Officer, first Court, first Executive Council and first Academic Council are to be appointed by the Central Government; that Section 46 starts with a non-obstante clause and over-rides the provisions of the Act, including Sections 4(v) and 13; and that the letter of appointment dated 11-11-2005, by which the petitioner was appointed as Vice-Chancellor, cannot be construed as imposing any limitations or fetters on the power of the Parliament to enact a provision such as Section 46(a). It is further averred that one of the objects of the Act was to make the University more accountable and transparent in its functioning and with this object in mind, the status of Central University was conferred on the University; that in terms of Section 4(i) of the Act, on and from the date of commencement of the Act, the CIEFL Society shall be dissolved and all properties, moveable and immovable, and all rights, powers and privileges of the CIEFL Society shall vest in the University and shall be applied to the objects and purposes for which the University is established and, therefore, the CIEFL Society ceased to exist on the commencement of the Act resulting in abolition of the office of the Vice-Chancellor of CIEFL Society; that it is, therefore, a case of appointment of first Vice-Chancellor of the University and not a case of appointment of successor to the petitioner; that the process of appointment of first Vice-Chancellor in the present case was initiated in anticipation of commencement of the Act to ensure that he enters upon office immediately on commencement of the Act and the order of his appointment could be issued only after commencement of the Act; that the petitioner invoked the jurisdiction of this Court on the basis of the apprehension that he may not be selected as the first Vice-Chancellor; and that with the abolition of the CIEFL Society and cessation of the office of Vice-Chancellor of the CIEFL Society constituted under its Byelaws and Rules, the appointment of first Vice-Chancellor under the Act is required to be made under Section 46(a) of the Act. In the counter-affidavit filed by the Incharge Registrar of respondent No.6-University, it is inter alia averred as under: Subsequent to the appointment of respondent No.5 as the first Vice-Chancellor, the Executive Council for the University was constituted in accordance with the Act with as many as 11 eminent academicians as its members. The first meeting of the Executive Council was held on 19.09.2007, wherein Prof. Maya Pandit, Centre for Training and Development of respondent No.6- University was appointed as first Pro-Vice- Chancellor and the first academic council was constituted in terms of Section 46(a). The University gave a detailed account of the distinguished academic career of respondent No.5. (In the present context of the case it is not necessary to refer to those details). The petitioner filed three writ petitions of which he withdrew only WP.No.17372 of 2007 and WP.No.3416 of 2007 is still pending and the said writ petition, which was filed for invalidation of proceedings dated 09.02.2007 issued by respondent No.3 and for a declaration that Section 46(a) of the Act has no application to the case of the petitioner, the present writ petition for a writ of mandamus to declare the provisions of Section 46(a) of the Act as unconstitutional is totally misconceived and not maintainable in law. The terms of appointment order dated 11.11.2005 issued in favour of the petitioner are subject to the provisions of the Act and cannot prevail over the law laid by the Parliament. The Act received the Presidential assent on 10.01.2007 and in terms of Section 4(i) of the Act, on and from the commencement of the Act, the Society known as the Central Institute of English and Foreign Languages, Hyderabad, shall be dissolved and all properties, moveable and immovable, and all rights, powers and privileges of the said Society shall be transferred to and vest in the University and shall be applied to the objects and purposes for which the University is established. The CIEFL Society, therefore, ceased to exist upon the commencement of the Act resulting in abolition and dissolution of the office of the Vice-Chancellor, CIEFL. It is thus not a case of appointment of a successor of the petitioner, that it is a case of appointment of the first Vice-Chancellor of the University established and incorporated under the Act. The tenure guarantee given to the employees of the CIEFL Society under Section 4(v) of the Act is not applicable to the incumbent Vice-Chancellor. Moreover, Section 46(a) overrides Section 4(v) in respect of the status of the Vice-Chancellor. There is no question of hatching a strategy of removing the petitioner and the University has been conceived as a part of the consistent policy of the Government of India to set up new Central Universities by the Act of Parliament. The latest example is that of the Pondicherry University, which has also been replaced by a new Central University. With the succession of the CIEFL University with effect from 03.08.2007, the Vice-Chancellor of CIEFL Society also ceased to exist automatically. The respondents have not singled out any individual, much less the petitioner. Provisions similar to Section 46(a) are contained by the Acts passed by Indian Parliament providing for creation of Central Universities. The Rajiv Gandhi University Act, 2006 is one such Act. That the petitioner filed a doctored document purported to be letter of appointment dated 08.11.2005 issued by the Ministry of Human Resource Development by deleting the portion of the letter which reads “or until further orders, whichever is the earliest”. Section 46(a), which is in the nature of a transitional provision, is provided to facilitate the execution of the new Act and to remove obstacles from the way of its implementation. It is not correct to allege that the transitional provisions have been providing for creating anarchy. The age of superannuation of the petitioner is in no way curtailed by the Parliament, as the petitioner did not apply for re-employment after 65 years, who has become eligible for the same in June 2006. In his counter, respondent No.5 has taken the stand in conformity with the stand taken by respondent Nos.1 to 3 and 6 and, hence, there is no need to make a specific reference to its contents. Respondent No.5 has taken the specific plea that as the Central Government in its order approving the appointment of the petitioner limited his tenure “to 65 years or until further orders, whichever is the earliest”, with the enactment of Act 7 of 2007, his appointment got determined. Respondent No.5 relied upon the judgment of the Supreme Court in Dr. Bool Chand v. Chancellor, Kurukshetra University[1] in support of his contention that the appointing authority has power to determine his employment even prior to the expiry of the initial tenure. The petitioner filed separate reply affidavits to all the three counters filed by the respondents. He reiterated his assertion that the provisions of the Act do not bring about automatic termination of the petitioner’s appointment and that the Government of India invented the method of removing him by making the Act. The petitioner relied upon the correspondence of the Ministry of Human Resource Development had with the petitioner to contend that the Act made a simple conversion of the CIEFL Society into a Central University and averred that by replacing the petitioner alone without appointing the Registrar of the finance office, the respondents indulged in invidious discrimination. He further averred that the words “until further orders” contained in letter dated 08.11.2005 of the Human Resource Development Ministry do not confer any authority on the Central Government to appoint the petitioner as the Vice-Chancellor, that the rule contemplated only grant of approval to the petitioner’s candidature and that an approving authority does not fix or limit his approval to any particular period as such. The petitioner replied to various averments contained in the counter-affidavits and we feel that it is neither relevant nor necessary to refer all those contents of the reply affidavits. THE CONTENTIONS: Sri S. Ramchandra Rao, learned Senior Counsel, and Dr. K.Laxminarasimha, learned counsel appearing for the petitioner, advanced the following contentions. 1. The Act is made with the sole intention of cutting short the tenure of the petitioner as Vice-Chancellor and, hence, it is mala fide and it attracts the vice of class legislation. The ratio laid down in D.S. Reddy, Vice-Chancellor, Osmania University v. Chancellor, Osmania University[2] is fully attracted to this case and consequently Section 46(a) is liable to be struck down as unconstitutional. 2. Alternatively, the Act does not bring about automatic termination of the petitioner’s tenure as Vice-Chancellor, but on the other hand Section 4(v) of the Act guarantees the tenure of every person employed immediately before the commencement of the Act in the CIEFL Society until the expiry of the period for which he is appointed and hence the provisions of Section 46(a) shall be construed harmoniously with the provisions of Section 4(v). 3. The Act was notified in the Gazette on 01.08.2007 and came into force with effect from 03.08.2007, which was the appointed day for the said purpose and the appointment of respondent No.5 on 02.08.2007 is, therefore, illegal as on that day the appointing authority had no power to appoint the first Vice- Chancellor under the Act. 4. Section 22 of the General Clauses Act, 1897 has no application to the instant case because the said provision can be invoked for passing an order only to facilitate the Act to come into force and not to appoint an individual to an office. Learned counsel relied upon the judgments of the Supreme Court in Venkateswaraloo v. Superintendent, Central Jail, Hyderabad State[3] and Chandra Singh v. State of Rajasthan[4]. 5. Sections 3 and 4 of the General Clauses Act, 1897 which vest power in the appointing authority to remove the appointee have no application because the appointing authority under the CIEFL Society Byelaws and Rules was different from the appointing authority of a Vice-Chancellor under the provisions of the Act. 6. The provisions of Section 46(a) will come into play only when a vacancy to any of the offices mentioned therein arises and the occasion for invoking the said provision will arise after completion of the tenure of the petitioner. Sri Ravindra Srivastav, learned counsel and Sri Deepak Bhattacharjee, learned standing counsel for respondent Nos. 1 to 3, advanced the following contentions. 1. The Act was made to establish a Central University by dissolution of the pre-existing society, which was running a deemed University. With the dissolution of the CIEFL Society and by operation of the provisions of Section 46(a) of the Act, the petitioner’s tenure is deemed to have come to an end notwithstanding the provisions of Section 4(v) of the Act. 2. The Act is not made for removing the petitioner, but to establish a University of national importance. Therefore, the Act is neither a single person legislation nor it attracts the vice of a class legislation and the judgment of the Supreme Court in D.S. Reddy (2 supra) has no application to the facts of the present case. No mala fides can be attributed to the Legislature. 3. Section 46(a) is a transitional provision intended to fill the vacuum created on account of dissolution of the CIEFL Society. 4. The petitioner appointed by the dissolved society albeit with the approval of the Central Government cannot continue to function under the provisions of the Act, which contains an altogether different scheme, where under the appointing authority and method of appointment are different from what was contained under the Byelaws and the Memorandum of Association of the dissolved Society under which the petitioner was appointed. 5. The order of appointment of the petitioner is issued by the Incharge Registrar, who omitted the words “or until further orders, whichever is the earliest” contained in the Government of India’s order dated 08.11.2005 approving the petitioner’s appointment and viewed from this angle, no right of the petitioner is violated with the appointment of a new Vice-Chancellor. Sri K.M. Saxena, learned counsel appearing for