IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.7.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Appeal Nos.32 to 34 and 73 of 2009 & M.P.Nos.1 of 2009 in W.A.No.32 and 73 of 2009 Dr.M.S.Ananth, Director of I.I.T., Madras, Chennai-600 036. .. Appellant in W.A.No.32 of 2009/ 2nd Respondent vs. 1. Dr.E.Muralidharan 2. Union of India, Represented by Secretary, Higher Education, Ministry of Human Resources Development, Government of India, New Delhi-110 001. 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 in W.A.No.32 of 2009 /Petitioner & R1,3 & 4 Dr.Usha Titus, Former Registrar, I.I.T., Madras, Director, Social Welfare Department, Government of Kerala, Kerala State Secretariat, Tiruvananthapuram-695 001. .. Appellant in W.A.No.33 of 2009 /4th Respondent vs. 1. Dr.E.Muralidharan https://hcservices.ecourts.gov.in/hcservices/ 2. Union of India, Represented by Secretary, Higher Education, Ministry of Human Resources Development, Government of India, New Delhi-110 001. 3. Dr.M.S.Ananth, Director, I.I.T., Madras, Chennai-600 036. 4. Dr.A.E.Muthunayagam, Chairman, Board of Governors, I.I.T., Madras, No.A-33, Pandit Colony, Kowdiar (P.O), Tiruvananthapuram-695 003. .. Respondents in W.A.No.33 of 2009 /Petitioner & R1 to 3 Dr.A.E.Muthunayagam, Chairman, Board of Governors, I.I.T., Madras, No.A-33, Pandit Colony, Kowdiar (P.O), Tiruvananthapuram-695 003. .. Appellant in W.A.No.34 of 2009 /3rd Respondent vs. 1. Dr.E.Muralidharan 2. Union of India, Represented by Secretary, Higher Education, Ministry of Human Resources Development, Government of India, New Delhi-110 001. 3. Dr.M.S.Ananth, Director, I.I.T., Madras, Chennai-600 036. 4. Dr.Usha Titus, Former Registrar, I.I.T., Madras, Director, Social Welfare Department, Government of Kerala, Kerala State Secretariat, Tiruvananthapuram-695 001. .. Respondents in W.A.No.34 of 2009 /Petitioner R1,2 & 4 Union of India, Represented by Secretary, Higher Education, Ministry of Human Resources Development, Government of India, New Delhi-110 001. .. Appellant in W.A.No.73 of 2009 /1st Respondent vs. 1. Dr.E.Muralidharan https://hcservices.ecourts.gov.in/hcservices/ 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 in W.A.No.73 of 2009 /Petitioner & R2 to 4 All the Writ Appeals against the order dated 23.12.2008 passed by the learned single Judge in Writ Petition No.37252 of 2007 on the file of this Court. This W.P. filed under Article 226 of the Constitution of India praying to issue a writ of quo warranto to the first respondent to show on what authority the 2nd respondent can hold the post of Director of Indian Institute of Technology,Madras. For appellant in W.A.No.32 of 2009 & For Respondent No.2 in W.A.No.73 of 2009: Mr.Vijay Narayanan, Senior Counsel for M/s.Karthik For appellant in W.A.Nos.33 & 34 of 2009 and For Respondents 3 and 4 in W.A.No.73 of 2009: Mr.Gopal Subramaniam, Senior Counsel for M/s.Mukundan For appellant in W.A.No.73 of 2009 and For Respondent No.2 in W.A.Nos.32 to 34 of 2009: Mr.M.Raveendran, Addl. Solicitor General of India, assisted by Mr.K.Elango, Asst. Solicitor General of India. For Respondent No.1 in W.A.Nos.32 to 34 and 73 of 2009 : Dr.E.Muralidharan, Party-in-person For Respondent Nos.3 & 4 in W.A.No.33 of 2009:Mr.R.Parthiban For Respondent Nos.3 & 4 in W.A.No.34 of 2009: Mr.Karthik https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT S.J.MUKHOPADHAYA,J As common question is involved in all these Writ Appeals, they were heard together and disposed of by this common judgment. 2. Questioning the authority of Dr.M.S.Ananth, to hold the post of the Director of the Indian Institute of Technology, Madras (for short, 'the IIT-M'), the first respondent-Dr.E.Muralidharan preferred Writ Petition No.37252 of 2007 for issuance of a Writ of Quo Warranto. 3. The learned single Judge, having held the appointment illegal, the Writ Appeals have been preferred by Dr.M.S.Ananth, Director, IIT-M (Writ Appeal No.32 of 2009), Dr.Usha Titus, former Registrar, IIT-M, Director of Social Welfare Department, Government of Kerala, Kerala State Secretariat (Writ Appeal No.33 of 2009), Dr.A.E.Muthanayagam, Chairman, Board of Governors, IIT-M (Writ Appeal No.34 of 2009) and the Union of India, represented by its Secretary, Higher Education Department, Ministry of Human Resources Development, Government of India, New Delhi (Writ Appeal No.73 of 2009). 4. The only question involved in these cases is as to whether the appointment of Dr.M.S.Ananth as the Director of IIT-M, is in accordance with IIT Act, 1961 and the Rules and the Regulations and the statutes framed thereunder. 5. The learned single Judge held the appointment of Dr.M.S.Ananth as the Director of IIT-M, as illegal, mainly on three counts, namely: (i) The appointment is in violation of Section 17 of the IIT Act, 1961; (ii) Such appointment has been made without publishing any advertisement, calling for names, and thereby, violative of Articles 14 and 16 of the Constitution of India, and (iii) The appointment has not been made by the Full Council of the IIT-M. 6. Learned Senior Counsel appearing for the appellants, while referring to the IIT Act and the Rules and the Regulations and the statutes framed thereunder, submitted that opportunities having been given to all equally situated persons, failure of Government of India in not advertising the post of Director, would not offend Articles 14 and 16 of the Constitution of India. Such ground was never pleaded by the Writ Petitioner-Dr.E.Muralidharan and thereby, no specific reply was given with regard to such factual aspect. https://hcservices.ecourts.gov.in/hcservices/ 7. Secondly, the procedure followed by the Ministry of Human Resources Development (for short, 'the HRD') of the Government of India, namely calling for the names of eminent persons from various sources, has been followed for the last 46 years while making appointment to such post of Director in the IIT-M and the said procedure having been followed in the present case, it cannot be held to be violative of Articles 14 and 16 of the Constitution of India or in violation of the provisions of the IIT Act, statutes and the Rules and the Regulations framed thereunder. The first respondent-writ petitioner, having not specifically challenged the established procedures for appointment of the Director of IIT-M, it is not open for the Court to annul the procedure. 8. The other ground taken on behalf of the appellants is with regard to the conclusion arrived at by the learned single Judge that the selection of Dr.M.S.Ananth, which was the foregone conclusion, it was submitted that the same was not borne out by records and was fully unwarranted in the facts and circumstances of the case, and the Writ of Quo Warranto is also not maintainable in the present case. 9. The first respondent-writ petitioner-Dr.E.Muralidharan made similar plea as was made before the learned single Judge. It was mainly pleaded that the recommendation of the Full Council was not made in the instant case and thus, the appointment is illegal. According to him, Dr.M.S.Ananth was earlier appointed during the period 24.12.2001 to 23.12.2006 as Director of IIT and the present appointment was re-appointment to the said post. Such appointment has been made in violation of the IIT Council's Resolution, Section 17(1) of the IIT Act, 1961 and Articles 14 and 16 of the Constitution of India. He referred to certain observations made by the learned single Judge in the impugned order. 10. Learned Additional Solicitor General, assisted by learned Assistant Solicitor General appearing on behalf of the Union of India supported the case of the appellants/IIT-M/Board of Governors of the IIT-M and submitted that the procedures as laid down under the provisions of the IIT Act and the statutes and the Rules and the Regulations framed thereunder, have been followed. 11. We have heard the learned counsel appearing for the parties and perused the records. 12. To determine the issue, it is necessary to notice the relevant provisions of the IIT Act and the Rules framed thereunder. 13. Section 4(1) of the IIT Act stipulates that each of the Institutes mentioned in Section 2 shall be a body corporate having perpetual succession and a common seal. https://hcservices.ecourts.gov.in/hcservices/ Section 6 of the IIT Act lays down the powers and duties of the Institute. Section 9 of the IIT Act stipulates that His Excellency The President of India shall be the Visitor of every Institute. Section 10 of the IIT Act lays down the various authorities of an Institute, such as: (a) a Board of Governors; (b)a Senate; and (c) such other authorities as may be declared by the statutes to be the authorities of the Institute. Section 11 lays down the constitution of the Board of Governors for an Institute. Section 17(1) stipulates that the Director of each Institute shall be appointed by the Council with the prior approval of the Visitor. Section 31 of Chapter III deals with "The Council", which is a central body established by the Central Government. Section 31(2) lists out the members of the Council, comprising of high ranking officials, such as: (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, along with many other members of the central body, etc. https://hcservices.ecourts.gov.in/hcservices/ Section 33 deals with the functions of the Council. Under Section 33(2)(b), the Council shall perform the function, namely to lay down policy regarding cadres, methods of recruitment and conditions of service of employees, institution of scholarships and freeships, levying of fees and other matters of common interest. Section 33(2)(f) lays down that the Council shall perform such other function as are assigned to it by or under the IIT Act. Section 34 deals with the Chairman of the Council. Section 34(2) stipulates that it is the duty of the Chairman of the Council to ensure that the decisions taken by the Council are implemented. Section 34(3) stipulates that the Chairman shall exercise such other powers and perform such other duties as are assigned to him by the IIT Act. Section 35 deals with the powers of the Central Government, which may, by notification in the Official Gazette, make rules to carry out the purposes of Chapter III. Section 35(2)(f) empowers the Central Government to make rules providing for the functions of the Council and the manner in which such functions may be exercised. It is informed that Section 35(3) was inserted, as communicated by the Government of India, Ministry of Human Resources Development, Department of Education, by letter dated 4.11.1986, whereby it was stipulated that every Rule made by the Central Government under Chapter III shall be laid before every House of Parliament while it is in Session and if both Houses agree to make any modification in the Rule or if both the Houses agree that the Rule should not be made, then such rule shall thereafter have effect only in such modified form or have no effect as the case may be, but such modification or annulment shall be without prejudice to actions previously taken under that Rule. 14. From the provisions of the IIT Act, it will be evident that each IIT is a separate body corporate, headed by the Board of Governors, which is responsible for the general superintendence and control over the affairs of the IIT. The IIT shall have a Director to be appointed by the Council with the prior approval of the Visitor, under Section 17(1) of the IIT Act. The Council comprises of eminent persons and has power to lay down policy regarding cadres, method of recruitment and conditions of service of the employees. The Council shall have its Chairman, whose duty is to ensure that the decisions taken by the Council are implemented, apart from the power to exercise other functions and to perform such other duties as are https://hcservices.ecourts.gov.in/hcservices/ assigned to the Chairman under the IIT Act. The Central Government can make Rules on various matters, including the matters pertaining to the functioning of the Council and the manner in which the functions are to be exercised. The Rules so framed under Section 35 of the IIT Act, would be placed before the Parliament. 15. In exercise of the powers conferred by Section 35 of the IIT Act, the Central Government framed the Council (Institutes of Technology) Rules, 1962 (for short, 'the Rules'). Rule 5 of the Rules deals with the functions and the manner of exercising such functions of the Council. Rule 5(b) of the Rules stipulates that the Council may exercise its function either directly or delegate such of its function as considered necessary to the Chairman of the Council. The action taken by the Chairman of the Council, in exercise of such delegation, shall be reported to the Council in its next meeting. Rule 5(c) stipulates that where it is not expedient to convene a meeting, the Secretary of the Council, 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. Under Rule 5(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. 16. The other way in which the Council exercises its powers and functions as laid down under Section 33 of the IIT Act is in the nature of Resolution as may be passed in its meeting. 17. It appears that the first meeting of the Council was held on 25.5.1962. In the said meeting, the Council, vide its Resolution contained in Item No.7, discussed the procedure of appointment to the post of Director in terms of Section 17(1) of the IIT Act and it was decided that in the matter of appointment of Director, first, the Council should be advised by a Selection Committee consisting of the Chairman of the Council as Chairman and Chairman of the concerned Board of Governors, Chairman of the University Grants Commission and one expert to be nominated by the Chairman of the Council, as Members. It was also decided that in case short-term vacancies or appointment on officiating basis, pending selection as per above procedure, the Chairman of the Council should make the appointment in consultation with the Chairman of the Board of Governors. https://hcservices.ecourts.gov.in/hcservices/ 18. From the aforesaid Resolution, dated 25.5.1962, it would be evident that, (i) in the matter of appointment of the Director, high power selection committee has to advise the Council under the Chairmanship of the Council of Members and (ii) Chairman of the Council, in contingency is also empowered to make ad-hoc arrangement and may appoint the Director. The aforesaid procedure is being followed since 1962 for appointment to the post of Director of IIT-M. 19. In its 14th meeting of the Council held on 13.9.1974, the Council resolved to authorise the Chairman to make the appointment of a Director on the recommendation of a Selection Committee, whose constitution has already been approved by the Council, after securing prior approval of the Visitor, and to act on behalf of the Council by communicating the approval of the Visitor to the concerned Chairman of the Board of Governors and advising the Chairman thereof to enter into a contract with the selected candidate. 20. The aforesaid procedure was reiterated by the Council in its 23rd and 24th Meeting held on 12.1.1983 and 10.6.1983. In its 35th Meeting held on 20.2.1999, it was resolved by the Council of the IIT to continue the same procedure with a stipulation that the appointment so made may be placed before the Council in its meeting to be held subsequent to the appointments, for ratification. 21. Thus, it will be clear that since 1962, all the Councils of the IITs, in the matter of appointment of the respective Directors, followed consistently the guidelines as laid down under the provisions of the IIT Act and the Rules and the Regulations and the statutes framed thereunder and the decision of the Councils, and thereby, followed the following procedures:- (i) Suggestions are invited for candidature from various sources. (ii) The candidates are shortlisted based on several criteria, such as educational qualification, professional competence and administrative experience. (iii) An invitation is extended to all shortlisted candidates for personal discussion/interview with the Selection Committee. (iv) The recommendations of the selection committee are then forwarded by the Minister of Human Resources Development in his capacity as Chairman of the Council of IITs to the Visitor for his approval. (v) Upon approval of the Visitor, the same is communicated to the concerned Chairman, Board of Governors of the IIT. https://hcservices.ecourts.gov.in/hcservices/ (vi) Chairman, Board of Governors of IIT intimates the offer of appointment to the appointee. (vii) Thereafter, as per Statute 15(3) of the IIT Kharaghpur/Bombay/Madras/Kanpur/Delhi Statutes, a contract as per the proforma in Schedule A to the Statutes, which governs the terms of the appointment is entered into between the Chairman, Board of Governors and the appointee. 22. A conjoint reading of the aforesaid Sections 33(2)(b), 35 (2)(f) of the IIT Act, Rule 5(b) of the Rules and the Resolutions passed by the Council on 25.5.1962, 13.9.1974, 12.1.1983, 10.6.1983 and 20.2.1999, it will be evident that the delegation of power by the Council to the Chairman of the Council to act on his behalf of the recommendation of the Selection Committee, is permissible and valid. The procedure followed for the last 46 years in the matter of appointment of the Director, after giving opportunity to all the eligible persons within the country, being the precedent, and having been not questioned by any person, is in consonance with Articles 14 and 16 of the Constitution of India. 23. The Rules framed under Section 35(1) of the IIT Act have legal force. The provisions under Section 35(3) of the IIT Act, which were laid down before the Parliament, are mandatory or directory, is not required to be decided at this stage, though in this connection, one may rely on the decisions of the Supreme Court in the case of "Atlas Cycle Industries Ltd. vs. State of Haryana", reported in 1979 (2) SCC 196, "Bharat Hari Singhania vs. C.W.T.", reported in 1994 Supp. (3) SCC 46, "Veneet Agrawal vs. Union of India", reported in 2007 (13) SCC 116 and "J.K.Industries Ltd. vs. Union of India" reported in 2007 (13) SCC 673. 24. In fact, similar matter fell for consideration before a Division Bench of this Court when appointment of one Dr.R.Natarajan as Director of IIT-M, was challenged in Writ Petition No.12128 of 1998. A Division Bench of this Court, by its order, dated 14.2.2000, held as follows in paragraphs 19 and 22: "19. Though the submission of the learned counsel appearing for the petitioner that the appointment of the 1st 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 1st 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 https://hcservices.ecourts.gov.in/hcservices/ approval had been obtained from the Visitor. So, the said submission of the learned counsel that the appointment of the 1st respondent to the post of Director, without following the procedures contemplated under the Act, cannot be sustained, cannot be countenanced." "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 by 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." 25. So far as the age of Dr.M.S.Ananth is concerned, who is stated to be 62 years at the relevant point of time, such observations made by the learned single Judge are unwarranted, as from the Circular, dated 6.2.2007, it indicates that the preference will be given to the candidates of certain age, but age bar has not been prescribed therein for appointment to the post of Director of IIT. 26. Certain other observations made by the learned single Judge with regard to the purchase of stamp paper, are uncalled for, as this Court under Article 226 of the Constitution of India, cannot give finding of facts to come to a conclusion as to whether it was signed on one or other date, nor any opinion can be framed on the basis of surmises and conjectures by attributing motive on the part of any individual. If a stamp paper is purchased in advance for the purpose of regular official work, that cannot be a ground to annul the appointment on mere surmises and conjectures. 27. There are certain other observations, which appear to have been made by the learned single Judge at paragraph 41 of the impugned order, wherein, it was observed that the post of Director had been https://hcservices.ecourts.gov.in/hcservices/ kept warmed up for Dr.M.S.Ananth, to occupy, which are also uncalled for. 28. In the present case, as we find that a full deliberation was made by the competent Selection Committee, the Council and other authorities, and approval made from the Ministry of Human Resources Development through its Education Department, we find no illegality in the matter of appointment of Dr.M.S.Ananth. 29. In view of our observations as above, we have no other option except to set aside the impugned order passed by the learned single Judge, which is accordingly set aside. The Writ Appeals are allowed. No costs. The Miscellaneous Petitions are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar cs To The Secretary,Union of India, Higher Education, Ministry of Human Resources Development, Government of India, New Delhi-110 001. + 1 cc to Mr.Dr.E.Muralidharan,Party in Person,SR.33240 + 1 cc to Mr.K.Elango,A.S.G.,SR.33328 Writ Appeal Nos.32 to 34 & 73 of 2009 CK(CO) EM/28.7.09 https://hcservices.ecourts.gov.in/hcservices/