IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.05.2005 CORAM: THE HONOURABLE MR.JUSTICE K.P.SIVASUBRAMANIAM W.P. No.30499 of 2004 Dr.R.Natarajan .. Petitioner versus 1. Prof.Arun Nigavekar Chairman University Grants Commission Bahaduras Zafar Marg New Delhi-110 002. 2. The Secretary to Government Ministry of Human Resources Development Department of Secondary and Higher Education Union of India New Delhi. 3. The Secretary to Government Ministry of Law, Justice and Company Affairs, Union of India New Delhi. .. Respondents ----- PRAYER: Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of Quo Warranto to direct the first respondent to show cause by what authority the first respondent claims to have, use and enjoy and perform the duties, privileges of the office of the Chairman of University Grants Commission. For petitioner : Mr.K.Chandru, Senior Advocate for Mr.A.Suresh For 1st respondent : Mr.K.M.Vijayan Senior Counsel for Mr.A.Sasidaran https://hcservices.ecourts.gov.in/hcservices/ For respondents-2 & 3 : Mr.Gopalasubramaniam Senior Counsel Assisted by Mr.N.Murali Kumaran A.C.G.S.C. ----- ORDER The petitioner prays for a writ of Quo Warranto to direct the first respondent to show cause by what authority the first respondent/the Chairman of the University Grants Commission claims to have, use and enjoy and perform the duties, privileges of the said office. 2. The petitioner holds a doctoral degree in Bio Chemistry granted by the Texas A & M University, U.S.A. He was qualified to be appointed as the Chairman of the University Grants Commission (U.G.C.). According to him, the first respondent was ineligible to hold the post of Chairman of the U.G.C. and his appointment was in gross violation of the statutory provisions. According to the petitioner, the post was to fall vacant on 6.4.2002 in view of the retirement of the then incumbent. The petitioner understands that on 14.3.2002, a Search Committee consisting of Shri.Venkat Subramaniam, Member, Planning Commission, Shri.R.A.Mashelkar, DG CSIR and Dr.G.C.Pande, Chairman, Indian Institute of Administrative Service (IIAS) was constituted for the purpose of recommending persons from whom one would be appointed as the Chairman of U.G.C. The Search Committee recommended the names of the first respondent who was the then Vice-Chairman and Dr.V.N.R.Rajasekar Pillai together with the name of Prof.H.P.Dikshit. In the communication on 6.4.2002, the Chairman is said to have consulted the then Law Minister and had told him that there was no bar for appointing the first respondent as the Chairman, but he cannot be given the full term of five years and that he can be given only a term of 3½ years, after deducting his term of incumbency as the Vice Chairman. It is further stated that on 10.4.2002, the Joint Secretary, Higher Education, had sought for certain clarifications regarding the qualification of the first respondent before it was sent to the Appointments Committee of the Cabinet for approval. Finally, by notification dated 16.7.2002, the first respondent was appointed as the Chairman of the U.G.C. 3. According to the petitioner, the office of Chairman of U.G.C. was a public office created under the statute and that the first respondent had usurped the post as he was not legally qualified to hold or to remain any further. The appointment of the https://hcservices.ecourts.gov.in/hcservices/ first respondent was a clear infringement of the statutory provisions. It is further stated that every day, the first respondent was performing his act as Chairman was a fresh cause of action, giving rise to issuance of a writ of Quo Warranto. 4. In the counter affidavit filed by the first respondent, it is stated that he is a well-known Physicist and renowned educationist with forty years of experience and he has made several innovative contributions to higher education. He was holding the post of Member of the University Grants Commission from 31.5.1992 to 30.5.1992 and he was appointed as Vice Chairman for a term of three years from 28.9.2000. However, he did not hold for a full term and by order dated 16.7.2002, he was appointed as Chairman of the U.G.C. He would further submit that before the completion of term as Vice Chairman the post of Chairman fell vacant due to the superannuation of the then Chairman and accordingly, the Central Government, in exercise of the power conferred under Section 5(1) of the Act, had duly appointed the respondent. The period of service rendered by him from out of his incomplete term as Vice Chairman has been deducted from the prescribed term of five years so as to conclude his tenure as Chairman by 27.9.2005. 5. The first respondent also contends that the writ petitioner lakhs bona fides and the second respondent Union Government have acquiesced in the appointment of the petitioner for nearly three years and with only about five months to go, the present writ petition has been filed. The petitioner has no locus standi to challenge the appointment of the first respondent. The petitioner is not qualified and he has not been a Vice Chancellor of any University. 6. It is further stated that the petitioner has filed the petition after a lapse of long period of the tenure of the respondent. A writ of Quo Warranto may be refused for undue delay. The writ petition filed at Chennai at a very belated stage highlights the lack of bona fides. The petition being a vexatious one, was liable to be dismissed. The respondent further contends that his appointment was only in compliance with Section 6(1)(b) of the Act. The proviso to the said provision entitles the petitioner to hold the office of the Chairman for a term of five years or until he attains the age of sixty five years, whichever is earlier. The second proviso to Section 6(1) only provides that if a person has already held the post for two terms, then he shall not be appointed to the post of Chairman, Vice Chairman or member. Only a person who has held the office for two full terms will not be eligible for being appointed as Chairman. 7. It is further stated that the appointment is made only after due approval of the Appointments Committee at the highest level. https://hcservices.ecourts.gov.in/hcservices/ The Ministry of Law had given its opinion regarding the appointment of the respondent. It is further stated that the writ petition has been filed with mala fide intention and the petitioner had reproduced various Government notings and had annexed documents in the petition which are part of confidential records of the second respondent. The petitioner cannot have any access to such official documents which are confidential in nature. There is no disqualification as alleged by the petitioner. 8. It is further stated that a writ of Quo Warranto is not to be issued in a case where the petition has been filed after laches and with mala fide intention on the part of the petitioner. 9. In the counter affidavit filed by respondents-2 and 3, it is stated that the purpose of the affidavit was to place on record the perception of the respondents with reference to the appointment of the first respondent and advisedly to refrain from commenting on the sufficiency of the locus standi of the petitioner or the reproduction of various Governmental notings and that the present affidavit was being filed only with a view to assist the Court. 10. On the attainment of superannuation of the then incumbent, on 6.4.2002, the Ministry of Human Resources Development commenced the process of appointing a new Chairman in or about March, 2002. A Search Committee was appointed and they had recommended the names of the first respondent, Prof.V.N.Rajasekaran Pillai and Prof.H.P.Dixit. 11. On 6.4.2002, the Chairperson of the Search committee, forwarded the panel and it was clarified that if the first respondent was selected to be appointed, then his term of office should be fixed as per Section 6 of the U.G.C. Act. The Chairman of the Committee in a letter to the then Hon'ble Minister for Human Resource Development had proceeded on the basis of the informal consultations with the then Hon'ble Law Minister who had indicated that as per the University Grants Commission Act, there was no impediment in appointing the first respondent as Chairman, but the term cannot be given for full five years and he could be offered only a term of 3½ years. The first respondent was appointed as the Member from 31.5.1992 to 30.5.1995. Later, he was appointed as Vice Chairman with effect from 28.9.2000. He was later appointed as Chairman on 16.7.2002 till 27.9.2005 or until he attains the age of 65 years, whichever was earlier. It is further stated that the records indicate that there were some reservations expressed by the Establishment Officer on 14.6.2002 regarding the qualifications of https://hcservices.ecourts.gov.in/hcservices/ the first respondent. Another officer of the Ministry had suggested on 17.6.2002 that the opinion of the Department of Legal Affairs may be obtained. However, the suggestion was not acted upon, in view of the fact that the views of the Hon'ble Law Minister had already been obtained, as reflected in the letter of of Dr.Venkatasubramaniam. 12. In the counter affidavit, it is further stated that the answering respondent was advised to refrain from making any comment on the academic credentials or the suitability of the first respondent. It is further stated that the second proviso disables any person who has held the office for two terms from holding any further appointment as Chairman. The first respondent had held office for two terms and as such, the appointment of the first respondent was not in accordance with Section 6 of the Act. The respondents have further stated that the appointment was not in conformity with law only on the analysis of the records available as well as statutory interpretation of Section 6. 13. Mr.K.Chandru, learned senior counsel for the petitioner, after referring to the service particulars of the first respondent, contends that the first respondent having served for one term as a Member and another term as Vice Chairman was disentitled to be appointed as Chairman in terms of second proviso to Section 6(1) of the Act. The illegality in the appointment was tacitly conceded in the counter affidavit by respondents-2 and 3 and it was evident, the appointment was made only on the interference and the opinion rendered by the then Law Minister. Therefore, the petitioner being an usurper to the post, cannot continue to hold the post. 14. Mr.Gopalasubramanian, learned senior counsel appearing for respondents-2 and 3, contended that at the time of the proposal, doubts had been raised regarding the qualifications of the first respondent to be appointed. But the issue was raised and dealt with at the highest level and decided that there was nothing wrong in appointing the first respondent as the Chairman for the remaining period of his term as Vice Chancellor. To my specific question as to whether the then Minister for Law had issued any specific order, direction or communication, learned senior counsel had fairly stated that there was no such order or letter and the only information is the letter of the Chairman of the Search Committee stating that he had consulted the Law Minister. Learned senior counsel had left the entire file to the Court and would state that they would abide by the directions of the Court. 15. Mr.K.M.Vijayan, learned senior counsel appearing for the first respondent, contended that the writ petition was liable to be dismissed on grounds of lack of locus standi and due to laches. The petition was also vitiated by mala fides. Learned senior counsel contends that the petitioner has not been able to clearly state as https://hcservices.ecourts.gov.in/hcservices/ to how he had any locus standi and as to how he was aggrieved. Though the appointment had been made as early as 16.7.2002, the writ petition has been filed only on 14.10.2004. It is not as though the petitioner did not have knowledge of the appointment. Various facts pleaded in the affidavit and produced and reference to internal correspondence would clearly establish collusion between the Government and the petitioner. Such an attitude on the part of the Government merely because there was a change of Government with another ruling party cannot be entertained. 16. Learned senior counsel refers to the judgment of the Supreme Court in DR.M.S.MUDHOL Vs. S.D.HALEGKAR ((1993) 3 SCC 591). In that case, though the Supreme Court found that there was infraction of the statutory rule, it was held that it was not necessary to go into the question as to whether a writ of Quo Warranto would lie, considering that the incumbent had been discharging his functions continuously for over a long period of nine years. 17. In A.H.SHASHTRI Vs. STATE OF PUNJAB ((1988 (Supp) SCC 127), the Supreme Court, on a writ for Quo Warranto, went into the issue as to whether the writ petition had been filed for malicious reasons and is the outcome of malice and if so, no writ can be issued. 18. Reference was also made to another judgment of the Supreme Court in STATESMAN (PRIVATE) LTD. Vs. H.R.DEB & OTHERS (1968 (3) SCR 614). On facts, it was held that even if there was some doubt it is to be resolved in favour of upholding the appointment. For the purpose of a writ of Quo Warranto, it was held that at least in an unclear case, the intent of the legislature is entitled to greater weight and that the High Court, in a Quo Warranto proceeding, should be slow to pronounce upon the matter unless there is a clear infringement of the law. 19. On the strength of of the above decisions, learned senior counsel would contend that even assuming that two interpretations were possible, the one in favour of the appointment should be accepted. On merits also, learned counsel states that there was absolutely no basis for the interpretation of the petitioner. The expression "term" should be construed only as a full term and not a half term or part of the term. Though reference is made to the term of office it could only mean the entire period of term. Holding the office for a truncated period can never be said to be holding the office for the full term. Therefore, the interpretation placed on the word "term" by the petitioner was not correct. 20. It is further stated that the issue had arisen for the first time and even if it is found that two interpretations are possible, some latitude has to be given to the interpretation placed https://hcservices.ecourts.gov.in/hcservices/ by the authorities in a bona fide manner. In this context, reference is made to the maxim "contemporanea expositio", which would be applicable and the interpretation placed by the authorities should be generally accepted. 21. In this context, reference is made to the judgment of the Supreme Court in UNION OF INDIA AND ANOTHER Vs. AZADI BACHAO ANDOLAN AND ANOTHER (JT 2003 (Suppl.2) SC 205). Therefore, the services of the first respondent cannot be interrupted only on the basis of a possible interpretation contrary to the interpretation adopted by the appointing authority. The first respondent was to retire from office in the month of September, 2005 and no interference was called for. 22. In reply, Mr.K.Chandru, learned senior counsel, contends that none of the objections relating to the maintainability of the writ petition can be sustained. There was no question of any collusion or delay. The writ petition was filed more than a year after the present Government had taken over. The writ petition was filed only after the facts came to the knowledge of the petitioner. There can be no confidentiality in the matter of appointments to high posts and the Government was required to properly justify the appointment in terms of law instead of raising technical objections and confidentiality of the communications. 23. Learned senior counsel referred to several judgments in the context of the objection relating to laches and locus standi which would be dealt with subsequently. Learned senior counsel also dealt with the meaning of the word "term" by referring to THE LAW LEXICON, which defines the word as including a part of the term. In the same context, reference was also made to the judgment of a Division Bench of the Orissa High Court in MADAN MOHAN PANI Vs. STATE OF ORISSA (AIR 1971 Orissa 283). The Division Bench held that the word "term" would include part of the term and any construction to the contrary would lead to absurd results. 24. I have considered the submissions of both sides and I am unable to sustain any of the objections regarding maintainability either on the ground of locus standi or laches. 25. On the issue of locus standi, apart from the fact that the petitioner claims to be qualified to be appointed as Chairman of U.G.C., even assuming for discussion that he is not qualified to be appointed as Chairman, he is certainly entitled to question the appointments to high constitutional or statutory posts as a member of public or as a tax payer. The post of Chairman, U.G.C. commands lot of public interest, importance and concern and any member of the public can voice concern that a person appointed to such a high post is not qualified to be appointed and that he is an usurper. In https://hcservices.ecourts.gov.in/hcservices/ SIVARAMAKRISHNAN V. ARUMUGHA MUDALIAR (AIR 1957 Madras 17), a Division Bench of this Court held that the Court has a right to investigate the matter and decide on the validity of the appointment notwithstanding that the petitioner is not a rival applicant to the office or that he does not have a personal interest. 26. In G.D.KARKARE Vs. T.L.SHEVDE (AIR 1952 Nagpur 330), a Division Bench of the Nagpur High Court held that in a proceeding for a writ of Quo Warranto, the applicant does not seek to enforce any right of his own as such, nor does he complain of any non- performance of duty towards him and that what is in question is the right of the respondent to hold the office. 27. In KASHINATH Vs. STATE OF BOMBAY (AIR 1954 Bombay 41), Chief Justice Chagla, on behalf of the Division Bench, held that the duty of the Court as soon as its attention is drawn to the fact that a person who is not qualified is holding a public office, is to declare that he is not entitled to that office and to prevent him from acting as such. 28. I am also unable to sustain the objection relating to laches. The petitioner has stated that as soon as the facts relating to the appointment of the first respondent came to his knowledge, he had filed the writ petition. In a writ of Quo Warranto, the question of laches assumes lesser significance when considered along with the issue of desirability of allowing an usurper to continue in office when he is not qualified. 29. In BAIJ NATH Vs. STATE OF U.P. (AIR 1965 Allahabad 151), a single Judge of the Allahabad High Court held that there can be no question of delay in a writ of Quo Warranto in which the right of a person to function in a capacity is challenged and that every day that person so acts, gives rise to a fresh cause of action. 30. In S.C.MALIK Vs. P.P.SHARMA (AIR 1982 Delhi 83), a Division Bench of the Delhi High Court took the same view and expressed that the delay in filing a petition would not make the appointment valid. 31. In KASHINATH G.JALMI Vs. THE SPEAKER (AIR 1993 SC 1873), the Supreme Court rejected the objections to a writ of Quo Warranto on the ground of delay and lack of bona fides and held as follows: "33. In our opinion the exercise of discretion by the Court even where the application is delayed is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of https://hcservices.ecourts.gov.in/hcservices/ usurpation of office or perpetuation of an illegality. 34. We may also advert to a related aspect. Learned counsel for the respondents were unable to dispute that any other member of the public, to whom the oblique motives and conduct alleged against the appellants in the present case could not be attributed could file such a writ petition even now for the same relief, since the alleged usurpation of the office is continuing, and this disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. The motive or conduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself. " (emphasis supplied). 32. For the same reasons, as stated by the Supreme Court as underlined above, the contentions raised by the respondents that the writ petition is the result of mala fides or collusion with the present Government need not be gone into, apart from the fact that such allegations are not made out as discussed below. What is important to be considered is whether the first respondent is an usurper and whether his continuance in the post is desirable or not. 33. Now, coming to the merits of the writ petition, namely, whether the first respondent is qualified or not, it is necessary to extract Section 6(1) of the The University Grants Commission Act, 1956, which is as follows: "6. Terms and conditions of service of members.-- (1) A person appointed as Chairman, Vice- Chairman or other member after the commencement of the University Grants Commission (Amendment) Act 1985 shall, unless he sooner becomes disqualified for continuing as such under the rules that may be made under this Act, -- (a) in the case of Chairman, hold office for a https://hcservices.ecourts.gov.in/hcservices/ term of five years or until he attains the age of sixty-five years, whichever is earlier. (b) in the case of Vice-Chairman, hold office for a term of three years or until he attains the age of sixty-five years, whichever is earlier; (c) in the case of any other member, hold office for a term of three years: Provided that -- (i) a person who has held office as Chairman or Vice-Chairman shall be eligible for further appointment as Chairman, Vice-Chairman or other member; and (ii) a person who has held office as any other member shall be eligible for further appointment as Chairman, Vice- Chairman or other member: provided further that a person who has held office for two terms, in any capacity, whether as Chairman, Vice-Chairman or other member excluding a member referred to in clause (a) of sub-section (3) of section 5, shall not be eligible for any further appointment as Chairman, Vice-Chairman or other member. " 34. It is the second proviso which is relevant for consideration. The words "two terms" in any capacity would mean and refer to the individual holding the post either as a Member or as a Vice Chairman or both. It is not the contention of even the first respondent that the expression "two terms" would mean two terms separately as Member and further two terms as Vice Chairman. 35. But what is contended on behalf of the first respondent is that the word "term" should necessarily mean full term and not part of the term. In other words, the proviso would apply and disqualify only a person who had held two full terms/period of the post held by him. I