1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2236 OF 2010 Dr.Prabhakar J. Lavakare Age 75 years, Occ. Scientist & Academician, Residing at : 19, Khagol Society, 38/1, Panchavati, Pashan, Pune – 411 008 ....Petitioner Versus 1. The State of Maharashtra, (Summons to be served on the learned Government Pleader appearing for State of Maharashtra under Order XXVII, Rule 4, of the Code of Civil Procedure, 1908) 2. The Honourable Chancellor, University of Pune. 3. University of Pune, Ganesh Khind Road, Pune - 411 007. 4. Dr.R.K. Shevgaonkar, Age : Adult, Occ. : Teacher, Being working as present as the Honourable Vice Chancellor of University of Pune Ganesh Khind Road, Pune – 411 007. (Being Deputy Director IIT Mumbai and VC Designate for U.P. ....Respondents Mr.A.V. Anturkar with Mr.S.B. Deshmukh for the Petitioner. Mr.Ravi M. Kadam, Advocate General with Mr.S.R. Nargolkar, G.P. for Respondent Nos.1& 2. Mr.V.A. Thorat, Senior Counsel with Mr.G.S. Kulkarni and Mr.P.J. Thorat i/b Mrs.M.G.Kulkarni for Respondent Nos. 3 & 4. 2 CORAM : A.M. KHANWILKAR AND R.M. SAVANT, JJ. JUDGMENT RESERVED ON: 9TH APRIL, 2010 JUDGMENT PRONOUNCED ON: 21ST APRIL, 2010 JUDGMENT (PER A.M. KHANWILKAR, J.) :- 1. Heard counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr. Nargolkar waives notice for Respondent Nos.1 and 2. Mrs. Kulkarni waives notice for Respondent Nos. 3 and 4. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. By this Writ Petition under Article 226 of the Constitution of India, the Petitioner prays for issuance of writ of quo-warranto and/or mandamus to quash and set-aside the appointment of Respondent No.4 as Vice-Chancellor of Respondent No.3 – University of Pune (hereinafter referred to as “ the University” for the sake of brevity). 5. Briefly stated, on account of the resignation of the then Vice- Chancellor Dr.Narendra Jadhav, the post of Vice-Chancellor of the University of Pune had fallen vacant on 16.6.2009. The Governor of Maharashtra and the Chancellor of University of Pune accordingly 3 constituted a Search Committee as contemplated by Section 12(1)(a) of the Maharashtra Universities Act, 1994 (hereinafter referred to as “ the said Act, 1994” for the sake of brevity). The Search Committee consisted of men of repute and learning in their field, namely, (1) Justice B.N. Srikrishna, Retired Judge, Supreme Court of India, (2) Professor Sanjay G. Dhande, Director, Indian Institute of Technology, Kanpur, (3) Mr.J.S. Saharia, Principal Secretary to the Government, Higher and Technical Education Department, Government of Maharashtra. The said Search Committee after due scrutiny of the Resume of the nominees, considered the credentials of all the 115 applicants/nominees, who had applied/were recommended for the appointment to the post of Vice-Chancellor of the University. Out of the said 115 applicants/nominees, the Search Committee short listed 16 persons who, according to them, were eligible for consideration. The said 16 short listed candidates were invited for personal interaction based on their Vision Statements and Action Plans. 6. The Search Committee thereafter submitted its recommendations to the Governor, State of Maharashtra and the Chancellor of the University, with a panel of 5 names, for consideration. It appears that the Search Committee submitted its detailed right up on the suitability of each of the five persons, whose names were included in the panel. The appointment of Respondent No.4 came to be made upon considering the relevant credentials of the five nominees included in the said panel, as he was found more suitable to be appointed as the Vice- Chancellor of the University. It is this order of appointment, which is the 4 subject matter of challenge in the present Writ Petition. 7. According to the Petitioner, the Respondent No.4 does not possess requisite essential qualifications and experience as envisaged in the Order issued by the State Government, in exercise of the powers conferred by clause (d) of sub-section (3A) of Section 12 of the said Act and all other powers enabling it, in that behalf, in consultation with the Chancellor. At the out-set, counsel appearing for the Petitioner in all fairness mentioned that the challenge to question the appointment of Respondent No.4 was mainly on the ground that Respondent No.4 does not possess “essential qualifications and experience” as set out in Part “A” of the order dated 27.5.2009 (hereinafter referred to as “ the order” for the sake of brevity). In addition, it was contended that Respondent No.4 even did not possess the “desirable experience” as set out in Part “B”. Besides, it was argued that the other candidates, who possessed essential qualifications and experience, as set out in Part “A” of the said order, also possessed desirable experience as set out in Parts “B” and “C” of the said order, have been overlooked. 8. The Joint Secretary to the Governor of Maharashtra has filed reply affidavit on behalf of Respondent No.2, sworn on 31.3.2010. By this affidavit, plea taken by the Petitioner is not only countered, but it is also asserted that Respondent No.4 came to be appointed as he possessed the essential qualifications and experience and was most suitable candidate amongst the five recommended nominees by the Search Committee. This 5 reply affidavit highlights the qualifications, education and experience of Respondent No.4. On that basis it is asserted that Respondent No.4 was eligible for being considered to be appointed as Vice-Chancellor of the University. Even Respondent No.4 has filed separate reply affidavit, sworn on 31.3.2010, countering the grounds of challenge in the Writ Petition and also asserting that he possessed all requisite qualifications and experience for being considered to be appointed to the post of Vice- Chancellor of the University. 9. Before we proceed further, we would think it apposite to advert to the resume of Respondent No.4, which was considered by the Search Committee. The said resume provides information regarding the qualifications and experience possessed by Respondent No.4, which reads thus :- “Permanent Address Department of Electrical Engineering I.I.T., Bombay, Mumbai – 400 076 INDIA Education 1985 Doctor of Philosophy (Ph.D.) in Electrical Engineering from I.T.T., Bombay / Indian Institute of Astrophysics / Raman Research Institute, Bangalore on Maximum Entropy Restoration of Astronomical Images. 1977 Master of Technology (M.Tech) in Electrical Engineering from I.T.T., Kanpur with specialization in Electromagnetics and Optical Fibres. 1974 Bachelor of Engineering (BE) in Electronics Engineering 6 from Jiwaji University, Gwalior, Gold Medalist. 2007 Executive Development Program, Kellogg School of Management, Northwestern University, Chicago, USA. Research Interests Fiber Optic Communication, Photonics, Non-linear fiber optics, Electromagnetic Waves, Computational Electromagnetics, Antennas, Image Processing, Radio Astronomy. Academic Positions held: 1990-to date: Professor of Electrical Engineering at I.I.T. Bombay, Job : Teaching and Research in Photonics, Fiber Optics, Image processing, Printed antennas, Optically controller devices. 2009: Visiting Professor, Institute Superior de Electronics de Paris, France. 2005: Visiting Professor, High Frequency Institute, ETH, Zurich, Switzerland. 2000-2001: Visiting Professor, Computer and Electronics Engineering, University of Nebraska, Lincoln, USA (on Sabbatical leave) Job: Teaching and research in Telecommunications. 1987-1990: Assistant Professor at Department of Electrical Engineering, I.I.T., Bombay. Job : Research in Image processing and Photonics. 1986-1987: Faculty Research Associate at University of Maryland, College Park, U.S.A. Job: Solar and Stellar radio astronomy with the VLA. 1985-1986: Reader at Indian Institute of Astrophysics, Bangalore Job: Study of Galactic radio sources at decametre 7 wavelength. Image processing of radio images to correct for atomospheric distortion. 1982-1984: Faculty Research Associate at University of Maryland, U.S.A. Job : Microwave radio astronomy with Very Large Array, New Mexico. 1978-1982: Electronics engineer at Indian Institute of Astrophysics/Raman Research Institute, Bangalore, Job : Design, Installation of a large Decametre array usef for radio astronomy at Gauribidnur, India. Administrative Positions held : 2008-to date: Deputy Director (Finance And External Affairs, IIT Bombay 2005-2008: Dean, Resource Mobilization, IIT, Bombay. 2005-2006: Registrar, IIT, Bombay. 1998-2000: Dean of Students’ Affairs, Indian Institute of Technology, Bombay. 2003-2005: Head, Department of Electrical Engineering, IIT, Bombay. 2002-2006: Founder Head, Centre for Distance Engineering Education Programme (CDEEP), IIT, Bombay. The Centee has been setup to generate and disseminate the video and web lectures from experts in IIT to the students of engineering colleges in the country using multi-media technology. 1995-1998: Chairman, Hostel Coordination Unit, Indian Institute of Technology, Bombay. 1992-1995: Warden, Hostel 4, Indian Institute of Technology, Bombay. 8 1989-1992: Assoc. Warden, Hostel 4, Indian Institute of Technology, Bombay. Major Academic Awards and Distinctions: (1) IETE-CEOT-94 Award for outstanding contribution in the field of Photonics. (2) Fellow Indian National Academy of Engineering (3) Fellow National Academy of Science, India (4) Fellow Institute of Electronics and Telecommunication Engineers (5) Fellow Optical Society of India (6) `Excellence in Teaching Award’ IIT, Bombay 2004. (7) Programme Chair for International Conference Photonics 2002. (8) Advisor, Sixth International Infrastructure Business Summit and Expo, TELECOM India 2004. (9) Senior Member IEEE since 1992. (10) Member International Astronomical Union. (11) Member Astronomical Society of India (12) Hon.Editor IETE Special Issue on `Next Generation Networks’ 2008. (13) Editor IETE Jouornal of Education. (14) Member of Technical Programme Committees for many International and National conferences. (15) Graduate Fellow University of Nebraska, Lincoln, USA. Major Academic Achievements: Contribution made in wide areas like Radio Astronomy and Antennas, Fiber Optic Communication, Image processing, and Distance Engineering Education. A text book on `Electromagnetic waves’ and a monograph on `Transmission lines’ published by McGraw Hill Education India. 9 Design and development of a large Decameter Wave Radio Telescope in India. Establishing a Centre for distance learning at IIT Bombay. Development of Image processing and data analysis software for low frequency radio astronomy. Study of the Sun microwave observations using the largest radio telescope, the Very Large Array at New Mexico. Modeling and reconstruction of othe 3-D structure of solar active regions and solar flares, and estimation of the solar parameters. Study of flare stars to establish non-thermal radiation during non-flaring periods. Development of Maximum Entropy Image restoration algorithm for polarized images of the Sun obtained with phase unstable aperture synthesis data. Establishing an advanced Fiber Optic laboratory at IIT Bombay. Development of generalized frame work for designing various types of optical fibers like the ultra-low dispersions fibers, dispersions compensating fibers, large effective area fibers etc. Innovative idea of optically controlled semiconductor antennas and study of optically controlled microwave devices. Innovative use of deconvolution algorithm for detection of straight lines in a digital image. Books : 1. “Electromagnetic Waves”, Published by Tata McGraw Hill, 2005. An Undergraduate text book for Electronics and 10 Telecommunication Engineering students. 2. “Transmission Lines” Ed. With V. Ramchandran and K. Shankar, IETE Publication, Tata McGraw Hill 1998. A reference book. E-material : 1. “Electomagnetiv Waves and Transmission Lines”, Video Lectures, NPTEL, MHRD, Govt. of India. (Available on Youtube) 2. “Fiber Optic Communication”, Video Lectures for a full PG course. 3. “Electromagnetic Waves and Transmission Lines”, Interactive Web course for UG programme, NPTEL, MHRD, Govt. of India. 4. “Fiber Optic Communiction” interactivie Web course for UG/PG programme, NPTEL, MHRD, Govt. of India. Paper published in Professional Journals and Proceedings: More than 130 papers published in the areas of Fiber optics, Radio Astronomy, Antennas, Image processing etc. (list attached). Thesis/Dissertations guided : (List attached) Ph.D. 13+4 in progress M.Tech 41 B.Tech >50 M.Sc. 2 Short term courses conducted under Continuing Education Progam: (a) Fibre optic communication and Photonics(5 days)Four times (b) Image processing (5 days) (c) Antennas (3 days) (d) Satellite communication (3 days) (e) Telematics (5 days)Two times 11 (f) Computational Electromagnetics (5 days) (g) Electromagnetic Wages (5 days)Three times (h) Many invited talks in short term courses on Antennas, Image processing, Finer optic communication, Electromagnetics, etc. Sponsored Projects handled : (a) National Project for Technology Enhanced Learning (NPTEL- II and III), under the MHRD. (b) National Project for Technology Enhanced Learning (NPTEL- I), under MHRD. (c) Fibre optic communication by Ministry of Human Research Development, India. (d) MIC Tapered slot antenna under Defence Science and Technology Research, India. (e) Fibre optic communication and photonic switching Ministry of Human Research Development, India. (f) VLSI designing of picture processing unit for DTV under Department of Electronics, India. (g) Wavelength Division Multiplexed fibre optic links under All India Council of Technical Education, India. (h) Optically controlled Semiconductor Antenna under Department of Electronics, Govt. of India. Consultancy Projects : Academic: Setting up Fiber Optics Laboratory at IIT, Mumbai. Development of a 20 min. video program on fibre optics for UGC. Continuing Education Program. Development of educational software to effectively demonstrate the concepts of Electromagnetic Waves. Development of grahical package to bring out concepts of fibre optic communication more effectively. Development of CAD for Microwave Amplifier Design. Development of Beam Propagation software for non-linear pulse propogation in a fiber. FEM program for analyzing dispersion characteristics of a fiber with arbitrary refractive index profile. 12 Administrative : Member, ICT mission project of MHRD. National Principal Coordinator for developing e-learning material for entire curriculum in Electronics and Telecommunication Engineering. Member, AICTE committee for revision of NBA norms according to the Washington Accord. Member of Accreditation team to NITs. Expert Member, Selection Committees of DTE, Mumbai University. Expert Member, IITs, NITs, DA-IICT, Gujarat University. Member, Academic Board, College of Engineering, Pune. Member, Academic Committee for ExTC, College of Engineering, Pune. Member, Advisory Board, VJTI, Mumbai. Member, Academic Council, Babasaheb Ambedkar Technical University, Lonere. Member, Senate of SGGS College of Engineering, Nanded. Member, Advisory Council, KJ Somaiya College, Mumbai University. External Expert, Department of Technical Education, Maharashtra. Member, Research Advisory Committees, SAMEER, Bombay. Member, Board of Studies, University of Goa. Served as Member of Departmental Under Graduate Committee, Department of Electrical Engineering, IIT, Bombay. Served as Member of Under Graduate Programme Committee of IIT, Bombay. Served as external expert for DRDO, RAC over a period of 1991-1994. Served as external expert for Goa, Public Service Commission. Served as external expert for State Bank of India, Bombay. Served as examiner in GATE and other IIT’s and Universities. Member of Scientific Advisory Committee SAMEER, Mumbai. External Expert for Indian Space Research Organization, 13 Bangalore. Extracurricular Activities: Music : Bachelor of Music degree in Hindustani Classical music (Sitar) from Kheragadh University. Hindi Poem Writing, Painting etc.” 10. Besides the educational qualifications and experience referred to in the resume, in reply affidavit, Respondent No.4 has asserted that, he has received various awards and honors and have also performed various academic activities. Further, 13 students were registered under him, who have been awarded Ph.D and 4 students of Ph.D. are undertaking their research under his guideship. He has stated that he has also guided 35 students of M.Tech. and written books and published various papers in the subject of his specialization. 11. Further, the reply filed on behalf of Respondent No.2 relies on letter dated 24.3.2010 sent by the Director of Indian Institute of Technology, Bombay to the Governor, Maharashtra State, which reads thus :- “No.AO/Staff/O-968/2010 24th March, 2010 Sub:- Administrative Positions held by Prof. R.K. Shevgaonkar at IIT Bomnbay. Respected Sir, 14 With reference to an enquiry from your Office on the above subject, I am to inform you that Prof. Shegaonkar joined this institute as Assistant Professor on 18th December 1987 and subsequently he was appointed as Professor w.e.f. 6th November 1990 int he Department of Electrical Engineering. Prof. Shevgaonkar has held the following administrative positions at a level Head of the Department and above at the Institute (the administrative positions are by rotation normally for a period of three years). – Dean (Student Affairs) w.e.f. 26.2.1998 to 10.8.2000 – Head, Department of Electrical Engineering w.e.f. 18.12.2003 to 21.11.2005. – Dean (Resource Mobilization) w.e.f. 25.10.2005 to 03.09.2008. – Dy. Director (Finance & External Affairs) w.e.f. 4.9.2008 till date. With warm regards, Yours sincerely, Sd/- [D.V. Khakhar)” This communication gives information regarding the administrative experience of Respondent No.4. 12. Significantly, the above details furnished by Respondent Nos.2 and 4, as the case may be, with regard to the educational qualifications and working experience of Respondent No.4, the correctness thereof has not been put in issue before us. The argument is that taking the said information as it is, Respondent No.4 does not possess the essential qualifications and experience as envisaged in the said order dated 15 27.5.2009. In the circumstances, we have to straightway turn to the provisions in the Act of 1994, which governs the subject of eligibility for appointment to the post of Vice-Chancellor. Prior to March, 2009, unamended Section 12 of the Act of 1994 dealt with the subject of appointment of Vice-Chancellor. However, having noticed the short comings in the said provision, the Governor of Maharashtra issued an Ordinance dated 24.3.2009, amongst other, so as to amend Section 12 of the Act of 1994. It is not in dispute that this amended Section 12 as per the said Ordinance, has lateron become the Act passed by the State Legislature. Section 12 as amended, which is relevant to examine the point in issue raised before us, reads thus : “12.(1). The Vice-Chancellor shall be appointed by the Chancellor in the manner stated hereunder ;- (a) There shall be a Committee consisting of the following members to recommend suitable names to the Chancellor for appointment of Vice-Chancellor, namely :- (i) a member nominated by the Chancellor, who shall be the retired Judge of the Supreme Court or retired Chief Justice of a High Court or an eminent scientist of national repute or a recipient of Padma Award in the field of education ; (ii) the Principal Secretary of Higher and Technical Education Department or any officer not below the rank of Principal Secretary to Government nominated by the State Government ; (iii) the Director or Head of an institute or organisation of national repute, such as, Indian Institute of Technology, Indian Institute of Management, Indian Institute of Science, Indian Space Research Organisation or National Research Laboratory, nominated by the Management Council and the Academic Council, jointly, in the manner specified by the State Government by an order published in the Official Gazette ; 16 (b) The member nominated by the Chancellor shall be the Chairman of the Committee ; (c) The members nominated shall be the persons who are not connected with the University or any college or any recognised institution of the University ; (d) No meeting of the Committee shall be held unless all the three members of the Committee are present.” (b) for sub-section (3), the following the sub- sections shall be substituted, namely ;- “(3) The Committee shall recommend a panel of not less than five suitable persons for the consideration of the Chancellor for being appointed as the Vice-Chancellor. The names so recommended shall be in alphabetical order without any preference being indicated. The report shall be accompanied by a detailed write up on suitability of each person included in the panel. (3A) A person recommended by the Committee for appointment as a Vice-Chancellor shall , - (a) be an eminent academician or an administrator of high caliber ; (b) be able to provide leadership by his own example ; (c) be able to provide vision and have ability to translate the same into reality in the interest of students and society ; and (d) possess such educational qualifications and experience as may be specified by the State Government, by an order published in the Official Gazette, in consultation with the Chancellor. (3B) The eligibility conditions and the process for recommendation of names for appointment as Vice-Chancellor shall be given wide publicity to ensure the recommendation of most suitable candidates.” “ 17 Clauses (a) to (c) of sub-Section (3A) defines the broad qualities to be possessed by the person to be appointed as Vice- Chancellor of the University. Sub-clause (d) thereof envisages that the person should possess such educational qualifications and experience, as may be specified by the State Government, by an order published in the Official Gazette, in consultation with the Chancellor. Sub-section (3B) contemplates that wide publicity should be given of eligibility conditions and process for recommendation of the names for appointment to the post of Vice-Chancellor of the University to ensure the recommendation of most suitable candidates. 13. In exercise of powers contained in Section 12(3A) (d) of the said Act, the State Government has issued an Order dated 27.5.2009, which was published in the Official Gazette providing for educational qualifications and experience, the same reads thus :- “HIGHER AND TECHNICAL EDUCATION DEPARTMENT Mantralaya, Mumbai 400-032, dated the 27th May 2009 ORDER MAHARASHTRA Universities ACT, 1994 - No.Rajabh-2009/(71/09)/VE-2. -- Whereas, the Vice-Chancellor of a University is the principal academic and executive officer of the University, and is responsible for development of the academic programmes and general administration of the University for ensuring efficiency and good order of the University; And whereas, the Vice-Chancellor is required to ensure the highest level of education and encouraging good quality 18 research, collaborative arrangements, extension activities and appropriate technological and infrastructural resource base, etc. And whereas, the Vice-Chancellor is required to shape up the overall personality of the students in line with the National and Social priorities, And whereas, having regard to the position of the Vice- Chancellor as aforesaid, it is expedient to provide a person being appointed shall possess certain qualifications and experience ; Now, therefore, in exercise of the powers conferred by clause (d) of sub-section (3A)of section 12 of the Maharashtra Universities Act, 1994 (Mah.XXXV of 1994) ; and of all other powers enabling it in that, the Government of Maharashtra, in consultation with the Chancellor, hereby ; (1) specifies that the person being recommended by the Committee shall possess the essential qualifications and experience as set out in part “A” of the Scheduled appended hereto ; and may possess desirable experience, expected skill and competencies as set out in Part B and part C, respectively of the said Schedule ; (2) directs that the manner in which the application shall be submitted shall be such as set out in Part D of the said Schedule. Schedule PART ‘A’ Essential Qualification and Experience - (1) Earned Doctorate in any discipline and good academic record. (2) Experience in the field of Higher Education of at least 15 years in teaching and research in a University/well- established institution of repute and/or at the undergraduate and post-graduate level. (3) Minimum of five research publications in peer- reviewed/referred international research journals after Ph.D. and/or published quality books in a recognised discipline, referenced for study in higher education at the National/International level. (4) At least 5 years of administrative experience in the 19 field of Higher Education not below the rank of Professor and Head of the Department in a University/Principal in Professor’s Grade of a Senior College/Head of a national/international institution of Advanced Learning. (5) Execution of at least one major research project. (6) Experience of working with international bodies or international exposure through participation in workshops, seminars or conferences held outside the country. (7) Experience of organizing events such as workshops seminars, conference at an international level within the country in the field of higher education. (8) Demonstrated experience in leadership. PART “B” Desirable Experience - (1) Experience of working on the Statutory Authoritie3s of a University such as Board of Studies, Academic Council, Management Council or Executive Council of Board of Management, Senate, etc. ; (2) Demonstrable experience of handling Quality issues, assessment and accreditation procedures, etc. : (3) Experience to guide Ph.D. Students ; (4) Experience at the State or national or international level in handling youth development work such as organising student-centric activities for their all-round development and for providing them rich campus life as envisaged in the Maharashtra Universities Act. PART “C” Expected Skills and Competencies - (1) Technical Skills - (i) Openness towards technology and a deep conviction regarding its potential applications in a knowled- based settings ; (ii) Reasonably high level of comfort in the use of 20 technology ; (2) Managerial Skills - (i) Ability to anticipate issues and problems and prepare advance strategic plans ; (ii) Ability to generate resources and allocate the same appropriately ; (iii) Capacity to work effectively under pressure and manage work and resources within tight deadlines