--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 10992 / 2005 Dr. SHIVPAL SINGH EHLAWAT Vs. THE STATE OF M.P. * * * * * [ O R D E R ] ( 6/1/2011) The petitioner before this court has filed this present petition being aggrieved by the Notification dt. 30/8/2010 issued by the State Government in exercise of the powers conferred under sub-Section (1) of Section 52 of the M P Vishva Vidyalaya Adhiniyam, 1973. The contention of the petitioner is that he was appointed as a Vice Chancellor of Vikram Vishwavidyalaya, Ujjain by an order dt. 31/1/09 as per the provisions of Sec. 13 of the M P Vishva Vidyalaya Adhiniyam, 1973. The petitioner has further stated that he has submitted his joining as a Vice Chancellor on 18/2/09 and the tenure provided under the M P Vishva Vidyalaya Adhiniyam, 1973 is 4 years and a person is entitled to continue as a Vice Chancellor for a maximum period of 8 --- 2 --- years meaning thereby for two tenure of 4 years. The petitioner has further stated that on the basis of some complaint, an action was initiated by the State Government and a Notification has been issued on 30/8/10 u/S. 52 of the M P Vishva Vidyalaya Adhiniyam, 1973 meaning thereby discontinuing the petitioner as a Vice Chancellor. Petitioner has raised various grounds while assailing the notification issued by the State Government dt. 30/8/10. The first ground argued by the learned sr. counsel is that the petitioner could not have been removed as a Vice Chancellor without following the prescribed procedure as prescribed u/S. 14 of the M P Vishva Vidyalaya Adhiniyam, 1973. He has vehemently argued before this court that in case there were complaints against the Vice Chancellor, the only procedure prescribed under the M P Vishva Vidyalaya Adhiniyam, 1973 is u/S. 14 and a Vice Chancellor can be removed after granting proper opportunity of hearing to him in the matter. Learned sr. counsel has placed reliance upon a judgment delivered by this Court in the case of Prof. Narendra Kumar Gouraha Vs. State of MP & ors., (AIR 1999 MP 122). The --- 3 --- petitioner has also raised a ground that no reasons have been assigned in the impugned Notification and absence of any reason in the impugned Notification, vitiates the Notification itself and the same deserves to be quashed. The petitioner has also raised a ground of violation of principles of natural justice and fair play. It has been argued that the Notification dt. 30/8/10 involves civil consequences and removal of the petitioner is in fact, a stigmatic act and such a stigma could not have been casted upon the petitioner without granting an opportunity of hearing to the petitioner. It has also been stated that the Notification dt. 30/8/10 is not based upon any cogent material, it is based upon vague assertions and therefore the same deserves to be quashed. It has also been argued that the Notification dt. 30/8/10 has been issued in the name of the Governor of the State of M.P. and the same should have been issued by the Chancellor of Vikram University and therefore the same is bad in law. Petitioner has also raised a ground that Sec. 52 of the M P Vishva Vidyalaya Adhiniyam, 1973 is pari-materia to the provisions of Article 356 of the Constitution of India which --- 4 --- empowers the President of India to impose President Rule in case of an emergent situation and in the present case such a drastic action has been taken without there being any substance against the Vice Chancellor (petitioner). The petitioner has also raised a ground that the impugned Notification dt. 30/8/10 has not been issued after taking a decision in the Council of Ministers and therefore the same is bad in law. Petitioner has prayed for quashing of impugned Notification dt. 30/8/2010 and his continuance till he completes his tenure of 4 years as a Vice Chancellor. 2. A reply has been filed by the State Government and the contention of the State Government is that the Notification dt. 30/8/10 has been issued by the State Government in exercise of the powers conferred u/S. 52(1) of the M P Vishva Vidyalaya Adhiniyam, 1973 for the reasons specified in the said Notification in terms of the provisions of Sec. 52(1) of the M P Vishva Vidyalaya Adhiniyam, 1973. The respondents have stated that there were various complaints in the matter of functioning of the University including law and order problem, groupism, --- 5 --- gherao, strikes, non-cooperation between the Vice Chancellor and the Registrar and the administrative machinery of the University has failed to work in accordance with law with the provisions of the M P Vishva Vidyalaya Adhiniyam, 1973 and therefore a report was obtained from the Commissioner, Ujjain Division, Ujjain, as well as from the Colletor, Ujjain Distt. It has been further stated that a decision was taken by the Minister of Higher Education Department on the basis of reports received and on the basis of various complaints received, under Rules of Business framed by His Excellency the Governor of M.P. under Article 166 (3) of the Constitution of India (in terms of Sec. 52 (D) on 19/8/10) and was approved by the Chief Minister in coordination on 28/8/10. It has been further stated that the impugned Notification was signed by the Dy. Secretary of the Higher Education Department under rules of authentication made by His Excellency the Governor of M.P. Under Article 166(2) of the Constitution of India and an order was issued in the name of Governor under Article 166 (2). The respondents have also stated that by virtue of --- 6 --- issuance of Notification dt. 30/8/10 the provisions of Ss. 13, 14, 20 to 25, 40, 47, 48, 54 and 67 of the M P Vishva Vidyalaya Adhiniyam, 1973 have been suspended and the provisions of Sec. 13, 14, 20 to 25, 40, 47, 48, 54 and 67 as modified and specified in IIIrd Schedule of the said Adhiniyam have been made applicable to the University from the appointed date ie., w.e.f. 30/8/10. It has also been argued before this Court that the petitioner has not been removed from the post of Vice Chancellor, in fact, by virtue of the Notification dt. 30/8/10 he ceases to be a Vice Chancellor automatically. Learned sr. counsel has placed reliance upon a judgment delivered by the apex court in the case of Dr. Umrao Singh Choudhary Vs. State of MP and another 1994 (4) SCC 328 as well as upon a judgment delivered by this Court in the case of Dr. Bharat Chhaparwal Vs. The State of MP & 3 Ors., WP (S) 2267 / 2004. The respondent State has produced the original record before this court in a sealed cover which includes the material on the basis of which the State Government has formed an opinion to issue the impugned Notification dt. 30/8/10. --- 7 --- 3. Heard learned counsel for the parties at length and perused the record. 4. In the present case, it is an admitted fact that the petitioner was appointed as a Vice Chancellor of the University vide order dt. 31/1/09. The impugned Notification has been issued under sub-Section (1) of Sec. 52 of the M P Vishva Vidyalaya Adhiniyam, 1973. The original record reveals that there were large number of complaints in the matter of functioning of the University including law and order problem, groupism, gherao, strikes, non-cooperation between the Vice Chancellor and the Registrar and based upon the complaints a report was obtained from the Commissioner, Ujjain Division, Ujjain as well as from the Collector. A decision was taken by the Minister, Higher Education Department on the basis of complaints and report received under Rules of Business framed by His Excellency the Governor of MP under Article 166 (3) of the Constitution of India on 19/8/10 and the same was approved by the Chief Minister in coordination on 28/8/10. Merely because the Notification has been signed by --- 8 --- the Dy. Secretary, Higher Education Department, it does not mean that a decision has been taken by the Dy. Secretary, Higher Education Department. The Dy. Secretary of Higher Education Department under the Rules of Authentication made by His Excellency the Governor of MP, under Article 166 (2) of the Constitution of India has issued an order in the name of the Governor and therefore the argument canvassed by the learned counsel is of no help to the petitioner. The power has been rightly exercised keeping in view the record which was placed before this Court and the provisions of Ss. 13, 14, 20 to 25, 40, 47, 48, 54 and 64 have been suspended and the modified and specified provisions as per Schedule III of the Adhiniyam have been made applicable to the University from the appointed date ie., w.e.f. 30/8/2010. The question of grant of opportunity of personal hearing to the Vice Chancellor in the present case does not arise as action has not been initiated under Section 14 of the M P Vishva Vidyalaya Adhiniyam, 1973. This Court in the case of Dr. Bharat Chhaparwal Vs. The State of MP & ors., (WP (S) NO. 2267 / 2004) has dealt with a --- 9 --- similar controversy and this Court in para 11 to 18 has held as under : 11. Though a preliminary objection was taken with regard to territorial jurisdiction of this Court as the matter was entertained and the matter has been argued on merits, I think it condign to deal with the matter on merits rather than dwell upon the territorial jurisdiction. To appreciate the assertions by the parties and the rivalised submissions canvassed by the learned counsel, it is essential to certain relevant provisions of the Act. Section 10 of the Act deals with 'Inspection of University and College'. The said provision reads as under : “10. Inspection of University and College : (1) The Kuladhipati may, on his own motion, and shall on a request made by the State Government cause an inspection to be made by such person or persons as he may direct, of the University, its buildings, laboratories, museums workshops and equipments and of any College or Institution maintained by the University or admitted to its privileges and also of the Examination, teaching and other work conducted or done by the University and cause an enquiry to be made in like manner in respect of any mater connected with the administration or finances of the University, Colleges or institutions. (2) The Kuladhipati shall, in every case, give notice of his intention --- 10 --- to cause an inspection or inquiry to be made- (a) to the University, if such inspection or inquiry is to be made in respect of the University, College or institution maintained by it; (b) to the management of the College or institution of the inspection or inquiry is to be made in respect of a college or institution admitted to the privileges of the University, and the University or management, as the case may be, shall be entitled to appoint a representative who shall have to right to be present and be heard at such inspection or inquiry. (3) Such person shall report to the Kuladhipati the result of such inspection or Inquiry and the Kuladhipati shall communicate through the Kulpati to the Executive Council or the said management, as the case may be, his views with reference to the result of such inspection or inquiry and shall after ascertaining the opinion of the Executive Council or the management thereon advise the University or the management upon the action to be taken. Provided that where an inspection or inquiry is caused on a request from the State Government the Kuladhipati shall take action under this sub-section in consultation with State Government. (4) The Executive Council or the management as the case may be, shall communicate through the Kulpati to the Kuladhipati such action, if any, as it has taken or may propose to take --- 11 --- upon the result of such inspection or enquiry and suchreport shall be submitted within such time as the Kuladhipati may direct. Section 10-A which has been inserted by Amendment No. 8/1998 reads as under : “10-A : Enquiry against the Kulpati, Rector or Registrar under the Madhya Pradesh Lokayukt Evem Up- Lokayukt Adhiniyam, 1981 - (1) Notwithstanding anything contained in Section 10, the Kuladhipati may refer to the Lokayukt or Up-Lokayukt for enquiry, any complaint or allegation against Kulpati, Rector or Registrar. (2) On receiving the report of the Lokayukt or Up-Lokayukt, pursuant to the provisions of sub- section (1) or otherwise, the Kuladhipati may, in his discretion, take action without following the procedure laid down in sub-sections (3), (4) and (5) of Sectio 10, but in accordance with other relevant provisions of the Adhiniyam and the rules or statutes made thereunder.” 12. Section 13 provides with regard to appointment of Kulpati. The said provision stipulates that Kulpati shall be appointed by Kuladhipati from a panel of not less than three persons recommended by the Committee constituted under sub-section (2) or sub-section (6). Section 14 of the Act deals with 'Emoluments and conditions of service of Kulpati, terms of office of and vacancy in the office of Kulpati'. It is seemly to reproduce the said --- 12 --- provision : “14. Emoluments and Conditions of service of Kulpati, terms of office of and vacancy in the office of Kulpati :- (1) The Kulpati shall be a whole time salaried officer of the University and his emoluments and other terms and conditions of service shall be prescribed by the Statutes. (2) The Kulpati shall hold office for a term of four years and shall not be eligible for appointment for more than two terms. Provided that notwithstanding the expiry of his term he shall continue to hold office until his successor is appointed and enters upon his office but this period shall not in any case exceed six months. (2-A) The person holding office of the Kulpati in any university immediately before the commencement of the Madhya Pradesh Vishwavidyalaya (Sansodhan) Adhiniyam, 1988, shall continue to hold his office till the expiry of his term of office notwithstanding anything contained in the first proviso to sub-sectio (2). (3) If at any time upon representation made or otherwise and after making such enquiries as may be deemed necessary, it appears to the Kuladhipati that the Kulpati- (i) has made default in performing any duty imposed on him, by or under this Act, or (ii) has acted in a manner prejudicially to the interests of the University; or --- 13 --- (iii) is incapable for managing the affairs of the University the Kuladhipati may, notwithstanding the fact that the terms of office of the Kulpati has not expired by an order in writing stating the reasons therein, require the Kulpati to relinquish his office as from such date as may be specified in the order. (4) No order under sub-section (3) shall be passed unless the particulars of the grounds on which such action is proposed to be taken are communicated to the Kulpati and he is given a reasonable opportunity of showing cause against the proposed order. (5) As from the date specified in the order under sub-section (3), the Kulpati shall be deemed to have relinquish the office and the office of the Kulpati shall fall vacant. (6) In the event of the occurrence of any vacancy including a temporary vacancy in the office of the Kulpati by reason of his death, resignation, leave, illness or otherwise, the rector and if no rector has been appointed or if the rector is not available, the Dean of any faculty or the senior most Professor of University teaching department nominated by the Kuladhipati for that purpose shall act as the Kulpati until the date on which the Kulpati appointed under sub- section (1) or sub-section (7) of Section 13, enters or re-enters, as the case may be, upon his office. Provided that the arrangement contemplated in this sub-section shall --- 14 --- not continue for a period of more than six months. 13. Section 15 of the Act deals with 'powers and duties of Kulpati'. Section 52 which is very essential for the present purpose reads a under : “52. Power of the State Government to apply Act in modified form with a view to provide for better administration of University in certain circumstances :- (1) If the State Government on receipt of a report or otherwise, satisfied that a situation has arisen in which the administration of the University cannot be carried out in accordance with the provisions of the Act, without detriment to the interests of the University, and it is expedient in the interest of the University so to do, it may by notification, for reason to be mentioned therein, direct that the provisions of Sections 13, 15, 20 to 25, 40, 47, 48, 54 and 68 shall, as from the date specified in the notification (hereinafter in this Section referred to as the appointed date), apply to the University subject to the modifications specified to the Third Schedule. (2) The notification issued under sub-section (1) (hereinafter referred to as the notification) shall remain in operation for a period of one year from the appointed date and the State Government may, from time to time, extend the period by such further period as it may think fit so however that the total period of operation of the notification does not exceed three years : --- 15 --- (3) The Kuladhipati shall simultaneously with the issue of the notification appoint the Kulpati under Sections 13 and 14 as modified and the Kulpati so appointed shall hold office during the period of operation of the notifications : Provided that the Kulpati may, notwithstanding the expiration of the period of operation of the notification, continue to hold office thereafter until his successor enters upon office but this period shall not exceed one year. (4) As from the appointed date, the following consequences shall ensue namely :- (i) during the period of operation of the notification this Act shall affect subject to the modifications specified in the Third Schedule ; (ii) the Kulpati, holding office immediately before the appointed date, shall notwithstanding that his term of office has not expired, vacate his office; (iii) every person holding office as a member of the Court, the Executive Council of the Academic Council, as the case may be, immediately before the appointed date shall cease to hold that office; (iv) the student representatives of the University on the student consultative committee under clause (i) of sub-section (1) of Section 54 immediately before the appointed date shall cease to be members of the said committee; (v) until the Court, Executive Council or Academic Council, as the --- 16 --- case may be, is reconstituted in accordance with the provisions as modified, the Kulpati appointed under Section 13 and 14 as modified shall exercise the powers and perform the duties conferred or imposed by or under this Act, on the Court, the Executive Council or Academic Council; Provided that the Kuldhipati may, if he considers it necessary so to do, appoint a committee consisting of an eductionist, an administrative expert and a financila expert and a financial expert to assist the Kulpati so appointed in exercise of such powers and performance of such duties. (5) Before the expiration of the period of operation of the notification or immediately as early as practicable thereafter, the Kulpati shall take steps to constitute the Court, Executive Council and Academic Council in accordance with the provisions of the Act, as unmodified and the Court, Executive Council and Academic Council as so constituted shall begin to function on the date immediately following the date of expiry if the period of operation of the notification of the date on which the respective bodies are so constituted whichever is later; Provided that if the Court, Executive Council and Academic Council are not constituted before the expiration of the period of operation of the notification, the Kulpati shall on such expiration exercise the powers of each of these authorities subject to --- 17 --- prior approval of the Kulpati till the Court, Executive Council or Academic Council, as the case may be, is so constituted.” 14. The aforesaid provision came to be interpreted in the case of Dr. Umrao Singh Choudhary Vs. State of MP and another (1994) 4 SCC 328. In the aforesaid case the Apex Court expressed the view as under : "5. Obviously for this reason, to satisfy ourselves whether the notification is founded upon any record and whether the reasons given in support thereof, are relevant to the issue, the record was summoned, and has been made available to us. The note placed before the Governor also was placed. It is an elaborate note, pregnant with material details touching the maladministration of the University. From the record we have seen that the Government considered the above material and the Governor after due satisfaction had exercised the power under Section 52(1). Though the High Court held that the action under Section 52 is legislative action, it is obviously illegal in the light of the decision of this Court in S. R. Bommai v. Union of India (AIR 1994 SC 1918) wherein this Court considered the presidential proclamation under Article 356 and held that the action is not beyond the ken of judicial review. The action under Section 52 is only statutory action, but subject to judicial review. However, the Court would not sit in appeal over the opinion of the State Government. The statute gives --- 18 --- power to the State Government. The Governor exercised his power with the aid and advice of the Council of Ministers in issuing the notification under Section 52. Therefore, though it was a statutory notification, the condition precedent is that the satisfaction of the State Government i.e. the Governor, with the aid and advice of the Council of Ministers is of the situation mentioned in Section 52(1) and for reasons to be recorded therein, for better administration of the University, the State Government was satisfied that a situation had arisen in which the administration of the University could not be carried on in accordance with the provisions of the Adhinyam and for better administration whereof and to prevent the detriment to the interest of the University, the State Government issued the notification "for the reasons mentioned therein" and directed that the provisions mentioned therein under Sections 13 and 14 shall not apply. When those facts are present and the State Government were satisfied of the situation contemplated under Section 52(1), though the Court may differ from that formation of satisfaction when the Court is called upon in an appeal against the said satisfaction and may come to a different conclusion, we would not be justified to differ from the conclusion in our judicial review under Article 136 or of the High Court under Article 226 of the Constitution. Though the Academic Council etc., had been dissolved, the correctness --- 19 --- thereof is not the subject matter of this special leave petition. We are not called upon to enter into that question. Therefore, from the records we are satisfied that the State Government were justified in issuing the notification under section 52(1) of the Adhiniyam. 15. In the case of SR Bommai Vs. Union of India (AIR 1994 SC 1918) their Lordships have expressed the opinion that the Court can go only into the question of existence of material warranting the impugned action but it cannot advert as regards to sufficiency or insufficiency of the same. 16. In the case of Narendra Kumar (supra) in paragraphs 24 and 28 expressed the view as under