The power of appointing Chairpersons of Centres/Special Centres is expressly conferred upon the Executive Council and not the Vice-Chancellor under the JNU Act, 1966: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26.10.2021 LPA 390 2021 & CM No.37701 2021 Through : Mr. Abhik Chimni Mr. Govind Manoharan Mr. Lakshay Garg and Mr. Shashwat Mehra Advs. Appellant JAWAHARLAL NEHRU UNIVERSITY THROUGH REGISTRAR & ANR. HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH Through: Ms. Monika Arora Standing Counsel with Mr. Shriram Tiwary Adv. for JNU. ..... Respondents ATUL SOOD RAJIV SHAKDHER J.Issue notice to the respondents. Court hearing convened via video conferencing on account of COVID 19] 1.1. Ms. Monika Arora learned standing counsel who appears on advance notice on behalf of the respondents in effect Jawaharlal Nehru University 1.2. Ms. Arora says that she does not wish to file a reply in the matter and would argue the matter based on the record which is presently available before JNU) accepts notice. the Court. Thus with the consent of the learned counsel for the parties the appeal is taken up for hearing and final disposal at this stage itself. This appeal is directed against an interlocutory order dated 28.09.2021 passed by the learned single judge. 3.1. The appellant is aggrieved by the fact that the learned single judge via the impugned order has declined to grant stay qua the appointment of nine LPA 390 2021 Digitally SignedBy:VIPIN KUMAR RAISigning Date:31.10.202120:46:27Signature Not Verified professors who were appointed as Chairpersons of various Centres Special Centres. 3.2. The record shows that the appointments were made by respondent no.2 i.e. the Vice Chancellor of JNU. 3.3. Mr. Abhik Chimni who appears on behalf of the appellant says that the exercise of power by respondent no.2 is in complete violation of Statute 18(2)(c)(I) of the Statutes of the University under the JNU Act 196611 SCC 42. “38. The Statute and the Ordinance postulate that an order of termination of services could be passed only by the Executive Council and that too in the event two third of the members were present and voted in support thereof. Therefore the Vice Chancellor had no say in the matter. He was merely a member of the Executive Council. He thus could not have initiated any proceeding and imposed any punishment on the respondent. 46. As the initial order passed by the Vice Chancellor was wholly without jurisdiction the same was a nullity and thus the purported approval thereof by the Executive Council would not cure the defect.” LPA 390 2021 Digitally SignedBy:VIPIN KUMAR RAISigning Date:31.10.202120:46:27Signature Not Verified 4. On the other hand Ms. Arora says that respondent no.2 had exercised the power conferred on him under Statute 4(5) of the Statutes of the University. It is Ms. Arora s contention that since from time to time the Centres require appointment of Chairperson(s) the power is exercised by the Vice Chancellor which is thereafter ratified by the Executive Council. 4.2. Besides this Ms. Arora says that since nine appointees are already in place and as they have not been made parties to the present proceedings no interference is called for with the impugned order of the learned single judge. It is also Ms. Arora s contention that the learned single judge has indicated that he would examine the aspect as to whether the Vice Chancellor of JNU i.e. respondent no.2 could at all initiate the process of appointment of Chairpersons to various Centres Special Centres under the provisions of Statute 18(2)(c)(I) of the Statutes of the University. 5. We have heard the learned counsel for the parties and examined the record place before us. 5.1. The controversy in issue veers around the provisions of Statute 18(2)(c)(I) of the Statutes of the University which for the sake of convenience are extracted hereafter: 18. (c) Each Centre Department shall have a Chairperson who shall be appointed by the Executive Council from amongst the Professors Senior Fellows for a period of two years. Provided that where in any Centre Department there is only one Professor Senior Fellow the Executive Council may also appoint one of the Associate Professors Fellows the Chairman that respondent no.2 had exercised powers under Statute 4(5) of the Statute of the University. Pertinently the agenda item which was approved by the Executive Council in the 296th meeting referred to the exercise of power qua appointment under the provisions of Statute 18(2)(c)(I) of the Statutes of the University and not Statute 4(5): Item No.4 EC 02.09.2021 the powers To approve the action taken by the Vice Chancellor on the following matters of urgent nature in exercise of the powers conferred on him in terms of Statutes Ordinances. 4.1. Appointment of Chairperson of Centres Special Centres exercise of The Vice Chancellor in exercise of the powers vested in him under Statute 18(c)of the Statutes of the University has appointed the following faculty member of the University as Chairperson of the Centre Special Centre as per details given below:" terms of conferred on him 6.1. For the sake of convenience the provisions of Statute 4(5) are extracted 4.(5) If in the opinion of the Vice Chancellor any emergency has arisen which requires immediate action to be taken the Vice Chancellor shall take such action as he deems necessary and shall report the same for approval at the next meeting to the authority which in the ordinary course would have dealt with the matter Provided that if the action taken by the Vice Chancellor is not LPA 390 2021 Digitally SignedBy:VIPIN KUMAR RAISigning Date:31.10.202120:46:27Signature Not Verified approved by the authority concerned he may refer the matter to the Visitor whose decision thereon shall be final Provided further that where any such action taken by the Vice Chancellor affects any person in the service of the University such person shall be entitled to prefer within thirty days from the date on which he receives notice of such action an appeal to the Executive 6.2. A bare reading of the abovementioned extract would show that the Vice Chancellor can exercise the powers where immediate action is required on account of emergent situation which then is reported to the concerned authority i.e. authority which would have dealt with matter in the ordinary course] for obtaining its approval. To be noted in the instant case what is not in dispute is that the agenda for the 296th meeting of the Executive Council was circulated on 26.08.2021. The appellant had raised an objection qua the same on 30.07.2021. 7.1. The aforesaid letter of the appellant brought to fore the fact that the appointment of Chairperson of Centres Special Centres made by respondent no.2 by taking recourse to the provisions of Statute 18(2)(c)(I) of the Statutes of the University was flawed. 7.2. Therefore prima facie the respondents were put to notice that the course on which they were proceeding was perhaps not the correct course. Despite this respondent no.2 it appears went on to appoint the Chairpersons of the concerned Centres Special Centres. As a matter of fact Mr. Chimni has brought to fore another aspect which is that after the impugned order was passed on 28.09.2021 respondent no.2 has gone ahead and appointed another person i.e. one Professor Indrani Mukherjee as Chairperson of Centre of Spanish Portuguese Italian and Latin American Studies School of Language Literature & Cultural Studies on LPA 390 2021 Digitally SignedBy:VIPIN KUMAR RAISigning Date:31.10.202120:46:27Signature Not Verified 08.10.2021 with immediate effect for two years in place of Professor Mazhar Asif. This time around as well respondent no. 2 made the appointment albeit in exercise of emergency powers vested in him under Statute 4(5) of the Statutes of the University. It may be relevant to indicate that since this event as noticed above occurred after the passing of the impugned order therefore the relevant document was placed on record with an application supported by an affidavit. Although the contents of document dated 08.10.2021 were not disputed Ms Arora did say that the appointment was made in a particular backdrop. In this regard reference was made to the order dated 15.02.2021 passed in W.P.(C.) No.1879 2021. This aspect is referred to in resolution no. 4 of the agenda item no. 3 framed for the 295th meeting of the Executive Council. 8.2. A close perusal of paragraphs 5 and 6 of the order dated 15.02.2021would show that it was the contention of Ms. Arora as well as the direction of the Court1 that the appointment of the Chairperson would be made by the Executive Council. Therefore for respondent no. 2 to have exercised the power qua appointment does not align with the direction contained in the order dated 15.02.2021. Given the aforesaid position we are prima facie of the view that 1 “5. On the other hand Ms.Monika Arora learned counsel for the respondent No.1 University would submit that the office order itself depicts that the respondent No.3 has been made Acting Chairperson of the Centre for Spanish Portuguese Italian & Latin Americans Studies. School of Language Literature and Culture Studies till further orders only to tie over a situation till such time a decision is taken by the Executive Council within four weeks for appointing a regular Chairperson. In other words his appointment as an Acting Chairperson is a temporary one. 6. Noting the orders passed by this Court the petition is disposed of by directing that the respondent No.3 shall hold the post of Acting Chairperson till such time the Executive Council meets and takes a decision on the appointment of the Chairperson of the Centre for Spanish Portuguese Italian & Latin Americans Studies School of Language Literature and Culture Studies only to facilitate the meeting and in the capacity of Acting Chairperson no substantive decision shall be taken by him which would affect the functioning of the Centre be it apropos the academic syllabus faculty of personnel to be appointed retained and or the technology to be engaged etc.” LPA 390 2021 Digitally SignedBy:VIPIN KUMAR RAISigning Date:31.10.202120:46:27Signature Not Verified respondent no.2 is not vested with the power to appoint Chairpersons of Centres Special Centres. The Statute confers the power of appointment on the Executive Council. Thus clearly the appointment of Chairpersons of Centres Special Centres by respondent no.2 is as is evident at this stage prima facie without authority. 9.1. The argument advanced by Ms Arora that the impugned action cannot interdicted because the appointment was made in an emergent situation which was then ratified by the Executive Council seems tenuous at this stage. In this context observations made by the Supreme Court in the judgement rendered in the case of Marathwada University v. Seshrao Balwant Rao Chavan 3 SCC 132 being apposite are extracted hereafter: 25. By this resolution we are told that the Executive Council has ratified the action taken by the Vice Chancellor. Ratification is generally an act of principal with regard to a contract or an act done by his agent. In Friedman s Law of AgencyChapter 5 at p. 73 the principle of ratification has been explained: “What the „agent‟ does on behalf of the „principal‟ is done at a time when the relation of principal and agent does not exist:at p. 39 it is stated: “Every act whether lawful or unlawful which is capable of being done by means of an agent is capable of ratification by the person in whose name or on whose behalf it is done.... The words „lawful or unlawful‟ however are included primarily to indicate that the doctrine can apply to torts. From them it would follow that a principal by ratification may retrospectively turn LPA 390 2021 Digitally SignedBy:VIPIN KUMAR RAISigning Date:31.10.202120:46:27Signature Not Verified what was previously an act wrongful against the principle e.g. an unauthorised sale or against a third party e.g. a wrongful distress into a legitimate one or become liable for the tort of another by ratifying.” 27. These principles of ratification apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified." 10. However we are cognizant of the fact that the Centres Special Centres need Chairpersons for effective functioning. 10.1. Having regard to the aforesaid the learned single judge is requested to advance the hearing in the writ petition. The writ petition will be listed before the learned single judge for directions on 10.11.2021. 10.2. Pending decision in the writ petition the nineChairpersons who have been appointed and whose names are set out in Annexure P21 of the case file i.e. Minutes of the 296th meeting of the Executive Council will not take any major decisions including functions relating to convening of selection committees and or carrying out selection(s) concerning the Centres special 11. The appeal is thus allowed to the extent indicated above. 12. Needless to add that the views expressed by us are only prima facie and therefore the learned single judge will decide the writ petition on merits after hearing both sides. 13. Consequently pending application shall also stand closed. 14. The case papers shall stand consigned to record. RAJIV SHAKDHER J TALWANT SINGH J OCTOBER 26 2021 aj Click here to check corrigendum if any LPA 390 2021 Digitally SignedBy:VIPIN KUMAR RAISigning Date:31.10.202120:46:27Signature Not Verified 

Summary: Vice-Chancellor is not vested with the power to appoint Chairpersons of Centres/Special Centres. The Statute confers the power of appointment on the Executive Council. Thus, clearly the appointment of Chairpersons of Centres/Special Centres by vice-chancellor as is evident at this stage, prima facie, without authority as held by the Hon’ble High Court of Delhi through a learned bench of Justice Rajiv Shakdher and Justice Talwant Singh in the case of Atul Sood Vs Jawaharlal Nehru University Through Registrar &amp; Anr [LPA 390/2021 &amp; CM No.37701/2021] Briefly stated the facts are that an appeal was directed against an interlocutory order dated 28.09.2021, passed by the learned single judge. The appellant was aggrieved by the fact that, the learned single judge, via the impugned order, has declined to grant stay qua the appointment of nine professors, who were appointed as Chairpersons of various Centres/Special Centres. The record shows that, the appointments were made by respondent no.2, i.e., the Vice-Chancellor of JNU. Mr. Abhik Chimni, who appears on behalf of the appellant, says that, the exercise of power by respondent no.2 is in complete violation of Statute 18(2)(c)(I) of the Statutes of the University, under the JNU Act, 1966. In support of his contention, Mr. Chimni has relied upon the following observations made in the judgement of the Supreme Court rendered in the case of V.C. Banaras Hindu University &amp; Ors. v. Shrikant, (2006) 11 SCC 42. On the other hand, Ms. Arora, learned counsel for the respondent, says that, respondent no.2 had exercised the power conferred on him, under Statute 4(5) of the Statutes of the University. It is Ms. Arora’s contention that, since, from time to time, the Centres require appointment of Chairperson(s), the power is exercised by the Vice Chancellor [in this case, respondent no.2], which is, thereafter, ratified by the Executive Council. The Hon’ble High Court after a perusal of the provisions of Statute 18(2)(c)(I) of the Statutes of the University, observed that he power of appointment qua Chairpersons of Centres/Special Centres is expressly conferred upon the Executive Council, and not respondent no.2. In conclusion, after perusing the provisions of Statute 4(5), it was stated by the Hon’ble Court that “A bare reading of the abovementioned extract would show that the ViceChancellor can exercise the powers, where immediate action is required on account of emergent situation, which then is reported to the concerned authority [i.e. authority which would have dealt with matter in the ordinary course] for obtaining its approval.”