Statutory rules, which are made under the provisions of any enactment and regulations, subject to parliamentary approval stand on entirely different footing. The administrative rules are always considered and have repeatedly been held to be rules of administrative practice merely, not rules of law and not delegated legislation and they have no statutory force. Mere description of such rules of administrative practice as “rules” does not make them to be statutory rules. Such administrative rules can be modified, amended or consolidated by the authorities without following any particular procedure.

HON’BLE THE CHIEF JUSTICE

 SRI PINAKI CHANDRA GHOSE

AND

HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

                                       

Writ Appeal Nos.1491, 1522 of 2012

and 13 of 2013, Writ Petition No.34156 of 2012

and PIL No.387 of 2012

11^th February, 2013

Writ Appeal No.1491 of 2012

Between:

Acharya N.G. Ranga Agricultural University,

Represented by its Registrar,

Hyderabad.                                                             … Appellant

And

M. Devender Reddy and others.                                … Respondents

                                                                        

HON’BLE THE CHIEF JUSTICE 

SRI PINAKI CHANDRA GHOSE

AND

HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

Writ Appeal Nos.1491, 1522 of 2012

and 13 of 2013, Writ Petition No.34156 of 2012

and PIL No.387 of 2012

JUDGMENT: (Per the Hon’ble the Chief Justice)

          In these cases, the issue that arises for consideration is with regard to the procedure to be adopted for appointment of Vice-Chancellor toAcharya N.G. Ranga Agricultural University, Hyderabad.  As such, all the cases were heard together and are disposed of by this common judgment. For the purpose of disposal of these cases, the facts in Writ Petition No.34156 of 2012 may be noticed and the parties herein are referred to as they are arrayed in the said writ petition.  With the consent of the parties, we have taken up Writ Petition No.34156 of 2012 also for hearing and disposal.

2.       Writ Petition No.34156 of 2012 has been filed for a writ of mandamus declaring the action of the Government of Andhra Pradesh and Acharya N.G. Ranga Agricultural University in not following the UGC Regulations 2010/ICAR Model Act for Agricultural Universities as adopted by the University and G.O.Ms.No.14, Higher Education (UE.II) Department, dated 20.2.2010 with regard to appointment of Vice-Chancellor to the University as arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India and for a direction to the Government and the University to make appointment of Vice-Chancellor in accordance with UGC Regulations 2010/ICAR Model Act.

3.       By the impugned order passed in WPMP.No.43447 of 2012 in Writ Petition No.34156 of 2012 respondent Nos.1 to 3, Government of Andhra Pradesh and the University, were directed to follow the procedure prescribed in G.O.Ms.No.14, dated 20.2.2010 for selecting and appointing a candidate as the Vice-Chancellor of Acharya N.G. Ranga Agricultural University, Hyderabad.  As against the said direction, while the Government filed Writ Appeal No.1522 of 2012, Acharya N.G. Ranga Agricultural University preferred Writ Appeal No.1491 of 2012.   Writ Appeal No.13 of 2013 has also been filed against the same order of the learned Single Judge by one Dr. A. Padma Raju seeking leave of this Court, as he is not a party to the writ petition.  PIL No.387 of 2012 has been filed by M. Govind Reddy, a retired Professor of the University, seeking a direction to the Government and the University to make appointment of Vice-Chancellor in accordance with UGC Regulations, ICAR Model Act and G.O.Ms.No.14, dated 20.2.2010.

4.       It is mainly contended in the writ appeals that unless Statue 4 of the First Statutes and Section 11 of the Andhra Pradesh Agricultural University Act, 1963 (for short, ‘the APAU Act’) are amended by the State Legislature, the University has to follow the procedure prescribed under the Act and the First Statutes framed thereunder for appointment of Vice-Chancellor and cannot follow the procedure prescribed in G.O.Ms.No.14, dated 20.2.2010.  

5.       Learned Advocate General representing the State and also the University contended that the appointment of Vice-Chancellor is made as per Section 11 of the APAU Act and the procedure prescribed under Statute 4 of the First Statutes made under sub-section (1) of Section 39 and these are not amended by the State Legislature and, therefore, the Government and the University are bound to follow the procedure as prescribed under the said provisions.  He submitted that the procedure prescribed under Section 11 of the APAU Act and Statute 4 of the First Statutes does not provide for appointment of a search committee and a notification inviting applications for appointment of Vice-Chancellor.  The procedure prescribed under the APAU Act cannot be said as non-transparent as contended by the petitioner as the Board of Management consists of very eminent people. He further submitted that Section 11 of the APAU Act and Statute 4 of the First Statutes govern the appointment of Vice-Chancellor and the UGC Regulations are not mandatory for the State Government and the University.  G.O.Ms.No.14 was mainly issued for implementation of the revised pay scales of the UGC and there is no reference to the Statutes of the University.  The amendment of the Statutes needs specific prior approval by the Government and then only the University has to amend the same.  Section 39 of the APAU Act stipulates the procedure for amending the statutes and without amending Statute 4 of the First Statutes as provided therein, the new procedure prescribed in G.O.Ms.No.14 cannot be followed. Therefore, the learned Single Judge could not have directed to follow the procedure prescribed in G.O.Ms.No.14 for appointment of Vice-Chancellor.   The learned Advocate General placed reliance on the judgment of the Supreme Court in Rajendra Agricultural University v. Ashok Kumar Prasad[1] to contend that when the APAU Act lays down the manner in which a statute should be made, it shall have to be made in that manner and no other.  He also relied on the judgment of the Supreme Court in B. Bharath Kumar v. Osmania University[2] and a judgment of this Court in Prof. B. Surya Prakash Rao v. Union of India[3] and another judgment of the Bombay High Court in Suresh Patilkhede of Thane v. The Chancellor Universities of Maharashtra[4] and submitted that the UGC Regulations, 2010 are not mandatory and are merely recommendatory in nature and they are not binding on the State Government.  The learned Advocate General also placed reliance on the judgment of the Supreme Court in Khandesh College Education Society, Jalgaon v. Arjun Hari Narkhede[5] and submitted that unless the First Statutes made under the APAU Act are modified or superseded, they continue to be in force.  He submitted that the University addressed a letter to the Government on 24.12.2010 proposing some changes to the APAU Act on par with the model Act of ICAR and requesting for Government’s approval and the same is pending consideration.

6.       Sri M. Ravindranath Reddy, learned counsel appearing for the appellant in Writ Appeal No.13 of 2013 (not a party to the writ petition) submitted that the writ petitioner having participated in the selection for appointment of Vice-Chancellor without protesting the procedure followed is now estopped from questioning the same after failing in the said selection.  In support of this, he placed reliance on the judgments of the Supreme Court in Madan Lal v. State of J & K[6] and Marripati Nagaraja v. Govt. of A.P.[7]   He submitted that the procedure laid down in the APAU Act has to be strictly followed and not the procedure which is yet to be incorporated in the said Act.   The UGC Regulations and the instructions contained in G.O.Ms.No.14 are in the nature of advice and the University being a statutory body need to take a decision to accept the same and it needs to be translated into an Act or a statute before giving effect to it.   When a procedure is laid down by law, the authority concerned is required to exercise power conferred on it in the manner prescribed by it and not otherwise and the selection procedure is to be completed in accordance with law as it stood at its commencement.  In this connection, he placed reliance on the judgment of the Supreme Court inP. Mahendran v. Matteesh Y. Annigeri[8].   Placing reliance on another judgment of the Supreme Court in K.A. Nagamani v. Indian Airlines[9], the learned counsel submitted that the rules/instructions contained in G.O.Ms.No.14 are considered as administrative rules and not rules of law and they have no statutory force.   He further submitted that the petitioner chose to file the writ petition without impleading his client as party respondent and approached this Hon’ble Court with unclean hands by suppressing the facts.   Thus, the writ petition is liable to be dismissed.

7.       Sri Gandra Mohan Rao, learned counsel for the petitioner reiterated the contentions raised before the Hon’ble Single Judge and submitted that the Government issued G.O.Ms.No.14 for implementation of the service conditions recommended by the University Grants Commission (UGC) within a timeframe by amending the statutes, ordinances, rules and regulations and this would amount to prior approval of the Government for modification of the First Statutes of the University, and the University also issued proceedings dated 2.3.2010 for implementing G.O.Ms.No.14, dated 20.2.2010, therefore, there could not have been any objection for following the new procedure for selecting a candidate for appointment as Vice-Chancellor.   The University also proposed necessary changes to the APAU Act on the lines of the model Act suggested by Indian Council of Agricultural  Research (ICAR) in the meeting of the Board of Management held on 1.12.2010 and, therefore, it was not open to the University to fall back on the old procedure prescribed under Statute 4 of the First Statutes.  Section 11 of the APAU Act or the First Statutes do not prescribe any procedure for selection of Vice-Chancellor.  In the absence of any procedure prescribed in the Act and the Statutes, there is nothing wrong in the direction of the Hon’ble Single Judge to follow the procedure prescribed in G.O.Ms.No.14, dated 20.2.2010, when the said G.O. was adopted by the University.   He submitted that executive instructions can supplement the rules which may not deal with every aspect of the matter and the law merely prohibits issuance of a direction which is not in consonance with the Act or the statutory rules.  In support of his contentions, the learned counsel placed reliance on the judgments of the Supreme Court in K.H. Siraj v. High Court of Kerala[10], NDMC v. Tanvi Trading & Credit (P) Ltd.[11] and Joint Action Committee of Air Line Pilots’ Assn. of India v. DG of Civil Aviation[12].

8.       Learned counsel further submitted that the Government constituted a committee to examine the issues relating to implementation of the revised pay scales of 2006 to the teaching staff of the universities and colleges and after examining the report of the said committee, suggestions of the Government of India and the UGC Regulations, the Government issued G.O.Ms.No.14, dated 20.2.2010.  Appendix to the said G.O. deals with pay scales and selection of Vice-Chancellor among other matters.  According to the procedure prescribed in the said G.O., the selection of Vice-Chancellor should be by a search committee by issuing a public notification and the search committee should prepare a panel of 3 to 5 names and the Chancellor is required to appoint Vice-Chancellor out of the said panel.  All the universities in the State adopted G.O.Ms.No.14 and it was adopted by the Board of Management of the University, and hence the First Statutes of the University are deemed to be amended by incorporation of the procedure relating to the selection of Vice-Chancellor.  The requirements of Section 39(2) of the APAU Act are complied with and no other procedure is prescribed in the said Act for giving effect to the amendments.  Since the First Statutes are deemed to be amended, the University is bound to follow the procedure of constitution of search committee etc. for selection of Vice-Chancellor.  The Board of Management of the University considered the revision of the APAU Act on par with the model Act for agricultural universities framed by the Indian Council of Agricultural Research and approved the changes in the APAU Act and, therefore, the UGC Regulations and the model Act are binding on the University and it cannot deviate from the same and the judgment of the Bombay High Court in Suresh Patilkhede’s case has no application to this case.  Further, the question of petitioner’s participation in the selection process does not arise as there was no interview or any test.  The new procedure ensures equality of opportunity to all eligible persons and eliminates favouritism and brings transparency to the selection process and such procedure is the constitutional mandate as held by the Supreme Court in State of Karnataka v. Umadevi (3)[13].

9.       Sri J. Ramachandra Rao, learned counsel appearing for the petitioner in PIL No.387 of 2012, raised almost similar contentions as raised by Sri Gandra Mohan Rao.    He submitted that the UGC Regulations and the model Act framed by ICAR prescribe the procedure for appointment of Vice-Chancellor and they are binding on the University.  However, the Government and University are not following the said procedure and appointing persons of their choice as Vice-Chancellor.  Any appointment to a post under the State must be within the constitutional scheme and rule of equality in public employment is a basic feature of the Constitution.  He, therefore, prayed for direction to the Government to give wide publicity through an advertisement inviting applications from eligible and meritorious candidates and to make appointment to the post of Vice-Chancellor.

10.     In view of the rival contentions, the question that arises for consideration is whether the University can follow the procedure stipulated under Statute 4 of the First Statutes made under the APAU Act or the procedure prescribed in G.O.Ms.No.14, dated 20.2.2010 for appointment of Vice-Chancellor of the University.

11.     Acharya N.G. Ranga Agricultural University, formerly known as Andhra Pradesh Agricultural University, was established under the Andhra Pradesh Agricultural University Act, 1963.  The University shall consist of a Chancellor, a Vice-Chancellor, a Board of Management and an Academic Council.  The appointment of Vice-Chancellor is governed by Section 11 of the APAU Act.   Section 20 of the said Act speaks about the powers and functions of the Board of Management.  Section 20(i) confers power on the Board of Management to determine and regulate all policies relating to the affairs of the University in accordance with the Act and the statutes.  Section 39 states as to how statutes are made.  Sub-section (1) of   Section 39 states that the First Statutes with regard to matters set out in clauses (a) to (m) of Section 38 namely, constitution, powers and duties of the authorities; powers, functions, duties and conditions of service of the officers etc., shall be made by the Government.  Sub-section (2) of Section 39, which is relevant for the purpose, reads thus:

“(2) subject to the prior approval of the Government, the Board may, from time to time, make any statute in addition to the first statutes referred to in sub-section (1), and may amend or repeal any statute in the manner hereinafter provided in this section.”

Sub-section (6) of Section 39 is as follows:

“(6) Every first statute made under sub-section (1) shall immediately after it is made, be laid before each House of the State Legislature if it is in session and if it is not in session in the session immediately following, for a total period of fourteen days which may be comprised in one session in which it is so laid or the session immediately following, both Houses agree in making any modification in the statute or in the annulment of the statute, the statute shall thereafter have effect only in such modified form or shall stand annulled, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under the statute.”

           

          A combined reading of the above extracted provisions makes it clear that the Board of Management of the University may amend or repeal any statute including First Statutes subject to prior approval of the Government, and any such modification in the statute shall have effect only when it is laid before each House of the State Legislature and on agreeing for such modification.   Therefore, in our opinion, the Hon’ble Single Judge was not correct in holding that the procedure set out in           Section 39(6) of the APAU Act has no application to the amendment or repeal of any existing statute of the University.   Merely because there was failure on the part of the Board of Management in taking steps for amendment of Statute 4 of the First Statutes within the time stipulated in G.O.Ms.No.14, dated 20.2.2010, it cannot be said that the procedure prescribed therein cannot be followed and the University must necessarily adopt the procedure stipulated in G.O.Ms.No.14.  It is true that the selection procedure for appointment of teachers stipulated in G.O.Ms.No.14 was adopted by the State Government and the University, however, we are of the view of that the said procedure cannot be followed for appointment of Vice-Chancellor as the same is governed by Section 11 of the APAU Act and Statute 4 of the First Statutes made thereunder and unless and until Statute 4 is amended as provided under Section 39(6), the same will govern the field. Clause 13 of G.O.Ms.No.14 says that the service conditions of teachers like recruitment and qualifications, selection procedure etc. shall be implemented by all universities by amending necessary statutes, ordinances, rules and regulations.  In our view, it is a general direction or advice to all the universities in the State and it cannot be termed as prior approval of the Government to amend the First Statutes of the University; the Board of Management has to follow the procedure stipulated in Section 39 of the APAU Act for making amendments to the statutes of the University. Thus, it is clear that unless and until the manner of appointment of Vice-Chancellor as prescribed in Statute 4 of the First Statutes is amended as provided in Section 39(6) of the APAU Act, the University has to follow the same.  

12.     It is now well settled that any guidelines which do not have any statutory flavour are merely advisory in nature. They cannot have the force of a statute. They are subservient to the legislative Act and the statutory rules. (See State of Haryana v. Mahender Singh[14], Maharao Sahib Shri Bhim Singhji v. Union of India[15], J.R. Raghupathy v. State of A.P.[16] and Narendra Kumar Maheshwari v. Union of India[17].  It is also well settled that instructions cannot be so framed or utilized as to override the provisions of law and such a method will destroy the very basis of the rule of law and strike at the very root of orderly administration of law (See Mannalal Jain v. State of Assam[18]).

13.     In this connection, it is apposite to quote the following observations from K.A. Nagamani v. Indian Airlines (supra):

“…………Mere administrative rules are not legislation of any kind. They are in the nature of statements of policy and the practice of government departments, statutory authorities, whether published or otherwise.  Statutory rules, which are made under the provisions of any enactment and regulations, subject to parliamentary approval stand on entirely different footing. The administrative rules are always considered and have repeatedly been held to be rules of administrative practice merely, not rules of law and not delegated legislation and they have no statutory force.  Mere description of such rules of administrative practice as “rules” does not make them to be statutory rules. Such administrative rules can be modified, amended or consolidated by the authorities without following any particular procedure. There are no legal restrictions to do so as long as they do not offend the provisions of the Constitution or statutes or statutory rules as the case may be.”

14.     It is thus clear from the above that administrative rules are merely rules of practice and not rules of law and not delegated legislation and they have no statutory force and cannot override the provisions of law.

15.     In this case, the Government issued G.O.Ms.No.14,                        dated 20.2.2010 directing all the universities in the State to implement the service conditions as recommended by the UGC and the Six Member Committee constituted by the Government by amending necessary statutes, ordinances, rules and regulations.  We are, therefore, of the view that till Statute 4 of the First Statutes is amended as per the recommendations of the UGC, the University has to follow the manner of appointment of Vice-Chancellor as provided in Statute 4 of the First Statutes and the petitioner cannot seek a direction from this Court to follow the procedure prescribed in G.O.Ms.No.14, Higher Education (UE.II) Department, dated 20.2.2010. The Government may consider the changes proposed by the Board of Management of the University to the APAU Act and take necessary steps for making suitable amendments, at the earliest.

16.     In view of the above, the impugned order passed by the learned Single Judge in WPMP.No.43447 of 2012 in Writ Petition No.34156 of 2012 is set aside,  Writ Appeal Nos.1491 and 1522 of 2012 and 13 of 2013 are allowed, Writ Petition No.34156 of 2012 and PIL No.387 of 2012 stand dismissed.  No order as to costs.  All the pending miscellaneous applications stand closed.

___________________________

PINAKI CHANDRA GHOSE, CJ

11^th February, 2013.

________________________

   VILAS V. AFZULPURKAR, J.

LR COPY BE MARKED: Yes/No.

ARS      

---

[1] (2010) 1 SCC 730

[2] (2007) 11 SCC 58

[3] 2012 (2) ALT 681

[4] 2012 (6) ALL MR 336

[5] (2011) 7 SCC 172

[6] (1995) 3 SCC 486

[7] (2007) 11 SCC 522

[8] AIR 1990 SC 405

[9] (2009) 5 SCC 515

[10] (2006) 6 SCC 395

[11] (2008) 8 SCC 765

[12] (2011) 5 SCC 435

[13] (2006) 4 SCC 1

[14] (2007) 13 SCC 606

[15] (1981) 1 SCC 166

[16] (1988) 4 SCC 364

[17] 1990 (Supp) SCC 440

[18] AIR 1962 SC 386