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 Batch
11-03-2013
Acharya N.G. Ranga Agricultural University,Represented by its Registrar,
Hyderabad.
M. Devender Reddy and others.
(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 to Acharya 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
Prasad1 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 University2 and a judgment of this Court in Prof. B. Surya Prakash Rao
v. Union of India3 and another judgment of the Bombay High Court in Suresh
Patilkhede of Thane v. The Chancellor Universities of Maharashtra4 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 Narkhede5 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 & K6 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 in P. Mahendran v. Matteesh Y. Annigeri8.
Placing reliance on another judgment of the Supreme Court in K.A. Nagamani v.
Indian Airlines9, 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 Kerala10, NDMC v. Tanvi Trading & Credit (P) Ltd.11
and Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil
Aviation12.
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 Singh14, Maharao Sahib Shri Bhim Singhji v. Union of
India15, J.R. Raghupathy v. State of A.P.16 and Narendra Kumar Maheshwari v.
Union of India17. 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 Assam18).
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
________________________
VILAS V. AFZULPURKAR, J.
11th February, 2013.
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