JUDGMENT
R.K. Abichandani, J.
1. The petitioners seek a declaration that the action of the Chancellor of the North Gujarat University in not appointing the Vice-Chancellor from the names recommended by the Search Committee and calling for another meeting of the Search Committee to recommend names for appointment of the Vice-Chancellor of the University is illegal, arbitrary and in violation of Article 14 of the Constitution of India. A direction is sought on the respondent No. 1 to select and appoint the Vice-Chancellor from amongst the three names already recommended by the Search Committee under Section 10(3) of the North Gujarat University Act, 1986, hereinafter referred to as “the Act”.
2. The petitioners are associated with the North Gujarat University as narrated by them in para 3 of the petition. It appears that the term of appointment of the earlier Vice-Chancellor Mr. K.P. Yagnik was due to be over on 31st July, 1992. Therefore, as per the provisions of Section 10(2) the Chancellor appointed a Committee of four members on 20th April, 1992, for the purpose of Sub-section (1) of Section 10. There is an elaborate procedure prescribed for nominating the members of the Committee by the Executive Council and Academic Council jointly, by the Vice-Chancellor of all the Universities established by law in the State of Gujarat, by the Chairman, University Grants Commission, New Delhi and by the Chancellor in Statute No. 159 of the Statutes framed under the Act. There is no challenge against the validity of the constitution of the Committee and, therefore, no discussion is called for on the question of the constitution of the Committee. The Committee thus constituted by Chancellor recommended a panel, consisting of three names to the Chancellor, arranged in an alphabetical order as per their letter dated 7th July, 1992. There is no dispute about the three names, which are said to have been recommended by the Committee, which is popularly known as “Search Committee”. The Chancellor, however, did not announce the appointment from the panel even after the term of the previous Vice-Chancellor came to an end on 31st July, 1992. It appears that the Chancellor had instructed the Registrar that the matter be referred back to the Search Committee. The petitioners’ case is that the Chancellor is bound to appoint the Vice-Chancellor from amongst the three persons recommended by the Committee and he has no other choice in that matter. It is their case that the Chancellor cannot send the matter back to the Search Committee for reconsideration. It is alleged that the action of the Chancellor in asking the Committee to send a fresh panel was not contemplated by the provision of Section 10(1) of the Act and such a course if permitted would result in abuse of the process of appointment of a Vice-Chancellor.
3. The case of the respondents is that at the stage of the process of consultation envisaged by Section 10(1), it was observed that the norms as regards the age of appointment of a Vice-Chancellor were not taken into account by the Search Committee. According to the respondents, the Vice-Chancellors are normally appointed from amongst persons who are below 65 years of age, but while recommending three names, the Search Committee had included in it two persons above the age of 65. It is their say that the policy of the University Grants Commission was that the age of superannuation for the Vice-Chancellors should be 65 years, and the State Government was being advised by the University Grants Commission to take necessary steps in this direction. It was, therefore, decided by the Chancellor to request the Search Committee to send a panel of three suitable and eligible persons keeping in view the advice of the University Grants Commission. It is the case of the respondents that the action of the Chancellor was grounded on valid reasons and cannot be termed as arbitrary, illegal or in violation of Article 14 of the Constitution.
4. It was contended by the Learned Counsel appearing for the petitioners that the scheme of the Act indicates that the panel of three persons recommended by the Search Committee cannot be rejected by the Chancellor. The role of the Chancellor in the process of making an appointment was restricted only to selecting a person from three persons recommended by the Search Committee and to make the appointment therefrom in consultation with the State Government. He was left with no choice but to appoint one person from this panel. There was no scope for remitting the panel to the Search Committee which became functus officio after recommending the names to the Chancellor. He submitted that the legislation had wisely associated various interests while providing for the constitution of Search Committee. The Search Committee was to be a body of eminent persons to be constituted after following the elaborate procedure laid down in Section 10(2) read with Statute No. 159 of the Statutes framed under the Act. The recommendation made by such an important body could not be turned down by refusing to appoint any one from the panel prepared by it for the purpose of Section 10(1) of the Act. It was further contended that there was no provision laying down any age limit for appointment of a Vice-Chancellor. Wherever age was to be prescribed as an eligibility criteria the legislature had done so in similar context under the provisions Sections 10(3) and 10(4) of the Gujarat University Act, 1949 and Sections 10(3) and 10(4) of the M.S. University, Baroda Act, 1949. He further submitted that when no criteria of age was specified at the time when the Committee selected three persons for the recommendation, no such eligibility criteria could now be introduced and the Chancellor cannot return or ignore the panel on the ground that it contained persons above the age of 65 years,
5. The learned Advocate-General appearing for the respondents submitted that the norms regarding age were laid down by the University Grants Commission, which was insisting on the State Government to implement them. The norms regarding age were given legislative recognition in other Acts and cannot be said to be irrational, arbitrary or illegal. He submitted that the Chancellor noting that the Search Committee had ignored these norms and included names of two persons, in a panel of three, who were above the age of 65 years, would feel that his choice was taken away and, therefore, would be justified in requiring the Committee constituted by him to keep in mind these norms while recommending the names. The learned Advocate-General submitted that though the Chancellor was required to appoint the Vice-Chancellor from amongst the three persons recommended by the Search Committee as required by Section 10(1), it cannot be said that under no circumstances the Chancellor could remit the panel to the Committee. When the Chancellor was left with no choice, keeping in view the norms regarding age, he cannot be compelled to make an appointment from the panel. If the provision is so construed as to compel the Chancellor to make an appointment from the panel, even when the choice is taken away, then that would lead to absurdity. It was further submitted that the persons recommended by the Committee had no vested right for being appointed to the post of Vice-Chancellor and, therefore, it was open to the appointing authority in consultation with the Government, to have drawn the attention of the Committee to the norms regarding age to be kept in mind while recommending the names to the Chancellor.
6. The provisions of Section 10(1) of the Act which falls for consideration reads as under:
10(1) The Vice-Chancellor shall be appointed by the Chancellor in consultation with the State Government from amongst three persons recommended under Sub-section (3) by a committee appointed for the purpose under Sub-section (2).
It will be noted that this provision is composite in nature. It prescribes the Chancellor as the appointing authority of the Vice-Chancellor. The appointment of Vice-Chancellor is to be made by the Chancellor in consultation with the State Government and from amongst three persons recommended under Sub-section (3) by the Search Committee. The Search Committee is appointed for the purpose by the Chancellor under Sub-section (2) and it consists of four members. The Chancellor’s power to appoint a Committee is regulated by the provision of Sub-section (2) of Section 10. The Committee is to be appointed within such time and such manner as may be prescribed by the Statutes, as laid down in Sub-section (3) of Section 10. The function of the Committee is to “Select three persons whom it considers fit for being appointed as Vice-Chancellor”, as laid down in Sub-section (3) of Section 10 and it is required to recommend the names of persons so selected together with such other particulars as may be prescribed by the Statutes, to the Chancellor. The scheme of the provisions of Section 10 has thus the stages of formation of a Committee for the purpose of selection, recommendation of three names selected by the Committee to the Chancellor, consultation by the Chancellor with the Government and appointment of Vice-Chancellor from amongst three persons named by the Committee. In the instant case, the stages upto consultation were over and admittedly the Chancellor did not make appointment from the panel and instead requested the Committee to send the panel of three suitable and eligible names keeping in mind the views of the University Grants Commission regarding age. The provisions of Sub-section (1) and Sub-section (3) of Section 10 would indicate that the selection process is to be undertaken by the Search Committee for recommending three names to the Chancellor of persons whom it considers fit for being appointed as Vice-Chancellor. It is, therefore, clear from these provisions that the Chancellor cannot make appointment of any person as Vice-Chancellor whose name is not recommended by the Search Committee under Sub-section (3) of Section 10. It can safely be said that an arbitrary refusal to make an appointment from the panel recommended by the Search Committee cannot be read in Section 10(1) of the Act. But the question is as to whether this provision should be so strictly construed as to stultify the very exercise of the power of the Chancellor to make an appointment compelling him to appoint a Vice-Chancellor even when there may be a valid and legitimate reason, such as exclusion of his own choice, in making the appointment from the recommended names. The Chancellor’s power to appoint the Vice-Chancellor under Sub-section (1) of Section 10 is a real and effective power. He is required to deliberate over the matter, as the process of consultation with the Government is envisaged. Though he is not bound by the advice of the Government, he is under an obligation to consult the Government and the Government would be on the other hand under a duty to express its opinion on a full consideration of the matter on which it is entitled to be consulted. It, therefore, follows that consideration of the facts which are necessary to arrive at a proper conclusion regarding appointment of a Vice-Chancellor, would be a part of the consultative and decision-making process. The Chancellor is not expected to act mechanically nor is he bound by the advice rendered by the Government on consultation.
7. The recommendatory process laid down in sub-sees. (2) and (3) of Section 10 is meant to aid the Chancellor in making the appointment of a Vice-Chancellor from the panel. Though the question of suitability is to be entirely judged by the Search Committee and the Chancellor has a scope limited only to three persons recommended for his final selection, it would not follow that the Chancellor cannot ascertain whether the Committee recommending the names has followed the relevant norms and provisions of law while making the recommendations. It cannot be said that even if there may be serious infirmities in the process of recommendation itself as distinguished from mere selection of fit persons, the Chancellor would still have no voice in the matter and must necessarily make an appointment from the panel. There may be extreme cases, where the Committee while selecting the names for recommendation, has not taken note of the relevant norms or has ignored vital aspects of the recommendatory process or there may be some material going to the root of the matter, which if brought to light would have materially affected the selection process undertaken by the Committee. There may be material discovered after the names are recommended to which the Committee could have had no access or an event may have occurred after the recommendation disqualifying the person recommended for the post or vitiating the recommendation. It is not necessary to catalogue such contingencies, but it would be appropriate to contemplate situations where no reasonable body would recommend the names if the relevant material was made available to it in time. If a narrow construction as suggested by the Learned Counsel for the petitioners is put on the provisions of Section 10(1), the Chancellor would be compelled to make an appointment which no rational person would make and he may be deprived of the choice which he otherwise would have had by considering names of three persons in the panel. It cannot be said that simply because the names were recommended by the Search Committee, the power of Chancellor to accept or reject the recommendation on valid grounds stands circumscribed. The process of selection by the Committee is quite different from the power of appointment of the Chancellor. It is difficult to subscribe to the view expressed on behalf of the petitioner that the Chancellor is only a titular head of the University and that he has been given an extremely narrow role in the matter of appointing a Vice-Chancellor.
8. The Committee constituted under Section 10(2) by the Chancellor is for the purpose of Sub-section (1) of Section 10 as stated in Sub-section (2) of Section 10. Therefore, the purpose behind the constitution of the Committee is to enable the Chancellor to appoint the Vice-Chancellor. Therefore, until that purpose is achieved, it cannot be said that the Committee after having recommended the names becomes functus officio, even though the purpose of appointing a Vice-Chancellor is not achieved. It is clear that the Chancellor can for valid reasons remit the matter to the Committee for the same purpose. Albeit, the Chancellor must act in good faith and must not exercise power mala fide or in an arbitrary manner.
9. On a proper construction of the provision of Section 10(1) it would appear that:
(i) the Chancellor can make an appointment of the Vice-Chancellor only from the panel recommended by the Search Committee and he cannot appoint any one from outside the panel;
(ii) the Chancellor cannot go behind the selection made by the Search Committee and reject all the names merely on the ground that none of them is fit for appointment;
(iii) though the Chancellor is under an obligation to consult the Government in the matter of appointment of the Vice-Chancellor under Section 10(1) he is not bound to accept the advice of the Government;
(iv) if on deliberations and consultations with the Government, the Chancellor finds serious infirmities or shortcomings in the panel, or a flaw in the functioning of the Search Committee which has vitiated the proceedings, he can always remit the matter to the Committee for a fresh consideration and recommendation; and
(v) the Committee appointed by the Chancellor for the purpose of Section 10(1) does not become functus officio until that purpose is achieved by making appointment of a Vice-Chancellor under Section 10(1) and the Chancellor can for valid reasons remit the matter to the Search Committee to reconsider it.
10. The power of appointment is vested in the Chancellor who is the highest executive authority of the University and the fear expressed on behalf of the petitioners that the names recommended by the Search Committee will be rejected until a person of his choice is recommended is not justified.
11. It has been brought on record by an affidavit filed on behalf of respondent No. 1 that when the panel was received by the Chancellor, he consulted the State Government as per the provision of Section 10(1) of the Act and the State Government having examined the matter pointed out the deficiency therein, that one of the persons in the panel was of 71 years of age and another of 65 years and that the Vice-Chancellors are normally appointed from amongst persons who are below 65 years of age. The reports of Dongerkery Commission and Palejwala Committee which had a bearing on the aspect of age of a Vice-Chancellor were taken into consideration. It was noted that the Dongerkery Commission recommended that a Vice-Chancellor should be at the time of appointment below 65 years of age and the Palejwala Committee on Amendment of University Acts had gone a step ahead by recommending that no person appointed as Vice-Chancellor shall continue to hold office after he attains the age of 65 years. It was also noted that the University Grants Commission had intimated the State Government that the age of superannuation for the Vice-Chancellors was 65 years as per its policy and that age should be so specified by the Government. Taking note of these aspects respondent No. 1 decided to request the Committee to send a panel of three suitable and eligible persons keeping in mind the views of the University Grants Commission regarding age. It is clear that the aspects which weighed with the Chancellor for requesting the Committee to recommend the names keeping in view the policy of the University Grants Commission regarding age, were relevant and rational aspects. The norms regarding prescription of age for a Vice-Chancellor have found legislative recognition in the Gujarat University Act and M.S. University of Baroda Act as referred to above. It is not suggested that prescribing an age limit for a Vice-Chancellor would be unreasonable. Laying down age limit for a Vice-Chancellor of the University cannot be said to be irrational or arbitrary. The criteria of age is a relevant criteria and for various high offices, it has been adopted even in the Constitution of India. The prescription of age limit would be a matter of policy. There may be arguments for and against it, but for them the venue would be elsewhere. The age criteria is not prescribed in this Act leaving scope for an argument that it cannot be imposed when recommendations have already been made. Even though the age for appointment or superannuation of a Vice-Chancellor is not prescribed in the provisions of this Act, the provisions of Sub-section (5) of Section 10 would enable the State Government to prescribe the terms and conditions subject to which the Vice-Chancellor shall hold office. The terms and conditions prescribed by the Government cannot be varied to the disadvantage of the Vice-Chancellor without his consent. The policy of the University Grants Commission that Vice-Chancellors should superannuate at 65 and the recommendations of the Dongerkery Commission that no person below the age of 65 should be appointed as Vice-Chancellor were relevant considerations for the Chancellor and the State Government to determine the criteria of age while appointing a Vice-Chancellor when there was no statutory provision specifically made in the Act. The power to lay down the terms and conditions for holding the office of Vice-Chancellor being statutorily prescribed under Sub-section (5) of Section 10 can be exercised while making the appointment of Vice-Chancellor. The fact that the criteria of fixing age limit is noted at the consultative stage as envisaged under Section 10(1) of the Act, will not vitiate the exercise of the power of prescribing the, age criteria. The appointing authority being the Chancellor, the Government could at the consultative stage, draw his attention to the norms which were recommended by the University Grants Commission. If the Chancellor taking note of the recommendations of the University Grants Commission, which it might not be in the interest of University to flout, has chosen to remit the matter to the Committee for keeping them in view while making recommendation, under Section 10(3) it cannot be said that he has acted arbitrarily or illegally.
12. It is clear that acceptance of the criteria of age by requesting the Committee to keep in view the advice of the University Grants Commission has not affected any vested right of those whose names were recommended. The candidates who were empanelled did not acquire any right to appointment as Vice-Chancellor. Though Statute requires that when appointment is to be made it should be made from the panel, it does not create any right, in favour of the persons recommended, to seek appointment. In this context, we may refer to the decision of the Supreme Court in Jai Singh Dalal & Ors. v. State of Haryana & Anr., reported in 1993 Supp. (2) SCC 600 in which after considering the earlier decisions, the Apex Court has held as under:
Therefore, the law is settled that even candidates selected for appointment have no right to appointment and it is open to the State Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria.
13. The Learned Counsel appearing for the petitioners submitted that this decision cannot be resorted to as it was in the realm of service jurisprudence. The above observations were made in the context of candidates who were empanelled after the selection process. The candidates who were selected by the Search Committee equally have no right to be appointed as Vice-Chancellor even in the context of the provision of Section 10(3) of the Act. The provision does not indicate that they have any right to the post crystalised on their being empanelled and recommended. This situation clearly warrants drawing upon the holding of the Supreme Court in Jai Singh Dalal (supra) for finding that even these persons who were recommended by the Search Committee could have no right to the post. The Learned Counsel for the petitioners submitted that even though they may have no right to the post by virtue of the recommendation made by the Committee, they could still insist that the Chancellor must necessarily make an appointment from the panel, which is recommended. As indicated above, the Chancellor could have for valid reasons, acting in good faith and not exercising power mala fide or in an arbitrary manner, remitted the matter for reconsideration to the Committee. When no rights of persons were affected, there was no embargo on the age criteria being prescribed before any appointment could be made. Though it would have been more desirable if the age criteria had been specified earlier, it cannot be said that it cannot be prescribed after the recommendation is made when appointment is not yet made to the office. The criteria for holding office of a Vice-Chancellor can be prescribed or revised before the appointment is made. In the present case, it was expected of the Search Committee to have taken note of various recommendations on the question of age of a Vice-Chancellor, especially when the member nominated by the Chairman of the University Grants Commission was a member of the Committee. When the Committee fails to take note of this elementary aspect which ought to have been considered, the Chancellor could not have been a mute spectator and made the appointment of Vice-Chancellor with no room for his choice as stipulated by Section 10(1), if he wanted to act by the well recognised norms regarding age of a Vice-Chancellor.
13. Reliance was placed by the Learned Counsel for the petitioners on the decision of Madhya Pradesh High Court in Dr. S.C. Barat & Anr. v. Vinayak Pataskar & Ors., , in which while considering the scope of Section 11(1) of the Jabalpur University Act, which is similar to Section 10(1) of the Act, the High Court found that the Chancellor could not have made an appointment under Sub-section (5) when there was a panel recommended to him by the Search Committee. It was held that when the Committee was validly constituted the panel of names recommended by it is binding on the Chancellor and the Chancellor cannot ignore it and appoint whomsoever he finds fit to be the Vice-Chancellor. It was found that on the language used in Sub-section (1) of Section 11 it cannot be maintained that the Chancellor can disregard the recommendations of the Committee, It was also held that the power under Sub-section (5) of Section 11 was a contingent power which could be exercised only when the Committee fails to submit the panel. Thus the situation which has arisen in the instant case was not before the Madhya Pradesh High Court in H.C. Barat (supra). It is difficult to subscribe to any opinion that may be expressed therein which would totally negate the power of the Chancellor to remit the matter for reconsideration on valid grounds as noted above.
14. Under these circumstances, there is no merit in this petition. The petition is, therefore, rejected. Rule discharged with no order as to costs.