JUDGMENT M. Katju, J.
1. By means of this writ petition, the petitioners are challenging the appointment of respondent No. 3 Dr. Krlpa Shankar Mishra as Vice Chancellor, Mahatma Jyotiba Phule Rohilkhand University. Barellly vide appointment order dated 9.3.99 (Annexure 5 to the writ petition).
2. The petitioners are associated with the aforesaid University, as stated in paragraph 3 of the writ petition. The tenure of the former Vice Chancellor expired on 24.7.98 and one Dr. Beena Shah who was Pro-Vice Chancellor took over the charge on 24.7.98 in an officiating capacity. Regarding selection for the post of Vice Chancellor, the procedure is prescribed in Section 12 of the U. P. State Universities Act. The relevant provisions in Section 12 of the Act state as follows :
"12. The Vice Chancellor.--(1) The Vice-Chancellor shall be a whole-time salaried officer of the University and shall be appointed by the Chancellor except as provided by sub-section (5) or subsection (10) from amongst the persons whose names are submitted to him by the Committee constituted in accordance with the provisions of sub-section (2).
(2) The Committee referred to in sub-section (1) shall consist of the following members, namely :
(a) one person (not being a person connected with the University, an Institute, a constituent college, an associated or affiliated college or a hall or Hostel) to be elected by the Executive Council atleast three months before the date on which a vacancy in the office of the Vice Chancellor is due to occur by reason of expiry of his term.
(b) one person who is or has been a Judge of the High Court of Judicature at Allahabad including the Chief Justice thereof, nominated by the said Chief Justice : and
(c) one person to be nominated by the 'Chancellor who shall also be the convenor of the Committee :
Provided that where the Executive Council fails to elect any person in accordance with clause (a), then the Chancellor shall nominate in addition to the person nominated by him under clause (c) one person in lieu of the representative of the Executive Council.
(3) The Committee shall, as far as may be, at least sixty days before the date on which a vacancy in the office of the Vice-Chancellor is due to occur by reason of expiry of term or resignation under subsection (7), and also whenever so required and before such date as may be specified by the Chancellor, submit to the Chancellor the names of not less than three and not more than five persons suitable to hold the office of the Vice-Chancellor. The Committee shall, while submitting the names, also forward to the Chancellor a concise statement showing the academic qualifications and other distinctions of each of the persons so recommended, but shall not indicate any order of preference.
(4) Where the Chancellor does not consider any one or more of persons recommended by the Committee to be suitable for appointment as Vice-Chancellor or if one or more of the persons recommended is or are not available for appointment and the choice of the Chancellor is restricted to less than three persons, he may require the Committee to submit a list of fresh names in accordance with subsection (3).
(5) If the Committee in the case referred to in sub-section (3) or subsection (4) fails or is unable to suggest any names within the time specified by the Chancellor, or if the Chancellor does not consider any one or more of the fresh names recommended by the Committee to be suitable for appointment as Vice-Chancellor, another Committee consisting of three persons of academic eminence shall be constituted by the Chancellor which shall submit the names in accordance with subsection (3).
(6) No act or proceeding of the Committee shall be invalidated merely by reason of the existence of a vacancy or vacancies among its members or by reason of some person having taken part in the proceedings who is subsequently found not to have been entitled to do so."
3. A perusal of Section 12 (2) of the Act, which has been quoted above, shows that the Committee for selection of the Vice Chancellor has to consist of three persons, one person elected by the Executive Council, one person who is or has been a Judge of the High Court nominated by the Chief Justice, and one person nominated by the Chancellor. In the present case, the Executive Council of the University elected Prof. S. Rame Gowda, Chairman, All India Council for Technical Education. New Delhi, as its nominee, and a letter to this effect dated 6.6.98 was addressed to the Chancellor. True copy of the same is Annexure-1 to the writ petition. The second member of the Committee was Hon'ble Mr. Justice A. N. Gupta who was nominated by the Chief Justice, and the third person was Sri G. B. Patnaik. Secretary to the Chancellor who was nominated by the Chancellor. Alt members were communicated about this by letter dated 3.9.98 as stated in paragraph 9 of the writ petition.
4. In Paragraph 10 of the writ petition, it is stated that Sri G. B. Patnaik, Secretary to the Chancellor, sent a letter dated 12.12.98 to Dr. S. Rame Gowda that the Selection Committee will meet on 17.12.98 at 3.30 p.m. in the Chamber of Hon'ble Mr. Justice A. N. Gupta. He also sent a list of 27 candidates approved by the Chancellor for consideration. A true copy of the letter dated 12.12.98 annexing the list of the 27 proposed candidates is Annexure-2 to the writ petition. In paragraph 11 of the writ petition, it is stated that the meeting fixed for 17.12.98 was adjourned because due to heavy fog Dr. S. Rame Gowda's plane could not take off from Delhi to go to Lucknow and hence he could not reach Lucknow. Thereafter the meeting was held on 11.1.99 at Lucknow and the Committee unanimously recommended the names of five persons out of about 30 candidates whose bio-data were considered by the Committee for appointment as Vice Chancellor of the University.
5. In paragraph 13 of the writ petition, it is stated that the bio-data of Dr. Kripa Shankar Mishra was also considered along with the bio-data of other candidates by the Selection Committee, since his name was also included in the list of 27 candidates sent by the G. B. Patnaik, which had been approved by the Chancellor. However, the Selection Committee did not recommend the name of Dr. Kripa Shankar Mishra, and hence it is alleged that the Selection Committee did not find Dr. Mishra suitable. The names of five persons unanimously recommended by the Selection Committee were (i) Prof. Beena Shah, Pro-Vice Chancellor, who was holding the charge of the office of the Vice Chancellor, (ii) Prof. Hart Om Gupta, Principal Degree College, Hapur, (iii) Prof. Ram Janam Singh. Pro-Vice Chancellor. Lucknow University, (iv) Dr. S. S. Kushwaha, Professor of Physics, BHU. Varanasi and (v) Prof. H. R. Singh, Head of Department of Zoology and Dean Faculty of Sciences. University of Allahabad.
6. In paragraph 14 of the writ petition, it is alleged that the Chancellor did not find any of the five recommended candidates suitable.
7. In paragraph 16 of the writ petition it is stated that three of the persons recommended by the Selection Committee were also in the list of 27 persons approved by the Chancellor for the selection, and hence one falls to understand how they were not found suitable by the Chancellor. In paragraph 17 of the writ petition, it is stated that Sri G. B. Patnaik. Secretary to the Chancellor wrote a letter dated 29.1.99 to the members of the Committee that the Chancellor has desired new names be sent within 15 days and he fixed 10.2.99 as the date of the fresh meeting of the Selection Committee. True copy of the letter dated 29.1.99 is enclosed as Annexure-3 to the writ petition. In paragraph 18 of the writ petition, it is alleged that Dr. S. Rame Gowda, one of the members of the Selection Committee, wrote a letter dated 5.2.99 to Sri G. B. Patnalk that the recommendation of the five names in the meeting held on 11.1.99 was unanimous, and therefore, he would not like to be associated with any further selection process in this regard. True copy of the letter dated 5.2.99 is annexed as Annexure-4 to the petition.
8. In paragraph 19 of the writ petition, it is stated that when Dr. Rame Gowda dissociated himself from the Selection Committee, the Chancellor should have written to the Executive Council of the University to elect another person so that the Selection Committee may be reconstituted but the Chancellor did not write to the Executive Council for this purpose. Hence it is alleged in paragraph 20 of the writ petition that the Executive Council was not given an opportunity to send an elected person as a member of the Selection Committee, in paragraph 22 of the writ petition. It is alleged that the Chancellor illegally constituted a Selection Committee under Section 12 (5) of the Act. The names of these persons are given in paragraph 22 of the writ petition. In paragraph 23 of the petition. It is alleged that the Chancellor could not validly constitute a Committee under Section 12 (5) unless the Committee constituted under Section 12 (2) fails or is unable to recommend any names within the time specified by the Chancellor, which is not the case. In paragraph 28 of the petition, it is alleged that the persons in the Committee appointed under Section 12 (5) are not of academic eminence. It has also been alleged that one of the persons in the Committee appointed under Section 12 (5) was Dr. Nitya Nand who was working on a lower rank than the Vice Chancellor. Similarly, it is alleged that Sri G. B.
Patnaik, Secretary to the Chancellor. should not have been appointed in the Committee as his pay scale is lower than that of the Vice-Chancellor. In paragraph 34 of the writ petition, it is alleged that the Chancellor has taken undue interest in the appointment of the Vice Chancellor which is reflected from the fact that he has nominated his own Secretary as the Convenor/Member of the Selection Committee and sent a list of 27 candidates for consideration. In paragraph 35 of the petition, it is alleged that the Chancellor was interested in the appointment of Prof. Kripa Shankar Mishra as the Vice Chancellor, which is evident from the fact that he included his name in the list of 27 persons which he sent to the Selection Committee, However the Selection Committee did not recommend the name of Prof. Kripa Shankar Mishra which shows that the Selection Committee did not find him suitable. In paragraph 39 of the writ petition, it is alleged that Section 12 (4) was not attracted to the facts of the case. In paragraph 46 of the writ petition. It is alleged that Prof. Kripa Shankar Mishra is doing various illegal and improper acts, details of which have been given in the said paragraph.
9. A counter-affidavit has been filed on behalf of the Chancellor. In paragraph 11 of the counter affidavit, it is stated that the list of 27 persons sent by the Chancellor was a list of eligible candidates which was approved by the Chancellor, but it is not that the candidates in the list were approved by the Chancellor for appointment as Vice-Chancellor. In paragraph 14 of the counter affidavit, it is stated that the Chancellor while considering the names of the five candidates recommended by the Selection Committee made a note that 3 of the names recommended by the Selection Committee are not suitable for appointment as Vice-Chancellor, and since the choice of the Chancellor became restricted to less then 3 persons, he required the Selection Committee to submit a list of fresh names in accordance with Section 12 (4). The same assertion has been made in paragraph 17 of the counter affidavit. In paragraph 20 of the counter affidavit, it is stated that the Chancellor requested the Selection Committee under Section 12 (4) to submit a list of fresh names, but since no fresh names were sent, the Chancellor exercised his power under Section 12 (5) and constituted another Committee consisting of 3 persons of academic eminence. In paragraph 24 of the counter affidavit, it is stated that it is not correct to say that if after constitution of the Committee under Section 12 (2) the member elected by the Executive Council refuses to participate, then the Chancellor should call upon the Executive Council to elect a fresh nominee. If Dr. S. Rame Gowda refused to participate in the fresh meeting, the Executive Council could have withdrawn the name of Dr. S. Rame Gowda and elected some other nominee, but so long as the name of the Dr. S. Rame Gowda was not withdrawn by the Executive Council, he continued to be member of the Committee. Since Dr. S. Rame Gowda refused to participate in the fresh meeting, the Chancellor acted validly under Section 12 (5). In paragraph 25 of the counter-affidavit. It is stated that the persons in the Committee which selected the respondent consisted of persons of academic eminence. In paragraph 28, it is stated that after receiving the panel of names recommended by the Selection Committee, the Chancellor considered the same and after due enquiry at his level dis-approved the name of 3 candidates and asked for a fresh list under Section 12 (4). but since that was not done, the Chancellor constituted a Committee of three eminent persons under Section 12 (5).
10. A rejoinder affidavit has also been filed and we have perused the same. In paragraph 17 of the same, it is stated that when the Chancellor found three persons unsuitable, he should have considered the other two remaining persons and Should have not called for a fresh list. In paragraph 18, it is stated that when Dr. S. Rame Gowda refused to participate in the fresh meeting of the Selection Committee, it was the duty of the Chancellor to write to the Executive Council for sending a fresh elected nominee but he failed to do so. In paragraph 19 of the same, it is stated that the Executive Council was not given an opportunity to send a fresh elected person in place of Dr. Rame Gowda.
11. We have carefully considered the submissions of learned counsel for the parties and have perused the affidavits. As regards the preliminary objection as to locus standi, in our opinion, this objection has no merit as the petitioners are closely associated with the University as stated in paragraph 3 of the petition. It has been held by the Supreme Court in Dr. Meera Mishra v. Or. S. R. Mehrotra, 1998 (3) SCC 88 that such petitioners have focus standi. The same view has been taken by a Division Bench of this Court in V. C. Pandey u. Chancellor. 1997 (3) ESC 1507, vide paragraphs 23 and 24.
12. As regards the merits of the case, we have to carefully construe Section 12 of the Act. Section 12(2) states that the selection of the Vice Chancellor has to be done by the Committee consisting of three persons, as already stated above. However, if the Chancellor does not find one or more persons recommended by the Committee to be suitable for appointment as Vice Chancellor, or if one or more persons recommended is or are not available for appointment, and the choice of the Chancellor is restricted to less than three persons, then under Section 12 (4) he can require the Committee to submit a fresh list in accordance with sub-section (3). If the Committee referred to in subsection (3) or sub-section (4) fails or is unable to suggest any names within the time specified by the Chancellor, or the Chancellor does not consider any one or more of the fresh names recommended by the Committee to be suitable for appointment as Vice Chancellor, another Committee consisting of three persons of academic eminence shall be constituted by the Chancellor under Section 12 (5).
13. In our opinion no doubt the Chancellor can hold that some person recommen4ed by the Committee was unsuitable for appointment as Vice-Chancellor, but then the Chancellor must disclose his reasons as to why he found such a person unsuitable, in the affidavit filed on behalf of the Chancellor, it has not been disclosed why the Chancellor found three out of the five persons recommended by the Committee to be unsuitable. In our opinion, the Chancellor cannot act arbitrarily in this matter. Normally he should accept the recommendation made by the Committee constituted under Section 12 (2), particularly when it is unanimous, and only in exceptional cases for good and cogent reasons, he should hold that a person recommended by the Selection Committee is unsuitable, but no such reasons are forthcoming in the counter affidavit. In V. C. Pandey's case "(supra), this Court held that the importance of the Committee constituted under Section 12 (2) cannot be undermined. It is a High Powered Committee consisting of eminent persons such as the Chief Justice or his nominee, and nominees of the Chancellor and Executive Council. The recommendations of this Committee cannot be lightly ignored by the Chancellor.
14. In our opinion, no doubt the Chancellor holds a high office but in our country, the rule of law prevails, and however high a person may be, the law is above him. Hence even the Chancellor cannot act arbitrarily. It has been held by the Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597, that arbitrariness violates Article 14 of the Constitution. In our opinion, the Chancellor acted arbitrarily by holding that three of the persons recommended by the Selection Committee were unsuitable without giving any good and cogent reason as to why they were found to be unsuitable. No doubt the Chancellor has power to act under Section 12 (4) or Section 12 (5) but it is settled law that the power of every authority has an implied restriction that it should be exercised in a non-arbitrary manner vide Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295, Rohtas Industries Ltd. v. S. D. Agarwal, AIR 1969 SC 707, etc.
15. In our opinion. the Chancellor should resort to Section 12 (4) only in very exceptional circumstances, and for strong and exceptional reasons, otherwise the very purpose of holding a selection by the Committee will be defeated. If the Chancellor is of the opinion that one or more persons recommended by the Committee are unsuitable for appointment as Vice Chancellor, good and cogent reasons must be given by him. In this case, no reason at all has been given by the Chancellor as to why he found three of the five names recommended as unsuitable. In this case, the Chancellor acted in a strange manner. He first declared 3 of the 5 recommended persons to be unsuitable, and thereby he took recourse to Section 12 (4). Thereafter when Dr, S. Rame Gowda refused to attend the fresh meeting of the Committee, the Chancellor took recourse to Section 12 (5). In our opinion, even if Dr. S. Rame Gowda refused to attend the fresh meeting of the Committee, the Chancellor should have asked the Executive Council to send another nominee or he should have himself made a nomination under the proviso to Section 12 (2) of the Act, but he should not have proceeded under Section 12 (5).
16. Moreover, we appreciate the stand taken by Prof. S. Rame Gowda. Any self-respecting person would have acted in the manner he did. He rightly pointed out in his letter dated 5.2.1999 (Annexure-4 to the writ petition) that the names recommended by the Committee in the meeting held on 11.1.1999 were unanimous, and he would not like to be associated with any further selection process. Prof. Rame Gowda is holding the high office of Chairman of the All India Council for Technical Education, and he rightly refused to be treated in a cavalier manner.
17. In our opinion the power under Section 12 (5) is a very exceptional power and can be resorted to by the Chancellor only in very exceptional cases. If the Chancellor is permitted to act in the manner in which he has done, almost every meeting of the Selection Committee can be nullified and made redundant by proceeding in the manner in which the Chancellor has done in the present case. We are not going into the question whether the persons nominated by the Chancellor under Section 12 (5) are persons of academic eminence or not, nor are we going into the question whether Prof. Kripa Shankar Mishra has done illegal and improper acts. We are only concerned with the legality of the appointment of Prof. Kripa Shankar Mishra as Vice Chancellor.
18. A plain reading of Section 12 (5) indicates that the power therein is to be resorted to only when there is a Committee and that Committee fails or is unable to suggest names within the time specified. Hence before resorting to Section 12 (5), the Chancellor must get the Committee constituted, in the present case, there was a valid Committee constituted under Section 12 (2) and it is not that this Committee failed or was unable to suggest names. We have already held that resort to Section 12 (4) was illegal as no good and cogent reason was given by the Chancellor for rejecting 3 of the 5 names recommended by the Committee. However, even assuming that resort to Section 12 (4) was valid, even then resort to Section 12 (5) was illegal as no attempt was made by the Chancellor to get a fresh Committee constituted by asking the Executive Council to send a fresh name or by resorting to the proviso to Section 12 (2).
19. The Chancellor had earlier sent the name of Prof. Kripa Shanker Mishra in the list of 27 candidates which he recommended to the Selection Committee, and hence it is evident that the name of Prof. Kripa Shanker Mishra was also before the first Selection Committee, but the Selection Committee did not include the name of Prof. Kripa Shanker Mishra in the list of 5 candidates which it unanimously recommended.
This shows that the Selection Committee did not find Prof. Kripa Shanker Mishra as suitable for appointment as Vice Chancellor, but yet he has strangely been appointed as Vice Chancellor.
20. For the reasons given above. this petition is allowed. The impugned order dated 9.3.99 Annexure-5 to the petition appointing Dr. Kripa Shanker Mishra as Vice Chancellor is quashed and it is directed that status quo ante prevailing prior to the date of the impugned order will continue till a fresh appointment of the Vice Chancellor is made in accordance with law.
21. Before parting with this case, we would like to comment on the sad state of affairs prevailing in most of the Universities in our Country, particularly in this State. One of the main reasons for this is that the Vice Chancellors are often appointed on extraneous considerations, and are often undeserving. To give an example, the Allahabad University, which was once known as the Oxford of the East, and had eminent schcolars like Dr. Ganga Nath Jha and Dr. Amar Nath Jha as the Vice Chancellor, is today in a pitiable state of affairs, and one main reason for this is that it has had a series of undeserving Vice Chancellors who were appointed on extraneous considerations (one is said to have been appointed only because he was the astrologer of a State Minister) who took the University further downhill.
22. It must be remembered that a University is a Centre of higher learning where the top intellectuals in the country should be teaching, studying and doing research work. The head of such an institution should be a person of outstanding academic eminence who can command the respect of the Professors, Readers and Lecturers and also the students and the general public by his learning an academic distinction. There were famous Vice Chancellors in our country in the past like Sir Asutosh Mukherjee of Calcutta University and Dr. Ganga Nath Jha and Dr. A. N. Jha of Allahabad University with whom even the British Viceroys regarded it an honour to meet and converse, but what is the position we find today? Most of the Vice-chancellors now-a-days are mediocre non-entities appointed on political or other extraneous considerations who are forgotten the day their term is over (whereas Sir Asutosh Mukherjee and Dr. A. N. Jha are remembered even today). If we wish our country to progress, we must give merit its due and appoint outstanding academic persons to the high office of Vice Chancellor, which has unfortunately been degraded over the years.