Dismissed

Vasant Ganu Patil v. the Chancellor, University of Mumbai and 7 Ors.

Bombay HC25 Apr 2013NMW/254/2012

Case brief

AI extract

What is this about?

This court dismissed a Notice of Motion challenging a previous order to re-hear reference questions regarding the appointment of a University Vice-Chancellor. The court found no merit in calling for a fresh hearing by a new Bench, noting that Clause 36 of the Letters Patent permits reference to other judges to decide matters by a majority.

What did the court decide?

Notice of Motion dismissed; matters placed before another Division Bench to consider the referred questions.

Vasant Ganu Patil Vs the Chancellor… — Pension and Retirement Benefits | Bombay HC (2013)

NMW-254-12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO. 254 OF 2012 IN PUBLIC INTEREST LITIGATION NO. 92 OF 2010

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Vasant Ganu Patil ).. Petitioner

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Versus

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The Chancellor, University of Mumbai and others ).. Respondents

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Ms. Rajni Iyer, Senior Advocate, with Mr.Pankaj Kawli i/b.Sunil & Co. for the Petitioner.

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Mr. D.J. Khambata, Advocate-General, with Ms.Nina Nariman and Mr.M.D. Naik, AGP, for the Respondent-State. Mr.Rui Rodrigues for the Respondent-University of Mumbai.

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CORAM: MOHIT S. SHAH, C.J. & M.S.SANKLECHA, J. DATE : 25 April 2013

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P.C :

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Dr.Rajan Welukar, Incharge Director, Sydenham Institute of Management Studies & Research, Entrepreneurship Education, Mumbai (respondent no.8, was appointed as Vice Chancellor of the University of Mumbai for a term of five years vide order dated 7 July 2010 of the Chancellor, University of Mumbai.

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The petitioner herein claiming to be the President of an NGO filed PIL No.92 of 2010 praying for a writ of quo-warranto and challenging the appointment of respondent no.8 on the ground that respondent no.8 did not possess the requisite qualification and experience for being recommended by the Search Committee as a suitable person for appointment as Vice Chancellor.

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The PIL along with two other matters was heard by a Division Bench, to which one of us (Chief Justice) was a party. By judgment dated 9 August 2011, one of the Judges (Chief Justice) held that there was no substance in the challenge to the appointment of respondent no.8 as the Vice Chancellor. It was held in the said judgment that the Search Committee had reviewed each and every application received in response to the advertisement and prepared the list of 20 candidates having essential qualifications, including respondent no.8 (who had submitted 12 research publications) and that merely because the Nodal officer who had prepared the chart showing the experience and research publications of the 20 candidates on the basis of their respective bio-data had not been meticulous, on that ground alone there was no reason to interfere with the appointment of respondent no.8 to the post of Vice Chancellor of the University of Mumbai.

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It was only as an additional ground that one more reason was given that even if there was any deficiency in the qualification of respondent no.8, the Court was not inclined to exercise extra-ordinary prerogative writ jurisdiction under Article 226 of the Constitution of India as the statutory provision conferred power on the Search Committee to relax any condition in case of deserving candidate and that the power would equally be available to the Chancellor.

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The other learned Judge (Justice Girish Godbole), however, took a different view as under:-

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“24. I am of the view that while proceeding on the assumption that the Respondent No.8 has 25 years' of experience of teaching and research and has 12 research publications to his credit; the decision makers have

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exercised their power by non-application of mind to relevant facts, statutory provisions and the said exercise is apparently on the basis of some facts which do not exist and are patently erroneous. This cannot be considered to be a mere irregularity in the decision making process.”

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(emphasis supplied)

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Justice Godbole directed the State Government to reconstitute the Search Committee for the purpose of applying its mind whether respondent no.8 satisfies the essential requirement laid down in the statutory order and that while undertaking this exercise, the Search Committee shall consider the five publications of respondent no.8 indicated in the judgment of Justice Godbole. The Search Committee was required to consider whether the said five publications can qualify as research publications as contemplated by the statutory order.

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In view of the aforesaid difference of opinion, by order of reference dated 9 August 2011, the matters were ordered to be placed before the third learned Judge of this Court for considering the following two questions :-

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“(1) Whether in the facts and circumstances of this case, the decision of the Search Committee to include the name of respondent No.8 in the list of eligible candidates for the office of the Vice-Chancellor of the University of Bombay suffered from any nonapplication of mind vis-a-vis Condition No.3, when the Search Committee had recorded in the minutes of its meeting held on 12 June 2012 that the committee reviewed each and every application and prepared a list of 20 candidates (including respondent No.8) having all qualifications as mentioned in the statutory order dated 27 May 2009

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issued by the Government of Maharashtra under Section 12(3A)(d) of the Maharashtra Universities Act, 1994 ?

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(2) If the answer to the above question is in the affirmative, whether, in the facts and circumstances of this case, this Court should exercise its extraordinary discretionary jurisdiction to direct the Search Committee to reconsider the question of eligibility of respondent No.8 for the office of ViceChancellor vis-a-vis Condition No.3 in Part-A of the schedule to the above statutory order dated 27 May 2009 ?”

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The third learned Judge (Justice S.J. Vazifdar) came to the conclusion that the material on record is of no assistance in answering the question as to whether respondent no.8 was considered eligible on the basis of the said five relevant papers, but Justice Vazifdar saw no justification for directing the Search Committee or the Chancellor to go through the process de-novo but it would be appropriate only to ascertain whether the Search Committee and/or the Chancellor considered respondent no.8 to be eligible on the basis of the said five relevant publications and that the nature of the final order can be determined only after the Chancellor and the Search Committee state that they considered respondent no.8 eligible for consideration on the basis of even one of the seven irrelevant publications. Justice Vazifdar, therefore, answered the questions preferred as under :-

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“Re:Q.1 I am unable at this stage to state that the decision of the search committee or of the Chancellor of the University of Bombay suffered from any non application of mind vis-a-vis condition No.3. The answer to this question must await their response as to which of the 12

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publications submitted by respondent no.8 they took into consideration while considering the eighth respondent's eligibility and appointment.

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Re:Q.2 If the answer to question No.1 is in the affirmative, the answer to question No.2 must be answered in the affirmative.”

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(emphasis supplied)

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Thus, the conclusion of Justice Godbole that the decision of the Search Committee suffered from non-application of mind vis-a-vis condition No.3 was not accepted by Justice Vazifdar on the ground that the answer to that question must await the response of the Search Committee or of the Chancellor as to which of the 12 publications submitted by respondent no.8 they took into consideration while considering eligibility and appointment of respondent no.8.

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It was after considering the aforesaid judgment of Justice Vazifdar that the Division Bench comprising the two Judges who had rendered judgment dated 9 August 2011 (Chief Justice and Justice Godbole) passed the order dated 11 May 2012 which reads as under :-

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“.... since we find that Justice S.J. Vazifdar in his Oral Judgment dated 22 February 2012 does not mention a clear opinion whether the view taken by the Chief Justice is correct or the view taken by Justice G.S. Godbole is correct, we are of the view that it would be in the fitness of things to refer the same two questions as per our Order of Reference dated 9 August 2011 to another Division Bench of two Honourable Judges so that the view taken by the majority of Judges, who would have heard the matter, would prevail as per Clause 36 of the Letters Patent.”

(emphasis supplied)

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For taking the above view, this Court also took into consideration the judgment dated 5 September 1983 of Justice G. Ramanujam, of the Madras High Court in Writ Petition Nos.905, 3138 and 5152 of 1978 in the case of Income Tax Officer, Company Circle II(1), Madras vs Vice President, ITAT .

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Clause 36 of the Letters Patent reads as under :-

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“36. Single Judges and Division Courts :- And We do hereby declare that any function, which is hereby directed to be performed by the said High Court of Judicature at Bombay in the exercise of its original or appellate jurisdiction, may be performed by any Judge or any Division Court thereof, appointed or constituted for such purpose, in pursuance of section One hundred and eight of the Government of India Act, 1915, and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to opinion of the majority of the Judges who have heard the case including those who first heard it.”

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(emphasis supplied)

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The above clause of the Letters Patent clearly permits reference to one or a more Judges and the points referred have to be ultimately decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

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Since Justice Vazifdar was not entirely in agreement with Justice G.S. Godbole, the Division Bench of Judges who first heard the matters came to the conclusion that the matters were required to be heard by another Division Bench so that the opinion of majority of the five Judges who have heard the case including those who first heard it would decide the two questions formulated on 9 August 2011.

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In view of the above discussion, we see no merit in this Notice of Motion. Notice of Motion is accordingly dismissed and the matters will now again be placed before another Division Bench for considering the two questions referred by the order dated 9 August 2011.

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As far as prayer (e) in the Notice of Motion is concerned, it will be open for the petitioner to move this prayer before the Division Bench which will be hearing this PIL hereafter.

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CHIEF JUSTICE

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M.S.SANKLECHA, J.

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Vasant Ganu Patil v. the Chancellor, University of Mumbai and 7 Ors.

Case brief

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Vasant Ganu Patil v. the Chancellor, University of Mumbai and 7 Ors.

Case brief

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