Dismissed

Dr. A.V. George v. Chancellor, Mahatma Gandhi University

Kerala HC7 Jan 2016WA/1432/2014

Case brief

AI extract

What is this about?

Appeal by a former Vice Chancellor against his removal by the Chancellor for misrepresentation of his designation and address in the bio-data considered by the Search Committee. The Division Bench upheld the removal, holding that the Chancellor, as appointing authority, had inherent power to cancel an appointment obtained by misrepresentation, and that the incorrect description was material and no

What the court decided

AI extract

Dr. A.V. George Vs Chancellor, Mahatma Gandhi… — Education and Admissions | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937

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WA.No. 1432 of 2014 () IN WP(C).13809/2014

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AGAINST THE JUDGMENT IN WP(C) 13809/2014 of HIGH COURT OF KERALA DATED 18-08-2014

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APPELLANT/PETITIONER:

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DR. A.V. GEORGE, AGED 58 YEARS S/O.THE LATE A.U.VARKEY, AIKARA HOUSE, THIDANAD PO KOTTAYAM DISTRICT.

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BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH

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RESPONDENT(S)/RESPONDENTS:

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CHANCELLOR, MAHATMA GANDHI UNIVERSITY, KERALA RAJ BHAVAN THIRUVANANTHAPURAM-695003.

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ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001.

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T.K.SAJEEV THULASI BHAVAN, KAVIYOOR P.O., THIRUVALLA TALUK PATHANAMTHITTA DISTRICT-695582.

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R3 BY ADV. SRI.SAJITH KUMAR V. R BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2015, THE COURT ON 07-01-2016 DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & P.V ASHA, JJ.

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W.A No.1432 of 2014

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Dated this the 7^th day of January, 2016

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JUDGMENT

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Asha, J.

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This appeal is filed by the former Vice Chancellor of the Mahatma Gandhi University (hereinafter referred to as `the University’ for short), aggrieved by the judgment of the learned Single Judge, upholding Ext.P4 order dated 12.5.2014 by which the Chancellor removed him from the office of the Vice Chancellor, rescinding Ext.R2(f) notification dated 5.1.2013 appointing him as Vice Chancellor.

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The following issues are raised in the Writ Appeal:

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Whether the Chancellor could invoke inherent power for removing the Vice Chancellor;

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whether removal from office/cancellation of appointment of Vice Chancellor is permissible on grounds other than those contained in Section 7(10) of the MG University Act;

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whether wrong address/designation given in bio-data by itself will entail in disqualification for continuing as Vice Chancellor and cause stigma in the career, when holding the post mentioned in the bio-data was not a necessary or desirable qualification for the

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appointment;

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and

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whether the Chancellor acted under dictation by the Government;

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The facts leading to the case are as follows:

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The office of the Vice Chancellor of the University became vacant on 14.12.2012, on expiry of the tenure of the then incumbent Sri. Rajan Gurukkal. The Chancellor, had by notification dated 26.11.2012, issued under Section 10(1) and (2) of the Mahatma Gandhi University Act, constituted a Search Committee consisting of 3 members for making recommendations for appointment to the post of Vice Chancellor of the University, with Sri Jose Cyriac, the then Chief Secretary to the Government of Kerala as Convener of the Committee. On 31.12.2012, 2 members of the committee submitted a panel containing 3 names including that of the appellant, and the 3^rd member submitted another panel with 2 names, in which the name of the appellant was not included. The Chancellor thereafter appointed the appellant as Vice Chancellor of the University, as per Ext.R2(f) notification dated 5.1.2013, for a period of 4 years. In this notification, the appellant was described as “Dr. A.V.George, Head, Department of Environmental Science, Central University, Kasaragode”.

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On 31.1.2013, the appellant submitted Ext.R3(c) letter to the Secretary to the Governor requesting to correct his designation shown in Ext.R2(f) notification, pointing out that there was a typographical error, as he was described as 'Head of the Department Environment & Geology, Central University'; whereas he was working as Head of the Department of Geology and Environmental Science in the Christ College, Irinjalakuda, as on the date of notification appointing him as Vice Chancellor. Thereafter, as per Ext.R3(e) letter dated 18.3.2013, the Secretary to Governor informed the appellant, that the designation shown in the notification was as noted by the Search Committee in its minutes and as given in the bio-data submitted by the appellant. Simultaneously, the Secretary to Governor forwarded copies of Ext.R3(c) letter of the appellant and its reply Ext.R3(e), to the Chief Secretary, along with Ext R3(d) letter, for further action.

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In the meanwhile, one Sri P.R.Biju filed W.P(c) No.1847 of 2013, challenging the appointment of the appellant and seeking for a writ of quo-warranto against him. The 3^rd respondent preferred complaints dated 24.5.2013 and 29.5.2013, before the Chancellor, against the appointment of the appellant. The 3^rd respondent thereafter filed W. P.(C) No.13317 of 2013 seeking a direction to the Chancellor to dispose of his complaints against the appointment.

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Thereafter the 3^rd respondent filed another W. P.(C) No. 24003/2013 seeking a writ of quo warranto against the appellant.

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The Secretary to Governor had forwarded the copies of the complaints to the Chief Secretary, as per Ext.R2(g) letter dated 10.6.2013 for further necessary action. The Chief Secretary thereupon called for a report on it from the Secretary, Higher Education Department. The Additional Chef Secretary, after conducting an inquiry into those, furnished Ext.R3(m) factual report on 27.8.2013, with reference to the allegations in the complaint, to the Chief Secretary and the same was forwarded to the office of the Governor. In the meanwhile, the 3^rd respondent preferred another representation requesting to process the report from the Government. Thereafter, the Secretary to the Chancellor, issued Ext.P2 show cause notice to the appellant on 21.12.2013, calling for his explanation on the statements made against him in the request of the Government and that of the 3^rd respondent to remove him from the post. Copies of the petitions of the 3^rd respondent were also forwarded to him.

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The show cause notice proceeded, saying,: “the Government says that the appointment itself is tainted on account of misidentification, misrepresentation, deception and misleading the Appointing Authority. The Government has requested to take

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appropriate steps in the light of the following aspects......”. The sum and substance of the show cause notice was that in the bio-data submitted, appellant described himself as Head, Department of the Environmental Science in Central University of Kerala at a time when he was already relieved from Central University and had already rejoined Christ College, Irinjalakuda as Head of the Department of Geology. The report of the Additional Secretary was to the effect that in the first set of bio-data of the appellant, which was personally handed over to the Chief Secretary between 10.12.2012 and 18.12.2012, the official address was shown as “Head, Department of Environmental Science, Central University of Kerala” and title was shown as “Brief bio-fsys of Dr.A.V.George, Central University of Kerala”. The resumes including that of the appellant received by the Chief Secretary as on 18.12.2012 were forwarded to the Principal Secretary, Higher Education Department, for compilation and preparation of list for the selection committee. The appellant submitted another set of bio-data bearing signature dated 26.12.2012 to the Chief Secretary on 26.12.2012. In this set, the title as well as official address of the appellant were the same as in the first one, but with inscriptions in ink on the right hand side of the printed matters furnished against item 2. official address, as: “(upto 29^th November 2012)” and on its right hand side, as: “Rejoined at Christ College, IJK,

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on superannuation on 30^th November 2012 as Head, Dept. of Geology & Envl. Science”. The third set of bio data was received in the office of the Chief Secretary, on 03.01.2013 through the Principal, Christ College, Irinjalakuda, bearing the signature dated 26.12.2012, of the appellant. This set also contained identical inscriptions in ink. The title as well as the official address shown in this bio-data also were the same but with the additions as carried out in the second set of biodata. In the report of the Additional Chief Secretary, it was stated that the a had submitted his bio-data showing his official address as Head of the Department in Central University and the selection committee had taken him to be a serving Head of the Department of the Central University. It was therefore stated that, there was a misidentification of the candidate considered for selection, and therefore the selection was ab initio void. It was further stated that under Section 10(12) of the M.G University Act, the Vice Chancellor shall be the Principal Academic and Executive Officer of the University and all the officers of the University shall be under his administrative control. As per the stipulations of the U.G.C in its regulations, persons of highest levels of integrity, morals and institutional commitment alone should be considered for the post of Vice Chancellor. It was further stated that the bio-data was prepared in such a way to convey an impression to the selection committee that he could even be considered under the

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UGC criteria for selection of the Vice Chancellor. Therefore, the appellant was prima facie found guilty of misrepresentation of facts to the selection committee and therefore to the Chancellor, who is the appointing authority of the Vice Chancellor; he was prima facie found to have tried to mislead and deceive the selection committee and the Chancellor. Therefore, the original selection itself made on a wrong basis and erroneous assumptions, was ab initio invalid and keeping in mind that, a Vice Chancellor, leading a University, should be a person of highest level of integrity, morals and institutional commitment, it was recommended that the appellant be removed from the post of Vice Chancellor.

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After reproducing the contents of the report as above, the show cause notice further proceeded saying that the State Government has, after detailed analysis and verification of the three sets of bio-data, concluded that the inscriptions in pen made on the bio-data had to be viewed as a deliberate attempt on the part of the appellant to deceive and mislead the selection committee and the appointing authority, which cannot be interpreted as an attempt to correct earlier information. The Government had also brought out that, the appellant had not served as a Professor in a University system and drawn salary equivalent to that of a Professor and that the distortions and falsification in the bio-data were made as a calculated

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attempt to make it appear that the appellant was from the Central University, with experience in the University system. The Government had thus clarified that the experience of the appellant, therefore would not be admissible for being considered for appointment as Vice Chancellor, where the selection is done as per the UGC Regulation, 2010 or UGC Regulations, (2^nd amendment) 2013. With the above findings, the report and copies of the representation submitted by Sri T.K.Sajeev, requesting to remove the appellant from the office of the Vice Chancellor, were forwarded along with the show cause notice asking the appellant to submit his explanation with regard to the statements made against him in the report of the Government and that of the 3^rd respondent to remove him from the post of Vice Chancellor, M.G University, within a period of 7 days.

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As per judgments dated 8.1.2014, the Writ Petitions filed against the appellant were closed/ withdrawn.

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In the meanwhile, the appellant had filed W.P(C) No.29926 of 2013 challenging Ext.R3(m) report of Dr.K.M.Abraham, Additional Chief Secretary, Higher Education Department. Thereafter, he filed W.P.(C) No.32310 of 2013, against the show cause notice. The Writ Petitions were disposed of by judgment dated 27.12.2013, granting liberty to the appellant to submit objections to

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the show cause notice. The appellant thereupon approached the Apex Court in Special Leave to Appeal (Civil) ......./2014 in C.C 65996600/2014 and both those SLPs were dismissed as withdrawn on 21.04.2014 (Annexure-XI).

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The appellant had submitted Ext.P3 explanation to the show cause notice, on 4.1.2014. A personal hearing was held initially before the former Chancellor on 25.01.2014. As the then Chancellor resigned, another hearing was held before the new Chancellor on 7.5.2014. The Chancellor issued Ext.P4 order, thereafter on 12.05.2014 rescinding the notification appointing the appellant.

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The appellant challenged Ext.P4 order on the following grounds:

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The recommendation for appointment of the appellant is made by a committee constituted under Section 10(1) and (2) of the M.G University Act. Until and unless that recommendation is found invalid, his appointment cannot be annulled. As the Chancellor can make appointment only on recommendation by the search committee, there is no inherent power in the Chancellor, to remove the Vice Chancellor. The difference in the address or designation given in the bio-datas submitted before the committee, by ipso facto cannot disqualify the appellant from continuing in the post of Vice Chancellor till the expiry of the statutory tenure. The appellant is removed from

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the office, in violation of the principles of natural justice, without conducting any inquiry. Ext.P4 is a nullity, issued on dictation by the Government, on irrelevant considerations. As the post of Vice Chancellor is a tenure post, he cannot be removed from the office, before the expiry of the statutory tenure of 4 years, except on conditions stipulated in Section 7(10) of the MG University Act, ie. on proved charges of misconduct.

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According to the appellant he had already carried out correction in his address in Ext R2(d) and (e) bio-datas submitted on 26.12.2012, from which it was clear that he was then working in Christ College and not Central University. As those bio-datas were very much available before the search committee, there was no basis for the allegations as to misrepresentation or fraud. According to him, he had to carry out corrections in writing in the printed matter due to paucity of time. According to the appellant, the judgment of the Apex Court in Bool Chand v. Kurukshetra University [AIR 1968 S.C 292] relied on by the learned Single Judge cannot apply to the facts of the case and the judgment requires to be interfered with.

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It is the contention of the appellant that the provisions contained in the M.G University Act relating to selection and appointment of Vice Chancellor do not provide for removal from service in this manner. The only circumstance under which there can

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be termination before the expiry of the tenure is when there is proved charges of misappropriation, mismanagement of funds or misbehaviour as provided in Section 7(10) of the M.G University Act. Therefore, the Chancellor does not have any authority to inquire into the alleged illegalities or irregularities occurred while including the appellant in the panel recommending his name. For appointment as Vice Chancellor, it is not necessary that one should be holding the post of Head of Department in a Central University or any other University. The qualifications possessed by the appellant were sufficient enough for appointment as Vice Chancellor. The Government does not have any role in the matter of appointment to the post of Vice Chancellor. The Chancellor seriously erred in relying on the report of Sri K.M.Abraham, Additional Chief Secretary. It is pointed out that the Chancellor had nominated Sri Jose Cyriac, who was the then Chief Secretary as a member of the three Member Committee and as the Convener of the Selection Committee. It was not the Chief Secretary to Government, who was nominated and therefore the report made by the Additional Chief Secretary or the Deputy Secretary, cannot have any relevance for the purpose of this case. The nominee was to act as a persona designata and his powers in that capacity cannot be exercised by the successor in office.

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According to the appellant, if at all an inquiry was to be

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conducted on the complaints received against him from the 3^rd respondent or others, the Chancellor ought to have appointed an inquiry authority and decided the matter after giving reasonable opportunity to the appellant, instead of calling for comments from the Chief Secretary and relying on such report. Moreover, the Chancellor is not to act upon such reports. The Chancellor was not to act in his capacity as Governor, on the aid and advice of council of Ministers. In the matter of appointment of Vice Chancellor, the Governor was acting in his capacity as a Chancellor and was not bound by the directions or recommendations of the Government or to receive the aid and advice of council of Ministers. Therefore, the order of removal, which is issued under dictation is unsustainable. According to the appellant, the persons who submitted the complaint are not aspirants for appointment to the post of Vice Chancellor or members of the Search Committee. It was also argued that there was no irregularity in the procedure adopted by the Search committee. It was neither arbitrary nor unreasonable or non-est in the eye of law, so as to result in removal from service.

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We heard the learned Senior Counsel Sri O.V.Radhakrishnan appearing for the appellant and Senior Government Pleader Smt.Girija Gopal appearing for the official respondents and Sri V.Sajith Kumar, appearing for the 3^rd respondent.

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The notification appointing the appellant as Vice Chancellor was rescinded by Ext.P4 on the ground that, there was misrepresentation in the designation and address furnished by the appellant in his bio-data, which was considered for his selection for appointment as Vice Chancellor. Two questions are raised: whether there is any inherent power in Chancellor to order removal from service and (2) whether the incorrect designation and address furnished by the appellant were fatal so as to result in cancellation of his appointment and whether the Chancellor did have authority to cancel the appointment on the gound of misrepresentation.

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We have considered the submissions made and gone through the records. There are 3 sets of bio-datas of the appellant. One, which is initialled by the Chief Secretary on 18.12.2012, [Ext R2 (c)] does not contain any corrections in writing. (Though in the writ petition, the appellant has taken the stand that he had not submitted the 1^st set of bio-data initialled on 18.12.2012, such a contention is not raised or urged in this appeal.) Yet another bio-data [Ext R2(d)] along with covering letter dated 26.12.2012, sent as advance copy, is seen initialled by the Principal Secretary, Higher Education Department on 29.12.2012 with endorsement 'already received' . Yet another one [Ext R2(e)]is seen received through the Principal of Christ College, Irinjalakuda and reached Government after the date fixed. The latter

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2 resumes are alike containing inscriptions in writing along with and on the right hand side of the printed particulars furnished as against sl. no.2. Official Address :“(upto 29^th November 2012) (Rejoined at Christ College, Irinjalakuda, on superannuation on 30^th Nov. 2012 as Head, Dept. of Geology & Envl. Science)”. It is pertinent to note that in all these resumes, the title is given as 'Bio-data of Dr.A.V.George, Head, Department of Environmental Science, Central University.' We find that there are certain other details also in the bio-data describing the appellant as, one who was still continuing as Head, Department of Environmental Science, Central University of Kerala in several places, as can be seen from Ext.R2(c), Ext.R2(d) and (e). For example, the title given in Ext.R2(d) is bio-data of Dr.A.V.George (in brief) Central University of Kerala. As against sl. no. 2 - official address, the appellant has written “(upto 29^th November 2012) (Rejoined at Christ College, Irinjalakkuda, on superannuation on 30^th Nov. 2012 as Head, Dept. of Geology & Envl. Science)”.

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Clause 4 under Sl.no. 9 : M.Sc Environmental Science, Central University of Kerala. (from 2012 July 24 onwards)

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Clause 4 under Sl.No.10 : Currently working as Head, Dept. of Envl. Science Central University of Kerala Clause 20 - Present status/Position

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As Head, Department of Envl.Science

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As against item No.2-official address at page 215 of Ext.R(d) :”Head, Department of Environmental Science, Central University of Kerala. As against sl. No.9.A -Teaching Experience, the last portion is shown as : “Head, Department of Environmental Science, Central University of Kerala. (Still continuing).”

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At page 216, item No.B(1) : As Head, Department of Envl.Science Central University of Kerala. (Still Continuing)”

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As against clause C : Designation: “Head & Academic co-ordinator, Department of Environmental Science Central University of Kerala, Kasaragod.”,

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At page No.223 - Sl.No.34. “Head, Department of Environmental Science, Central University of Kerala (Present Status)” Ext.R2(e) also contains identical entries.

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The case of the appellant is that Search Committee ought to have considered Ext.R2(d) bio-data alone and not the one submitted between 10.12.2012 and 18.12.2012 to the Chief Secretary directly. As per the counter affidavit filed by the Government, the Search Committee evaluates the bio-data of persons who offer themselves to be appointed to the post of Vice Chancellor and recommends the names of eligible persons. The Committee met on 20.11.2012 and discussed the parameters to be adopted for selection by accepting all resumes received upto 28.12.2012. According to the Government, it

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was Ext.R2(c) bio-data that was taken into consideration by the selection committee, in which the appellant had described himself as Head, Department of Environmental Science, Central University of Kerala. It was on the basis of such address that the notification appointing the appellant, described him as “Head, Department of Environmental Science, Central University of Kerala” was issued. According to the Government, the selection was finalised under the bona fide impression that the appellant was holding the designation of the Head of Department in the University. He was described in Ext.R2(f) notification also as “Dr.A.V.George, Head, Department of Environmental Science, Central University of Kerala, Kasaragod”. Therefore it is the case of the Government that the designation of the appellant has played a crucial role in choosing and appointing him as the Vice Chancellor.

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It is the case of the Government that the appellant secured appointment by misrepresenting material facts and therefore it was well within the powers of the Chancellor to remove him from the post, as fraud and misrepresentation vitiate any appointment, even in the absence of the circumstances provided in Section 7 of the M.G University Act. Moreover the question of removal under Section 7 of the Act comes only in cases of those who are validly appointed. The Chancellor has every authority to remove a person in such

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circumstances, in his capacity as the appointing authority.

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The learned Single Judge after examining the records, leading to Ext P4, found that there was misrepresentation by the appellant and that there was suppression of material facts initiating his appointment. The learned Single Judge also found that Ext.R2(c), copy of the bio-data was available before the Search Committee which met on 31.12.2012. Ext.R2(d), copy of the bio-data which contained inscriptions in writing therein was also before the search committee, which according to the respondents, were not noticed. On the copy of Ext.R2(d), the learned Single Judge noticed an endorsement made by the Principal Secretary (Higher Education) “already entered”. The said bio-data was seen to have been received in the secretariat on 27.12.2012 and initialled on 29.12.12. Therefore, it was found that even though both the copies of bio-data - Ext.R2(c) as well as Ext.R2 (d), were available before the Search Committee on the relevant date, they appeared to have relied only on Ext.R2(c). It was found that 2 of the members suggested a panel of 3 names including that of the appellant, while the UGC nominee suggested another panel which did not contain the name of the appellant. The learned Single Judge also found that the appellant was the only person among those empaneled who was not designated as a Professor. It was also noticed that while suggesting the names in the panel and forwarding the panel to the

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Chancellor, the names of empanelled persons were listed with specific mention of their current designation as follows:

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“Prof. G.Gopa Kumar, UGC-Emeritus Fellow, University of Kerala.

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Prof. V.Prasannakumar, Professor of Geology and Director, Inter-University Centre for Geospatial Information Science and Technology.

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Dr.A.V.George, Head, Department of Environmental Science, Central University of Kerala, Kasaragod.”

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It was therefore found that the description of the persons empanelled suggested a possibility of the designation of the said persons having been a criteria for choice of candidates. On perusal of the files, the learned Single Judge found that there was every possibility that the designation of the appellant as Head of Environmental Science, Central University of Kerala, weighed with the Search Committee, while determining the suitability for empanelment. In the circumstances of the case, the learned Single Judge also found that the view of the Chancellor that the representation regarding current designation of the appellant amounted to a clear misrepresentation of facts that misled the committee while empanelling him as a candidate, cannot be held to be either arbitrary or unreasonable in the context of the criteria that was adopted by the Search Committee. The contention of the appellant that the Search Committee would have very well avoided any confusion regarding his designation, referring to Ext.R(d) was found unsustainable. Even if Ext.R2(d) was taken into consideration, the learned Single Judge found that the correction

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therein could not have come to the aid of the appellant. The learned Single Judge also noticed the indifferent and irresponsible manner in which the appellant pursued his application for appointment to a prestigious post in academic subjects. It was also observed that the office of the Vice Chancellor of the M.G.University is of very great importance in the scheme of University level education in the State. Under the Mahatma Gandhi University Act, he is the Principal Academic and Executive Officer of the University having administrative control over all the other officers of the University; he is the Chairman of the Senate, Syndicate, the Academic Council and Finance Committee of the University. The manner of his appointment on recommendation by the Search Committee constituted under the Act with the Chancellor as the appointing authority and the procedure for removal from the office etc. provided in the Act indicate the exalted position that he occupies in academic circles. It is as against such a post that the appellant submitted the bio-data in such a careless manner.

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Regarding the contention of the appellant that the order of removal was passed on dictation by the State Government, the learned Single Judge found that the Chancellor had arrived at the decision on independent analysis of the situation. Merely because a report was called for from the Chief Secretary on the complaints

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received and the Chief Secretary in turn called for a report from the 2^nd respondent, there is no basis for the contention that the Chancellor mechanically adopted the report and removed the appellant. The notification determining the appointment was issued only after a show cause notice was issued and the explanation submitted by the appellant was considered after hearing him.

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The contention that removal of Vice Chancellor can be ordered only if the circumstances under Section 7 of the M.G University Act exists, was repelled and that there is no power in the Chancellor to remove the Vice Chancellor from his office was also repelled, holding that the power to appoint carries with it the power to terminate also and to determine such employment. The learned Single Judge relying on the judgment of the Apex Court in Devendra Kumar v. State of Uttaranchal [(2013) 9 SCC 363] held that it is the settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon a competent authority, such appointment cannot be sustained in the eye of law.

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The appellant had also filed a review petition-R.P No.690 of 2013, against the judgment dated 18.08.2014 pointing out that, there was no finding as to whether the Chancellor has inherent power to remove the review petitioner without the recommendation of the Committee being recalled or without the recommendation of the

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Committee being found to be vitiated by illegalities of a competent forum. It was also stated that the appellant had been working as Head of the Department of Environmental Science until he was relieved from the Central University. It was also stated that the finding as to the false and misleading representation was erroneous. The appellant produced Annexures I to XIII, saying that those documents could not be produced earlier. Annexure I is the bio-data along with the covering letter dt.26.12.2012, Annexure-II is a letter dated 26.11.2012 of the Registrar, Central University of Kerala; Annexure-III is order dated 14.8.2012 of the Registrar of the Central University, Annexure-IV is a certificate dated 13.6.2013 of the Registrar in charge, Central University of Kerala, Annexure-V is the notification dated 5.1.2013 of the 1^st respondent appointing the appellant as Vice Chancellor, Annexures VI to X are the judgments in Writ Petition Nos.1847/2013, 13317/2013, 24003/2013, 32310/2013, 29926/2013; Annexure-XI is order dated 21.04.2014 of the Apex Court, dismissing the Special Leave Petitions filed by the appellant as withdrawn; Annexure-XII is the extract of the Note file produced in W.P(c) No.13317/2013 filed by the 3^rd respondent herein and Annexure-XIII is the extract of the report drawn up by the Additional Chief Secretary.

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It was argued on behalf of the appellant that, the relevant

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factors which weighed with the Search Committee while recommending the appellant by including him in the panel submitted before the Chancellor could have been decided, only after examining the members of the Search Committee. As long as the proceedings of the Search committee were not minuted, it was not possible to assume the factors which weighed with the Committee for the selection, at any rate without conducting an inquiry.

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The Chancellor relied only on the report furnished by the Additional Chief Secretary to the Government and the said report was obtained behind the back of the appellant in violation of the principles of natural justice. It was also alleged that any misrepresentation cannot disqualify the appellant. It was only those misrepresentations by which a benefit that he would have otherwise not obtained, that can be treated as fatal so as to disqualify the appellant. The learned Single Judge, after considering all the contentions raised, did not find any ground for review of the judgment.

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In the appeal also, the case of the appellant is that he had not made any misrepresentation and that if at all the address furnished in the bio-data can be treated as a misrepresentation, that cannot be fatal resulting in removal from the post, causing a stigma in his career. It was pointed out that for appointment as Vice Chancellor, it is not necessary that one should be the Head of a

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Department.

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The learned counsel for the appellant relied on the decisions reported in Transcore v. Union of India : [(2008) 1 SCC 125], Rajeev Hitendra Pathak v. Achyut Kashinath Karekar : [(2011) 9 SCC 541], Gopalakrishnan V Chancellor, University of Kerala : [1990(1) KLT 681], Bhuri Nath v. State of J&K : [(1997) 2 SCC 745], Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi : [AIR 1975 Supreme Court 1331] in support of his contention that Governor when acting as Chancellor of a University is to exercise only such powers which are conferred on him under the statute and any action taken in exercise of such powers shall also be in terms of the provisions contained in the said statute and is not expected to seek or act upon the aid and advice of the council of ministers. Regarding the allegations as to his designation given in the bio-data, it was pointed out that, the appellant did not gain any undue advantage on account of the fact that he was described as Head of Department. It was also argued that it was not a prescribed or desirable qualification for appointment as Vice Chancellor that the applicant should be the Head of the Department. There is also no material to show that the address of the appellant as Head of the Department was the decisive factor in empanelling him. It was argued that the tenure of appointment of Vice Chancellors is 4

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years. Therefore, there was no reason to cut short the tenure, in the absence of any allegations as against his conduct after appointment. He further relied on the decision reported in Union of India and another v. Shardindu [(2007) 6 SCC 276] and Post Master v. Usha [1987 (2) KLT 705]. The judgments in Rama Shanker Misra v. Regional Transport Authority, Kanpur [AIR 1960 All. 247], Babu Ram Sharma v. State of Uttar Pradesh [AIR 1953 All. 641], Ashok Kumar Sonkar v. Union of India and Ors. [(2007) 4 SCC 54], State of Karnataka v. Registrar General, High Court of Karnataka [2000) 7 SCC 333], etc. were also relied upon.

¶119

In Union of India and another v. Shardindu [(2007) 6 SCC 276], the removal of the Chairperson of NCTE was in question. The respondent therein, while working as Director, State Council for Educational Research and Training in the State of Uttar Pradesh, was appointed as the Chairperson of NCTE. The appointment was for a fixed tenure of 4 years or till he attains the age of 60 years. Section 5 provided for the circumstances under which one is that the incumbent is disqualified to hold the post. He took charge on 22.01.2004. In 2004, an inquiry was conducted into the examination held in 2001. Based on the inquiry report submitted by the State Vigilance Commission on 27-3-2005, FIR was registered on 19-9-2005 implicating persons including the respondent herein. The State

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Government thereupon placed the respondent under suspension. When this fact came to the notice of the Union of India, it passed an order on 18-11-2005 terminating the deputation of the respondent as Chairperson, NCTE. Respondent challenged the termination. There it was held that in the absence of any provision that his tenure could be cut short for his previous misconduct, the termination was bad, as long as the incumbent had not incurred any disqualification provided in Section 5 and 6 of the Act. It was when there are clear provisions to be applied on the subject, it will be a travesty of justice to cut short the statutory appointment of any incumbent on grounds not provided. After discussing the judgments on the issue, the Apex Court, repelled the contention of the Additional Solicitor General that the casus omissus may be supplied by the court in a contingency not foreseen by the draftsmen or by Parliament, so that the tenure of the respondent be cut short since the incumbent was facing the charge. The respondent therein was directed to be restored back with all benefits.

¶123

In the judgment of the Division Bench of this Court in Post Master v. Usha [1987 (2) KLT 705], the termination of services of an ED Agent invoking Rule 6 of the E.D Agents Conduct & Service Rules, was held illegal, observing that irregularities if any committed in the process of selection itself or in the matter of appointment do not come under Rule 6. Interpreting Rule 6, this Court held that a

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termination other than on grounds enumerated in Rule 6 was illegal.

¶127

In Shardindu 's case (supra), the inquiry report of the Vigilance Commission was furnished before the State Government in the year 2005, more than about one year after he took charge as Chairman, though incident was prior to that. The Central Government took action seeing the disciplinary proceedings initiated against him. In this case the issue is with respect to the character and antecedents of the appellant.

¶128

It was argued that the selection was made on the basis of credentials in the bio-data and not on the basis of the address given therein. Even if a mistake has occurred in the address, that was irrelevant and a mis-statement cannot result in removal from office. Relying on the observations in paragraph 10 of the judgment of the High Court of Allahabad in Rama Shanker Misra v. Regional Transport Authority, Kanpur [AIR 1960 All. 247], it was argued that misrepresentation must have pertained to those facts which would have dis-entitled the appellant to obtain appointment. In that case, it was found that the term `misrepresentation’ was not defined in the Motor Vehicles Act. It was held that in the context of misstatement, every misrepresentation or concealment of fact will not amount to misrepresentation to justify cancellation of permit and that misrepresentation must pertain to those facts which would have dis-

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entitled the petitioner to obtain an order in favour of replacement of the vehicle.

¶132

The learned Senior Government Pleader Smt.Girija Gopal, on the basis of the contentions raised in the counter affidavit as well as with reference to the files leading to the impugned order argued that the Chancellor has rightly arrived at the conclusion, after issuing show cause notice and affording an opportunity of hearing to the appellant. It was pointed out that Ext.R3(a) notification constituting the Search Committee was issued on 26.11.2012. Ext.R2(c) bio-data was handed over to the Chief Secretary by the appellant or on behalf of the appellant on 18.12.2012, the receipt of which is evidenced from the records. At the same time, Ext.R2(d) was received on 27.12.2012 and Ext.R2(e) bio-data was received through the college on 03.01.2013. The appellant has produced Ext.P7 claiming that it is the copy of the bio-data which he submitted. From Ext.R2(c), it can be seen that the bio-data of the appellant was received in the office of the Chief Secretary on 18.12.2012 as it contains initials with date, apart from a round seal with the date 19.12.2012 stamped on it. It bears No.11379/MIS/12/ISO. From the facing sheet of Ext.R2(c), it is clear that the bio-data of the appellant was made available before the Chief Secretary on 18.12.2012 itself. It is Ext.R2(c) which came up for consideration before the Search Committee. The endorsement on Ext

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R2(d): “already entered” shows that it was Ext R2(c), which was considered by the search committee. She pointed out that the description of the appellant as Head of the Department in Central University and that he continued in the Central University are not only in the first page of his resume where correction is carried out; Against entry No.10-administrative experience, he has stated “currently working as Head, Dept. of Envl.Science, Central University of Kerala”. In the 7^th page of Ext.R2(d) bio-data, his designation is shown as 'Head & Academic Co-ordinator, Department of Environmental Science Central University of Kerala, Kasargod'. In the 13^th page of Ext.R2(e), his present status was shown as “Head. P.G Department of Environmental Sciences and Geology (1981-2005) as item No.34. These bio-datas bear signature at the 17^th , 18^th and 19^th pages. Ext.R2(d) bio-data is forwarded by the appellant along with letter dated 26.12.2012 addressed to Sri Jose Cyriac, IAS, in which his designation is shown as Head, P.G and Research Department, Geology and Environmental Sciences, Christ College, Irinjalakuda. There is an endorsement on this letter as : “already entered”, by the Principal Secretary, Higher Education with signature, dated 29.12.2012. This bears a number on this letter as 11630/MIS/12/C30. It is in this biodata, on the right hand side of his official address that an inscription in writing is entered as “(Rejoined at Christ College, Irinjalakkuda, on

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superannuation on 30^th Nov. 2012 as Head, Dept. of Geology & Envl. Science)” and as against the printed portion of the official address, there is an addition as “upto 29^th November, 2012”. But the other entries continued to be the same as in Ext.R2(c) under item No.9.A teaching experience’ as xxxxxxx. Similarly his administrative experience given in item 10 is given as Sl.No.4 as currently working as Head, Department of Environmental Science, Central University of Kerala. Similarly his present status/position given as sl.no.20 is shown as “Head, Department of Environmental Science”. The official address given in the 6<sup>th</sup> page of the bio data is that of Central University of Kerala and the teaching experience detailed under Sl.No.9A in the 6<sup>th</sup> page it is stated as “Head, Department of Environmental Science, Central University of Kerala (still continuing). Similar is the case under Sl.No.1 given under B-administrative experience and the designation given as C’. Similarly, all along, his status, designation, experience, etc. all remained unaltered in Ext.R2 (d) bio-data also. The contention of the appellant that he furnished the bio-data only pursuant to the press release is refuted pointing out the entries on the facing sheet of the bio-data submitted by the appellant. It is argued that the appellant happened to be selected from among several academicians/applicants only because of his description as Head of the Department in the Central University,

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leading to the notification Ext.R2(f) appointing him as the Vice Chancellor of the University. It is pointed out that petitions dated 25.4.2013 and 29.05.2013 from the 3^rd respondent alleging irregularities on the appointment of the Vice Chancellor, were forwarded to the Chief Secretary. Relying on a series of judgments she supported the impugned order as well as the judgment of the learned Single Judge.

¶139

Before examining the judgments relied on by either side, it is necessary to have a look at the relevant provisions in the M.G University Act, dealing with appointment of Vice Cancellor. Vice Chancellor is an officer of the University, as provided in Section 9 of the M G University Act. As per Section 10 under Chapter III of the MG University Act, Vice Chancellor shall be appointed by the Chancellor on the recommendation of a committee appointed by the Chancellor for the purpose. The committee shall consist of three members, i.e one elected by the senate, one nominated by the UGC and one nominated by the Chancellor. The Chancellor shall appoint one of these members to be the convener. The Committee has to make recommendation within 5 months. If recommendation is unanimous, Chancellor has to appoint him as Vice Chancellor. If it is not unanimous, Chancellor shall appoint one from the panel of three names submitted by the committee within the prescribed period.

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¶141

Subsection 10 of Section 7 of MG University Act, provides for the circumstances/grounds under which removal of Vice Chancellor or Pro Vice Chancellor can be ordered. Those 3 grounds are (1) misappropriation or (2) mismanagement of funds or (3) misbehaviour. Admittedly the removal is not under Section 7 of the Act. But it is in exercise of inherent powers of the appointing authority that the removal is ordered.

¶142

The learned Senior Counsel relied on the judgment of the apex court in Transcore v. Union of India, (2008) 1 SCC 125, in support of his contention that there is no inherent power on the Chancellor to cancel the appointment of Vice Chancellor, pointing out that there is no such provision in the University Act or statutes or any of the rules of the University. The apex court was considering the question whether the Debt Recovery Tribunal has got any inherent power and it was held that it does not have any power other than what is provided in the Statute, as the DRT itself was created by statute. In para 67, it was held as follows:

¶143

“67. The question still remains as to the object behind insertion of the three provisos to Section 19(1) of the DRT Act vide amending Act 30 of 2004. The DRT is a tribunal, it is the creature of the statute, it has no inherent power which exists in the civil courts. Order 23 Rule 1(3) CPC states inter alia that where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim then the civil court may, on such terms as it thinks fit, grant the plaintiff permission to withdraw the entire suit or such part of the claim with liberty to institute a fresh suit in

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respect thereof. Xxxxx“ .

¶147

Further in Rajeev Hitendra Pathak v. Achyut Kashinath Karekar,

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(2011) 9 SCC 541, the apex court held that the consumer courts are not courts having any inherent power. In para 34 it was held as follows :

¶149

“34. On a careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the statute and derive their power from the express provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and the power of review and the powers which have not been expressly given by the statute cannot be exercised.”

¶150

It was contended that when the Governor was acting in the capacity as Chancellor of the University, he was not bound to seek aid and advice of the council of ministers. In Gopalakrishnan v. Chancellor, University of Kerala : 1990 (1) KLT 681, the nomination of respondents 4 to 10 therein, made by the Chancellor was under challenge, alleging that Governor made the nomination acting on her own, without the advice of her Council of Ministers, except in the case of two persons. whereby the constitutional mandate of the Governor acting on the aid and advice of the Council of Ministers was violated. In para 25 it was held as follows:

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“25. A conspectus of these provisions makes it evident that the statute has made a clear distinction between the Chancellor and the government. Each one has got specific roles and functions to perform. Whenever the Chancellor is required to exercise a particular function, it is so specified. Whenever any powers or functions are vested on the government, they are also specifically delineated. There is thus a clear specification of the functions to

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be exercised by the respective authorities, namely the Chancellor and the government. The Chancellor is part of the University while the government is not. Whatever function the Chancellor exercises or does is by virtue of his position as a constituent part of the University, and not as Governor of the State. It is true that the Governor is ex-officio the Chancellor, but that is not to say that the position of the Chancellor is the same as that of the Governor. While the functions of the Governor are constitutional, the functions of the Chancellor are statutory, and are to be exercised in accordance with the provisions of the statute. He is not acting as part of the executive government in exercising such functions, but as a statutory functionary forming a part and parcel of the University itself.”

¶155

This court discussed the history behind appointing the Governors as Chancellors of Universities, the case law on the powers of the Chancellors and the immunity required for the Universities. In para 28, it was observed as follows:

¶156

“28. It is thus imperative that the Chancellor, in exercising his powers and functions under the law governing the University, should act on his own discretion, unhampered by, without the necessity of, seeking or following, the aid and advice of his Council of Ministers. This view of ours is supported by certain observations of the Supreme Court in Samsher Singh’s case (AIR 1974 S.C. 2192).”

¶157

These judgments were considered and discussed in detail in Adv. D.B. Binu v. Governor of Kerala : : 2010 (4) KLT 859. There Governor was impleaded in the array of respondents on the ground that Governor was the appointing authority of Information Commissioner, whose appointment was under challenge. The registry raised an objection against this and the matter was considered by the division bench. Under Section 15(3) of the Right to Information Act,

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the members of the Commission are to be appointed by the Governor on recommendation by a committee consisting of the Chief Minister, Leader of Opposition in the legislative assembly and a Cabinet Minister to be nominated by the Chief Minister. Whether Governor was a necessary party in a case where the selection/procedure adopted in selection were under challenge, was the question considered by the Division Bench. The learned Single Judge had held that Governor is not to be impleaded, as there is a bar under Article 361 of the Constitution of India. After discussing various judgments on the immunity of Governor under Article 361 of the Constitution of India, this court held as follows:

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“39. The case on hand is a clear example of this position. The Right to Information Act confers the authority on the Governor of a State to choose the Information Commissioners. The nomenclature employed is “Governor”. But, the Governor is to make the choice of the Information Commissioners on the recommendation of the Committee mentioned under S.15(3), i.e. the Chief Minister, Leader of Opposition and one member of the Cabinet nominated by the Chief Minister. That being the specification under the law, obviously the Governor is not expected to either seek or act in accordance with the advice of the Cabinet/Council of Ministers. Nonetheless, the Governor cannot act in his absolute discretion also. S.15(3) mandates that the Governor shall appoint the Commissioners on the recommendation of the Committee mentioned above.

¶161

Therefore, to make the Governor personally answerable in such a situation in a Court of law, in our opinion, would not promote any constitutionally desirable purpose. We are therefore of the opinion that the immunity under Article 361(1) extends in an appropriate case to the Governor discharging powers and duties entrusted to him by a statue or statutory instrument irrespective of the nomenclature appended to the statutory office conferred upon the Governor.

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The relevant test to determine the appropriateness of the case is the nature of the function or power exercised by the Governor and the existence or otherwise of inherent safeguards against the abuse of the power.

¶165

In the instant case the Governor made the appointment in question on the recommendation of a statutory committee consisting of three constitutional office holders and, therefore, there is an inherent check against any abuse of the power. Therefore the objection of the Registry is well founded.”

¶166

In the present case the appointment is made on recommendation by the search committee appointed by the Chancellor himself.

¶167

In the judgment in Bhuri Nath v. State of J&K, (1997) 2 SCC 745, analysed various judgments in which Governor's power under different capacities under various enactments. was discussed. In that case the apex court dealt with the nature of power vested in Governor under the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988. Para 25 of the judgment reads as follows:

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“ 25. In Hardwari Lal case (AIR 1982 P & H 439), a Full Bench of the Punjab and Haryana High Court considered whether the Governor in his capacity as the Chancellor of Maharshi Dayanand University was to act under Maharshi Dayanand University Act, 1975 (Haryana Act No. 25 of 1975) in his official capacity as Chancellor or with aid and advice of the Council of Ministers. The Full Bench, after elaborate consideration of the provisions of the Act and the statutes, came to observe in para 121 at p. 476 that the Act and the statutes intended that the State Government would not interfere in the affairs of the University. The State Government is an authority quite distinct from the authority of the Chancellor. The State Government cannot advise the Chancellor to act in a particular manner. The University, as a statutory body, autonomous in character, has been given certain powers exercisable by the Chancellor in his absolute discretion without any interference from any quarter. In the

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appointment of the Vice-Chancellor or the Pro-Vice-Chancellor, the Chancellor is not required to consult the Council of Ministers. Though by virtue of his office as Governor, he becomes the Chancellor of the University, but while discharging the functions of his office, he does not perform any duty or exercise any power of the office of the Governor individually. However, while discharging the functions as a Chancellor, he does every act in his discretion as Chancellor and he does not act on the aid and advice of his Council of Ministers. The performance of the functions and duties under the Constitution with the aid and advice of the Council of Ministers is distinct and different from his discharge of the powers and duties of his office as Chancellor of the University. Under the Act and the statute, the Chancellor has independent existence and exercises his powers without any interference from any quarter. Therefore, the office as a Chancellor held by the Governor is a statutory office quite distinct from the office of the Governor. Same view was taken by the Andhra Pradesh High Court in Kiran Babu case (AIR 1986 AP 275). In Ram Nagina Singh v. S.V. Sohni(AIR 1976 Pat 36) the question was as to the appointment of a Lokayukta under Section 3 of the Bihar Lokayukta Act, 1974 to be made by the Governor in his capacity as Governor of the State, with the aid and advice of the Council of Ministers. The language of Section 3(1) of the said Act provides that “the Governor shall by warrant under his hand and seal appoint a person to be known as the Lokayukta of Bihar”. Considering the language in that provisions and the scheme of the Act for removal of the Lokayukta, the Division Bench came to hold that the Governor, with the aid and advice of the Council of Ministers, discharges the function in the appointment of the Lokayukta under Section 3 of that Act. In the light of the language therein, there is little difficulty in upholding the correctness of the decision but it renders little assistance to the present controversy. The ratio in Mansing Surajsingh Padvi case(1968)70 Bom LR 654 relates to the exercise of the power by the Governor under the West Khandesh Mehwassi Estates (Proprietary Rights Abolition, etc.) Regulation, 1961. From the notification issued thereunder, the learned Judges appear to have reached the conclusion that the Governor acts with the aid and advice of the Council of Ministers. They did not correctly understand the scope of Schedule V to the Constitution in its relation to the administration of the scheduled area. The power of State and the Governor in that behalf was not properly understood nor brought home to the learned Judges. Therefore, the learned Judges were not right in holding that the Governor while exercising the power under Schedule V of the Constitution acts with the aid and advice of the Council of Ministers. The law

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laid down therein is not correct in law.”

¶174

In that case, the power of Governor under the the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988, was elaborately considered. The administration, management and governance and ownership of the Shrine and Shrine Fund vests in the Board constituted under Section 5, with Chairman and not more than 10 members. Governor of the State of Jammu and Kashmir, and if the Governor be not a Hindu, then an eminent person professing Hindu religion and qualified to be a member to be nominated by the Governor, shall be the ex-officio Chairman of the Board. Governor shall nominate nine members to the Board, as indicated therein. Subsection (2) of Section 5 declares that a person shall not be eligible for being nominated as a member of the Board, if he suffers or incurs any of the disqualifications specified in Section 8. Section 9 empowers Governor to dissolve or supersede the Board after due enquiry and to reconstitute another Board. The Governor shall assume and exercise all the powers of the Board for a period not exceeding three months or until the re-constitution. The power to remove a member under Section 12 of the Act is also on Governor (12. Removal of a member.— The Governor may, for good and sufficient reason, remove any member after giving him an opportunity of showing cause against such removal and after considering the explanation offered therefor”).

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After examining the provisions contained in the Act, the apex court held that there is no scope to apprehend that the Board will misuse or abuse the power and mismanage the funds or properties of the Shrine and that the exercise of powers and functions under the Act is distinct and different from those exercised formally in his name for which responsibility rests only with his Council of Ministers. After discussing the role of Governor under the provisions in the Act with reference to the provisions in similar enactments of other states, apex court found that the power conferred under the Act is independent of that which requires the aid and advice of council of ministers.

¶177

There cannot be any doubt for the proposition that the Chancellor was not expected to seek or act on aid or advice of the council of ministers.

¶178

Relying on the judgment of the apex court in Baldev Raj Guliani v. Punjab & Haryana High Court: AIR 1976 SC 2490 , it

¶179

was argued that Chancellor was not right in acting upon the report received from the Secretary or Additional Secretary to govt. The Supreme Court was considering a case where the Governor had sought the advice of UPSC, when the High Court had recommended the removal from service of a District Judge under Article 235 of the Constitution of India. It was held therein that the Governor could not have consulted the Public Service Commission in the case of judicial

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officers and accept its advice and act according to it. It was held that the advice should be of no authority other than the High Court in the matter of judicial officers and that any other interpretation to Article 320(3)(c) will be to defeat the supreme object underlying Article 235 of the Constitution specially intended for protection of the judicial officers and the independence of the subordinate judiciary. It was held that there is no room for any outside body between the Governor and the High Court. The apex court quashed the order of the Governor which was passed after seeking its advice from UPSC, as one constitutionally invalid.

¶182

The order impugned in this case is evidently not one passed mechanically. Merely because there is an enquiry report, it cannot be said that Chancellor acted on the aid or advice of council of ministers. A report was called for, on receipt of the request of appellant to correct his address and on receipt of complaints against the appointment of appellant. The decision to cancel the appointment is taken after independent consideration of the explanation of appellant and after perusal of the records.

¶183

In University of Mysore v. C.D. Govinda Rao: AIR 1965 SC 491, the issue was regarding appointment of one Sri. Anniah Gowda as a Research Reader in English in the Central College, Bangalore, alleging want of requisite qualification, as notified. A

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direction was sought to the University to appoint the appellant therein. The High Court quashed the resolution of the Board of Appointments of the University of Mysore recommending his appointment and his appointment made on its basis by the Chancellor of the University. The Board had recommended Sri. Anniah Gowda as the most suitable one for appointment as Reader. From the pleadings, apex court found that the appointment was not challenged on any violation of any provision of statute or ordinance. The High Court accepted the contention of the respondent that 50.2% marks cannot be considered as high second class, the first requirement in the notification and held that the recommendation of the Board was not proper. But the apex court found that the first requirement with respect to qualification had two parts i.e a high Second Class Master's Degree of an Indian University as first part; its equivalent which is an equivalent qualification of a foreign University as second part. The apex court found that it was quite likely that the Board may have taken the view that the Degree of Master of Arts of the Durham University, which Appellant 2 had obtained, was equivalent to a high Second Class Master's Degree of an Indian University. Apex court found that as long as there was no allegation of malafides against the Board constituted with experts in the field in recommending the 2^nd appellant, the criticism made by the High Court in academic matters

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was unfounded. In the above circumstances the apex court held that in a writ of certiorari against the appointment, the High Court should have done the following:

¶189

“ 12. xxxxxx In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writs of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinion expressed by the Board and its recommendations on which the Chancellor has acted. In this connection, the High Court has failed to notice one significant fact that when the Board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that Appellant 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified.”

¶190

It is pertinent to note that the question arising in this case is not regarding any particular qualification or its equivalency. But the manner in which the appellant described himself. The circumstances arising in this case are entirely different. There is no question of transgressing into the jurisdiction of academic experts. It was argued that the matter should have been sent back to selection committee in case the selection was found liable to be scrapped. But we do not find any justification to adopt such a course.

¶191

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The judgment of Allahabad High Court in Babu Ram Sharma V State of Uttar Pradesh : [AIR 1953 All 641] was in a case where the stage carriage permit was cancelled on the ground that petitioner obtained the same by misrepresentation that the vehicle was in his possession, consequent to which the application for replacement of vehicle was also not granted. The writ petition was filed alleging violation of principles of natural justice. The High Court found that the particulars entered against the entries 10 and 14 in the form as to the stage carriage permit held by him and as to the possession of vehicle for which permit was applied for, could not have been incorrect so as to allege misrepresentation resulting in cancellation of permit. Relying on that judgment it was contended that the entries in bio-data do not amount to misrepresentation which can result in cancellation of appointment. In this case there is no violation of the principles of natural justice. It cannot also be said that there is no misrepresentation.

¶194

Now we will examine the judgments cited on behalf of the respondents. Smt. Girija Gopal, the learned Senior Govt. Pleader defended the impugned order pointing out that the search committee happened to be misled by the wrong designation and wrong address, in which the appellant described himself. She relied on the judgment in R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105,

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where the apex court repelled the contention of appellant as to violation of Article 311(2) of the Constitution of India. Appellant therein entered service as Dy. Superintendent of Police against a reserved post meant for a Scheduled Caste/Scheduled Tribe on the basis of a false caste certificate. It was held that the action against him was not taken for any misconduct during his tenure as civil servant but on the finding that he does not belong to the Scheduled Caste as claimed by him before his appointment to the post. The genuineness of the certificate was examined in detail by KIRTADS and the Scrutiny Committee constituted under the orders of the apex court, affording sufficient opportunity to appellant to defend himself. The order passed by the Scrutiny Committee was upheld by all the courts. Apex court found that the safeguard provided in Article 311 of the Constitution that the government servant should not be dismissed or removed or reduced in rank without holding an inquiry in which he has been given an opportunity to defend himself, stands complied with in the inquiry conducted by the Scrutiny Committee which consisting of three officers, namely: (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the Department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes, another officer having intimate knowledge in the verification and

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issuance of the social status certificates, who were better equipped to examine the question regarding the validity or otherwise of the caste certificate. The issuance of a fresh notice under the Rules for proving the same misconduct which was already examined by the scruitiny committee, which is an independent body constituted under the direction of this Court, the decision of which was already upheld by all the courts was found to be a futile exercise. Moreover as the impugned order was found to have been passed by the appointing authority and hence there was no non-compliance of the provisions contained in Article 311. Rule 7(1) of the Rules there provided that where a member of the service has committed any act or omission, either before his appointment or subsequently, which renders him liable to any penalty specified in Rule 6, then, the penalty of dismissal, removal or compulsory retirement shall not be imposed in the case of the Central Government employee except by an order of the Central Government under Rule 7(2). In the present case, the order has been passed by the Central Government as the appellant was an IPS officer. The act or omission on the part of the appellant pertains to the period prior to his joining the service. There was no non-compliance with Rule 6 or 7 of the Rules.

¶199

The appellant therein obtained the appointment on the basis that he belonged to a Scheduled Caste community. When it was

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found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was lost. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate had become final. The position, therefore, was that the appellant usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld by the apex Court, he has disqualified himself to hold the post. The appointment was void from its inception. It was held that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing fraud, he cannot be allowed to take advantage of his own fraud in entering the service

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and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.

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It is pointed out that it was not a mere change in address, as the appellant sought to put, but it was the very identity of the applicant that was mistaken by the Search Committee. There are vast differences in the duties and responsibilities of an HOD in a College and that in a University. The very foundation itself for the appointment was fallen down. She relied on the judgment of the High Court of Patna in Iswar Dayal Sah V State of Bihar & another : [1987 Lab IC 390] where the question considered was whether cancellation of appointment on the ground of being void ab initio would amount to removal. There appointment was cancelled on the ground that the Assistant Teacher obtained employment against a post reserved for SC/ST on the basis of wrong caste certificate furnished by the teacher. Explanation submitted to the show cause notices repeatedly issued, were found unsatisfactory. There the Division Bench considered the question whether Article 311(2) attracted in the case. It was held that in order to avail the protection

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under 311(2), one should be validly appointed as civil servant of Union or State. Moreover the allegation is not of any deriliction of duty after entering service. Cancellation of appointment on account of patent illegality or irregularity in initial appointment itself is a declaration that there was no valid appointment in the eye of law. In para 14 of that judgment a judgment of this court in P.Kunhikrishnan Nair V State of Kerala [AIR 1965 Ker 149] was followed, in which this court held that the effect of termination of service of an an Executive Officer of Panchayat when his character and antecedents were found not acceptable, was that he was never been appointed to the post. After discussing various judgments including a Full Bench judgment of the Patna High Court and apex court judgment in Khemchand V Union of Indi AIR 1958 SC 300, the Division Bench concluded in para 17 as follows:

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“17. To finally conclude on this aspect the answer to the question posed at the very outset is rendered in the negative and it is held that the very cancellation on the ground of its being void ab initio would not amount to removal within the meaning of Article 311 of the Constitution and the same is thus not at all attracted to the situation.”

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Thus it can be seen that when the very basis of the appointment is found erroneous, the appointee cannot claim any protection, which is available to those appointed as per rules.

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In Lekhraj Sathramdas Lalvani v. N.M. Shah, Deputy

¶211

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Custodian-cum-Managing Officer : [AIR 1966 SC 334], the Apex Court while considering the validity of removal of the Manager of the

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custodian of evacuee concerns held as follows:

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“3. The first question arising in this case is whether the appellant was lawfully removed from the management of the business by the order of Respondent 1 dated December 18, 1959 — Ex. P-13 and P-16. It was submitted on behalf of the appellant that under Section 10(2)(b) of the 1950 Act the Custodian had the power to appoint a Manager for the Evacuee Property for carrying on any business of the evacuee and there was no power conferred by the Act upon the Custodian to remove the Manager so appointed. It was argued by the Counsel on behalf of the appellant that an indefeasible right of management was conferred upon the appellant because of the order of the Custodian — Ex. P-l dated March 6, 1952. In our opinion, there is no warrant for this argument. The power of appointment conferred upon the Custodian under Section 10(2)(b) of the 1950 Act confers, by implication, upon the Custodian the power to suspend or dismiss any person appointed. Section 16 of the General Clauses Act states:

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“Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.”

¶217

It is manifest that the management of the appellant with regard to the business concerns can lawfully be terminated by the Deputy Custodian by virtue of Section 10(2)(b) of the 1950 Act read with Section 16 of the General Clauses Act. The principle underlying the section is that the power to terminate is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power.”

¶218

The power to terminate from service was thus traced to the power to appoint.

¶219

In Heckett Engineering Co. v. Workmen : (1977) 4

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SCC 377, the dismissal of a workman by the Plant Manager was challenged on the ground that as per Standing Order 32, Company alone was competent to dismiss the workman. Apex court found that the Plant Manager who appointed him was competent to dismiss him also. After referring to the relevant provision in the Standing Order, the apex court found that what was conferred on the company was only an overall power to substitute the penalty of discharge from service with past benefits of service or any other lighter penalty specified therein for the penalty of dismissal awarded to a workman. In para 14 it was held as follows.

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“14. xxxxxx It is a well settled rule of construction that the language of a provision or a rule should not be construed in a manner which would do violence to the phraseology used therein. Xxxxxxx xxxxx xxxx xxxx We may also in this connection recall the provisions of Section 16 of the General Clauses Act, 1897, whether or not the section in terms applies to the aforesaid Standing Orders of the Company which are certified under Section 5(3) of the Industrial Employment (Standing Orders) Act, 1946 may be a moot point but the general doctrine underlying the section can well be made applicable to a case of the present nature for it is now firmly established that the power to terminate service is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power. (See Lekhraj Satramdas Lalvani v. Deputy Custodian-cumManaging Officer(AIR 1966 SC 334) and Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Madhavi Amma 1949 FCR 667. In Kutoor Vengayil Rayappan Nayanar v. Kutoor Vengayil Madhavi Amma: 1949 FCR 667 Mahajan, J. (as he then was) speaking for the Federal Court approved the statement of Woodroffe on Receivers, Fourth Edition, that the power to terminate flows naturally and as a necessary sequence from the power to create. In other words, it is a necessary adjunct of the power of appointment and is exercised as an incident to, or consequence of that power; the authority to call such officer into being necessarily implies the authority to terminate his functions.”

¶223

In S.R. Tewari v. District Board, Agra, AIR 1964 SC

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1680 , the legality of termination of service of an Engineer of District

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Board, Agra after giving salary for three months in lieu of notice was under consideration. It was held that the Board is competent to determine the employment. In para 13 of the judgment it was held as follows.

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“13.xxxxxxxxxxxxxxxxxxxxxxIn our view it is competent under Section 84 read with Section 172(2) to the State Government to make rules imposing conditions on the appointment and punishment of persons to offices or to any particular office requiring professional skill and to provide generally the conditions under which the servants of the Board are to serve, and in the exercise of the powers which are vested by Section 82, these rules have an overriding effect. An order of determination of employment which is not of the nature of an order of dismissal, has by virtue of the rules framed under clause (d) of Section 84 to be exercised consistently with Rule 3-A, and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the notification dated March 25, 1946 under Section 84(b) and (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise that power. But counsel for the appellant contended that even though in form the power of determination of employment was exercised, in substance it was intended to exercise the power of dismissal and that the form of the resolution of the Board was merely to camouflage the real object of the Board. It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order of though in the form merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee.”

¶229

In Union of India v. Gurbux Singh, (1975) 3 SCC 638, the question which arose for consideration was which is the authority

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competent to terminate the services of Assistant Settlement Commissioner-whether it was Govt of Punab or the central govt. It was held that the Central Government, which was given the power to make appointment to the post under Section 3, would also have the power to determine the appointment. The Central Government was also held entitled to terminate the appointment, since the post of Assistant Settlement Commissioner was a post under the Union of India and the person appointed to it was to hold it during the pleasure of the President. There was no provision under which the Government of Punjab could have the power to determine the appointment as Assistant Settlement Commissioner made by the Central Government under Section 3. The Central Government alone was held entitled to terminate the appointment, both as the appointing authority as also under Article 310(1) of the Constitution.

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These judgments relied on by the learned Senior Govt Pleader supports the authority of the Chancellor who is the appointing authority of the Vice Chancellor to cancel the appointment.

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The learned Single Judge upheld the action of the Chancellor relying on the judgment of the apex court in Bool Chand (Dr) v. Chancellor, Kurukshetra University : [AIR 1968 SC 292] , which according to the learned Senior Counsel is not at all applicable. In that case Dr. Bool Chand was imposed a penalty of compulsory

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retirement from the Indian Administrative Service, as per order dated 28.2. 1963 of the President. In March 1965, he was appointed as Professor and Head of the Department of Political Science in the Punjab University. Thereafter he was appointed as Vice-Chancellor of the Kurukshetra University on 18.06. 1965, by Mr Hafiz Mohd Ibrahim — who was the Chancellor of the University. On March 31, 1966, the Chancellor Sardar Ujjal Singh placed the appellant under suspension from the office of Vice-Chancellor and issued a show cause notice with the proposal to terminate his services as Vice-Chancellor of the Kurukshetra University. The appellant submitted his representation and thereafter he approached the High Court of Punjab challenging the order of suspension and the show cause notice. On 08. 05. 1966, the Chancellor passed an order in exercise of the power under sub-clause (vi) of clause 4 of Schedule I to the Kurukshetra University Act, 1956, read with Section 14 of the Punjab General Clauses Act, 1898, terminating the services of the appellant from the office of Vice-Chancellor of the Kurukshetra University. It was argued that the termination was without authority, as there was no power conferred on the Chancellor to determine the employment of the Vice Chancellor, whereas specific provision was there to determine the employment of the teachers. The contention was repelled observing as follows:

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“It is true, the office of the Vice-Chancellor of a University is one of great responsibility and carries with it considerable prestige and authority. But we are unable to hold that a person appointed as Vice-Chancellor is entitled to continue in office for the full period of his appointment even if it turns out that he is physically decrepit, mentally infirm, or grossly immoral. Absence of a provision setting up procedure for determining the employment of the Vice-Chancellor in the Act or the Statutes or Ordinances does not, in our judgment, lead to the inference that the tenure of office of Vice-Chancellor is not liable to be determined.”

¶240

After considering the representation submitted by the appellant in answer to the show cause notice, the Chancellor issued a detailed order with reasons determining his tenure, as the Chancellor found that the retention of the appellant was not in the public interest. The appellant contended that the Chancellor was influenced by evidence which was not disclosed to the appellant, saying that the order of compulsory retirement passed by the President did not reveal that it was ordered as a punishment. It was further found that the Chancellor Sardar Ujjal Singh in passing the impugned order considered the grounds set up in the representation and then posed the question whether his predecessor in office, made the appointment of the appellant, was aware of the fact that the appellant had been compulsorily retired as a measure of punishment from the Indian Administrative Service. He came to the conclusion that there was nothing to show that he — Mr Hafiz Mohd. Ibrahim — was aware of the order of compulsory retirement. Before he passed the order of

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suspension, the Chancellor had made inquiries as to the circumstances in which the appellant was appointed as Professor of Political Science in the University of Punjab. Appellant contended that the letters received thereon were not disclosed to him. It was contended that the University authorities appointed him as ViceChancellor fully knowing that he was compulsorily retired from the Indian Administrative Service. Apex court found that appellant had not set up a case that the Chancellor Mr Hafiz Mohd. Ibrahim had information about the order of the President. On the other hand his principal plea was that he was under no obligation to disclose his compulsory retirement from the Indian Administrative Service. The Chancellor Sardar Ujjal Singh while passing the impugned order considered the grounds set up in the representation and then posed the question whether his predecessor in office, when he made the appointment of the appellant, was aware of the fact that the appellant had been compulsorily retired as a measure of punishment from the Indian Administrative Service, and came to the conclusion that there was nothing to show that he — Mr Hafiz Mohd. Ibrahim — was aware of the order of compulsory retirement. The contention of the appellant was repelled in para 18 of the judgment, observing that it was for the appellant to take up the defence that Mr Hafiz Mohd. Ibrahim was informed of the order of the President and to take steps to prove that

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fact. As he had not taken up that defence, it was found that he could not have made out a case that the order was vitiated because the Chancellor Sardar Ujjal Singh did not make an enquiry, which the Chancellor was never asked to make. It was held that it was impossible to raise an inference that knowledge must also be attributed to the Chancellor because the order of the President was gazetted and certain members of the syndicate and senate were aware of the order of the President. Apex court found no violation in observing the principles of natural justice also

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In this case the Chancellor issued the order after being convinced of the circumstances under which the name of appellant was recommended and appellant was happened to be appointed from the two panels submitted to it. When such a conclusion is arrived at against the appellant, which is quite plausible, it is not possible to accept the contention of the appellant that his address or designation did not play any role in the recommendation which led to his appointment or that it was for the selection committee to decide whether his recommendation was in any way vitiated.

¶246

In J. Shashidhara Prasad (Dr) v. Governor of

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Karnataka, (1999) 1 SCC 422, the appellant therein who was a Professor in University of Mysore was appointed as Vice-Chancellor on 20.8.1997, for a period of three years with effect from 4-9-1997.

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But on account of a news item appeared in a daily newspaper, the next day, the Chancellor rescinded the earlier notification. It was stated that Chancellor was not aware of the pendency of the criminal case as against the appellant and that he found it not desirable to appoint the appellant as Vice-Chancellor. The appellant challenged the same, on the ground that he was not given an opportunity of hearing and that he was acquitted by the criminal court. High Court dismissed the writ petition. It was found that acquittal was subsequent to orders of appointment and cancellation. Before the apex court also the contention was that no hearing was allowed. After discussing various judgments on the issue, it was found not necessary to grant him a hearing before the Chancellor passed the order dated 21-8-1997 rescinding the earlier order dated 20-8-1997, as no vested right could have arisen till the order came into force.

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A.P. Public Service Commission v. Koneti

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Venkateswarulu : (2005) 7 SCC 177, was with respect to the cancellation of candidature of the 1^st respondent for submitting false declaration suppressing the present employment. Appellant invited applications for the post of Women and Child Welfare Officer from candidates belonging to scheduled tribe. In the application submitted, pursuant to it, the 1^st respondent kept column no.11, pertaining to previous employment, blank. He had put his signature and made

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declaration to the effect that all the details were true. He had filled up Annexure III and made a declaration therein to the effect that he was not working in any govt department or quasi govt/public sector/private sector. Another declaration was signed to the effect that the information furnished were true and correct and that his candidature would be canceled if it was found incorrect. In the written test and interview conducted, he came out successful. But before the results were notified, the appellant came to know that the respondent was working as a teacher, which he suppressed. To the show cause notice issued thereupon, he replied that the application was filled up inadvertently. Dissatisfied, his candidature was cancelled. Relying on the judgment Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav (2003)3 SCC 437 it was held that if the candidate indulges in suppressio veri and suggestio falsi, he proves himself unfit to be employed in public employment. If the particulars of employment were furnished the Commission could have been able to check the antecedents of the applicant with his employer and ascertained his suitability. Moreover in the notification inviting applications as well as in the body of the application, it was made clear that furnishing of false information or its suppression was liable to result in cancellation of the candidature. Hence the cancellation was upheld. The explanation that it was irrelevant or emanated from

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inadvertence,was held unacceptable.

¶257

In Devendra Kumar v. State of Uttaranchal, (2013) 9

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SCC 363, the apex court upheld the termination of service of a Police Constable, on account of false declaration made at the time of joining for the training. In that case the appellant, who submitted application for appointment as Constable, pursuant to a notification, was successful in the test conducted. On selection, he was sent for training for six months. At the time of joining the training, the appellant had to submit an affidavit giving certain information including that of involvement if any, in any criminal case. In the affidavit submitted, appellant declared that he had never been involved in a criminal case. But, when his character and antecedents were verified, on completion of training, the respondents found that he was in fact involved in a criminal case. Prosecution had filed the final report and the learned Magistrate had accepted the same. In those circumstances, the appellant was discharged from service abruptly. It was held that no inquiry was necessary for his removal since he was a temporary government servant. Appellant challenged the same, unsuccessfully. In para 12 of the judgment, it was held as follows:

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“12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant is suitable for the post. The pendency of a criminal case/proceeding is different from

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suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. In that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.

¶263

It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. “Fraud avoids all judicial acts, ecclesiastical or temporal.” (Vide S.P. Chengalvaraya Naidu v. Jagannath) In Lazarus Estates Ltd. v. Beasley the Court observed without equivocation that: (QB p. 712)

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“… No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything.”

¶265

Regarding the misrepresentation, it was held as follows :

¶266

“ 19. In Delhi Admn. v. Sushil Kumar(1996) 11 SCC 605, this Court examined a similar case where the appointment was refused on the post of Police Constable and the Court observed as under: (SCC p. 606, para 3)

¶267

“3. … It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service.”

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In R. Radhakrishnan v. DG of Police : (2008)1 SCC 660: the Apex Court held that furnishing wrong information by the candidate while seeking appointment makes him unsuitable for appointment and liable for removal/termination if he furnished wrong information when the said information is specifically sought by the appointing authority.

¶272

In the instant case, the High Court has placed reliance on the Government Order dated 28-4-1958 relating to verification of the character of a government servant, upon first appointment, wherein the individual is required to furnish information about criminal antecedents of the new appointees and if the incumbent is found to have made a false statement in this regard, he is liable to be discharged forthwith without prejudice to any other action as may be considered necessary by the competent authority. The purpose of seeking such information is not to find out the nature or gravity of the offence or the ultimate result of a criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case.

¶273

In Kendriya Vidyalaya Sangathan v. Ram Ratan

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Yadav : (2003) 3 SCC 437, the respondent was required to fill in the attestation form, on his appointment. As against column 12(I) of the said attestation form, he mentioned “No” against the question whether any criminal case was pending against him in a court of law. As the information was found incorrect, his services were terminated for suppression of factual information. The Central Administrative Tribunal dismissed his case. The High Court allowed his case observing that he was studying in Hindi medium and hence unable to understand the consequences; apart from that the case was already withdrawn by the State and no moral turpitude was involved. Disapproving this, the Apex court held as follows.

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“12. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had the discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the

¶277

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Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of columns 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.”

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(emphasis supplied)

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In Jainendra Singh v. State of U.P., (2012) 8 SCC 748, the Apex Court was considering the question of termination of service of a constable in the Police Department on the ground that he submitted a false declaration suppressing his earlier employment, who did not disclose certain facts in the proforma submitted after his appointment, at the time of joining. The apex court analysed the entire case law on the subject in respect of termination of services of employees in various fields on account of such non-disclosures being detected at the time of verification of character and antecedents and thereafter consolidated its findings as follows. :

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“29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.

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29.2. Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds it not desirable to

¶284

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appoint a person to a disciplined force can it be said to be unwarranted.

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29.3. When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.

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29.4. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.

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29.5. The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service.

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29.6. The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.

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29.7. The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.

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29.8. An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.

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29.9. An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.

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29.10. The authorities entrusted with the responsibility of appointing constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of constable.”

¶295

(emphasis supplied)

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In the case of uniformed personnel, the standard expected from them was quite distinct as it presupposed a higher level of integrity. In the case before us, the appointment is to a prestigious post and the person appointed is to head the University in various fields with the entire staff and students under his disciplinary control. The level of integrity expected of him can in no way be lower to that of a police constable. The Chancellor cannot be faulted for following the principles laid down in para 29 in the judgment, especially clause 7 and 9 thereof.

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Now the question whether the particulars furnished in the bio-data amounts to misrepresentation or fraud resulting in cancellation of appointment is to be examined in the light of the following judgments.

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In S.P. Chengalvaraya Naidu v. Jagannath : (1994) 1 SCC 1, the final decree application was objected by the respondents on the ground that the the preliminary decree was obtained by fraud. It was a case where property was purchased in court auction, by one Jaganath who was the clerk of the Decree holder. Jaganath executed a release deed in favour of the Decree holder. In the meanwhile the judgment debtors-appellants paid the entire amount to the Decree holder. Jaganath who was aware of all these filed a suit for partition against appellants claiming that the property was purchased on his

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own. Non-mentioning of the relief deed resulted in a preliminary decree. The appellants came to know about it only at the stage of final decree proceedings. The trial court dismissed the application. But the

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High Court reversed it, and held as follows.

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“The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

¶306

xxxA fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. xxxxxxxxxxxxxxx

¶307

A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.”

¶308

(emphasis supplied)

¶309

In Indian Bank v. Satyam Fibres (India) (P) Ltd. : (1996) 5 SCC

¶310

550, the respondent had filed a complaint before the National Consumer Disputes Redressal Commission claiming the value of goods shipped to the buyer at France, from the appellant. The Commission by its judgment dated 16-11-1993 allowed the claim with cost. The appellant filed a review petition pointing out that a letter

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produced by the respondent, based on which the claim was allowed, was a forged one. The letter dated 26-8-1991 which was actually issued to them did not contain any direction for obtaining coacceptance by the French bank. The Commission, after considering both the letters, found that even if there was no such letter, the claim was liable to be allowed and hence rejected the review petition. Apex court found that in the absence of such a letter the claim could not have been allowed. In para 20 of the judgment it found as follows:

¶313

“20. xxxxxxThis plea could not have been legally ignored by the Commission which needs to be reminded that the authorities, be they constitutional, statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no man (Fraus et dolus nemini patrocinari debent).

¶314

(emphasis supplied)

¶315

Therefore on finding out the misrepresentation involved the Chancellor had every right to recall its order and cancel the appointment.

¶316

In State of A.P. v. T. Suryachandra Rao : (2005) 6 SCC 149, the issue which arose for consideration was whether the Tribunal can re-open a ceiling case, on a subsequent finding that the declarant surrendered the land which was already acquired. Tribunal had already determined the ceiling limit and the extent of excess land

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to be surrendered. The declarant thereafter surrendered land and the authorities under Land Reforms Act accepted it. Subsequently, it was noticed that the land which was surrendered had already been acquired in proceedings under the Land Acquisition Act, 1898. After issuing notice to declarant, Tribunal passed an order to surrender alternative lands. In revision petition by declarant, High Court held that even though power was available to the Tribunal to reopen the matter and pass necessary orders when fraud was practised, the Tribunal having accepted the matter after enquiry, it was not open to take a different view. Apex court found that surrendering acquired land was a clear case of fraud. The apex court held as follows.

¶319

“ 8. By “fraud” is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill-will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. [See Vimla (Dr.) v. Delhi Admn.AIR 1973SC 1572¹ and Indian Bank v. Satyam Fibres (India) (P) Ltd.(1996)5 SCC) 550 )]

¶320

A “fraud” is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. (See S.P. Chengalvaraya Naidu v. Jagannath.)

¶321

“Fraud” as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is

¶322

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called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319.)

¶325

11. xxxxxxxxxxxxxxxxxxxxx

¶326

“Fraud” is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav case (2003))8 SCC 311.

¶327

In Lazarus Estates Ltd. v. Beasley (1956) 1 All ER 341,Lord Denning observed at QB pp. 712 and 713: (All ER p. 345 C) “No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” In the same judgment Lord Parker, L.J. observed that fraud “vitiates all transactions known to the law of however high a degree of solemnity”.

¶328

(emphasis supplied)

¶329

After discussing the case law on fraud and misrepresentation the apex court held that the Tribunal was justified in modifying the earlier order and varying it. The High Court’s order was set aside.

¶330

In Bhaurao Dagdu Paralkar v. State of Maharashtra :

¶331

(2005) 7 SCC 605 , apex court was considering the judgment of the High Court of Bombay in a Public Interest Litigation alleging that large no. of ineligible persons were drawing freedom fighters pension by fraudulent means. The 3 member committee appointed by the High Court reported that there is truth in the allegations. The High Court

¶332

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did not accept the inquiry report. The apex court held as follows:

¶335

“ 12. xxxxxxxxxxx In Black’s Law Dictionary, “fraud” is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury’s Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act, 1872 defines “fraud” as an act committed by a party to a contract with intent to deceive another. From the dictionary meaning or even otherwise fraud arises out of the deliberate active role of the representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry v. Peek: (1886-90 )All ER 1 what constitutes “fraud” was described thus: (All ER p. 22 B-C)

¶336

“ Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. ”

¶337

But “fraud” in public law is not the same as “fraud” in private law. Nor can the ingredients, which establish “fraud” in commercial transaction, be of assistance in determining fraud in administrative law. It has been aptly observed by Lord Bridge in Khawaja v. Secy. of State for Home Deptt :1983 (1) All ER 765 that it is dangerous to introduce maxims of common law as to the effect of fraud while determining fraud in relation of statutory law. xxxxx The colour of fraud in public law or administrative law, as it is developing, is

¶338

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assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. ‘In a contract every person must look for himself and ensure that he acquires the information necessary to avoid bad bargain.’ In public law the duty is not to deceive.” (See Shrisht Dhawan v. Shaw Bros :(1992)1 SCC 534, SCC p. 554, para 20.)

¶341

It is relevant to note that the Vice Chancellor is an officer of the University, as provided in Section 9 of the M G University Act. As per Section 10 under Chapter III of the MG University Act, Vice Chancellor shall be appointed by the Chancellor on the recommendation of a committee appointed by the Chancellor for the purpose. The committee shall consist of three members, one of whom is to be nominated by the Chancellor himself. The Chancellor shall appoint one of these members to be the convener. The Committee has to make recommendation within 5 months. If recommendation is

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unanimous, Chancellor has to appoint him as Vice Chancellor. If it is not unanimous, Chancellor shall appoint one from the panel of three names submitted by the committee within the prescribed period.

¶344

Therefore the appointing authority is Chancellor himself. The committee which is to recommend the name/panel of names for appointment as Vice Chancellor is also appointed by the Chancellor. Therefore we are unable to accept the contention on behalf of the appellant that Chancellor does not have any inherent power to determine the appointment. Just because the appointment is to made from the panel submitted by the committee appointed under Section 10(2) of the MG University Act, the power of the appointing authority is not diluted in any manner.

¶345

As rightly found by the learned Single Judge, the callous indifference and carelessness shown by appellant is evident from the manner in which he has carried out corrections in his bio-data, submitted for consideration for selection to a coveted post, which itself is reason sufficient for disqualifying the appellant. Under Sections 12 to 15 of the University Act, the Vice Chancellor of the University is the Principal academic and executive officer of the University and all the officers of the University are under his control. He shall be the chairman of Senate, Syndicate, Academic Council and Finance Committee. He is to ensure that the provisions of the Act, the

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Statutes, Ordinances the regulations, the rules and byelaws are complied with, as provided in sub Chapter III of the Mahatma Gandhi University Act, which deals with Chancellor and Officers of the University.

¶348

Section 7 (1) of the University Act provides that the Governor of Kerala shall, by virtue of his office be the Chancellor of the University. As per Subsection 2 thereof, the Chancellor shall be the head of the University. Sub Section 3 provides that all the authorities of the University shall be subordinate to the Chancellor. Subsection 10 provides that the Chancellor shall have power to remove the Vice Chancellor from office by an order in writing on charges of misappropriation or mismanagement of funds or misbehaviour provided that such charges are proved in an inquiry and provided that reasonable opportunity is given to him to show cause. Subsection 11 provides that Chancellor shall have such other powers as may be conferred on him by this Act or the Statutes. It is true that removal of Vice Chancellor is provided for under Section 7 of the Act under three circumstances. Under Subsection 11, Chancellor shall have such other powers also as may be conferred under the Act and Statutes. But the issue which has arisen in this case is the validity of the very appointment itself of the appellant. As rightly found by the learned Single Judge, the question of removal on misconduct comes

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only in a case where the incumbent started discharging duties after a valid appointment, as held in Viswanathan's case (supra)).

¶351

The Chancellor on perusal of the files and after hearing the appellant passed a detailed order considering each and every contention raised by the appellant and found that the designation of the appellant as shown in Ext.R2(c) was a key factor which resulted in his appointment. The submission of Ext.R2(c) is not disputed. The contention of the appellant is that the bio-data with corrections were available before the committee and hence there was no suppression or commission of fraud. The endorsement on Ext.R2(d) as “already entered” is sufficient to indicate that the search committee had the first set of bio-fsys before them. They cannot be expected to undertake a verification of the 2^nd or 3^rd set and find out corrections if any carried out. If at all it was found, the correction was carried out in the first page alone. There is no basis for the contention that the committee ought to have taken up Ext.R2(d) also. It is pertinent to note that all those included in the panel except the appellant were Professors. There is every possibility that official address of appellant as Head of the Department in Central University has played a vital role in his selection. The effect of furnishing wrong address or designation given therein if examined in the light of the judgments discussed above, would amount to suppressio veri and suggestio falsi'

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resulting in his disqualification to continue as Vice Chancellor. It is to be noted that even minor mistakes occurred in filling up the forms of declarations at the time of joining duty or training turned out fatal in the case of Police Constables as well as Physical Education Teachers.. Going by the principles laid down in para 29 (1) to (10) of the judgment in Jainendra Singh , para 12, 13, 19, 23 and 24 of Devendrakumar, Kendriya Vidyalaya Sangathan, Koneti Venkateswarulu, etc petitioner has proved himself unfit to be in public employment. It was held in those cases that information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service. Withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case. The integrity of a person who is appointed is verified from the declarations or bio-data furnished by him. On the basis of such declarations, it is for the appointing authority to decide whether it is necessary to retain the person in the University or not. The appointing authority has after considering all the circumstances found it not feasible to retain the Vice Chancellor .

¶354

On examination of the case law on the subject, as discussed above, it is clear that the false information furnished by the appellant in his bio-data, would amount to suppressio veri, amounting

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to fraud disqualifying the petitioner from continuing in service.

¶357

In the above circumstances, we do not find any reason to interfere with the judgment of the learned Single Judge. Hence we dismiss the Writ Appeal.

¶358

Sd/- ANTONY DOMINIC Judge

¶359

Sd/- P.V.ASHA Judge

¶360

rtr/