Kerala High Court relief to VCs of 9 universities; says they can continue to in their posts till Governor issues final order as per law

The Kerala High Court on Monday held that the letter issued Kerala Governor Arif Mohammed Khan, directing the Vice Chancellors (VC) of nine universities in Kerala to resign, was no longer valid since the Governor himself later issued show cause notices asking the VCs for their response..The Court, therefore, ruled that the VCs can continue in their posts till the Governor passes a final order, after following the procedure under law. "Once the Chancellor apparently has offered the petitioners an opportunity to show cause against certain action proposed by him, it ineluctably means that they are still in service and certainly eligible to continue as Vice Chancellors, until such time as their term of office expires, or until they are removed as per law. In summation, the afore writ petitions are allowed and the impugned communications/orders of the Chancellor of the Universities involved in these cases, are hereby set aside," the order stated.The order was passed by single-judge Justice Devan Ramachandran in a special sitting convened on Diwali, a court holiday, to consider petitions challenging the Governor's direction."I do not require to expatiate, nor do I need to rely on any precedents, to declare that no one can be legally forced to tender resignation. Pertinently, Sri.Jaju Babu explains this, saying that the Chancellor was only offering an advice, so as to save the Vice Chancellors from the fate of being removed from office ab initio. Obviously, this Court cannot grant imprimatur to any such advice, and for that reason alone, the impugned communications will have to fail," the Court ordered.The Court said that the Governor, in issuing the letter, did not give adequate notice to the VCs and hence, such a communication has to fail."I say as afore since, prima facie, this Court has reservations regarding the impugned communications issued by the Chancellor because: for the first, it asks the Vice Chancellors to tender their resignations, and that too within the shortest period possible; and, for the second, it declares that they have ceased to be the Vice Chancellors with effect from 21.10.2022," the order said.Since show cause notices have now been issued to the VCs, the communication asking them to resign is no longer relevant, the Court added."It obviously means that they are still in service and after an evaluation, they can be removed as per law if required," the judge further ruled.However, the Court made it clear that every issue, including the jurisdiction of the chancellor, is left open. "The arguments of the petitioner that the chancellor does not have jurisdiction to even issue the show cause notices is left open and the remedies to impugn the same are left open to the petitioners," the Bench said..On Sunday, October 23, the Governor had sent letters to nine VCs, directing them to hand in their resignations by 11:00 am on Monday.The letter was supposedly sent in light of the recent decision of the Supreme Court in Professor (Dr.) Sreejith PS v. Dr. Rajasree MS & Ors., setting aside the appointment of the Vice Chancellor of APJ Abdul Kalam Technological University.A bench of justices MR Shah and CT Ravikumar had found that the search committee formed to pick the VC was not properly constituted and also that only one name was sent to the Governor as opposed to a list of names as is required as per the UGC regulations.Subsequently, the Governor sent the now contentious letters to the Vice Chancellors of the University of Kerala, Mahatma Gandhi University, Cochin University of Science and Technology, Kerala University of Fisheries and Ocean Studies, Kannur University, APJ Abdul Kalam Technical University, Sree Sankaracharya University of Sanskrit, University of Calicut, and Thunchath Ezhuthachan Malayalam University.The unprecedented move came soon after the ruling Left Democratic Front, announced a series of mass protests against the Governor..During the hearing of the matter today, the counsel for the petitioners contended that the Supreme Court judgment is only binding on the lower courts and only when a writ petition that is relevant comes before it for consideration."Therefore, the reliance placed on the judgment by the Governor to issue the letters is not proper," it was argued.Specifically on the Governor's powers, it was argued that when he is a Chancellor, he is only a statutory functionary. He can exercise powers in that line only"You have not been removed, but there is a declaration that you have ceased to be VCs and you have been asked to resign, correct? Is your argument that even if the chancellor has some reason to believe that appointments h was void or illegal, he has no power to outright remove the VC from their post," the bench queried."Yes," the counsel for the petitioner answered.."In administrative law, there are no void orders. Only voidable orders. Until it has been set aside by a court, the order (of appointment) remains in force," the lawyer contended."So you are saying that Chancellor cannot exercise this power suo motu," the judge asked.The lawyer maintained that the power of the chancellor as an appointing authority is limited and the appointment is required by law to be a collective exercise..But the judge was not impressed."In his letter, Chancellor says there are two grounds i.e, improper selection panel and that only one name was suggested. Regardless of whether it is true or not, are you saying he should not have done anything when he comes across something like this. By your argument, if a system makes an appointment that is violative of regulations or a Supreme Court judgment, nothing can be done until it comes to court," the bench asked."I am asking you one question and I'll ask it to every counsel who argues today. if the appointment authority finds that a particular appointment was improper, must he not do anything unless a litigant approaches the court challenging it," Justice Ramachandran further queried."To your question my lord, the chancellor can cancel an appointment that was a mistake but he cannot decide on the legality or illegality of an appointment," advocate Alvin Peter appearing for one of the petitioners replied.."Chancellors are also human. To err is human and the chancellor is human. He is not a superhuman... He points out two reasons for sending this letter. Whether this is a right or wrong action is different but you are saying he should not have done anything," the bench queried.The Court also made it clear that the law has clearly been settled by the Supreme Court judgment. "I don't want to hear arguments against the SC judgment. I won't entertain it. The mind of the Supreme Court is absolutely clear in Sreejith v Rajashree," Justice Ramachandran said.."Once there is a judgment we are bound, yes. But in this case, once an appointment is made by chancellor by a procedure known to law..," the counsel further said."Counsel, this is not a process known to law...Your argument is that I enter, and therefore I am, until somebody challenges me. That is not an argument appropriate for a court in this century," the Court responded..The counsel appearing for VC of Thunchath Ezhutachan Malayalam University said that the Governor himself was party to the appointment and he cannot later turn back and ask the VC to resign without following the procedure under law."He can do something only as per the statute. Asking someone to resign in this manner is unheard of," the counsel contended."Yes, I understand. The lack of notice and issues in the manner communication. We will come back to that later," the judge said..The Court then asked the Governor's counsel how he can send a letter asking the VCs to resign before sending them show cause notices."How can you justify sending the show cause notice after sending the letters telling them to resign? I understand why you sent the letter but I do not understand the manner in which you did it. Sending show cause notice after telling them their appointment has ceased to exist," the bench said.The judge also said that the actions of the Governor did not seem to be in tune with the Supreme Court judgment. "I think the chancellor has acted against this Judgments. He should have said that the appointment is void ab initio, not that the appointment has ceased on so and so date in October," the bench remarked.The judge also questioned the haste in which the entire exercise was carried out. "I also wonder about the haste exhibited here. What was the reason for that and the manner in which all this was done," Justice Ramachandran remarked.The Senior counsel for the Governor said that he made every effort to give them notice "Now that you have sent them notice, then you can't say they have to resign. It is on your end to consider the replies and they may also raise questions on the jurisdiction etc," Justice Ramachandran said..Additional Advocate General Ashok M Cherian said that the State is not taking any stand and will accept the order of the Court."AAG fairly submitted that the State is not and does not intend to take sides with any VC or the Chancellor and that they will accept any order of the Court," the Court recorded..[Read Judgment]