Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 4471OF 2012
% Judgment Delivered on: 1.8.2012
P.R.R. NAIR . . . PETITIONER
Through : Mr. Deepak Kanwar, Advocate
with Mr. Sudhir Kumar, Mr.
Rajeev Prasad Dubey,
Advocates.
VERSUS
INDIRA GANDHI NATIONAL OPEN UNIVERSITY & ORS.
….RESPONDENTS
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. Aly Mirza, Advocate
for Respondent no.1
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE: (ORAL)
1. In this Public Interest Litigation, the petitioner is praying for Writ of
Quo-Warranto seeking removal of respondent nos. 3 to 6 from the Board of
Management of Indira Gandhi National Open University (IGNOU) on the
ground that their appointment is illegal, unconstitutional and without
sanction of the appropriate authority. The respondent no.3 and 4 were
nominated to the Board of Management of the IGNOU. It is not in dispute
W.P.(C) 4471/2012 Page 1 of 5
that power of nomination lies with the Vice Chancellor, submission however
is that the respondent no.2 Prof. M. Aslam, was only a Acting Vice-
Chancellor and therefore he had no power to nominate the respondent no. 3
and 4 of the Board of Management. The question in this behalf which
requires to be considered is as to whether the respondent no.2 was “Acting
Vice Chancellor” and had no such power. The Second Schedule to the
IGNOU Act provides for Statutes of the University. Statute-1 deals with the
Vice Chancellor and stipulates that the Vice Chancellor shall be a whole –
time salaried officer of the University. He shall be appointed by the Visitor
from out of a panel of not less than three persons recommended, (the names
being arranged in the alphabetical order) by a Committee constituted under
clause (3). Clause (6) provides for filling up of the vacancy of Vice-
Chancellor in the event of death, resignation or otherwise, when he is unable
to perform his duties due to ill health or any other cause. This provision
mentions that in that event the senior most Pro Vice-Chancellor, shall
perform the duty of the Vice-Chancellor and if there is no Pro Vice –
Chancellor, the Senior-most Professor from amongst Directors of the Schools
shall perform the functions of the Vice-Chancellor until the new Vice-
Chancellor assumes his office or until the existing Vice-Chancellor attends to
the duties of his office, as the case may be. The term of the earlier Vice-
Chancellor had come to an end and Pro Vice-Chancellor has seized to
function as Vice-Chancellor. It is in these circumstances, Professor M.
Aslam, the senior most Professor among Directors of the School given the
charge of the Vice-Chancellor. On this basis, it is sought to be contended
that he was only a Acting Vice-Chancellor. We may record that there is no
W.P.(C) 4471/2012 Page 2 of 5
term “Acting” stipulated in the entire Act or the Statutes. A person, who
assumed the office as Vice Chancellor even under Clause (6), is given the
power to perform the functions of the Vice-Chancellor. Thus, when the
respondent no.2 assumed the office of Vice-Chancellor, he was expected to
perform all the functions of the Vice-Chancellor and, therefore, he had
adequate power to nominate the Members of the Board of Management.
2. We, therefore, do not accept the contention of the learned counsel for
the petitioner that as the respondent no.2 assumed the charge of Vice-
Chancellor in terms of Clause (6) of Statute -1, he could not nominate the
Members. We would, however, like to record that whether appointment of
respondent no.2 as a Vice-Chancellor in the aforesaid circumstances itself
was proper or not is the subject matter of some other writ petition pending in
this Court and, therefore, we have not touched upon that aspect. Our answer
is predicated on assumption of the office of Vice-Chancellor by a person
under Clause-6 and that even such Vice-Chancellor will have full powers to
nominate the Members of the Board of Management.
3. Insofar as respondent no.5 is concerned, his continuation as Director,
School of Extension and Development Studies, IGNOU, Maidan Garhi, New
Delhi is challenged. It is submitted by the learned counsel for the petitioner
in this behalf that the provision for appointment of Directors is contained in
Statute-4. Reading of this Statute would show that every Director is to be
appointed by the Board of Management on the recommendation of the
persons stipulated therein. It is further mentioned that tenure of a Director
shall be three years and he would be eligible for reappointment. Submission
of learned counsel for the petitioner is that the Director could be appointed
W.P.(C) 4471/2012 Page 3 of 5
only by the Board of Management. The term of respondent no.5 had come to
an end on 24.2.2012. However, his tenure was not extended by the Board of
th
Management but only taken note of in 113 meeting held on 31.5.2012. This
issue is discussed as item no.5 with the caption “To consider the appointment
of Directors of various Schools of studies”. It is stated in the minutes that the
Board of Management was informed that certain Directors whose names are
mentioned therein (which included respondent no.5) had completed their
tenure of three years and “they have been asked to continue as Directors of
the respective Schools till further orders……”. It was submitted that Board of
Management had not extended their tenure but had only noted that they were
asked to continue and it is not known who had asked them. We are unable to
read the minutes in the manner suggested by the learned counsel. The
expression “they have been asked to continue as the Directors…” clearly
demonstrate that it is the Board of Management which is asking them to
continue as Directors meaning thereby the Board of Management had
extended the tenure. We, therefore, do not find any infirmity in the
reappointment/extension of the tenure of the respondent no.5 as Director.
4. The Respondent no.6 is the Vice Chancellor of Uttrakhand Open
University, Haldwani, Uttrakhand. Allegation against him is that he was
th
co-opted as Member of the Board of Management in the 112 Meeting held
th
on 9 April, 2012. Minutes of the said meeting duly record the same. His
th
co-option is challenged on the ground that there was no Coram in the 112
meeting of the Board of Management. It is not in dispute that as per the
Statute, the Members of the Board of Management form the Coram for the
meeting of the Board. Statute -6A deals with the Board of Management and
W.P.(C) 4471/2012 Page 4 of 5
Clause (1) thereof mentions the Members who would constitute the Board of
Management. It includes “two representatives of the Government of India,
Secretary, Department of Education and Secretary, Information and
th
Broadcasting, to be nominated by the Visitor”. The 112 meeting was
attended by these persons. The objection of the learned counsel for the
petitioner is that one of them was Mr. Anant Kumar Singh, Jt. Secretary who
was not the Member of the Board of Management inasmuch as it could be
only the Secretary and not the Jt. Secretary. No doubt, the provision
mentions two representatives namely Secretary of the two Ministries, which
is followed by the words “to be nominated by the Visitor” which gives
indication that there can be a representative of the Secretary who can attend
the meeting. In the minutes it is clearly disclosed that Mr. Anant Kumar
Singh attended the meeting as representative of the Secretary, MHRD. We
thus do not agree with the learned counsel for the petitioner that the Board of
Management lacks sufficient Coram.
5. For the aforesaid reasons, we do not find any merit in this petition
which is accordingly dismissed. All pending applications stand disposed of.
ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE
AUGUST 1, 2012
skb
W.P.(C) 4471/2012 Page 5 of 5
W.P.(C) 4471OF 2012
% Judgment Delivered on: 1.8.2012
P.R.R. NAIR . . . PETITIONER
Through : Mr. Deepak Kanwar, Advocate
with Mr. Sudhir Kumar, Mr.
Rajeev Prasad Dubey,
Advocates.
VERSUS
INDIRA GANDHI NATIONAL OPEN UNIVERSITY & ORS.
….RESPONDENTS
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. Aly Mirza, Advocate
for Respondent no.1
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE: (ORAL)
1. In this Public Interest Litigation, the petitioner is praying for Writ of
Quo-Warranto seeking removal of respondent nos. 3 to 6 from the Board of
Management of Indira Gandhi National Open University (IGNOU) on the
ground that their appointment is illegal, unconstitutional and without
sanction of the appropriate authority. The respondent no.3 and 4 were
nominated to the Board of Management of the IGNOU. It is not in dispute
W.P.(C) 4471/2012 Page 1 of 5
that power of nomination lies with the Vice Chancellor, submission however
is that the respondent no.2 Prof. M. Aslam, was only a Acting Vice-
Chancellor and therefore he had no power to nominate the respondent no. 3
and 4 of the Board of Management. The question in this behalf which
requires to be considered is as to whether the respondent no.2 was “Acting
Vice Chancellor” and had no such power. The Second Schedule to the
IGNOU Act provides for Statutes of the University. Statute-1 deals with the
Vice Chancellor and stipulates that the Vice Chancellor shall be a whole –
time salaried officer of the University. He shall be appointed by the Visitor
from out of a panel of not less than three persons recommended, (the names
being arranged in the alphabetical order) by a Committee constituted under
clause (3). Clause (6) provides for filling up of the vacancy of Vice-
Chancellor in the event of death, resignation or otherwise, when he is unable
to perform his duties due to ill health or any other cause. This provision
mentions that in that event the senior most Pro Vice-Chancellor, shall
perform the duty of the Vice-Chancellor and if there is no Pro Vice –
Chancellor, the Senior-most Professor from amongst Directors of the Schools
shall perform the functions of the Vice-Chancellor until the new Vice-
Chancellor assumes his office or until the existing Vice-Chancellor attends to
the duties of his office, as the case may be. The term of the earlier Vice-
Chancellor had come to an end and Pro Vice-Chancellor has seized to
function as Vice-Chancellor. It is in these circumstances, Professor M.
Aslam, the senior most Professor among Directors of the School given the
charge of the Vice-Chancellor. On this basis, it is sought to be contended
that he was only a Acting Vice-Chancellor. We may record that there is no
W.P.(C) 4471/2012 Page 2 of 5
term “Acting” stipulated in the entire Act or the Statutes. A person, who
assumed the office as Vice Chancellor even under Clause (6), is given the
power to perform the functions of the Vice-Chancellor. Thus, when the
respondent no.2 assumed the office of Vice-Chancellor, he was expected to
perform all the functions of the Vice-Chancellor and, therefore, he had
adequate power to nominate the Members of the Board of Management.
2. We, therefore, do not accept the contention of the learned counsel for
the petitioner that as the respondent no.2 assumed the charge of Vice-
Chancellor in terms of Clause (6) of Statute -1, he could not nominate the
Members. We would, however, like to record that whether appointment of
respondent no.2 as a Vice-Chancellor in the aforesaid circumstances itself
was proper or not is the subject matter of some other writ petition pending in
this Court and, therefore, we have not touched upon that aspect. Our answer
is predicated on assumption of the office of Vice-Chancellor by a person
under Clause-6 and that even such Vice-Chancellor will have full powers to
nominate the Members of the Board of Management.
3. Insofar as respondent no.5 is concerned, his continuation as Director,
School of Extension and Development Studies, IGNOU, Maidan Garhi, New
Delhi is challenged. It is submitted by the learned counsel for the petitioner
in this behalf that the provision for appointment of Directors is contained in
Statute-4. Reading of this Statute would show that every Director is to be
appointed by the Board of Management on the recommendation of the
persons stipulated therein. It is further mentioned that tenure of a Director
shall be three years and he would be eligible for reappointment. Submission
of learned counsel for the petitioner is that the Director could be appointed
W.P.(C) 4471/2012 Page 3 of 5
only by the Board of Management. The term of respondent no.5 had come to
an end on 24.2.2012. However, his tenure was not extended by the Board of
th
Management but only taken note of in 113 meeting held on 31.5.2012. This
issue is discussed as item no.5 with the caption “To consider the appointment
of Directors of various Schools of studies”. It is stated in the minutes that the
Board of Management was informed that certain Directors whose names are
mentioned therein (which included respondent no.5) had completed their
tenure of three years and “they have been asked to continue as Directors of
the respective Schools till further orders……”. It was submitted that Board of
Management had not extended their tenure but had only noted that they were
asked to continue and it is not known who had asked them. We are unable to
read the minutes in the manner suggested by the learned counsel. The
expression “they have been asked to continue as the Directors…” clearly
demonstrate that it is the Board of Management which is asking them to
continue as Directors meaning thereby the Board of Management had
extended the tenure. We, therefore, do not find any infirmity in the
reappointment/extension of the tenure of the respondent no.5 as Director.
4. The Respondent no.6 is the Vice Chancellor of Uttrakhand Open
University, Haldwani, Uttrakhand. Allegation against him is that he was
th
co-opted as Member of the Board of Management in the 112 Meeting held
th
on 9 April, 2012. Minutes of the said meeting duly record the same. His
th
co-option is challenged on the ground that there was no Coram in the 112
meeting of the Board of Management. It is not in dispute that as per the
Statute, the Members of the Board of Management form the Coram for the
meeting of the Board. Statute -6A deals with the Board of Management and
W.P.(C) 4471/2012 Page 4 of 5
Clause (1) thereof mentions the Members who would constitute the Board of
Management. It includes “two representatives of the Government of India,
Secretary, Department of Education and Secretary, Information and
th
Broadcasting, to be nominated by the Visitor”. The 112 meeting was
attended by these persons. The objection of the learned counsel for the
petitioner is that one of them was Mr. Anant Kumar Singh, Jt. Secretary who
was not the Member of the Board of Management inasmuch as it could be
only the Secretary and not the Jt. Secretary. No doubt, the provision
mentions two representatives namely Secretary of the two Ministries, which
is followed by the words “to be nominated by the Visitor” which gives
indication that there can be a representative of the Secretary who can attend
the meeting. In the minutes it is clearly disclosed that Mr. Anant Kumar
Singh attended the meeting as representative of the Secretary, MHRD. We
thus do not agree with the learned counsel for the petitioner that the Board of
Management lacks sufficient Coram.
5. For the aforesaid reasons, we do not find any merit in this petition
which is accordingly dismissed. All pending applications stand disposed of.
ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE
AUGUST 1, 2012
skb
W.P.(C) 4471/2012 Page 5 of 5