Sree Sankaracharya University Of Sanskrit v. State

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The Judgment of the Court was delivered by

Rajan, J.:— This batch of writ appeals arises from a common judgment of the learned single Judge setting aside the selection and appointments to the various posts in the Sree Sankaracharya University of Sanskrit (hereinafter referred to as ‘the University’). O.P No. 16646/94 is filed by five petitioners who applied for the posts of Lecturers in Vyakarana, Sahitya and Vedanta. O.P No. 16586/94 is filed by a single petitioner who applied for the post of Lecturer in Vedanta. O.P No. 15752 of 1994 is filed by a candidate who applied for the post of Lecturer in Sahitya. The petitioner in O.P No. 3297/95 applied for the post of Lecturer in both Sahitya and Vedanta. W.A Nos. 826, 827, 828 and 829 of 1996 are filed by the University against the common judgment in the above 4 original petitions. The other appeals are filed either by the contesting respondents or by persons who are not parties to the original petition with leave and who are adversely affected by the judgment.

2. The common grounds of attack in all these original petitions can be summarised as follows:

(1) The selection committee was improperly constituted because the issuance of the first statute was a pre-requisite for the formation of a selection committee.

(2) Procedure for recruitment and prescription of qualification have to be done by making statutes. No qualifications were prescribed for the various posts in the notification inviting applications.

(3) The principle of communal reservation was not followed.

(4) Unqualified persons were selected. In certain cases relaxation from qualification was given without any authority.

(5) There was no guidelines prescribed for the selection committee to be followed in the matter of selection. Therefore, the selection was illegal and arbitrary.

3. The reliefs prayed in the various original petitions are more or less the same. They are to quash the select list (Ext. P12 in O.P No. 16646/94 and Ext P10 in O.P No. 3297/95). The petitioners also prayed for a declaration that the selection is illegal because it was not done by a duly constituted selection committee. The petitioners have also prayed for a direction to conduct fresh selection in accordance with law. In allowing the original petitions, the learned single Judge came to the following conclusions:

(1) Without framing the first statutes by the Government, no selection committee can be constituted and therefore no valid regular appointments can be made.

(2) The first Vice Chancellor did not issue any proceedings prescribing the qualifications for the appointment of teachers in the place of the regulations to be framed by the Academic Council.

(3) The first Vice Chancellor has no jurisdiction to prescribe procedure for recruitment of teachers in the absence of the first statute.

(4) The procedure adopted by the selection committee without following any guidelines was arbitrary and unfair.

(5) Constitution of the selection committee was bad for various reasons.

4. Before proceeding to consider the various arguments advanced by the learned counsel for the appellants, it is necessary to advert to the various provisions contained in the Sree Sankaracharya University of Sanskrit Act 1994 (hereinafter referred to as ‘the Act’). The purpose of the Act is to establish and incorporate a University at Kalady in Aluva Taluk in Ernakulam district by the name Sree Sankaracharya University of Sanskrit. The preamble of the Act reads like this:

“Whereas, it is considered necessary to establish and incorporate a University in the name of the illustrious Indian Philosopher and Saint Jagadguru Sree Sankaracharya in his place of birth for the promotion and development of the study of Sanskrit, Indology, Indian Philosophy and Indian languages”.

5. According to S. 3 of the Act, the University consists of the Chancellor, the Pro-Chancellor, the Vice Chancellor, the Principal Dean of Studies and the members of the Syndicate and the Academic Council. S. 4 defines the territorial jurisdiction which extends to the whole of Kerala. It also gives power to the University to establish and develop appropriate institutions for the study of Sanskrit, Indology, Indian Philosophy and Indian languages in different parts of the State. S. 7 enumerates the powers and functions of the University of which we intend to re-produce only the relevant provisions, which are necessary to dispose of these appeals;

“7 (i) to provide for instruction in Sanskrit, Indology, Indian Philosophy and Indian languages as well as in such other appropriate allied subjects as the University may deem fit;

(ii) to make provision for research in Sanskrit, Indology, Indian Philosophy and Indian languages.

…………………………

(xii) to establish and maintain academic institutions under the management of the University, to promote education in Sanskrit, Indology, Indian Philosophy and Indian languages;

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(xviii) to define the powers, duties and responsibilities of the authorities, officers and other employees of the University other than those prescribed in this Act;

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(xx) to create posts for teaching, research and other allied academic activities with the prior approval of Government and to appoint persons to such posts;

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(xxix) generally to do all such other acts and things, whether incidental to the powers and functions aforesaid or not, as may be necessary for the furtherance of the objects of the University”.

6. S. 11 of the Act defines the authorities of the University as follows:.

“11. Authorities of the University:— The following shall be the authorities of the University, namely:—

(i) the Syndicate;

(ii) the Academic Council;

(iii) the Faculties;

(iv) the Boards of Studies;

(v) the Finance Committee; and.

(vi) such other bodies as may be specified by the Statutes to be authorities of the University”.

7. The powers and functions of the Syndicate are seen in S. 14 of the Act. We only quote two provisions from S. 14 of the Act which are as follows:

“14(2)(a) to make Statutes in accordance with the provisions of this Act and submit for the assent of the Chancellor.

…………………………

(j) to appoint teachers and other employees of the University, to prescribe their duties and to fix their terms and conditions of services in accordance with the provisions of the Statutes, to entertain, adjudicate upon and if thought fit, to redress any grievance of officers of the University, the teaching staff, other employees of the University and the students who may for any reason feel aggrieved”.

8. We find the power, duties and functions of the Academic Council in S. 17 of the Act. According to the above section, the Academic Council shall, subject to the provisions of this Act and the Statutes, guide and supervise all the academic activities of the University and shall be responsible for the maintenance of standards of instruction and examinations of the University. Subject to the provisions of this Act and the Statutes, the Academic Council shall advice the Syndicate on all academic matters especially in respect of—

(i) ……

(ii) ……

(iii) the qualifications of teachers in conformity with the recommendations of the University Grants Commission;”

9. S. 24 of the Act deals with the appointment of the Vice Chancellor. According to S. 24(5), the Chancellor may, on the advice of the Government, appoint a suitable person who has not completed 62 years of age as the first Vice Chancellor on a parttime or whole time basis for a period not exceeding 30 months. S. 24(5)(b) is quoted in full (much has to be said later on the scope and ambit of the above sub-section).

“The first Vice-Chancellor shall exercise the powers and perform the duties and functions of all the authorities of the University also until they are duly constituted within 2 years from the date of his appointment”.

10. Among the powers of the Vice Chancellor, S. 26(6) states that the Vice-Chancellor shall, subject to the provisions of this Act and the Statutes, appoint the teachers and other employees of the University and shall assign their duties and functions and shall exercise general supervision and control over them. Appointment of teachers, officers and staff is in accordance with S. 31 of the Act which is reproduced in full: here below:

“31. Appointment of teachers, officers and staff:— (1) Subject to the provisions of this Act and the Statutes, the teachers, officers and other employees of the University shall be appointed by the Vice Chancellor on the advice of appropriate S election Committee constituted in the manner prescribed by the Statutes.

(2)(a) Save as otherwise provided in this Act and the Statutes, every teacher, officer and other employee of the University shall be appointed under a written order.

(b) The written order referred to in clause (a) shall be lodged with the Registrar and a copy thereof shall be furnished to the teacher, officer or employee concerned.

(c) Every appointment shall be made consistent with the provisions of this Act and the Statutes for the time being in force in relation to conditions of service.

(3) The retirement age of the teachers of the University, including the Principal Dean of Studies, shall be sixty years and that of the teaching and non-teaching officers and other employees of the University shall be fifty-five years:

Provided that in respect of any person who is appointed temporarily on a short-term cibtract fir a ceruid bit exceeding three years, the age-limit mentioned shall not apply:

Provided further that even such short term contract appointments shall be subject to the approval of the Selection Committee constituted in the manner prescribed in the Statutes”.

11. S. 32 enjoins the University to observe the relevant reservations rules of the Kerala State and Subordinate Service Rules in the matter of recruitment of teaching and non-teaching staff. The last provisions to be mentioned is S. 53 of the Act which authorises the Government to make the first Statutes and the first Ordinances of the University.

12. The University originally came into existence by the promulgation ordinance 11/1993 which came into force with effect from 25.11.93 The above ordinance was replaced by Act 5/94 which was published in the gazette dt 3.3.1994 The first Vice Chancellor took charge on 28.2.1994 According to S. 24(5) of the Act he could continue in office till 28.8.96 It is also pertinent to remember at this juncture that the first Vice Chancellor was also the Chief Secretary of the State.

13. The learned senior counsel Sri. B.S Krishnan who appeared on behalf of the University strongly contended that the first Vice Chancellor was perfectly justified in selecting and making appointments impugned’ in these original petitions. For that purpose, he heavily relied on S. 24(5)(b) of the Act which empowers the first Vice Chancellor to exercise the powers and perform the duties and functions of all the authorities of the University. Therefore, we have to look into the powers, duties and functions of the authorities in the matter of selection and appointment of the teachers. The two authorities which are responsible for the selection and appointment of teachers are the Syndicate and the Academic Council. S. 14(2)(j) gives the power to the Syndicate jo appoint teachers and other employees of the University, to prescribe their duties and to fix their terms and conditions of service in accordance with the provisions of the Statute. The above powers is subject to the provisions of the Act and the Statutes. According to S. 17(2)(iii) the Academic Council has the power to advise the Syndicate in respect of the qualifications of teachers in conformity with the recommendations of the University Grants Commission. The above advice also is subject to the provisions of, the Act and the Statutes. The other provision with regard to the appointment of teachers is contained in S. 31 of the Act. The powers of the Vice Chancellor to appoint teachers teachers under S. 31 is also subject to the provisions of the Act and the Statutes. The learned senior counsel wants us to understand the ambit and scope of section 24(5)(b) in a widest manner possible so as to clothe the first Vice Chancellor omnipotent power to do whatever he wants to do. According to the senior counsel the above power of the first Vice Chancellor is not controlled or qualified by any other provisions in the Act or the Statute. In fact, the first Vice Chancellor must be deemed to have an unbridled power under the above provision. The above argument reminds us the declaration made by an autocrat Emperor of the medieval France “I am the State”. We do not think that we can conceive such a power in the first Vice Chancellor so long as Art. 14 of the Constitution of India exists.

14. The power of the Syndicate to appoint teachers, the power of the Academic Council to advise the Syndicate in respect of the qualification of teachers and the power of the Vice Chancellor under S. 26(6) to appoint teachers are to be exercised subject to the provisions of the Act and the Statute. S. 31 is also to the same effect. Therefore, the first Vice Chancellor cannot derive any power under S. 24(5)(b) of the Act to act ignoring the mandates of the Act and the Statutes. While the first Vice Chancellor is acting in the matter of appointment of teachers, he is only exercising the powers and performing the duties and functions of the Syndicate and the Academic Council. Therefore, such powers, duties and functions are subject to whatever restrictions or qualifications prescribed by the Act and the Statutes. Therefore, the argument of the learned Senior Counsel that all the actions of the first Vice Chancellor in the matter of appointment of teachers which trace his powers to S. 24(5)(b) can be exercised without any respect to other provisions of the Act and the Statutes, cannot be countenanced at all. To accept such an argument will be definitely encouraging illegality, arbitrariness and nepotism on the part of the highest executive of an academic body like a University.

15. Having found that the first Vice Chancellor while acting under S. 24(5)(b) is exercising the powers of the Syndicate and the Academic Council in the matter of appointment of teachers, we have to examine the legality or otherwise of the impugned selection and appointments to the various posts in the University. Necessarily the Academic Council is empowered to advise the Syndicate with respect to the qualification of teachers which must be in conformity with the recommendations of the University Grants Commission. Therefore, we have to examine whether the first Vice Chancellor has exercised the powers of the Academic Council in the matter of prescription of the qualifications. It was fairly admitted by the learned Senior Counsel appearing on behalf of the University that apart from Ext. PI notification there are no other proceedings prescribing the qualifications of the teachers in the University. In this connection, the notification issued by the University inviting applications for the various posts produced as Ext. P1 in O.P No. 16586/94 is reproduced herein below for reference:

“Applications are invited from qualified candidates for appointment as Readers and Lecturers in Sanskrit (Vyakarana, Nyaya, Sahitya and Vedenta separately), Malayalam and Hindi at the various centres (Kalady, Thiruvananthapuram and Tirur) of this University.

Qualifications:

The applicants should satisfy the UGC norms for appointment.

Applications containing Name, Sex, Age, Date of Birth, Qualifications, Publications, previous experience and special qualification, if any, may reach this office on or before 08/07/1994 in envelope addressed to the Joint Registrar (Administration), Sree Sankaracharya University of Sanskrit, Sree Sankarapuram, Kalady, Ernakulam (District) and superscribed “Application for the post of….”

16. The above notification only says that the applicants should satisfy the U.G.C norms for appointment. It is strange that the above notification does not even prescribe the upper age limit for applying for the post. No mention about any relaxation if admissible in case of any deserving candidates is also made in the above notification. The University Grants Commission norms have been produced by the petitioner in O.P No. 16586/94 as Ext. P2.

17. In answer to the contentions raised on behalf of the petitioners in the original petition, the Vice Chancellor has taken the stand in his counter affidavit that the activities of the University are being conducted for the present as per the general norms of procedure and practice adopted by other Universities which are affiliated to the University Grants Commission, even though this University has not so far been brought under the umbrella of the University Grants Commission. But there is no indication about the so called “general norms of procedure and practices” followed by the University in the matter of prescription of qualification and selection of teachers. The stand of the Vice Chancellor goes to the extent of stating that the Academic Council is to advise the Syndicate subject to other provisions of the Act and therefore, it has to be presumed that this function it to be exercised subject to S. 24(5)(b) also. It is the further case of the Vice Chancellor that it was not necessary for him to exercise the function of Academic Council and advise himself when he was exercising the functions of the Syndicate. As stated earlier, we cannot agree with the above stand of the Vice Chancellor because according to us, S. 24(5)(b) does not clothe the Vice Chancellor with any such unguided and unbridled power. The only explanation offered by the Vice Chancellor is that in the absence of the existence of a Syndicate and the Academic Council, he is authorised to act in whatever manner he wants to do. By any stretch of imagination, under our Constitution an authority cannot be allowed to function as the Vice Chancellor wants to do. Therefore, a reading of the whole scheme and provisions contained in the Act will lead to the conclusion that the Vice Chancellor is bound to issue proceedings prescribing qualifications for the different teaching posts in exercise of the powers, duties and functions of the Academic Council, Only after prescription of such qualifications by some means known to law, the Vice Chancellor is empowered to act under S. 24(5)(b) of the Act Therefore, we agree with the view of the learned single Judge on the above point.

18. The learned senior counsel appearing for the University seriously assailed the finding of the learned Single Judge that the Vice Chancellor cannot constitute the selection committee, in the absence of any first Statutes to be issued by the State. In order to sustain the formation of the selection committee, the Vice Chancellor again banks on S. 24(5)(b) of the Act. It is an admitted case that the Vice Chancellor had not issued any proceeding constituting the committee. In order to examine the above contention of the Vice Chancellor, we are again referring to Ss. 24(5)(b), 26(6) and 31 of the Act S. 24(5)(b) gives the power to the first Vice Chancellor to exercise the powers and perform the duties and functions of all the authorities of the University. The specified authorities of the University as evident from S. 11 of the Act are: (i) the Syndicate (ii) the Academic Council (iii) the Faculties (i v) the Members of Studies and (v) the Financial Committee. The sixth item is such other bodies as may be specified by the Statutes to be the authorities of the University. Therefore, it is quite clear that the selection committee is not an authority specified in S. 11 of the Act. The Selection Committee can be roped in as an authority of the University only if it is specified by the statutes. When first Statutes have not been issued by the Government, it is not possible to comprehend that selection committee is a body specified by the Statutes to be an authority of the University. S. 26(6) also gives the indication that the Vice Chancellor can appoint the teachers and other employees of the University only subject to the provisions of the Act and the Statutes. S. 31 states that the Vice Chancellor's power to appoint the teachers, officers and other employees of the University is to be exercised on the advice of the appropriate selection committee constituted in the manner prescribed by the Statutes. Therefore, it is obvious that the selection committee has to be constituted by the Statutes. In the absence of the first statutes, no valid selection committee can be constituted by the Vice Chancellor in exercise of the powers conferred on him under S. 24(5)(b) of the Act. Thus, the above discussion leads us to the irresistible conclusion that the Vice Chancellor's action in constituting the selection committee is illegal and without jurisdiction.

19. In this connection, we have to deal with yet another contention of the petitioners in the original petition that the members of the selection committee are not experts in the various fields so as to assess the eligibility and suitability of the candidates interviewed. From the counter affidavit of the Vice Chancellor it is revealed that the same selection committee interviewed all the candidates for the various posts like Readers, Lecturers etc. and for various disciplines like Vedanta, Sahitya, and Vyakarana etc. It is also interesting to point out that the three members of the selection committee were appointed by the Vice Chancellor on contract basis. Some of them had already retired from the Government Service. Only one member namely Dr. N. Gopala Panicker is a holder of the doctorate degree. All others are only post graduates. The minimum qualification for the post of Reader is PH.D Another member Professor N. Radhakrishnan is having only an M.A in Sanskrit (special Nyaya and special Sahitya). The third member Professor R. Vasudevan Poti has M.A in Sanskrit (special Vedanta and special Sahitya). It is also to be pointed out that as the usual practice, no expert was called from outside. There was also an uncontroverted allegation in the original petition that questions were asked by the Vice Chancellor alone and no questions were put by the other members of the selection committee. The petitioner in O.P No. 16586/94 (subject matter of W.A No. 827/96) has a specific case that the constitution of the selection committee for Readers (Vedanta) without a single member having the qualification of Doctorate in Vedannta is illegal. It must be remembered that the only Doctorate degree holder of the committee Dr. Gopala Panicker, it not having his Doctorate degree in Vedanta. It is also a fact that the selection committee did not have the benefit of a member with post graduate degree in Sanskrit (Vyakarana) when selection was made for appointment to the posts of Readers and Lecturers in Sanskrit (Vyakarana). An Academic body like the University, especially when making selection to the post of Readers and Lecturers in the most complicated subjects of Vedanta, Vyakarana and Sahitya in Sanskrit did not choose to include an expert on those subjects. The University also did not care to include any member who has got at least equal qualifications if not more qualifications than the candidates whom they are going to interview. When we expect that only excellent candidates alone are to be selected for teaching subjects like Vedanta, Vyakarana etc., the University has not chosen to adopt any method so as to ensure the selection of the best and deserving candidates. Under these circumstances we are constrained to uphold the finding of the learned single Judge that the constitution of the selection committee was totally arbitrary and unfair.

20. In this context we have to take note of a serious objection raised by the learned senior counsel on behalf of the University which was adopted by the other learned counsel appearing in the other appeals that the petitioners in the original petition, after having subjected themselves to the interview cannot now turn round and challenge the constitution of the committee. Reliance was placed on the decision of the Supreme Court in Om Prakash Shukla v. Akhilesh Kumar Shukla (1986 Supp SCC 285 : AIR 1986 SC 1043). In the above case, the challenge was against the results of the competitive examination held by the District Judge for appointment to the ministerial service in the subordinate Courts, it was contended therein that the rules framed for the conduct of the competitive examination were not legal or operative. The Supreme Court upheld the validity of the rule and held that the rule were inoperative. Then there was an observation that the petitioner having appeared for the examination without protest should not have been granted any relief.

21. Aruling of Justice M.P Menon reported in Sambasivan v. State Bank of Travancore (1987 KLJ 48) was also pressed into service by the learned senior counsel appearing for the University in order to refuse relief to the petitioners on the ground that having participated in the selection process and taken the chance of getting selected, the petitioners cannot thereafter be heard to complain that the method Itself was illegal. In the above case, there were serious complaints against the Board of interview in the sense that the Board was influenced by the prejudice against Scheduled Caste/Scheduled Tribe candidates and that the interview was used as a method for rejecting them so that a few favourites of the management will get the promotion. In dealing with the above contention of the petitioners regarding the manner in which the interview was conducted, this Court observed that in such cases where the petitioners have participated in the selection process without any demur, are not entitled to invoke the extra ordinary and discretionary jurisdiction of this Court under Art. 226 of the Constitution. Justice M.P Menon lays emphasis on the fact that the relief is refused in such cases, not because that want of jurisdiction can be overlooked but because the conduct of the petitioners disentitle them from requesting the court even to examine the question of jurisdiction.

22. The facts of the above two cases are clearly distinguishable from the facts of the present case. In these cases, the constitution of the selection committee was not known to the candidates. Only when they appeared for the interview, they knew who are all the members of the selection committee. Only thereafter, they could gather information regarding the qualifications and other relevant factors about the members of the selection committee. Under these circumstances, we do not think that the theory of “sitting on the fence” can be applied in these cases. Moreover, in these cases, the learned single Judge has already exercised the discretionary jurisdiction under Art. 226 of the Constitution in favour of the petitioners even after noticing the above legal question. Therefore, unless it is shown to us that the above exercise of the discretionary jurisdiction is illegal, arbitrary or perverse, this Court sitting in appeal may not interfere with the judgment of the learned single Judge (Please see State of Kerala v. Balakrishnan (1992 (1) KLT 420)).

23. Another aspect which has been seriously urged by the petitioners and taken note of by the learned Single Judge is that there were absolutely no guidelines prescribed by the University for the conduct of the interview. In the absence of any guidelines prescribed by the University for the purpose of the conduct of the interview, there is every likelyhood of of arbitrariness creeping into the selection. In fact, it has happened in this interview, which we may demonstrate with reference to the files later. When dealing with the above aspect, the learned senior counsel appearing for the University argued that the finding that there were no guidelines are incorrect and in fact, the files contained the proceedings of the Vice Chancellor dt. 25.5.94 prescribing the guidelines. We had the benefit of examining the above guidelines which now finds its way into the file. When it was the contention of the petitioners in the original petition that the Vice Chancellor had not issued any guidelines and there was no case for the Vice Chancellor in the various counter affidavits filed in these original petitions that had actually issued guidelines, it is strange to notice that the guidelines suddenly emerged in the files. After carefully examining the three pages handed over to us, we have got every reason to believe that they were created subsequently. We do not want to enter upon any definite finding on the above aspect because a high dignatory of an academic body is involved in the matter. Suffice to say that we maintain the finding of the learned single Judge that there were no guidelines issued by the Vice Chancellor.

24. Regarding the manner of assessment of the suitability and the merits of the candidates, the Vice Chancellor stated in the Counter affidavit as follows: (Please see the counter affidavit in O.P 15752/94):

“The process of selection consisted of the interview, assessment of academic qualifications, experience, publications, research and other achievements. Separate marks were awarded for all these items. The selection was not therefore based on the performance in the interview alone. The allegations made to the contrary are baseless and are denied”.

25. The learned single Judge had occasion to consider the veracity of the above statements with reference to the files relating to the interview conducted for selection to the post of Readers and Lecturers. It is advantageous to extract the above discussion of the learned single Judge from the judgment:

“The assertion made by the Vice Chancellor as above is not supported by the selection file or by any other document produced before this Court. No guideline is seen given to the selection committee as to how marks are to be awarded for the academic qualification, experience, publication, research, other achievements and interview. In the tabulated statements signed by the selection committee marks are seen awarded only for interview. In the selection of Readers the highest mark seen awarded is 25, whereas for Lecturers the highest mark seen given for interview is 37. It is not referred any where in the counter affidavits of the Vice Chancellor as to what was the maximum mark set apart for interview. In the light of the above, the petitioners are fully justified in contending that the selection made without proper guideline is arbitrary and therefore, vitiated”.

26. When we examined the files relating to the interview, it was found that no marks have been given for qualification, teaching experience, publication etc. But those marks were entered in pencil while all other marks are recorded in ink. Considerable suspicion is thrown on the files now produced before us. It is quite deaf that when the learned single Judge examined the files relating to interview, no marks were awarded separately for qualification, experience, publication etc. That is why the learned single Judge has categorically found that the selection made without proper guideline is arbitrary and vitiated. There was no case for the Vice Chancellor in the various counter affidavits filed by him that marks were awarded separately for the various heads. Under these circumstances we are not inclined to accept the present contention of the senior counsel for the University that everything was fair with the interview. The scribbling of the marks in pencil for the various heads now found in the file lead us to another irresistible conclusion that the University now wants this Court to believe that the interview was conducted fairly and properly and therefore, there is no substance in the finding of the learned single Judge.

27. One or two other factors which we could gather from the files also disturb our judicial mind. In the case of one Dr. P. Mohammed Abdul Rahman, he was awarded 15 marks for educational qualification and 18 marks for teaching experience. The total of those marks comes only to 33. But he has been given 43 marks. All these figures are scribbled in pencil. In the case of K.P Babudas (appellant in W.A No. 930/96) his marks for educational qualification were only 4, and then it was scored and corrected as 6 (all in pencil). In the case of one Dr. M.P Unnikrishnan (appellant in W.A No. 891/96) there is over-writing in the marks allotted for educational qualifications. It is to be remembered that all these persons were selected and appointed as Readers. Dr. T. Vasudevan (appellant No. 1 in W.A No. 924/96) is having only one year teaching experience. He scored nil mark in the interview. He was selected for the post of Lecturer, though he appeared for interview for the post of Reader. There is another more interesting case of one G. Ramamurthy who was selected as a Reader. He scored 24 marks in the interview. According to the so called guidelines, the total marks for the interview is only 25. In pencil, he has been given 15+10 marks for educational qualifications. The total marks for the educational qualification is only 30 according to the guidelines now made available to us. He has been awarded 8 marks for publications without mentioning the nature of the publications. He has no teaching experience. He is working as Assistant Grade I in the Department of Law in Cochin University. The marls sribbled in pencil comes to 33. Thus, a person without any teaching experience has been selected and appointed as a Reader, totally ignoring the more eligible and deserving claims of other candidates.

28. The learned single Judge had also occasion to examine the same fifes made available to us. In paragraphs 31 to 35 of the judgment, the learned single Judge has discussed the various educational qualifications, teaching experience, marks awarded in the interview of the various candidates including the petitioners in the original petition and those selected and appointed. After giving anxious consideration, the learned single Judge has come to the conclusion that candidates with lesser academic qualifications were awarded higher marks for the interview, so as to boost up their chances for getting selected. It was also found that it is impossible to find out from the files how (he first petitioner in O.P No. 16646/94 who is highly qualified was denied selection when candidates with lesser qualifications were selected. The case of C.A Shaila (5th respondent in O.P No. 16646/94 and appellant in W.A No. 941/96) is more intriguing. The contention against her is that she has not passed the National Eligibility Test required for appointment to the post of Lecturer under the U.G.C norms. She was not having any other alternative qualification. Still she was selected because, according to the Vice Chancellor, she belongs to the Muslim community and she is the wife of an ex-service man which fact also, according to the Vice Chancellor, entitles her for special consideration. The learned single Judge has dealt with the above case in the following terms:

“More curious is the justification put forward in the counter affidavit of the Vice Chancellor namely, that she deserves special consideration being the wife of an ex-service man. There is no provision brought to the notice of the Court which giants reservation or special consideration for ex-service men or wives of ex-service men in the matter of appointment to the teaching post under the University. It is quite unfortunate that the Vice Chancellor who is also the Chief Secretary of the State has put forward such a contention in his attempt to justify an illegal action. I have no hesitation to hold that the selection of C.A Shaila (4th respondent in O.P 3297/95 and 5th respondent in O.P No. 16646/94) was dearly illegal”.

29. We have no hesitation to agree with the above findings of the learned single Judge.

30. The tenth respondent in O.P No. 15752/94 and appellant in W.A No. 914/96 who was appointed as a Lecturer in Sanskrit (Sahitya) is not having (he basic qualification for such appointment. The sixth respondent in O.P No. 16646/94 and the appellant in W.A No. 910/96 was selected for the post of Lecturer in Sahitya, while he has no basic qualification to be appointed in the above post Under the U.G.C norms, a post graduate degree in the concerned subject is a mandatory qualification. No exemption can be granted for the above two persons from possessing the basic qualifications. The more interesting case is that of Dr. P.K Dharmarajan, who was appointed as a Lecturer when he had not even submitted an application for the above post Actually he applied for the post of Reader. It is strange to note that when a candidate was found to be ineligible and unsuitable for the post of Reader, he was considered for the post of Lecturer and he was selected and appointed to the above post The contention of the Vice Chancellor in the counter affidavit that there is nothing irregular in such an appointment, to say the least, is curious if not arbitrary. All these infirmities, irregularities and illegalities discernible from the files relating to the interview disturb our judicial mind. The matter is very serious when we remember that all these happened in the matter of selection to the post of Readers and Lecturers in the University established in the name of Sree Sankarachaya. The self-imposed judicial restraint us from making any caustic comment on the conduct of the interview leading to the impugned selection of teachers in the University.

31. S. 32 of the Act enjoins the University to observe the relevant reservation rules of the Kerala State and Subordinate Service Rules in making appointments by direct recruitment to all teaching and non-teaching staff of the University. It is almost admitted in the counter affidavit that the above rules were not followed in making the appointments, except to state that out of 31 candidates selected for the post of Lecturers, there are 9 candidates belonging to backward classes. We went through the files relating to the selection of the candidates to the post of Readers and Lecturers. We first deal with the select list of Readers in Sanskrit. The above select list consists of 20 persons. A waiting list is also therefore consisting of 11 persons. The list of Readers selected (community reservation-rosterwise) consists of 20 persons. The 4th vacancy is earmarked for Scheduled castes. But no Scheduled Caste candidate was available. But in the list one Dr. P. Syamala Devi (Nair) was selected to the above vacancy. Similarly the 12th vacancy is also for the Scheduled Caste. In the absence of the candidate from the Scheduled Caste, one Dr. G. Rama Murthy (Tamil Brahmin) was selected. According to Rule 15(b) of the KS & SSR if no suitable candidate is available for selection from Scheduled Castes or Scheduled Tribes, selection shall be made among the community immediately next to the group of community entitled to be appointed according to the turn allotted in the order of rotation. If no suitable candidate is available for selection in any of the communities or group of communities, selection shall be made from open quota candidates. When no Scheduled Caste candidate is available for the 4th place, it should have gone to a Muslim candidate which is No. 6. Therefore, alloting the slot earmarked for Scheduled Castes to open competition is clearly illegal being against the reservation rules. Again we find that place No. 8 intended for a Latin Catholic has been alloted to Dr. P.V Ouseph (Christian) A Christian other than a Latin Catholic or Anglo Indian does not belong to a backward community. Obviously, Dr. P.V Ouseph is not a Latin Christian because the interview file does not indicate that he belongs to Latin Catholic. In the case of all oiher candidates, it has been noted whether one belongs to a backward community like Muslim, Ezhava etc. Therefore, according to the rules, in the absence of a Latin Catholic, the above vacancy should have gone to the next available candidate from any other backward community available in the list. No. 10 belongs to Other Backward Community. In the absence of a candidate available from the above group, it was given to one K.P Sreedevi (Namboodin Brahmin). This is also is against the rules because the aboveplace must be given to a candidate belonging to the next available backward community.

32. The list of Lecturers (open merit) consists of 41 persons. Then there is another list of Lecturers for reservation quota. The list of Ezhava candidates consists of 14 persons. The list consists of one Scheduled caste candidate, one Muslim candidate, 5 OBC candidates, 2 Viswakarma candidates and one Dheevara candidate. The first candidate in the open merit list is having 71 marks and the last candidate is having 12 marks. The first candidate among the Ezhava list is having 58 marks. The lone Scheduled Caste candidate is having 45 marks. The Muslim candidate is having 25 marks and the OBC candidate is having 45 marks. Therefore, it is obvious that these persons are entitled to be included in the open merit list in accordance with the marks obtained by them. According to rule 14(b) of the KS & SSR, the claims of members of Scheduled Castes and Scheduled Tribes and other Backward Classes shall also be considered for appointment on the basis of merit and such consideration of their claims on merit shall not affect the number of posts reserved for them, on the basis of communal reservation. Therefore, by including these persons, who scored fairly high marks, in a separate reservation list, their claim to be included in the merit list has been affected adversely, thus depriving another eligible and deserving member from their community to be included in the reservation quota. The first person among-Ezhava who scored 58 marks is entitled to be included as item No. 4 in the merit list. Simil arly the second person among the Ezhava candidates is entitled to be included in the merit list as item No. 10. The first person in the OBC list who scored 45 marks is entitled to be included as item No. 7 in the merit list. Therefore, it is obvious that the University has completely flouted the mandatory provisions contained in Rr. 14 to 17 of the KS & SSR. This has resulted in depriving the members of the Scheduled Castes and Backward Communities of their legitimate rights to be appointed as Readers and Lecturers. According to us, this fact alone will vitiate the entire selection.

33. The counsel for the appellants made a fervent plea before us that this Court shall not dwell deep into the selection of candidates done by the selection committee and assume the role of the selection committee dissecting the process of selection. Reliance was placed on the ruling of the Supreme Court reported in Dalpat Abasaheb Solunke v. B.S Mahajan ((1990) 1 SCC 305 : AIR 1990 SC 434) in support of the above contention. In the above decision the Supreme Court held that it is not the function of the Court to hear appeals over decisions of the selection committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection or proved malafides affecting the selection etc. It has to be borne in mind that in the above case, it was not disputed that the selection committee was constituted in due compliance with the relevant statute. The committee also consisted of experts and it selected the candidates after going through all the relevant materials before it. The cases before us are entirely different from the case which was the subject matter of Supreme Court decision. In this case, even the very constitution of the selection committee has been held to be without authority. The procedure adopted by the selection committee was also vitiated by the absence of any guidelines for awarding marks etc. Other patent illegalities and irregularities noted supra also compel us to interfere with the selection made by the University. We do not think that in such cases, the Supreme Court has prevented the High Court from exercising its jurisdiction in the matter of interfering with the selection made by the University. We feel that injustice and arbitrariness will be perpetuated, if we do not interfere with the selection made by the University. The learned counsel also cited the ruling of the Supreme Court reported in Om Prakash Poplai v. Delhi Stock Exchange Assn. Ltd. (1994) 2 SCC 117). That was a case related to the selection made by a committee of the Stock Exchange. The Supreme Court defined the area of operation in the matter of interference by the court in the above case. The Supreme Court was of opinion that interference is possible when the decision is biased, capricious, whimsical or arbitrary. Therefore, the above ruling really supports the case of the petitioners in the original petition and does not go in sustaining the selection made by the University.

34. Learned counsel Sri. C.P Sudhakara Prasad appearing for the petitioners in the original petition and the contesting respondents in the writ appeals maintained that the case at hand must compel this court to interfere with the selection made by the University. In the ruling reported in Dr. J.P Kulshrestha v. Chancellor, Allahabad University ((1980) 3 SCC 418 : AIR 1980 SC 2141), the Supreme Court had occasion to consider the jurisdiction of the Court to go through the files relating to the interview inorder to see whether the selection has been made properly and fairly. Justice Krishna Iyer, in his inimical style has observed as follows:

“…Certainly, cases arise where the art of interviewing candidates deteriorates from strategy to strategem and undetectable manipulation of results is achieved by remote control tactics masked as viva voce tests. This, if allowed, is surely a sabotage of the purity of proceedings, a subterfuge whereby legal means to reach illegal ends is achieved. So it is that Courts insist, as the learned single Judge has, in this very case, suggested on recording of marks at interviews and other fair checks like guidelines for marks and remarks about candidates and the like. If the court is skeptical, the record of the selection proceedings, including the notes regarding the interviews, may have to be made available”,

35. The observations of the Supreme Court aptly fit into the facts of this case. We feel that if the interview which led to the selection and appointment of the teachers are allowed to stand, it will definitely be negation of justice and giving a legal stamp to the illegal action of the University, virtually making the viva voce test a mockery.

36. The learned counsel also strongly relied on the ruling of the Supreme Court reported in Dist. Collector & Chairman, Vizianagaram S.W.R.S Society v. M. Tripura Sundary Devi ((1990) 3 SCC 655) to attack the relaxation granted to persons selected as Readers and Lecturers. In the above case, persons without the minimum essential qualification were appointed by relaxing the qualification.

37. The Supreme Court without any reservation, held as follows:

“6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualification mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice”.

38. Therefore, it is obvious that the University committed a serious irregularity in selecting and appointing candidates who did not satisfy the requirement of minimum basic qualification.

39. This court had also occasion to consider the above position in the ruling reported in Ibrahim v. District Medical Officer (1995 (1) KLT 704). Therefore, we are of the view that no relaxation can be granted when an advertisement has been issued inviting applications and persons possessing the qualifications so advertised submitted their applications. If at all a relaxation has to be allowed, the advertisement should also expressly state the fact that the authority reserves the right to relax the qualifications in deserving cases. Once the qualifications have appeared in the advertisement inviting applications, those qualifications cannot be changed unilaterally. The selection has to be made out of the candidates possessing those qualification. Otherwise the selection is arbitrary and is liable to be interfered.

40. This Court had also occasion to consider whether a candidate who applied for a post can be considered as qualified treating the qualification as equivalent to the one notified In the ruling reported in Sobha Menon v. Public Service Commission (1994 (1) KLT 986) this Court held that the procedure adopted by the P.S.C after the notification and submission of applications by undertaking the exercise of finding out whether any of the applicants who had applied, possessed a qualification which can be treated as equivalent to the notified, would be arbitrary and unjust and would have deprived many a fit candidate of the opportunity of applying for the post. We fully endorse the view expressed by the Court in the above judgment.

41. In this connection, we also notice the ruling reported in National Institute of Mental Health & Neuro Sciences v. K.K Raman (1992 Supp (2) SCC 481 : AIR 1992 SC 1806) cited by learned counsel appearing for some of the selected candidates. Even though the learned counsel cited the above ruling for the purpose of lack of jurisdiction for this Court to interfere in the matter of selection by a selection committee, certain observations made in the above judgment will help us to know the powers that we can exercise in such cases. The Supreme Court held that giving of reasons for decision is different from and in principle distinct from the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The ‘fairness’ or ‘fair procedure’ in the administrative action ought to be observed. The selection committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. After making the principle clear, the Supreme Court held on the facts of that case that there is nothing on record to suggest that the selection committee did anything to the contrary. But the facts revealed in these cases discussed above cannot but lead to the absolute unfair procedure adopted by the selection committee which resulted in deserving candidates being excluded from getting selected and most undeserving candidates getting selected for the teaching posts.

42. Sri. K. Balakrishnan, learned counsel appearing for some of the appellants who were selected, advanced an argument that appointments can be made by the University even without framing any statute. The learned counsel relied on two decisions of the Supreme Court reported in V”. Balasubramanian v. T.N Housing Board - ((1987) 4 SCC 738 : AIR 1988. SC 6) and Mysore S.R.T Corporation v. Gopinath, (AIR 1968 SC 464). The first decision related to the appointment to the Tamil Nadu Housing Board. In the abovecase, eventhough the Tamil Nadu Housing Board framed draft regulations, they were not approved by the Government In those circumstances, the Supreme Court upheld the action of the Housing Board in making appointments without an approved regulation. At the same time, the Supreme Court observed that the appointments must be consistent with the draft regulations. The second case related to the appointments made by the Mysore Road Transport Corporation. The Road Transport Corporation Act empowers the framing of regulations regarding recruitment of the staff. The Supreme Court upheld the appointments made by the Corporation in the absence of any regulation. But the provisions contained in the Act regarding appointment of teachers is a mandatory one and no appointment can be made without constituting a selection committee in the manner prescribed by the Statute. The Supreme Court as well as this Court has consistently held that when an Act prescribes a particular mode or manner in which certain things are to be done by an authority, it could be done only in the manner or mode prescribed by the Act. Thus, in this case, when S. 31 enjoins that the Vice Chancellor shall appoint the teachers on the advice of the selection committee constituted in the manner prescribed by the Statute, the selection committee must be constituted in the manner prescribed by the statute. That has not been done because first statute have not been issued by the Government Therefore, the argument that the University can appoint teachers even in the absence of the statute cannot be accepted by us in view of the mandatory provisions contained in various provisions in the Act including S. 31.

43. Sri. Kurian Joseph, learned senior counsel appearing for some of the selected candidates put forward two contentions. The first contention is that the selection Committee is one of the authorities specified under S. 11 of the Act. Therefore, under S. 24(5)(b) of the Act, the Vice Chancellor can assume the role of the selection committee. We have already negatived the above contention since any other body not specifically mentioned in S. 11(i) to 11(v) must be a body specified by the statutes to be an authority of the University. In view of absence of any such statute, the selection committee can never be considered as an authority.

44. The second argument advanced by the learned senior counsel is that unless S. 24(5)(b) was given full force and effect, the University could not have functoned effectively. If the Vice Chancellor has no power to make appointments in the absence of the Syndicate and Academic Council or the first statute, the University cannot start functioning. Such an interpretation would put stumbling blocks in the functioning of the University. The very formation of the University will be confined to the statute book. Such an interpretation will make S. 24(5)(b) a dead letter and the Vice Chancellor will become a mere honorary head of an institution which cannot start functioning. We are not impressed at all by the above argument. According to us, the Vice Chancellor is precluded from making regular appointments only, without the aid of the advice of the Academic Council and the selection committee. It is for the first statutes to prescribe the constitution of the selection committee on whose advice alone the Vice Chancellor can make regular appointments. A reading of S. 31, especially the two provisos, would go to show that the Vice Chancellor can resort to make temporary and short term contract appointments. Therefore, till the University becomes a full-fledged establishment by forming the Syndicate, Academic Council etc and till the first statute and other statutes are issued, the Vice Chancellor can make appointments other than regular appointments. In fact it is revealed that the Vice Chancellor has been making such contract or deputation appointments in the University. Therefore, our interpretation on the ambit and scope of S. 24(5)(b) will not make the Vice Chancellor helpless in governing the University.

45. We will also dispose of one more contention regarding the selection made by the committee without an expert in the subject This was considered by the Supreme “Court in the ruling reported in Triloki Nath Singh v. Bhagwan Din Misra ((1990) 4 SCC 510). In the above Case, the selection was to the post of Reader in Linguistics in the department of Hindi. There was no expert in Linguistics but there were experts in Hindi literature. While considering the validity of the selection made by such a committee without the aid of an expert member, the Supreme Court stressed the necessity of an expert member in the selection committee with qualification in the subject concerned and relief was granted to the candidate who challenged the the constitution of the selection committee. In this case, it was an admitted fact that there was no outside expert in any of the disciplines.

46. Sri. N. Nandakumara Menon, learned counsel appearing for some of the appelllants representing the selected candidates strongly put forward the plea that they are innocent victims of the selection made by the University and they may not be penalised for no fault of theirs. It was submitted at the Bar that his clients are highly qualified or better qualified than the petitioners in the original petition. They were employed in some other Universities or institutions. They resigned their jobs and accepted the present job. Therefore, if the selection is set aside, it will cause untold miseries and hardship to them. The facts relating to their superior qualifications and their original appointment elsewhere were not pleaded in any of the writ appeals filed by them. Therefore, we cannot take note of those facts. In fact, we feel that the above argument is directed towards our heart rather than our head. This is not for the first time that courts are faced with the plea of so called innocent victims who happened to get selected by an arbitrary or fraudulent process. The Supreme Court dealt with the above plea of the innocent victims in the ruling reported in Krishna Yadav v. State of Haryana ((1994) 4 SCC 165 : AIR 1994 SC 2166). The Supreme Court in the above decision held as follows:

“In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as “Fraud unravels everything”. To put it in other words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly, we hereby set aside the selection of Taxation Inspectors”.

47. A Division Bench of this Court had also occasion to consider the above aspect in the ruling reported in Purushothaman v. Registrar Of Co-Operative Societies (1996 (1) KLJ 531) in which one of us (Justice K. Sreedharan) was a party. This Court while dealing with the above aspect held as follows:

“In the instant case, it has virtually come out that large scale manipulations, fraud and payment of money took place in giving the appointment. Candidates were selected by adopting backdoor methods. In such a circumstance, principles of natural justice cannot be pressed by the candidates who were parties to the fraud. When it has come ‘out that majority of the appointments were effected on account of manipulations and on payment of money, any direction to comply with the principles of natural justice in the sense to afford them a hearing will only be a futile exercise of power. Persons who got the orders of appointment by resort to back door methods should be sent out through backdoor itself’.

48. Before parting with these appeals, we are constrained to express our deep anguish over the state of affairs prevalent in the University. Sree Sankaracharya is the greatest Saint ever lived in India. He was responsible for the great renaissance of Hinduism in India. His advaida philosophy was the richest contribution to the Indian Philosophy. Kerala is proud of being the birth place of Adi Sankara. Sanskrit was once considered to the language of Veda. It lost its prestine glory and is now regaining its lost glory slowly. It is said that Sanskrit (not????) is best suited to be the universal language. A University for the development of Sanskrit in the home of Sree Sankara was a distant dream for many years. The active support, both moral and materia], given by the Chief Councillor. His Holiness Bharathithzertha Maha Swamiji was instrumental to a great extend for the establishment of this University. But the scenario unfolded before us in these cases shatters all the dreams of a great University. It was disclosed at the Bar that now there are 3000 students, 400 teachers and 12 centres for the University. The subjects taught are from Vedanta to Ayurveda including courses in Economics, Politics and B. Ed. We fail to appreciate the wisdom of the University to start courses which are totally unconnected either with Sanskrit or Sree Sankaracharya. It is highly regrettable that persons who are responsible for these mushrooming of centres and courses forgot the Great Saint whose name the institution still bears and his great philosophy, the value of which is eternal.

49. In this connection, we record the submission made by the learned Advocate General that the Government now realises that the functioning of the University so far was not quite well and he candidly admitted that he approves the views expressed by the learned single Judge. It was also assured before us that within four months, the Government will issue the first statutes which will go in a long way to cure the defects.

50. Under these circumstances, we fully endorse She views expressed by the learned Single Judge and the learned Single Judge was quite right in granting the reliefs to the petitioners in the Original petition. We dismiss the writ appeals but make no order as to costs. The direction contained in Para. 52 of the Judgment of the learned single judge will be in force for the period of two months from today.

Sreedharan, A.C.J:—

51. I had the opportunity of going through the judgment that is about to be pronounced by my learned brother, C.S Rajan, J. and I fully agree with the conclusions he has reached. But, taking into consideration, the effect of the judgment that is about to be delivered, I consider it necessary to express few words on the power of the first Vice Chancellor under the Sree Sankaracharya University of Sanskrit Act, 1994, hereinafter referred to as “the Act”.

52. The first Vice Chancellor of the University was conferred authority to exercise all the powers and perform the duties and functions of all the authorities of the University until they are duly constituted within 2 years from the date of his appointment The first Vice Chancellor of the University was appointed on 28.2.1994 From that date, as per the provisions contained in S. 24(5)(b) of the Act, he could exercise all the powers and perform all the duties and functions of all the authorities of the University for a period of two years. Consequently, the argument that was advanced before us was that the appointments made by the Vice Chancellor are beyond the pale of judicial review by this Court under Art. 226 of the Constitution. This argument, according to us, cannot be countenanced by a Court of law in view of the decisions of the Supreme Court and the High Courts. The Court can examine the reasonableness of the various acts done by the first Vice Chancellor on the touch stone of reasonableness and fair-play.

53. The main provision relied on by the University to support the deeds of the first Vice Chancellor is that contained in S. 24(5)(b) of the Act S. 24(5)(a) authorises the Government to appoint a suitable person as the first Vice Chancellor on a part-time or full-time basis for the period not exceeding thirty months. The said first Vice Chancellor was given powers as per sub-clause (b) of Clause (5) of S. 24. For a proper understanding of that provision, we read the same:—

“The first Vice Chancellor shall exercise the powers and perform the duties and functions of all the authorities of the University also until they are duly constituted within 2 years from the date of his appointment”.

54. In order to understand the true effect and scope of this provision, which conferred the authority to perform the duties and functions of all the authorities, we have to go through the provisions of the Act dealing with the duties and functions of the authorities of the University. The authorities of the University as per S. 11 are the Syndicate, the Academic counsel, the Faculties, the Board of Studies, the Finance Committee and such other bodies as may be specified by the statutes to be authorities of the University. It is common case that Government and Government alone have the power to frame the First Statutes to the University Act. In the absence of First Statutes, no statute could be framed by the Vice Chancellor in exercise of the duties cast on him as the Syndicate. Sri. B.S Krishnan, learned senior counsel representing the University, rightly and fairly conceded that the first Vice Chancellor while exercising duties and functions of the Syndicate could not frame any statute as contemplated by the Act.

55. S. 24(5)(b) authorities the first Vice Chancellor to perform the duties and functions of the Syndicate. Syndicate, as per S. 14(2)(j) of the Act has inter alia got the power to appoint teachers and other employees of the University. But, that power of the Syndicate is subject to the provisions of the Act and the Statutes. It is agreed that Statutes have not been framed and the first Vice Chancellor could not make any Statute. So, the appointment to any post as per S. 14(2)(j) could not be effected by the Vice Chancellor in the purported exercise of authority of Syndicate.

56. S. 17 of the Act deals with the powers of the Academic Council. Clause (2)(iii) of that Section gives power to the Academic Council to advice the Syndicate on the qualifications of teachers in conformity with the recommendations of the University Grants Commission. This power of the Academic Council could also be exercised by the first Vice Chancellor only subject to the provisions contained in the Act and the Statutes. In the absence of the Statute, he was strictly bound to follow the qualifications of teachers as adopted by the University Grants Commission. While making appointments to the University, the first Vice Chancellor, it is common case, did not conform to the recommendations of the University Grants Commission regarding qualification, age limitetc. Without specific sanction from University Grants Commission, exemption from qualification, or from age limits, could not be granted. Ignoring this condition imposed in the norms the Vice Chancellor granted exemption from qualification and age limit to persons of his choice without any guideline.

57. S. 31 of the Act states that the Vice Chancellor shall appoint teachers, officers and other employees of the University on the advice of appropriate Selection Committee constituted in the manner prescribed by the Statutes. As paer this Section, the selection committee must be constituted in the manner prescribed by the Statutes and not otherwise. The constitution of the Selection Committee should be in accordance with the provisions contained in the Act and the Statutes, in the absence of Statutes, no Selection Committee could be constituted. In the absence of a Selection Committee, the S yndicate or for that matter first Vice Chancellor has no power to make any appointment of teachers, officers and other employees of the University.

58. An argument was advanced to the effect that the first Vice Chancellor when appoints a Selection Committee, that Committee will become one of the authorities of the University under S. 11(vi) of the Act and that the power of the Selection Committee could also be exercised by the Vice Chancellor. We find it difficult to agree with this argument. Selection Committee is to be constituted in the maimer prescribed by the Statute. Without the First Statue, the Vice Chancellor cannot make a Statutein exercise of the functions of the Syndicate. Selection Committee can be constituted only in the manner prescribed by the Statute. In the absence of Statute, no selection Committee could be constituted. So, the Selection Committee constituted by the Vice Chancellor without conference to the Statute cannot-become other authority of the University. Though the first Vice Chancellor had the power to exercise the functions of the Syndicate, he had not power to make a Statute. In the absence of a Statute, Selection Committee cannot be constituted to make it one of the other bodies of the University coming within S. 11(vi) of the Act.

59. Learned counsel representing the University did not take a stand that the first Vice Chancellor did exercise the functions of the Syndicate in framing Statute because of the absence of the First Statute framed by the Government, That power of the, Government, it is nobody's case, was given to the first Vice Chancellor. So, also learned counsel representing the University rightly and fairly conceded before us that the first Vice Chancellor did not prescribe the qualifications of teachers to be appointed in the University exercising the powers, duties and functions conferred bn him of the Academic Council. In other words, the first Vice Chancellor acted in such a manner as though he was having all the functions of the University untrammelled by any limitations. According to us, the said notion gathered by the first Vice Chancellor was contrary to the provisions contained in the Act True, the first Vice Chancellor of the University is the highest ranking officer of the University. Even then, Legislature did not think it proper to confer any unbridled power on such a high dignitary either, as is clear from the provisions of the Act. While enacting S. 24(5)(b) of the Act, the Legislature only wanted to empower the first Vice Chancellor to discharge the functions of the authorities of the University. When it is seen that those authorities could exercise their powers in conformity with the Statute only, the first Vice Chancellor should also have acted in conformity with the First Statute. In a situation, where the Statute has not been framed, the Vice Chancellor was not having the freedom to act according to his sweet whims and fancies. Even a high ranking officer cannot be entrusted with absolute discretion as has been cautioned by the Constitution Bench of the Supreme Court in Delhi Transport Corporation v. D.T.C Mazdoor Congress, 1991 Supp (1) SCC 600 : AIR 1991 SC 101. Their Lordships took the view that conferment of power on a high rank officer is not always an assurance, in particular when the moral standards are generally degenerated that the power would be exercised objectively, reasonably, conscientiously, fairly and justly without inbuilt protection. So, in appropriate cases, the Court will have to give life and force to the Statute by ironing out the creases that have crept in the statute. The object must necessarily be to better public interest. It is settled proposition of law that public employment is property of the nation which has to be shared equally subject, of course, to the qualifications necessary for holding the post The public employment to the University cannot be allowed to be thwarted by the exercise of unbridled power claimed to have been conferred on the Vice Chancellor in this case.

60. Learned Counsel representing the University advanced an argument that unless and until the first Vice Chancellor is conferred with the power to make appointments to the various posts in the University, the University could not have become functionable. This argument does not at all impress us. First of all, the Act did not confer such an untrammelled power on the first Vice Chancellor in the absence of the Statutes. His actions should have been subject to the provisions contained in the Statutes. When the Act specifically states that the first Vice Chancellor should exercise the powers in a particular mode provided by the Statute, he could have acted only in that manner and not in any other manner. The first Vice Chancellor should have exercised his power or authority in the manner prescribed in the Act and as contemplated by the Statutes. When it is seen that power is given to do a certain thing in a certain manner, the thing must be done in that manner and not in any other manner. The first Vice Chancellor should not have exercised his power in any other manner other than the manner provided by the Act.

61. To sum up, any appointment to the University could have been made only on the advice of an appropriate Selection Committee. That Selection Committee should have been constituted in the manner prescribed by the Statute. In absence of the Statute, no selection committee could have been constituted. Without a Selection Committee, neither the Syndicate nor the Vice Chancellor could have selected candidates to any post under the University. So, all the appointments made by the Vice Chancellor are without jurisdiction. The entire selection made by him purporting to be in exercise of the powers conferred on him by S. 24(5)(b) is only to be set aside.

62. Learned Advocate General, who appeared in the case, did not advance any argument supporting the actions of the first Vice Chancellor. According to him, the first Vice Chancellor acted in an arbitrary manner without taking into consideration public interest involved in the appointments to the University. He was against the action of the Vice Chancellor in establishing various centres at various parts of the State purporting to be for giving effect to the intention of the Legislature in passing the Act establishing the Sanskrit University.

63. Arguments were advanced by counsel representing the various candidates who got the appointment that if their selection and appointment are interfered with, the result would be that innocent candidates will be penalised for the misdeeds of others, namely of the Vice Chancellor and his supporters. This argument cannot detract us from interfering with the illegal appointments made by the first Vice Chancellor. When such a situation came up before the Supreme Court in Krishan Yadav v. State of Haryana, (1994) 4 SCC 165 : AIR 1994 SC 2166, their lordships took the view that such persons should be required to disgorge the benefit of the ill-gotten gains. The candidates who got the appointment as a result of the arbitrary exercise of power by the first Vice Chancellor cannot be heard to urge that they will be put to irreparable loss and hardships in case this Court interferes with the arbitrary acts done by the first Vice Chancellor of the University. We negative such an argument. I agree with all conclusions reached by my learned brother and hold that the appeals are only to be dismissed as indicated in the judgment.

Appeals dismissed

64. When the judgment was delivered, Shri. Kurien Joseph, Senior counsel appearing in some of the appeals, on behalf of the appellants, prayed for leave to appeal to the Supreme Court We do not find any substantial question of law as to the interpretation of the Constitution or any question of law of general importance in these appeals for us to give special leave. We were dealing with the arbitrary exercise of power by the first Vice Chancellor of the University. Consequently, the request made by the learned counsel is rejected.

65. Leave Rejected