“The governor’s post is not to move against the government but to uphold the constitution's dignity. He's acting as a tool of the RSS,” Kerala Chief Minister Pinarayi Vijayan alleged on Monday, 24 October.
He was commenting on the latest confrontation in a series of spats between the state government and the governor, especially over the appointment of vice-chancellors (VC) to Kerala varsities.
The ongoing tussle between Kerala Governor Arif Mohammed Khan, and the Pinarayi Vijayan-led state government took a dramatic turn on 23 October, with the former directing the vice chancellors of nine universities in Kerala to tender their resignation, citing a Supreme Court judgment pronounced on 21 October.
"The governor or the chancellor doesn't have the right to remove vice-chancellors. There is no such option in the University Act," the chief minister added.
The governor, on the other hand, has held his ground and said that all he is trying to do is follow the Supreme Court’s verdict.
According to the top court order, the selection process of the VC in the case of APJ Abdul Kalam Technological University (KTU) Thiruvananthapuram, was in conflict with the University Grants Commission (UGC) norms and thus, void ab initio (have no legal effect since inception).
"The process was not against the individual but against the selection process. The VCs, as a matter of fact, have been working quite efficiently. Hence, by asking them to tender their resignation, I was only suggesting an honourable way out for them so that the selection process can be held afresh," he said.
In the aftermath of the statements made by CM Vijayan and the governor, a lot has followed – show cause notices, the High Court’s observations and a scathing war of words. The legality of what the governor has done, however, continues to remain a point of contention.
The Quint spoke to experts to understand the ambit of the governor’s powers in this situation and possible ways to avoid such conflicts.
A BREAKDOWN OF EVENTS
On 23 October (Sunday): Governor Arif Mohammed Khan, who is the chancellor of state varsities, issues an order citing a 21 October Supreme Court order [Professor (Dr.) Sreejith P.S. Vs Dr. Rajasree M.S. & Ors] seeking the resignation of nine VCs
On the same day: the vice chancellors refuse to resign
Following this, on 24 October Monday) the Vice Chancellor then, issues show cause notices to the chancellors to explain why their appointments should not be considered illegal and gives them till 5 pm on 3 November to submit their arguments
On 24 October, the aggrieved vice chancellors approach the Kerala high court challenging the letter demanding their resignation
The Kerala High court agrees to hear the case at 4 pm on 24 October in a special sitting
Later in the day, the Kerala High Court holds that the VCs of nine state universities can continue in their positions, until the governor, issues a final order based on the VC’s responses to the show cause notices issued to them
The Supreme Court Order: How It All Started
The governor’s call for VCs’ resignations came after the Supreme Court on 21 October held that the appointment of a university vice-chancellor would be considered illegal if the search went against the UGC 2013 regulations, and recommended only one name instead of three-five candidates.
"Any appointment as a V-C made on the recommendation of the search committee, which is constituted contrary to the provisions of the UGC regulations, shall be void ab initio," the top court said.
The VCs to state universities are appointed by the governor, who usually selects the candidate from among the names listed by the state government.
According to the UGC’s rules, the procedure for selection of a V-C should be through “proper identification of a panel of 3-5 names by a search committee through a public notification or a nomination or talent search process or in combination.”
The Supreme Court’s order stems from a petition which claims that according to an RTI application there were irregularities in the selection process at the Kerala government-run APJ Abdul Kalam Technological University.
So, Is What the Governor Did Illegal?
Although the jury is out on the powers of the governor to remove the VCs from their posts after they have responded to the show cause notices, experts have questioned the haste in issuing the first notice demanding their resignation.
“The first move demanding their resignations is in fact illegal because resignations have to be voluntarily tendered. It can't be forced. What he did was not permissible. Their services can be terminated but they can’t be forced to resign,” Paras Nath Singh, Advocate at the Supreme Court told The Quint.
In fact, the Kerala High Court too, over the course of the hearing, noted this:
"It does not require much judgment to say no one can be asked to tender resignation. And what was the hurry in issuing the letter? That is also troubling", Justice Ramachandran asked the Governor's lawyer, according to LiveLaw.
Further, Advocate at the Kerala High Court Anil Sebastian Pulickel, explaining the implications of the High Court’s oral observations during the 24 October special sitting, pointed out further loopholes with the governors first letter:
The governor had given very short notice when asking them to resign, so much so that they barely had any time to make their case before the governor.
(The governor had around 5:30 pm on 23 October tweeted that the letters demanding their resignation had been sent and they would have to step down by 11:30 am the next day, leaving them with less than a day to resign.)
2. There cannot be a legal compulsion to resign, it may be possible for somebody to terminate a person from a position but one cannot direct a person to step down from that position
3. Despite the governor emphasising he has been following the Supreme court verdict throughout, the first letter in fact, goes against the Supreme Court's observation that the the selection process of the VC was void ab initio (having no legal effect from inception).
This is because, instead of saying that the appointments are illegal from the very beginning, the governor has said that the appointments are illegal only from 21 October
However, these three loopholes, although glaring, are no longer relevant because the governor had followed due process later and issued show cause notices, the Kerala High Court had observed in its hearing.
“The entire issue is now about whether the chancellor has the power to decide if these appointments are illegal and terminate the vice chancellors from their positions,” Kerala High Court Advocate Anil Sebastian Pulickel said.
And Can the Governor Remove the VCs?
In order to decide if the governor indeed has the power to do this, the courts will have to decide if the Supreme Court’s verdict will supersede the nine separate university acts, which prescribe varying provisions for the removal of the vice-chancellors, Pulickel told The Quint.
Important to note here, is that each of these nine universities in question, have their separate establishment acts elaborating on the dos and don'ts. These are state legislations and each of them have a separate procedure for the removal of the VCs.
For instance, during the Kerala High court hearing challenging the governor's letter demanding the vice chancellors' resignation, the petitioner (vice chancellor of that university) said that the act applicable to them prescribed only two grounds for removal: misbehaviour or misappropriation of funds, LiveLaw reported.
The petitioner in that case further contended that since neither of these were applicable to them, there are no grounds for removal.
“This is exactly what the courts need to decide, should the governor choose to remove the VCs from their posts. They need to decide if the Supreme Court judgement applies to these cases because if it is found that it does apply, then it may be difficult for each of them to contend it on technical grounds,” Kerala High Court Advocate Anil Sebastian Pulickel said.
Meanwhile, according to Supreme Court Advocate Paras Nath Singh, one way for the court to resolve this may be to take guidance from the The General Clauses Act, 1897.
Section 16 the act, says:
“The authority having [for the time being] the power to make the appointment shall also have power to suspend or dismiss any person appointed.”
“This question will, however, depend on the show cause notice proceedings. Should the state government and the vice chancellors decide to challenge the governor’s decision, the courts will take a final call on this,” Singh added.
Is There a Way to Avoid Such Conflicts in the Future?
It is worth mentioning here that this is just one out of multiple confrontations between the state government and the governor in Kerala regarding educational institutes in the state.
The barrage of controversies began in December 2021, when the governor, who has had several disagreements with the state government in the past, found fault with the reappointment of Gopinath Ravindran as the VC of Kannur University.
He alleged that Ravindran was given the post only because of his "political connections" and recalled a 2019 protest against the governor at Kannur University to further attack the VC.
The governor has since opposed various moves by the state government, especially with regard to the appointment of VCs in state varsities. He has also staunchly opposed the University Laws Amendment Bill, which was passed by the state assembly in September this year, stating that it would ensure the appointment of "unqualified relatives" of the CM and other ministers.
The bill aims at changing the composition of the search-cum-selection committee to appoint VCs, thereby providing the state government greater leverage in the process.
In order to avoid such conflicts, two ways come to mind, Kerala High Court Advocate Anil Sebastian Pulickel told The Quint:
Through preventive legislation
The courts would have to pre-empt possible flare-up points and consider methods to bring in clarity to ensure fewer points of disagreements between authorities responsible for administering the same institution
Through subsequent clarification
The courts will have to take up the disagreements as and when they arise and issue guidelines that can also help with clarity in the future, which is exactly what the High Court did in this case.
“The second option is definitely more viable because there is no way to predict all possible disagreements that could happen. In this case, there isn’t much that the courts of law can do in a preventive way."Kerala High Court Advocate Anil Sebastian Pulickel
However, according to Supreme Court Advocate Paras Nath Singh, although not much can be foreseen, certain legislative vacuums could be filled if there is a specific overarching law that spells out the manner in which the governor is to act against Vice Chancellors.
“Should a chancellor act only on the recommendation of the state government? These questions need to be answered. Ironically, no bill can become a law without approval of the Governor,” he said.