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Judgment
P. Shanmugam, J.—Petitioner is a Professor and Head of the Department of Tamil Language in the University of Madras. He has preferred
this writ petition under Article 226 of the Constitution of India, seeking a writ of declaration to declare the proceedings of the Chancellor of the
University of Madras dated 15.2.99 as ultra vires of the Madras University Act. Briefly stated facts are as follows:
The University of Madras initially had one Department in reference to Tamil language known as the Department of Tamil. Subsequently, it was
bifurcated into two viz., (1) Department of Tamil Language and (2) Department of Tamil Literature. As there has been considerable growth in the
development of language departments in the Universities and all over the world, the Post-graduate Board of Studies in Tamil, in their meeting held
on 21.10.97, recommended the institution of a Department of Contemporary Tamil Literature with effect from the academic year 1998-99. The
Syndicate of the University approved the recommendation on 5.2.98. The Academic Council, in their meeting held on 28.2.98, also approved the
proposal. Ultimately, the matter was placed before the Senate of the University, which is the Supreme Body. The Senate, in their meeting held on
28.3.98, approved the recommendation of the Board of Studies and Academic Council. Accordingly, a resolution for the formation of Department
of Contemporary Tamil Literature was passed and the Senate unanimously passed a resolution amending the Statute 2 of Chapter VIII of Volume
I of the University to create the Department of Contemporary Tamil Literature. In pursuance of these resolutions, the Syndicate, in their meeting
held on 28.4.98, authorised the Vice Chancellor to take steps for the appointment of Head of the Department and accordingly, the Vice
Chancellor appointed Dr. Maa. Selvarasan, already Professor in the Department of Tamil Language as Head of the new Department. The
appointment of the Vice Chancellor was approved by the Syndicate in its meeting held on 26.5.98. The University sought for the assent of the
Chancellor of the University for the amendment to the Statute in their letter dated 10.8.98. The Chancellor, by order dated 15.12.98, withheld the
assent for the proposal sent by the University. The writ petition is filed at this stage for the relief referred to above.
The petitioner has also stated that though the copy of the impugned proceedings was shown and read out to him, in an earlier proceedings, no
copy of it was furnished to him in spite of his request, and hence he had no other alternative but to seek the relief as prayed.
The arguments advanced by the petitioner in support of his writ petition can be summarised as follows:
(1) The proposal to have a new Department in Tamil language called Department of Contemporary Tamil Literature was approved by all the
authorities of the University as set out u/s 13 of the Madras University Act, 1923, namely: i) The Board of Studies; ii) The Academic Council; iii)
The Syndicate and iv) The Senate.
(2) The need or the necessity of having a new department in reference to a particular subject is a matter that had been deliberated and decided by
the authorities of the University. The merits and the correctness of the said decision cannot be a subject matter before the Chancellor.
(3) The Chancellor cannot sit in judgment over the decision of the authorities of the University which would, in effect, amount to vetoing or
superseding the decisions of the authorities of the University.
(4) The reasons contained in the impugned proceedings of the Chancellor are not relevant and are outside the jurisdiction.
(5) On merits, it is submitted that there are eight departments dealing in Tamil Language and Literature in the Madurai Kamaraj University and the
formation of a new department for Modern or Contemporary Tamil Language is in tune with the development all over the world. All other subjects
like Chemistry, Physics or for that matter Language, are growing and requiring specialisation and that is a matter decided by the authorities, and
their views cannot be substituted.
Learned Senior Counsel Mr. S. Masilamani, appearing on behalf of the third respondent, the University of Madras submitted that the Chancellor
has power to refuse or to withhold the assent for an amendment to the Statute. The said power cannot be restricted or limited. The Chancellor has
jurisdiction to either assent or withhold the assent for the amendment. According to him, the Chancellor is part of the authorities of the University
and therefore, she is competent to consider the merits of the decision. It is further stated that the Chancellor has taken into account the interests of
academic discipline, public interest and the interests of the University of Madras. The Chancellor''s power to withhold the assent is preserved and
any interference with that power would make the provision nugatory.
Learned counsel Mr. Mohan Parasaran appearing on behalf of the Chancellor of the University of Madras made the following submissions:
(1) The petitioner has no enforceable right.
(2) The relief sought for will amount to disregard to the power granted u/s 30(3) of the Act.
(3) As against the decision of the Chancellor withholding the assent, judicial review is limited. Unless the decision is unreasonable or arbitrary and
even if there are two possible views on the subject, the view taken by the Chancellor cannot be questioned.
(4) The Chancellor has taken all the relevant facts including the violation of the statutory provisions and finance before taking the impugned
decision.
(5) The court cannot interfere with such a decision and cannot compel the Chancellor to grant assent.
Learned counsel appearing on behalf of the petitioner, in reply, submitted that various new departments were made functional even before the
Senate had approved the same and much before the assent of the Chancellor, and therefore, there is nothing illegal or unusual done in this case.
According to him, the University bona fide acted and made the new department functional in anticipation of the assent of the Chancellor. The
Chancellor is the President of the Senate and as a Member of the Senate, she is bound by the decision taken by the authorities of the University. It
is further submitted that the University had indicated the reasons for assent from retrospective date and it is always open to the Chancellor to give
the assent retrospectively or prospectively. According to him, the Chancellor had granted assent to new Departments of Bio-technology on
5.12.97, although the new department had been made functional in July 1997 and there are several such instances. The question relating to
additional finance was taken into account and considering the budget allocation for the University, the expenditure involved is minimal. He has also
furnished an annexure containing particulars of the institution of department that were made functional before the grant of the Chancellor''s assent.
I have heard the counsel in extenso and given my anxious consideration.
Section 30 of the Madras University Act provides for the making of Statutes. Subsection (3) of Section 30 empowers the Chancellor to:
(a) refer the Statute or draft, back to the Senate for further consideration, if a Draft Statute recommended by the Syndicate has been rejected;
(b) Assent the Statute passed by the Senate; and to
(c) Withhold the assent. A Statute passed by the Senate shall have no validity until it has been assented to by the Chancellor.
The Chancellor thus has got the power of sending back a Statute or a Draft for reconsideration or give assent or withhold the assent. This is the
statutory power for making a Statute valid. Any statutory power exercised by a statutory authority is liable for judicial scrutiny. The said
proposition is not disputed.
The proposal to have a new Department in Contemporary Tamil Literature has been unanimously initiated and approved by all the authorities
set out u/s 13 of the Act. The Post-graduate Board of Studies, the Academic Council, the Syndicate and the Senate have recommended and
approved the above proposal. The composition of Board of Studies u/s 25-A, the Academic Council u/s 23, the Syndicate u/s 18, and the Senate
u/s 14 are Professors, Heads of Departments, Directors of various branches of education and so on. Therefore, the decision unanimously taken by
all these authorities as set out u/s 13 has to be taken as final insofar as the merits of the matter is concerned. In other words, as against the decision
of these authorities, there is no provision for revision or an appeal. In other words, the decision is technical and professional in nature. The
Constitutional Assembly debates and comments under Article 111 relating to the power of the President to assent the Bill, Part V sets out the
relevant provisions in Constitutions from other nations. Insofar as India is concerned, at page 679, it states that a bill will not be an Act of Indian
Parliament unless and until it receives the assent of the President. The President shall be entitled to take any of the following three steps:
1) He may declare his assent to the bill, or
2) He may declare that he withholds his assent to the bill, or
3) He may, when it comes to other than money bill, return the bill for reconsideration of the Houses with or without the message suggesting
amendments. In case the bill is passed by both the Houses of Parliament with or without amendment and presented to the President, it would be
obligatory on his part to declare his assent. The veto power of the President of India is a combination of absolute, suspensive and pocket veto.
Absolute in case where the President withholds his assent from it. Though such refusal has become obsolete in England since the growth of the
Cabinet system, under which it is the Cabinet itself which is to initiate the legislation as well as to advise a veto.
It is stated in the commentary at page 680 as follows:
The veto power is necessary to prevent the enactment of bills which appear to be ultra vires or unconstitutional at the time when the bill is ready for
the President''s assent.
(Emphasis added)
Thus, even the Constitutional power which enables the President to withhold the assent is exercised only to prevent the enactment of
unconstitutional bills or which are ultra vires of the Constitution. Drawing the analogy of this Constitutional power, the power provided u/s 30(3) to
the Chancellor can be exercised if the Statute is ultra vires of the Act. Thus, there appears to be no scope to go into the merits of the decision
taken by the authorities of the University.
Sibranjan Chatterjee, in his book ""Governor''s Role in the Indian Constitution"" has given a chapter on the Governor as Chancellor. It is stated
at page 226 as follows:
A Statute or an Ordinance does not come into force unless it is approved by the Chancellor. In 1982, the Chancellor refused to give his assent to
the Statute and returned to Calcutta University because he was of the view that the statute had not been passed in compliance with the relevant
section of the Calcutta University Act, 1979.
In Principal, Patna College, Patna and Others Vs. Kalyan Srinivas Raman, a Constitutional Bench of the Supreme Court while dealing with of
the decision of the educational authorities, held that matters falling within the jurisdiction of the educational authorities would normally be left to their
decision. Their Lordships observed as follows:
Even on the merits, we ought to point out that where the question involved is one of interpreting a regulation framed by the Academic Council of an
University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the regulation in question is capable of two
constructions, and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the
construction placed by the said authority on the relevant regulation appears to the High Court less reasonable than the alternative construction
which it is pleased to accept.
Thus, even the Constitutional power under Article 226 is restricted so as not to interfere with the academic decisions.
In Dr. M.C. Gupta and Others Vs. Dr. Arun Kumar Gupta and Others, ], the Supreme Court held that the court, while enforcing the rule of
law would give weight to the opinion expressed by the experts and also show due regard to the recommendations on which the State Government
acted. If the recommendations made by the Body of experts keeping in view the relevant rules and regulations manifests due consideration of all
the relevant factors, the Court should be very slow to interfere with such recommendations. By referring to this passage, a Division Bench of this
court, in S. Nagaraj v. Barathidasan University and another ( 1987 W.L.R. 620), held as follows:
These observations, in our view, highlight the inadvisability of courts disregarding the views of experts in the academic field when a decision of a
Body like the Syndicate of a University is challenged.
In Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, ,
their Lordships of the Supreme Court held as follows:
As has been repeatedly pointed out by this court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent
and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich
experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to
make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass-root problems involved in
the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were
to be propounded. It is equally important that the court should also, as far as possible, avoid any decision or interpretation of a statutory provision,
rule or bye-law which would bring about the result of rendering the system unworkable in practice.
A reference was made by the counsel for the Union of India and another Vs. G. Ganayutham (Dead) by LRs., wherein the Supreme Court has
laid down the test for judging reasonableness of an administrative decision. The decision of the administrator must have been within the four
corners of the law and not one which no sensible person could have reasonably arrived at. The decision could be one of many choices open to the
authority and it was for that authority to decide upon the choice and not for the court to substitute its views. It is further argued that wrong
precedents cannot make the law, and in that context, reference is made to M/s. Faridabad Ct. Scan center Vs. D.G. Health Services and others,
The decision in G. Ganayutham''s Case relates to the applicability of proportionality in administrative law in India. While summing up the Law, their
lordships observed as follows:
The current position of proportionality in administrative law in England and India can be summarised as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision
was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the
framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant
matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or
perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to
him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury Test [Associated Provincial Picture Houses
Ltd. v. Wednesbury Corpn. { 1948 (1) KB 223: (1947) 2 ALL ER 680}].
(2) The court would not interfere with the administrator''s decision unless it was illegal or suffered from procedural improprieties or was irrational -
in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into
English administrative law in future is not ruled out. These are the CCSU principles (Council of Civil Service Unions v. Minister for Civil Service
{1985 AC 374: (1984) 3 ALL ER 935}]....
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of
proportionality"" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental
freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19,21 etc. are involved
and not for Article 14.
Article 14 strikes at arbitrariness in any form vide E.P. Royappa Vs. State of Tamil Nadu and Another, and Mrs. Maneka Gandhi Vs. Union of
India (UOI) and Another, ).
In Babubhai and Co. and Others Vs. State of Gujarat and Others, , the Supreme Court has laid down the factors that are to be considered in
determining the arbitrariness and unreasonableness. Their Lordships observed as follows:
Regard will have to be had to several factors, such as, on whom the power is conferred- whether on a high official or a petty officer, what is the
nature of the power whether the exercise thereof depends upon the subjective satisfaction of the authority or body on whom it is conferred or is it
to be exercised objectively by reference to some existing facts or tests, whether or not it is a quasi-judicial power requiring that authority or body
to observe principles of natural justice and make speaking order etc.; the last mentioned factor particularly ensures application of mind on the part
of the authority or body only to pertinent or germane material on the record excluding the extraneous and irrelevant and also subjects the order of
the authority or body to a judicial review under the writ jurisdiction of the court on grounds of perversity, extraneous influence, mala fides and other
blatant infirmities. Moreover all these factors will have to be considered in the light of the scheme of the enactment and the purpose intended to be
achieved by the concerned provision.
(Emphasis added)
The judicial review on the power exercised is not doubted. The argument on either side is as to the extent of the power of the Chancellor in
withholding the assent.
The Chancellor is one of the officers of the University as per Section 8 in contra distinction with the authorities of the University u/s 13. The
powers of the Chancellor are conferred under the provisions of the Act according to Section 9(2). The authorities of the University arc competent
to make the statutes. Section 16 empowers the Senate to make statutes and amend or repeal the same. u/s 22, the Academic Council shall be the
academic authority of the University and they have got power to advise the Syndicate in all academic matters as per Section 24. The Chancellor as
an ex-officio member of the Senate and its President, becomes party to the decision of the Senate. Thus, by a combined reading of these
provisions, it appears to me that the power of withholding assent cannot be used as a power of revision or an appeal over the decisions of the
authorities of the University. Such a power in my view, would be inconsistent with the scheme of the University Act.
On merits, it is submitted that there are several instances where new departments were created and the resolutions were given effect to before
the Chancellor''s assent. 15 such instances (vide Annexure-A) have been cited in support of assent given retrospectively. Therefore, there is
nothing unusual as far as the University is concerned in seeking an assent retrospectively. It is also seen that the requirement of a new department
for a particular branch of study is a matter for the academicians or the authorities of the University to decide. Their views cannot be substituted in
the circumstances of the case. It is cited that Madurai Kamaraj University has got eight departments for Tamil Literature alone and therefore, the
wisdom of the authorities of the University to have a separate Department of Contemporary Tamil Literature cannot be doubted in the light of
similar departments in other Universities. In any event, if really there is any need for a fresh look on merits of the need for such a department,
Section 30 (3) provides for referring the statute back for further consideration. Before putting an end to the proposal of the authorities of the
University and making the department unworkable, the authorities of the University could have been given a further chance to reconsider the
matter.
I am also of the view that the University could have placed the complete materials as to the practice followed in seeking assent retrospectively
in reference to the various departments, and that they have not made any exception in reference to the Tamil Department alone. The University
should have apprised as to the financial implication in reference to the starting of the new department and also the need to have a new
Contemporary Tamil Literature Department. There appears to be some inconsistencies in the stand taken by the Registrar incharge of the
University and the decision taken by the authorities of the University. In the above circumstances, 1 am of the view that complete materials were
not placed before the Chancellor for appreciation and consideration of the issue by the University. For all the reasons stated above, the impugned
proceedings are set aside only for the purpose of remanding the matter back to the Chancellor of the University of Madras to reconsider and pass
fresh orders in the matter. The writ petition is allowed to that extent. Consequent to the order in the main writ petition, W.M.P.No.4390/99 is
closed, as no further order is required in the same.
Sl. Name of the Date of Date of Date of the
No. Department Date of Date of Senate''s Appointment Chancellor''s
Syndicate''s Academic Resolution of Head of Faculty Assent
Resolution Council
Resolution
I. TAMIL.
Tamil Language 20.6.1980 27.11.1980 1.7.1980 3.3.1981
Tamil Literature 20.6.1980 - 27.11.1980 1.7.1980 3.3.1981
II ECONOMICS
Economics 20.6.1980 - 27.11.1980 1.7.1980 3.3.1981
Econometrics 20.6.1980 - 27.11.1980 1.7.1980 3.3.1981
Inorganic 5.11.1980 - 27.11.1980 3.3.1981
Chemistry
(Syndicate
in
Circulation)
Polymer 19.3.1983 15.9.1983 17.9.1983 April 1983
Science
Energy 23.4.1983 15.9.1983 17.9.1983 11.8.1983 23.4.1986
Institute of January October 1980 November 1.4.1981 8.2.1986
Correspondence 1980 1980 (Dr. P.M.
Education Annamalai
appointed as
Director) 1984
(Dr. M.
Shanmugam
appointed as
Director)
20.6.1984
(Faculty members
appointed)
Centre for Anna 21.3.1987 15.4.1986 2.6.1987
Studies (Dr. R. Thandavan
appointed as Head
Computer 28.4.1987 22.2.1989 25.3.1989 5.5.1987 8.6.1989
Science
Bio-Technology 7.2.1997 29.3.1997 M.Sc, Course 5.12.1997
started in July
1997
Bio-Chemistry & 28.3.1998 M. Sc, Course 23.11.1998
started in July
1994
Dept. of __ Sept. 1992 Oct.1992 1.10.1985 16.4.1993
Christian
Dept. of Saiva - Mar. 1983 1983 1986
Siddhanta
Dapt. of Mar. 1983 1983 1986
Vaishnavism