LETTER WRITTEN TO ADVOCATE GENERAL ATMARAM NADKARNI BY PROF PETER RONALD DE SOUZA

Dated: 24th October 2015

Honourable Advocate General Atmaram Nadkarni,

I write to seek your clarification on the issues of law that have a bearing on the continuation in office of the Vice Chancellor of Goa University, Dr Satish Shetye, after 25 October 2015. I do this because the authority of your august office has been invoked to legitimize the decision to amend the statutes regarding superannuation and to give the proposed amendment the authority of the law. There are fundamental issues involved here, both jurisprudential and procedural, concerning the rule of law in a Constitutional democracy, which your august office is tasked with both upholding and promoting.

I write this because I see the Advocate General as primarily carrying two moral obligations:

To advise the government about the principles and the letter of law when it takes any policy decisions. This advice ensures that the decisions are consistent with the law as it stands and with the norms of the constitutional order.

To educate the citizens of Goa on the value of the rule of law and of the importance of all persons, irrespective of office, to be rule abiding which is a core feature of any democracy.

These obligations, which you have willingly undertaken when you took the oath of office, gives your office an autonomy from the government although you have been appointed by it. This is a very privileged position and carries a very heavy responsibility. In short, even though you are of the government you are for the Constitution of India and would reprimand the government when it strays from the constitutional path.

Now let me turn to the processes and procedures followed by the Goa University authorities to enable Dr Shetye to continue in office after he reaches/reached the age of 65 years. I will limit myself to issues that pertain to your office and I will stay within the narrow confines of the law and not get into the politics of the matter.

In March the Goa University EC decided to request the Chancellor to extend the term of the VC beyond the contracted period which requires him to retire after he reaches the age of superannuation, i.e., 65 years.

A draft letter making a request for extension, which was to be sent to the Chancellor, was circulated in advance to members. This letter was objected to by me in my letter dated and sent to all the members on 11 March 2015, I stated my objections since I believed it was bad in law and harmful to the institution. Goa University as an institution must be committed to a principle of routine and rule bound succession, a valuable principle which, I believed, was being undermined. As a result of this objection the initiative was withdrawn and a letter was instead sent to the Government of Goa seeking clarification on whether the VC Dr Shetye can be given an extension.

For several months no reply was received from Government and the routine Executive Council meeting of 30 September 2015 was informed that the University was still awaiting a reply from government. The EC was also informed that the present Registrar who had reached the age of superannuation could continue in office as per the rules. Is this a correct reading of the law?

On 10th October a Special Meeting of the EC was called for the 15th to endorse a change in the statute enabling the VC get a full 5 year term beyond the age of superannuation. The proposed amendment to the Statutes of Goa University recommended (i) the appointment of a VC irrespective of age at entry, (ii) the appointee be given a full term of 5 years, and (iii) the retirement age being extended to 70 years from the present 65 years. The EC was informed, in a letter from the Director of Higher Education, that the matter had been examined by the government and studied by your learned self. In short you had approved the process that was now to follow. In your learned eyes the process that was being adopted was consistent with the law.

The Director of Education in his letter DHE/Accts/Forum Non govt/3-28/2015-16/2818 dt 9/10/2015 on the issue of age enhancement has stated: ‘..issue raised by the Vice Chancellor of Goa University was examined by the Government. Further, Legal opinion from Ld Advocate General was also obtained. After careful examination of both proposals it has been decided by the government to request the University to amend the Statute SA-6 immediately providing that the Vice Chancellor shall hold office for a term of five years from the date of which he enters office irrespective of his/her age’.

This was repeated in the papers presented to the EC on 15th October 2015.

Your scrutiny and approval was assuring for us. As a citizen of Goa we wanted the guarantee that your High Constitutional Office had examined the matter and advised both the Government and Goa University that the actions to amend the Statutes were aligned with the principles of law. Since your first obligation was to alert the government on staying within the law, which you have ostensibly done in the endorsement you have given, your second obligation, to educate the citizen, now comes into play.

Please help us understand how this amendment is consistent with law.

a) The Goa University Act, which is the founding document of Goa University and from which the subsidiary bodies of the University such as the Chancellor, Executive Council, Vice Chancellor, etc draw their authority, expressly prohibits any changes to the rules of superannuation. I quote: Article 15B Bar On University and its authorities: The Goa University or for that matter any authority under the Goa University Act 1984 (Act 7 of 1984) shall not have any powers to make any statute dealing with the age of retirement or extension in service of any teaching staff or any other employee of aided or non-aided colleges affiliated to the said university if any such powers stand conferred on any authority under provisions of the said Act, 1984, they shall, to that extent, stand repealed. Any statute so made or existing shall, to the extent that it contravenes any of the provisions of the Goa University (Amendment) Act 2006, be deemed to be void and of no effect. The Goa University (Amendment) Act 2006, Goa Act 11 of 2006, pg 61.

b) To an observer unschooled in the nuances of the law, the proposed amendment of the statutes by a subsidiary body, the EC, and endorsed by the government and by you, appears to be patently illegal.

c) The EC is prohibited by 15B of the Goa University Act from making such amendments to the Goa University Statutes that change the rules regarding retirement. The EC was hence breaking the law it appears on your advice.

d) Since an Advocate General would never endorse a violation of the law you obviously have read 15B differently and have advised the Government and the University that this is permissible.

Since your reading of the law is, I am sure, more schooled on matters of jurisprudence than mine, where you think it is possible for a subsidiary body to disregard the authority of a higher body, it would help our education if you made available to the public, that is debating this issue, your interpretation of the law which made the amendment possible and consistent with 15B.

At the Special Meeting called on 15th October to amend that statute, I placed on record my objection to the proposed amendment on grounds of violation of the Goa University Act, and on further grounds that it would place in jeopardy the very structure of government which has (a) impersonal rules for succession, (b) specifies clearly the age of superannuation, (c) violates the Contract of appointment in the extant case between the Chancellor and the Vice Chancellor. My objections were overruled by the other members of the EC which included the Ex-Officio members of the EC, the Education Secretary and the Finance Secretary, who are trained in LBSNAA in such matters of the Constitution and law. They too were willing to commit the GOG to what appears to be a violation of the law 15B and to the financial implications thereof. Perhaps they have an innovative reading that would also have to be explored by our public debate.

From reports in the press this amendment was not agreed to by the Honourable Chancellor, the Governor of Goa, who appeared to endorse the alternative interpretation that the decision is illegal and in violation of 15B.

The situation now gets curiouser.

To align the amendment to the statutes with the Goa University Act, from which all authority concerning Goa University flows, in response to the Chancellor’s concerns [we are after all a constitutional democracy] the Government of Goa has passed, through circulation, an ordinance to amend the Act. Here again we seek your guidance on matters of law. The public needs to be educated by you in this matter.

Let me list the questions on which we seek your thinking:

a) Is an ordinance passed by Cabinet, through circulation, (by all accounts an emergency measure to be used rarely and only in situations of crisis) the appropriate instrument to be used by the GOG in the case of the extension to be given to the incumbent VC? The Government of Goa must have consulted you, as the first law Officer, on this strategy and you would I am sure have advised them on the whether this is both consistent with constitutional principles and with the spirit of the rule of law. They followed your advice and passed an ordinance, through circulation, amending the Goa University Act.

b) Is it proper to pass an Emergency Ordinance to benefit one individual? Nehru, the architect of the modern state had, in his fortnightly letters to Chief Ministers, written the following about ordinances. In a letter written on 16 August 1948, one year after Independence, he commented on the tendency of the states, particularly of the Madras government, to restrict through ordinance or legislation the jurisdiction of the high courts to entertain the writ of habeas corpus. ‘Recently there has been much criticism of certain legislative measures in a province which tend to deprive High Courts of their normal powers. Sometimes, ordinances are issued, and at other times the provincial assembly deals with the matter. I have written to you on several occasions about the growing tendency to restrict individual and group freedom. In a crisis, much can be said in justification of this, and we live in days of crisis. Nevertheless, it is a dangerous path to tread and governments get used to very special measures which they cannot do without later… This is a particularly distasteful course’.

c) Such an emergency measure, which is to be rarely resorted to, should only be used when the important interests of the whole society are concerned and not for individual matters. Am I correct in this assumption? Is the continuation of one VC, after the age of 65 years, of such importance that rules of succession be overlooked and rules of superannuation be amended? It seems that your advice and the government’s thinking places this issue on that scale of importance above matters of welfare for the public, above issues of urban governance, above ecological concerns, above school reform, for which such emergency ordinances, through circulation, were not resorted to.

d) Since the amendment comes into force the day the Governor approves it i.e., all prospective actions of amending the superannuation rules of Goa University by the EC are now consistent with the Act, can a decision of the EC passed on the 15th, i.e., before the ordinance amending the Goa University Act was passed by the Government, gain legality by an amendment to the Goa University Act passed after it was made? Should a Special session of the EC not have to be called to pass the amendment to the statues anew? Surely the old resolution of the EC cannot gain legality by an Ordinance made after it was passed.

e) In other words is it right to say that the ordinance can only be read prospectively and not retrospectively.

f) Would reasonable time have to be given for the Special Session of the EC to be convened to consider anew the amendment?

g) If this process is to be followed, i.e., a special session of the EC called, amendment to the statutes seeking approval by the Chancellor, orders amending the original appointment etc., the date would be beyond the date at which the present incumbent has passed the age of superannuation. Would the continuation of Dr Shetye in Office in office then be illegal?

h) Would his continuation then not be considered as a new appointment?

i) If it is a new appointment then the procedures for new appointments would have to be followed i.e., a search committee be constituted, three names sent to the Chancellor, etc. Do you recommend that this procedure be bypassed?

j) Further can the Registrar continue in office, as is the case, after he has reached the age of superannuation?
From the many questions I have listed you can see that there are many questions of law involved. If we are to strengthen our polity’s observance of the rule of law then we have to be educated by your learned self on each of these issues.

To an unschooled observer it seems to me that those in authority have developed an attitude that is unconstrained by the law. This is illustrated by the extant case. There are other cases where such disregard is evident, and worse, where collusion to undermine the law by those in authority is prevalent. It seems that our legal system is being severely undermined by those in power creating a public culture of disregard for the rule of law. The high principles debated in the Constituent Assembly are being willfully disregarded. Collusion in such matters produces a predatory state.

This is so reminiscent of the small matter when Indira Gandhi, them PM, violated the Election law. It was ignored and it then took the Allahabad High Court to declare the actions of the Prime Minister illegal and as a result the nation had to suffer the travails of the Emergency.

This is a dark period of history. I fervently hope we are not heading for the Courts on this matter. Small matters have a way of snowballing into major issues of the state’s illegal behavior when they are overlooked. We need to consciously resist seeing them as minor matter of the law which can be disregarded. We need to work hard to create a culture of rule observance. We look to the Advocate general as the first bulwark against such illegality and against those forces that make the state predatory. Together with the Governor and the Courts the Advocate general carries the moral authority of the rule of law. We look to you for legal guidance. You will save the government and Union Ministers much embarrassment.

On matters of constitutional principle and legal procedure please clarify on what have you advised the government to do in the current case. Since the matters are now in the public domain, and the public are discussing these issues in the newspapers and on social media, please give your answers to the questions listed to fulfill your obligation to educate the public of Goa as its Advocate General. There is no secrecy involved.

With best wishes,

 

Peter Ronald de Souza
Member, Executive Council of Goa University.
Dr S.Radhakrishnan Chair of Rajya Sabha (2015-17).
Member of the UPSC Expert Committee to Review the Civil Services Examination.
Member of the Mid Career Training Programme Committee of LBSNAA, Mussorie.
Ex-Director, Indian Institute of Advanced Study, Shimla.
Member of Senior Expert Committee of UNESCO to prepare a Report titled Rethinking Education: Towards a Global Common Good.
Member, Board of Management, National University of Educational Planning and Administration (NUEPA).

PETER

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