HC refuses to grant 5 yr term to VC KU

Fayaz Bukhari
SRINAGAR, Feb 16: The High Court today rejected the plea of Vice Chancellor Kashmir University, Khurshid Ahmad Andrabi, to extend the amendment in rules to him whereby the tenure of VC has been extended from three years to five years.
Justice D S Thakur, in an elaborated judgment, today dismissed the writ petition of Khurshid Ahmad Andrabi seeking direction that authorities be restrained and prohibited to give effect to the order of September last year passed by the Governor of the State who happens to be the Chancellor of the varsity.
Andrabi was appointed as the Vice-Chancellor of the University by virtue of order October 17, 2014 for a period of three years.
However, by virtue of the Jammu and Kashmir Universities (Amendment Act), 2015 , which came to be notified on January 1, 2015 and certain amendment has been incorporated to the extent that the tenure of VC would be for five years instead of three years.
The amendment was incorporated at a time when Andrabi was still serving as the Vice-Chancellor of  University and his tenure had not yet expired, which was otherwise to expire on 17th of October, 2017 as such he prayed that he be permitted to continue as Vice Chancellor for a period of five years.
The Chancellor of the University by virtue of order dated 8th of September, 2017 which was challenged by the VC in which a search committee was constituted for the post of Vice Chancellor for the University of Kashmir in anticipation of the expiry of the three years tenure of the VC on 17.10.2017.
In opposition to the claim of the Andrabi, the authorities  took a stand that the petitioner was not legally justified in claiming to serve for a tenure more than what was earlier fixed in his order of appointment.
Authorities in order to resist the claim of the petitioner stated that the amendment which had the effect of increasing the tenure of the Vice-Chancellor from three years to five years was prospective in its operation and thus did not have the effect of creating new rights in favour of the petitioner.
“It is clear that the nature of the petitioner’s appointment was on tenure basis for a period of three years which had to expire on 17.10.2017”, reads the judgment.
Court after testing the ratio of various judgments of the same issue on the touchstone of the facts of the present case, said, it can be seen that the tenure to which the petitioner could have legitimately claimed a vested right was the tenure for a period of three years fixed in accordance with the letter of his appointment.
Court added that the petitioner cannot at all claim that by virtue of the amendment Act of 2015, any of his vested rights in the tenure already fixed are sought to be taken away, nor is it the case of the petitioner before this court that the three years tenure is sought to be reduced in any manner and thus it could never be the case of the petitioner that any of his vested rights were affected by the amendment.
Court said, the legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed invariably it has been held to be retrospective.
“Mere absence of use of word ‘declaration’ in an Act explaining what was the law before may not appear to be a declaratory Act but if the Court finds an Act as declaratory or explanatory it has to be construed as retrospective”, Court recorded.
After relying upon various judgments, Court said, whether in the facts and circumstances of the present case, the amendment act of 2015 can be said to have any retroactive effect so as to grant to the petitioner the benefit of an extending tenure.
“In my opinion, the answer is in the negative inasmuch as in its direct operation, while the act is prospective, it does not have the requisite element for its action which can be said to be drawn from time antecedent to its passing”, court said.
However, court added, this important link is conspicuously missing and therefore, the amendment Act of 2015 can only be said to be prospective in operation without any retroactive effect notwithstanding the fact that the petitioner was already in service on the date when the amendment came into force.

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