Kerala High Court
S.P.Deepak vs Chancellor on 15 November, 2013
Author: K.M. Joseph
Bench: K.M.Joseph
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
FRIDAY,THE 17TH DAY OF JANUARY 2014/27TH POUSHA, 1935
WA.No. 1832 of 2013 () IN WP(C).28829/2012
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AGAINST THE JUDGMENT IN WP(C) 28829/2012 of HIGH COURT OF KERALA DATED 15-11-2013
APPELLANT/PETITIONER:
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S.P.DEEPAK
T C NO 30/1240, ROSE COTTAGE, PALLIMUKKU
PETTAH, THIRUVANANTHAPURAM
BYADVS.SRI.P.RAVINDRAN (SR.)
SRI.V.G.ARUN
SRI.NAGARAJ NARAYANAN
RESPONDENT(S)/RESPONDENTS:
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1. CHANCELLOR
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695005
2. UNIVERSITY OF KERALA
REP BY ITS REGISTRAR, THIRUVANANTHAPURAM-695005
ADDL R3. DR.JAYAPRAKASH, 'JALARAG' T C NO 26/2156 , STATUE ROAD
THIRUVANANTHAPURAM, PIN-695001
R1 BY GOVERNMENT PLEADER SRI. ROSHAN D. ALEXANDER
R2 BYADV.SRI.GEORGE POONTHOTTAM,SC,KERALA UNIVERSITY.
R BY SRI.P.K.IBRAHIM
R3 BY SRI MANUEL KACHIRAMATTAM
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-01-2014, ALONG
WITH WA. 1849/2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sou.
(C.R.)
K. M. JOSEPH & K. ABRAHAM MATHEW, JJ
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W.A. No. 1832 of 2013
and
W.A. No. 1849 of 2013
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Dated this the 17th day of January, 2014
J U D G M E N T
K.M. Joseph, J Appeals being connected, they are disposed of by a common judgment. The appellant in both the cases is the writ petitioner in the two writ petitions from which these appeals arise.
2. Writ Appeal No.1832 of 2013 is filed against Writ Petition No. 28829 of 2012 whereas Writ Appeal No.1849 of 2013 is filed against judgment in Writ Petition No.13928 of 2013.
3. The appellant was nominated as a member of the Senate of the respondent University (Kerala University) vide Ext.P1 notification dated 20.12.2010. He was to hold the office until the next reconstitution of the Senate. The term of the Senate is four years. The Kerala University Act (hereinafter referred to as 'the Act')was amended by ordinance 58/2011. The 4th proviso was added to section 18(3). The nominated members were to hold their office subject to Doctrine of Pleasure, that ie., they were to hold their office during the pleasure of the person who nominated them. In the case of the appellant, he was nominated by the WA.No.1832/13 & 1849/13 2 Chancellor. Writ Petition No.28829 of 2012 is filed initially on the basis of issuance of Ext.P4 and Ext.P5. By Ext.P4 dated 26.11.2012, which is seen issued by the Secretary to Governor, the nomination of the appellant is withdrawn in exercise of power under the 4th proviso to section 18(3). By Ext.P5 notification referring to the order of the Chancellor to withdraw the nomination, it is notified that he has ceased to be a member of the senate of the University with immediate effect. Originally when the appellant approached this court the following prayers were sought :
"i) Call for the record leading to Exts.P4 & P5 and also the order of the Chancellor withdrawing the nomination of the petitioner and to quash the same by the issue of a writ of certiorari.
ii) Declare that a person nominated to the senate of the Kerala University prior to the date of commencement of the University Laws (Amending Act 2012) is not holding the post during the Pleasure of the Chancellor and he cannot be removed from office invoking proviso to sub section (3) to section 18 of the Act;"
4. It appears that appellant had made application under Right to Information Act and appellant obtained Ext.P8 series. Ext.P8 series purport to be the relevant records from the file WA.No.1832/13 & 1849/13 3 relating to the nomination of the appellant. Therein the Chancellor of the University who happened to be the Governor at that stage has purported to state that he agrees to what is stated therein. It is thereupon the Writ Petition was amended and prayers 2(a) and 2(b) were added.
"ii(a) Declare that there is no order by the Chancellor terminating the petitioner's membership in Syndicate of the 2nd respondent University and that petitioner continues to be a member of the Syndicate of the 2nd respondent University.
ii(b) Declare that the petitioner continues to be a member of the Syndicate of the 2nd respondent University and Ext.P5 and P6 orders do not affect his membership of Syndicate of the 2nd respondent University in any manner."
While he was a member of the Senate appellant was also elected to the Search Committee constituted for recommendation of names for appointment of Vice Chancellor of the University.
5. On the basis of withdrawal of the nomination of the appellant, the University proceeded to conduct election to the vacancy of the appellant also arising in the Search Committee and one Sivankutty was elected. Appellant challenged the same by filing Writ Petition No.9353 of 2013. Subsequently election of Sri. Sivankutty was anulled and withdrawn by the University and it WA.No.1832/13 & 1849/13 4 issued another notification, which is produced as Ext.P10 in Writ Petition No.13928 of 2013 wherein they decided to conduct fresh election consequent upon the cancellation of election of Sri. Sivankutty. That came to be challenged in Writ Petition No. 13928/2013 along with Ext.P11 which also was a notification relating to the said matter. All the three Writ Petitions were considered together.
6. The contentions taken before the learned Single Judge in the main Writ Petition, which is W.P(c) No.28829 of 2012 are as follows :
The appellant was nominated in the year 2010. At that time, section 18(3) provided that the term was till the reconstitution and it was four years. It is by the ordinance brought out on 16.8.2011 with effect from 16.8.2011, that the 4th proviso is added to section 18(3). It is in the said proviso, the Doctrine of Pleasure was incorporated in relation to nominated members. Therefore it was contended that the said amendment being only prospective it could not affect the nomination of appellant and could not be withdrawn in exercise of the power. Secondly, it was contended that though the Chancellor is the Governor, he functions as a statutory functionary. When he is acting as a Chancellor, he has to pass an order withdrawing the nomination. There is no such WA.No.1832/13 & 1849/13 5 order. Lastly it was contended that the decision of the Chancellor to withdraw the nomination even if it is in purported exercise of power under the 4th proviso invoking the doctrine of Pleasure, it cannot be treated as an unfettered power. There must exist reason, even though the reason need not be communicated as such. The decision cannot be arbitrary, capricious, whimsical or mala fide. In this case, there is no basis to withdraw his nomination.
7. The learned Single Judge found that the power under the 4th proviso is available to the Chancellor. It is further found that in the context of the facts, the words "I agree" in Ext.P8(a) file of the Chancellor procured by the appellant under the Right to Information Act amounts to an order. The learned single Judge also referred to paragraphs which preceded the words "I agree" . There is a reference to the conduct of the appellant which was complained of. Therefore, Writ Petition 28829 of 2012 is found to be devoid of merit and the said Writ Petition was dismissed. The other Writ Petitions were dismissed noting that there is no locus standi to challenge the impugned proceedings therein. Consequently by the common judgment all the three writ petitions were dismissed. Feeling aggrieved, the appellant has filed the aforesaid appeals.
WA.No.1832/13 & 1849/13 6
8. Appellant has also filed another appeal as Writ appeal against the judgment in Writ Petition No.9353 of 2013. The said appeal came to be dismissed as withdrawn.
9. We heard learned senior counsel for the appellant Sri. P. Ravindran, Sri. George Poonthottam, Standing Counsel appearing for the Kerala University, Sri. Roshan D. Alexander learned Government Plealder and Sri. Manuel Kanchiramattom for third respondent.
10. Learned Senior counsel for the appellant draws our attention to section 7 of the Kerala University Act. He would point out that the said section contemplates an order being passed when the Chancellor invokes his power. He draws our attention to section 7(3) and 7(10) which reads as follows:
"7(3) The Chancellor may, by order in writing, annual any proceeding of any of the authorities of the University which is not in conformity with this Act, the Statutes, the Ordinances, the Regulations, the rules or the bye-laws;
xxxxxxxxxxxxx 7(10) The Chancellor shall have such other powers as may be conferred on him by this Act or the Statutes."
11. Then he would point out that at the time when the nomination was made, the law contemplated a term of four years to the nominated members. The introduction of the doctrine of Pleasure by the enactment of 4th proviso to section 18(3) is done WA.No.1832/13 & 1849/13 7 only in 2011. Of course he does not press before us the argument which he pressed before the learned single Judge about the effect of the date of amendment.
12. Further he would point out that clearly there is no order passed by the Chancellor. It is reiterated that Chancellor is only a statutory authority. In this regard he sought to draw support from the judgment reported in Gopalakrishnan v. Chancellor, University of Kerala (1990 (1) KLT 681). Therein this Court held inter alia as follows :
"Art.163 is limited to those functions which the Governor exercises by virtue of bis position as such, in respect of matters required to be done by him by or under the Constitution, and not otherwise. Where a power is conferred on the Governor under a statute, he is equally bound by the statute, and is bound to exercise those powers in accordance with the provisions of the statute in question. If the statute requires that the Governor shall act either in his discretion or in a particular manner, he shall have to act accordingly. One can thereafter contend that the Governor who has performed his functions in accordance with the statute or its mandate has nevertheless acted unconstitutionally for not acting on the aid and advice of the Council of Ministers under Art.163. It is only those functions which are vested in the Governor, or which the Governor is required to do by virtue of his position as such, under the Constitution, that are attracted by Art.163 and it is only in relation to these functions that the Governor is bound to act on the aid and advice of the Council of Ministers for instance, the executive functions of the Governor under Art.154. Statutory functions which the Governor is empowered or bound to do under a particular enactment are beyond the purview of Art.163.
The Chancellor is thus made the head of the University WA.No.1832/13 & 1849/13 8 with various powers vested in him as delineated above. The provisions of the Act make a clear distinction between the Chancellor and the government. If really the Chancellor is the same as Governor, and therefore, the government, as the petitioner contends, every action of the Chancellor has to be informed by the aid and advice of the Council of Ministers, ie. the government. If so, there was no necessity for making this dichotomy between the Chancellor and the government in various sub-sections of the very same section. The statute has made a clear distinction between the Chancellor and the government. Each one has got specific roles and functions to perform. Whenever the Chancellor is required to exercise a particular function, it is so specified. Whenever any powers or functions are vested on the government, they are also specifically delineated. There is thus a clear specification of the functions to be exercised by the respective authorities, namely the Chancellor and the government. The Chancellor is part of the University while the government is not. Whatever function the Chancellor exercises or does is by virtue of his position as a constituent part of the University, and not as Governor of the State. It is true that the Governor is ex- officio the Chancellor, but that is not to say that the position of the Chancellor is the same as that of the Governor. While the functions of the Governor are constitutional, the functions of the Chancellor are statutory, and are to be exercised in accordance with the provisions of the statute. He is not acting as part of the executive government in exercising such functions, but as a statutory functionary forming a part and parcel of the University itself. Such an independent exalted position for the Chancellor is in accord with the object of academic excellance which a statutory body like the University is intended to achieve. That position is not liable to be diluted by considerations of his acting on the aid and advice of the Council of Ministers. (Paras. 18, 23, 25 & 26)"
13. He also sought to draw support from the judgment of Allahabad High Court reported in Joti Prasad Upadhya v. Kalka Prasad Bhatnagar and Others (AIR 1962 Allahabad 128). WA.No.1832/13 & 1849/13 9 He would point out that under section 7(10) of the Act, the Chancellor as and when he exercises his power, must reflect on the matter before passing the order. He cannot be permitted to seek refuge under the procedures and the powers available to him in his capacity as a Governor. There can be no occasion for invoking Article 166 of the Constitution and the rules of business for the reason that this is not a case where he is acting as a Governor but as an independent statutory functionary. When a Chancellor wrote the words "I agree", in the file as evidenced from Ext.P8(a), it only meant that he is agreeing with the legal position reflected by the legal advice that for withdrawing nomination of the appellant he need not issue notice and he need not hear the appellant. After recording his agreement in this regard, with the views expressed in the note, if he wanted to exercise his power, the Chancellor should have passed an order which should manifest application of mind by him with relevant aspects, runs the argument of the learned senior counsel for the appellant. In this connection, we may also indicate the next point which he urged before us and that is this: Even though by virtue of the incorporation of the 4th proviso to section 18(3) of the Act, the nomination of the appellant can be withdrawn by invoking the doctrine of pleasure, still there is no unfettered discretion available WA.No.1832/13 & 1849/13 10 in law. Even the Doctrine of Pleasure as understood in England, is not accepted in India. In this connection he drew our attention to the Constitution Bench of Apex Court reported in B.P. Singhal v. Union of India and another [(2010) 6 SCC 331] Therein the apex Court was dealing with a public interest litigation in regard to the doctrine of pleasure in relation to Governor in India and the circumstances in which Doctrine of Pleasure could be invoked for bringing about his removal. Therein the Apex Court inter alia held as follows :
" 22. There is a distinction between the doctrine of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a democracy governed by the rule of law. In a nineteenth century feudal set-up unfettered power and discretion of the Crown was not an alien concept. However, in a democracy government by rule of law, where arbitrariness in any form is eschewed, no Government or authority has te right to do what it pleases. The doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically. It is presumed that discretionary powers conferred in absolute and unfettered terms on any public authority will necessarily and obviously be exercised reasonably and for the public good.
33. The doctrine of Pleasure as originally envisaged in England was a prerogative power which was unfettered. It meant that the holder of an office under pleasure could be removed at any time, without notice, without assigning cause, and without there being a need for any cause. But where the rule of law prevails, there is nothing like unfettered discretion or uncountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists. As a result when the Constitution of WA.No.1832/13 & 1849/13 11 India provided that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however, necessarily be read as being subject to the "fundamentals of constitutionalism". Therefore, in a constitutional set-up when an office is held during the pleasure of any authority, and if no limitations or restrictions are placed on the "at pleasure" doctrine, it means that the holder of the office can be removed by the authority at whose pleasure he holds office, at any time, without notice and without assigning any cause.
82. The President in exercising power under Article 156(1) should act in a manner which is not arbitrary, capricious, or unreasonable. In the event of challenge of withdrawal of the pleasure, the Court will necessarily assume that it is for compelling reasons. Consequently, where the aggrieved person is not able to establish a prima facie instance of arbitrariness or mala fides, in his removal, the Court will refuse to interfere. However, where a prima facie case of arbitrariness or mala fides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case. Having regard to the nature of functions of the Governor in maintaining Centre-State relations, and the flexibility available to the Government in such matters, it is needless o say that there will be no interference unless a very strong case is made out. The position , therefore, is that the decision is open to judicial review but in a very limited extent.
The conclusions were summarised by the Bench as follows :
"83. We summarise our conclusions as under:
(i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause.WA.No.1832/13 & 1849/13 12
(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner.
The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability corruption and behavior unbecoming of a Governor) but are of a wide amplitude. What would be compelling reasons would depend upon the facts and circumstances of each case.
(iii) A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at the Centre is not a ground for removal of Governors holding office to make way for others favoured by the new Government.
(iv) As there is no need to assign reason, any removal as a consequence of withdrawal of the pleasure will be assumed to b e valid and will be open o only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, mala fide, capricious or whimsical, the Court will call upon the Union Government to disclose to the Court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or mala fide, the Court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient."
14. On the strength of the same the learned counsel would submit that invocation of the Doctrine of Pleasure does not mean that the person who invokes it can act at its sweet will or act capriciously. He cannot act arbitrarily or in a mala fide manner. In this case, there is no basis for exercising the Doctrine of Pleasure WA.No.1832/13 & 1849/13 13 in withdrawing the nomination of the appellant. Of course the main complaint is that there is no decision by the Chancellor himself.
15. Per contra, learned Government Pleader drew our attention to the following averments in the counter affidavit:
"The Chancellor had considered the complaint dated 17.10.2012 from Chairman, Higher Education to the Chief Minister, communication from Secretary, Higher Education Council to Chief Minister, letter from Dr. K. Sajeev, Member, Syndicate of Kannur University dated 17.10.2012. Dr. K. Sajeev, Member, Syndicate, Kannur University represented to the Chief Minister that the petitioner herein, Adv. S.P. Deepak along with 4 LDF Syndicate members had disrupted the meeting of Kerala Higher Education Council on 16.110.2012 in an uncivilized manner and that the uncivilized conduct of Adv. S.P. Deepak and the manner in which he has disrupted the meeting shows his unworthiness to continue as nominee of Chancellor. The contents of the letter addressed to the Chancellor by the Leader of Opposition, copy of the complaint forwarded by the Leader of Opposition and the contents of Ext.P3 were also brought to the notice of the Chancellor. The legal opinion of the State Government was to the effect that for withdrawing the nomination of the petitioner an opportunity of being heard is not required and that if the Chancellor is stated that there is valid reason for such removal, the petitioner can be removed under the 4th proviso to Section 18(3) of Kerala University Act. The said legal opinion, the circulation note, the entire government file and files of the office of the chancellor in relation to the issue were considered in paragraphs 81 to 86 of the note file contains the entire issue including a question of removal of the nomination as well as the question of necessity of hearing, if any, to be provided before withdrawing the nomination of the petitioner. It was in this context and on consideration of the entire facts and circumstances, the Chancellor made the note in paragraph 87 as "I agree". Simultaneously, the Chancellor has approved the recommendation of the Government in the note file of the Government. This is the administrative WA.No.1832/13 & 1849/13 14 practice in regard to the movement of files and the procedure under which decisions were taken by the chancellor. The remarks of the Government in the note file also was perused and affirmed by the Chancellor, as stated above. It was in these circumstances, the Chancellor endorsed "I agree" in the notes prepared by the Secretary to Governor, which is an order issued by the Chancellor under section 18(3) of the Act. In this context, it is worthwhile to mention that there was no formal order while nominating the petitioner as a representative of the "Lawyers" to the Senate of Kerala University."
16. He would therefore point out that as found by the learned single Judge there is an order passed by the Chancellor. He also made available the files in this regard. We notice that in regard to one of the matters the Chancellor has, in fact, passed a definite order. No doubt, it relates to a case where apparently the Chancellor found that the nominated members were ineligible to be nominated and the matter related to their removal on the said basis. Learned Government Pleader would point out that Government files and also files generated on the complaint filed by both the appellant and the leader of opposition were all considered by the Chancellor and he has passed an order which cannot be subject to judicial review.
17. Learned counsel for the University would also submit that there is a decision taken by the Chancellor. According to him, there is no need for an order as such. Further more, he would submit that actually the appellant has no legal or fundamental WA.No.1832/13 & 1849/13 15 right to espouse. In this connection he drew our attention to Om Narain Agarwal and others v. Nagar Palika, Shahjahanpur and others [(1993) 2 SCC 242]. Therein the Apex Court was dealing with a case where persons who were nominated to the Municipal Board and who were to hold the office during the pleasure of the State Government but not beyond the term of the Board, challenged the constitutionality of the provision containing the pleasure doctrine on the ground that it is in violation of Article 14 and 15 of the Constitution. In the course of the judgment, the Apex Court, inter alia held as follows:
"We are not impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived the fundamental right of equality as enshrined in Article 14 of the Constitution. It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and not to unequals. The nominated members of the Board fall in a different class and cannot claim equality with the elected members. We are also not impressed with the argument that there would be a constant fear of removal at the will of the State Government and is bound to demoralise the nominated members in the discharge of their duties as a member in the Board. We do not find any justification for drawing such an inference, inasmuch as, such contingency usually arises only with the change of ruling party in the Government. Even in the case of functionary in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to demoralise or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period WA.No.1832/13 & 1849/13 16 they remain in the office."
18. He, therefore, would contend that the nominated members cannot be treated as employees who may be entitled to continue for a definite term. The condition of the nominated member of the Senate is vulnerable in that he can always be shown the door by the Chancellor by exercising power under the Doctrine of Pleasure. He, therefore, has no legal or fundamental right to continue for any particular term. He would further more point out that the chancellor has in this case considered the matter as is evident from the entry wherein when he was notified of the complaint of the appellant and the leader of opposition, he has in his own hand indicated that no further proceedings need be taken in the matter except with his permission. This itself shows that the Chancellor was seized of the matter and, therefore, there is indeed a decision by the Chancellor later on. He would further submit that the matter may not be judged by the brevity and it is not a matter which can be decided with reference to the prolixity with which decision is taken.
19. There was complaint taken against the act of appellant during the holding of the meeting of Higher Education Council. In fact, the complaints have come from the Vice Chairman of the Council and also another person. They were forwarded, no doubt, WA.No.1832/13 & 1849/13 17 through the office of the Chief Minister to the Governor. When this court noted that the file, is routed through the office of the Chief Minister for getting the response and the question is posed as to what is the role of the Chief Minister in the matter, learned counsel for the University would point out that the practice is that since the matter is relating to the Education Department, their response was elicited through the office of the Chief Minister.
20. Learned senior counsel for the appellant would point out that this is a case where the nominated member under section 18 is entitled to a term of four years and therefore there is scope for judicial review even if this matter does not relate to the removal of a Governor.
21. In view of the contentions raised by the parties, the first question we will have to consider is whether there is a decision by the first respondent Chancellor. Quite clearly, in view of the exposition of law contained in 1990 (1) KLT 681 it is clear that when the Governor is exercising his power ex-officio as a Chancellor of the University he is acting purely as a statutory authority. He does not even have the immunity extended to him by virtue of Article 361 of the Constitution in relation to his acts as Governor. He is not expected to act on the advice of the council of Ministers. When he acts as Chancellor, he is expected to act as WA.No.1832/13 & 1849/13 18 an independent statutory authority just as in the case of any other statutory authority. It is incumbent on him to pose the correct question. He must be guided by relevant matters. He must eschew irrelevant considerations. The repository of every statutory power is only to act for public good. He must imbibe the object of the Act under which he acts and he must effectuate the object of the Act in ultimate analysis. In other words, even in the matter of withdrawal of nomination, he must be guided by what is in the best interest of the University. Of course, needless to say, he has to act bona fide. This is not to say that he cannot seek legal advice on a matter in which he entertains doubts as to the legal position, but at the end of the day when he takes a decision, the decision must be entirely his. It should not be dictated to by anyone.
22. In the conspectus of these principles let us examine whether in the facts of this case the first respondent has taken a decision and if a decision is taken, whether there is an order and finally if there is such a decision and an order is passed, whether it is open to judicial review?
23. In doing this, we consider it apposite to refer to paragraphs 69 and 70, besides paragraph 80 of the judgment of the Constitution Bench (Supra).
"69. On the other hand, it is contended by the respondents that removal need not only be for the WA.No.1832/13 & 1849/13 19 reasons mentioned by the petitioner but can also be on two other grounds, namely loss of confidence in the Governor or the Governor being out of sync with the policies and ideologies of the Union Government. There is thus a consensus to the extent that a Governor can be removed only for a valid reason, and that physical and mental incapacity, corruption and behaviour unbecoming of a Governor are valid grounds for removal. There is however disagreement as to what else can be grounds for removal. We are of the view that there can be other grounds also. It is not possible to put the reasons under any specific heads. The only limitation on the exercise of the power is that it should be for valid reasons. What constitute valid reasons would depend upon the facts and circumstances of each case.
70. We have however already rejected the contention that the Governor should be sync with the ideologies of the Union Government. Therefore, a Governor cannot be removed on the ground that he is not in sync or refuse to act as an agent of the party in power at the Centre. Though Governors, Ministers and Attorney General, all hold office during the pleasure of the President, there is an intrinsic difference between the office of the Governor and the offices of Ministers and the Attorney General. The Governor is the constitutional head of the State. He is not an employee or an agent of the Union Government nor a part of any political team. On the other hand, a Minister is a hand-picked member of the Prime Minister's team. The relationship between the Prime Minister and a Minister is purely political. Though the Attorney General holds a public office, there is an element of lawyer-client relationship between the Union Government and the Attorney General. Loss of confidence will therefore be a very relevant criterion for withdrawal of pleasure, in the case of a Minister or the Attorney General, but not a relevant ground in the case of a Governor.
80. The extent and depth of judicial review will depend upon and vary with referennce to the matter under review. As observed by Lord Steyn in Daly, in law, context is everything, and intensity of review will depend on the subject matter of review. For example, judicial review is permissible in regard to WA.No.1832/13 & 1849/13 20 administrative action, legislations and constitutional amendments. But the extent or scope of judicial review for one will be different from the scope of judicial review for the other. Mala fides may be a ground for judicial review of administrative action but is not a ground for judicial review of legislations or constitutional amendments. For withdrawal of pleasure in the case of a Minister or an Attorney general, loss of confidence may be a relevant ground. The ideology of the Minister or Attorney General being out of sync with the policies of or ideologies of the Government may also be a ground. On the other hand, for withdrawal of pleasure in the case of a Governor, loss of confidence will not be a ground for withdrawal of the pleasure. the reasons for withdrawal are wider in the case of Ministers and Attorney General, when compared to Governors. As a result, the judicial review of withdrawal of pleasure, is limited in the case of a Governor whereas virtually nil in the case of a Minister or an Attorney General"
24. The aforesaid paragraphs besides the earlier paragraphs which we have referred would show the existence of following principles. The Doctrine of Pleasure though in the earlier days was being exercised with a degree of absoluteness, it has lost the said trait when it was applied in India, which is a republic wedded to the rule of law functioning under a written constitution. The power which is couched in the most unfettered manner is always subject to the rule of law. The Apex Court in the said case examined the case relating to a Governor. The Governor occupies a high constitutional position. It is there that the court drew a distinction between the Governor on the one hand and Minister and Attorney General on the other hand. The Court has made it clear that in the WA.No.1832/13 & 1849/13 21 case of Governor, there is scope for review in appropriate cases where exercise of power of Pleasure is found to be afflicted with arbitrariness, mala fides or it it is found to be capricious. Judicial review can be exercised where there is no reason at all. It is also clear however that, there is no need to issue notice to person concerned and there is no question of a hearing. There is no lis, which is to be decided by the authority which exercises the power of pleasure. But nonetheless the authority, as we have adverted to earlier, is bound to take a fair decision acting dispassionately imbibing constitutional values and the purpose for which power is lodged with it. In the case of a Minister, or Attorney General, even though they occupy a high constitutional position and even though they are entrusted with very responsible assignments, affecting public interest, the Apex Court has ruled that in their case, doctrine of Pleasure is more absolute and more importantly the scope for judicial review is nil. They continue in office purely during the time they enjoy the confidence of the Prime Minister or the Chief Minister as the case may be.
25. This is a case where the appellant as a member of the senate apparently filed petition before the Chancellor sensing that there is a move to withdraw his nomination. That was followed by a communication from the leader of opposition who apparently WA.No.1832/13 & 1849/13 22 supported the case of the appellant. Prior to that there were complaints received from the Vice Chairman and another member of the Syndicate, Kannur University in regard to the conduct of the appellant in a particular meeting. This matter came up before the Chancellor on 27.10.2012. Therein we find that apparently in his own hand writing the then Chancellor has written as follows :
"No further action be taken without my permission in this case".
26. Paragraph 81 to 86 of Ext.P8(a) reads as follows :
"81. Shri. S.P. Deepak, Advocate, was nominated to the Senate, University of Kerala, by the Chancellor on 18.12.2010 as a representative of the Lawyers, under section -17- Other Members- item (2), Lawyer of the Kerala University Act, 1974. He was elected to the Syndicate of the University. The Registrar, Kerala University in his letter dated 12.9.2012 has informed that Shri. S.P. Deepak has been selected as the nominnee of the Senate to the Search Committee to be constituted for selection of the Vice Chancellor, University of Kerala.
82. On 21.10.2012, Shri. V.S. Achuthanandan, Leader of Opposition, Kerala Legislative Assembly forwarded a petition dated 20.10.2012, alleging that there is a move to illegally remove Shri. Deepak from the Syndicate. Shri. Deepak has also sent another petition dated 20.10.2012 to the Chancellor on the same issue. The copies of the petitions were sent to the State Government and the Karala University for comments.
83. The Vice Chancellor, Kerala University has stated that the continuance of the members nominated by the Chancellor,is only during the pleasure of the Chancellor and that it is the Chancellor discretion to decide on the matter. The State Government have furnished their comments in the file containing the WA.No.1832/13 & 1849/13 23 recommendations to remove him.
84. The State Government in file No.38283/B2/2012/H Edn has stated that Dr. K. Sajeev, Member, Syndicate, Kannur University represented to the Chief Minister of uncivilized behavior of Shri. S.P. Deepak in a meeting of the Higher education Council. The Vice Chairman and Secretary of the Counsel also reported the incident.
85. Further, it has been stated in the representation submitted by Shri. Deepak through the Leader of Opposition, that the doctrine of pleasure is not a license to act with unfettered discretion to act arbitrarily, whimsically and capriciously and has to done with valid reasons.
86. The State Government have given the opinion of the Law Department which states that there is no legal objection in removing Shri. S.P. Deepak, Advocate, without affording an opportunity of being heard, according to judicial pronouncements, if the Chancellor is satisfied that there is a valid reason for such removal, under the fourth proviso to section 18(3) of the Kerala University Act, 1974."
Thereafter, the Chancellor wrote the words "I agree". We must first consider the question whether there is a decision to withdraw the nomination of the appellant. According to learned senior counsel for the appellant, the agreement expressed by the Chancellor after paragraph 87 of the file can only be an agreement with the opinion given that there is no legal objection in removing the appellant without affording an opportunity of being heard, according to judicial pronouncement, if he is satisfied that there are valid reasons for such removal and there should be a further order.
WA.No.1832/13 & 1849/13 24
27. We find it unable to accept that contention. We must notice that this is a case where the matter originated in complaints being lodged against the appellant. They were forwarded to the Chancellor through the office of the Chief Minister. Sensing the same as we have already noticed the appellant and also the leader of opposition sent communications. The stand of the Vice Chancellor was that such member can continue only during the pleasure of the Chancellor. The State Government would appear to have furnished their comments in the file containing the recommendations for removal. It is stated in paragraph 83 of Ext.P8(a). No doubt, learned senior counsel for the appellant would point out that there is no such comment by the State Government. Whatever that be, it is stated that Dr. Sajeev, Member of the Syndicate has represented about the 'uncivilised behaviour' of the appellant in the meeting of the Higher Education Council. There is a reference to the Vice Chairman and Secretary of the Council reporting the incident. Thereafter, it is stated in the representation of appellant and the leader of opposition that Doctrine of Pleasure is not a licence to act with unfettered discretion arbitrarily, whimsically or capriciously and that has to be done with valid reasons. Thereafter, it is stated that opinion of the Law Department of the State is that there is no WA.No.1832/13 & 1849/13 25 legal objection as aforesaid.
28. When the Chancellor says he agrees, it would be an unreasonable interpretation to make that the said expression of agreement by the Chancellor is in regard to the opinion of the Law Department about the scope of the powers available to him. It does not stand to reason that the Chancellor should express his agreement with the view of the Law Department that a power available is to be exercised without issuing notice to the parties.
In this connection, we must bear in mind that the very same Chancellor has specifically ordered that no further action need be taken in the matter without his permission. This is the endorsement found on 27.10.2012. Thereafter, about two months later, the Chancellor has apparently agreed with the idea of withdrawing the nomination of appellant. We are fortified with this view on the basis of the fact that apparently not only this file (Ext.P8 and Ext.P8a) but the Government file which contains the complaints against the appellant also was filed before the Chancellor. We find it very difficult to accept that the Chancellor should record his agreement with the opinion and leave the matter there. There is no need to express his agreement with legal position. Such exercise can only to be treated as an unnecessary exercise and therefore it is much more reasonable to hold that the WA.No.1832/13 & 1849/13 26 order or the words used "I agree" meant he has taken a decision to withdraw the nomination of the appellant. He wanted to bring the matter to a culmination which he had himself stayed as seen from the endorsement on 27.10.2012. Once we find that there is a decision, we are of the view that it can be treated as an order by the Chancellor.
29. It is true that when power is exercised under section 7(3) of the Act, the Chancellor is obliged to issue an order. When the Chancellor exercises any of the power conferred under section 7 (10) of the Act, which means if the Chancellor is given the power under any other provision of the Act, or statutory instruments also, the Chancellor must not only take a decision, but there must be an order. There can be no scope for an oral order as such for a statutory functionary. Clothing a statutory authority with power to issue oral order would have serious repercussion on the rights of the parties. An order unless it is made, and it is made known and if it is allowed to have impact on the destiny of others it would be clearly arbitrary and illegal. Therefore when the Chancellor takes a decision, it can only be by an order. No doubt, we are not too happy with the way the matter has been done. The entire litigation for the most part is based on the alleged absence of an order. While brevity in making the order might be a virtue, the WA.No.1832/13 & 1849/13 27 substance of the matter, at least should be self evident from the decision in the order. The matter should not be allowed to be decided on the basis of conjecture leaving superior courts to undertake the task of ascertaining whether there is an order with reference to the context and other materials. In this case, no doubt, we have done that exercise and we have come to a conclusion that there is an order. But all this could have been avoided if the Chancellor had taken greater care to couch his decision with greater clarity and at least in a few words clearly indicating his decision to withdraw the nomination of the appellant. But there is an order in this case. In this connection we must again remind ourselves that when the exercise of power is made under section 18(3), there is no question of deciding any lis. There is no question of notice to the nominated member. The only substantial constraint is that the power cannot be exercised arbitrarily, capriciously, or for mala fide reasons. There must also be a reason for withdrawal of the nomination. A member of the senate is nominated and entrusted with a task under the Act and that task is to perform various functions of the senate. The senate is an important body of the University. Under section 18(3) of the Act, a member of the senate is vouchsafed with a term of four years. While it may not be like the term of an employee, nonetheless WA.No.1832/13 & 1849/13 28 there is a statutory assurance that if the power of Pleasure is not exercised against him, a nominated member can continue. The nominated member works as a member of the team to achieve the objectives set forth for the senate. Disruption of his career as a member of the senate without any cause is certainly not in public interest. But that is not to say the court is going to sit in judgment over the reasons. The court is not concerned with the sufficiency of reasons. It is one thing to say that the court will interfere if certain contingency exists and another thing to blur the limits of the jurisdiction of the writ court bearing in mind that the writ court is not the appellate court.
30. Therefore, we come to a conclusion that there was a decision by the first respondent to withdraw the nomination and even though the words used to express the decision are not to our liking in that, it is too short and not eloquent of the intention by itself, the fact remains that there is an order.
31. The further question is whether there is material in that, whether it is arbitrary, mala fide and capricious. As already noted, there were complaints against the appellant filed by two persons. One was the Vice Chairman of the Higher Education Council and another is the Secretary of the Council.
32. It is apposite also to consider the position of the WA.No.1832/13 & 1849/13 29 nominated member of the senate. Quite clearly, he cannot be likened to the Governor of a State for obvious reasons. We are also unable to put him in the same category as Minister or the Attorney General. Minister and Attorney General can function only on the basis that they support the policies of the Government. The moment the confidence reposed in them is lost, nothing more remains and they can be removed. In fact, their position is precarious . Right from the very beginning, they are not assured of any term at all. In the case of a member who is nominated, he is entitled to continue for a period of four years. But it is subject to the condition that he can be removed by exercising the Doctrine of Pleasure. Challenge against removal under the Doctrine of Pleasure can be successfully premised only on limited grounds as aforesaid. If any State action is arbitrary, or mala fide undoubtedly the Court will interfere. The Chancellor acts as an authority under the Statute. Therefore, the principle is that when the Chancellor in removing the nominated member acts in an arbitrary or mala fide manner or he acts in a capricious manner certainly the court has jurisdiction to interfere. Applying the said principle to the facts of this case we are unable to hold that this is a case where there is no material against the appellant or that action is arbitrary or capricious as records reveal that there were materials against him WA.No.1832/13 & 1849/13 30 and we must take it that the Chancellor was accepting that material when he decided to withdraw the nomination.
33. The upshot of the above discussion is that the appellant has not made out a ground for grant of relief in Writ Petition No.28829/2012.
34. The fate of the other appeal cannot be different. This is a case where pending the first Writ Petition the appellant who was elected as a member of the Search Committee, which is a statutory body, on the basis of his membership of the senate was removed and Sri. Sivankutty was inducted in. That was subjected to challenge. The said writ petition was dismissed.
35. The appeal challenging the same was withdrawn. But in the surviving writ petition what was challenged was the decision of the University which it had taken, according to it, to rectify an anomaly in the procedure of electing Sri. Sivankutty which was in fact pointed out by the appellant himself in the writ petition. What ever that be, when we posed the question to the learned senior counsel for the appellant that when appellant was elected to the Search Committee and when he is removed from the senate does he claim any independent right to still continue as a member of the Search Committee, learned senior counsel for the appellant submitted that he has no such case. Therefore, the decision to WA.No.1832/13 & 1849/13 31 remove him and to conduct election to the Search Committee arose from the vacancy which arose in the senate consequent upon the withdrawal of the nomination. Once we uphold the legality of the decision of the Chancellor to withdraw his nomination from the senate, since he does not claim any independent right to be member of the Search Committee, we would think that as held by the learned Single Judge he would not have the locus standi to call in question the election to the Search Committee. We further notice that what is presently challenged before us is a decision taken to fill up the vacancy which would arise from the removal of Sivankutty. In such circumstances, in view of the absence of interest in the matter, we find that there is no merit in the other appeal also. Accordingly both appeals fail and they are dismissed.
Sd/-
K. M. JOSEPH, JUDGE Sd/-
K. ABRAHAM MATHEW, JUDGE.
Sou.
// True copy //