Kerala High Court
Prof. Dr.T.Asokan vs The Chancellor on 28 September, 2018
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY ,THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940
WP(C).No. 11058 of 2018
PETITIONER/S:
PROF. DR.T.ASOKAN
S/O. LATE T KANNAN, AGED 58 YEARS, DEPARTMENT
OF MANAGEMENT STUDIES, KANNUR UNIVERSITY,
PALAYAD, THALASSERY KANNUR DISTRICT.
BY ADV. SRI.GEORGE MECHERIL
RESPONDENT/S:
1 THE CHANCELLOR, KANNUR UNIVERSITY
RAJ BHAVAN, THIRUVANANTHAPURAM.
2 THE VICE CHANCELLOR
KANNUR UNIVERSITY, THAVAKKARA, KANNUR - 2.
3 THE SECRETARY TO GOVERNMENT
HIGHER EDUCATION DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM - 695 001.
4 THE UNIVERSITY GRANTS COMMISSION
NEW DELHI - 110 002, REPRESENTED BY ITS
CHAIRMAN.
5 THE KANNUR UNIVERSITY
THAVAKKARA, KANNUR-2, REPRESENTED BY ITS
REGISTRAR.
==========================
W.P.(C).No.11058/2018
~~~~~~~~~~~~~~~~~~~~~~~~~~
28th day of September, 2018
-:2:-
6 PROF P T RAVEENDRAN
DEPARTMENT OF MANAGEMENT STUDIES, KANNUR
UNIVERSITY NOW WORKING AS PRO-VICE CHANCELLOR,
KANNUR UNIVERSITY, THAVAKKARA, KANNUR-2.
7 SUDHEER CHANDRAN K P
S/O LATE.K.PADMANABHAN NAIR, 30A, PRASADAM,
GREEN NAGAR, KRISHNAN NAIR ROAD, KARAPARAMBU,
KOZHIKODE-10.
BY ADVS.
SRI.K.JAJU BABU (SR.)
SRI.K.V.SOHAN, STATE ATTORNEY
SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY
SRI.SHYAM KRISHNAN R6
SRI.S.KRISHNAMOORTHY, CGC
SMT.M.U.VIJAYALAKSHMI COUNSEL FOR THE
CHANCELLOR OF UNIVERSITIES IN KERALA
SRI.A.MUHAMMED MUSTHAFA
SRI.K.JAJU BABU (SR.)
SRI.K.V.SOHAN STATE ATTORNEY
SRI.M.P.SREEKRISHNAN
SRI.M.SASINDRAN SC KANNUR UNIVERSITY
SRI.S.KRISHNAMOORTHY CGC
OTHER PRESENT:
SRI K.V SOHAN STATE ATTORNEY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.09.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
==========================
W.P.(C).No.11058/2018
~~~~~~~~~~~~~~~~~~~~~~~~~~
28th day of September, 2018
-:3:-
J U D G M E N T
The petitioner, who was appointed as Pro-Vice- Chancellor, Kannur University for a period of 4 years with effect from 20.7.2015 challenges the decision of the Chancellor holding that the petitioner deemed to have vacated the office on 14.4.2017, the date on which Dr.M.K.Abdul Khader, the Vice Chancellor of the University demitted office on expiry of the tenure of his appointment.
2. The Chancellor proceeded to hold so in the light of clause 7.2.0 of the U.G.C Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (for short, the "UGC Regulations") which states that the office of Pro-Vice-Chancellor is co-terminus with that of the Vice Chancellor.
========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:4:-
3. The petitioner was appointed as Pro-Vice- Chancellor by the Chancellor invoking provisions of the Kannur University Act, 1996 with effect from 20/7/2015. A Full Bench of this Court in its judgment dated 23/2/2016 had taken a view that the UGC Regulations adopted by the State of Kerala have come into force from its date of adoption i.e. 18/9/2010 and therefore, even without there being an amendment to the University Act and Statutes, the UGC Regulations will hold the field governing such aspects referred therein.
4. There was a review filed by the State before the Division Bench. The request of the State was to give effect operation of the judgment prospectively. The Full Bench dismissed the review. Thereupon, the State, University of Kerala and some of the aggrieved, filed a special leave petition before the Apex Court. The special leave petition was disposed on 17.7.2018 holding that in the interest of justice and for doing complete justice ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:5:- between parties declared that the judgment of the Full Bench would be applicable only from the date of judgment i.e. 23.2.2016.
5.The learned counsel for the petitioner, George Mecheril raised a very incisive argument contending that the declaration by the Hon'ble Supreme Court that the judgment of the Full Bench of this Court would be operative only with effect from 23.2.2016 is a declaration of law giving effect to the UGC Regulations in the State of Kerala only with effect from 23.2.2016 and therefore, any appointment made prior to 23.2.2016 invoking statutory provisions of the University Act cannot be unsettled on the basis of the Full Bench judgment.
6. Section 13(4) of the Kannur University Act treats office of the Pro-Vice-Chancellor as a tenure office and the appointment as only a tenure post. On the other hand, UGC Regulations stipulate that the Office of the Pro-Vice Chacellor is based on the prerogative choice to be exercised by the ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:6:- Vice Chancellor, that is to say, it is a pleasure appointment.
7. Section 13(1) of the Kannur University Act refers to the mode of appointment of Pro-Vice- Chancellor which says that the Pro-Vice-Chancellor shall be appointed by the Chancellor in consultation with the Vice-Chancellor. Section 13(4) provides that Pro-Vice-Chancellor shall hold office for a term of 4 years from the date on which he enters the office. Whereas, under the UGC Regulations, the Pro-Vice-Chancellor shall be appointed by the Executive Council on the recommendation of Vice Chancellor (See clause 7.1.0). It is further stipulated in clause 7.2.0 that the Pro-Vice-Chancellor shall hold office for a period which is co-terminus with that of the Vice-Chancellor. In regard to the nature of office of the Pro-Vice-Chancellor, it is further clarified in clause 7.2.0 that the Vice-Chancellor is free to exercise prerogative power to recommend a new Pro- ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:7:- Vice-Chancellor to the Executive Council during his tenure. Taking note of the above clause, this Court in W.P.(C) No.19796/2018 had taken a view that the office of the Pro-Vice-Chancellor is a pleasure appointment.
8. Inter alia the learned counsel for the petitioner Shri George Mecheril would contend that Vice-Chancellor has no power to pass the impugned order. He also contended that in the light of the judgment of the Hon'ble Supreme Court in Kalyani Mathivanan v. K.V.Jeyaraj and Others [2015 KHC 4184] which held that without there being an amendment to the University Act and Statutes, UGC Regulations cannot be given effect. He particularly referred to clause 7.2.0 of the UGC Regulations wherein it is stated that the regulations in regard to the appointment of Pro- Vice-Chancellor will have to be adopted by the University concerned through an amendment of the Act/Statute. Therefore, the learned counsel argued ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:8:- that the Full Bench judgment is per in curium and, ceased to have a binding effect. He further argued that the Full Bench judgment in Radhakrishnan Pillai v. Travancore Devaswom Board [2016 (2) KLT 245 (F.B.)] should be treated as a precedent sub silentio since it was decided without considering the true proposition of law as laid down in Kalyani Mathivanan's case (supra) and also to the statutory directives as referred in clause 7.2.0 of the UGC Regulations.
9. Let me consider the first argument raised by the learned counsel Shri George Mecheril in regard to the prospective application of the Full Bench Judgment, by the Apex Court. The judgment would take effect only from 23.2.2016. [See order of the Apex Court in the Special Leave to Appeal
(c) Nos.18938-18942/2017, dated 17.7.2018]. If this was a declaration of law under Article 141 of the Constitution of India, I would say that the UGC Regulations which were made applicable in the State pursuant to the adoption by the State Government ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:9:- would become operative only with effect from 23.2.2016. To understand this argument, it is necessary to refer about the doctrine of Prospective Overruling.
10. Doctrine of Prospective Overruling is succinctly referred in L.C.Golak Nath and others v. State of Punjab and another [AIR 1967 SC 1643 (V 54 C342)] the learned Chief Justice Subba Roa as he then was, after referring to the American Jurisprudence and quoting Blackstonian theory, observed that our Constitution does not expressly or by necessary implication speak against the Doctrine of Prospective Overruling and further observed that the Doctrine of Prospective Overruling can be resorted only by the Apex Court, being the highest Court of the Country, to meet ends of justice in certain circumstances. It was specifically observed that the Apex Court alone has the power to declare that a judgment would operate prospectively for the reason that it alone has the ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:10:- constitutional jurisdiction to declare law binding on all the courts in India. The nature of power under Article 141 of the Constitution as is referred under the Golak Nath's case (supra) was in such circumstance under which an issue that arose for consideration was violative of the fundamental right in the context of legislation made by the States for agrarian revolution. To protect such legislations which were made between 1950 and 1967, the Apex Court resorted to rely upon American Doctrine of Prospective Overruling to save such enactments.
11. The law declared as referred under Article 141 has to be gathered from the context of the judgement in a case decided by the Apex Court. It is well settled propositions of law that if a decision which was proceeded without consideration of an issue, that decision cannot be treated as a precedent. The same proposition would apply in matters of declaration of law under Article 141. ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:11:- If an issue has not arisen as to the prospective natue of application of statutory provisions, then it can be safely concluded that such decision of the Apex Court is not a declaration of law under Article 141 of the Constitution. The Apex Court having not decided applicability of UGC Regulation as a question of law, the same could not be treated as a declaration of law under Article 141. Thus, application of the decision of Full Bench ordered to be operated prospectively can therefore, be understood only based on a power exercised by the Apex Court under Article 142 to do complete justice between parties who were before the Apex Court. Such power was exercised to meet the situation which parties faced consequent upon the judgment by the Full Bench. Therefore, I am of the considered view that the judgment of the Apex Court as relied upon by the petitioners cannot lend any support to the argument raised by the petitioners that the UGC ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:12:- Reglations came into the State only from the date of the Full Bench on 23.2.2016.
12. The next point is whether the judgment of the Full Bench has to be treated as a precedent sub silentio or not. Full Bench in fact placed reliance on Kalyani Mathivanan's case (supra). The Full Bench noting that Kalyani Mathivanan's case was relating to applicability of the UGC Regulations in the State of Tamil Nadu wherein the State Government had not adopted the UGC Regulations, held that once UGC Regulations are adopted, anything in conflict with the Central law would be void and inoperative. This was after taking note of Entry 66, List I of Seventh Schedule read with Entry 25, List III Concurrent List of the Constitution in the light of Article 254 of the Constitution. In that context, I cannot hold that Full Bench decision is a precedent sub silentio. The learned counsel for the petitioner, placing reliance on clause 7.2.0 of the UGC Regulations, ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:13:- would submit that the UGC itself was of the view that the Regulation in regard to appointment of Pro-Vice-Chancellor cannot be enforced without an amendment to the Act and Statute. He further referred to Kalyani Mathivanan's case wherein in the concluding paragraph, the Apex Court observed that once the State Government adopts UGC Regulations, the State Legislation will have to amend the Act/Statute appropriately. There was no occasion for the Apex Court in Kalyani Mathivanan's case to consider the repugnancy between Central and State Laws. The repugnancy test is well defined in Article 254 of the Constitution which states that, if both laws are inconsistent and irreconciliable and that cannot stand to operate at the same time, the Central law will prevail in the light of Article 254 as well as based on the source of legislation as referred in Entry 66 in List I read with Entry 25 in List III of the Constitution. In view of the fact that statutory provisions in the ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:14:- Kannur University Act in regard to appointment of Pro-Vice-Chancellor and his term of office is repugnant to the Central Law, it has to be declared that such provisions are void under Article 254 of the Constitution. The directions in the UGC Regulations and Kalyani Mathivanan's case (supra) therefore, could not have any impact in this matter when it is viewed from the angle of constitutional provisions as above. Since this was not an issue arisen for consideration in Kalyani Mathivanan's case, I am of the view that the Full Bench judgment cannot be treated as a precedent sub silentio.
13. Next point raised by the learned counsel for the petitioner is that the decision of the State Government to implement UGC Regulations was not placed before the Cabinet and therefore, it cannot be said that the Government of Kerala had approved UGC Regulations to be implemented in the State. State was a party to the proceedings in which the Full Bench had rendered the judgment. ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:15:- The petitioner placed reliance on the Rules of Business framed by the Government of Kerala in exercise of the powers conferred under clauses 2 and 3 of Article 166 of the Constitution of India. If there was any violation of the Rules of Business, that will not render such decision as void. Rules of Business are mere guidelines and procedure for allocation of business of the Government. The stand of the Government is that it had adopted UGC Regulations with effect from 18/9/2010. Therefore, this argument has to be repelled.
14. The next point to be considered is in regard to the validity of the order passed by the Chancellor. The Chancellor had not ordered the petitioner to vacate the office. The Chancellor passed the order acting on a complaint made by the seventh respondent Sudheer Chandran K.P. This Court directed the Chancellor to consider the complaint in regard to the continuation of the ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:16:- petitioner as Pro-Vice-Chancellor after the expiry of the term of the Vice-Chancellor. The Chancellor noting that the Full Bench having declared that UGC Regulations have come into force with effect from 18.9.2010, the Pro-Vice-Chancellor can hold office till the Vice-Chancellor holds the office, he deemed to have vacated the office when Vice- Chancellor demited the office on expiry of his tenure of appointment.
15. This Court in W.P.(C).No.19796/2018 after referring to the UGC Regulation observed in para.12 as follows:
"12. On an analysis of the UGC Regulations, 2010, in regard to appointment of Pro-Vice-Chancellor, it is clear that the appointment is a pleasure appointment to be made by the Executive Council on the recommendation of the Vice Chancellor. Both Vice Chancellor and Pro-Vice-Chancellor are having fixed period of office, that is the intention of the UGC Regulations, 2010. The intention is very clear; there shall be no stalemate or deadlock in administration on account of any difference of opinion between ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:17:- the Vice Chancellor and the Pro-Vice- Chancellor. The Pro-Vice-Chancellor's duty therefore, is to work in tandem with the Vice Chancellor. The normal tenure of Pro-Vice- Chancellor to hold office is for a period which is co-terminus with that of the Vice Chancellor. But that does not mean that the Pro-Vice-Chancellor cannot continue in the office if the Vice Chancellor demits the office prior to his fixed period. Clause 7.2.0 of the UGC Regulations, 2010, has two parts; one refers to the period and; the other refers to the prerogative nature of the appointment. The second part gives the clear intention behind the Regulation by the use of the adjective 'new' before the Pro-Vice- Chancellor stating it to be a pleasure appointment. The continuation of any incumbent in the office would depend upon the discretion of the incoming Vice Chancellor, that means, any Pro-Vice-Chancellor cannot, as a matter of right, claim the office for a fixed period; it is also left to the discretion of the Vice Chancellor. That be the case, the only person, who can decide whether the petitioner can continue in the office is the Vice Chancellor. The phrase 'co-terminus', therefore, has to be understood in the context of prerogative to ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:18:- be exercised by the Vice Chancellor. Being a pleasure appointment, the continuation of the Pro-Vice-Chancellor in the office therefore, depends upon the prerogative to be exercised by the Vice Chancellor. Thus, I am of the considered view that Pro-Vice-Chancellor cannot be ordered to vacate the office on account of demitting office by the Vice Chancellor before his term. The continuation of Pro-Vice-Chancellor in the office after resignation of Vice Chancellor depends upon the pleasure of the incoming Vice Chancellor."
The observation of this Court was that the Pro- Vice-Chancellor can continue to hold the office for the period for which he was appointed even if the Vice-Chancellor demits the office before his tenure. However, his continuation would depend upon the prerogative to be exercised by the incoming Vice-Chancellor as it is a pleasure appointment. In this case, the incumbent Vice- Chancellor in the office had appointed the sixth respondent as the new Pro-Vice-Chancellor. Therefore, it is clear that the new Vice-Chancellor ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:19:- had also consciously exercised prerogative to appoint the new Pro-Vice-Chancellor in the place of the petitioner. In that context, the petitioner can no longer continue in the office as the Pro- Vice-Chancellor. Thus, the writ petition is only to be dismissed, accordingly, it is dismissed. No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms ========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:20:- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE KERALA GAZETTE EXTRA ORDINARY NO.1716 DATED 16/7/2015.
EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 25/8/2015 AND PUBLISHED IN THE KERALA GAZETTE EXTRA ORDINARY NO. 1992.
EXHIBIT P3 TRUE COPY OF THE REGISTRAR, KANNUR UNIVERSITY ISSUED NOTIFICATION OF THE INFORMATION OF ALL CONCERNED THE DATE OF ASSUMPTION OF CHARGE ON 13/9/2015 A COPY OF THE NOTIFICATION.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTION OF THE U.G.C. REGULATIONS 2010.
EXHIBIT P5 A TRUE COPY OF THE G.O(P) NO.392/2010/H.EDN. DATED 10/12/2010 AND DECIDED TO APPROVE U.G.C REGULATIONS 2010 SUBJECT TO THE CONDITION THAT THE CONCERNED.
EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 27-01- 2017 OF THE HONOURABLE SUPREME COURT IN SL.P.(C) NO. 1559/2017.
EXHIBIT P7 TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE SYNDICATE.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 5/12/2017 IN W.P(C) BPO.4851 OF 2017.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 5/2/2018 OF THE CHANCELLOR.
========================== W.P.(C).No.11058/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~~ 28th day of September, 2018 -:21:- EXHIBIT P10 TRUE COPY OF THE ORDER DATED 26-03-2018 IN FILE NO.GS3.1238/2013 OF THE CHANCELLOR.
EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER DATED 5/3/2018 IN SLP(C) NO.5611/2018. EXHIBIT P12: TRUE COPY OF MINUTES OF THE 3/2018 MEETING OF THE SYNDICATE HELD ON 27-03-2018 APPOINTING PROF. P.T. RAVEENDRAN AS THE P.V.C EXHIBIT P13: TRUE COPY OF THE APPOINTMENT ORDER OF THE ADDITIONAL 6TH RESPONDENT VIDE ORDER AD.A2/5742/2018 DATED 27-03- 2018 RESPONDENTS EXTS :
EXHIBIT R5(A). A TRUE COPY OF THE COMMUNICATION DATED 27.3.2018 ISSUED BY THE VICE CHANCELLOR TO THE OFFICE OF THE CHANCELLOR EXHIBIT R6(A TRUE COPY OF THE ORDER DATED 19.10.2011 ISSUED BY THE KANNUR UNIVERSITY, WHEREBY THE UGC REGULATIONS, 2010 HAVE BEEN IMPLEMENTED IN THE UNIVERSITY.
EXHIBIT R6(B) TRUE COPY OF THE RELEVANT PART OF THE UGC REGULATIONS 2010 WHICH PERTAIN TO THE APPOINTMENT OF VICE CHANCELLORS AND PRO VICE CHANCELLORS.
EXHIBIT R6(C) TRUE COPY OF ORDER NO.AD.A2/5742/2018 DATED 27.03.2018 ISSUED BY THE 5TH RESPONDENT KANNUR UNIVERSITY APPOINTING THE 6TH RESPONDENT AS PRO VICE CHANCELLOR.
EXHIBIT R6(D) TRUE COPY OF ORDER NO. A CAD B3/327/2006 DATED 27.03.2018 ISSUED BY THE 5TH RESPONDENT KANNUR UNIVERSITY WHEREBY THE 6TH RESPONDENT HAS BEEN RELIEVED FROM DUTY TO TAKE UP THE POST OF PRO VICE CHANCELLOR.
\\True copy// PS to Judge ms