Kerala High Court
Vijayakumar.V vs The Kannur University on 22 March, 2022
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
WA NO. 1530 OF 2021
[AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE IN
WP(C)NO.18406/2021 DATED 09.09.2021]
APPELLANTS/PETITIONERS:
1 VIJAYAKUMAR V., AGED 41 YEARS,
S/O. KRISHNAN V., MEMBER, SENATE,
KANNUR UNIVERSITY, THAVAKKARA,
CIVIL STATION P.O., KANNUR-670 002,
RESIDING AT NAYIKUTTIPARA HOUSE,
PULLUR P.O., ANANDHASHRAM VIA,
KASARGOD DISTRICT.
2 DR.SHINO P. JOSE, AGED 40 YEARS,
S/O. JOSE, MEMBER,
ACADEMIC COUNCIL (MANAGEMENT STUDIES),
KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O.,
KANNUR-670 002, RESIDING AT PALAKKAL HOUSE,
RAJAPURAM P.O., KASARGOD DISTRICT.
BY ADVS. SRI. GEORGE POONTHOTTAM (SR.)
SMT. NISHA GEORGE
RESPONDENTS/RESPONDENTS:
1 THE KANNUR UNIVERSITY,
REPRESENTED BY THE REGISTRAR, THAVAKKARA,
CIVIL STATION P.O., KANNUR-670 002.
2 THE VICE CHANCELLOR,
KANNUR UNIVERSITY, THAVAKKARA ,
CIVIL STATION P.O.,
KANNUR-670 002.
3 THE CHANCELLOR,
KANNUR UNIVERSITY, KERALA RAJ BHAVAN,
KERALA GOVERNOR'S CAMP P.O,
THIRUVANANTHAPURAM-695 009,
E-MAIL:[email protected]
WA.1530/2021 -:2:-
4 THE SYNDICATE,
KANNUR UNIVERSITY, THAVAKKARA,
CIVIL STATION P.O.,
KANNUR-670 002,
REPRESENTED BY THE REGISTRAR.
5 MAHESH T., (CHAIRPERSON),
ASSOCIATE PROFESSOR,
DEPARTMENT OF COMMERCE, NAM COLLEGE,
KALLIKKANDY, KANNUR DISTRICT-670 693.
6 SANTHOSH C.,
ASSOCIATE PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVERNMENT BRENNEN COLLEGE,
THALASSERY,
KANNUR DISTRICT-670 101.
7 HARIDAS K.V.,
DEPUTY MANAGING DIRECTOR, SBI, (RTD),
ELAMBACHI P.O., THRIKKARIPUR,
KASARGOD DISTRICT-671 310.
8 SOJI M. SEBASTIAN,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
E.K.NAYANAR MEMORIAL GOVERNMENT COLLEGE,
ELERITHATTU, KASARGOD DISTRICT-671 314.
9 SEENA P.C.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVERNMENT COLLEGE, MANANTHAWADY,
WAYANAD DISTRICT-670 645.
10 JINCE JOSEPH,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
E.K.NAYANAR MEMORIAL GOVERNMENT COLLEGE,
ELERITHATTU, KASARGOD DISTRICT-671 314.
11 AMUTHA.R.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
SREE NARAYANA COLLEGE,
THOTTADA P.O.,
KANNUR DISTRICT-670 007.
WA.1530/2021 -:3:-
12 ANIL CHANDRAN S.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
P.R.N.S.S.COLLEGE,
MATTANUR, KANNUR DISTRICT-670 702.
13 GEETHA C.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
MAHATMAGANDHI COLLEGE, IRITTY,
KANNUR DISTRICT-670 703.
14 MIDHUN KRISHNAN P.B.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
P.R.N.S.S.COLLEGE,
MATTANUR,
KANNUR DISTRICT-670 702.
15 BABU P.V., (CHAIRPERSON, P.G.BOARD),
ASSISTANT PROFESSOR, DEPARTMENT OF COMMERCE,
GOVERNMENT BRENNEN COLLEGE, THALASSERY,
KANNUR DISTRICT-670 101.
16 SAJITHKUMAR P.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVINDA PAI MEMORIAL GOVERNMENT COLLEGE,
MANJESHWAR, KASARGOD DISTRICT-671 323.
17 RAVIDRAN K.V.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVERNMENT BRENNEN COLLEGE,
THALASSERY,
KANNUR DISTRICT-670 101.
18 DR.K.ABDUL SALAM,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVERNMENT COLLEGE, MANANTHAWADY,
WAYANAD DISTRICT-670 645.
19 DR.SAJITH M.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVERNMENT COLLEGE, MANANTHAWADY,
WAYANAD DISTRICT-670 645.
WA.1530/2021 -:4:-
20 JAYANTHY K.C.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
P.R.N.S.S.COLLEGE, MATTANNUR,
KANNUR DISTRICT-670 702.
21 BHUPESH T.K.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
SREE NARAYANA COLLEGE, THOTTADA P.O.,
KANNUR DISTRICT-670 007.
22 REJITHA P.R.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
SREE NARAYANA COLLEGE, THOTTADA P.O.,
KANNUR DISTRICT-670 007.
23 DR.SREEJESH S.,
ASSISTANT PROFESSOR,
DEPARTMENT OF MARKETING MANAGEMENT,
INDIAN INSTITUTE OF MANAGEMENT,
IIMK CAMPUS P.O., IIM ROAD, KUNNAMANGALAM,
KOZHIKKODE DISTRICT-673570.
24 SHAJI E.V.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
P.R.N.S.S. COLLEGE, MATTANUR,
KANNUR DISTRICT-670702.
25 SUMERSH P.C.,
(CHAIRPERSON), ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
SREE NARAYANA COLLEGE, THOTTADA P.O.,
KANNUR DISTRICT-670 007.
26 DR.REHIN K.R.,
ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
MAHATMA GANDHI COLLEGE, IRITTY,
KANNUR DISTRICT-670703.
27 GREESHMA A.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
MAHATMA GANDHI COLLEGE, IRITTY,
KANNUR DISTRICT-670703.
WA.1530/2021 -:5:-
28 BINDU K.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVERNMENT BRENNEN COLLEGE,
THALASSERY,
KANNUR DISTRICT-670 101.
29 INDU P.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVERNMENT BRENNEN COLLEGE,
THALASSERY,
KANNUR DISTRICT-670 101.
30 DR. SHACHEENDRAN V.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVINDA PAI MEMORIAL GOVERNMENT COLLEGE,
MANJESHWAR, KASARGOD DISTRCT-671 323.
31 ARUN K.V.,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
SREE NARAYANA COLLEGE,
THOTTADA P.O.,
KANNUR DISTRICT-670 007.
32 DR.VIGI V.NAIR,
ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
PAYYANNUR COLLEGE, PAYYANNUR,
KANNUR DISTRICT-670 307.
33 SHAMNA K.,
ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
STEMS COLLEGE, MORAZHA,
KANNUR DISTRICT-670 331.
34 SASHITHA T.,
ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
TALIPARAMBA ARTS & SCIENCE COLLEGE,
KANHIRANGAD,
KANNUR DISTRICT-670 142.
WA.1530/2021 -:6:-
35 DR.U.FAISAL,
(CHAIRPERSON, P.G BOARD)
PROFESSOR, DEPARTMENT OF MANAGEMENT STUDIES,
DR. JANAKI AMMA CAMPUS, PALAYAD, THALASSERY,
KANNUR DISTRICT-670 101.
36 ANISH KUMAR K.P.,
ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
DR.JANAKI AMMA CAMPUS, PALAYAD,
THALASSERY, KANNUR DISTRICT-670 101.
37 DR. KRISHNA PRIYA,
ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
DR.JANAKI AMMA CAMPUS, PALAYAD,
THALASSERY,
KANNUR DISTRICT-670 101.
38 KARTHIKEYAN P.,
ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
DR.JANAKI AMMA CAMPUS, PALAYAD,
THALASSERY,
KANNUR DISTRICT-670 101.
39 DR.M.V.SASIKUMAR,
DIRECTOR, INSTITUTE OF CO-OPERATIVE MANAGEMENT,
PARASSINIKKADAVU, KANNUR DISTRICT-670 563.
40 NISA JAMES,
ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
DR.JANAKI AMMA CAMPUS, PALAYAD,
THALASSERY,
KANNUR DISTRICT-670 101.
41 JASEELA THANIKKAD,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVERNMENT COLLEGE, MANANTHAWADY,
WAYANAD DISTRICT-670 645.
42 SUMI VIJAYAN,
ASSISTANT PROFESSOR,
DEPARTMENT OF COMMERCE,
GOVERNMENT COLLEGE,
KASARGOD DISTRICT-671 121.
WA.1530/2021 -:7:-
43 MEERA S., ASSISTANT PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
DR.JANAKI AMMA CAMPUS, PALAYAD,
THALASSERY, KANNUR DISTRICT-670 101.
44 DR.SUJESH C.P., ASSOCIATE PROFESSOR,
DEPARTMENT OF MANAGEMENT STUDIES,
RSM SNDP YOGAM COLLEGE, KOYILANDY,
KOZHIKKODE DISTRICT-673 305.
R1 BY ADV. SRI. I. V. PRAMOD,
SC FOR KANNUR UNIVERSITY
R3 BY ADV. SRI. K. JAJU BABU (SENIOR)
SMT. M.U.VIJAYALAKSHMI
R15 & R25 BY ADV. SRI. B. VINOD
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.1530/2021 -:8:-
JUDGMENT
S. Manikumar, CJ Instant writ appeal is filed against the judgment passed in W.P. (C) No.18406 of 2021 dated 9.9.2021, by which, a learned single Judge of this Court declined to grant the reliefs sought for by the writ petitioners/appellants and dismissed the writ petition.
2. The reliefs sought for by the writ petitioners before the writ court are, (i) to quash Exhibit-P1 notification dated 11.08.2021 issued by the Kannur University, reconstituting 71 Boards of Studies and constituting new Board of Studies, in Biochemistry and Bioinformatics (U.G.), by appointment under Section 25 (clause xvi) of Chapter IV of the Kannur University Act, 1996, on the basis of Syndicate resolution No.2020.333 dated 10.08.2020; (ii) to declare that the nomination of members of the Board of Studies of respondent University, other than the Chancellor, as required under Section 30 of the Kannur University Act, 1996 and in Chapter XIII of the Statutes is opposed to law, and therefore, bad in the eye of law; and (iii) to declare that nomination of teachers not approved by the 1st respondent University, as members of WA.1530/2021 -:9:- Board of Studies, is opposed to law and they are not entitled to be included in the respective Board of Studies.
3. At the outset, it is made clear that even though Exhibit-P1 notification of Kannur University dated 11.08.2021 is challenged, in the University, there are 44 members of the Faculty of Commerce and Management Studies, in the Board of Studies and hence, they alone are impleaded as respondents in the writ petition. Therefore, we are of the opinion that, since the affected persons in respect of other faculties are not made parties in the writ petition, we propose to confine our consideration and adjudicate the matter in respect of the Faculty Members of Commerce and Management Studies.
4. Brief facts leading to the filing of the instant appeal are that; appellants are Assistant Professors of Nehru Arts and Science College, Kanhangad and St. Pius X. College, Rajapuram, Kasaragod, which are aided colleges affiliated to Kannur University, respondent No.1. Appellant No.1 is an elected member in the Senate of the 1 st respondent University and appellant No.2 is also an elected member in the academic council of management studies of the University. WA.1530/2021 -:10:-
5. Appellants have contended that being members of the authorities of respondent University, they are equally involved and interested in the proper administration of the University, including its functions, within the framework of law. Their duty is to challenge the illegalities for rectification of the same, in the functioning of the University, when such illegality is patent in character. Hence, challenging Exhibit-P1 order dated 11.08.2021, by which, 71 Board of Studies of Kannur University was reconstituted, the appellants/ petitioners filed W.P.(C) No.18406 of 2021.
6. In 2018, vide Exhibit-P2 order, the Board of Studies of 70 Boards were reconstituted, strictly as mandated under Statute 4, Chapter VIII of the Kannur University First Statutes, 1998 r/w. Sec. 30 of the Kannur University Act, 1996, for a period of two years. The method for reconstitution of the Board of Studies is specifically stated in the Kannur University Act, 1996 and Kannur University First Statutes, 1998, and that the same is required to be reconstituted, as constituted in Exhibit-P2. According to the appellants, any other mode resorted can only be construed as an action contrary to law. WA.1530/2021 -:11:-
7. Referring to Section 30 of the Kannur University Act, 1996, which speaks about Boards of Studies, appellants contended that the constitution, powers and functions of the Board of studies shall be prescribed by the statutes. Therefore, what is relevant in the matter of constitution for the Board of Studies is Chapter XIII of the Kannur University First Statutes, 1998.
8. Appellants have also contended that the 7th respondent, who is included as a member of faculty of Commerce and Management Studies, is a retired Deputy Managing Director of State Bank of India. The 27th respondent, who is included in the Management Studies (UG), is an Assistant Professor in the Department of Commerce. So also, is the case of respondents 28, 29 and 30. Respondent No.33 is not a faculty member of an aided or Government college. Similar is the case of respondent No.35, who is included in the Board of Studies of UG and PG Management Studies. Respondent No.39, by address itself, is the Director of Institute of Co-operative Management.
9. According to the appellants, from the above, it could be deduced that the persons included in the Board of Studies of different WA.1530/2021 -:12:- specialties are included as a part of accommodation and not to achieve the purpose for which, the Board of Studies is constituted. In such circumstances, it is contended that the constitution of the Board of Studies by the Vice Chancellor, without the members being nominated by the Chancellor is a patent illegality, and therefore, the notification issued, without following the said requirement, is liable to be set aside.
10. Considering the submissions advanced by both sides, statutory provisions, regulations, decisions in Babaji Kondaji Garad v. Nasik Merchants Co-op. Bank Ltd., reported in AIR 1984 SC 192, Veena Kumari Tandon v. Neelam Bhalla and Others reported in (2007) 12 SCC 764, Jagdish Prasad Sharma and Others v. State of Bihar and Others reported in (2013) 8 SCC 633, Raju K. Thomas and Another v. Union of India reported in ILR 2017 (3) Ker. 622, and Joseph v. Bar Council of Kerala reported in 2017 (4) KLT 514, writ court held that the essence of the judgments cited supra, leaves no manner of doubt that the constitution of Board of Studies do not lack any jurisdictional error warranting any interference under Article 226 of the Constitution of India.
WA.1530/2021 -:13:-
11. Writ court further observed in the impugned judgment that in paragraphs 57 and 64 of the decision in Jagdish Prasad Sharma (supra), it was held that the UGC Regulations would not tantamount to amending of the statutes. Thus, it was held that the regulation emphatically relied on behalf of the petitioners cannot be read in isolation by ignoring the provisions of clause (xvi) of Section 25 of the 1996 Act. Being aggrieved by the above, appellants have filed this writ appeal on the following grounds:
A. Learned single Judge failed to consider Section 30(2) of the Kannur University Act, 1996, which specifically provides that the constitution, powers and functions of the Board of Studies shall be prescribed in the Statutes. It is through this express provision in the plenary legislation, the constitution of the Board of Studies is provided in the Statutes. Thus, Statute 4, Chapter XIII of the Kannur University First Statutes, 1998, is a special provision pertaining to the constitution of the Board of Studies as provided under the Kannur University Act, 1996. When there is a special provision pertaining to the constitution of the Board of Studies, Kannur University cannot resort to any other manner for the same. The said procedure was followed on all WA.1530/2021 -:14:- instances as can be seen from Exhibit-P2. However, the University, in order to include the persons of their choice, who are ineligible, has now grabbed the power conferred on the Chancellor.
B. Learned single Judge has rendered the impugned judgment totally ignoring Section 30 and, therefore, impugned judgment is totally erroneous. In the impugned judgment, writ court held that Section 25(xvi) of the Act will have an overriding effect over Statute 4, Chapter XIII of the Kannur University First Statutes, 1998, and therefore, the reconstitution of the Board of Studies has no jurisdictional error.
C. Learned single Judge has arrived on the abovesaid finding, without considering Section 30(2) of the Kannur University Act, 1996, which provides that the constitution of the Board of Studies shall be prescribed by the Statutes. Thus, the procedure provided under the Statutes is in accordance with the stipulations in the Act. That being so, there is no question of Statute 4, Chapter XIII of the Kannur University First Statutes being overridden by Section 25(xvi) of the Act. Learned single Judge has completely failed to consider the same while passing the impugned judgment.
D. Learned single Judge has erred in holding that Ext.P1 suffers from no legal infirmity. The illegality assailed WA.1530/2021 -:15:- against Ext.P1 is that nomination of the Board of Studies as provided for in Statute 4 of Chapter XIII of the Kannur University First Statutes, 1998 is the power of the Chancellor, in nomination of the Member of Board of Studies. Whereas, Clause (xvi) of Section 25 of the Kannur University Act of 1996 provides for the appointment to members of the Boards of Studies.
E. It is further contended that nomination is absolutely different from appointment. The process of nomination can be seen as the process of finding the right person fit for the respective post by weeding out the unqualified and undeserved. The process of appointment is what happens after the persons are nominated by the Chancellor. Hence, the illegality assailed against Exhibit-P1 notification is bypassing of the process of nomination which comes under the powers of the Chancellor. The learned Single Judge totally failed to consider this aspect while passing the impugned judgment.
F. Learned single Judge has failed to consider that the reconstitution as per Ext-P1 is in direct contravention to the provisions of the Kannur University First Statutes, 1998. As per Statute 5, Chapter XIII of the Kannur University First Statutes, 1998, no person shall be eligible to be appointed as a Member of Board WA.1530/2021 -:16:- unless he is a teacher of, or has special knowledge in the subject or one of the subjects with which the Board is concerned. As defined under the Act, teachers whose appointments, approved by the University are treated as teachers. It can only mean, teachers in Government colleges and aided colleges alone can be treated as teachers as per the Act and teachers in the unaided and private colleges cannot be treated as teachers, as there are no procedures in respect of approval of their appointment made by the University. Therefore, teachers appointed in self-financing educational institutions are outside the purview of teachers coming under the definition 'Teacher' of the Kannur University.
G. It is further contended that the persons appointed as per Ext-P1 even includes retired bank employees, teachers in private and unaided institutions etc. Though the appellants have given specific details of these ineligible persons and arrayed them as party respondents, the learned single Judge did not consider the said fact while dismissing the Writ petition. The patent illegality in the constitution of the Board of Studies is totally evident and the same is vitiated by the political considerations.
H. Learned single Judge has erred in finding that the appellants, being elected senators of the University, WA.1530/2021 -:17:- cannot espouse the grievance on the basis of the alleged cause of action challenging the action of the University as they form part of the University. There is no bar under the Act or Statutes for the appellants to file a case against the University. Appellants are challenging a patent illegality done by the University grabbing the power of the Chancellor and inducting ineligible persons to the Board of Studies. It is pertinent to note that, there exists no legal ouster on pointing out any act of illegality which goes against the very basic statute. Instead, by operation of the impugned judgment, such an illegality was affirmed.
I. It is further contended that the respondent University sought to justify the validity of Ext-P1 placing reliance on Clause (xvi) of Section 25 of the Kannur University Act of 1996. But, as it is entirely different from the illegality assailed through the writ petition, the case put forth by the first respondent is untenable. Thus, the entire submissions made by the first respondent which got upheld & confirmed in the impugned judgment must fall down as- according to the principle enshrined in the legal maxim - Sublato fundamento cadit opus, i.e. once the foundation itself is removed, the edifice of the action has to fall. Writ court failed to consider this aspect while passing the impugned judgment.WA.1530/2021 -:18:-
J. It is further contended that the intention of Legislature in drafting the statute ought to have been kept in mind while considering Ext.P1 and its illegality. Section 30 of the Act, 1996 specifically provides that the constitution of the Board of Studies shall be as provided under the Statutes. Besides that Section 25 is not one that has a non-obstante clause. Thus, the legislature never intended the Syndicate to override or completely over-power the powers of the Chancellor.
K. As aforementioned, appointment stands absolutely different from nomination. Thus, Ext.P1 goes against the principle enshrined in the legal maxim - Expressio unius est exclusio alterius, i.e. if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. Writ court failed to consider this aspect while passing the impugned judgment.
L. It is further contended that the entire scope and activities to be conducted by the Board of Studies as mentioned in Statute 7 in Chapter XIII of the Statutes, 1998, are prominent activities having very much importance directly on all matters of the students and faculties are provided for. Thus, constitution of the same cannot be considered as a formality, without WA.1530/2021 -:19:- adhering to the strict requirements of law. Any deviation in its manner and content will defeat the academic purposes that are sought to be achieved through the formation of such authorities. Most of the party respondents are ineligible and are inducted to the Board of Studies, based on political considerations. Writ court totally failed to consider the said aspect while passing the impugned judgment and has instead, affirmed the illegalities in Exhibit-P1 notification.
12. Refuting the averments made in the appeal, the Chancellor, Kannur University, respondent No.3, has filed a detailed statement dated 10.12.2021, wherein it is contended that, when a person is nominated to a position, it means choosing formally to hold that position. At the same time, the word 'appointment' means exercising the right or power to designate a person for a given position. Only the person or body that has the authority to appoint someone can do so.
13. Going by Section 30 of the Kannur University Act, 1996, read with Statute 4, Chapter XIII - Board of Studies, of the Kannur University First Statutes, 1998, the Chairman and Members of the Boards of Studies shall be nominated by the Chancellor and the WA.1530/2021 -:20:- minimum and maximum number of its members is also prescribed by the Statute. However, the power to appoint the members to the Board of Studies is vested with the Syndicate, under Section 25(xvi), which is subject to the provision of the Act and First Statutes, as stated earlier.
14. According to the Chancellor, Kannur University, Thiruvananthapuram, 3rd respondent, harmonious reading of Section 30(2) of the Act, 1996 r/w. Statutes 1 to 5 of Chapter XIII of the First Statutes and Section 25(xvi) makes it clear that the Chairman and Members of the Board of Studies in conformity with the numbers prescribed in the Statute shall be nominated by the Chancellor and the power of appointment of the members vests with the Syndicate.
15. The 3rd respondent also contended that in the past, the Chancellor had reconstituted the Boards of Studies on receipt of proposals from the Vice Chancellor, including the present incumbent. The exercise was carried out under the provisions as detailed above.
16. That apart, the 15th respondent for himself and on behalf of respondent No. 25, who are board members of the Faculty of WA.1530/2021 -:21:- Commerce and Management Studies, has filed a counter affidavit dated 22.01.2022, supporting and justifying their appointments, as also the Faculty Members of Commerce and Management Studies.
17. Heard Mr. George Poonthottam, learned Senior Counsel appearing for the appellants, Mr. Ranjith Thampan, learned Senior Counsel appearing for Kannur University, Mr. K. Jaju Babu, learned Senior Counsel appearing for respondent No.3 and Mr. B. Vinod, learned counsel for respondents 15 and 25 respectively and perused the pleadings and material on record.
18. Before adverting to the rival submissions, let us consider the relevant statutory provisions.
19. Section 7 under Chapter III of the Kannur University Act, 1996 speaks about the Chancellor and it reads as under:
"7. The Chancellor :-
(1) The Governor of Kerala shall, by virtue of his office, be the Chancellor of the University.
(2) The Chancellor shall be the head of the University and shall, when present, preside at any convocation of the University.WA.1530/2021 -:22:-
(3) The Chancellor may, by order in writing, annul any proceeding of any of the authorities of the University which is not in conformity with this Act and the Statutes, the Ordinances, the Regulations, the rules or the Bye-laws:
Provided that, before making any such order, the Chancellor shall call upon such authority to show cause why such an order should not be made and consider the cause, if any, shown by such authority within a reasonable time.
(4) The Chancellor shall, when an emergency arises, have the right to suspend or dismiss any of the authorities of the University and to take measures for the exercise of the powers and the performance of the functions of such authority till the suspension is revoked, or, as the case may be, a new authority is constituted:
Provided that an order suspending or dismissing any authority shall specify the reasons for taking such action. (5) Every proposal for the conferment of an honorary degree shall be subject to confirmation by the Chancellor. (6) An appeal shall lie to the Chancellor against any order of dismissal passed by the Syndicate or the Vice-Chancellor. (7) An appeal under sub-section (6) shall be filed within sixty days from the date of service of the order of dismissal on the person concerned.
(8) The Chancellor may, before passing any order on an appeal under sub-section (6), refer the matter for advice to a Tribunal appointed by him for the purpose.WA.1530/2021 -:23:-
(9) The Chancellor shall have power to remove the Vice Chancellor or the Pro-Vice-Chancellor from office by an order in writing on charges of misappropriation or mismanagement of funds or misbehavior:
Provided that an order of removal under this sub- section shall not be passed unless the charges are proved by an enquiry conducted by a person who is or has been a Judge of the High Court or the Supreme Court appointed by the Chancellor for the purpose:
Provided further that the Vice-Chancellor or the Pro- Vice Chancellor shall not be removed under this sub-section unless he has been given a reasonable opportunity of showing cause and of being heard against the action proposed to be taken against him.
(10) The Chancellor shall have power to appoint such officers and employees of the University as may be necessary for ensuring the initial functioning of the University:
Provided that the power under this sub-section shall not be exercised by the Chancellor after nomination of the Syndicate under Section 95.
(11) The Chancellor shall have such other powers as may be conferred on him by this Act or the Statutes."
20. Section 23 of the Kannur University Act, 1996 speaks about the Syndicate and it reads as under:
"23. The Syndicate - The Syndicate shall be the Chief Executive body of the University and shall consist of the following members, namely:-
Ex-Officio members
(a) The Vice Chancellor WA.1530/2021 -:24:-
(b) The Pro- Vice Chancellor
(c) The Secretary to Government, Higher Education Department or an Officer not below the rank of a Joint Secretary in the Higher Education Department, nominated by him;
(d) The Secretary to Government, Finance Department or an officer not below the rank of a Joint Secretary, nominated by him.
(e) The Secretary to Government, Information Technology Department or an Officer not below the rank of a Joint Secretary, nominated by him;
(f) The Director of Collegiate Education.
Other members
(a) Two eminent Educationalist or Scientists nominated by the Government;
(b) Three Deans of Faculties nominated by the Chancellor, by rotation;
(c) Two Principals of Colleges affiliated to the University, nominated by the Government;
(d) Three teachers nominated by the Government of whom one shall be from the University Department and two from the affiliated colleges of whom one shall be a member of a Scheduled Castes / Scheduled Tribes; ;
(e) not more than six experts nominated by the Government, from the field of Higher Education of whom one shall be a woman.
Provided that the members of the Syndicate nominated by the Chancellor or the Government under the heading "Other Members" shall hold their office during the pleasure of the Chancellor, or the Government, as the case may be.
(f) the member nominated by the Executive Council of the Kerala State Higher Education Council from among its members.
WA.1530/2021 -:25:-
(g) one member elected by the Senate from among the members in item (xi) under the heading 'Elected members' in section 19. "
21. Section 25 of the Act, 1996 deals with Powers of Syndicate and it reads as under:
"25. Powers of Syndicate- Subject to the provisions of this Act and the Statutes, the executive powers of the University, including the general superintendence and control over the institutions of the University, shall be vested in the Syndicate and subject likewise the Syndicate shall have the following powers, namely:-
(i) to affiliate institutions in accordance with the terms and conditions of such affiliation prescribed in this Act and the Statutes;
(ii) to make Statutes and Ordinances and to amend or repeal the same;
(iii) [x x x]
(iv) to hold, control and administer the properties and funds of the University;
(v) to direct the form, custody and use of the common seal of the University;
(vi) to arrange for and direct the inspection of campuses, colleges, hostels and other institutions and to constitute a Board of Inspection for that purpose;
(vii) to establish, maintain and manage colleges and institutes of research and other institutions of higher learning as it may from time to time, deem necessary;
(viii) to appoint teachers and other employees of the University and prescribe their duties;WA.1530/2021 -:26:-
(ix) to create administrative, ministerial and other necessary posts;
Provided that no post shall be created by the Syndicate without the prior approval of the Government, if creation of such post involves expenditure in excess of the budgetary provisions;
(x) to suspend, discharge, dismiss or otherwise take any disciplinary action against teachers and other employees of the University after giving them reasonable opportunity to defend their position.
(xi) with the previous sanction of the Government, to fix and regulate the fee payable by students in colleges affiliated to the University;
(xii) to award fellowships, scholarships, studentships, bursaries, medals and prizes;
(xiii) to exercise supervision and control over the residence and discipline of students;
(xiv) to consider the financial estimates of the University and submit them to the Senate in accordance with the provisions of the Statutes made in this behalf;
(xv) to conduct University Examinations and approve and publish the results thereof:
(xvi) to appoint members to the Boards of Studies; (xvii) xxxxxxxxxxxxxxxxxxx."
22. Section 30 of the Kannur University Act, 1996 speaks about Boards of Studies and it reads as under:
``"30. Boards of Studies -
(1) There shall be a Board of Studies attached to each department of study in the University:
Provided that post-graduate studies in each department may have separate Board of Studies.WA.1530/2021 -:27:-
(2) The constitution, powers and functions of the Boards of Studies shall be prescribed by the Statutes. (3) Members of the Boards of Studies shall hold office for a period of two years from the date of their entering upon office."
23. Chapter XIII of the Kannur University First Statutes, 1998 deals with Boards of Studies, wherein Statutes 1 to 13 read as under:
"1. Constitution.- There shall be a Board of Studies attached to each subject of study of groups if subjects in the University:
Provided however that Post-Graduate studies in each subject may have separate Board of Studies.
2. Boards of each Department.--
(1) There may be separate Boards of Studies in such branches of knowledge as the Syndicate may decide to deal with the matters relating to the Post-Graduate Studies. (2) The constitution and functions of the Boards of Studies shall be as hereinafter prescribed.
3. Reconstitution of the Boards of Studies.- The Boards of Studies shall be reconstituted once in three years.
4. Nomination of Chairman and Member of Boards of Studies.- The Chairman and Members of the Boards of Studies shall be nominated by the Chancellor. The number of such members shall not be less than 5 or more than 11 including ex-officio member. Chairman of one Board of WA.1530/2021 -:28:- Studies shall be an ex-officio member of the other Board of Studies in the same subject.
5. Qualification of a Member of a Board of Study.- No person shall be appointed as a Member of Board unless he is a teacher of, or has special knowledge in the subject or one of the subjects with which the Board is concerned.
6. Duties of the Board of Studies.- It shall be the duty of each Board of Studies to consider and report on any matter referred to it by the Academic Council or Syndicate or the Senate or the Faculty or the Vice-Chancellor, concerned with the subject with which it deals.
7. Powers of Board of Studies.-- Each Board shall have power-
(1) To recommend for the guidance of teachers and students, books in which the prescribed sub-text- books when such are required;
(2) To recommend persons suitable for appointment as question paper setters, Examiners in the subject with which it deals:
(3) To make recommendations in regard to courses of study and examinations in the subject with which it deals;
(4) To address the Faculty or Faculties concerned regarding improvements in the courses of study; (5) To consult specialists who are not members of the Board;
(6) To recommend to the Academic Council, for being forwarded to the Syndicate for its approval the preparation and publication of selections or anthologies of the writings or works of authors and WA.1530/2021 -:29:- other masters in any subject or group of subjects;
together with a synopsis of the selections or anthologies and the names of the authors and masters and of the persons who may in its opinion be appointed to make the selections; and (7) To bring to the notice of the Academic Council or the Syndicate, as-the case may be matters of importance relating to the examinations in each subject or group of subjects.
8. Meetings of the Boards of Studies.--
(1) Board of Studies Shall meet at least once in every academic year.
(2) Meetings of a Board of Studies shall be convened by the Registrar at such times as may be necessary, or on the written request of not less than one-third of the number of members serving on the Board at the time. (3) Where in the temporary absence of the Chairman a meeting of a Board of Studies is required to be convened for the purpose of urgently dealing with any University business, the Registrar shall convene the meeting.
(4) A joint meeting of two or more boards may be held, when the Syndicate or the Academic Council or the Vice-Chancellor so direct, for the disposal of any question affecting those Boards. Such joint meetings shall be convened by the Registrar.
9. Chairman to preside.-
(1) The Chairman of a Board shall preside at meetings of the Board. In the absence of the Chairman, the members present shall elect a Chairman for the meeting.
(2) When a joint meeting of two or more Boards is held, the members present shall elect a Chairman for the meeting.
WA.1530/2021 -:30:-
10. Quorum for the meeting of a Board of Study.- The quorum for a meeting of any Board shall be simple majority of the strength of the Board, fractions, if any, being ignored. The quorum for a joint meeting of two or more Boards shall be one half of the total number of members in those Boards, fractions, if any, being Ignored and no member, however, being counted more than once.
11. Procedure of the meeting of a Board of Study.- Except as hereinbefore provided, the ordinary law of meeting shall be applicable to the meetings of the Board of Studies.
xxxxxxxxx"
24. Reading of Section 30 of the Kannur University Act, 1996 makes it clear that the Board of Studies have to discharge important academic functions, in respect of various matters undertaken by the University, so as to achieve the requirements contained under the Act, Statutes, Ordinances, and Regulations.
25. It is evident from Chapter XIII dealing with the Board of Studies of the Kannur University First Statutes, 1998 that there shall be a Board of Studies attached to each subject of study or of groups subjects in the University. However, it provides that Post-graduate studies in each subject may have a separate Board of Studies.WA.1530/2021 -:31:-
26. Whatever that be, the significant feature of Chapter XIII of the First Statutes, 1998 is Statute 4, which deals with nomination of Chairman and Member of Boards of Studies. Statute 4 clearly provides that the Chairman and Members of the Boards of studies shall be nominated by the Chancellor and that the number of such members shall not be less than 5 or more than 11.
27. In fact, on the basis of the directions issued by this Court, Mr. George Poonthottam, learned Senior Counsel appearing for the appellants, has produced a chart showing the powers exercised by the Syndicate and Chancellor of the various Universities as regards appointment of Chairmen and members to the Board of Studies.
28. Going through the said chart we find that the powers of the Syndicate of Calicut University, conferred under Section of the Calicut Universities Act, 1975, is subject to the provisions of the Act and the statutes. But, Statute 20(3) of Chapter XIII of the Calicut University (Constitution of Faculties and Board of Studies) First Statutes, 1976, clearly specifies that the members of Board of Studies other than ex-
officio members shall be appointed by the Syndicate.WA.1530/2021 -:32:-
29. Similar is the position with respect to the Kerala University Act, 1974 and Kerala University First Statutes, 1977, wherein Statute 1(2) speaks about the Powers of Syndicate; and Cochin University of Science and Technology Act, 1986 and Statutes, 1980. However, as regards Mahatma Gandhi University Act, 1985, Section 23 deals with the Powers of Syndicate. Further, Chapter 12 - Statute 2(4) of the Mahatma Gandhi University Statutes, 1997 makes it clear that the members of the Board of Studies shall be nominated by the Chancellor and the number of such members shall be not less than 5 or more than
11. Therefore, we are of the considered opinion that unless and until power is conferred on the Syndicate to make appointment, without any recommendation made by the Chancellor, the Syndicate of the University cannot appoint the members of Boards of Studies.
30. Here is a case where admittedly, Exhibit-P1 notification dated 11.08.2021 was issued by the Registrar of Kannur University, reconstituting 71 Boards of Studies and constituting new Board of Studies in Biochemistry and Bioinformatics (U.G.). It is clear from Exhibit-P1 notification that the same is issued on the basis of a WA.1530/2021 -:33:- resolution of Syndicate meeting held on 11.06.2021 vide item No.2021.321. Exhibit-P1 also makes it clear that the tenure of the reconstituted Board of Studies and newly constituted Board of Studies in Biochemistry and Bioinformatics (U.G.) is for two years with effect from 11.06.2021 (the date of entering upon office). The list, showing the details of Chairmen and Members of the various Boards of Studies appointed, is attached along with Exhibit-P1 notification, which is available in the official website of the Kannur University also.
31. Learned standing counsel for the Kannur University has referred to Section 25 of the Kannur University Act, 1996, which deals with the Powers of Syndicate and submitted that subject to the provisions of the Act and the Statutes, the executive powers of the University, including general superintendence and control over the institutions of the University, shall be vested with the Syndicate and subject likewise, the Syndicate was having the powers provided under the said Act.
32. Reading of Section 25, extracted above, manifestly makes it clear that the power of the Syndicate is subject to the provisions of not WA.1530/2021 -:34:- only the Act, but also the statute. Apparently, the Syndicate has invoked the powers conferred under Section 25(xvi) of the Act, 1996, to appoint members to the Board of Studies, without making any recommendation by the Chancellor, who is guided by the powers conferred under the Kannur University First Statutes, 1998.
33. However, Mr. George Poonthottam, learned Senior Counsel appearing for the appellants, submitted that power of the syndicate is subject to the power conferred under the statute and it is subservient to the powers conferred under the provisions contained under Chapter XIII of the statute. In our considered view, there is much force in the arguments advanced by the learned Senior Counsel appearing for the appellants that without the recommendation made by the Chancellor under Statute 4 of the Kannur University First Statutes, 1998, no appointment can be made to the Board of Studies by the syndicate. In that view of the matter, we have no doubt in our mind that the power exercised by the Syndicate unmindful of the powers of the Chancellor contained under Statute 4 of Chapter XIII of the Kannur University First Statutes, 1998, is absolutely illegal and arbitrary.WA.1530/2021 -:35:-
34. That apart, there is no case for the respondents or Kannur University that any list, showing the details of the Chairmen and Members of various Boards of Studies, is forwarded to the Chancellor for making recommendations nor the Chancellor has made any recommendation, for reconstitution of Boards of Studies or newly constituted Board of Studies in Biochemistry and Bioinformatics (UG), referred to in Exhibit-P1 notification dated 11.08.2021.
35. If that be so, the appointments made by the Syndicate cannot be sustained under law.
36. However, as we have pointed out above, appellants have made only the Chairmen and Faculty Members of the Board of Studies, Department of Commerce and Management Studies, as respondents in the writ petition. None of the other reconstituted or newly constituted board members are made parties to the writ petition. We are of the view, they are necessary parties to the writ petition, for the reason that they are aggrieved persons.
37. The respondents have no case that the Chancellor has failed to make any recommendation, in respect of the appointments made by WA.1530/2021 -:36:- the University or any of its authorities, in order to reconstitute or newly constitute the Board of Studies. In the statement filed before the writ court, on behalf of the Chancellor, it is categorically stated that, there was no consultation or list forwarded to the Chancellor, in order to make appointment to the Board of Studies, in contemplation of the provisions of Kannur University Act, 1996 and Kannur University First Statutes, 1998.
38. We are of the view that the terminology employed in Statute 4 of Chapter XIII of the Kannur University First Statutes, 1998 is "shall", which clearly indicates that it is a mandatory function to be discharged by the Chancellor. In that view of the matter, the judgment of the learned single Judge requires interference.
39. In our view, since the law in that regard is imperative in nature, the appointments made to the Chairmen and members of the Board of Studies, Department of Commerce and Management Studies, contained in Exhibit-P1 notification dated 11.08.2021 are hereby quashed, for having not secured or obtained any recommendation from the Chancellor of Kannur University. They have no right to continue.WA.1530/2021 -:37:-
In the result, this Writ appeal is allowed to the above extent. It is made clear that we have not interfered with the appointments made to the Board of Studies of other disciplines, since they are not parties to the writ petition, as well as the appeal. However, quashing of Exhibit-
P1 notification dated 11.08.2021 to the extent of appointment of the Chairmen and Members of the Board of Studies, Commerce and Management Studies departments, will not stand in the way of respondent University seeking for recommendation from the Chancellor in respect of the above faculty, in accordance with law, and in contemplation of Statute 4 of Chapter XIII of the Kannur University First Statutes, 1998.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Krj //TRUE COPY// P.A. TO C.J.