Kerala High Court
Dr. Mavoothu. D vs State Of Kerala
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2014/30TH MAGHA, 1935
WP(C).No. 29348 of 2013 (T)
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PETITIONER(S):
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DR. MAVOOTHU. D,
ASSOCIATE PROFESSOR, SCHOOL OF MANAGEMENT STUDIES,
COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY,
COCHIN-682 022.
BY ADVS.SRI.S.RAMESH
SRI.NAVEEN.T
SMT.POOJA SURENDRAN
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
HIGHER EDUCATION DEPARTMENT, GOVT.SECRETARIAT,
THIRUVANANTHAPURAM, PIN:695 001.
2. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
REPRESENTED BY ITS REGISTRAR,
KALAMASSERY, COCHIN-682 022.
3. THE SYNDICATE,
COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY,
REPRESENTED BY THE VICE CHANCELLOR,
KALAMASSERY, COCHIN, PIN;682 022.
4. DR.SAJAN K.
PROFESSOR, DEPT.OF MARINE GEOLOGY AND GEOPHISICS
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
LAKE SIDE CAMPUS, FINE ARTS HALL ROAD, COCHIN,
PIN:682 031.
PJ
...2/-
..2..
WP(C).No. 29348 of 2013 (T)
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* ADDL.R5 & R6 ARE IMPLEADED
5. DR.K.K.SAJU
ASSOCIATE PROFESSOR, SCHOOL OF ENGINEERING
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
COCHIN -682022, RESIDING AT 34/2253, AMBADI
MAMANGALAM, COCHIN -25.
ADDL. R5 IS IMPLEADED AS PER ORDER DATED 11/12/2013 IN IA 16720/2013.
6. DR.DAVID PETER.S., PROFESSOR,
DIVISION OF COMPUTER SCIENCE AND ENGINEERING,
SCHOOL OF ENGINEERING,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
KOCHI -682 022.
ADDL. R6 IS IMPLEADED AS PER ORDER DATED 11/12/2013 IN IA 16722/2013.
R1 BY GOVERNMENT PLEADER SRI.LIJU V.STEPHEN
R2-R3 BY ADV. SRI.MILLU DANDAPANI, SC, COCHIN UNIVERSITY
RADDL.5 BY ADVS. SRI.K.JAJU BABU (SR.)
SMT.M.U.VIJAYALAKSHMI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 19-02-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
PJ
WP(C).No. 29348 of 2013 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE BIO DATA OF THE PETITIONER.
EXHIBIT P2: TRUE COPY OF THE RELEVANT PAGE OF THE DECISION DATED
3.10.2013 OF THE SYNDICATE.
EXHIBIT P3: TRUE COPY OF THE MINUTES OF THE MEETING DATED 19.11.2013 OF
THE SYNDICATE.
EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 22.11.2013.
RESPONDENT(S)' EXHIBITS
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R3(A): COPY OF ABSTRACT OF THE UNIVERSITY ORDER
NO.AD.B/CHARGE/2009/SSUS DATED 27/11/12
R3(B): COPY OF THE MINUTES OF THE 365TH MEETING OF THE SYNDICATE
DATED 30/11/95
R3(C): COPY OF THE BIRTH CERTIFICATE OF PROF.RAVINDRANATHA MENON
R3(D): COPY OF THE MINUTES OF THE 471ST MEETING OF THE SYNDICATE
DATED 30/4/2004
R3(E): COPY OF THE CERTIFICATE SHOWING THE DATE OF BIRTH OF
DR.A ARAVINDAKSHAN
R4(A): COPY OF THE PAPER PUBLICATION IN 'NEW INDIA EXPRESS' DATED
28/11/13
R4(B): COPY OF THE MINUTES OF THE 364TH MEETING OF THE SYNDICATE
DATED 30/11/95
R4(C): COPY OF THE BIRTH CERTIFICATE OF PROF.RAVINDRANATHA MENON
R4(D): COPY OF THE RELEVANT PAGES IN MINUTES OF THE 471TH MEETING
OF THE SYNDICATE DATED 30/4/2003
R4(E): COPY OF THE REGISTER SHOWING THE DATGE OF BIRTH OF
DR.A.ARAVINDAKSHN
R5(A): TRUE RESUME OF THIS DEPONENT
/ TRUE COPY /
P.S. TO JUDGE
PJ
C.K.ABDUL REHIM,J.
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WP(C).NO. 29348 of 2013
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Dated this the 19th day of February, 2014
JUDGMENT
Challenge is against Ext. P3 decision of the 3rd respondent, to the extent it decided to handover charge of the Registrar of the 2nd respondent University to the 4th respondent. Inter alia, the petitioner is seeking a declaration that the 4th respondent is not entitled to be considered for appointment to the post of Registrar of the 2nd respondent University. The petitioner also seeks declaration to the effect that he is entitled to be considered for appointment to the post of Registrar.
2. The petitioner is at present working as Associate Professor in the School of Management Studies in the 2nd respondent University. According to him, petitioner is the senior most person among qualified hands eligible to be considered for appointment as Registrar of the 2nd respondent University, as per the relevant Statute, based on Ext.P2 decision to notify the post. The impugned decision of the Syndicate is challenged WP(C). 29348 /2013 2 mainly on the basis that the 4th respondent is not a person eligible to be considered for appointment as Registrar, since he had already crossed the age of 56 years. It is further contended that as per Statute 13 of Chapter III of the Statute 1975 (First Statute), the 4th respondent cannot be considered for appointment as Registrar since he is at present the member of Syndicate and is holding the post of Dean of Faculty in Marine Science in the 2nd respondent University, which are 'authorities of the University' coming within the purview of the said statute. Thirdly it is contended that the 4th respondent himself was a member of the body (Syndicate) which had taken the impugned decision, and therefore the impugned decision will become invalid. Ext. P3 impugned decision was also assailed as unsustainable contending that, appointment of an ineligible person discarding the suggestion made by one of the members for appointment of the petitioner as Registrar, is unsustainable.
3. Evidently, by virtue of the impugned decision, a resolution was adopted by the Syndicate to give charge of the Registrar to the 4th respondent, with effect from 1.12.2013, WP(C). 29348 /2013 3 since term of the present incumbent is expiring on 30.11.2013 . It is specifically mentioned that the 4th respondent will hold charge of the Registrar till a regular appointment is made to the said post. It is discernible from Ext.P3 that two of the members of the Syndicate had dissented the decision.
4. In the counter affidavit filed by respondents 2 and 3 it is specifically stated that, the Syndicate has not appointed the 4th respondent as Registrar. But the resolution was only for making an arrangement for entrusting charge of the Registrar during the temporary vacancy, as per Statute 12 of Chapter III of the the Cochin University First Statute 1975. Therefore it is contended that the petitioner has no locus standi to challenge the decision, because it is not a decision to appoint the 4th respondent as Registrar. It is contended that, appointment to the post of Registrar will be made only in accordance with section 13 of Chapter III of Cochin University Science and Technology Act 1986. All the restrictions enumerated under clause 13 of Chapter III of the First Statute will be adhered in making such appointment. According to respondents 2 and 3 it is the WP(C). 29348 /2013 4 prerogative of the Syndicate to make temporary arrangement and the Syndicate in its wisdom had chosen to entrust the 4th respondent with charge of the Registrar, until appointment is made. The 4th respondent, by virtue of the impugned decision, will not hold the rank of Registrar and he was placed to hold charge only to discharge duties of the Registrar, till an appointment is made to the said post.
5. The 4th respondent had also filed a separate counter affidavit enumerating more or less similar contentions. Additional respondents 5 and 6 got themselves impleaded in this writ petition and they have filed separate counter affidavits. It is contended that the 4th respondent is not eligible for appointment to a regular post of Registrar since he had crossed the age of 56 years. According to them, there are ever so many persons including them who are qualified in the 2nd respondent University, eligible to be appointed to the post of the Registrar. But Ext.P3 is not an appointment, but it only giving charge of the post of Registrar temporarily till regular selection is made pursuant to Ext.P2. The Syndicate being the chief executive body of the WP(C). 29348 /2013 5 University in its discretion resolved to hand over charge to the 4th respondent when a vacancy fall due to the retirement of the present incumbent and when the process of selection for regular appointment had already been started pursuant to Ext.P2. It is submitted that the 6th respondent had put in 27 years of service and he is a Professor presently holding the post of Director of International Relations and Academic Admission of the 2nd respondent University. According to the 6th respondent he is senior to the 4th respondent and is eligible to be considered for appointment as Registrar. Reply affidavits were filed to each of the counter affidavits refuting the various contentions.
6. Statute 1 of Chapter III of the First Statute provides that the Registrar shall be appointed by the Syndicate, on probation for a period of one year within a continuous period of 2 years, and shall be confirmed on satisfactory completion of the probation. Therefore it is evident that the competent authority to make appointment to the post of Registrar is the Syndicate. Admittedly a person appointed as Registrar is eligible to continue in service only till he attains the age of 56 years. In the case at WP(C). 29348 /2013 6 hand the present incumbent in the post of Registrar had attained the upper age limit on 30.11.2013. Statute 5 of Chapter III provides with respect to arrangement to be made during the absence of the Registrar. It provides that if the period of absence is more than 10 days the Syndicate shall make arrangements for the performance of the duties of the Registrar in such manner and on such terms as the Syndicate may determine. Statute 12 of Chapter III provides about temporary vacancy in the post of Registrar. It says that in the event of temporary vacancy in the office of the Registrar, the Syndicate shall make such appointments as it may deem necessary to carry on the duties of the Registrar. Evidently the impugned decision in Ext.P3 is taken in exercise of power vested under Statute 12 of chapter III . Ext.P3 clearly says about the resolution taken to give charge of the Registrar to the 4th respondent. It further states that the 4th respondent will be holding charge only till regular appointment is made to the said post. The decision of the Syndicate in this regard cannot be construed as having the effect of appointing the 4th respondent to the post of Registrar. WP(C). 29348 /2013 7
7. Question is whether the Syndicate was justified in entrusting charge of the post of Registrar to the 4th respondent, when it is evident that the 4th respondent is a person not satisfying eligibility prescribed for being appointed to the post of Registrar. Since it is evident that the Syndicate had taken a decision only to entrust charge of the post of Registrar to the 4th respondent, it cannot be construed in any manner that an appointment is made to the post of Registrar. As observed above, the Syndicate had only made necessary arrangement to carry out duties of the Registrar, till a person is appointed to the said post. For handing over charge of the Registrar on a temporary basis in exercise of power vested under statute 12, the Syndicate need not examine any eligibility criteria, since there is no appointment made. Therefore, contentions raised by the petitioner regarding crossing of the upper age limit or on the basis that the 4th respondent is an 'authority of the University' cannot be sustained. The Syndicate in its wisdom has chosen to entrust charge of the Registrar with the 4th respondent. Unless such a decision is apparently illegal or is violative of any WP(C). 29348 /2013 8 statutory provisions or if it is totally unreasonable and arbitrary, there is no ground for this court to interfere. This court is of the considered opinion there is no legal infirmity with respect to the decision taken. Merely because the 4th respondent was also a member of the Syndicate which had taken the impugned decision, it cannot be assailed in any manner.
8. Learned Senior Counsel appearing for the 2nd respondent University had pointed that 16 members have participated in the meeting which took the impugned decision and only two among them had dissented. It is also pointed out that, selection to the post of Registrar is to be made by a selection committee to be constituted by the Chancellor in consultation with the Syndicate, in accordance with Section 31 of the Cochin University of Science and Technology Act, 1986. The impugned decision at any rate cannot be treated as appointment. She had also placed reliance on the decision of the High Court of Rajasthan reported in AIR 1982 Rajasthan 67 in order to content that for temporary assignment of charge in post as a stop gap arrangement, qualification of the person need not be looked into. WP(C). 29348 /2013 9
9. The declarations sought for to the extent that the 4th respondent is ineligible to be appointed as Registrar and that the petitioner is eligible to be appointed, need not be considered in this writ petition, because the selection process had already started on the basis of Ext.P2 notification. This court cannot presume that the authority entrusted with selection will appoint any person who is not fulfilling the eligibility criteria, as per the provisions of the First Statute and the University Act.
10. In the result the writ petition is dismissed without prejudice to rights of the petitioner to apply and to participate in the selection process to the post of Registrar, if eligible.
C.K. ABDUL REHIM
JUDGE
Pmn/AMG
WP(C). 29348 /2013 10
C.K.ABDUL REHIM, JUDGE
pmn/
WP(C). 29348 /2013 11
WP(C). 29348 /2013 12