Kerala High Court
Professor Dr.V.H. Abdul Salam vs State Of Kerala on 16 October, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939
WP(C).No. 22909 of 2017 (K)
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PETITIONER(S):
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PROFESSOR DR.V.H. ABDUL SALAM,
AGED 69 YEARS, S/O LATE HAJI HUSSAN KHAN,
VELLATHOTTAM, S & S LANE, THAMMANAM P.O.,
KOCHI-682 032.
BY ADVS.SRI.BABU KARUKAPADATH,
SMT.M.A.VAHEEDA BABU,
SRI.K.M.FAISAL (KALAMASSERY),
SRI.P.U.VINOD KUMAR,
SRI.MITHUN BABY JOHN,
SRI.J.RAMKUMAR,
SMT.AMRIN FATHIMA.
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
HIGHER EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
CET CAMPUS, THIRUVANANTHAPURAM -695 016,
REPRESENTED BY ITS REGISTRAR.
3. THE VICE CHANCELLOR,
APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
CET CAMPUS, THIRUVANANTHAPURAM -695 016.
R1 BY SR. GOVT. PLEADER SMT.C.S. SHEEJA.
R2 & R3 BY ADV. SRI.S.KRISHNAMOORTHY, SC.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25-07-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 22909 of 2017 (K)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 A TRUE COPY OF THE ARTICLE OF THE PETITIONER PUBLISHED
IN MATHRUBOOMI DAILY DATED 16.10.2011.
EXHIBIT P2 A TRUE COPY OF THE ARTICLE OF THE PETITIONER PUBLISHED
IN MALAYALA MANORAMA DAILY DATED 25.10.2011.
EXHIBIT P3 A TRUE COPY OF THE ARTICLE OF THE PETITIONER PUBLISHED
IN CHANDRIKA DAILY DATED 18.10.2011.
EXHIBIT P4 A TRUE COPY OF THE GOVERNMENT ORDER DATED 20.07.2015 OF
THE 1ST RESPONDENT, NOMINATING THE PETITIONER, ALONG WITH
OTHERS, AS MEMBER OF THE BOARD OF GOVERNORS OF THE
2ND RESPONDENT UNIVERSITY.
EXHIBIT P5 A TRUE COPY OF THE NOTIFICATION DATED 03.12.2015 OF THE
2ND RESPONDENT UNIVERSITY,CONSTITUTING ITS BOARD OF
GOVERNORS BY INCLUDING THE PETITIONER.
EXHIBIT P6 A TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN
DESHABIMANI DAILY DATED 09.12.2015 REGARDING THE
COLLECTION OF AFFILIATION FEES AT EXORBITANT RATE IN
THE 2ND RESPONDENT UNIVERSITY.
EXHIBIT P7 A TRUE COPY OF THE RELEVANT PORTION OF THE HANDBOOK
PUBLISHED BY AICTE ALONG WITH THE RELEVANT PORTION OF
FACULTY NORMS PRESCRIBED BY THE AICTE FOR VARIOUS
PROGRAMS.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
SHAJI P. CHALY, J.
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W.P.(C) No.22909 of 2017
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Dated this the 25th day of July, 2017
JUDGMENT
This writ petition is filed by the petitioner seeking to call for the records relating to the meetings of the Board of Governors of the 2nd respondent University held on 11.01.2017 and 18.03.2017, and direct the 2nd and 3rd respondents to permit the petitioner to continue as member of the Board of Governors, till its end of tenure on 03.12.2019. Material facts for the disposal of the writ petition are as follows:
2. Petitioner is a Member of the Board of Governors of the 2nd respondent University. As per Ext.P5 notification for Reconstitution dated 03.12.2015, issued by the 2nd respondent University, on the basis of Ext.P4 Nomination by the 1st respondent Government, the tenure of the membership is 4 years, as per the provisions of the APJ Abdul Kalam Technological University Act, 2015 [for short, 'Act, 2015'].
3. Going by Chapter IV, Section 22 of the Act, the Board of Governors is the prime authority of the University, which, according to the petitioner, is equivalent to Senate. W.P.(C) No.22909 of 2017 2
The Board of Governors consists of Ex-officio Members, Elected Members, Nominated Members and other Members constituted in accordance with Sec.23 of the Act. The tenure of reconstitution of the Board of Governors is 4 years and Sec.24 (2) provides that every member of the Board of Governors, other than the Ex-officio Member shall hold office until the reconstitution of the Board of Governors, and that an outgoing member shall unless the Government otherwise directs, continue in office, until another person is nominated as a member in his place. Petitioner is nominated as per Sec.23 in his status as Principal of an Engineering College. However, petitioner has resigned from the post of Principal from M.E.S Engineering College to continue his service as Director in another Engineering College and he is continuing as such. According to the petitioner, till this date, there is no fresh nomination by the 1st respondent Government or reconstitution of Board by the 2nd respondent University, and as such, petitioner is eligible and entitled to continue as member of the Board of Governors. Up to the last meeting of the Board held on 18.03.2017, petitioner was invited to attend the same by intimation through E-mail and also furnishing the agenda and W.P.(C) No.22909 of 2017 3 notes. However, in the meeting scheduled to be convened on 15.07.2017, petitioner is not given any intimation and on enquiry, it is learned that 3rd respondent has given instruction to the officers not to give any intimation.
4. That apart, it is contended that, as per the proviso to Sec.24 of the Act, any person who becomes a member of the Board of Governors under the said provision, by virtue of his office, shall cease to be a member of the same on termination of his office. Therefore, according to the petitioner, he was not terminated from service and he has only resigned, and therefore, he cannot be prevented from participating in the meeting of the Board of Governors. That apart, yet another legal contention raised by the petitioner is that, as per Sec.24(4) of the Act, notwithstanding anything contained in the section, an outgoing member shall, unless the Government otherwise directs, continue in office until another person is nominated as a member in his place. Therefore, according to the petitioner, since no other person is nominated, petitioner is entitled to continue as a member of the Board of Governors.
W.P.(C) No.22909 of 2017 4
5. A statement is filed by respondents 2 and 3, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that petitioner was nominated as one of the member of the Board of Governors against the nominated members earmarked to the Principals from the Aided Sector, since he was the Principal of MES College of Engineering, Kuttipuram, Malappuram District. It is also stated that, at the time of nomination, petitioner has suppressed the material fact that he was overaged to continue in the status of Principal, because the maximum age limit for Principal prescribed by AICTE is 65 years, which he has already crossed. It is also submitted that, Sec.24 of Act, 2015 deals with reconstitution of Board of Governors. Therefore, the petitioner who is ceased to be a member of the Board of Governors is not entitled to get the protection of sub-section (4) of Sec.24. That apart, it is contended that, by virtue of the proviso to Sec.24, petitioner who was nominated in the category of Principal of an Aided Engineering College has terminated his office by resigning, and therefore, he is not entitled to continue as a member of the Board of Governors, which thus means, there is no privilege W.P.(C) No.22909 of 2017 5 constituted under Sec.23 for a nominated member to continue in office as a member of the Board of Governors, if he is disqualified. Therefore, according to the respondents, petitioner is not entitled to continue as a member of the Board of Governors by virtue of the provisions contained under the Act, 2015 and is therefore, not entitled to get any relief as is sought for in the writ petition.
6. Heard learned counsel for the petitioner, learned Senior Government Pleader and the learned CGC appearing for respondents 2 and 3. Perused the documents on record and the pleadings put forth by the respective parties.
7. As discussed above, the prime contentions advanced by learned counsel for the petitioner are twofold: (1) The petitioner is not terminated from his office in order to get himself disqualified as per the proviso to Sec.24; and (2) Petitioner is entitled to continue in office by virtue of sub- section (4) of Sec.24 of the Act. So far as the proviso is concerned, the same makes it abundantly clear that, a member of the Board of Governors, by virtue of his office, shall cease to be a member of the same "on" the termination "of" his office. There is no dispute that petitioner has ceased to be W.P.(C) No.22909 of 2017 6 a Principal of the Engineering College functioning in the Aided Sector. The thrust of the contention is based on the term "termination" used in the proviso to Sec.24. In my considered opinion, the term "termination" is very cautiously employed in the proviso with requisite prefix and suffix and 'termination of his office' means, ceasing to be in his office. The other provisions of Act, 2015 show that in the Act, for ceasing the office, the word "terminate" is used. Therefore, in my considered opinion, petitioner who has resigned from the office of Principal of the Engineering College in question, petitioner has himself terminated his office, which makes the petitioner disqualified to continue as a member of the Board of Governors by virtue of the proviso to Sec.24.
8. So far as Sec.24 is concerned, the same deals with reconstitution of the Board of Governors and it opens with sub- section (1) that the Board of Governors shall be reconstituted every 4 years. Sub-section (2) states that every member of the Board of Governors, other than an Ex-officio Member, shall, subject to the provisions of the Act and the Statutes and Ordinances, hold office until the reconstitution of the Board of Governors. Therefore, it is evident that sub-section (4) of W.P.(C) No.22909 of 2017 7 Sec.24 is catering the needs of other provisions of Sec.24 and therefore, till such time, an outgoing member is replaced, shall continue in office till such a nominated member takes his place. Therefore, in my considered opinion, I find force in the contention advanced by respondents 2 and 3 in respect of the issues raised by the petitioner. Moreover, according to respondents 2 and 3, as per the AICTE norms, petitioner is not entitled to hold the post of a Principal, after attainment of 65 years. This is not under much dispute also.
9. Taking note of the fact situations and reckoning the law, I am of the considered opinion that petitioner is not entitled to get any relief as is sought for in the writ petition. Even though learned counsel for the petitioner has relied upon the judgment of a Division Bench of this Court in 'Kutty Haji v. State of Kerala' [2008 (3) KLT 1004], and invited my attention specifically to paragraph 3 of the judgment, in my considered opinion, the fact circumstances considered therein are entirely different to protect the interest of the petitioner as is claimed in the writ petition. Therefore, I do not find any reason to rely upon the proposition of law laid down in the said judgment.
W.P.(C) No.22909 of 2017 8
The writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P. CHALY JUDGE St/-
26.07.2017