In view of the identical issues raised in these writ petitions,
I dispose of these cases by this common judgment. For the sake
of convenience, I shall be referring to the facts as pleaded in
W.P(C) 616/2009.
2. At the outset I wish to refer to the statutory
provisions contained in the M.G. University Act and Statutes
framed thereunder. Section 28 of the Act, provides that there
shall be a Board of Studies attached to each Department of Study
in the University.
Section reads as under;
" (1) There shall be a Board of Studies attached to
each Department of Study in the University:
Provided however that post-graduate studies in
each department may have separate Board of Studies.
[(A) Each Board of Studies shall consists of -
(a) the Head of the Department as its Chairman;
(b) such number of members as may be prescribed by
the Statutes, nominated by the Chancellor from
among the teachers of the University and of the
W.P.(C) Nos.4189,2222 & 616/ 2009
Colleges, by rotation;
) such number of members as may be prescribed by
the Statutes, nominated by the Chancellor from
among persons who are experts in the field of
education.]
(2)The powers 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 three years from the date of their entering upon
office."
3. Chapter 12 of the University Statutes provides for the
Board of Studies. Clause 4 provides for the nomination of
members of Board of Studies. It states that members of the
Board of Studies shall be nominated by the Chancellor and
number of such members shall not be less than five and more
than 11. Qualification, duties, powers etc. of the Board of Studies
and its members are also provided in this Chapter. Section 23 of
the Act provides that powers of the Syndicate and Sub-section
(xvi) confers power on the Syndicate to appoint members to the
Board of Studies.
4. In so far as W.P.(C) No.616/2009 is concerned, by
Ext.P1 notification issued by the University, the Chancellor
nominated certain persons to the Board of Studies. They assumed
W.P.(C) Nos.4189,2222 & 616/ 2009
office and were discharging their duties. Ext.P2 is the resolution
of the Syndicate of the University passed in their meeting held on
23.12.2008. Relevant portion of it reads as under;
"Resolved to cancel the Notification No.1247/2008/1
Elen dated 31-3-2008 as the orders appointing the
Boards of Studies were issued without the knowledge
or assent of the Syndicate.
Further resolved to request His Excellency the
Chancellor to nominate new persons to be appointed
as members of the following Boards of Studies
1. Arabic (PG)
2. Dentistry
3. Engineering (UG)
4. Homoeopathy
5. Medicine (PG)
6. Pharmacy
Prof.C.A.Abdul Jaleel, Rev. Dr. Joseph K.M,
Kollamparambil, Dr.P.K.Radhakrishnan, Prof.Satheesh
Kochuparambil, Prof.Jory Mathai, Prof.Jayakumar N,
Prof.Joseph George and Dr.P.J.Jacob dissented and
wanted to appoint the persons nominated by His
Excellency, the Chancellor as they are competent and
qualified to be appointed as members of the Boards of
Studies and wanted to approve the action of the Vice-
Chancellor in appointing the Boards of Studies.
The Syndicate resolved to carry forward the conflict
between the Syndicate and the Vice-Chancellor for the
final decision of His Excellency the Chancellor, as
stipulated in Mahatma Gandhi University Statutes.
W.P.(C) Nos.4189,2222 & 616/ 2009
5. A reading of this resolution would show that the
Syndicate resolved to cancel Ext.P1 Notification for the reason
that orders appointing the persons concerned were issued without
the knowledge or assent of the Syndicate. It is challenging this
resolution, that the Writ Petition is filed.
6. The University has filed a counter affidavit. According
to the University Sec.28 (1)(a) and Chapter 12 of the University
Statutes confer powers on the Chancellor to make nomination to
the Board of Studies of the University. However, power of
appointment is vested with the Syndicate in view of Sec.23 (xvi)
of the Act. In this case, the appointment made by Ext.P1
Notification was without the knowledge or assent of the
Syndicate. Therefore, according to them, the appointments made
were irregular and hence the Syndicate by its resolution dated
23-12-2008, resolved to cancel the appointment and requested
the Chancellor to make fresh nomination.
7. It is the correctness of the aforesaid resolution dated
23/12/2008 that arise for consideration.
8. Sec.7 of the M.G. University Act, to the extent
W.P.(C) Nos.4189,2222 & 616/ 2009
relevant, provides that;
" 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.
(3). All the authorities of the University shall be
subordinate to the Chancellor.
9. Reading of Sec.28(1)(a) referred to above shows that
apart from the Head of the Department, who shall be the
Chairman of the Board of Studies, the members of the Board of
Studies, whose eligibility has been specified in the Section, are to
be nominated by the Chancellor himself. Minimum and maximum
number of persons who can be so nominated are also provided in
Chapter 12 of the University Statutes. Thus, it is in exercise of
this power so conferred under Section 28 read with Chapter 12 of
the University Statute, that the Chancellor made nomination of
the persons concerned and who were appointed.
10. As noticed, Sec.23 providing for the powers of the
Syndicate, also confers on it power to appoint members of the
Board of Studies. In this context, it is to be stated that apart
W.P.(C) Nos.4189,2222 & 616/ 2009
from the manner of constituting the Board of Studies as provided
under Section 28 and Chapter 12 of the Statute, conferring
exclusive power of nomination on the Chancellor, there is no
other method of making appointment to the Board of Studies.
Therefore, except the persons nominated by the Chancellor, there
can be none in the Board of Studies, who are to be appointed by
the Syndicate, exercising its power under Section 23 of the Act.
11. Learned counsel for the petitioner contended that in
view of Section 7 of the Act since Chancellor is the supreme
authority of the University, power of nomination is exclusively on
the Chancellor in terms of provisions contained in Sec.28 and
Chapter 12 of the Statute, though the power of appointment is
conferred on the Syndicate as per Section 23, it is only a
ministerial act to be performed by the Syndicate. Since, the
power of nomination is on the Chancellor exclusively, the power
of appointment conferred on the Syndicate would appear to be
superfluous. However, it should be borne in mind that the Court
will have to interpret the statutory provisions in a harmonious
manner and so understood, I must conclude that the power of
W.P.(C) Nos.4189,2222 & 616/ 2009
appointment conferred on the Syndicate under Section 23 is a
power only to make appointment of persons who are nominated
by the Chancellor exercising his power under Section 28 of the
Act. In the absence of any power to the contrary, any other
interpretation cannot be accepted.
12. As already noted, justification offered by the Syndicate
to cancel Ext.P1 notification, making appointment to the Boards
of Studies is that appointment have been made without
knowledge or assent of the Syndicate of the University. As
already noticed, the power of Syndicate is only to make
appointment of the persons nominated by the Chancellor; Statute
does not confer any other power than what is contemplated u/s.
23(xvi). Therefore, even if appointment made by Ext.P1
Notification was without knowledge or assent of the Syndicate as
contended, still, in view of the very restricted power that has
been conferred on the Syndicate, it is only an irregularity and
cannot fatal, and leading to the invalidation of the appointment
itself. Therefore, I cannot uphold Ext.P2 Resolution to the extent
it cancels the appointment of persons, who have nominated by
W.P.(C) Nos.4189,2222 & 616/ 2009
the Chancellor, as per Ext.P1 notification issued by the University.
13. Counsel for the University brought to my notice
Sec.7(4) of the Act conferring power on the Chancellor to annual
any proceedings of any of the authorities of the University, which
is not in conformity with this Act, the Statutes, Ordinances, the
Regulations, the rules or the bye- laws. Such power is exclusively
on the Chancellor and as that power can be exercised only by the
Chancellor, this judgment shall not stand in the way of the
Chancellor exercising his power.
Exhibit P2 resolution cancelling Exhibit P1 will stand set
aside and W.P(C) No.616/2009 is allowed.
In view of the above, Writ Petition Nos.2222 & 4189 of
2009, seeking similar reliefs, also will stand allowed.
ANTONY DOMINIC, JUDGE
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