Dr.Krishnakumar.R v. Chancellor

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 scm