Dr. Alassan Kutty and Dr. K. Abdul Hameed v. Aligarh Muslim University and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937** ## **WP(C).No. 9056 of 2015 (F)** ## **---------------------------** ## **PETITIONER(S):** **--------------------------** ## **1. DR.ALASSAN KUTTY, AGED 55 YEARS** **S/O. P. MUHAMMED, ASSOCIATE PROFESSOR & HEAD DEPARTMENT OF HISTORY, FAROOK COLLEGE, KOZHIKODE RESIDING AT CHEENIKKAL, PO VALLUMBRAM (VIA) MALAPPURAM DISTRICT, PIN-673 651** ## **2. DR. K. ABDUL HAMEED, AGED 58 YEARS** **S/O. KUNHALI HAJI, PRINCIPAL REGIONAL COLLEGE OF SCIENCE AND HUMANITIES PULIYAKODE PO, KUZHIMANNA, MALAPPURAM RESIDING AT POLIYODATH HOUSE, CEHRUPUTHUR, MONGAM MALAPPURAM.** ## **BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY** ## **RESPONDENT(S):** - **----------------------------** ## **1. ALIGARH MUSLIM UNIVERSITY** **REPRESENTED BY ITS REGISTRAR, ALIGARH UTTAR PRADESH-202 002** ## **2. THE VICE CHANCELLOR** **ALIGARH MUSLIM UNIVERSITY, ALIGARH UTTAR PRADESH-202 002** **3. DR. HABDUL AZEEZ THE DIRECTOR ALIGARH MUSLIM UNIVERSITY MALAPPURAM CENTRE PO CHERUKARA, PERINTHALMANNA, MALAPPURAM KERALA-679 340** **R3 BY ADV. SRI.P.M.MOHAMMED SHIRAZ R1-R2 BY ADV. SRI.JOBY JACOB PULICKEKUDY R1-R2 BY ADV. SRI.ANIL GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 9056 of 2015 (F)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1; TRUE COPYOF THE RELEVANT PORTIONS OF THE ADVERTISEMRNT NO.4/2013 DATED 17.7.2013 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P2: TRUE COPY OF THE LETTER NO,.ADMIN/LD/ 2276 DATED 10.11.2014** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **EXT.R3(A) COPY OF THE REPORT OF THE GENERAL SELECTION COMMITTEE DATED 9.10.11** **EXT.R3(B) COPY OF THE RELEVANT PAGES OF EXTRACTS OF THE MINUTES OF THE MEETING OF THE EXECUTIVE COUNCIL DATED 17.1.15.** ## **// TRUE COPY //** **P.A TO JUDGE** **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) No.9056 of 2015 - F** ## **====================== Dated this the 15[th] day of January, 2016** ## **J U D G M E N T** The petitioners in the above writ petition assert that they are both qualified to be appointed as the Director of the Malappuram Centre of the 1[st] respondent University as has been notified in Ext.P1 and assail the appointment of the 3[rd] respondent. 2. The respondent University and the 3[rd] respondent has raised a preliminary objection with respect to the maintainability of the writ petition, for reason of this Court having no jurisdiction under Article 226 of the Constitution of India. The contention is sought to be buttressed by decisions of the Full Bench, Division Bench and a learned Single Judge of this Court reported in **Registrar, Indian Maritime University, Chennai** v. **Dr. K.G Viswanathan and Another [2014 (4) KHC** **2** W.P.(C) No.9056 of 2015 - F **451]** , **Anand Anoop** v. **Union of India and Others [2014 KHC 377]** and **Asten Mather Relators Pvt. Ltd. (M/s.)** v. **Mather & Co. Pvt. Ltd. (M/s.) and Another [2013 KHC 312]** . On facts, the learned Counsel argues that the notification was issued from the State of Uttar Pradesh, where the Aligarh University is situated and the interview was conducted at Aligarh University and orders of appointment were also issued at the Aligarh University. It is contended that the appointment is only a consequence of such orders issued outside the State and the petitioner cannot file a writ petition before this Court under Article 226, for reason of lack of territorial jurisdiction. 3. The Full Bench decision is specifically referred to and it is pointed out that in paragraph 54, the facts relevant to the issue under consideration were noticed to be with respect to a notification issued at Chennai, selection continued at Chennai and appointment granted at Chennai. The writ petition was refused to be entertained despite the fact that the petitioner was permitted to join in the Cochin Campus. Therein, when the **3** W.P.(C) No.9056 of 2015 - F candidate was asked to report at Chennai, he accepted the offer and requested for posting at the Cochin campus and he was also informed that the request was accepted, but he was never posted to Cochin and on the basis of the mere acceptance of his request, a writ was sought to be maintained before this Court when eventually the offer of appointment was withdrawn; which was declined. 4. This Court is not inclined to find any application of the above facts to the facts in the present case. The Full Bench was concerned with the question of whether the place of communication of an adverse order, like a termination, would by that alone confer jurisdiction on the Courts having jurisdiction over such place. A distinction was drawn between the 'right to action' and 'cause of action', to find that the mere receipt of communication would only give rise to the former and cannot be said to be something comprising the bundle of facts resulting in the latter. Herein, admittedly, the appointment was to be made to the Center of the University at Malappuram and the appointee **4** W.P.(C) No.9056 of 2015 - F was to function from Malappuram and not from outside the State. In such circumstance, the aforesaid decisions are not applicable and this Court is inclined to find that the writ petition is maintainable under Article 226. 5. The factual challenge made is that the 3[rd] respondent, who was in the waiting list was appointed, despite the first rank holder having been appointed and continued for some time. The vacancy arose due to the resignation of the first rank holder and in such circumstance, it is contended that the respondent University ought to have brought out a fresh notification for selection and the appointment of the 3[rd] respondent is not proper. 6. The learned Counsel for the respondent University would take this Court through Section 19(3) of the Aligarh Muslim University Act XL of 1920 and statute 6B of the Schedule to the Act, which includes the statutes of the University. Section 19(3) and Statute 6B are extracted hereunder:- **5** W.P.(C) No.9056 of 2015 - F Section 19(3): The Vice-Chancellor may, if he is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority the action taken by him on such matter; Provided that if the authority concerned is of opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final; Provided further that any person in the service of the University who is aggrieved by the action taken by the Vice-Chancellor under this sub-section shall have the right to appeal against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon the Executive Council may confirm, modify or reverse the action taken by the Vice-Chancellor. Statute 6B: Directors of Centres – (1) The Director of a centre shall be appointed by the Executive Council on the recommendation of a Selection Committee constituted for the purpose. (2) The Director of a Centre shall be a whole time salaried employee of the University. (3) The Director of a Centre shall hold office for a term of five years from the date on which he entrees upon his office and shall be eligible for re-appointment for not more than another term. **6** W.P.(C) No.9056 of 2015 - F (4) Notwithstanding anything contained in clause (3), a person appointed as Director of a Centre shall, if he completes the age of sixtyfive years during the term of his office retire from office. (5) The emoluments and other terms and conditions of service of the Director of a Centre shall be such as may be prescribed by the Ordinances. (6) If the office of the Director of a Centre becomes vacant due to his death, resignation or otherwise or if he is unable to perform his duties owing to illness, absence or any other cause, the duties of his office shall be performed by such person as the Vice-Chancellor may appoint for the purpose. (7) The Director of a Centre shall be responsible for the conduct and maintenance of the standard of teaching and research in the campus. He shall have such other functions as may be prescribed by the Ordinance. 7. The learned Counsel for the respondent University would submit that the appointment was necessitated since the resignation of the first rank holder was without sufficient notice and there was an emergent situation insofar as the requirement of the Director in the University, especially since the funds of the University had to be spent in a time frame. Invoking the special powers conferred by the aforesaid provisions, the appointment **7** W.P.(C) No.9056 of 2015 - F was made, is the contention. 8. The learned Counsel for the petitioners however would contend that a reading of Section 19(6) would only indicate that any person could be appointed for performing the duties of the Director, if a temporary vacancy arose and there cannot be a fresh appointment made to the said post. 9. Ext.P1 notification itself would indicate that the appointment of the post of Director was a temporary measure and that too for a period of five years as provided in Statute 6B(3). The selection was proceeded with and the minutes of the Selection Committee proceedings are produced as Ext.R3(a). A was held on 09.10.2013 and there were seven meeting applicants, of which only four turned up. After interviewing the four candidates, Dr. Zakkariya K.A was placed at the first rank and was recommended for appointment as Director, while the 3[rd] respondent was placed as reserve in the waiting list. The first rank holder was appointed and he is said to have joined on 13.10.2013. But however, resigned on 27.11.2013. **8** W.P.(C) No.9056 of 2015 - F 10. Hence the person appointed as Director did not complete the tenure, for which he was appointed. In such circumstance, there is absolutely no necessity to issue a fresh notification especially since the 3[rd] respondent was ranked second even by the Selection Committee and was kept as reserve in the waiting list. Considering the fact that the Director appointed, continued only for slightly more than an year, there can be no irregularity found in the University having appointed the second rank holder, when the major chunk of the term of appointment was remaining. It cannot be found that the validity period of the rank list expired since there is no validity specified; as also considering the time gap from the appointment and the resignation. It is only proper that the University decided not to incur further expenditure in calling for a fresh notification for making appointments. In any event, the 3[rd] respondent was placed as reserve in the second place and hence was competent to be appointed to the post of Director. **9** W.P.(C) No.9056 of 2015 - F 11. Further it is to be noticed that the petitioners were not participants in the earlier selection. Again, but for asserting that they are qualified to be appointed to the post of Director as per Ext.P1; no document is produced to substantiate the contention. This Court ventures to make such an observation in the context of the specific contention raised by the respondent University that the petitioners are not qualified to be appointed to the post and the petitioners having not refuted it by materials to substantiate such claim. For all the above reasons, the writ petition is found to be devoid of merit and the same would stand dismissed. No costs. **Sd/-** **K. VINOD CHANDRAN, JUDGE** SB/16/01/2016 // true copy // P.A to Judge.