Dr. Alassankutty and Dr. K. Abdul Hameed v. Aligarh Muslim University & ors, Writ Appeal No. 408 of 2016 (WP(C) 9056/2015)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938 W.A.No.408 of 2016 IN WP(C).9056/2015 AGAINST THE JUDGMENT IN WP(C) 9056/2015 of HIGH COURT OF KERALA DATED 15-01-2016 ## APPELLANTS/PETITIONERS: 1.DR. ALASSANKUTTY NOW AGED 56 YEARS, S/O P MUHAMMED, RETIRED ASSOCIATE PROFESSOR AND HEAD, DEPARTMENT OF HISTORY, FAROOK COLLEGE, KOZHIKODE, RESIDING AT CHEENIKKAL, PO VALLUVAMBRAM, MONGAM (VIA), MALAPPURAM DISTRICT-673 651 2.DR. K. ABDUL HAMEED, NOW AGED 59 YEARS, S/O. KUNHALI HAJI, PRINCIPAL, REGIONAL COLLEGE OF SCIENCE AND HUMANITIES, PULIYAKODE PO, KUZHIMANNA, MALAPPURAM, RESIDING AT POLIYODATH HOUSE, CHERUPUTHUR, MONGAM, MALAPPURAM. BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.ANNAPOORNA ## RESPONDENTS/RESPONDENTS: 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.H.ABDUL AZEEZ THE DIRECTOR, ALIGARH MUSLIM UNIVERSITY MALAPPURAM CENTRE, PO CHERUKARA,PERINTHALMANNA, MALAPPURAM, KERALA-679 340 R1-R2 BY ADV. SRI.JOBY JACOB PULICKEKUDY R BY SRI.P.M.MOHAMMED SHIRAZ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & P.V.ASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Writ Appeal No.408 of 2016** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of July, 2016** ## **JUDGMENT** ## _**Antony Dominic, J.**_ The petitioners in W.P.(C)9056/15 are the appellants. They filed the writ petition seeking to quash Ext.P2, an order conveying that the second respondent has approved the appointment of the third respondent as Director of Aligarh Muslim University Centre at Malappuram for a tenure of 5 years on deputation basis. There is a further prayer requiring respondents 1 and 2 to notify the vacancy of Director, Aligarh Muslim University Centre, Malappuram for appointment after due selection process. Learned Single Judge dismissed the writ petition and upheld the appointment of the third respondent. It is this judgment, which is challenged before us. W.A.408/16 : 2 : 2. We heard the counsel for the appellants, Standing Counsel appearing for respondents 1 and 2 and the learned counsel appearing for the third respondent. 3. On facts, it is relevant to note that the first respondent University had issued Ext.P1 vacancy notification dated 17.7.2013 inviting applications, among others, for the post of Director, specifying the prescribed qualifications. It was also specified that the appointments will be made on contractual basis. In pursuance to the notification, applications were received and after a process of selection, Dr.Zakkariya.K.A. was selected and was appointed. Dr.Zakkariya.K.A. accepted the offer and joined duty on 30.10.2013. 4. Subsequently, Dr.Zakkariya.K.A. resigned from the post with effect from 27.11.2014. In view of the resignation thus submitted by Dr.Zakkariya.K.A., the University issued Ext.P2 order, dated 10.11.2014, appointing the third respondent, whose name was included in the waiting list prepared by the Committee which W.A.408/16 : 3 : finalised the selection in pursuance to Ext.P1. Ext.P2 order shows that the said appointment was made by the Vice Chancellor in exercise of his powers under Section 19(3) of the Aligarh Muslim University Act, 1920 and that it is for a tenure of 5 years on deputation basis. The appointment is effective from 28.11.2014. Accordingly, the third respondent took charge and is working as Director. 5. The appellants contend that such appointment of the third respondent could not have been made, particularly, having regard to the fact that Dr.Zakkariya.K.A. was appointed on conclusion of the selection process and that with the appointment made to the notified vacancy, the selection got itself exhausted. According to them, if a further notification was issued, being qualified and eligible, they would have responded to the notification. On the other hand, the University contended that the entire cause of action leading to the appointment of the third respondent arose outside W.A.408/16 : 4 : the territorial jurisdiction of this court and hence this court did not have jurisdiction to entertain the writ petition. To support this contention, they relied on the judgment of this court in _Indian_ . _Maritime University v. Viswanathan [2014 (4) KLT 798 (FB)]_ They also contended that the Vice Chancellor was entitled to make appointments in the nature of Ext.P2 in exercise of the power under Section 19(3) of the Act read with Statute 6B of the Schedule to the Act. It is stated that when the selection in pursuance to Ext.P1 was held, waiting list was prepared by the Selection Committee and consequent on the resignation of Dr.Zakkariya.K.A., when a vacancy arose and that too within the initial tenure period of five years, the University was entitled to appoint the next candidate from the waiting list, who in this case is the third respondent. The learned counsel appearing for the third respondent also supported the contentions urged by the Standing Counsel appearing for respondents 1 and 2. W.A.408/16 : 5 : 6. We have considered the submissions made. In sofar as the question regarding the maintainability of the writ petition and the writ appeal filed by the appellants is concerned, first of all, this plea was raised by the University, and was specifically rejected by the learned Single Judge. Despite such express rejection of their contention, the University has not chosen to file any appeal or cross objection. However, the learned counsel for the respondents 1 and 2 placed reliance on the principles contained in Order 41 Rule 22 C.P.C. and according to him, even in the absence of an appeal or cross objection, the respondents are entitled to contend that any finding against them ought to have been in their favour. Therefore, according to him, respondents were entitled to raise the contention regarding the absence of territorial jurisdiction of this court to entertain a challenge against Ext.P2. 7. According to us, even if this contention raised by respondents 1 and 2 is accepted, we are not satisfied that the W.A.408/16 : 6 : finding of the learned Single Judge rejecting the plea of absence of territorial jurisdiction merits to be reversed. Insofar as this case is concerned, though the selection process was initiated from Aligarh where the University is situated, the appointment made was to a post at the University Centre at Malappuram. The appointment order was served in Kerala and the appointee has taken charge in Kerala. As against this, the cases that were considered by the Full Bench in _Indian Maritime University's case (supra)_ the question considered was whether service of notice within the State by itself would form part of the cause of action to maintain a challenge before this court against such notice and the consequential proceedings taken. It was in the aforesaid factual background, this court held that service of notice in this state would not form part of the cause of action at best gives the aggrieved party a right of action and nothing more. Even the case of the petitioner in the _Indian Maritime University's case (supra)_ the entire selection W.A.408/16 : 7 : process leading to his appointment was initiated in Chennai and though his request to be posted in Kerala was accepted, even before he took charge, his appointment was kept in abeyance. It was such an order passed by the University which was served on the petitioner in Kerala, that was under challenge. In other words, unlike in this case, no part of the cause of action has arisen within the territorial jurisdiction of this court. Sum and substance of the discussion is that the principles laid down by the Full Bench, as rightly held by the learned Single Judge, cannot called in aid by the respondents to sustain their contention regarding the alleged absence of jurisdiction to this court. 8. Coming to the merits of this case, as we have already stated, it was by Ext.P1, vacancy notified on 17.7.2013, that the University invited applications for appointment to the post of Director. In the selection that followed the notification, University prepared a select list including a waiting list and it was from that W.A.408/16 : 8 : list Dr.Zakkariya.K.A. was appointed. Dr.Zakkariya.K.A. accepted the offer made and joined duty in October, 2013. However, he resigned from the post with effect from 27.11.2014. This shows that with the appointment of Dr.Zakkariya.K.A., the notification served its purpose and the list, prepared by the University for appointment to the single notified post of Director got itself exhausted. Once the select list got itself exhausted, the subsequent vacancy that arose due to the resignation of Dr.Zakkariya.K.A. could have been filled up by the University only by inviting applications afresh and conducting selection on that basis. This the University did not do and instead, it has appointed the third respondent from an exhausted list and such an appointment made by the University cannot be sustained in law. 9. Insofar as Section 19 of the University Act relied on by the learned counsel for the University is concerned, reading of Section 19(3) makes it clear that this Section confers emergency powers on W.A.408/16 : 9 : the Vice Chancellor to take immediate action when necessary on any matter and he can exercise any power conferred on any authority of the University by or under the Act and shall report to such authority the action taken by him on such matter. 10. According to us, such emergency power conferred on the vice chancellor is to be exercised in the manner as provided in the University Act and does not enable the Vice Chancellor to act otherwise. True, the learned counsel for the University contended that on account of the immediate exit of Dr.Zakkariya.K.A., the University had to make emergent appointment as various projects were under execution. According to us, even such an emergency will not justify bypassing of the statutory powers. We also find that such situations are taken care of by Statute 6B(6) of the University, which provides that in the event the office of the Director becomes vacant due to the reasons such as resignation, the duties of his office shall be performed by such person as the Vice Chancellor W.A.408/16 : 10 : may appoint for the purpose. Therefore, on the resignation of Dr.Zakkariya.K.A. what the Vice Chancellor should have been done was to take recourse to Statute 6B(6) and make alternative arrangement and at the same time initiate proceedings for recruitment from outside. 11. For the aforesaid reasons, we are unable to sustain the conclusions of the learned Single Judge upholding Ext.P2. Therefore, judgment under appeal and Ext.P2 are set aside, leaving it open to the University to take appropriate action for filling up the vacancy of Director by inviting applications and in the meantime, to make such alternative arrangements as deems fit. Writ appeal is allowed. _Sd/-_ **ANTONY DOMINIC JUDGE** _Sd/-_ **P.V.ASHA JUDGE** _jes_