Dr. Thara K. Simon v. Mahatma Gandhi University, The Vice Chancellor, Mahatma Gandhi University, Union Christian College Aluva, and University Grants Commission (UGC)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 8TH DAY OF JUNE 2018 / 18TH JYAISHTA, 1940** ## **W.P(C).No.18732 of 2018 -----------------------** ## **PETITIONER** **----------** **DR.THARA K.SIMON, W/o.DR.JACOB ELIAS, AGED 52 YEARS, PRESENTLY OFFICIATING AS THE PRINCIPAL, UNION CHRISTIAN COLLEGE, ALUVA AND RESIDING AT POOMTHOTTAM, 12, JYOTHIR NAGAR, U.C. COLLEGE P.O., ALUVA-680 102.** **BY ADVS.ROSHEN.D.ALEXANDER TINA ALEX THOMAS** ## **RESPONDENTS** **-----------** **1. MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM-686 560. REPRESENTED BY ITS REGISTRAR.** **2. THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM-686 560.** **3. THE UNION CHRISTIAN COLLEGE, ALUVA, POST BOX NO.5, ALUVA-683 102 REPRESENTED BY ITS MANAGER.** **4. THE UNIVERSITY GRANTS COMMISSION (UGC), BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002 REPRESENTED BY ITS SECRETARY.** **BY SRI.S.KRISHNAMOORTHY, CGC BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P(C).No.18732 of 2018 -----------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **---------------------** |**EXT.P1**|**TRUE COPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR**| |---|---| ||**MINORITY EDUCATIONAL INSTITUTIONS BEARING NO.F.NO.491 OF 2010/46116**| ||**DATED 28.09.2010.**| |**EXT.P2**|**TRUE COPY OF THE APPOINTMENT ORDER DATED 31.03.2018.**| |**EXT.P3**|**TRUE COPY OF THE JOINING REPORT DATED 01.04.2018.**| |**EXT.P4**|**TRUE COPY OF THE CERTIFICATE OF EXPERIENCE ISSUED BY THE MANAGER**| ||**OF THE UNION CHRISTIAN COLLEGE DATED 10.04.2018.**| |**EXT.P5**|**TRUE COPY OF THE SENIORITY-CUM-FITNESS CERTIFICATE DATED 01.04.2018**| ||**ISSUED BY THE MANAGER OF THE 3RD RESPONDENT COLLEGE.**| |**EXT.P6**|**TRUE COPY OF THE AGREEMENT DATED 31.03.2018 ENTERED INTO BETWEEN**| ||**THE 3RD RESPONDENT COLLEGE AND THE PETITIONER.**| |**EXT.P7**|**TRUE COPY OF THE PROPOSAL FORWARDED BY THE MANAGER DATED 30.04.2018.**| |**EXT.P8**|**A TRUE COPY OF THE GO(P) NO.10/2017/H.EDN. DATED 19.03.2017.**| |**EXT.P9**|**TRUE COPY OF THE REVISED PBAS PRE-FORMA FOR PROMOTIOIN UNDER UGC**| ||**CAREER ADVANCEMENT SCHEME IN ACCORDANCE WITH UGC REGULATIONS DATED**| ||**26.04.2018.**| |**EXT.P10**|**TRUE COPY OF THE RELEVANT PAGES OF THE UGC REGULATIONS ON (MINIMUM**| ||**QUALIFICATION FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFFS**| ||**IN UNIVERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF**| ||**STANDARDS IN HIGHER EDUCATION), 2010 FOR DIRECT RECRUITMENT.**| |**EXT.P11**|**TRUE COPY OF D.O.NO.F.1/122/2016(VIP/PS) DATED 30.08.2016 ISSUED BY**| ||**UGC.**| |**EXT.P12**|**TRUE COPY OF THE ORDER DATED 02.06.2018 ISSUED BY THE 1ST RESPONDENT**| ||**UNIVERSITY REJECTING PETITIONER'S APPROVAL.**| **RESPONDENTS' EXHIBITS : NIL** **---------------------** **//TRUE COPY//** **P.A. TO JUDGE** ## **bpr** ## **ANIL K. NARENDRAN, J.** ## **----------------------------------------W.P.(C) No.18732 of 2018 ----------------------------------------Dated this the 8[th] day of June, 2018** ## **JUDGMENT** The petitioner, who is presently officiating as the Principal of Union Christian College, Aluva, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P12 order dated 02.06.2018 of the 1[st] respondent University and seeking a declaration that, for the purpose of appointment to the post of Principal by promotion, the only qualification required is that prescribed in Ext.P8 Government order dated 19.03.2017. The petitioner has also sought for other consequential reliefs. 2. On 07.06.2018, when this writ petition came up for admission, the learned Standing Counsel for the 1[st] respondent University sought time to get instructions and accordingly, it is listed today for further consideration. 3. Heard the learned Senior Counsel for the petitioner, W.P.(C) No.18732 of 2018 :-2-: the learned Standing Counsel for the 1[st] respondent University representing respondents 1 and 2, the learned counsel for the 3[rd] respondent College and also the learned Standing Counsel for the 4[th] respondent University Grants Commission (UGC). 4. By Ext.P12 order dated 02.06.2018, the 1[st] respondent University rejected the request for approval of the appointment of the petitioner as Principal of the 3[rd] respondent College. Ext.P12 order, which is cryptic and non-speaking, reads thus: "ആലലുവ യയൂണണിയൻ കകണിസസസ്ത്യൻ കകകോകളേജണിൽ കപണിൻസണിപകോൾ ആയണിരലുന്ന കഡകോ.കസകോമസ മകോസസ്ത്യലുവണിനനന നണിയമന കകോലകോവധണി 31/03/2018-ൽ അവസകോനണിച്ചസണിനകോൽ ടണി കകകോകളേജ് കബകോട്ടണണി വണിഭകോഗഗം അകസകോസണികയററ്റ് നകപകോഫസർ കഡകോ.സകോരകോ നക.സസമണണിനന കകകോകളേജ് കപണിൻസണിപളേകോയണി 01/04/2018 മലുസൽ 31/03/2023 വനരകയകോ ടണി യകോളേളുനട വണിരമണിക്കൽ സതീയസണി വനരകയകോ, ഏസകോകണകോ ആദസ്ത്യഗം അസലു വനര നണിയമണിച്ചത് അഗംഗതീകരണിക്കണനമന്ന ശണിപകോർശ ആലലുവ യയൂണണിയൻ കകണിസസസ്ത്യൻ കകകോകളേജ് മകോകനജർ സയൂചന (1) കപകകോരഗം സമർപണിച്ചണിരലുന്നലു. കപസലുസലുസ ശണിപകോർശ പരണിഗണണിച്ചറ്റ് സണിൻഡണികക്കററ്റ് പരകോമർശഗം (3) കപകകോരഗം സകോനഴെ പനയലുന്ന സതീരലുമകോനഗം സകനക് ണലു. ''ആലലുവ യലു.സണി. കകകോകളേജണിൽ കപണിൻസണിപകോൾ ആയണിരലുന്ന കഡകോ.കസകോമസ മകോസസ്ത്യലുവണിനനന നണിയമന കകോലകോവധണി 31/03/2018 സവകലുകന്നരഗം W.P.(C) No.18732 of 2018 :-3-: അവസകോനണിച്ചസണിനന സലുടർന്നറ്റ് 01/04/2018 രകോവണിനല മലുസൽ സകോനക്കയറഗം മയൂലഗം നണിയമണിസമകോയ കബകോട്ടണണി ഡണിപകോർട്ടറ്റ്നമനനണിൽ അകസകോസണികയററ്റ് നകപകോഫസനകോയ കഡകോ.സകോരകോ നക.സസമണണിനനന നണിയമനകോഗംഗതീകകോരഗം യലു.ജണി.സണി. നനഗലുകലഷൻ 2010 കപകകോരമലലകോത്തസണിനകോൽ നണിരസണിക് ൻ സതീരലുമകോനണിച്ചളു.” സദനലുസരണഗം ഉത്തരവ് പലുനനപടലുവണിക്കലുന്നലു.” ## 5. In **Breen v. Amalgamated Engineering Union** **[1971 (1) All. E.R. 1148]** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120]** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. ## 6. In **Commissioner of Police, Bombay v.** **Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court has held that, public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what W.P.(C) No.18732 of 2018 :-4-: he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Following the principle laid down in **Gordhandas Bhanji’s case (supra)** , the Apex Court has reiterated in **Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405]** that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. 7. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364]** held that, reasons substitute subjectivity by objectivity. The emphasis on recording W.P.(C) No.18732 of 2018 :-5-: reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance. 8. A Constitution Bench of the Apex Court has laid down in **Krishna Swami v. Union of India [(** 1992) 4 SCC 605] that, undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated W.P.(C) No.18732 of 2018 :-6-: and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. 9. In **B.A. Linga Reddy v. Karnataka State Transport Authority [(2015) 4 SCC 515]** the Apex Court after referring to its earlier judgments on the subject has reiterated that, the rule of reason is anti-thesis to arbitrariness in action and is a necessary concomitant of the principles of natural justice. If a statutory or public authority/functionary does not record the reasons, its decision would be rendered arbitrary, unfair, unjust and violating Article 14 and Article 21 of the Constitution of India. It is the duty of such authority/functionary to give reasons and to pass a speaking order that excludes arbitrariness in action. Referring to the facts of that case, the Apex Court noticed that, there is no consideration of the objections except mentioning the arguments of the rival parties and that objections both factual and legal have not W.P.(C) No.18732 of 2018 :-7-: been considered much less reasons assigned to overrule them. 10. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a Court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. Viewed in the light of the law laid down in the decisions W.P.(C) No.18732 of 2018 :-8-: referred to supra, Ext.P12 order, which is cryptic and nonspeaking, cannot be sustained in law. In the result, Ext.P12 order dated 02.06.2018 of the 1[st] respondent University is set aside and the said respondent is directed to issue a reasoned order on the request for approval of the appointment of the petitioner as Principal of the 3[rd] respondent College, strictly in accordance with law, and communicate the same to the petitioner, within a period of ten days from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** bpr //TRUE COPY// P.A. TO JUDGE The last sentence in the operative portion of the judgment dated 08/06/2018 in W.P.(C) No.18732/2018 is suo motu corrected by substituting with the following: **“In the result, Ext.P12 order dated 02/06/2018 of the 1[st] respondent University is set aside and the said respondent is directed to issue a reasoned order on the request for approval of the appointment of the petitioner as Principal of the 3[rd] respondent College, strictly in accordance with law, after affording the petitioner and also the Manager of** W.P.(C) No.18732 of 2018 :-9-: **the College an opportunity of being heard, and communicate the same to the petitioner within a period of 1 month from the date of receipt of a certified copy of this judgment.”** Correction is made as per order dated 26/06/2018 in W.P.(C) No.18732/2018. Sd/- **Registrar (Judicial)** bpr