Jebu Varghese M v State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 12938 of 2007(S) ------------------------------------ PETITIONER: --------------- JEBU VARGHEESE.M, AGED 40 YEARS, S/O K.G.THANKACHAN, PALAMOOTTIL HOUSE, ERAMATHOOR P.O., MANNAR, ALLEPPEY DIST. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENTS: ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, RAJ BHAVAN, THIRUVANANTHAPURAM. 3. THE PRO-CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, OFFICE OF THE MINISTER FOR AGRICULTURE, THIRUVANANTHAPURAM. 4. SRI.K.R.VISWAMBARAN, VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR DIST. 5. THE INDIAN COUNCIL FOR AGRICULTURAL RESEARCH, KRISHI BHAVAN, NEW DELHI, REPRESENTED BY ITS DIRECTOR GENERAL. R1 TO R3 BY ADDL.ADVOCATE GENERAL SRI.RENJITH THAMPAN R4 BY ADV.SRI.K.P.MUJEEB, SC, KERALA AGRI. UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.P.(C) NO.12938 OF 2007 ## APPENDIX PETITIONER'S EXHIBITS: - EXT.P1 TRUE COPY OF THE ANNEXURE SHOWING THE PAY SCALE ALONG WITH COVERING LETTER DATED 3.3.1999 - EXT.P2 TRUE COPY OF THE ORDER DATED 2.3.2000 ISSUED BY THE KERALA AGRICULTURAL UNIVERSITY - EXT.P3 RUE COPY OF THE NEWS ITEM APPEARED IN THE HINDU DAILY DATED 23.3.2007 - EXT.P4 TRUE COPY OF THE NEWS ITEM APPEARED IN THE MATHRUBHUMI DAILY DATED 27.3.2007 - EXT.P5 TRUE COPY OF THE NEWS ITEM APPEARED IN THE MATHRUBHUMI DAILY DATED 29.3.2007 - EXT.P6 TRUE COPY OF THE NEWS ITEM APPEARED IN THE MALAYALA MANORAMA DAILY DATED 1.4.2007 - EXT.P7 TRUE COPY OF THE COMMUNICATION DTD.28.3.2007 ISSUED BY THE PRO CHANCELLOR - EXT.P8 TRUE COPY OF THE MINUTES OF THE MEETING HELD ON THURSDAY THE 30TH NOVEMBER OF THE SELECTION COMMITTEE ## RESPONDENTS” EXHIBITS - EXT.R1(A) TRUE COPY OF LETTER NO.F.NO.41-1/97-LAW DATED 9.2.2007 OF THE INDIAN COUNCIL OF AGRICULTURAL RESEARCH - EXT.R1(B) TRUE COPY OF THE NOTIFICATION NO.10331/AF2/06/AD DATED 28.3.2007 **J.Chelameswar, C.J. & C.N.Ramachandran Nair, J.** ------------------------------------------ ## **W.P.(C) No.12938 of 2007** -----------------------------------------Dated this the 8[th ] day of April, 2010 ## **JUDGMENT** ## **J.Chelameswar, C.J.** This writ petition is filed with the following prayers: “i) To issue a Writ of Quo warranto calling upon the 4[th] respondent to show before this Hon'ble Court under what authority of law he is holding the post of Vice Chancellor. ii) To issue a Writ of Mandamus forbearing the 4[th] respondent from continuing to function as Vice Chancellor of the Kerala Agricultural University and there is no valid order appointing him as such in terms of the Kerala Agricultural University Act or any other related enactments in force. iii) To issue a Writ of Mandamus calling upon the 4[th] respondent to immediately vacate the office of the Vice Chancellor of the Kerala Agricultural University and direct the Chancellor to make appointment of a suitable person in terms of the recommendation of the selection committee in accordance with law. iv) To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case.” W.P.(C) No.12938 of 2007 - 2 - 2. The 4[th] respondent was appointed Vice Chancellor of the Kerala Agricultural University by an order dated 28[th] March, 2007 of the third respondent Pro-Chancellor of the said University. It may be mentioned here that Section 26 of the Kerala Agricultural University Act,1971 stipulates that the Minister in charge of the Agriculture Department of the State shall, by virtue of his office, be the Pro-Chancellor of the University constituted under the abovementioned Act. The appointment order dated 28[th] March, 2007 was signed admittedly by the Minister in charge of the Agriculture Department. 3. The Kerala Agricultural University is a statutory corporation. Section 25 of the said Act stipulates that the Governor of Kerala shall, by virtue of his office, be the Chancellor of the University. Section 26 stipulates that the Minister in charge of the Agriculture Department of the State shall, by virtue of his office, be the Pro-Chancellor of the W.P.(C) No.12938 of 2007 - 3 - University, whereas Section 27 of the Act stipulates that there shall be a Vice Chancellor for the University who shall be a full time officer of the University. Section 27 further stipulates the procedure by which the Vice Chancellor is to be appointed which reads as follows: “27. The Vice-Chancellor:- (1) The ViceChancellor shall be a full-time officer of the University. (2) The Vice-Chancellor shall be appointed by the Chancellor on the advice of the selection committee consisting of a nominee of the Chancellor, the Director-General of the Indian Council of Agricultural Research and one nominee of the General Council. Provided that the nominee of the General Council shall not be from among the members of that Council or an employee of the University. Provided further that if the advice rendered by the Selection Committee is not unanimous, the Chancellor may accept the opinion of the majority of its members. Provided also that if the Selection Committee fails to tender advice, the Chancellor shall be free to W.P.(C) No.12938 of 2007 **==> picture [21 x 9] intentionally omitted <==** make the appointment on the advice of the Government.” 4. It can be seen from the above that normally the Vice Chancellor is to be appointed by the Chancellor on the advice of the Selection Committee consisting of one nominee of the Chancellor, the Director General of the Indian Council of Agricultural Research and one nominee of the 'General Council', a defined expression under Section 2(10) of the said Act. It may be stated here that Section 9(1) postulates creation of General Council under the said Act. Section 10 prescribes the composition of the General Council. 5. Under the third proviso to sub-section (2) of Section 27, if the Selection Committee contemplated under subsection (2) fails to tender any advice regarding the suitable candidate for appointment as Vice Chancellor, the Chancellor is at liberty to make the appointment of the Vice Chancellor on the advice of the Government. The scheme of the other subsections of Section 27 may not be necessary or relevant for the W.P.(C) No.12938 of 2007 - 5 - purpose of the controversy at hand. 6. It is the case of the writ petitioner that the Selection Committee contemplated under Section 27(2) of the Act was in fact constituted and the said committee met on 30[th] November, 2006 and recommended the names of six persons, but the name of the 4[th] respondent who eventually came to be appointed Vice Chancellor was not one of the six persons recommended by the Selection Committee. Though the name of the 4[th] respondent was not recommended by the said Selection Committee, the 4[th] respondent came to be appointed Vice Chancellor of the Agricultural University in violation of the statutory procedure contemplated under Section 27 of the Act. It is the further case of the petitioner that the appointment order dated 28.3.2007 is also vitiated for the reason that such an order came to be issued by the Pro Chancellor, but not the Chancellor while Section 27 contemplates specifically that the appointment be made only by the Chancellor, but not the Pro Chancellor. W.P.(C) No.12938 of 2007 - 6 - 7. The respondents are served. The first three respondents are represented by Sri.Renjith Thampan, learned Additional Advocate General and the 4[th] respondent is represented by Sri.Mujeeb, learned Standing Counsel. 8. On behalf of the first respondent a counter affidavit came to be filed by the Deputy Secretary to the Government of Kerala, Agriculture Department who claims that the deponent of the affidavit is duly authorised to give the affidavit on behalf of the first respondent. In paragraph 3 of the said affidavit it is stated that the committee contemplated under Section 27(2) did meet on 30.11.2006 as alleged by the petitioner, but failed to reach an agreement to suggest any specific name for appointment to the office of the Vice Chancellor. In view of the said inability of the committee, the Chancellor called upon the Government to suggest a suitable person to be appointed as Vice Chancellor. Therefore, the Government suggested the name of the 4[th] respondent herein. W.P.(C) No.12938 of 2007 - 7 - ## Paragraph 3 of the counter affidavit reads as follows: “3. It is submitted that consequent to the expiry of the tenure of Dr.K.V.Peter as Vice Chancellor of Kerala Agricultural University as provided in Section 27(2) of Kerala Agricultural University Act, a selection committee was constituted to facilitate the appointment of a new Vice Chancellor. The Committee consisting of a nominee each of the Governor, the General Council of the Kerala Agricultural University and the Director, General, ICAR held its meeting on 30[th] November, 2006, but failed to reach an agrement to enable it to tender its advice to the Chancellor. This position was reported to the Chancellor. The Chancellor, as per Section 27 (2), asked the Government to suggest a suitable person/persons to be appointed as Vice Chancellor. Accordingly the Government suggested the names of Sri.K.R.Viswambaran and Sri.K.R.Muralidharan, both IAS officers home on the Kerala Cadre, who are conversant with the affairs of higher education as well as public administration.” 9. It is further stated in the counter affidavit that the appointment order of the 4[th] respondent was issued by the Pro Chancellor in exercise of the powers delegated to him by the W.P.(C) No.12938 of 2007 - 8 - Chancellor and such delegation is permissible in view of the provisions contained under Section 26(3) of the Act. The relevant portion of the counter affidavit reads as follows: “5. Subsequently, the Chancellor directed to discuss the matter in the Council of Ministers and to report the recommendation in this regard to H.E. the Chancellor. After detailed discussion, in its meeting of the Council of Ministers held on 14.3.2007 has decided to recommend to the Chancellor the name of Sri.K.R.Viswambaran, IAS for appointment as Vice Chancellor of Kerala Agricultural University. In exercise of the powers conferred on His Excellency the Governor under Section 26(3) of the Kerala Agricultural University Act the Chancellor delegated to the Minister for Agriculture and Pro-Chancellor, Kerala Agricultural University the power to issue the order in the appointment of Vice Chancellor.” 10. Sri.K.Ramakumar, learned senior counsel appearing for the writ petitioner argued that the stand of the respondents that the committee constituted under Section 27(2) of the Act could not agree upon any name to be recommended to the Chancellor is a doubtful fact. We, therefore, called upon the W.P.(C) No.12938 of 2007 - 9 - learned Additional Advocate General to produce the original files to establish the various facts stated in the counter affidavit filed on behalf of the first respondent. Accordingly, the files are produced before us today. We have perused the original files. 11. From the files, we notice that there was, in fact a letter written by the Chancellor on 1[st] December, 2006 addressed to the Chief Minister wherein it is indicated that the selection committee failed to reach an agreement regarding the candidature of a suitable person to the post of Vice Chancellor and therefore sought the advice of the Government in the matter as contemplated under the third proviso to sub-section (2) of Section 27 of the Act. Pursuant to the said letter, it appears that the matter was considered by the Cabinet of the State of Kerala in a meeting held on 14.3.2007 and decided to recommend the name of the 4[th] respondent herein for the purpose of appointment as Vice Chancellor of the Kerala Agricultural University. This information is contained in the minutes of the Cabinet recorded W.P.(C) No.12938 of 2007 **==> picture [27 x 9] intentionally omitted <==** by the Chief Secretary on 17[th] March, 2007. Pursuant to the said recommendation of the Government, the Governor/Chancellor by his proceedings dated 21.3.2007 accepted the advice of the Cabinet and opined that necessary orders be issued from the Government. The relevant portion of the proceedings of the Governor is as follows: “This appointment is being made not as per the recommendation of the Selection Committee, but on the advice of the State Government. Being so, it is appropriate that, as in similar cases, orders are issued from the Government”. Therefore, the appointment order came to be issued by the Minister for Agriculture who is also the ex-officio Pro Chancellor of the said University. 12. Learned senior counsel for the petitioner very strenuously contended that even though the appointment is to be made on the advice of the Government, the appointment of Vice Chancellor could be made only by the Chancellor, but it could W.P.(C) No.12938 of 2007 **==> picture [27 x 9] intentionally omitted <==** not be by the Pro Chancellor and in the absence of a valid order of appointment issued by the Chancellor, the appointment of the 4[th] respondent is still illegal. 13. On the other hand, learned Additional Advocate General argued that Section 26(3)* of the Act authorises the Pro Chancellor to exercise such powers and perform such other functions of the Chancellor as the Chancellor by an order in writing delegate to the Pro Chancellor of the Government acting as the Chancellor of the Agricultural University and did, in fact, delegate the power in favour of the third respondent to issue the order of appointment of the Vice Chancellor. We have, in fact, perused the original files and found that such a delegation was in fact made on 27.3.2007. 14. Learned counsel for the petitioner, however, very vehemently argued that the original file is not consistent with ------------------------------------------------------------------------------ * The Pro-Chancellor shall also exercise such other powers and perform such other functions of the Chancellor as the Chancellor may by order in writing delegate to the Pro-Chancellor, and such delegation may be subject to such restrictions and conditions as may be specified in such order. W.P.(C) No.12938 of 2007 **==> picture [27 x 9] intentionally omitted <==** the averments made in the counter affidavit filed on behalf of the first respondent and therefore, the petitioner is at a disadvantage of being taken by surprise. In support of his submission, learned counsel also placed reliance upon a judgment of the Supreme Court reported in _Mohinder Singh Gill and another_ v. _The Chief Election Commissioner_ (AIR 1978 SC 851). More specifically, learned counsel relied upon paragraph ## 8 of the said judgment which reads as follows: “The second equally relevant matter is 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, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18) “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, W.P.(C) No.12938 of 2007 - 13 - or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older.” 15. We are of the opinion that first of all there is no inconsistency between the original record and the counter affidavit filed on behalf of the first respondent in this regard. The first respondent's affidavit referred to above which is also extracted earlier is very categoric that the third respondent issued the appointment order of the 4th respondent in exercise of the powers delegated to him by the Chancellor. We have already recorded that on examination of the original records, we did find such proceedings of the Chancellor. Coming to the decision of the Supreme Court relied upon by the learned senior counsel appearing for the petitioner, we are of the opinion that the decision in no way supports the submission made by the W.P.(C) No.12938 of 2007 - 14 - learned counsel for the petitioner for the reason that what was found essentially by the Supreme Court was that the original order issued by the statutory authority cannot be explained or improved by filing a subsequent affidavit, but the decision does not say that where the affidavit filed is at variance of the original proceedings, the original proceedings must not prevail. At any rate, in the instant case, we have already recorded our satisfaction that there is no variance between the original records and the averments made in the counter affidavit filed on behalf of the first respondent. Therefore, the submission made by the learned senior counsel is rejected. In the result, we do not find any merit in the writ petition and it is dismissed. **J.Chelameswar, Chief Justice** **C.N.Ramachandran Nair, Judge** vns