(2011) 196 KLR 902

IN THE HIGH COURT OF KERALA AT ERNAKULAM

T.R. Ramachandran Nair, J.

W.P. (C) No. 16394 of 2010

Decided On: 10.02.2011

Dr. Tresa Radhakrishnan

Vs.

Chancellor, University of Kerala and Ors.

Head Note:-

Kerala University Act, 1974 - Section 17(13) - Senate Member - Nomination of - Among the Head of the Departments - the nomination has to be made "in the order of seniority" and "by rotation" - When seniority and rotation are the important principles, there cannot be any iota of doubt about the manner in which nominations have to be made.

Held:- It is clear from the section that no other guidelines have been prescribed therein to import any other test or method. It is clear that no amount of discretion is conferred on the Chancellor to evolve any other method of nomination also. Therefore, the power can be exercised only in one manner in that the nomination has to be made in the order of seniority and by rotation. Therefore, all the departments will get their due whenever nominations are made in that manner. Otherwise, it may lead to arbitrariness and illegalities. Therefore, it is not a case where ample power is conferred on the Chancellor to nominate Heads of Departments based on the number of chances they had obtained earlier. It will not depend upon the number of opportunities, as contended. Herein, what is pointed out in the counter-affidavit of the Respondents is that the other departments got two chances and the present department has got only one chance. The same not being the real criteria, the nominations herein made are clearly unsupportable. Therefore, it is a clear case wherein the entire statutory scheme was given a go-bye.

Chronological List of Cases Referred:-

For Appellant/Petitioner/Plaintiff: P. Ravindran, Sr. Adv., P. Deepak and Aparna Rajan, Advs.

For Respondents/Defendant: M.K. Damodaran, Sr. Adv., M. Rajagopalan Nair, S.C. for Kerala University, Shaji P. Chaly, P. Gopalakrishnan Nair, P. Narendran and M. Sreekumar, Advs.

J U D G M E N T

T.R. Ramachandran Nair, J.

1. The notification issued by the Chancellor nominating seven heads of University Departments to the Senate of the University as evident from Ext.P-2 is under challenge. It is alleged that the same is issued in violation of Sub-Section 13 of Section 17 of the Kerala University Act, 1974 (for short 'the Act').

2. The Petitioner is the Professor and Head of the Department of Aquatic Biology and Fisheries of the University. The University is governed by the Kerala University Act, 1974. The Department of Aquatic Biology and Fisheries is one of the oldest teaching cum research department of the Kerala University which was started in the year 1938 and formerly it was the Department of Marine Biology and Oceanography and in the year 1972 it was renamed as Department of Aquatic Biology and Fisheries.

3. It is the contention of the Petitioner that under Section 17(13) of the Act, seven Heads of Departments of the University who are not otherwise members of the senate, have to be nominated in the order of seniority by the Chancellor by rotation. The seniority of the departments are being taken into consideration and it will have to be done by rotation. The University Act is of the year 1974 and the first nomination was made thereafter. The term of the nominated members is two years. At the commencement of the Act there were only 21 departments and it has since been increased to 41. According to the Petitioner, in terms of the seniority the heads of departments of the following departments were entitled to be nominated, viz. Education, Geology, Linguistics, Aquatic Biology and Fisheries, Psychology, Computer Science and Bio-Chemistry. Lastly they were nominated prior to 20 - 25 years and the department of the Petitioner got nomination way back in 1986.

4. It is alleged that the list prepared by the Section showed the heads of seven departments as above, but it was corrected by the Office of Vice-chancellor and the present nominees represent newly formed departments and in nominating them the rotation and seniority of the department have not been maintained. The Petitioner has produced a chart furnished by the University showing the details of the departments as per Ext.P-3. According to the Petitioner, the departments like Law, Bio Technology, IMK, Future Studies, Optoelectronics, etc. had their nominees in senate as late as in 1995. Therefore, if the nominations are made in accordance with Section 17(13) of the Act, the existing 41 departments are to be provided their turn on the basis of seniority and by rotation.

5. It is alleged that the nomination has been made not in terms of the Statute and the Vice-chancellor who forwarded the list to the Chancellor, has interfered with the list prepared by the University Section. There is challenge against the nomination of the 6th Respondent also individually stating that he is not entitled to be considered for nomination as he is not a Head of the Department.

6. On behalf of the University, a statement has been filed. The Vice-chancellor has filed a separate counter-affidavit and some of the contesting Respondents have also filed counter-affidavits. A statement has been filed on behalf of the first Respondent Chancellor.

7. In the statement filed on behalf of the University, it is admitted that there are 41 departments now and the first one based on date of establishment is Aquatic Biology and Fisheries and the last one is Arabic. Ext.R-2(a) is the list prepared in accordance with the order of seniority and according to the date of establishment. Now two cycles of nomination has been completed with regard to the Head of the Departments. It is pointed out that certain departments got only one opportunity for nomination to the Senate and the object of Section 17(13) of the Act is to provide equal opportunities to all the departments for their representation in Senate in the order of seniority by rotation. It is contended in para 7 of the statement that all the other departments got two or more chances for nomination to Senate. Reliance is also placed on the decision of this Court in Thanga Dorai Vs. Chancellor, Kerala University 1995 (2) KLT 663. It is thus mainly contended that the departments which got least opportunity for nomination to Senate were nominated in their order of seniority and rotation.

8. The contesting Respondents have supported the above plea. Their contention is also that the departments now nominated have got only one chance whereas the other departments have got two or more chances. Therefore equal opportunity should be given to the said departments.

9. The Petitioner has filed a reply affidavit.

10. The Vice-chancellor, in the counter-affidavit in para 4 states that the general criterion adopted by the first Respondent for nominations this time was that the Departments which got only one chance to represent in the Senate be given a second chance. All the seven Heads of Departments nominated presently to the Senate are on the second round from the respective Departments. All the Departments mentioned by the Petitioner in paragraph 3, except that of the Department of Computer Science got nomination to the Senate on two or more occasions. The Departments which got least opportunity for nomination to the Senate were nominated in the order of seniority and by rotation by the Chancellor fully following the statutory mandates of Sub-section (13) of Section 17 of the Act. The allegations of mala fides have been denied by the Vice-chancellor. It is further reiterated in para 7 that the object of Section 17(13) of the Act is to provide equal opportunities to all the Departments for their representation in the Senate in the order of seniority and by rotation.

11. In the statement filed on behalf of the first Respondent Chancellor, it is averred in para 3 that the Vice-chancellor of the University by his letter dated 11 -5-2010 issued to the Office of the Chancellor intimated a panel of 12 Heads of Departments in the order of preference according to seniority and Ext.R-1(a) is the said letter. On enquiry being made, it was understood that the Vice-chancellor has prepared the list of the Heads of Departments taking into consideration the opportunity each Department got in the matter of representing the Senate. In other words, the Vice-chancellor prepared the list made mention of in Ext.R-1(a) letter with an object to provide equal opportunity to all the Departments for their representation in the Senate in the order of seniority by rotation. It is further reiterated in para 4 that the Chancellor is of the view that the Departments which got least opportunity for nomination to the Senate should be nominated in the order of seniority by rotation. Therefore, the Chancellor approved the first seven Heads of Departments out of 12 Heads of Departments, in Ext.R-1 (a) to be nominated to the Senate and accordingly issued Ext.R-1 (b) letter.

12. Heard Shri R Ravindran, learned Senior Counsel for the Petitioner, Shri M.K. Damodaran, learned Senior Counsel for the University, learned Senior Govt. Pleader Shri K.R. Ganesh appearing for the Chancellor and Shri R Gopalakrishnan Nair, Shri M. Sreekumar and Shri Shaji R Chaly, learned Counsel appearing for Respondents 6, 7, 9 and 10.

13. Learned Senior Counsel appearing for the Petitioner submitted that the method which could be adopted under Section 17(13) of the Act is by taking the seniority of the department, i.e. the date of formation of the department should form the basis for seniority. When the Act provides that it should be by seniority and by rotation, no other method can be adopted. Reliance is placed on the decision of this Court in Thanga Dorai's case 1995 (2) KLT 663 in that regard, wherein a similar question was considered with respect to Section 17(13) itself. It is pointed out that the principle that is adopted now is beset with arbitrariness. When a cycle of rotation has to be followed in terms of seniority of the departments from time to time, the Petitioner will get an opportunity for nomination along with others. It is pointed out that the departments cannot be categorised as departments which got two chances for nomination or one chance for nomination. It is not a case where the concept of providing equal opportunity to the departments arise at all since the said discretion is not available to the Chancellor in making the nomination. It is also not a case where the power conferred is coupled with discretion in exercising it. Therefore, the learned Senior Counsel submitted that the nominations made are clearly against the statutory scheme.

14. In Thanga Dorai's case 1995 (2) KLT 663 the very same question was considered by this Court. Therein it was held that nominations have to be made according to the seniority of the department with reference to the date of its establishment. It was held thus in para 2:

“Learned Advocate General appearing in the case submitted that seniority of the individual has not been the criteria so far adopted for nominating the seven Heads of Departments as per the Act. In view of this submission, it can safely be taken that the basis for nominating the Heads of Departments should be the seniority of the department with reference to the date of its establishment.”

In para 7 also it was held as follows:

“The seniority, as stated earlier, of the department is the aspect to be looked into. It is not the seniority of the individual who holds the post of Head of the Department.”

Thus, the principle is very clear that the nomination should go by the seniority of the date of establishment of the department and by rotation.

15. To drive home the principle under which the rotation has to be followed, the meaning of the word 'rotation' is relevant. Shri P. Ravindran, learned Senior Counsel relies upon the dictionary meaning of the term 'rotation' in that context. In "The Shorter Oxford English Dictionary", Third Edition the meaning of the word 'rotation' given is the following:

“1. The action of moving round a centre, or of turning round (and round) on an axis; also, the action of producing a motion of this kind.

2. The fact of coming round again in succession; return or recurrence; a. recurring series or period; b. Regular and recurring succession in office, duties, etc. of a number of persons. Freq. By or in; A change or succession of crops in a certain order on a given piece of ground, in order to avoid the exhaustion of the soil.

The perpetual R. of fortune; a. Medicines, suffer a.t. Of fashions like our cloaths; b. in America the tendency is towards rotation in office; c. a regular V of Crops and Fallow. Hence Rotational.

In "The Living Webster Encyclopedic Dictionary of the English Language" the meaning of the word 'rotation' is the following:

“The act of rotating or turning on an axis; one complete turn on an axis, astron, the motion of the earth or of other heavenly bodies on an axis. A return or succession in a series; established succession; agric. A recurring series of different crops grown on the same ground.”

Relying upon the same, it is contended that there should be a clear established succession to form a series. If that be so, it is contended that the concept of rotation will be like forming a round, so that after one rotation is over, it should start from the first department based on the date of its establishment and that it should proceed like that and all departments will be covered in due course. It is thus pointed out that the said principle is actually breached herein.

16. Learned Senior Counsel for the Petitioner relied on the principle that when a statute provides for a particular mode of doing things, the said mode alone can be adopted. Reliance is placed on the decision of the Apex Court in Babu Varghese and Ors. Vs. Bar Council of Kerala and Ors., (1999) 3 SCC 422 wherein in paragraphs 31 and 32 it was laid down thus:

“If Rule 6 was intended to be applied, then all of its requirements should have been fulfilled. It is a basic principle of law that if the manner of doing a particular action is prescribed under any statute, the act must be done in that manner or not at all.”

The said principle was restated in Meera Sahni v. Lieutenant Governor of Delhi and Ors., (2008) 9 SCC 177. In para 35, relying upon the decision in Babu Varghese' case, (1999) 3 SCC 422 it was held as follows:

“It is by now a certain law that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed and in no other manner. In this connection we may appropriately refer to the decision of this Court in Babu Varghese v. Bar Council of Kerala wherein it was held as under:”

Reliance is also placed on the principle stated by this Court in Saiji Jacob @ Sebastian, M.J. and Ors. v. State of Kerala and Ors. 2010 (3) K.H.C. 617. In para 13 it is stated thus:

“13. Evidently, consultation under Section 4(2) is a procedural requirement which is a pre condition for the validity of the subsequent decision. It is well-settled that if the statute requires a particular thing to be done in a particular manner, then it shall be done in that manner or not at all. This also indicates that the provision is mandatory.”

It is therefore submitted that in the light of the statutory scheme, no other principle can be evolved by the Chancellor in nominating the candidates.

17. Learned Senior Counsel appearing for the Petitioner further explained that this Court in Thanga Dorai's case, 1995 (2) KLT 663 took the view in para 7 that at that relevant point of time the then nominees represented certain departments who never got the opportunity and accordingly the Bench did not interfere with the same. It is stated that the same is not the ratio to be followed in this case. Merely because the learned Judge did not interfere with the then nomination, it cannot be said that the legal principle is the said one as contended by the Respondents in their counter-affidavit.

18. Learned Senior Counsel appearing for the University heavily relied on para 7 of the judgment in Thanga Dorai' s case (supra). For considering the argument, it is profitable to extract the crucial observations in para 7 of the said judgment which are as follows:

“Among the various Departments, the first six departments mentioned in the Notification were not at all represented in the Senate. All the other Departments which are seniors with reference to the date of their establishment were represented in the Senate some time or other. Therefore, depending on the seniority of the Departments, those Departments which had never got the opportunity to be represented in the Senate, were given that chance. In making that nomination, the seniority of those Departments were taken into consideration because while considering seniority the juniority among the departments is also to be looked into. Except the first six departments mentioned in Notification dated 19-5-1995 all the other senior Departments had their representative in the Senate some time or other. Viewed in this light, I do not find anything illegal or improper in the nomination of departments ranked 1 to 6 in the Notification dated 19-5-1995. Further when two views are possible on the interpretation of Section 17 Ex officio (13) and the Chancellor has chosen one of those views, this Court in exercise of the powers under Articles 226 of the Constitution is not to substitute its views for that of the Chancellor.”

Evidently, the learned Judge was not laying down any general principle to be followed for future application on the interpretation of Section 17(13) of the Act. In para 7 itself, in the earlier part the learned Judge held that the seniority of the personnel holding the post is not the aspect to be looked into, but it is the seniority of the date of establishment itself.

19. Therefore the observations relied on by the learned Senior Counsel Shri Damodaran, are not the legal principles which govern the interpretation of Section 17(13) of the Act. The learned Judge had chosen not to interfere with the nomination at that point of time because of the factual points raised therein. Therefore, it cannot be said that the same is the legal principle to be followed in respect of the nomination under Section 17(13) of the Act.

20. Section 17(13) of the Act reads as follows:

“17(13) Seven heads of University Departments who are not otherwise members of the Senate, to be nominated in the order of seniority by the Chancellor by rotation.”

Evidently, the nomination has to be made "in the order of seniority" and "by rotation". The meaning of the word 'rotation' is quite important. From the meanings quoted earlier from Dictionaries, it will imply the "fact of coming round in succession" as well as "the action of moving round a centre". When seniority and rotation are the important principles, there cannot be any iota of doubt about the manner in which nominations have to be made. It is clear from the section that no other guidelines have been prescribed therein to import any other test or method. It is clear that no amount of discretion is conferred on the Chancellor to evolve any other method of nomination also. Therefore, the power can be exercised only in one manner in that the nomination has to be made in the order of seniority and by rotation. Therefore, all the departments will get their due whenever nominations are made in that manner. Otherwise, it may lead to arbitrariness and illegalities. If the argument of the Respondents are accepted, then even the new departments formed in recent times could get nomination by stating that they never got a chance for being represented to the Senate. Ext.R-1 (a) produced along with the statement of the first Respondent shows 12 departments and seven were nominated in the order of their seniority. This is quite illegal. Such is not the criteria that is provided in Sub-section (13) of Section 17 of the Act. The same is the method to be followed in Sub-section (14) also which reads as follows:

“17(14) Four Deans of the Faculties of the University who are not otherwise members of the Senate, to be nominated in the order of seniority by the Chancellor by rotation.”

21. Therefore, it is not a case where ample power is conferred on the Chancellor to nominate Heads of Departments based on the number of chances they had obtained earlier. It will not depend upon the number of opportunities, as contended. Herein, what is pointed out in the counter-affidavit of the Respondents is that the other departments got two chances and the present department has got only one chance. The same not being the real criteria, the nominations herein made are clearly unsupportable.

22. As held by the Apex Court in Babu Varghese' s case (supra), when the statute provides for a particular manner for doing things, it shall be followed and other modes are excluded. Further, the nominees are entitled to participate in the election to the Syndicate. Provisions for forming the Senate are therefore to be held mandatory.

23. Even though relevant documents were directed to be produced to ascertain the manner in which it was being done from 1974, it was submitted by the learned Senior Counsel appearing for the University that the documents are available with the Office of the Chancellor only. Learned Govt. Pleader on getting instructions from the Office of the Chancellor submitted that recommendations have been made by the Vice Chancellor and the Chancellor has only acted upon it in good faith. It is pointed out by referring to the letter dated 7-2-2011 from the Office of the Chancellor that all the records in relation to seniority and rotation are maintained by the University themselves.

24. Therefore, it is a clear case wherein the entire statutory scheme was given a go-bye. The list of 12 departments forwarded by the Vice Chancellor to the Chancellor was not in accordance with seniority and rotation. Learned Counsel appearing for the other Respondents also vehemently supported the stand of the University. But plainly, in terms of Sub-section (13) of Section 17, the said contention cannot be accepted.

25. Therefore, the writ petition is allowed. There will be a direction to Respondents 1 and 2 to effect nominations to the Senate strictly in terms of Section 17(13) of the Act and in the light of the findings rendered above. It is pointed out that notification has been issued afresh for conducting the election to the Syndicate of the University. Therefore, appropriate steps will be taken in the matter expeditiously, so that the nominees of the Departments can participate in the ensuing election process. No costs.