IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 W.A.No.451 of 2011 --------------------------------- AGAINST THE JUDGEMENT IN W.P.(C)No.7883/2011-R DATED 22/03/2011 .................... APPELLANT/PETITIONER:- --------------------------------------- P.MURALEEDHARAN, UNIVERSITY APPELLATE TRIBUNAL AND ADDITIONAL DISTRICT JUDGE-III, THIRUVANANTHAPURAM. BY ADV. SRI.T.A.SHAJI. RESPONDENTS/RESPONDENTS:- ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM - 695 001. 2. HIGH COURT OF KERALA, ERNAKULAM - 682 031, REPRESENTED BY ITS REGISTRAR (SUBORDINATE JUDICIARY). 3. PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION (B) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001. R1 & R3 BY SENIOR GOVERNMENT PLEADER SRI.BENNY GERVASIS. R2 BY ADV. SRI.KRB.KAIMAL (SENIOR ADVOCATE) & ADV. SRI.B.UNNIKRISHNA KAIMAL. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON 22/06/2011 DELIVERED THE FOLLOWING:- W.A.NO.451 OF 2011 APPENDIX APPELLANT'S ANNEXURE:- --------------------------------------- ANNEXURE A1 - G.O.(Rt.) No.358/92/HOME DATED 18.1.1992. - TRUE COPY - J.Chelameswar, C.J. & Antony Dominic, J. --------------------------------------------------------------- W.A. No. 451 of 2011 --------------------------------------------------------------- Dated this the 22nd day of June, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J.Chelameswar, C.J. The unsuccessful petitioner in W.P.(C) No.7883/2011 is the appellant herein. The judgment under appeal is dated 22.03.2011. 2. The appellant is a member of the Kerala State Higher Judicial Service. The constitution, method of appointment and other service conditions pertaining to the said service are governed by the special rules framed by the Governor exercising power under Section 309 read with Article 233. The appellant was appointed as Additional District Judge-II, Thiruvananthapuram by an order dated 20.03.2009 of this Court and later, he was transferred and posted as Additional District Judge(Adhoc-1), Thiruvananthapuram. While he was working as Additional District Judge(Adhoc-1), Thiruvananthapuram, he was “appointed by the Government of Kerala as Appellate Tribunal for the purpose of the Kerala University Act, 1974”. 3. Section 65 of the Kerala University Act, 1974, stipulates that the Government shall constitute an Appellate Tribunal for the purpose of the said Act. Section 65 reads as follows:- W.A.No.451 of 2011 - 2 - “ S.65 Constitution of Appellate Tribunal - (1) The Government shall constitute an Appellate Tribunal for the purpose of this Act. (2) The Appellate Tribunal shall be a judicial officer not below the rank of District Judge nominated by the Chancellor in consultation with the High Court. (3) The term of office of the Appellate Tribunal shall be three years from the date of its nomination. (4) The Appellate Tribunal shall have the power to make regulation consistent with the provisions of the Act with the previous sanction of the Government for regulating its procedure and disposal of its business. The regulation so made shall be published in the Gazette. (5) The remuneration and other conditions of service of the Appellate Tribunal shall be such as may be prescribed by rules.” Such an appointment was made by G.O.(MS) No.105/2010/High Education dated 27.05.2010. Apart from that, by various other Government Orders issued on the same date, the appellant was simultaneously appointed as the Appellate Tribunal of four other Universities in the State of Kerala. The relevant portion of the pleadings in the writ petition reads as follows:- “3. While working as Additional District Judge (Adhoc-1), Thiruvananthapuram, accordingly, the petitioner was appointed by W.A.No.451 of 2011 - 3 - the Government of Kerala, as Appellate Tribunal for the purpose of the Kerala University Act, 1974(Act 17 of 1974) under sub-section (1) of Section 65 of the Kerala University Act as per nomination made by the Chancellor of the Kerala University in consultation with the High Court of Kerala as required under sub-section (2) of Section 65 of the Kerala University Act, 1974, as per G.O.(MS) No.105/2010/Higher Education dated 27.05.2010 and notified as SRO No.519/2010. He was simultaneously and similarly appointed as the University Appellate Tribunal for the Mahatma Gandhi University, Calicut University, Cochin University of Science and Technology and Kannur University by G.O.(MS) Nos.106/2010, 107/2010, 108/2010 and 109/2010 of Higher Education dated 27.05.2010 which were notified as SRO Nos.520/2010, 521/2010, 522/2010 and 523/2010 respectively. The above Government Orders were collectively published in the Kerala Gazette - Extraordinary No.1224 dated 27.05.2010. True copy of the above notification dated 27.05.2010 is produced herewith and marked as Exhibit-P1.” 4. According to the appellant, by virtue of the declaration made under sub-section (3) of Section 65, he is entitled to function as the Appellate Tribunal for a period of three years from the date of his nomination i.e., upto 26.05.2013. However, the appellant is due to retire from the service and cease to be a member of the Kerala State Higher Judicial Service on 30.06.2011, in view of the fact that he would reach the age of superannuation by the said date. The appellant, W.A.No.451 of 2011 - 4 - therefore, apprehended that he would be asked to vacate the office of the University Appellate Tribunal. Such an apprehension of the appellant is based on the fact that the earlier incumbent of the office was asked to vacate the office on the date of reaching his age of superannuation notwithstanding the fact that, he did not complete the tenure of three years under sub-section (3) of Section 65 of the Kerala University Act. The relevant portion of the pleading reads as follows:- “ 14. Though this being the unambiguous legal position, it appears that the respondents are under a mistaken notion that the petitioner is to superannuate on 30.06.2011 and he has to demit office as the University Appellate Tribunal as well on 30.06.2011. The earlier Appellate Tribunal was constrained to demit the office on his attaining the age of superannuation in the higher judicial service, but before completion of his full term of 3 years which is evident from the order No.B1-5550/2010 dated 27.05.2010 of the Registrar (Subordinate Judiciary) of the High Court of Kerala itself. True copy of that proceeding (order) is produced herewith and marked as Exhibit-P3. It is also understood that steps are accordingly being contemplated from the part of Respondent No.2 to place the service of another District Judge at the disposal of the government to be nominated as new University Appellate Tribunal on the notion that superannuation of the petitioner from the Kerala State Higher Judicial Service will shorten the 3 years' term of his service as the University Appellate Tribunal. The said W.A.No.451 of 2011 - 5 - understanding of the law is erroneous and misconceived. Therefore, the steps to nominate another District Judge as the Appellate Tribunal are unwarranted. In that event, the petitioner would be constrained to demit office on 30.06.2011 resulting in irreparable loss, prejudice and hardship to him.” 5. Therefore, the appellant approached this Court by filing W.P.(C) No.7883/2011 with prayers as follows:- “ (i) Declare that the petitioner is entitled to continue as University Appellate Tribunal for the purposes of the Acts of the Kerala, Mahatma Gandhi, Calicut and Kannur Universities and for the CUSAT Act till the expiry of a period of 3 years from his date of nomination, namely up to 26.05.2013. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction to allow the petitioner to continue as University Appellate Tribunal for the purposes of the Acts of the Kerala, Mahatma Gandhi, Calicut and Kannur Universities and for the CUSAT Act till the expiry of a period of 3 years from his date of nomination, namely up to 26.05.2013. (iii) Issue a writ of mandamus or any other appropriate writ, order or direction restraining the respondents from initiating any steps which would shorten the term of office of the petitioner as the University Appellate Tribunal including directions to the 2nd respondent not to place the service of any other District Judge to be appointed as University Appellate Tribunal before the expiry of the term of office of the petitioner, namely 26.05.2013.” W.A.No.451 of 2011 - 6 - 6. By the judgment under appeal, the writ petition was dismissed. The learned Judge recorded his reasons as follows:- “ In my opinion the said provision contemplates that the Appellate Tribunal shall be a judicial officer not below the rank of a District Judge not only at the time of appointment but also throughout his tenure. In other words, he would cease to be qualified to hold the office of the University Appellate Tribunal, if at any time he ceases to be a judicial officer not below the rank of a District Judge. Here admittedly the petitioner would cease to be a judicial officer on 30.06.2011. Thereafter he would only be a retired District Judge. I am of opinion that the provisions in the University Acts postulate manning of the University Tribunal by a judicial officer not below the rank of a District Judge at all times. In other words his position as Tribunal is co-terminus with his position as District Judge. If the intention of the legislature was otherwise, the provision would have read “The Appellate Tribunal shall be a person who is or has been a judicial officer not below the rank of a District Judge. Here the expression used is the “Appellate Tribunal shall be a judicial officer not below the rank of a District Judge.” Therefore, once the incumbent ceases to be a judicial officer not below the rank of a District Judge he cannot continue to be the University Appellate Tribunal, merely on the ground that the tenure of office is 3 years.” 7. Apart from that, the learned Judge also opined that such a conclusion is also inevitable for the following reasons:- W.A.No.451 of 2011 - 7 - “ 4. If the interpretation suggested by the petitioner is accepted, it would lead to anomalous results also. Presently since the University Appellate Tribunal is under the administrative control of the High Court, the Tribunal can be withdrawn as a District Judge in exigencies of service. For the efficient functioning of the judiciary, the High Court may have to exercise its powers to transfer judicial officers including the University Appellate Tribunal. But if he cannot be withdrawn before completion of the tenure of 3 years, the High Court cannot exercise that administrative control on him, which would have adverse effects on the functioning of the judiciary. Further, even when the Tribunal is reduced in rank in disciplinary proceedings, then also the Government would be forced to continue him as Tribunal.” Hence, the appeal. 8. The learned counsel for the appellant Sri.T.A.Shaji argued that the judgment under appeal is unsustainable for the reason that, on a plain reading of sub-section (3) of Section 65 of the Kerala University Act and other relevant provisions of various enactments governing the various other Universities with respect to which the appellant is constituted to be the Appellate Tribunal, the judicial officer constituted to be the Appellate Tribunal shall have an unhindered tenure of three years from the date of such constitution. There is nothing in the Kerala University Act or any other relevant University Act, which requires that W.A.No.451 of 2011 - 8 - the incumbent should continue to be a judicial officer not below the rank of a District Judge throughout the currency of such a tenure. Placing any interpretation to the contra that the incumbent should continue to be a judicial officer for the entire period of three years of the tenure would be inconsistent with the language of Section 65(3) of the Kerala University Act. The learned counsel for the appellant also argued that the reasons given at paragraph 4 of the judgment for supporting the conclusion such as the one reached by the learned Single Judge are not germane for the issue in the case. 9. Heard the learned counsel for the respondents. 10. The Appellate Tribunal contemplated under Section 65 of the Kerala University Act and provisions of the other enactments regulating the affairs of the various other Universities in the State of Kerala, is meant for examining the disputes arising out of various orders passed by the various authorities of the Universities. 11. Section 65(1) of the Kerala University Act mandates that the Government “shall constitute an Appellate Tribunal for the purpose of the Act”. Sub-section (2) thereof stipulates that the Appellate Tribunal shall be a judicial officer. The language in our view is significant. The language does not say that the Tribunal shall be W.A.No.451 of 2011 - 9 - manned by a judicial officer. It further mandates that the judicial officer must be an officer “not below the rank of a District Judge”. Once again, we point out that the Section does not require a judicial officer or a District Judge belonging to the Kerala State Higher Judicial Service. Such a judicial officer shall be nominated in consultation with the High Court. The expression 'High Court' itself is not defined under the Act. There is no indication in the Act to say that the Kerala High Court is required to be consulted. In the context of the present appeal, we do not propose to go into the said question, in view of the fact that the appellant is a member of the Kerala State Higher Judicial Service and necessarily, at least, in the context of the appellant, the expression 'High Court' in sub-section (2) of Section 65 shall only mean the Kerala High Court. 12. Before the learned Single Judge the appellant herein relied upon two decisions of this Court, reported in Sadasiva Panicker v. State of Kerala [1975 KLT 643] and Ajith Kumar v. State of Kerala [2010(2) KLT 874]. The learned Judge rightly opined that neither of the above mentioned two decisions supports the case of the appellant herein. In the earlier of the two cases mentioned above, the question was whether a Joint Secretary of the State of Kerala, W.A.No.451 of 2011 - 10 - appointed as one of the Members of the Appellate Tribunal, could continue to be a Member even after he attains the age of superannuation under the relevant rules governing his service with the State of Kerala. It must be stated that at the relevant point of time the University Act provided for a multi-membered Appellate Tribunal consisting of one judicial officer, one member of the University Syndicate and a civil servant/Joint Secretary of the Government of Kerala. The relevant provision dealing with the nomination of a civil servant/Joint Secretary read.- “a person who is or has been an officer of the Government .............” while such a language was absent in the context of judicial officer. Dealing with the question whether a Joint Secretary who attained the age of superannuation could continue to be a member of the University Tribunal, this Court held that having regard to the language of the provision(supra) such a person could continue. In the instant case, as rightly pointed out by the judgment under appeal, the language of Section 65 does not permit such a continuance. 13. Coming to the 2nd of the above-mentioned decisions, it dealt with the tenure of the members of the Pharmacy Council. Ajith W.A.No.451 of 2011 - 11 - Kumar was in the service of the State of Kerala, working as a Pharmacist in the Government Hospital, Thalasserry. He was nominated to be a member of the Kerala State Pharmacy Council, a body constituted under the Pharmacy Act, 1948. He was subsequently elected to be President of the State Council. Subsequently, the Government passed an order recalling the nomination of Ajith Kumar. It was the said decision of the Government which was challenged before this Court. The question in the case was whether, having regard to the scheme and tenure of the Pharmacy Act, the Government could recall a nomination already made. A Division Bench of this Court opined that the Government had no such power. The learned Single Judge rightly observed that the language of the relevant provision is entirely different and, therefore, the same is not in any way helpful to advance the case of the appellant. 14. In addition to the above mentioned two decisions, the learned counsel for the appellant relied upon the following decisions: 1. 1989 (1) KLT 526 - Muraleedharan v. Principal, 2. (1992) 3 SCC 526 - L.P.Agarwal v. Union of India, 3. (1993) 4 SCC 49 - Binay Kant M.Tripathi v. Union of India, 4. (2007) 6 SCC 276 - Union of India v. Shardindu. W.A.No.451 of 2011 - 12 - 15. 1989 (1) KLT 526: Muraleedharan was initially in the employment of the Government of Kerala in Public Health Engineering Department. In the year 1986, Kerala Water Authority, a statutory Corporation, came to be constituted under the provisions of the Kerala Water Supply and Sewerage Act. Section 19 of the said Act provided for the transfer of employees in the Public Health Engineering Department of the State of Kerala to the above-mentioned statutory Corporation, which assured that the conditions of service of employment under the new master/statutory Corporation would in no way be less favourable than they were with regard to the employment under the State of Kerala. The question before the Court was whether an employee so transferred to the Corporation is entitled to the benefit of a reservation of a seat provided in a Government Law College in favour of the employees of the State. Rejecting the submission that in view of the absence that the terms and conditions of service under the new master/statutory Corporation would not be less favourable than the terms and conditions of employment with the State and, therefore, Muraleedharan was entitled to claim the benefit of reservation provided in favour of the Government servants. The Court opined that the rights and privileges referred to in Section 19 of the Act must - W.A.No.451 of 2011 - 13 - “............. be understood in the context as referring to the rights and privileges available to a Government servant in the discharge of his duties as a Government servant. There is no right inherent in a Government servant to be admitted to the LL.B. (evening) Course, nor is there any such right or privilege preserved under Section 19”. 16. The learned counsel for the appellant relied upon the above-mentioned decision to establish that the employment under the Government and employment under the statutory Corporation are two different things governed by different sets of rights and obligations. Therefore, the learned counsel argued that the appellant herein, by virtue of his being constituted as the Appellate Tribunal under the University Act, is not governed in so far as the affairs of such Tribunal is concerned by the Rules/conditions of service regulating his service as a District Judge. Therefore, his attaining the age of superannuation in accordance with the Rules governing the Kerala Higher Judicial Service are irrelevant for deciding the question whether he could continue to act as the Appellate Tribunal under the University Act. 17. The fallacy in the argument of the appellant is that while in the case of Muraleedharan the master and servant relationship between Muraleedharan and the Government clearly came to an end W.A.No.451 of 2011 - 14 - on his being transferred to the service of a statutory Corporation, the master and servant relationship between the appellant herein and the State of Kerala is not terminated by virtue of the appellant's nomination to be the University Appellate Tribunal. We may also state that the appellant has not been transferred to any other service. He continues to be a member of the Kerala Higher Judicial Service. The only legal consequence that followed the nomination of the appellant to the Tribunal is that apart from the various responsibilities which were entrusted to the appellant under the law, such as the Kerala Civil Courts Act, 1957 and the provisions of the Code of Criminal Procedure, etc., the appellant was entrusted with one more responsibility under Section 65 of the University Act and other similar enactments. 18. In 1992 (3) SCC 526, Dr.Agarwal was appointed as Director of All India Institute of Medical Sciences, a statutory Corporation, for a period of five years or till he attains the age of 62 years, whichever is earlier. The question before the Supreme Court was whether such an employment could be prematurely terminated. Prior to his appointment as the Director of AIIMS, Dr.Agarwal was already in the employment of the said institution in the Opthalmology Department. The regulations governing the employment of the AIIMS W.A.No.451 of 2011 - 15 - provided for the termination of the employment before the employee reaches the age of superannuation prescribed under the regulations if the appointing authority is of the opinion that public interest demands such a course of action. The Supreme Court held that the post of Director of the AIIMS is a tenure post and, therefore, the rules of superannuation or premature retirement which are applicable to the other employees of the institute do not apply to the Director's post. At para 16, the Supreme Court held as follows:- “Under the Recruitment Rules the post of Director of the AIIMS is a tenure post. The said rules further provide the method of direct recruitment for filling the post. These service conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise. The age of 62 years provided under proviso to Regulation 30(2) of the Regulations only shows that no employee of the AIIMS can be given extension beyond that age. This has obviously been done for maintaining efficiency in the Institute services. We do not agree that simply because the appointment order of the appellant mentions that “he is appointed for a period of five years or till he attains the age of 62 years”, the appointment ceases to be a tenure-post. Even an outsider (not an existing employee of the AIIMS) can be selected and appointed to the post of Director. Can such person be retired prematurely curtailing his tenure of five years? Obviously not. The appointment of W.A.No.451 of 2011 - 16 - the appellant was on a five years tenure but it could be curtailed in the event of his attaining the age of 62 years before completing the said tenure. The High Court failed to appreciate the simple alphabet of the service jurisprudence. The High Court's reasoning is against the clear and unambiguous language of the Recruitment Rules. The said rules provide “Tenure for five years inclusive of one year probation” and the post is to be filled “by direct recruitment”. Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. The question of prematurely retiring him does not arise. The appointment order gave a clear tenure to the appellant. The High Court fell into error in reading “the concept of superannuation” in the said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span. The appellant could not therefore have been prematurely retired and that too without being put on any notice whatsoever. Under what circumstances can an appointment for a tenure be cut short is not a matter which requires our immediate consideration in this case ....”. 19. We do not see how the above-mentioned decision supports the case of the appellant. In our opinion, the appellant is not appointed to any tenure post. The appellant was nominated to be the W.A.No.451 of 2011 - 17 - University Appellate Tribunal. In other words, he was invested with a certain jurisdiction arising under the various enactments regulating the affairs of the Universities in Kerala. Such an investiture could be