IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 WP(C).No. 28284 of 2011(I) -------------------------- PETITIONER(S): --------------- DR.B.ASHOK IAS, VICE CHANCELLOR,KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY,POOKODE,WAYANAD DISTRICT, OFFICE OF THE VICE-CHANCELLOR,KAISON OFFICE, DIRECTORATE OF DAIRY DEVELOPMENT, PATTOM,THIRUVANANTHAPURAM-4 BY ADV. SRI.RENJITH THAMPAN, SENIOR ADVOCATE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.V.M.KRISHNAKUMAR RESPONDENT(S): --------------- 1. CHANCELLOR, KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY, RAJ BHAVAN,THIRUVANANTHAPURAM PIN 695 003 2. STATE OF KERALA, REPRESENTENTED BY ITS CHEIF SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM,PIN 695 001 3. THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM PIN 695 001 4. THE KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY,POOKKODE, REPRESENTED BY ITS REGISTRAR,CAMP OFFICE, MANNUTHY,THRISSUR,PIN 680 651 5. K.JAYAKUMAR IAS, ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA AND AGRICULTURAL PRODUCTION COMMISSIONER SECRETARIAT,THIRUVANANTHAPURAM PIN 695 001 ADDL.R6: DR.K.D. PRATHAPAN, AGED 45, S/O. .P. DIVAKARAN, ASST. PROFESSOR, DEPARTMENT OF ENTORMOLOGY, COLLEGE OF AGRICULTURE, KERALA AGRICULTURAL UNIVERSITY, VELLAYANI P.O., THIRUVANANTHAPURAM-695 522. (ADDL. R6 IMPLEADED AS PER ORDER IN IA 17611/2011 DT.16.11.2011) ADV. SRI.MILLU DANDAPANI FOR R-4 SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR ADDL.R6 SMT.SARITHA DAVID CHUNKATH FOR ADDL.R6 SR. GOVERNMENT PLEADER SHRI C.S. MANILAL FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON 8/12/2011 DELIVERED THE FOLLOWING: APPENDIX EXT.P1- TRUE COPY OF GO DATED 10.12.2010 EXT.P2-TRUE COPY OF NOTIFICATION DT.29.10.2010 EXT.P3-TRUE COPY OF GO DATED 21.10.2011 EXT.P4-TRUE COPY OF NOTIFICATION DT. 23.8.2011 EXT.P5-TRUE COPY OF GOVT. LETTER DATED 23.8.2011 EXT.P5(A)-TRUE COPY OF DRAFT MINUTES OF THE MEETING HELD BY CHIEF SECRETARY ON 9..8.2011 EXT.P6-TRUE COPY OF LITERARY WORK OF THE PETITIONER APPEARED IN MALAYALA MANORAMA DAILY DATED 10.10.2011 EXT.P7-TRUE COPY OF LETTER DATED 7.9.2011 EXT.P8-TRUE COPY OF EXTRACT OF RULE 6 OF INDIAN ADMINISTRATIVE SERVICE EXT.P9-TRUE COPY OF OFFICE MEMORANDUM DATED 6.1.2011 EXT.P10-TRUE COPY OF GOVT. ORDER DATED 10.12.2011 EXT.P11-TRUE COPY OF ORDER DT.28.1.2011 OF GOVERNMENT OF INDIA EXT.P12-TRUE COPY OF LETTER DT.2.11.2011 EXT.P13-TRUE COPY OF NEWS PAPER REPORT PUBLISHED IN INDIAN EXPRESS DAILY ON 23.10.2011 EXT.P14-TRUE COPY OF LETTER DT.15.2.1973 EXT.P15-TRUE COPY OF LETTER DT.5.4.1982 // TRUE COPY // P.S.TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 28284 of 2011-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of December, 2011. JUDGMENT The controversy herein is whether the notification issued by the Chancellor, by which, the term of the first Vice Chancellor of the Kerala Veterinary and Animal Sciences University was curtailed by invoking Section 12(7) of the Act, is justifiable. The plea raised by the petitioner mainly is that he is entitled to continue for a period of five years. It is submitted that the pleasure doctrine under Section 12(7) of the Act is subject to restrictions contained in sub-section (8) of the Act, and not absolute. 2. The necessary facts leading to the filing of the writ petition are the following: The petitioner is an officer of the Indian Administrative Service. The Kerala Veterinary and Animal Sciences University Act, 2010 (for short 'the Act') came into force on 14.6.2010. The petitioner who was on deputation to the Government of India, was considered for appointment as the first Vice Chancellor of the University. The order leading to his repatriation and the notification concerning his appointment have been produced as Exts.P1 and P2. The petitioner has been continuing as such wpc 28284/2011 2 after assumption of office on 3.1.2011. According to the petitioner, he was performing his duties to the satisfaction of everybody and he was appointed as Vice Chancellor after the Government was fully satisfied about his qualifications and the suitability to hold the post. 3. Ext.P3 is the order by which the Government decided to recall the petitioner from the post of the Vice Chancellor of the University with the permission of the Governor of Kerala and consequently, the Government placed at the disposal of the Animal Husbandry Department the service of the fifth respondent who is the Additional Chief Secretary and the Agricultural Production Commissioner, for holding the charge of the Vice Chancellor of the University. Ext.P4 is the notification issued by the Chancellor of the University, whereby in supersession of Ext.P2 notification by which the petitioner was appointed as First Vice Chancellor, the fifth respondent has been authorised to exercise the powers of the Vice Chancellor of the University till a new Vice Chancellor is appointed under the provisions of the Act. 4. The petitioner has raised the following grounds to challenge the order/notification: (a) That he is entitled to continue as Vice Chancellor of the University till 2.1.2016, as the tenure of his appointment is for a period of five years and can be removed only under Section 12(8) of the Act; (b) wpc 28284/2011 3 There are no administrative reasons warranting his recalling; (c) The whole functioning of the University will be affected by the process now initiated; and (d) The order/notification are issued due to extraneous and irrelevant reasons and are vitiated by malafides. 5. In that context, the petitioner also alleges that he had occasion to publish an article in one of the leading Malayalam Dailies on 10.10.2011, produced as Ext.P6 which has provoked the Chief Secretary and the 5th respondent, the Additional Chief Secretary and they had caused the issuance of Ext.P3. 6. Since the main argument rests on the fixed tenure of the appointment of the petitioner and his right to hold office for a period of five years, it is profitable to consider the statutory provisions in this regard. Section 12 provides for appointment of the Vice Chancellor. Section 12 along with the sub-sections are reproduced below: “12. The Vice-Chancellor.-- (1) The Vice-Chancellor shall be responsible for the duties allotted to him specifically by the Chancellor with the approval of the Board of Management or under this Act or Statutes and he shall preside over the meetings of the authorities of the University in the absence of the Chancellor. (2) The Vice-Chancellor shall be appointed by the Chancellor from among the panel of names recommended by the Search wpc 28284/2011 4 Committee consisting of the following members, namely:- (i) One member nominated by the chancellor; (ii) One member nominated by the Government; (iii) Director General, Indian Council of Agricultural Research or his nominee; (iv) President, Veterinary Council of India. The Chancellor shall appoint one of the members of the Committee to be the Chairman. (3) If the Chancellor does not approve any of the persons so recommended by the committee, he may call for fresh recommendation from the committee. (4) The committee shall submit a panel to the Chancellor, within such period as he may specify. The Chancellor shall with the concurrence of the Government, appoint one person as the Vice- Chancellor. If the Committee fails to submit a panel within the period so specified, the Chancellor may appoint any person who he deems fit to be the Vice-Chancellor on the advice of the Government. (5) Notwithstanding anything contained in sub-section (4) the first Vice Chancellor shall be appointed by the Chancellor on the recommendation of the Government. (6) No person shall be appointed as, or hold office of, the Vice-Chancellor if he has attained the age of seventy years. (7) The Vice-Chancellor shall, subject to the pleasure of the Chancellor and the provisions of sub-section (6), hold the office for a period of five years. The Vice-Chancellor shall be eligible for a wpc 28284/2011 5 second term. However, the Vice-Chancellor may, by writing under his hand addressed to the Chancellor, and after giving three months notice, resign his office. (8) (i) The Chancellor shall have the power to remove the Vice-Chancellor from office by an order in writing on charges of misappropriation, misconduct, mismanagement of funds or wilful omission, refusal to carry out the provisions of this Act or for abuse of powers vested on him: Provided that before taking an action under this sub-section such charges shall be proved by an enquiry conducted by the Chancellor as provided in clause (ii). (ii) For the purpose of holding an inquiry under this section the Chancellor shall appoint a person who is or has been a Judge of the High Court or the Supreme Court. The inquiry authority shall hold an inquiry after giving an opportunity to make representation by the Vice-Chancellor and shall submit a report to the Chancellor. (9) The emoluments and other conditions of service of the Vice-Chancellor shall be such as may be prescribed by Statutes. (10) When any temporary vacancy occurs in the office of Vice-Chancellor or if the Vice-Chancellor is, by reason of illness absence or for any other reason, unable to exercise the powers and perform the duties of his office, the Chancellor shall make necessary arrangements for exercising the powers of the Vice-Chancellor.” 7. The crucial provision coming up for interpretation herein is sub- section (7) wherein, it is provided that “the Vice-Chancellor shall, subject wpc 28284/2011 6 to the pleasure of the Chancellor and the provisions of sub-section (6), hold the office for a period of five years.” Sub-section (6) provides for an upper age limit of 70 years. Sub-section (8) is heavily relied upon by the learned counsel for the petitioner to contend for the position that the only method for removal of the Vice Chancellor is by recourse to the said provision, whereby the Chancellor is conferred with power to remove the Vice Chancellor on charges of misappropriation, misconduct, mismanagement of funds or wilful omission, refusal to carry out the provisions of the Act or for abuse of powers. Such removal is pre-conditioned by holding of an enquiry, as provided under the proviso to sub-sections (i) and (ii), whereby the Chancellor will have to appoint a person who has been a Judge of the High Court or the Supreme Court to hold it. The enquiry will have to be conducted after giving an opportunity to the Vice Chancellor to make a representation. 8. Heard learned Senior Counsel for the petitioner Shri Ranjith Thampan, Shri C.S. Manilal, Senior Govt. Pleader, Shri K. Ramakumar, learned Senior Counsel for the additional 6th respondent and Shri Millu Dandapani, learned counsel for the University. 9. It is mainly argued by the learned Senior Counsel for the petitioner that the term of the Vice Chancellor is fixed as five years under sub-section wpc 28284/2011 7 (7) of Section 12 and therefore the curtailing of the term as now attempted, cannot be sustained. It is further pointed out that sub-section (8) of Section 12 is quite important and in the absence of steps for any removal of the Vice Chancellor by invoking the power under sub-section (8) also, the term cannot be terminated as now attempted. It is pointed out that sub- section (8) will act as a restriction as far as the power under sub-section (7) is concerned and various decisions have been relied upon in this context. 10. Before going into the respective contentions of the parties, I will consider the statutory scheme itself. Sub-section (5) of Section 12 provides for appointment of the first Vice Chancellor by the Chancellor on the “recommendation of the Government”. The normal method of appointment of a Vice Chancellor is provided in sub-sections (2), (3) and (4) of Section 12. A person cannot continue beyond the age of 70 years. Sub-section (10) provides for filling up of temporary vacancies in the Office of the Vice Chancellor, and various contingencies are provided therein. 11. A comparison of the provisions of the Act with the Rules and the provisions under the allied University Acts will also be profitable. The provisions regarding appointment of Vice Chancellor are specifically provided under various enactments, viz. Kerala Agricultural University Act, 1971, Calicut University Act, 1975, Cochin University of Science and wpc 28284/2011 8 Technology Act, 1986, Kannur University Act, 1996, Kerala University Act, 1974, Mahatma Gandhi University Act, 1985, Sree Sankaracharya University of Sanskrit Act, 1994, Kerala University of Health Sciences Act, 2010 and National University of Advanced Legal Studies Act, 2005. The respective provisions of those Acts concerning the term of the Vice Chancellor are re-produced below: “The Kerala Agricultural University Act, 1971 - Sections 27(5) and 27 (6) 27 (5): Notwithstanding anything contained in sub-section (2), the first Vice-Chancellor after the commencement of this Act shall be appointed by the Chancellor for a period not exceeding five years on such terms and conditions as the Chancellor may determine. 27(6): The Vice Chancellor shall normally hold office for a term of five years and shall be eligible for re-appointment for one additional term of five years. Provided that a Vice-Chancellor appointed under this Section shall cease to hold officer on his completing the age of Sixty five years. Provided further that a person appointed as Vice-Chancellor before the commencement of the Kerala Agricultural University (Amendment Act), 1997, and holding office as such at the commencement of the said Act shall cease to hold office. (a) on his completing the age of sixty five years; or (b) on the date of commencement of the said Act, if he has wpc 28284/2011 9 already completed sixty five years of age at such commencement.” The Calicut University Act, 1971 - Section 10(6) 10(6): The Vice-Chancellor shall hold office for a term of four years from the date on which he enters upon his office and shall be eligible for reappointment: Provided that a person shall not be appointed as Vice- Chancellor for more than two terms. The Cochin University of Science and Technology Act, 1986 - Section 11(5) 11(5): The Vice-Chancellor shall hold office for a term of four years from the date on which he enters upon his office and shall not be eligible for reappointment. The Kannur University Act, 1996 - Section 10(10) 10(10): The Vice-Chancellor shall, hold office for a term of four years from the date on which he enters upon his office and shall be eligible for re-appointment: Provided that a person shall not be appointed as Vice- Chancellor for more than two terms. The Kerala University Act, 1974 - Section 10(6) 10(6): The Vice-Chancellor shall hold office for a term of four years from the date on which he enters upon his office and shall be eligible for reappointment: Provided that a person shall not be appointed as Vice- Chancellor for more than two terms. The Mahatma Gandhi University Act, 1985 - Section 10(10) 10(10): The Vice-Chancellor shall subject to sub-section (9), hold wpc 28284/2011 10 office for a term of four years from the date on which he enters upon his office and shall be eligible for re-appointment: Provided that a person shall not be appointed as Vice- Chancellor for more than two terms. The Sree Sankaracharya University of Sanskrit, 1994 - Sections 24(4) and 24(5)(a) and (b) 24(4): The Vice Chancellor shall hold office for a term of four years from the date on which he terns upon office. (5)(a) Notwithstanding anything contained in sub-sections (1) to (4), the chancellor may, on the advice of the Government, appoint a suitable person who has not completed sixty-two years of age as the first Vice-Chancellor on a part-time or whole-time basis for a period not exceeding thirty months. (b) The first Vice--Chancellor shall exercise the powers and perform the duties and functions of all the authorities of the University also until they are duly constituted within two years from the date of his appointment. The Kerala University of Health Sciences Act, 2010 - Section 10 (5)(i) 10(5)(i) The person appointed as the Vice-Chancellor shall, subject to the terms and conditions of his contract of service hold office for a contract period of five years from the date on which he enters upon office or till he attains the age of seventy years, whichever is earlier. National University of Advanced Legal Studies Act, 2005 - Sections 27(5) and (6) 27(5) Notwithstanding anything contained in this Act or the wpc 28284/2011 11 regulations, the first Vice-Chancellor shall be appointed by the Government on such terms and conditions as may be specified by order. (6) The term of office of the Vice-Chancellor shall be four years from the date on which he enters upon his office or until he attains the age of 65 whichever is earlier.” A comparison of the above provisions will show that unlike the provisions under the Kerala Veterinary and Animal Sciences University Act, 2010, the provisions of the other University Acts mentioned above do not contain the pleasure doctrine. Of course, the fixed term of the Vice Chancellor is specifically provided in those enactments. Provisions for removal on certain grounds are also there. 12. The scope and content of the pleasure doctrine in a case like the one herein, will have to be understood in the light of the scheme under the Constitution of India as well as in the light of the principles stated by the Apex Court in various decisions. Both sides relied upon a recent decision of the Apex Court in B.P. Singhal v. Union of India and another {(2010) 6 SCC 331}. Therein, the question was considered in the light of the argument that the removal of the Governor can only be on valid grounds and that the power is restricted. In para 83 of the judgment, the Apex Court summarised the conclusions as under: wpc 28284/2011 12 “83. We summarise our conclusions as under: (i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause. (ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstance for valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What would be compelling reasons would depend upon the facts and circumstances of each case. (iii) A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at the Centre is not a ground for removal of Governors holding office to make way for others favoured by the new Government. (iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal wpc 28284/2011 13 was either arbitrary, mala fide, capricious or whimsical, the Court will call upon the Union Government to disclose to the Court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or mala fide, the Court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.” 13. I shall now refer to the contentions raised by the respective parties in detail. Firstly, I shall deal with the contentions raised by the learned Senior Counsel for the petitioner. The petitioner's contention, as noticed already, mainly is that the tenure of five years provided under sub- section (7) of Section 12 cannot be curtailed. The removal can only be as provided under sub-section (8) after conducting enquiry which requires giving an opportunity. It is pointed out that the tenure of the Vice Chancellor who is appointed under Section 12, could be terminated only by three means: (i) by resignation; (ii) by completion of tenure; and (iii) by removal on the ground of misconduct or similar grounds raised in sub- section (8). In this context, learned Senior Counsel relied upon the decision of a Full Bench of Punjab and Haryana High Court in Dr. wpc 28284/2011 14 Bhagat Singh v. The Chancelor, Punjabi University and others (1981 (2) SLR P & H 329) and that of the Allahabad High Court in Hari Om Tripathi v. Nideshak, Rajya Nagar Vikas (1999 (3) AWC 2414). Therefore, the learned Senior Counsel points out that the pleasure doctrine will not apply at all. 14. It is submitted that the petitioner was under central deputation upto the year 2013 and since he has been recalled, there is a cooling off period of three years at the State cadre, which will be over only in 2016. The posting given on central deputation was much favourable to him both by way of emoluments as well as by way of status. Such a status was available in the post of Vice Chancellor also. Therefore, the attempt made by the Government to recall his service as Vice Chancellor goes beyond the power conferred under Section 12 of the Act. It is also submitted that Ext.P7 is the Performance Appraisal Report for the period from 3.1.2011 to 31.8.2011 made by the Chancellor, which will show that he had a meritorious tenure in the University and there was no adverse comment against him. It is therefore submitted that there is no real and justifiable reason to replace him. The petitioner has produced Ext.P12 containing the deliberations of the Cabinet and it is pointed out that the Cabinet did not wpc 28284/2011 15 consider the impact of Ext.P2 proceedings appointing the petitioner as Vice Chancellor for a period of five years. Lastly, it is submitted by relying upon Ext.P13 newspaper report that the publication of an article by the petitioner has irritated the Chief Secretary and others which is the real reason for recalling him and therefore extraneous considerations have played a major part. Learned Senior Counsel for the petitioner further submitted that if the doctrine of pleasure is upheld, then that will defeat the autonomy of the University. 15. Shri K. Ramakumar, learned Senior Counsel appearing for the additional 6th respondent submitted that the above contentions cannot be accepted at all in the light of the engrafting of the pleasure doctrine in sub- section (7) which acts absolutely and without any restriction. It is submitted that when the doctrine of pleasure applies, it is not obligatory to show any reason. No notice be issued as the incumbent is already told that the tenure is under pleasure. Principles of natural justice are not attracted. My attention was invited to the pleadings in the writ petition to show that the petitioner has not raised any allegations of malafides against the Governor who is the Chancellor as well as against the Government. Learned Senior Counsel relied upon the principles stated by the Apex Court in OM Narain wpc 28284/2011 16 Agarwal and others v. Nagar Palika Shahjahanpur and others {(1993) 2 SCC 242} and Krishna v. State of Maharashtra and others {(2001) 2 SCC 441}. It is therefore submitted that as the pleadings are not there to allege any arbitrariness or malafides, it is only a simple case of application of the pleasure doctrine. If that be so, going by the principles stated in the above decisions and also the decision in B.P. Singhal's case {(2010) 6 331}, it can be seen that reasons need not be there for an action like this and the Chancellor was well within his rights to act. 16. It is further submitted by the learned Senior Counsel for the additional 6th respondent that the pleasure doctrine incorporated in