IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 7883 of 2011(R) ------------------------- PETITIONER(S): ----------------------- P.MURALEEDHARAN, UNIVERSITY APPELLATE TRIBUNAL AND ADDITIONAL DISTRICT JUDGE-III, THIRUVANANTHAPURAM. BY ADVS. SRI.T.A.SHAJI SRI.MANUEL VIVERA SMT.MALU JOHN SRI.P.R.BANERJI RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. HIGH COURT OF KERALA, ERNAKULAM, REP. BY ITS REGISTRAR (SUBORDINATE JUDICIARY). 3. PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION (B) DEPARTMENT, GOVERMENT OF KERALA, THIRUVANANTHAPURAM. R1 AND R3 BY ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” S.SIRI JAGAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C) No. 7883 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the22nd day of March, 2011 J U D G M E N T In consultation with the High Court of Kerala, the petitioner, who is a District Judge in the judicial service has been nominated and appointed as the University Appellate Tribunal constituted for Kerala, Mahathma Gandhi, Calicut, and Kannur Unisversities and the Cochin University of Science and Technology. He took charge pursuant to the said appointment on 26.5.2010. He would attain the age of retirement as a District Judge on 30.6.2011. The petitioner submits that in view of the provisions of the University Acts concerned, once nominated as a University Appellate Tribunal, he is entitled to continue for the tenure for which he is so appointed, namely 3 years, which would expire only on 26.5.2013, notwithstanding the fact that he would retire as a District Judge on 30.6.2011. Apprehending that he would be asked to lay down office WPC.No.7883 of 2011 : 2 : on 30.6.2011, on attaining the age of retirement as a District Judge, he has filed this writ petition seeking the following reliefs: “i. declare that the petitioner is entitled to continue as University Appellate Tribunal for the purpose of the Acts of the Kerala, Mahatma Gandhi, Calicut and Kanur Universites and for the CUSAT Act till the expiry of a Period of 3 years from his date of nomination, namely up to 26.5.2013. 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 purpose 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 26.5.2013; 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 26.5.2013.” According to the petitioner, the tenure of the person nominated as University Appellate Tribunal as per all the University Acts is 3 years and therefore, once nominated and appointed as University Appellate Tribunal, the incumbent is entitled to continue for the entire term of 3 years and his service cannot be dispensed with WPC.No.7883 of 2011 : 3 : before the expiry of the 3 year period for which he is so appointed, on the ground that in between he is to attain the age of superannuation as a District Judge. The petitioner relies on the decisions of this Court in Sadasiva Panicker Vs. State of Kerala reported in 1975 KLT 643 and Ajithkumar Vs. State of Kerala reported in 2010 (2) KLT 874. 2. I have considered the contentions of the petitioner as well as that of the learned Government Pleader. The provisions in all the University Acts are identical. I shall extract here Section 65 of the Kerala University Act 1974, which reads as follows: “65. Constitution of Appellate Tribunal:- 1) The Government shall constitute and 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 conslultation 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 regulations consistent with the provisions of this Act with previous sanction of the Government for regulating its procedure and disposal of its business. The regulations so made shall be published in the Gazette. WPC.No.7883 of 2011 : 4 : 5) The remuneration and other conditions of service of the Appellate Tribunal shall be such as may be prescribed by rules.” (underlining supplied) The said provision specifically state that the Appellate Tribunal shall be a judicial officer not below the rank of a District Judge. 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 30.6.2011. 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 WPC.No.7883 of 2011 : 5 : 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. In fact, the very same decision, which the petitioner relies on, namely Sadasiva Panicker Vs. State of Kerala reported in 1975 KLT 643, supports that conclusion. In that case, at the relevant time, the concerned provision of the University Act provided for a three member Tribunal consisting of a judicial officer, a syndicate member and a Joint Secretary to the Government of Kerala. It is construing that provision that this Court held that since a person who had been a Joint Secretary can also be a member of the University Appellate Tribunal, in so far as his tenure is 3 years, even after his retirement from the post of Joint Secretary, he can continue to be a member of University Appellate Tribunal for the full term. The WPC.No.7883 of 2011 : 6 : operative portion of the said judgment reads thus: “Coming into the merits of the case, I think the Government's order is wrong in law and liable to be quashed. Sub-s.(2) of S.59A stats as to who could constitute the Appellate Tribunal. It is to consist of- (a) a judicial officer not below the rank of a District Judge nominated by the Chancellor in consultation with the High Court; (b) a person from among the members of the Syndicate who is neither a teacher nor a person connected with the management of a private college to be nominated by the Syndicate;and (c) a person who is or has been an officer of the Government, not below the rank of a Joint Secretary to be nominated by the Government. The Government could, therefore, nominate either a person who is then in Government service or who has been in service. But once so nominated the term of office of the person so nominated shall be three years from the date of nomination. I do not think, reading the relevant clauses of the section, that superannuation of the Government nominee in service will shorten the term of that member. No qualification could be read into sub-section (3) of S.59A in regard to the term of a member even if he happens to be a Government servant at the time of his appointment as the Government seems to think. How could the mandatory provision of the statute be affected in any manner by the Government order which according to the counter filed on behalf of the State has reduced the post of Member of Appellate Tribunal held by a Government officer from full- time to part-time. The Act does not contemplate or makes a distinction between a full-time and a part- time member of the Tribunal. A member, once nominated as per S.59A (2) is a member of the Appellate Tribunal and Government cannot modify WPC.No.7883 of 2011 : 7 : the nature of the post by an executive decision.” In this connection in the said provision also the language used in clauses (a) and (c) are distinctly different. In the case of judicial officer the phrase “is or has been” is not used in clause (a) unlike in clause (c) . That itself shows that the interpretation of clause (c) cannot be applied to clause (a). That provision has been amended in all the University Acts and the provision now insists on a sitting judicial officer not below the rank of a District Judge as the University Appellate Tribunal. The intention behind that requirement is obvious in the sense that, the person nominated and appointed as University Appellate Tribunal in consultation with the High Court should be under the administrative control of the High Court at all times. For the same reason, the said decision cannot be pressed into service of the petitioner in support of his contention. 3. The decision in Ajithkumar's case (Supra) is on a totally different set of facts, regarding the continuation of a member of the Pharmacy Council the provision in respect of which is not in pari materia with the provisions of the University Acts. In that case this WPC.No.7883 of 2011 : 8 : Court was considering the effect of S.25(1) of the Pharmacy Act, 1948, which reads thus: “S.25 Term of office and casual vacancies-- (1) Subject to the provisions of this section a nominated or elected member, other than nominated President, shall hold office for a term of five years from the date of his nomination or election or until his successor has been duly nominated or elected, whichever is longer.” That provision is totally different from the provision of the University Acts under consideration. Therefore, the interpretation adopted for that provision cannot be applied to the case at hand. 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, WPC.No.7883 of 2011 : 9 : 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. According to me that is not what is contemplated by the provisions quoted above. In the above circumstances, I do not find any merit in this writ petition and accordingly the same is dismissed. SD/- (S.SIRI JAGAN, JUDGE) kp