H.L. Dattu, C.J.
1. State Government is the appellant in this appeal. Respondent No. 1 is the contesting private respondent. Respondent No. 2 is a formal party.
2. The State Government has informed the private respondent that his term as a member of the Syndicate of the 2nd respondent - Cochin University of Science and Technology, Cochin has expired and therefore, he has to vacate his seat as a member of the Syndicate of the University. However, the private contesting respondent is of the view that he can continue to sit and occupy the Chair as a member of the Syndicate. The tussle between the State Government and the first respondent has reached the High Court in the form of a writ petition filed by the private respondent. Learned Single Judge has allowed the writ petition and thereby has permitted the private respondent to continue to occupy his chair as a member of the Syndicate of the second respondent University. The result of the writ petition has brought the State Government before this Court by filing the writ appeal.
3. The private respondent was a member of the Senate of the 2nd respondent University. He was nominated as such by the State Government in exercise of its powers under Section 19(iv) of the Cochin University of Science and Technology Act, 1986 (hereinafter for the sake of brevity referred to as Act). The said nomination was done by the University by issuing a notification dated 7.5.2003. The term of his office as a member of the Senate commenced from 31.3.2003 and expired only on 13.2.2007.
4. The Registrar of Cochin University of Science and Technology has issued a notification dated 26.2.2005 pursuant to the letter of the State Government dated 26.2.2005 nominating the private respondent as a member to the Syndicate of the University as per Section 17(1)(viii) of the University Act, 1986. The nomination so made specifically states that the nomination made is against the vacancy caused by the relinquishment of membership of the Syndicate by one Sri.K.Mohammed Ali. The term of office of the nominee is subject to Act, 1986. The notification issued by the University has some significance for the purpose of disposal of the writ appeal. Therefore, the said notification is extracted in full and it is as under:
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGYNo. GA & EL.4/86NOTIFICATIONIt is hereby notified that the Government have been pleased tonominate the following members to the Syndicate of the CochinUniversity of Science and Technology as per Section 17(1)(x) and 17(1)(viii) of the Cochin University of Science and Technology Act,1986 vide Government letter No. 6018/B2/2005/H.Edn. dated26.02.2005.1. Sri. K. Mohammed Ali Under Section17(1)(x) in theM.L.A. (Aluva) vacancy caused by the termPattarumadom of Dr.K.C.Joseph, M.L.A.Chithra Lane, AluvaErnakulam - 683 101.2. Sri. T.P.M. Nazir, Under Section17(1)(x) in theM.L.A. (Kozhikode) vacancy consequent on the5/1479, Sharafath appointment of Sri. V.K. IbrahimKozhikode - 673006. Kunju, M.L.A. as Minister(Industries).3. Sri. R.S. Sasikumar Under Section17(1)(viii)'Nirmalyam', KRA 7 against the vacancy caused byNemom, Thiruvananthapuram relinquishment of member-- 695 020. -ship by Sri. K. Mohammed AliThe term of office of the nominees will be subject to the provision of the Cochin University of Science and Technology Act, 1986 (31 of 1986) and Statutes thereunder.
5. While the private respondent was continuing as a member of the Syndicate of the University, the State Government has passed an order dated 7.8.2006, informing the petitioner that his term has expired and therefore, he should vacate the seat as a member of the Syndicate. The said order passed by the State Government dated 7.8.2006 has some relevance. Therefore, the same is extracted and it reads as under:
Government of KeralaHigher Education (B) DepartmentNo. 16336/B2/2006/H.Edn. Dated Thiruvananthapuram 07.8.2006From
The Additional Chief Secretary.
To
The Registrar,
Cochin University of Science and Technology,
Cochi - 682 022.
Sir,
Sub: Higher Education/Universities/Cochin Universityof Science & Technology/R.S.Sasikumar/MemberSyndicate, Term of Office/Clarification reg:Ref: 1. Notification No. GA & EL.4/86/dt.15.6.2001,18.1.2003 & 26.2.2005.2. Govt. Lr. No. 5018/V2/2006/H.Edn. dt.26.2.2005.Inviting attention to the reference cited I am to inform you that Sri. R.S. Sasikumar was nominated to Syndicate Under Section 17(1)(viii) against the vacancy caused by the relinquishment of membership by Sri. K. Mohammed Ali vide letter cited (2).
In view of Section 45(2) of Cochin University of Science and Technology Act, 1986, he can hold office only till the date upto which Sri. K. Mohammed Ali would have been entitled to hold office, if he had not relinquished membership, upto 14.6.2005, the date of expiry of four years from the date of his nomination which was 15.6.2001. Thus in view of Section 17(2) and 45(2) of Cochin University of Science and Technologty Act, 1986, Sri. R.S. Sasikumar could have held office only upto 14.6.2005.
Necessary notification terminating his membership with immediate effect may be issued today itself.
Yours faithfully
Sd/-
G. Rajeswari,
Joint Secretary.
for Addl. Chief Secretary
Approved for issue,
Sd/-
Section Officer.
6. Aggrieved by the action of the State Government, the private respondent was before this Court in writ petition (c) No. 21092 of 2006. Learned Single Judge has allowed the writ petition and thereby has declared that the orders passed by the State Government dated 7.8.2006 is illegal, invalid and contrary to the provisions of the University Act. While concluding, the learned Single Judge has declared that the petitioner is entitled to continue as a member of the Syndicate, in view of the notification issued by the University dated 26.2.2005 wherein the University has nominated the private respondent/petitioner in the writ petition Under Section 17(1)(viii) of the Act. Learned Single Judge has also taken into consideration the view expressed by a Division Bench of this Court in the case of Kamaruddin P.K. v. Government of Kerala and Ors. 2000 (1) KLT 722.
7. The State Government while asserting that the learned Single Judge was not justified in allowing the writ petition has stated, that, under the provisions of the University Act the State has the power to nominate a person as a member of the Syndicate Under Section 17(1)(viii) of the Act and if such nomination is made under the aforesaid provision, in view of Sub-section (2) of Section 17 of the Act, the nominated member to the Syndicate can hold the office of the member of the Syndicate for a period of four years, and, he shall not be eligible for re-nomination and if for any reason, a person is nominated due to death, resignation or relinquishment of office of any member of the Syndicate, the vacancy that is caused can be filled up by the University in the place of the person who had relinquished the office and that can only be done under Section 45 of the Act and if such nomination is made, the term of office that he would be entitled to hold would be the remaining portion of the tenure of the earlier incumbent who had vacated the office as a member of the Syndicate.
8. The private respondent has filed a counter affidavit and in that it is stated, that, since his nomination was under Section 17(1)(viii) of the Act, he has every right to continue as a member of the Syndicate for a period of four years and therefore, the State Government is not justified in restricting the term of the office of the respondent for the remaining portion of the tenure of the earlier incumbent who had vacated.
9. Learned Advocate General appearing for the State Government would firstly contend that the private respondent was nominated as a member of the Syndicate in view of the vacancy caused by the relinquishment of the office of the membership of the syndicate by one Sri. Mohammed Ali, who was nominated as a member of the Syndicate. Continuing further, learned Advocate General would submit that though in the notification it is stated that the nomination of the private respondent is done Under Section 17(1)(viii) of the Act, it should be presumed that the said nomination is only under Section 45(1) of the Act and, therefore, the nominated member can hold office for the remaining period of the office that Sri. Mohammed Ali could have continued as a member of the Syndicate. In aid of this submission, learned Counsel has invited our attention to Section 17(1) and (2) and also Section 45 of the Act. Learned Advocate General also relies upon the observations made by the Full Bench of this Court in the case of Babu Raj v. State of Kerala 1994(2) KLT 679, wherein the Full Bench of this Court has stated that merely because a rule was not mentioned while granting retrospective regularisation for conferring seniority to the respondents therein, it must be presumed that such a decision/order is made only in exercise of the power under Rule 39 of the Kerala State and Subordinate Service Rules. In this regard, learned Advocate General invites our attention to the penultimate paragraph of the judgment of the Full Bench, which reads as under:
The aforesaid decision is an authority that the Government action in giving retrospective regularisation for conferring seniority to the respondents was in exercise of the residuary powers. Such a residuary power can certainly be traced to Rule 39 as quoted above. Even if the Rule was not mentioned as such, we are of the opinion that the action of the Government can be supported by tracing the source of power in the said rule.
10. Learned Advocate General then invites our attention to the observation made by the Apex Court in the case of State of Manipur v. Chandam Manihar Singh : AIR1999SC3730 . Reference to the law laid down by the Apex Court in the aforesaid decision requires to be noticed in detail and therefore the observations made in the aforesaid decision will be noticed at the appropriate stage while discussing the legal issues canvassed by the learned Counsel for the parties to the lis. Learned Advocate General also invites our attention to the observations made by the Division Bench of this Court in the case of Kamaruddin v. State of Kerala 2000 (1) KLT 722.
11. Per contra, Sri. George Poonthottam, learned Counsel appearing for the private respondent would submit that nomination of the respondent is under Section 17(1)(viii) of the Act and, therefore, the private respondent is entitled to continue as a member of the Syndicate for a term of four years from the date of his nomination in view of Sub-section (2) of Section 17 of the Act. Learned Counsel also relies upon the very same decision on which reliance was placed by the learned Advocate General in the case of Kamaruddin v. State of Kerala (supra).
12. The question that would arise for consideration and decision of this Court is, whether the private respondent is entitled to continue as a member of the Syndicate for a period of four years or in the alternative for the remaining portion of the tenure of the earlier incumbent in whose place he was nominated. To answer the aforesaid legal issue, it would be relevant to notice certain provisions of the Act 1986. Chapter IV of the Act provides for the Authorities of the University, Staff Council and University Appellate Tribunal. Section 16 of the Act provides for the Authorities of the University. Under the aforesaid heading, the Syndicate, the Senate, the Academic Council, the Faculties, the Boards of Studies, the Planning Committee, the Finance Committee and such other boards or bodies of the University as may be declared by the Statutes are the authorities of the University. Section 17 of the Act provides for the Syndicate. Section 17(1) of the Act states that the Syndicate shall be the chief executive body of the University and would consist of the Vice Chancellor, the Pro-Vice Chancellor, the Director of Technical Education, the Secretary to Government Higher Education Education, the Chairman of the Kerala State Committee on Science and Technology, three Deans of Faculties of the University by rotation in the alphabetical order of the Faculties in every two years, an expert from the field of Industry and Commerce nominated by the Chancellor, five members of the Syndicate nominated by the Government of whom one shall be a member of the Scheduled Caste or Scheduled Tribe and one shall be a teacher, an official representative of the University Grants Commission nominated by the Commission and two persons nominated by the Government from among the members of the Legislative Assembly of Kerala, as the members of the Syndicate. Section 17(2) of the Act provides that the term of office of the members nominated to the Syndicate under items (vii), (viii), (ix) and (x) shall be for a period of four years from the date of nomination. The said Sub-section also prohibits that members so nominated under the aforesaid items are not eligible for re-nomination. The proviso appended to the section need not be noticed by us, since the said proviso would not throw any light for deciding the issue which we have raised for our consideration and decision.
13. Chapter VIII of the Act provides for filling up of vacancies in the event of resignation of the members of the Senate, Syndicate, Academic Council etc. Section 45 of the Act provides for filling up of vacancies. The said section is applicable not only to the members of the Senate, Academic Council, but also to the members of the Syndicate. We say so, for the reason, that, the said section clearly speaks of all vacancies among members of any authority or body of the University, other than ex officio members. Syndicate is, undoubtedly, a body of the University. Such vacancies can be filled up by reason of death, resignation, or otherwise of a person who was nominated as a member of the authorities of the University. Sub-section (2) of Section 45 of the Act envisages that any person appointed or nominated under Sub-section (1) shall hold office as member so long only as the member in whose place he was appointed or nominated and would be entitled to hold office if the vacancy had not occurred. The Syndicate is a continuing body. The Syndicate continues to be in existence as long as the University is in existence. It only means the existence of Syndicate is perpetual and is co-terminus with the life of the University.
14. The State Government, in exercise of its powers, can nominate or appoint a person to be a member of the Syndicate. If the said nomination or appointment is under Section 17(1) of the Act, the term of office of such a person who is nominated as a member of the Syndicate would be for a period of four years from the date of appointment/nomination. If for any reason, the State Government chooses to appoint a person in the vacancy which has arisen by reason of death, resignation or relinquishment of the membership or under any other circumstances, such a person shall hold office as member so long as the member in whose place he is appointed or nominated.
15. In the instant case, the private respondent was admittedly nominated in the vacancy caused by the relinquishment of the membership by Sri. K. Mohammed Ali, though his appointment is stated to have been done under Section 17(1)(viii) of the Act. The submission of the learned Advocate General that under Clause (viii) of Section 17(1) of the Act, the State Government is authorised to nominate five members of the Senate as members of the Syndicate, and of the five members one should be a member of the Scheduled Caste or Scheduled Tribe and one person should be a teacher. Since the contesting private respondent was appointed/nominated in the vacancy caused from the relinquishment of a membership by one Mohammed Ali, it requires to be construed that the said appointment was made by the State Government in exercise of its powers under Section 45(1) of the Act. This assertion of the learned Advocate General was disputed by learned Counsel appearing for the private respondent, who contends that since the nomination of the private respondent was under Section 17(1)(viii) of the Act, necessarily, the term of office as a member of the Syndicate would expire only after a period of four years as envisaged Under Section 17(2) of the Act.
16. In the instant case, the private contesting respondent was a member of the Senate. He was eligible to be appointed as a member of the Syndicate in view of Section 17(1)(viii) of the Act, for the reason, that, under the aforesaid clause it is only the members of the Senate who could be nominated by the Government as members of the Syndicate. In the instant case, the private respondent was appointed as a member of the Syndicate, but, that appointment/nomination was in the place of one Sri. Mohammed Ali, who has relinquished his office as member of the Syndicate. Though in the notification it is stated that the appointment of the private respondent is under Section 17(1)(viii) of the Act, if the entire notification is read, it is clearly discernible that his appointment was in the place of a member of a Syndicate who had relinquished his office. If it is construed in the aforesaid manner, in view of Sub-section (2) of Section 45 of the Act, the said member can continue to hold office as a member so long only as a member in whose place he is appointed.
17. A Division Bench of this Court had an occasion, in the case of Kamaruddin v. State of Kerala, to consider a more or less similar issue. That was a case where the President of the Cochin University Employees Association, aggrieved by the continuation of the two ruling party MLAs in the Syndicate of the University after the expiry of the term of their office prescribed under the Act had questioned their continuation in the office as members of the Syndicate, on the ground that the said continuation is contrary to the provisions of the Act and also illegal, irregular etc. The Court after noticing the notification issued by the State Government in nominating the two ruling party MLAs in the Syndicate of the University was for a period of four years has opined that the continuation of those members as members was not only regular but also in accordance with the provisions of the Act. In the aforesaid case, the State while issuing the notification appointing the two ruling party MLAs as members of the Syndicate had specifically stated that term of office is for a period of four years and that only means that their appointment was Under Section 17(1) of the Act. In the peculiar circumstances of the case, the court at paragraph 13 of the judgment has stated as under.
In the instant case, nominations were made by the Government under Section 17(1)(x) of the CUSAT Act for four years and the continuance of these members of the Syndicate is not in any way illegal.
The decision in our opinion, would neither come to the aid of the State or the private respondent.
18. The Syndicate is a continuous body. It exists as long as the University exist. The Syndicate would consist of several members as envisaged under Section 17 of the Act. Under Clause (vii) of Section 17(1) of the Act, the Chancellor of the University can nominate an expert from the field of industry and commerce, and under Clause (viii) of Section 17(1) of the Act, the State Government is empowered to nominate five members of the Senate out of which one member requires to be a Scheduled Caste or Scheduled Tribe and one member to be a teacher. Under Clause (ix) of Section 17(1) of the Act, the University Grants Commission can appoint an official representative as member of the Syndicate. Under Clause (x) of Section 17(1), the State Government is authorised to nominate two members of the Legislative Assembly of Kerala as members of the Syndicate. The nomination of the members so made under items/clauses (vii), (viii), (ix) and (x) shall be for a period of four years and those members shall not be entitled for re-nomination as members of the Syndicate.
19. Section 45 of the Act again authorises the State Government to fill up the members of the syndicate if any vacancy has arisen in view of the death of a member, resignation, relinquishment or otherwise. That only means, the State Government is authorised to nominate the members of the Syndicate Under Section 17(1) of the Act and under special circumstances under Section 45 of the Act. Section 17 of the Act is an independent section and it has nothing to do with Section 45 of the Act. Any nomination or appointment under Clauses (vii) to (x) of Section 17(1) of the Act is controlled by Sub-section (2) of Section 17 of the Act. If, for any reason, any vacancy that would arise under Clause (viii) or (x) of Section 17(1) of the Act, under the contingency mentioned in Section 45 of the Act, the State Government is authorised to nominate the members and such nomination is for the remaining period of the member in whose place the nomination is made.
20. The Apex Court in State of Manipur v. Chandam Manihar Singh, had occasion to consider Section 5 of the Water (Prevention and Control of Pollution) Act, 1974, which provides for the appointment of members of the Board and terms and conditions of service of members under the Act. Section 5(1) of the said Act speaks of term of office of the members of the Board other than a member Secretary. It shall be for a term of three years from the date of his nomination. Proviso appended to the section authorises the continuation of the member so nominated, notwithstanding the expiration of his term, until his successor enters upon his office. Section 5(6) of the Act provides for filling up of casual vacancy in the Board. That can be done only by a fresh nomination and the person nominated to fill the casual vacancy shall hold the office only for the remainder of the term for which the member in whose place he was nominated. The question that came up for consideration before the Apex Court was whether the chairman of the Board appointed under Section 5(6) of the Act to fill up the casual vacancy caused on the resignation of the erstwhile Chairman entitled to continue as a Chairman for a period of three years as envisaged under Section 5(1) of the Act or for the remainder of the term of the erstwhile Chairman in whose place he was nominated. The Apex Court after considering the provisions of Section 5(1) read with Section 5(6) of the Act, is of the opinion that if a Chairman is nominated Under Section 5(6), he shall continue as a Chairman only for the remaining period of the erstwhile Chairman in whose place he was nominated. While explaining the aforesaid legal position, the Apex court at paragraph 13 has stated as under:
It is obvious that if such removal takes place as per Section 5(3) the vacancy arising out of such termination cannot be anything but a casual vacancy depending upon such a contingency. Another instance of a casual vacancy is furnished by the provisions of Sub-section (4) of Section 5 which deal with the resignation of the members of the Board, other than the member-secretary. If a member including Chairman resigns before his term is over, the seat of the Chairman or such other member thereupon shall become vacant. But that apart, Section 6(1) deals with disqualification of sitting members of the Board. If such disqualification is found to have been incurred by any member under Sub-section (1) then under Sub-section (2) of Section 6 after giving him reasonable opportunity, he can be removed from his office prior to the expiry of the usual term of his office of three years. That would be a third instance of a casual vacancy. When such casual vacancies occur, Sub-section (6) of Section 5 would start operating and if another member is nominated to fill up that vacancy, then his term of office would be for the remainder of the unexpired term of the member in whose place he steps in by nomination. In the facts of the present case, it is easy to visualise that as the earlier Chairman resigned on 10-7-2006 and he was nominated as Chairman on 5-5-1995, his regular term of office would have expired on 4-5-1998. In the meantime, because of his resignation, casual vacancy of Chairman occurred and the said vacancy was filled up by nomination of the respondent on16-10-1996. Therefore, the unexpired term of his tenure as a substituted nominee Chairman would have continued only up to 4-5-1998. On that day, by the thrust of Sub-section (6) of Section 5, vacancy of the Chairman could be said to have occurred and till that vacancy was filled up in accordance with law by the State authorities, the respondent could have continued to hold office beyond 4-5-1998 till his successor was available to hold that office. It is of course true that in the meantime the appellants themselves thought that the respondent was liable to removed from office and passed order on 19-10-1998. That appeared to have been on the assumption that the successor was not available to take charge from the respondent. Be that as it may, so far as the impugned direction of the High Court is concerned and to which exception is taken by learned Senior Counsel for the appellants, it is to be stated on the correct interpretation of relevant provisions of the Act as mentioned earlier, that in case of any casual vacancy of any member of the Board duly constituted under Section 4, the successor nominee who fills up such vacancy will have only the unexpired period of office available in the light of the initial appointment of the original incumbent member vice whom he walks in to fill up the vacancy.
21. The provisions of Section 5(1) and Section 5(6) of the Water (Prevention and Control of Pollution) Act, 1974 are more or less similar to Section 17(1) and Section 45 of the University Act. Therefore, in our opinion, the observations made by the Apex Court in the aforesaid decision can be usefully applied while analysing Sections 17(1), 17(2), 45(1) and 45(2) of the Act.
22. Under Ext.P2, the petitioner Sri. R.S. Sasikumar, the contesting private respondent was nominated as a member of the Syndicate of the University against the vacancy caused by relinquishment of membership of the Syndicate by Sri. K. Mohammed Ali under Section 17(1)(viii) of the Act. The said notification is issued by the Registrar of the 2nd respondent University, pursuant to the letter issued by the State Government in letter No. 6018/B2/2005/Hi.Edn. dated 26.2.2005 in exercise of its powers as per Section 17(1)(viii) and 17(1)(x) of the Act. By the said letter, the State Government had nominated the contesting private respondent and two others as members of the second respondent University. In the notification, it is specifically mentioned, that, this nomination is against the casual vacancy caused by relinquishment of membership by Sri. K. Mohammed Ali and the term of office of the nominees would be subject to the provisions of the Cochin University of Science and Technology Act, 1986 and statutes thereunder, unlike in Kamaruddin's case, wherein the term of office of the nominated members was for a specific period of four years from the date of their nomination as members of the Syndicate.
23. If the nomination to the Syndicate is in the vacancy caused, necessarily, the nomination can be only under Section 45(1) of the Act and as per Section 45(2) of the Act, the substituted member can hold office as member so long only as the member in whose place he was nominated could have been entitled to hold the office, if the vacancy had not occurred. In the alternative, successor nominee who fills up such vacancy will have only the un-expired period of office available to the original incumbent. Therefore, the substituted member can continue only up to the term left by the earlier member. This only means, though in the notification it is stated that the nomination is under Section 17(1)(viii) of the Act, since it is a nomination made to fill up a casual vacancy on the relinquishment of membership of the Syndicate by Mr. K. Mohammed Ali, the nominated member can hold office only for the remaining period in whose place he is nominated.
24. The State Government can nominate members of the Syndicate in two different situations. Firstly, under Section 17(1) of the Act and that would be a fresh nomination, and secondly, on the happening of an event as envisaged under Section 45(1) of the Act. If the nomination is under Section 17(1) of the Act, as per Section 17(2), the nominated member can hold office for a period of four years. However, the person so nominated shall not be eligible for re-nomination. If, for any reason, the State Government nominates a person in the vacancy caused in the eventuality that is envisaged under Section 45, the period of such nomination is governed by Section 45(2) of the Act. Therefore, a vacancy in the Syndicate which is a continuing body without a specific duration, unlike in the case of Senate, Academic Council etc., can be filled up by the State Government either by resorting to Section 17(1) or under Section 45 of the Act. In the instant case, since the nomination is made in the vacancy caused on the relinquishment of membership by a member of the Syndicate, the nomination could only be under Section 45 of the Act, and, therefore, his term of office can only be as determined under Section 45(2) of the Act, though in the notification the notifying authority has stated that his nomination is under Section 17(1)(viii) of the Act. Mentioning of the wrong provision of the Act will not entitle a person to take the benefit of the said provision. If the notification is read in full, the only conclusion that can be reached is that the petitioner was nominated in the vacancy caused due to the relinquishment of membership of the Syndicate by Sri. K. Mohammed Ali and that vacancy caused is filled up by nominating the petitioner. It only means, his nomination is made under Section 45(1) of the Act.
25. In view of the above discussion, in our opinion, we cannot sustain the findings and the conclusions reached by the learned Single Judge while allowing the writ petition. Therefore, the appeal filed by the State Government requires to be allowed and accordingly, it is allowed. The order passed by the learned Single Judge is set aside. In the facts and circumstances of the case, parties are directed to bear their own costs.
Ordered accordingly.