Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 232 (KER)

Faisal T. A v. The State of Kerala

2019-03-06

ALEXANDER THOMAS

body2019
JUDGMENT : 1. The prayers in the above Writ Petition (Civil) are as follows: “(i) issue a Writ of certiorari to quash Ext.P4 issued by the 1st respondent in the interest of justice. (ii) declare that the petitioner is entitled to continue for a further period upto 12/1/2020 and till the expiry of the term of 4 years as a member of the Executive Council of SCOLE-Kerala. (iii) issue any other or order as this court may deem fit in the course of the proceedings.” 2. Heard Sri. K.A. Manzoor Ali, learned counsel for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the 1st respondent. Though notice has been duly served on respondents 2 to 4 by special messenger those parties have not entered appearance. Even though service was duly served before 21.12.2018, this Court has ordered on 21.12.2018 that the case may be adjourned to 23.1.2019 so that respondents 2 to 4 enter appearance in the meanwhile. Even till date, respondents 2 to 4 have not entered appearance. 3. The 2nd respondent is the State Council for Open and Lifelong Education-Kerala (SCOLE-Kerala) and the 3rd respondent is the Chairman of the SCOLE-Kerala, which has been established to provide sound professional advice to the Government regarding the proper development of distance and open learning system at all levels in the State. As per Ext.P-1 G.O.(MS).No.206/2015/G.Edn dated 30.7.2015, the 1st respondent has approved the draft rules and regulations and Memorandum of Association and sanction has been accorded to initate further action for the establishment of the above said organization. Ext.P-1(a) is the copy of the Memorandum of Association in that regard. 4. Along with Ext.P-1(a) Memorandum of Association, the Government has also framed Ext.P-2 Rules for SCOLE-Kerala. As per Ext.P-2 Rules, the constitution and composition of the society comprise of the General Council, Executive Council and Academic Council. Clause XVII of Ext.P-2 rules deals with the term of the General Council, Executive Council and Academic Council. The term of the said council shall be 4 years from the date of the notification constituting the council and provided further that the General Council, the term of which has expired, shall remain in office until the successor General Council is constituted. The term of the said council shall be 4 years from the date of the notification constituting the council and provided further that the General Council, the term of which has expired, shall remain in office until the successor General Council is constituted. Clause XVII of Ext.P2 reads as follows: “The terms of the General Council, Executive Council, and Academic Council shall be four years from the date of the notification constituting it. Provided however, that the General Council, the term of which has expired, shall remain in office until the successor General Council is constituted. Where a person including the Chairman is a member of the General Council by virtue of his office or appoint, he shall cease to be such member when he relinquishes the said office or appointment and the vacancy so arising shall be filled in by his successor in that appointment or office. Such member shall however be eligible for re-nomination in another vacancy if any, of the General Council, Executive Council or Academic Council.” Clause XVIII deals with term of membership and sub-clause (1) stipulates that the term of membership of the ex-officio members of the General Council, Executive Council or Academic Council will be co-terminus with their holding of the said office. Sub-clause (2) thereof stipulates that the term of office of the rest of the members will be for a period of four years from the date of notification constituting General Council, Executive Council or Academic Council as the case may be. Sub-clause (6) thereof stipulates that any person who ceases to be a member of the General Council, Executive Council or Academic Council, shall automatically cease to be a member of any of the committees of the Society. 5. The petitioner was duly nominated as a member of the Executive Council of the above said organization from the student's category by the Chairman while he was studying for M.Tech at Al Azhar College, Thodupuzha, which is affiliated to University of Kerala and has been functioning as a student member in the Executive Council as can be seen from Ext.P-3 notification in G.O(P).No.13/2016/G.Edn dated 13.1.2016 issued by the 1st respondent in that regard. The petitioner's name is shown as one among the 2 members of the student constituency as serial No 12(ii) under the head Executive Council given on page 3 of Ext.P-3 Government Order. The petitioner's name is shown as one among the 2 members of the student constituency as serial No 12(ii) under the head Executive Council given on page 3 of Ext.P-3 Government Order. Petitioner's name is appearing at serial No.(ii) thereof and a lady student (Smt.Silpa. C) has been shown as other student member as per 12(i) thereof. According to the petitioner, going by the mandate of clauses XVII & XVIII(2), the petitioner is entitled to continue as the student member of the Executive Council of the 2nd respondent for a period of 4 years from Ext.P-3 notification dated 13.1.2016 unless he has lost his student status before that. A student has been defined in Clause II (t) of Ext.P-2 as “student shall mean a Student registered with the Society or any of the Centres recognized by the Society.” The petitioner would contend that so long as he is a student as understood in the Rules, he is entitled to continue as a member of the Executive Council of the 2nd respondent based on Ext.P-3 notification for a period of 4 years from Ext.P-3 notification dtd. 13.1.2016 till 12.1.2020. According to the petitioner, he has duly completed his M.Tech Course in Al Azhar College, Thodupuzha and he was duly later admitted to Ph.d in the Cochin University of Science & Technology and that the complaint of the petitioner is that now the 1st respondent-State Government has issued the impugned Ext.P-4 G.O(OR)No. 4974/2018/G. Edn dated 27.11.2018 wherein it has been ordered that another student (contesting R-4) has been nominated in the place of the petitioner as per Ext.P-4. In the last paragraph of the impugned Ext.P-4 Government Order dated 27.11.2018 it is stated that Smt.S.Silpa has been nominated as the student member in Ext.P-3 and that the 4th respondent (Jobinson James) has been nominated as the student member in the place of the petitioner. According to the petitioner, the impugned Ext.P-4 nomination has been made to delete the petitioner and to substitute the 4th respondent on the factually wrong premise that the petitioner is no longer a student and that the 1st respondent- State Government has committed a grave and serious illegality and impropriety by making the impugned nomination of 4th respondent in the place of the petitioner. The petitioner would point out that the 1st respondent was obliged in law to atleast issue show cause notice or prior notice to the petitioner before the impugned decision as per Ext.P-4 is rendered and if such show cause notice or prior notice had been issued, he would have easily convinced them that he is a student and that he has duly secured admission for Ph.D in CUSAT and so he would come within the meaning of 'student' going by the mandate of Clause II(t) of the Ext.P-2 and he is legally entitled to continue as the student member of the executive council for a period of 4 years from 13.1.2016 as per Ext.P-3 notification till 12.1.2020 unless he has lost his status of 'student' in the meanwhile. 6. While admitting this case, this Court has passed an interim order granting stay of the nomination of the 4th respondent in the place of the petitioner as per serial No.ii of Ext.P-4 G.O(OR).No.4974/2018/G.Edn dated 27.11.2018 will remain stayed and that respondents 1 to 3 will permit the petitioner to function as the Member in the student constituency of the Executive Council of the 2nd respondent and the said interim order has been extended till 15.2.2019. Though notice has been issued, there is no appearance for respondents 2 to 4. 7. As per Clause XIII(12) of Ext.P-2, Executive Council shall be constituted with inter alia 2 students concerned nominated by the Chairman of whom one shall be a woman. The petitioner was earlier a student of the M.Tech Course in Al Azhar Engineering College and he was nominated as one among the 2 student members of Executive Council as per Ext.P-3 notification dated 13.1.2016. According to the petitioner though he had completed his studies as a M.Tech student, but that he had later joined for Ph.D as a student of the CUSAT and that so long as he has not lost his student status, his nomination as referred to in Ext.P-3 should be current for a period of 4 years from 13.1.2016, viz., 12.1.2020. There are no explicit provisions in Ext.P-2 Rules either in Clause XVII or Clause XVIII or any other provisions of the Rules stipulating that a person who has been nominated from the constituency like studentship, will lose his membership immediately on his/her losing of his/her status or a member of the studentship. There are no explicit provisions in Ext.P-2 Rules either in Clause XVII or Clause XVIII or any other provisions of the Rules stipulating that a person who has been nominated from the constituency like studentship, will lose his membership immediately on his/her losing of his/her status or a member of the studentship. But that does not mean that a person who is nominated to the Executive Council from constituency like the studentship is entitled to continue for a period of 4 years even if he has lost his status of studentship. It is clear from Clause XVIII (1) that the term of membership of the ex-officio members of the General Council, Executive Council or Academic Council will be co-terminus with their holding of the said office. Therefore, such provision should be equally applicable to a member who may not be an Ex-Officio member, but who is nominated from the constituency like the studentship, which is depending upon their continued status as a member of such constituency like studentship and they would lose their membership in the Executive Council, the moment they lose the status of a student. 8. Clause XIII deals with the Executive Council, which reads as follows: “XIII. The Executive Council. The Executive Council shall be constituted with the Hon'ble Minister for Education as Chairman and the following members namely. (1) Vice Chairman (2) Executive Director (3) Directors (4) Secretary, General Education Department, Govt. of Kerala. (5) Secretary, Finance Department, Govt. of Kerala. (6) Director, SCERT. (7) Director of Public Instruction (8) Director of Higher Secondary Education (9) Director of Vocational Higher Secondary Education (10) Director of State Literacy Mission (11) Two experts nominated by the Chairman (12) Two students nominated by the Chairman of whom one shall be a woman. (13) Secretary of the Society.” Sub-clauses 1 to 10 and 13 are by Ex-officio positions and it goes without saying that at the moment he/she lose their student status, it will result in automatic losing of membership by virtue of Clause XVIII (1). The above said two categories of sub-clauses 11 & 12 of Clause XIII are nominated by the Chairman and in the ordinary scheme of things so long as the persons nominated as experts as per Clause XIII(11) have acquired the requisite expertise in the field concerned, they could continue for 4 years. The above said two categories of sub-clauses 11 & 12 of Clause XIII are nominated by the Chairman and in the ordinary scheme of things so long as the persons nominated as experts as per Clause XIII(11) have acquired the requisite expertise in the field concerned, they could continue for 4 years. But the nature of the nomination from a constituency like studentship is entirely different and their nomination in the Executive Council will depend on their continuing status as a student as understood in the Rules and if they are losing the status of studentship before the expiry of 4 years, they would lost their status of nominated student member of the Executive Council. Any other interpretation would be perverse and unacceptable. Such a condition has to be read as implicit and imperative in the understanding and operation of Clause XVIII(2) which fixes the membership of the 3 bodies for a period of 4 years from the date of constitution of the council concerned. This is all the more clear from a reading of Clause XXII which deals with filling up of casual vacancy, which reads as follows: “If a casual vacancy arises in the office of an appointed Member or nominated member either by reason of his death, resignation, removal or otherwise, such vacancy shall be filled up by nomination or appointment as the case may be and such Member shall hold office only for the remainder of the term of the Member in whose place he was nominated or appointed, as the case may be.” Clause XXII envisages that if a casual vacancy arises in the office of an appointed Member or nominated member either by reason of his death, resignation, removal or otherwise, such vacancy shall be filled up by nomination or appointment as the case may be and such Member shall hold office only for the remainder of the term of the Member in whose place he was nominated or appointed, as the case may be. The procedure for removal is conceived in Clause XXI. 9. The losing of the membership as a nominated member of the Executive Counsel from a reserved constituency on account of losing of studentship will be one contingency which would lead to the occurrence of casual vacancy as understood in Clause XXII as envisaged by the term “or otherwise” occurring in Clause XXII. 9. The losing of the membership as a nominated member of the Executive Counsel from a reserved constituency on account of losing of studentship will be one contingency which would lead to the occurrence of casual vacancy as understood in Clause XXII as envisaged by the term “or otherwise” occurring in Clause XXII. Therefore, it is crystal clear that where a nominated member of the Executive Council from the student constituency lose the status of studentship, then it would automatically result in losing his nominated membership in the Executive Council and it would lead to the occurrence of casual vacancy as understood in Clause XXII and then only a fresh member could be appointed but for the remaining term. One of the other method for causing of a casual vacancy could be by removal of the membership as per Clause XXI which reads as follows: “XXI . Removal from Membership of the Society. If, at any time, it appears to the Government that an appointed or nominated member has proved himself to the until to hold such office or has been guilty of misconduct or neglect which in the opinion of the Government renders his removal from the membership of the Council, as expedient, the Government may, after giving such member, a reasonable opportunity of showing cause as to why he shall not be removed from the Society and after examining the same decide whether to continue Or remove such member, as the case may be, from his membership and in case of such removal from the membership of the Society it shall be made by notification.” 10. The respondents have no case whatsoever that the petitioner was duly removed from the Society on the ground that he is unfit to hold the office or has been guilty of misconduct or neglect which in the opinion of the Government renders his removal from the membership of the Council. Removal as per Clause XXI could be brought into force only after strictly following the principles of natural justice of affording a reasonable opportunity of being heard to the affected persons by issuing show cause notice, etc., and finalising such proceedings. Removal as per Clause XXI could be brought into force only after strictly following the principles of natural justice of affording a reasonable opportunity of being heard to the affected persons by issuing show cause notice, etc., and finalising such proceedings. Nobody has a case that the petitioner has been so unfit to hold the office or has been guilty of misconduct or neglect which in the opinion of the Government renders his removal from the membership of the Council as per Clause XXI. Therefore, the only contingency by which the 4th respondent nominated as per Ext.P-4 in the place of the petitioner as a nominated member of the student constituency is by losing the status of a student. According to the petitioner though he has completed his M.Tech studies, he has now secured admission for Ph.D and hence he continued the status of a student. If that be so, the petitioner has never lost the status of a student as understood in the Rules. Petitioner would contend that there is no casual vacancy and there is no question of substituting the petitioner by nominating the 4th respondent in the place of the petitioner as per Ext.P-4 Government Order. The fact as to whether the petitioner continued to be a student as understood in the Rules on account of his getting admission in the CUSAT has not been ascertained and examined by the respondents 1 to 3. 11. In the result, it is only to be held that the impugned decision making process which led to Ext.P-4 proceedings dated 27.11.2019 to the limited extent the 4th respondent has been nominated in the place of the petitioner will stand set aside and the matter will stand remitted to the 1st respondent for consideration afresh. The petitioner may submit necessary written submissions and may produce certificates from Al Azhar Engineering College, Thodupuzha, where has had prosecuted his M.Tech Course and as to when the result of his Course has been published and copies of the mark lists issued by the authorities concerned and should also produce the documents and details as to when he has admitted as a Ph.D student in CUSAT and whether he is continuing there, etc. The above said details should be produced before the 1st respondent within one month from the date of receipt of a certified copy of this judgment. The above said details should be produced before the 1st respondent within one month from the date of receipt of a certified copy of this judgment. Thereafter, after affording a reasonable opportunity of being heard to the petitioner and after examining the matter if it is found that the petitioner is continues to be a student on account of his admission as a Ph.d student as understood in the Rules, then no further steps will be taken to replace the petitioner and he should be allowed to continue the 4 year period as nominated member of the student constituency till 12.1.2020., ie., 4 years from Ext.P-3 notification dated 13.1.2016 unless he has lost his student status before that. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.