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2022 DIGILAW 561 (KER)

Ranjith P. T. K, S/o Kelu v. University Of Calicut Represented By The Registrar

2022-07-08

DEVAN RAMACHANDRAN

body2022
JUDGMENT In the fasciculous of the large amount of pleadings and documents in these matters, is presented a short question relating to the nuances of the forensic aspects relating to the grant of assent by the Chancellor to statutory Ordinances made by the Syndicate of the Calicut University. 2. Among the four writ petitions – which have been heard together, because all of them involve narrative facts which are inter-layered– except W.P(C)No.29385/2018, the others are filed by persons who are directly recruited by the University as 'Office Attendants' and who seek promotion as 'Clerical Assistants'. 3. As far as W.P(C)No.29385/2018 is concerned, it is filed by a person who has already been promoted as a 'Clerical Assistant'. 4. The factual hypostatis of these cases is not greatly in dispute and therefore, I will deal with it very briefly. 5. In Chapter XV of the Calicut University First Ordinances, 1978 (hereinafter referred to as 'the First Ordinances') the scale of pay, qualification, etc., of various posts in the University are prescribed. In the Schedule to the said Chapter, the post of 'Clerical Assistant' was included as Item No.19, stipulating its qualifications and method of appointment/promotion. 6. However, when the 'First Ordinances' were amended through a notification dated 06.10.2004 -by which the aforementioned Schedule was substituted by a new one –for some reason, the post of 'Clerical Assistant' did not find a place. 7. Consequentially, therefore, the post of 'Clerical Assistant' even if available, could not be filled up from 06.10.2004. 8. This appears to have spurred the University to amend the 'First Ordinances' and a decision was taken by its Syndicate, in the meeting held on 24.10.2014, to introduce the post of 'Clerical Assistant' as Item No.28A in the Schedule of posts. Certain other amendments were also proposed along with it, but with which, this Court is not concerned as of now. 9. On the Syndicate resolving as afore, the University issued an order dated 30.10.2014 and placed the said decision before its Senate, which considered it in its meeting held on 29.12.2014, thus accepting it. This led to a further University order dated 08.04.2015, wherein, it is recorded that the decision of the Syndicate to amend the “First Ordinances' has been implemented. 10. This led to a further University order dated 08.04.2015, wherein, it is recorded that the decision of the Syndicate to amend the “First Ordinances' has been implemented. 10. However, it transpires that the Registrar of the University addressed the Chancellor, through letter dated 20.05.2015, seeking his assent, as required under Section 37(4) of the Calicut University Act, 1975 (hereinafter referred to as 'the Act' for short), since the amendment to the 'First Ordinances' involved expenditure. 11. The Chancellor, on the basis of the afore request made by the Registrar, offered his assent to the amendments to the 'First Ordinances' through order dated 22.02.2018. 12. The singular allegation of the petitioners in W.P(C)No.30752/2017, W.P(C)No.8246/2018, W.P(C)No.19926/2019 is that, even before the amendment to the 'First Ordinances' had been assented to by the Chancellor as afore, the University offered the post of 'Clerical Assistants' to certain persons, adopting the mechanism of 'category change' and that this was impermissible since there was no such posts in the interregnum between 06.10.2004-when the 'First Ordinances' had been initially amended, and 22.02.2018-when the present amendment of the same had been assented to by the Governor. 13. Noticing the afore submissions, as also a report dated 24.10.2018 placed before the Chancellor by the Vice Chancellor, this Court, on 2/4/2019 -when one of the afore matters, namely W.P(C)No.29385/2018 was considered issued an interim order directing the Chancellor to verify and consider the dates from which the present amendments to the 'First Ordinances' would take effect. 14. In obedience to the afore directions, the Chancellor issued the order dated 27.06.2019, holding that the present amendments to the 'First Ordinances' would take effect only from the date of his assent, namely 22.02.2018; and that any other date ascribed by the Syndicate to such, through their independent orders, are untenable. 15. Pertinently, the Chancellor then permitted the University to further amend the 'First Ordinances' if they wanted to show the present amendments to take effect from specified dates; stating that, in such event, it would be considered by him appropriately. 16. The afore order of the Chancellor has been challenged in all these writ petitions, but in different manners. 17. 15. Pertinently, the Chancellor then permitted the University to further amend the 'First Ordinances' if they wanted to show the present amendments to take effect from specified dates; stating that, in such event, it would be considered by him appropriately. 16. The afore order of the Chancellor has been challenged in all these writ petitions, but in different manners. 17. As far as W.P(C)No.29385/2018 is concerned, the petitioners therein have amended the writ petition, to challenge the order of the Governor dated 27.06.2019 in its entirety; while the petitioners in the other cases assail the same to the extent to which it reserves liberty to the University to seek further amendment of the 'First Ordinances', specifying the date from which the present amendments would come into force. 18. I have heard Sri.P.Ravindran – learned Senior Counsel, instructed by Sri.Harikrishnan avindran, appearing for the petitioners in W.P(C)No.30752/2017, W.P(C)No.8246/2018, W.P(C)No.19926/2019; Sri.Jaju Babu, learned Senior Counsel, instructed by Smt.M.U.Vijayalakshmi – learned Standing Counsel for the Chancellor of the University; Sri.T.B.Hood – learned counsel for the petitioner in W.P(C)No.29385/2018; Sri.P.Chandrasekharan and Sri.Arun Thomas – learned counsel appearing for some of the party respondents in these matters and Sri.P.C.Sasidharan – learned Standing Counsel for the Calicut University. 19. Sri.P.Ravindran – learned Senior Counsel, argued in partial support of the order of the Chancellor dated 27.06.2019, saying that said Authority is completely right in holding that the amendments to the “First Ordinances” would take effect only from the date on which he gave his assent; and therefore, that a further permission reserved therein to the University to amend it again, showing specified anterior dates, was superfluous, if not forensically incorrect. He prayed that, therefore, the impugned order of the Chancellor, to such extent, be set aside. 20. Sri.T.B.Hood – learned counsel for the petitioner in WP(C) No.29385/2018, on the other hand, contented that the order of the Vice Chancellor dated 27.06.2017 is grossly improper and is, therefore, liable to be set aside entirely. His argument was that the posts of Clerical Assistants were available in the University right from its insertion, but that solely on account of an inadvertent omission -when the amendment of the year 2004 was carried to the “First Ordinance” –this category was excluded from the Schedule of Posts, which substituted the earlier one. His argument was that the posts of Clerical Assistants were available in the University right from its insertion, but that solely on account of an inadvertent omission -when the amendment of the year 2004 was carried to the “First Ordinance” –this category was excluded from the Schedule of Posts, which substituted the earlier one. He explained that it is precisely because of this, that the Syndicate of the University took a decision in October, 2014, to amend the “First Ordinances” again, so as to bring back this category, itemizing it as 28A in the schedule of posts. 21. Sri.T.B.Hood argued that, therefore, when this decision of the Syndicate was approved by the Senate, it obtained validity from the date of the original decision; and consequently, the fact that assent was offered to it by the Chancellor nearly four years later, would not be relevant to the date from which it begins to operate. 22. Sri.T.B.Hood then showed me that, in fact, the amendments to the “First Ordinances” are not with respect to the post of Clerical Staff alone, but also relating to certain new posts; and that the Syndicate has thus correctly resolved such posts to be available only with effect from 22.02.2018, since they were newly created ones; but that with respect to the clerical posts which were always available in the University, it resolved that the amendment qua therein will take effect from 24.10.2014, being the date of its initial decision. He asserted that it is on such basis that his clients were promoted in the year 2015 and therefore, that the order of the Chancellor dated 27.06.2017, which upsets this, is illegal and unlawful. He thus prayed that WP(C)No.29385/2018 be allowed and the other writ petitions be dismissed. 23. Sri.P.Chandrasekhar and Sri.Arun Mathew – learned counsel for the various party respondents in these cases, adopted the afore submissions of Sri.T.B.Hood, arguing that the order of the Chancellor dated 27.06.2017 operates inequitably and causes detriment to their clients for no justified reason whatsoever. They added that the petitioners in WP(C)Nos.19926/2019, 30752/2017 and 8246/2018 cannot claim seniority over their clients or the client of Sri.T.B.Hood because they, admittedly, entered service through direct recruitment as Office Attendants much later in the year 2016 or so. They also, thus pleaded that WP(C)No.29385/2018 be allowed. 24. They added that the petitioners in WP(C)Nos.19926/2019, 30752/2017 and 8246/2018 cannot claim seniority over their clients or the client of Sri.T.B.Hood because they, admittedly, entered service through direct recruitment as Office Attendants much later in the year 2016 or so. They also, thus pleaded that WP(C)No.29385/2018 be allowed. 24. Sri.Jaju Babu -learned Senior Counsel representing the Chancellor of the University, submitted that his client has acted strictly within the confines of the “Act” and the University Regulations, in having issued the order dated 27.06.2017. He reiterated that this order became necessitated on account of the interim order issued by this Court earlier in WP(C) NO.29385/2018 and because of the report placed before him by the Vice Chancellor, a copy of which is on record as Ext.R3(a) in the said writ petition. 25. Sri.Jaju Babu, thereupon, went extensively through the provisions of the “Act” to impress upon me that the power to make Ordinances and providing for the matters mentioned in Section 36 thereof, is exclusively with the Syndicate and that the procedure for making the same is governed by the stipulations in Section 37 of it. He explained that, on the Syndicate making an Ordinance, it shall have to be placed before the Senate in its very next meeting; and that if it this is not so done, it will lapse. He added that, as far as Ordinances involving expenditure are concerned, Section 37(4) of the “Act” makes it beyond contest that it will come into force only when it is assented to by the Chancellor. 26. Sri.Jaju Babu then informed me that the Registrar of the University had forwarded the amendment to the “First Ordinances” to the Chancellor, through his letter dated 20.05.2015; and that he assented to it, without any change, on 22.02.2018. He predicated that the Chancellor did so because there was no date specified for the coming into force of each of the amendments, thus being under the legitimate impression that it would take effect and come into force only when assented by him. 27. He predicated that the Chancellor did so because there was no date specified for the coming into force of each of the amendments, thus being under the legitimate impression that it would take effect and come into force only when assented by him. 27. The learned Senior Counsel then argued that, had different dates been specified by the Syndicate for the purpose of coming into force of the several amendments, the Chancellor perhaps may have withheld the assent or may have sought for further clarifications, but that he had no cause or reason to do so, since no such dates had been specified, thus finding it apposite to assent to the amendments in toto, without any modification. 28. Sri.Jaju Babu added that, therefore, when this Court directed the Chancellor to consider the dates of coming into force of the amendments in the conspectus of the above Statutory Scheme, he took into account the report of the Vice Chancellor, namely Ext.R3(a) in WP(C)No.29385/2018, and correctly followed the law that the amendments to the “First Ordinances”, in the absence of any particular date being shown therein, would come to effect on the date he granted assent to it. 29. Sri.Jaju Babu thus prayed that all these writ petitions be dismissed; further answering the submissions of Sri.P.Ravindran – learned Senior Counsel, that the liberty granted to the University to approach the Chancellor afresh, with further amendments specifying the dates for each of the earlier amendments, was only done as a matter of fairness and taking note of the requirement for a healthy relationship between the two Authorities. He submitted that, in any event, the challenge of the petitioners in WP(C)Nos.19926/2019, 30752/2017 and 8246/2018 to that part of the order is speculative and conjectural, because the Syndicate of the University has not proposed any further amendments, nor has it been brought to the notice of the Chancellor until today for assent. 30. Sri.P.C.Sasidharan – learned Standing Counsel for the Calicut University, supported the action of the Syndicate in issuing an order subsequent to the obtention of the assent of the Chancellor, fixing different dates for each of the proposed amendments to be brought into effect, saying that this is not prohibited by the “Act” or the Regulations or Ordinances thereunder. 30. Sri.P.C.Sasidharan – learned Standing Counsel for the Calicut University, supported the action of the Syndicate in issuing an order subsequent to the obtention of the assent of the Chancellor, fixing different dates for each of the proposed amendments to be brought into effect, saying that this is not prohibited by the “Act” or the Regulations or Ordinances thereunder. He explained that, going by Section 37(1) of the “Act”, the Syndicate has the power to decide the date from which the provisions of the Ordinances, or the amendments to it, shall take effect; and therefore, that when the Chancellor gave assent to the proposed amendments, they were absolutely justified in having fixed specified dates from which its provisions qua the various posts would come into effect. 31. Sri.P.C.Sasidharan submitted that the afore is more so because, the Syndicate of the University took a decision on 24.10.2014 to amend the “First Ordinances” only because it was found that an omission had occurred in the year 2004, when the earlier Schedule of Posts was substituted, excluding the category of Clerical Assistants therefrom, even though such posts were always available in the services of the University. He submitted that this created an imbroglio because, the University was unable to fill up the posts of Clerical Assistants, though it was available on its services, thus creating an administrative hurdle. He, however, concluded his submissions saying that the decision of the Chancellor being the head of the University, is not being controverted by him, but that he is only offering explication as to why the Syndicate took certain decisions subsequent to the assent obtained from the said Authority. 32. The afore dialectical contentions of all the parties being so recorded, the real question before this Court is whether the Syndicate could have, on 22.02.2018 –after the assent of the Chancellor was offered to the amendments to the “First Ordinances” issued an order fixing the dates from which the provisions with respect to the several posts reflected in it would come into force. 33. This is the acme question and the answer to it would find a full resolution to all other controversies between the parties. 34. 33. This is the acme question and the answer to it would find a full resolution to all other controversies between the parties. 34. No doubt, as rightly argued by Sri.P.C.Sasidharan – learned Standing Counsel for the Calicut University and affirmed by Sri.Jaju Babu, learned Senior Counsel, the power to make Ordinances or amendments to it by the Syndicate is recognized by the “Act” to be paradigm. The Scheme of the “Act” would further show that such Ordinances/amendments will have to be then placed before the Senate in its succeeding meeting and the said Body, being the Supreme Authority of the University, obtains the right to cancel or amend the same, which then transmutes into a University order. There can be no contest on this because this is the statutory mandate. 35. In this case, pertinently, the Syndicate made amendments to the “First “Ordinances” and placed them before the Senate, which accepted it and then forwarded to the Chancellor for his assent. The assent was given without any modification and therefore, it certainly came into effect thereafter. 36. However, subsequently, the Syndicate took a decision to fix the dates for each of the aforementioned amendments, which is now the sole point of controversy in this case. 37. The Chancellor adopts the stand affirmatively, through his learned Senior Counsel – Sri.Jaju Babu and which is also reflected in his order dated 27.06.2017, that the amendments as presented before him and assented by him alone can obtain effect; which cannot be then modified or tinkered by any Authority, including the Senate or the Syndicate. In fact, the learned Senior Counsel, as I have already recorded above, argued for the proposition that, had there been any dates specified for the amendments to take effect in the draft presented before the Chancellor, he may or may not have accepted it, depending upon its implications, including expenditure involved consequent to the same. 38. I must say that I find substantial force in the afore submissions of Sri.Jaju Babu because, when the Chancellor is requested to assent to a particular Ordinances or amendments to it, he goes by the papers presented and by the contents of the same and nothing else. 38. I must say that I find substantial force in the afore submissions of Sri.Jaju Babu because, when the Chancellor is requested to assent to a particular Ordinances or amendments to it, he goes by the papers presented and by the contents of the same and nothing else. Once he noticed that the amendments did not have any particular date ascribed to it to take effect, either from an earlier date or subsequently, he applied his mind to those inputs and then gave assent on 22.02.2018. This can only mean that the Chancellor expected and intended that the amendments will take effect only from the date of his assent, as per the provisions of Section 37 of the “Act”, because he was not aware that the Syndicate or the Senate wanted those amendments to take effect from an earlier date. 39. That being said, if the Syndicate wanted to fix particular dates on which the amendments were to be brought into effect, nothing stopped them from doing so under Section 37(1) of the Act, since it unequivocally provides that all Ordinances shall have effect from such date as they may direct. 40. In such context, a corollary contention has been impelled by Sri.T.B.Hood to the effect that, when Section 37(1) grants unfettered right to the Syndicate to decide the dates from which the Ordinances or its amendments shall take effect, it can also mean that they have right to do so, after the assent is given by the Chancellor. 41. I am afraid that the afore contention fails on the touchstone of the second limb of Section 37(1) of the “Act” because it mandates that, “but every ordinance so made and repeal or any ordinance shall be laid before the Senate during the next succeeding meeting”. This is unambiguously indicative that the amendments, as suggested by the Syndicate, could have contained the dates from which the various provisions in it operate, which then will have to be laid before the Senate and finally to obtain the assent of the Chancellor, if it involves expenditure. Therefore, the words “all Ordinances shall have effect from the date as the Syndicate may direct contained in Section 37(1) of the “Act” is then circumscribed by its subsequent limb, which says that all such Ordinances shall be placed before the Senate. Therefore, the words “all Ordinances shall have effect from the date as the Syndicate may direct contained in Section 37(1) of the “Act” is then circumscribed by its subsequent limb, which says that all such Ordinances shall be placed before the Senate. This unmistakably demonstrates that if the Syndicate wanted to fix specified dates for the provisions of the Ordinances or its amendments to take effect, it should be so mentioned in it and cannot be supplemented subsequently, after the Senate had approved it and the Chancellor had assented to it. 42. In the afore survey of the law, it is unmistakable that the Chancellor has not, in any manner, erred in having issued the order dated 27.06.2017; thus reiterating that the proposed amendments to the “First Ordinances” would take effect only from the date of his assent, namely 22.02.2018. 43. That being so concluded, the only other question relevant from my consideration is whether the Chancellor was correct in leaving liberty to the University to make further amendments to the “First Ordinances”. In this regard, I cannot find favour with the submissions of Sri.P.Ravindran – learned Senior Counsel, because, as I have already said above, Section 37(1), read with Section 36 of the “Act” renders it apodictic that the Syndicate of the University has untrammeled rights to bring out any Ordinances/amendments as they may please. Therefore, what the Chancellor has said in his order dated 27.06.2017 was only a re-affirmation of the powers of the Syndicate and nothing more. I cannot find any error in the stand taken by the Chancellor and therefore, an obligated to grant full imprimatur to his order dated 27.06.2017. 44. Consequential to the afore, all which remains for this Court is to direct the University to deal with the respective claims of the parties in these cases, as per the “First Ordinances” and the amendments which have now obtained the assent of the Chancellor. Thus, WP(C)Nos.30752/2017,8246/2018,19926/2019 and 29385/2018 are dismissed to the extent to which it challenges the order of the Chancellor dated 27.06.2017. Thus, WP(C)Nos.30752/2017,8246/2018,19926/2019 and 29385/2018 are dismissed to the extent to which it challenges the order of the Chancellor dated 27.06.2017. Consequent to the above, the competent Authority of the University will consider the claims of the various parties in this case, after affording them necessary opportunity of being heard, based on the “First Ordinances” and the amendments now assented to it by the Chancellor; thus culminating in appropriate orders and necessary action thereon, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. I make it clear that I have not entered into any of the claims of the petitioners on its merits; and that all such are left open to be impelled before the competent Authority of the University when the afore exercise is completed.