The law on “the Doctrine of Pleasure” and the
scope of judicial review, is no longer res integra; it has
been settled by the Apex Court and also by this Court in
various judgments. The “Doctrine of Pleasure” has its
genesis under the common law. A public servant could be
dismissed from service by the Crown at its pleasure.
However, the doctrine lost the said trait when it was
applied in India, which is a republic, wedded to the
rule of law functioning under a written Constitution.
The authoritarian doctrine, though couched in an
unfettered manner, is but subject to the rule of law.
While considering the justiciability on the exercise of
the power of Doctrine of Pleasure, there is no
adjudication of any lis. The contours of judicial review
is confined to, finding out if the exercise of the power
was “arbitrary, capricious or malafide”. There is no
requirement of any notice preceding exercise of the
power, or to assign any cause for exercise of the power.
Though there is no need to assign reasons, the need for
a valid and compelling reason, exists. In exercise of
the doctrine of pleasure, the principles of natural
justice have no application. [See Deepak v. University of
Kerala 2014 (1) KLT 520, Krishna vs. State of Maharashtra and Ors. 2001 (2) SCC 441; B.P. Singhal vs. Union of India (UOI) and Ors. 2010 (6) SCC 331]. {Para 24}
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) NO. 33664 OF 2022
DR.K.S.CHANDRASEKAR Vs THE CHANCELLOR UNIVERSITY OF KERALA,
PRESENT
MR. JUSTICE SATHISH NINAN
24TH DAY OF MARCH 2023
Dated: 24th day of March, 2023
In these writ petitions, the challenge is against
the order of the Chancellor withdrawing his nominated
members from the Senate of the 4th respondent
University.
2. Section 17 of the Kerala University Act, 1974
(hereinafter referred to as “the Act”) deals with the
constitution of the Senate of the University. The Senate
contains four categories of members viz. “Ex-Officio
Members”, “Elected Members”, “Life Members” and, “Other
Members”. W.P.(C) No.33701/2022 and W.P.(C)
No.33677/2022 are by the members nominated by the
Chancellor under Section 17 of the Act in the category
of “Other Members”, and W.P.(C) No.33664/2022 is by the
persons nominated by the Chancellor under Section 17 of
the Act under the category, “Ex-Officio Members”.
3. Section 18(1) provides that, the Senate shall be
re-constituted every four years. In terms of Section
18(2) of the Act, the term of office of nominated
members under the head “Ex-Officio Members” is two years
from the date of nomination. As per Section 18(3) of the
Act, members other than “Ex-Officio” and “Life Members”
are to hold office until the next re-constitution of the
Senate. Section 18(3) of the Act has four provisos; the
4th proviso alone being relevant here, is extracted
hereunder :-
“Provided also that the members in the Senate
nominated by the Chancellor or the Government under the
heading “other members” shall hold their office during the
pleasure of the Chancellor or the Government as the case may
be.”
4. The nomination of the petitioners in these writ
petitions have been withdrawn by the Chancellor in
exercise of the powers conferred under the said proviso
which has ingrained therein, the “Doctrine of Pleasure”.
5. The short background which led to the action of
the Chancellor in withdrawing nominations of the
petitioners is as under.
6. The Vice Chancellor in office was due to retire
on 24.10.2022. Section 10(1) of the Act provides for
appointment of Vice Chancellor by the Chancellor in the
mode prescribed therein. Section 10(1) reads thus:-
“The Vice-Chancellor shall be appointed by the
Chancellor on the unanimous recommendation of a Committee
appointed by him consisting of three members, one elected by
the Senate, one nominated by the Chairman of the University
Grants Commission and the third nominated by the
Chancellor. The Chancellor shall appoint one of the members
of the Committee to be its convener. The Committee shall make
its recommendation within a period of three months of its
appointment.”
7. As is evident from the Section, it postulates
the constitution of a three-member committee by the
Chancellor. The committee is commonly known as the,
“Search-cum-Selection Committee”. The said committee
consists of, (i) one member elected by the Senate, (ii) one
member nominated by the Chairman of the University
Grants Commission, and (iii) the third member nominated by
the Chancellor. The Chancellor is to appoint one among
the members of the Committee as its Convenor. On the
unanimous recommendation of the Committee, the
Chancellor is to appoint the Vice Chancellor.
8. Foreseeing the retirement of the Vice-Chancellor
in Office, the Chancellor required the Senate to
nominate a member to constitute the three-member
selection committee. The Chancellor got an impression
that there is lack of co-operation from the Senate. He
felt that even his nominated members were aiding such
action/ inaction. This led to the withdrawal of his
nominated members from the Senate.
9. The documents relied on in these writ petitions
are more or less common. For the sake of convenience,
the Exhibits produced along with WP(C) No. 33701 of 2022
are referred to in this judgment.
10. Now I proceed to deal with the factual details,
with the events. On 13.06.2022, a communication
[Ext.R2(a)] was issued from the office of the Chancellor
to the University, requiring to elect a member from the
Senate, for constituting the three member “search-cumselection
committee”. Steps were so initiated by the
Chancellor in view of the ensuing retirement of the Vice
Chancellor in office on 24.10.2022.
11. On 15.07.2022, as per Ext.P1, the senate
elected one Dr. V.K.Ramachandran as its representative
to the Committee. However, he declined to accept the
same. Ext.P2 is the communication dated 04.08.2022
issued by him to the University in the said regard.
12. Thereupon, the University, on the very same day
(04.08.2022), sent Ext.P3 communication to the office of
the Chancellor, intimating such events and undertaking
to take urgent steps to convene a special meeting of the
Senate for electing a fresh nominee to the “search-cumselection
committee”.
13. On 05.08.2022, the Chancellor issued Ext.P4
notification, constituting the “Search-cum-Selection
Committee” consisting of his nominee and the nominee of
the University Grants Commission, and further providing
that, the third member, i.e., nominee of the Senate,
shall be included in the Committee as and when the
nomination is received from the University. Ext.P4
notification further states that, the nominee of the
Chancellor shall be the Convener of the Committee.
14. On 20.08.2022, the Senate of the University
held a special meeting. The Senate resolved that Ext.P4
notification issued by the Chancellor is not in
conformity with Section 10(1) of the Act, and decided to
request the Chancellor to withdraw the notification. The
minutes of the meeting was forwarded from the University
to the Office of the Chancellor on 22.08.2022.
15. The above was followed by correspondences from
both offices; the ones from the office of the Chancellor
requiring nomination without delay, and those from the
University requiring withdrawal of Ext.P4 notification.
16. On 29.09.2022, Ext.P9 communication was issued
from the office of the Chancellor pointing out the
inaction of the University in furnishing nomination, and
directing to furnish the nomination by 11.10.2022. It
was cautioned that any failure will be considered as an
act of statutory dereliction, an act in utter disregard
to the interests of the University, and as refusal to
comply with the lawful directions of the Head of the
University.
17. Thereupon, as per Ext.P10 notice dated
01.10.2022 a special meeting of the Senate was convened
to be held on 11.10.2022, to elect a representative to
the “search-cum-selection committee”. However, on
11.10.2022 business could not be transacted for lack of
quorum. On the very same day, as per Ext.P12
communication, the above was intimated to the office of
the Chancellor.
18. As per Ext. P13 communication dated 13.10.2022,
the Chancellor required the Vice-Chancellor to provide
the names of the nominated members of the Chancellor
under the category of “Ex-Officio Members” and “Other
Members” who attended/not attended the meeting of the
Senate held on 20.08.2022, that is, the meeting in which
the Senate resolved to request the Chancellor to
withdraw Ext.P4 notification. The details as sought, was
provided by the University as per communication dated
14.10.2022 [Ext.R2(p)].
19. The above was followed by Ext.P14 communication
dated 15.10.2022, conveying the orders of the Chancellor
withdrawing his nominated members from the Senate with
immediate effect. This was followed by Ext.P16
notification from the office of the Chancellor dated
18.10.2022, regarding withdrawal of his nominated
members from the Senate with effect from 15.10.2022. The
above has led to the writ petitions.
20. Heard Sri.P.Ravindran, learned Senior Counsel,
and the learned counsel Sri.Elvin Peter P.J., and
Sri.N.Raghu Raj, on behalf of the respective
petitioners, Sri.S.Gopakumaran Nair, learned Senior
Counsel on behalf of the Chancellor, and Sri.Thomas
Abraham, the learned standing counsel for the
University.
21. The learned counsel for the petitioners contend
that, the order of withdrawal of nomination was not
preceded by a notice, nor were the petitioners given an
opportunity of hearing prior to the passing of the
order. It was further argued that, on the facts
obtaining, the petitioners were justified in their
conduct of not having nominated a member to the
Committee since, the Committee constituted under Ext.P4
was not one constituted as per the Act.
22. Sri.Gopakumaran Nair. S, the learned counsel
for the Chancellor would on the other hand contend that,
as per Section 7(2) of the Act, the Chancellor is the
head of the University. The nominees are only agents or
trustees of the nominator and they have no independent
right or discretion to function on their own accord.
They were bound to act as per the directions of the
nominator, which they failed. The nominated members
having acted against the interests of the Chancellor, it
was well within his powers to invoke the 4th proviso to
Section 18 and withdraw the nomination.
23. The learned Standing Counsel for the University
would submit that, the University Statutes prescribe
procedures for holding of meetings, modification of
earlier resolutions etc. and unless the said procedural
formalities were duly complied, meetings could not be
held. In the light of the statutory prescriptions,
decisions in compliance with the legal requirements
could not be taken in haste as was required by the
Chancellor. So also, the haste was really unnecessary
since the office of the Vice-Chancellor would fall
vacant only on 24.10.2022.
24. The law on “the Doctrine of Pleasure” and the
scope of judicial review, is no longer res integra; it has
been settled by the Apex Court and also by this Court in
various judgments. The “Doctrine of Pleasure” has its
genesis under the common law. A public servant could be
dismissed from service by the Crown at its pleasure.
However, the doctrine lost the said trait when it was
applied in India, which is a republic, wedded to the
rule of law functioning under a written Constitution.
The authoritarian doctrine, though couched in an
unfettered manner, is but subject to the rule of law.
While considering the justiciability on the exercise of
the power of Doctrine of Pleasure, there is no
adjudication of any lis. The contours of judicial review
is confined to, finding out if the exercise of the power
was “arbitrary, capricious or malafide”. There is no
requirement of any notice preceding exercise of the
power, or to assign any cause for exercise of the power.
Though there is no need to assign reasons, the need for
a valid and compelling reason, exists. In exercise of
the doctrine of pleasure, the principles of natural
justice have no application. [See Deepak v. University of
Kerala 2014 (1) KLT 520, Krishna vs. State of Maharashtra and Ors. 2001
(2) SCC 441; B.P. Singhal vs. Union of India (UOI) and Ors. 2010 (6)
SCC 331].
25. Deepak's case (supra), was one wherein the Division
Bench had specifically considered the Doctrine of
Pleasure engrained in the 4th proviso to Section 18 of
the Act. While considering the exercise of the doctrine
of pleasure under the 4th proviso to withdraw
nominations of a member of the Senate, the Division
Bench observed that, there must be reasons for
withdrawal of the nominations. The Division Bench, after
observing that the scope of judicial intervention is
only when the exercise of power is arbitrary, mala fide,
and capricious, concluded thus :-
“The Chancellor acts as an authority under the Statute.
Therefore, the principle is that when the Chancellor in
removing the nominated member acts in an arbitrary or mala
fide manner or he acts in a capricious manner certainly the
Court has jurisdiction to interfere.”
26. Therefore, this Court is essentially called
upon to consider whether the exercise of the pleasure
doctrine was arbitrary, capricious or malafide. Such
consideration shall be done conscious of the fact that,
this Court is not exercising an appellate jurisdiction.
27. While considering whether the exercise of the
“pleasure doctrine” in withdrawing the nominated
members, was arbitrary, capricious, or malafide, it
would be of some relevance, though not determinative, to
understand and bear in mind the nature/capacity/status
of a “nomination” and a “nominee”. Is the process of
“nomination” under Section 17 of the Act the mere
creation of an agency and, is a “nominee” a mere agent
or a mouthpiece of the nominator? If it is so, then
there could possibly be an absolute privilege in
invoking the pleasure doctrine, and the vices,
“arbitrary, capricious and mala fide” would hardly have
relevance or application. Therefore, it is necessary to
understand the concept of nomination and the status of a
nominee under Section 17 of the Act.
28. The relevant provisions under Section 17 of the
Act relating to nomination of “Ex-Officio Members” and
“Other Members” read thus:-
“ Ex-Officio Members ”
“(13) Seven heads of University departments who are not
otherwise members of the Senate, to be nominated in the order
of seniority by the Chancellor by rotation.
(14) Four Deans of the Faculties of the University who
are not otherwise members of the Senate, to be nominated in the
order of seniority by the Chancellor by rotation.”
“ Other Members ”
(2) Not more than nine members nominated by the
Chancellor representing
(i) recognised research institutions;
(ii) recognised cultural associations;
(iii) chambers of commerce;
(iv) industries;
(v) authors;
(vi) journalists;
(vii) lawyers;
(viii) sports; and
(ix) linguistic minorities”
A plain reading of the provisions suggest that, the term
“nominated” occurring in the Section signifies only to,
an act of “naming”. The nomination is to ensure the
representation of cross sections of the Society from
specified categories.
29. Now let us ponder over the scope of the term
“nominations” and “nominee”. With regard to the role of
a nominee, the stand of the Chancellor is that, he is
only an agent or trustee of the nominator, having no
independent right or discretion to function; rather, the
nominee is to act on the dictates of the nominator. It
would be necessary to refer to the statement filed on
behalf of the Chancellor, wherein, the role of a nominee
is mentioned. The relevant averments are contained in
paragraph 7 of the statement and it reads thus:-
“Even otherwise, there is no legal or moral right for a nominee
of an authority in a representative body to act against the
decision/stand of the authority, its nominator, and to continue as
a member in the body. As per the definition in the Black's Law
Dictionary, a 'nominee' is “one who has been nominated or
proposed for an office, one designated to act for another as his
representative in a rather limited sense. It is used sometimes to
signify an agent or trustee. It has no connotation, however,
other than that of acting for another, in representation of
another, or as the grantee of another.” Hence, it is submitted,
the law on the subject is well settled that, a 'nominee' is only an
agent or trustee of his nominator and has no independent right
or discretion to function on in his own way in the nominated
office. Even going by the 'morality of law', “it is obvious that
duties, both moral and legal, arise of an exchange, an exchange
of promises, based on the principle of reciprocity and the
morality of duty” (The Morality of Law, Lon L. Fuller, Yale
University Press, Universal Book Traders, 1969).”
The learned senior counsel Sri.S.Gopakumaran Nair
further asserted that the status of the nominee of the
Chancellor under Section 17 of the Act is only as
mentioned above.
30. In the context in which the term nomination is
used in the Section, as noted above, I am unable to
comprehend the term as suggested by the first
respondent. The term nomination/nominee has different
facets/colours. In the context of elections, it has one
connotation; in arbitration proceedings, when parties
nominate Arbitrators, it has another tenor. Nomination
of Arbitrator could never be understood to be the
appointment of an agent to speak on behalf of the
nominator. So also, there are nominations and nominees
while conferring awards. Again, the term has a different
meaning while used with reference to assets. Therefore,
the term would literally mean only, “naming a person”.
31. In Words and Phrases, Permanent Edition, the
words “nominate and nominations” have been explained
thus:-
“The word “nominate” ordinarily means to name,
designate by name, or appoint.”
“The terms “nominate” and “appoint” are not
synonymous, though there are some instances where the terms
may be used to mean the same thing.”
“Nomination for office involves selections of particular
candidates to be voted for. Nominations by the examiners
consist simply in naming a number of eligibles from among
whom the commissioners must make selections.”
“Nomination” means the act of suggesting or proposing
a person by name as a candidate for an office.”
“Nominations” is equivalent to the word “appointment”,
when used by a mayor in an instrument executed for the
purpose of appointing certain persons to office.”
The Oxford Advanced Learner's Dictionary defines
“nominate” as:-
“Nominate :- to formally suggest that somebody should be
chosen for an important role, prize, position, etc.”
In The Law Lexicon by P. Ramanatha Aiyar Second Edition
1997, he explains the term “nomination' thus:-
“Nominations” is equivalent to the word “appointments”,
when used by a mayor in an instrument executed for the
purpose of appointing certain persons to office.”
In Black's Law Dictionary 8th Edition “nomination' is
stated to mean :-
“1. The act of proposing a person for election or appointment.
2. The act of naming or designating a person for an office,
membership, award, or like title or status.”
Similar exposition of the terms is found in K.J.Aiyer's
Judicial Dictionary 15th edition 2011 :-
“Nomination. To nominate as may be seen from any
dictionary, means to name or designate by name for office or
place. Webster's New Twentieth Century Dictionary, gives the
word 'nomination' among other meanings: 'The naming or
appointing a person to an office; the naming of a person as a
candidate for election or appointment to an office'. A meaning
of the word 'nominate' is 'to propose for office'.”
32. From the above, and the context in which the
power of nomination is conferred on the Chancellor to
act under Section 17, it is evident that, the process of
nomination as mentioned in the Section is not an act of
constituting an agent or a mouthpiece to speak his
master's voice. The act of nomination as mentioned in
Section 18 is only, exercising the power to name a
person from a particular category/class as mentioned in
the Section.
33. Thus understanding the scope of “nomination”
and the power of “nominee” under Section 18 of the Act,
I proceed to consider whether the act of withdrawal of
nominated members was vitiated by “arbitrariness,
capriciousness or mala fides”, which alone, as noticed
supra, are the grounds on which the exercise of pleasure
doctrine is justiciable.
34. At the very outset it needs to be observed
that, none of the petitioners have raised an argument
that, the act of the Chancellor is vitiated by
malafides. What remains is, the consideration whether
the action was arbitrary or capricious, and that too
within the limited scope of judicial review as was
noticed earlier.
35. While considering whether the order/act of
withdrawal was “arbitrary” or “capricious”, the exact
meaning of the said terms need to be understood.
Dictionaries or law lexicons suggest that the term
“arbitrary” and “capricious” are synonymous, in the
sense that, the words have the same or nearly the same
meaning. As per the various dictionaries and law
lexicons, the term arbitrary means, unreasonable,
unsupported, irrational, illogical, groundless,
unjustifiable, autocratic, unrestrained, inhibiting or
restraining personal freedom.
36. In Sanchit Bansal v. Joint Admission Board (2012) 1 SCC
157, the Apex Court explained the term “Arbitrary” and
“Capricious” thus :-
“An action is said to be arbitrary and capricious, where a
person, in particular, a person in authority does any action
based on individual discretion by ignoring prescribed rules,
procedure or law and the action or decision is founded on
prejudice or preference rather than reason or fact. To be
termed as arbitrary and capricious, the action must be
illogical and whimsical, something without any reasonable
explanation.”
The Corpus Juris Secundum defines the term
“arbitrariness” and “arbitrary” thus:-
“ARBITRARINESS. Conduct or acts based alone
upon one's will, and not upon any course of reasoning and
exercise of judgment, action or ruling not based on
reasonable grounds.
ARBITRARY. The term “arbitrary” has been
variously defined, but in general is defined as willful and
unreasoning action, without consideration and regard for the
facts and circumstances presented.”
In Stroud's Judicial Dictionary of Words and Phrases,
the term “arbitrarily” is explained thus :-
“ARBITRARILY. To act “arbitrarily” is to act
“without any reasonable cause”, to act “capriciously” is to
act “without any apparent reason”
In Words and Phrases Permanent Edition, the words
“arbitrary” and “capricious” are explained thus:-
“Arbitrary” means without adequate determining
principle; not done or acting according to reason or
judgment.”
“Arbitrary” and “capricious”, in legal sense, as
distinguished from opprobrious or popular meaning, are used
in technical sense as meaning without rational basis.”
“To constitute “arbitrary” or “capricious” exercise of
discretion by administrative board or officer, it must appear
that its action is based on conclusions from the evidence such
that reasonable men fairly and honestly considering the
evidence must reach contrary conclusions.”
“The term “arbitrary” and “capricious” mean willful
and unreasoning action, without consideration of and in
disregard of the facts and circumstances of the case, and
action is not “arbitrary” or “capricious” when exercised
honestly and upon due consideration, where there is room for
two opinions, however much it may be believed that an
erroneous conclusion was reached.”
Oxford Advanced Learner's Dictionary of Current English
has explained the meaning of the term “arbitrary” as :-
“of an action, a decision, a rule, etc. not seeming to be
based on a reason, system or plan and sometimes seeming
unfair”
Thus, understanding the concept of “arbitrariness” and
“capriciousness”, whether the order of withdrawal is
vitiated thereby needs to be considered.
37. The facts and sequence of events leading to the
order of the Chancellor withdrawing his nominated
members from the Senate have been adverted to in detail,
supra. As was required by the Chancellor, on 15.07.2022,
the Senate nominated a member. However, on 04.08.2022,
the nominee declined to accept. On the very same day,
the office of the Chancellor was informed the same and
had assured that, “urgent steps for convening a special
meeting of the Senate for electing a fresh nominee of
the Senate to the Search-cum-Selection Committee will be
taken”. However, on the very next day i.e., on
05.08.2022, Ext.P4 notification was issued from the
office of the Chancellor constituting the Search-cum-
Selection Committee with the nominees of the Chancellor
and the University Grants Commission. The nominee of the
Senate was to be included as and when the same is
nominated. Apart from the truncated nomination, one
among the two notified members was appointed as the
Convener of the Committee and was so notified.
Incidentally it is noticed that, in terms of Section
10(19) of the Act, when a permanent vacancy occurs in
the office of Vice-Chancellor, the Chancellor is to take
steps for appointment of Vice-Chancellor within one
month from the occurrence of vacancy. The office was to
fall vacant only on 24.10.2022.
38. As noticed, the non-acceptance of nomination
made by the Senate was informed by the nominee as per
communication dated 04.08.2022. On the very same day it
was informed at the office of the Chancellor and assured
that steps would be taken for fresh nomination. It is
surprising to note that, in spite of the above, on the
very next day a committee with two members was notified.
In terms of Section 10(1), the Search-cum-Selection
Committee is to be constituted with three members.
Therefore, the constitution of the Committee, is not in
accordance with the Statute. So also, appointment of
Convener is to be from the three-member Committee.
However, in Ext.P4 notification, one among the two
nominees have been appointed as the Convener. This also
is not in tune with the prescriptions under Section
10(1) of the Act. Therefore, the constitution of the
Search cum Selection Committee and the appointment of
its Convenor under Ext.P4, are not in accordance with
law.
39. Evidently, for the reasons as above, the Senate
in its meeting held on 20.08.2022 resolved to request
the Chancellor to withdraw the notification, to enable
constitution of a Search-cum-Selection Committee in
accordance with Section 10(1) of the Act. It appears
that the Chancellor considered it as a challenge on his
authority.
40. As per Ext.P9 communication dated 29.09.2022,
the office of the Chancellor directed that, the nominee
of the University shall be elected by 11.10.2022 failing
which the inaction would be treated as statutory
dereliction and utter disregard of the interest of the
University and wilful noncompliance with the directions
of the Head of the University.
41. Thereupon, on 01.10.2022, a meeting of the
Senate convened to be held on 11.10.2022. Statute 3(2)
of Chapter 1 of the Kerala University First Statutes,
1977 stipulates that, a notice of not less than ten days
shall be given for a meeting of the Senate specially
convened for the purpose of election of member to the
Search-cum-Selection Committee. Even if the
communication would have been served on the members the
very next day it would not have satisfied the time
stipulation mandated under the First Statutes for lack
of ten days notice. Still the meeting was convened in
compliance with the directions from the office of the
Chancellor. However, business could not be transacted in
the meeting due to want of quorum. The meeting having
been convened without compliance of the mandates under
the First Statutes, the mere failure to be present in
the same could not be frowned upon. This is in addition
to the fact that the earlier notification dated
05.08.2022 constituting a two-member committee with a
Convener, which is apparently in non-compliance with the
Act, was yet to be withdrawn.
42. It is pursuant to the above incident that, the
office of the Chancellor sought details of the members
who attended the meeting of the Senate held on
20.08.2022 which adopted the resolution against Ext.P4
notification constituting Select Committee. On receipt
of the details, which included the names of the
nominated members, followed the withdrawal of the
nominated members of the Chancellor.
43. As noticed earlier, the nominee under Section
17 of the Act is not a mere mouthpiece or an agent. His
actions need be in accordance with law. He has to act
according to law. The order of withdrawal of the
nominated members is not for any alleged illegal act.
While this Court is not to sit in judgment or appeal
over the reasons for the withdrawal of nomination, it is
evident that the order is not based on any reason, but,
was rather founded on prejudice. It was an unreasoned
act, without regard to the facts and circumstances. All
the above points to arbitrariness. It appears that the
Chancellor was under a misconception regarding the role
of nominee, which also contributed to the arbitrary
action. Therefore, on the facts as noticed above, this
Court finds that, the order withdrawing the nominated
members suffers from the vice of arbitrariness. The
orders withdrawing the nominated members are thus liable
to be interfered with.
44. As regards the petitioners in W.P.(C)
No.33664/2022, the facts involved are slightly
different. The petitioners therein were nominated under
the head “Ex-Officio Members” in Section 17 as included
in Serial Number (13) therein. The said provision has
been extracted in the earlier part of this judgment.
Noticeably their nominations are also withdrawn
purportedly in exercise of the power of pleasure under
the 4th proviso to Section 18. Though the proviso has
been extracted supra, since it is determinative for the
issue at hand, is being re-produced again :-
“Provided also that the members in the Senate nominated by
the Chancellor or the Government under the head “other
members” shall hold their office during the pleasure of the
Chancellor or the Government as the case may be.”
45. The proviso is unambiguous that, the nominated
members under the heading “Other Members”, shall hold
office during the pleasure. Therefore, the application
of the 4th proviso is confined to the nominees falling
under the head “Other Members”. The petitioners in W.P.
(C) No.33664/2022 are nominees under the head “Ex-
Officio Members” and not under the category “Other
Members”. When statute provides for a specific term of
office and does not provide for withdrawal therefrom at
pleasure, the doctrine of pleasure does not operate.
(See Saji D. Anand vs. State of Kerala and Ors. 2016 (5) KHC 625, State
of Kerala v. Saji D. Anand 2018 (1) KLT 343). Therefore, their
nominations could not have been withdrawn in exercise of
the doctrine of pleasure under the 4th proviso to
Section 18(3).
46. On the discussions as above it is held that,
the orders of the Chancellor withdrawing the nominations
of the petitioners in these writ petitions by invoking
the pleasure doctrine engrained under the 4th proviso to
Section 18(3) cannot be sustained and is liable to be
interfered with.
47. As found in paragraph No. 38 of this judgment,
the notification dated 05.08.2022 bearing No.GS6-
1225/2022 constituting the Search-cum-Selection
Committee and the appointment of Convener thereunder, is
not in accordance with the mandates under Section 10(1)
of the Act. The same is also liable to be interfered
with.
Resultantly, the writ petitions are allowed. Order
of the Chancellor bearing No.GS6-1225/2022 dated
15.10.2022, the notification bearing No.GS6-1225/2022(2)
dated 18.10.2022 withdrawing the nominations of the
petitioners from the Senate of the University, and the
notification bearing No.GS6-1225/2022 dated 05.08.2022
constituting Search-cum-Selection Committee and Convener
of the Committee are hereby quashed.
Sd/-
SATHISH NINAN
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