Ashok Bhushan, Ag.CJ Heard learned counsel for the appellant. 2. This writ appeal has been filed against the judgment dated 20.10.2014 in writ petition No.7887 of 2013. The petitioner/appellant who filed the writ petition, praying for the following reliefs:
"i) issue a writ of certiorari or any other appropriate writ order or direction, calling for the records leading to Exhibits-P5 and P7 and quash the same;
ii) issue any other appropriate writ, order or direction, declaring that the 3rd respondent have no right or authority to make nomination to Syndicate of 2nd respondent University as per section 17(1)(vii) of Cochin university of Science and Technology Act, 1986;
iii) issue any other appropriate writ, order or direction declaring that 4th respondent is not entitled to hold office as member to Syndicate of 2nd respondent University pursuant to Exhibits-P5 and P7”
3. Ext.P5 which was prayed to be quashed was letter dated 9.6.2011 issued by the Government of Kerala to the Registrar, Cochin University of Science and Technology communicating nominations as per section 17 (vii) of Cochin University of Science and Technology Act 1986 of one Sri. Sunny. P. Jose. Ext.P7 is the consequential notification issued by the University notifying nominations as per section 17(1)(vii) of the Act.
4. The petitioner's case in the writ petition was that the Chancellor has not applied his mind and passed any order nominating Sunny. P. Jose. Hence both the orders deserve to be quashed.
5. Learned Single Judge after hearing the parties held that the name made available by the Government was found reliable and safe material to be considered by the Chancellor for nominating and approved the name of the fourth respondent. On the basis of which Ext.P5 order was issued. The writ petition was dismissed and appeal has been filed against the said judgment.
6. Learned counsel for the appellant in support of his submissions contended that the order passed by the Chancellor nominating the fourth respondent was not produced by the respondent. He further submits that one name was forwarded to the Chancellor and nomination of one name without there being a panel, cannot be said to be appropriate application of mind before nomination. He has placed reliance on two judgments, Deepak v. University of Kerala [2014 (1) KLT 520] and Vice Chancellor v. Tresa Radhakrishnan [2011 (2) KLT 110] .
7. In the writ petition, a counter affidavit was filed on behalf of the Chancellor by an officer on the rank of Deputy Secretary, who in paragraph 4 of the counter affidavit has stated as follows:
"4. By virtue of file No.17617/B2/2013/H.Edn., the State Government had submitted the bio-data of the 4th respondent for consideration for nomination to the syndicate of Cochin University of Science and Technology by the Chancellor. By virtue of his approval on 9.6.2011 by the Chancellor, the Chancellor has nominated the 4th respondent to be included in the Syndicate under section 17(1)(vii) as an expert from the field of Industry and Commerce. It is also worthwhile to mention that, no provisions in the University Act necessitating the Chancellor to issue a formal order to give effect the nomination. The moment, the Chancellor approves a person from the materials based before him that amounts to a valid nomination for the purpose of Section 17(1)(vii) of the Cochin University of Science and Technology Act, 1986. Petitioner's argument that, 4th respondent's nomination is by the third respondent is not true and correct and hence denied. The third respondent only circulated the name of the 4th respondent for the purpose of recommendation and nomination by the Chancellor. By virtue of the approval of that name on 9.6.2011 by the Chancellor, 4th respondent was validly nominated by the Chancellor. The Contentions to the contrary are not correct and hence denied. It is submitted that, nomination of the 4th respondent to the Syndicate of the second respondent's University is in accordance with the mandate contained in Section 17(1)(vii) of the Cochin University of Science and Technology act, 1986. The nomination is valid and in accordance with law.”
8. The order of the Government, Ext.P5, was prayed to be quashed by the petitioner. It is useful to quote the communication dated 9.6.2011 issued to the University:
"Sri. Sunny.P. Jose, (Alapatt Palathingal, T.C.11/1415-1, Cliff House Road, Nanthacode, Kowdiar Post, Thiruvananthapuram-695 003) an expert from the field of Industry and Commerce has been nominated to the Syndicate of Cochin University of Science and Technology as per Section 17(vii) of Cochin University of Science and Technology Act, 1986.
This has the assent of His Excellency the Chancellor.”
9. The nomination by the Chancellor is a nomination of candidate as per the provisions of the Act. The power of nomination is to be exercised by the Chancellor. There is no appropriate form or proforma for expressing consent to nomination. The assent of the Chancellor to a name for nomination is sufficient.
10. Learned counsel for the appellant emphasized that it is necessary to produce the order of the Chancellor nominating the fourth respondent. When the Deputy Secretary filed the affidavit on behalf of the Chancellor, it is specifically stated that the Chancellor has nominated the fourth respondent by virtue of his approval on 9.6.2011, we see no reason to disbelieve the said statement. The order of the Government communicating the nomination also specifically mentioned that the nomination has assent of the Chancellor. The submission of learned counsel for the appellant that there has to be a panel, out of which the Chancellor has to nominate, also does not commend us as nomination may or may not be made by the Chancellor. The Chancellor can make the nomination of a competent person after receiving information from any source. The fact that there should be a panel for persons to be nominated does not commend us.
11. Learned counsel for the appellant has referred to paragraph 29 of the judgment of a Division Bench of this Court in Deepak v. University of Kerala, in which the following was laid down :
"29. It is true that when power is exercised under section 7(3) of the Act, the Chancellor is obliged to issue an order. When the Chancellor exercises any of the power conferred under section 7(10) of the Act, which means if the Chancellor is given the power under any other provision of the Act, or statutory instruments also, the Chancellor must not only take a decision, but there must be an order. There can be no scope for an oral order as such for a statutory functionary. Clothing a statutory authority with power to issue oral order would have serious repercussion on the rights of the parties. An order unless it is made, and it is made known and if it is allowed to have impact on the destiny of others it would be clearly arbitrary and illegal. Therefore when the Chancellor takes a decision, it can only be by an order. No doubt, we are not too happy with the way the matter has been done. The entire litigation for the most part is based on the alleged absence of an order. While brevity in making the order might be a virtue, the substance of the matter, at least should be self evident from the decision in the order. The matter should not be allowed to be decided on the basis of conjecture leaving superior courts to undertake the task of ascertaining whether there is an order with reference to the context and other materials. In this case, no doubt, we have done that exercise and we have come to a conclusion that there is an order. But all this could have been avoided if the Chancellor had taken greater care to couch his decision with greater clarity and at least in a few words clearly indicating his decision to withdraw the nomination of the appellant. But there is an order in this case. In this connection we must again remind ourselves that when the exercise of power is made under section 18(3), there is no question of deciding any lis. There is no question of notice to the nominated member. The only substantial constraint is that the power cannot be exercised arbitrarily, capriciously, or for mala fide reasons. There must also be a reason for withdrawal of the nomination. A member of the senate is nominated and entrusted with a task under the Act and that task is to perform various functions of the senate. The senate is an important body of the University. Under section 18(3) of the Act, a member of the senate is vouchsafed with a term of four years. While it may not be like the term of an employee, nonetheless there is a statutory assurance that if the power of Pleasure is not exercised against him, a nominated member can continue. The nominated member works as a member of the team to achieve the objectives set forth for the senate. Disruption of his career as a member of the senate without any cause is certainly not in public interest. But that is not to say the court is going to sit in judgment over the reasons. The court is not concerned with the sufficiency of reasons. It is one thing to say that the court will interfere if certain contingency exists and another thing to blur the limits of the jurisdiction of the writ court bearing in mind that the writ court is not the Appellate Court.”
12. In the above case, the issue which has arisen for consideration was a question of withdrawal of nomination. The Chancellor on a proposal for withdrawal has written the words “I agree”. The Division Bench accepted the same as withdrawal of the nomination, which has been recorded in paragraph 30 of the judgment, which was to the following effect:
"“30. Therefore, we come to a conclusion that there was a decision by the first respondent to withdraw the nomination and even though the words used to express the decision are not to our liking in that, it is too short and not eloquent of the intention by itself, the fact remains that there is an order.”
13. The Division Bench has emphasized that the decision cannot be taken orally. There cannot be any dispute to the said preposition. But here, the respondent has categorically stated that there is an order approving the nomination, dated 9.6.2011. The order of approval on the file is sufficient to make it a complete nomination. The said judgment in no manner helps the appellant.
14. The second judgment relied on by the learned counsel for the appellant is Tresa Radhakrishnan (Supra), which is a case pertaining to seniority of Head of various Departments. In the said case, the Division Bench held that it is not for the Vice Chancellor to make selections and sent it to the Chancellor for approval and the Chancellor certainly had assistance of the Vice Chancellor in that regard. The said observations were made in the context of a specific statutory provision of the Act and has no reference with regard to the power of nomination which has to be exercised by the Chancellor. The said judgment does not help the appellant. We do not find any error in the judgment of learned single Judge.
The writ appeal is dismissed.
Sd/-
ASHOK BHUSHAN, ACTING CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE, JUDGE.
sou.
// True copy //