Kerala High Court
P. Subairkunju vs The State Of Kerala on 3 January, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Wednesday, the 3rd day of January 2024 / 13th Pousha, 1945
WA NO. 1801 OF 2023
AGAINST THE JUDGMENT DATED 07.09.2023 IN WP(C) 7827/2023 OF THIS COURT
APPELLANT(S)/PETITIONER IN W.P.(C):
P. SUBAIRKUNJU, AGED 70 YEARS, S/O. PAKEERU MOIDEEN, RESIDING AT
NIKUNJAM, VANCHIYOOR, VANCHIYOOR, THIRUVANANTHAPURAM, PIN - 695035.
BY SENIOR ADVOCATE SRI. GEORGE POONTHOTTAM AND
ADV. M/S. NISHA GEORGE AND KAVYA VARMA M. M.
RESPONDENT(S)/RESPONDENTS IN W.P.(C):
1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF
HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
695001.
2. THE CHANCELLOR, APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, KERALA RAJ
BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695099.
3. APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, CET CAMPUS,
THIRUVANANTHAPURAM - 695 016, REPRESENTED BY ITS REGISTRAR, PIN -
695016.
4. DR. P.K. BIJU, MEMBER, BOARD OF GOVERNORS, APJ ABDUL KALAM
TECHNOLOGICAL UNIVERSITY, CET CAMPUS, THIRUVANANTHAPURAM - 695 016,
RESIDING AT PARAYAMPARAMPIL, MANJOOR SOUTH P.O., KOTTAYAM DISTRICT,
PIN - 686603.
5. DR. B.S. JAMUNA, MEMBER, BOARD OF GOVERNORS, APJ ABDUL KALAM
TECHNOLOGICAL UNIVERSITY, CET CAMPUS, THIRUVANANTHAPURAM, PIN -
695016.
6. ADVOCATE I. SAJU, MEMBER, BOARD OF GOVERNORS, APJ ABDUL KALAM
TECHNOLOGICAL UNIVERSITY, CET CAMPUS, THIRUVANANTHAPURAM - 695 016.
RESIDING AT P. AZEEZ HOUSE, KILLI, KOLLODE P.O., KATTAKKADA,
THIRUVANANTHAPURAM, PIN - 695571.
7. DR. VINOD KUMAR JACOB, MEMBER, BOARD OF GOVERNORS, APJ ABDUL KALAM
TECHNOLOGICAL UNIVERSITY, CET CAMPUS, THIRUVANANTHAPURAM - 695 016
RESIDING AT PAZHUKUDI, RAMALLOOR, KOTHAMANGALAM P.O., ERNAKULAM
DISTRICT, PIN - 686666.
8. S. VINOD MOHAN, MEMBER, BOARD OF GOVERNORS, APJ ABDUL KALAM
TECHNOLOGICAL UNIVERSITY, CET CAMPUS, THIRUVANANTHAPURAM - 695 016,
PRIVATE SECRETARY, MINISTER FOR AGRICULTURE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
9. DR. SAJEEV G., MEMBER, BOARD OF GOVERNORS, APJ ABDUL KALAM
TECHNOLOGICAL UNIVERSITY, CET CAMPUS, THIRUVANANTHAPURAM - 695 016.
RESIDING AT DOOR NO.2, LALKKAR LANE, SATHYASAI NAGAR, HEMAMBIKA
NAGAR, PALAKKAD, PIN - 678009.
BY ADVOCATE GENERAL OF KERALA FOR R1
SENIOR ADVOCATE SRI. S. GOPAKUMARAN NAIR & STANDING COUNSEL SRI. S.
PRASANTH FOR R2
STANDING COUNSEL SRI. ELVIN PETER FOR R3
SENIOR ADVOCATE SRI. P. RAVINDRAN AND ADVS. M/S. LAKSHMI RAMADAS, M.R.
SABU, APARNA RAJAN & SREEDHAR RAVINDRAN FOR R4 & R9
SENIOR ADV. SRI. S. RAMESH BABU AND ADVS. M/S. N. KRISHNA PRASAD, P.
SHANES METHAR & BHARATH MOHAN FOR R5 TO R7.
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to issue a writ of quo warranto calling upon respondents 4 to 9 to vacate
the office, forthwith, pedning disposal of the Writ Appeal.
This writ appeal coming on for orders on 03.01.2024, upon perusing
the appeal memorandum, the Court on the same day passed the following:
P.T.O
AMIT RAWAL & C.S.SUDHA, JJ.
-------------------------------------------------------
Writ Appeal No.1801 of 2023
IN
W.P.(C).No.7827 of 2023
----------------------------------------------------
Dated this the 03rd day of January, 2024
ORDER
Amit Rawal, J.
The present intra court appeal is directed against the judgment of the
learned Single Bench in W.P(C).7827 of 2023 wherein the following
prayers were sought:
i. Issue a writ of quo warranto as against
respondents 4 to 9 as they are continuing in office without
authority of law and being usurpers of power;
ii. Issue a writ in the nature of prohibition retraining
respondents 4 to 9 from continuing and exercising any
power as members of Board of Governors and Syndicate of
the respondent University under the grab of Ext-P2, as it
has lost its efficacy and legal sanction;
iii. Dispense with filing of the translation of
vernacular documents;
iv. Grant such other reliefs as this Court deems fit in
the facts and circumstances of the case."
2. The above prayers have been declined by the single bench by
assigning the following reasons in paragraph 34 of the judgment.
IN
"34. Therefore, the conclusion that can be arrived at is
since no time limit is prescribed under Articles 200 of the
Constitution of India, the Bill presented for assent to the
Governor shall not cease to operate after the expiry of six
weeks of the re assembly as argued by the counsel for the
petitioner. The Ordinance No.94/2021 was laid before the
legislature and passed on 28.10.2021 and has been placed
before the Governor for assent. So, the Ordinance will not
lapse on 14.11.2021. Merely because the Governor has
withheld the assent for a considerable period of time, it
cannot be said that the ordinance has ceased to operate.
Therefore, going by the dicutm laid down by the apex court in
decisions mentioned above and constitutional provision
especially 200, 201 and 213 of the Constitution of India, the
only conclusion that can be arrived by this court is that the
Ordinance which was promulgated by the Governor will not
lapse on 14.11.2021. Therefore, the continuation of
respondent Nos.4 to 9 as members of Board and Syndicate of
the 3rd respondent University, is legal and in order. The
grounds raised by the petitioner in this Writ Petition are not
sufficient for the issuance of a writ or quo warranto. The
conclusions can be summarised as follows:
(i) The petitioner, whose fundamental, constitutional
or statutory rights, though not infringed and who has
not raised any claim, as a nominee for the Board of
Governors can maintain this writ petition for a writ of
quo warranto.
IN
(ii) Article 200 of the Constitution does not prescribe
a time limit for the Governor to give assent to the bill
and therefore once the bill laid before the legislature
is passed being the will of the people, the ordinance
promulgated will not cease to operate."
3. Mr.George Poonthottam, the learned Senior Counsel assisted
by Ms.Kavya Varma M.M. inter alia alleges that the rationality of the
judgment do not stand on the touchstone of the ratio decidendi culled out by
seven bench judgment of the Supreme Court in Krishna Kumar Singh and
another v. State of Bihar and Others, (2017) 3 SCC 1 for, amendment was
caused in Sections 23 and 27 of the APJ Abdul Kalam Technological
University Act whereby clause Nos.(iii) and (viii) were inserted and a new
council of Board of Governors has been nominated. The aforementioned
action was taken on the basis of Ordinance No.94/2021 dated 23/08/2021
and followed by a Bill dated 28/10/2021. The previous two Ordinances did
not had the accord of the Governor. The question which involves for
adjudication is when the amendments under the provisions of the Act by
virtue of an Ordinance which has not converted into a Bill and not received
the assent of the Governor, can the newly nominated persons continue to
hold the office and for that, the court was required to examine public
IN
interest and constitutional rights as per the ratio decidendi culled out in
paragraph No.105.12 of Krishna Kumar Singh (Supra) which reads as
under:
"The question as to whether rights, privileges, obligations
and habilities would survive an Ordinance which has ceased
to operate must be determined as a matter of construction.
The appropriate test to be applied is the test of public
interest and constitutional necessity. This would include the
issue as to whether the consequences which have taken
place under the Ordinance have assumed an irreversible
character. In a suitable case, it would be open to the court to
mould the relief."
But looking at the aforementioned ratio, viz-a-viz, the findings stated above,
there is abdication.
4. Learned Advocate General appears for the State, Adv.
S.Prasanth, SC, takes notice for Chancellor of Universities of Kerala and
Advocate Elvin Peter, SC, takes notice for APJ Abdul Kalam Technological
University. All others are effected service as per the office report.
5. It is a settled law that in a writ of quo warranto even if no
interim order the appointment will always be subject to the outcome of the
pending intra court appeal.
IN
6. It has been informed that previously State of Kerala had
approached the Supreme Court and the Hon'ble Supreme Court vide order
dated 29/11/2023 in SLP No.46812/2023 had issued a slew of directions.
7. But one day before that, i.e., on 28/11/2023, the Chancellor,
while exercising the power under Article 200 of the Constitution of India,
had sent the matter to the Hon'ble President of India. For overcoming such
impasse, the Government of Kerala had already approached the Supreme
Court and the matter is expected to come before the bench on 08/01/2024.
In this view of the matter, we adjourn the hearing of the intra court
appeal for arguments of parties and also awaiting the outcome of the
pendency of the appeal.
Post on 16/01/2024.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
C.S.SUDHA
JUDGE
ak
03-01-2024 /True Copy/ Assistant Registrar
