SADASIVA PANICKER Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.) The petitioner was a Joint Secretary to Government or Kerala, Food Department. On 1st June 1971, while he was so working he was appointed as a member of the Appellate Tribunal constituted under sub-s.(1) of S.59 A of the Kerala University Act (shortly stated the Act). S.59 A is as follows:
"59A Constitution of Appellate Tribunal. (1) The Government shall constitute an Appellate Tribunal for the purposes of this Act.
(2) The Appellate Tribunal shall consist of the following members, namely: -
(a) a judicial officer not below the rank of a District Judge nominated by the Chancellor in consultation with the High Court, who shall be the Chairman;
(b) a person who is neither a teacher nor a person connected with the management of a private college to be nominated by the Syndicate from among the members of the Syndicate; and
(c) a person who is or has been an officer of the Government, not below the rank of a Joint Secretary to be nominated by the Government.
(3) The term of office of the Chairman and the other members of the Appellate Tribunal shall be three years from the date of their nomination.
(4) If any vacancy occurs in the office of the Chairman or any other member of the Appellate Tribunal, such vacancy shall be filled by a person nominated in this behalf by the authority concerned.
(5) (a) The functions of Appellate Tribunal may be exercised by a Bench consisting of two members constituted by the Chairman or in the event of the office of a member other than the Chairman being vacant by a Bench consisting of the Chairman and the other member.
(b) Where any matter is heard by a Bench consisting of all the three members of the Appellate Tribunal and the members differ in opinion on any point the point shall be decided in accordance with the opinion of the majority.
(c) Where any matter is heard by a Bench consisting of two members and the members are divided in their opinion on any point, they shall state the point upon which they differ and the matter shall then be heard upon that point only by the third member and such point shall be decided according to the opinion of the third member.
(6) The Appellate Tribunal shall have the power to make regulations consistent with the provisions of the Act with the previous sanction of the Government for regulating its procedure and disposal of its business. The regulations so made shall be published in the gazette.
(7) The remuneration and other conditions of service of the Chairman and other members of the Appellate Tribunal shall be such as may be prescribed by the Statutes."
Following such appointment the petitioner assumed charge of his new office on 30th June 1971. Later, it would appear he was asked to function as Joint Secretary to Government also by which the Government assumes that he was a part time member of the Tribunal.
Regulations were made by the University Appellate Tribunal as envisaged under sub-s.(6) of S.59A of the Act with the previous sanction of the Government by G. O. MS. 8/72/Edn., dated 5th January 1972. Regulation.8 in Chap.3 of the Kerala University Appellate Tribunal Regulations, 1972 states:
"8. Term of office of Tribunal. - The Chairman and members of the Tribunal shall hold office for a period of three years. Any vacancy arising by way of termination, recall, or due to any other cause, shall be filled up by the Government for the unexpired term of the Tribunal."
On account of the insertion of S.59 A by Kerala Act 13 of 1971 in the Act, the Kerala University Statutes made under S.76 of the Act were also amended in the following terms:
"3. Remuneration of the Government nominee. - (a) The member of the Appellate Tribunal nominated by the Government shall be a person who is or has been an officer of the Government not below the rank of a Joint Secretary. If he is in Government service he may be appointed a full time member or a part time member according to the nature and volume of work pending before the Appellate Tribunal. If he is appointed full time member he shall be entitled to the pay and allowances and other conditions of service to which he would be entitled from time to time. If be is appointed a part time member, his work on the Appellate Tribunal shall be in addition to his normal duties in the Government service, and he shall be entitled to an extra allowance of 20 per cent of his basic pay for attending to the work of the Appellate Tribunal.
(b) A person who has been in Government service but ceased to be so before nomination to the Appellate Tribunal, shall be entitled to the pay and allowances, leave and other conditions of service admissible to reemployed pensioner in accordance with the provisions in the Kerala Service Rules or other rules and orders applicable to reemployed pensioners. He shall also be entitled to T.A. and D.A. at the rates applicable to first grade officers of the State Government service."
(2.) On 2nd January 1973 the petitioner attained the age of superannuation, " namely 55 years. Therefore he ceased to be an officer of the Government. By the impugned decision in this case Ext. P-5, the Government of Kerala decided that the petitioner is not entitled to continue as a member of the Kerala University Appellate Tribunal after he ceased to be a Joint Secretary by superannuation. The Government's view is that under S.59A sub-s.(2) clause (c) means that either a person who is holding the post of Joint Secretary or a higher post or a person who was holding such post could be appointed as a member. If the person appointed in the capacity of an officer who is a Joint Secretary or holding a higher post, he ceases to be member of the Appellate Tribunal as soon as he ceases to be a Government servant. According to them, though a person who has been a Joint Secretary can also be a member of the Tribunal, that can only be when he is appointed in that capacity. Clause (c), it is said does not enable an officer in service, appointed as a member, to continue after superannuation without a free appointment in the capacity of a person who was such an officer.
(3.) The petitioner has filed this writ petition challenging this Government order as well as a subsequent order refusing to reconsider the earlier order and seeking to quash it, for a writ of mandamus directing the respondents to allow the petitioner to function as member of the Kerala University Appellate Tribunal and consequential relief. According to the petitioner he is entitled to continue for three years from the date of his nomination.;
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