Doctrine Of Pleasure Subject To Rule Of Law: Kerala High Court Quashes Governor's Order Removing 15 Senate Members From Kerala University

The Kerala High Court on Friday quashed the order of Governor Arif Mohammed Khan, Chancellor of the University of Kerala, withdrawing the nomination of 15 members of the University Senate.

A single bench of Justice Sathish Ninan held that the order of the Chancellor withdrawing the nominations of the members invoking the doctrine of pleasure was unsustainable in law and arbitrary:

“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”, the court observed.

The writ petitions had been filed challenging the order of the Chancellor of the Kerala University, removing 15 members of the Senate by withdrawing his pleasure from allowing the petitioners to continue as members of the University Senate. The petitioners were nominated by the Chancellor under Section 17 of the Kerala University Act, 1974 as members of the Senate. However, the chancellor subsequently passed an order on 15th October 2022, removing the petitioners as members with immediate effect.

"Members (15 Nos.) have failed to discharge their duties and responsibilities as a Member in the Senate of the university, I hereby withdraw my pleasure from allowing them to continue as Members in the Senate of the University with immediate effect. They shall cease to be Members of the Senate of the University with immediate effect.” the order of the Chancellor had stated.

The court had previously granted interim relief to the petitioners on 21st October 2022, directing the Chancellor to not make any fresh appointments to replace the 15 members who had been removed.

The petitioners were appointed by the Chancellor by the powers conferred on him under Section 17 of the Kerala University Act, 1974. The Senate contains four categories of members -“Ex-Officio Members”, “Elected Members”, “Life Members” and, “Other Members”. The “Other Members” and “Ex-Officio Members” to the Senate are nominated by the Chancellor under Section 17 of the Act. Under the 4th proviso to Section 18(3) of the Act the nominated members hold office during the pleasure of the Chancellor. The court in the matter primarily considered the question of whether this exercise of the pleasure by the Governor under the Act was "arbitrary, capricious or malafide".

Factual Background

Section 10(1) of the Act provides for the appointment of Vice Chancellor by the Chancellor by constituting a three-member committee called the “Search-cum-Selection Committee”. The 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. Under the Act, the Chancellor appoints the VC on the recommendation of the Committee.

The Chancellor communicated to the Senate to elect a member for constitution of the “search-cum selection committee”. The senate elected its representative, but the Chancellor declined the nominee and the Senate was asked to take steps to elect a fresh nominee. Subsequently, the Chancellor issued a notification (Ext.P4), constituting the a 2 member committee with only his nominee and the nominee of the UGC. According to the notification, the nominee of the Senate, was to be included in the committee, as and when the Senate nominates a member.

On 20.08.2022 the Senate resolved to request the Chancellor to the withdraw Ext. P4 notification as it was in contravention of Section 10(1) of the Act. Subsequently, the Chancellor requested the VC to provide the names of the nominated members of Senate who attended this meeting of the Senate.

Later, the Chancellor had warned the Senate members that failure to furnish its nomination on time would be a dereliction of its duty and against the interests of the University.

On 1st October 2022, the Senate convened a meeting to elective its representative to the committee, but failed to do so as the necessary quorum was not met. On 15th October 2022 the Chancellor ordered the withdrawal of his nominated members from the Senate with immediate effect. A notification was also issued in this regard soon after.

From the facts and circumstances, the court observed that the Chancellor anticipated the Vice-Chancellor's retirement and asked the Senate to choose a member for the three-member selection committee. However, the Chancellor sensed that the Senate was not cooperating and that even his appointed members were not aiding him. As a result, he decided to withdraw his appointed members from the Senate.

Arguments Advanced By Parties

Senior Adv. P Ravindran, Adv. Elvin Peter P J and Adv. N Raghu Raj appeared for the petitioners, Senior Adv. S.Gopakumaran Nair, appeared for the Chancellor, and Adv. Thomas Abraham, appeared for the Kerala University.

The petitioners argued that the order was withdrawal was without any notice and that they were not given an opportunity to be heard. They also argued that their conduct was justified as the constitution of the two-member committee was in violation of the Act.

The counsel for the Chancellor on the other hand argued that under Section 7(2) of the Act, the Chancellor is the head of the University and the nominated members of the Senate are only his agents. They have no right of their own and cannot exercise their own discretion in discharging their functions, it was contended. As they failed to act as per the instructions of the Chancellor, the Chancellor was justified in invoking his powers under the 4th proviso to Section 18(3) and withdraw the nominations.

Court’s Ruling

The court first examined the applicability of the doctrine of pleasure in the Indian context:

“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.”

The court however observed that the principles of natural justice would not apply to this doctrine and hence there was no requirement of any notice, or to assign any reason for the withdrawal. The judicial review in this case was restricted to deciphering if the power exercised by the Chancellor under the doctrine of pleasure is “arbitrary, capricious or malafide”, the court pointed out.

The court quashed Ext P4 notification of the Chancellor, the constituted a two member committee to appoint the VC, as it was not in accordance with the Act.

The court also held the act of removal of the members to be arbitrary and based on prejudice. The court observed that the nominated members need to act in accordance with the Act and their removal was not justified:

“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.”

The court further observed that the doctrine of pleasure was only applicable to the petitioners nominated as “Ex-Officio Members” under Section 17. However, the 4th provisio to Section 18(3) would not apply to the members nominated under the category of “Other Members” and hence the doctrine of pleasure would not apply to them. The removal of the nomination of the petitioners appointed as "Other Members" of the Senate was set aside on this ground alone. ‘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’ the court held in this regard.

Consequently, the court quashed the order of the Chancellor withdrawing the nominations of the petitioners from the Senate of the University and also the notification issued by the Chancellor constituting a two-member committee for appointment of the Vice Chancellor.

Case Title: Dr. K.S. Chandrasekhar & Ors. v. The Chancellor & Ors

Citation: 2023 LiveLaw (Ker) 156

Click here to read/download the judgment