Dr. Vinod P v University of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 2[ND] DAY OF MAY 2023 / 12TH VAISAKHA, 1945 ``` ## **`WP(C) NO. 14968 OF 2023`** ## **`PETITIONER/S:`** ``` DR. VINOD P AGED 52 YEARS S/O. K. PRABHAKARAN PILLAI, ASSISTANT PROFESSOR, DEPARTMENT OF ZOOLOGY, NSS COLLEGE, PANDALAM, PATHANAMTHITTA DISTRICT - 689501. RESIDING AT VINOD VILLA, SOUTH MANKUZHI, PULLIKANAKKU P.O., KAYAMKULAM, ALAPPUZHA, PIN - 690537 BY ADVS. NISHA GEORGE A.L.NAVANEETH KRISHNAN ``` ## **`RESPONDENT/S:`** ``` 1THE UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR, 2THE VICE CHANCELLOR THE UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN - 695034 3THE RETURNING OFFICER FOR SENATE ELECTION REGISTRAR, UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM., PIN - 695034 BY ADVS. THOMAS ABRAHAM, SC Thomas Abraham ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 14968 OF 2023 ..2.. ``` ## **JUDGMENT** The petitioner is working as an Assistant Professor in the Department of Zoology at N.S.S. College, Pandalam, a College affiliated to the University of Kerala (for short ‘the University’). He is an elector included in the electoral roll of the constituency of Teachers of Private Colleges for election to the Senate of the University. The election for reconstitution of the Senate of the University was notified by the Returning Officer, the Registrar of the University, the 3[rd] respondent, on 03.04.2023 _vide_ Ext. P1 in terms of the provisions of the Kerala University (Conduct of Elections to Various Authorities or Bodies) First Statutes, 1974 (hereinafter referred to as ‘the Election Statutes’ for short). As per Ext. P1, the last date for receipt of nominations in respect of teachers of private colleges was 18.04.2023. The date of scrutiny of nominations in respect of the said ``` WP(C) NO. 14968 OF 2023 ..3.. ``` constituency was 19.04.2023 and the date of publication of final list of candidates was 25.04.2023. The date notified for poll is 20.06.2023. 2. The petitioner submitted nomination for election to the Senate under item No. (6) of Section 17 of the Kerala University Act, 1974 (Teachers of private college constituency) on 13.04.2023. Ext.P2 is the copy of one of the three sets of nomination papers submitted by the petitioner. At the time of scrutiny of nominations on 19.04.2023, objection was raised on behalf of other candidates that the nomination of the petitioner is not duly filled as it does not bear any date and it is invalid. The Returning officer, accordingly, rejected his nomination. The petitioner submitted Ext.P3 letter dated 19.04.2023 seeking reasons for the rejection of his nomination. By Ext.P4, the Returning Officer furnished a reply to the petitioner stating that the three sets of nomination papers filed by him were not duly ## **`WP(C) NO. 14968 OF 2023 ..4..`** filled and there was objection by other candidates against acceptance of invalid nomination and hence, his nomination was rejected as provided under Statute 37 of the Election Statutes. The petitioner, therefore, approached the Vice Chancellor of the University, the 2[nd] respondent, by submitting Exts.P5 and P6 representations. However, pending those representations, the Returning Officer published the list of candidates validly nominated _vide_ Ext.P7 notification dated 25.04.2023. The petitioner submitted yet another representation to the Vice Chancellor by e-mail on 27.04.2023. Since no action was taken thereon by the Vice Chancellor, the petitioner has filed this writ petition seeking direction to quash Ext.P4 and to include him in the final list of candidates for the constituency of private college teachers in the election notified as per Ext.P1. 3. The petitioner contends that the rejection of his nomination by the Returning Officer is illegal and arbitrary ``` WP(C) NO. 14968 OF 2023 ..5.. ``` and based on political considerations. He states that he has filed his nomination before the last date notified therefor and it contains his declaration, signature and is proposed and seconded by electors in the electoral roll and is a valid nomination as stipulated by Statute 35. It is contended that the nomination cannot be rejected on the ground that it does not bear any date, particularly when the respondents do not have a case that the nomination was filed after the last date notified for filing the nominations. It is further contended that the nomination can be rejected only for reasons provided in Statute 37 and the said Statute does not provide for rejection of nomination on the ground that the nomination paper does not bear date. 4. A statement has been filed on behalf of the respondents stating that the nomination of the petitioner was rejected during the scrutiny of nominations due to submission of incomplete sets of nomination papers. The ## **`WP(C) NO. 14968 OF 2023 ..6..`** candidates/agents present at the time of scrutiny of nominations submitted written objections against the acceptance of incomplete nomination papers of the petitioner and the Returning Officer considered the objections and found that the candidate, the proposer and the seconder had omitted to write date on the nomination papers and rejected the nomination in terms of the Election Statute. 5. Heard Sri.A.L.Navneeth Krishnan, learned counsel for the petitioner and Sri.Thomas Abraham, learned Standing Counsel appearing for the respondents. 6. Referring to Statute 35, Sri. Navneeth Krishnan, learned counsel for the petitioner, submits that the petitioner had presented 3 sets of nomination papers before the last date notified for receipt of nominations and all three sets of nomination contain the of the papers signature candidate/petitioner, the proposer and the seconder and the nomination satisfies all the requirements of a valid ``` WP(C) NO. 14968 OF 2023 ..7.. ``` nomination as provided under Statute 35. He further submits that the absence of date in the nomination papers is immaterial as the Returning Officer has no case that the petitioner has filed the nomination papers after the last date notified for filing nominations. Sri. Navneeth contends that the omission to write the date in the nomination paper is not a material defect for of nomination and a rejection nomination can be rejected only on grounds provided in Statute 37. Sri. Navneeth refers to the decision of this Court in **Vadekkevila Sasi** _**v**_ **. Cochin University of Science & Technology** [2023 (2) KHC 332] and the decisions referred to therein and submits that this Court has held that nomination for election cannot be rejected on technical grounds and in similar situations, this Court has interfered with the rejection of nomination for election to the Senate. 7. Sri. Thomas Abraham would submit that the absence of date in all the three sets of nomination papers is a material **`WP(C) NO. 14968 OF 2023 ..8..`** defect which entails rejection of the nomination. Referring to Statute 35 of the Election Statutes, he submits that the nomination shall be in the prescribed form and shall contain the signature of the proposer, the seconder, and a declaration of the candidate with his signature. Inviting my attention to Ext. P2 nomination form, Sri. Thomas Abraham submits that neither the proposer nor the seconder had put date in the relevant columns of the nomination and the candidate/petitioner has not put date in the declaration. He submits that the relevant portions in the nomination paper where the date has to be filled by the proposer, the seconder and the candidate are kept blank, and the nomination is incomplete and there is no valid declaration by the candidate and Ext. P2 does not satisfy the requirements of a valid nomination. He also points out that the persons in Ext. P7 list of candidates validly nominated are necessary parties to the writ petition in the nature of the contentions of the petitioner. ## **`WP(C) NO. 14968 OF 2023 ..9..`** 8. Section 17 of the Kerala University Act, 1974 deals with Senate and provides that it consists of ex-officio members, elected members, life members and other members. Section 18 deals with the reconstitution of the Senate and Section 33 of the Act deals with disqualification for membership in the Senate. The election of members to the Senate of Kerala University is regulated by the Kerala University (Conduct of Elections to Various Authorities or Bodies) First Statutes, 1974. Statute 4 provides that the ViceChancellor shall be responsible for the conduct of all elections held by the University and shall have the power to _etc_ . prescribe the form of nomination paper, ballot paper Statute 3 of the Election Statutes deals with the procedure for conduct of election and Statute 3 (3) provides that election of members to the Senate under item No. (6) of Section 17 of the Act (Teachers of private college constituency) shall be held without postal ballot and the ## **`WP(C) NO. 14968 OF 2023 ..10..`** procedure for election as provided under Statutes 35 to 41 shall _mutatis mutandis_ apply for election to Senate under item No. (6) of Section 17 of the Act. Statute 29 deals with Election Disputes and provides that an election petition calling in question any election shall be made in writing and shall be forwarded to the Vice-Chancellor with the prescribed fee remitted to the credit of the Kerala University Fund, so as to reach him within seven days of the declaration of the result of the election. An election to the Senate can be called in question only after the election. 9. Statute 35 of the Election Statutes deals with presentation of nomination paper and requirements for a valid nomination. Statutes 35 to 37 read thus: ## **35. Presentation of Nomination paper and** - **requirements for a valid Nomination:** (1) On or before the date appointed under Statute 34, each candidate shall either in person or by his proposer deliver to the Returning Officer at the place specified in this behalf in the notification issued under Statute 34 a nomination paper in the prescribed form, ``` WP(C) NO. 14968 OF 2023 ..11.. ``` which shall, on application, be supplied free of cost by the Returning Officer to any elector whose name is in the electoral roll. (2) Every nomination paper shall be proposed by an elector whose name is in the electoral roll and seconded by another elector of the concerned constituency with his signature. The candidate shall sign a declaration on it expressing his willingness to serve on the University authority or body, as the case may be, if elected. He shall also make a statement to the efect that he is not already a member of such authority or body or if he is already a member, in such capacity, his term of office would expire before the membership for which he is seeking election takes effect. The nomination paper shall reach the Returning Oficer within the date and hour fxed, which shall not be earlier than 14 clear days after the date of publication of the notifcation in the newspapers. **36. Scrutiny of Nominations:-** All nomination papers received through the post or deposited in the box provided for the purpose in the office of the Returning Officer within the prescribed hour on the prescribed date shall be scrutinised by the Returning Oficer, The candidate or one of his representatives who shall be appointed in writing by him and approved by the Returning Officer may be present at ## **`WP(C) NO. 14968 OF 2023 ..12..`** the time of scrutiny of nominations. **37. Decisions of the Returning Officer on Objections:-** The Returning Officer shall then examine the nomination papers and decide all objections which may be made at the time to any nomination and may, either on such objection, or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination, on any of the following - grounds (i) That the candidate is ineligible for election under section 33 of the Act subject to the exceptions mentioned therein; (ii) That the seconder is a person whose name is not registered in the electoral roll; (iii) That the signature of the candidate or seconder is not genuine or has been obtained by fraud. The decision of the Returning Officer, shall, in each case be endorsed by him on the nomination paper in respect of which such decision is given. ( _emphasis supplied_ ) 10. The form of nomination paper prescribed by the Vice-Chancellor in terms of Statute 4(1) (b) is reproduced hereunder: ``` WP(C) NO. 14968 OF 2023 ..13.. ``` ## **UNIVERSITY OF KERALA** ## **ELECTION TO THE SENATE BY THE TEACHERS OF PRIVATE COLLEGES** _(Under Section 17 – Elected Members (6) of the Kerala University Act, 1974)_ ## **NOMINATION PAPER** Name and address of the Candidate :: as in the Electoral Roll Number of the Candidate in the :: Electoral Roll ------------------------------------------------------------------------------------------ Name and Address of the Proposer :: Number of the Proposer in the :: Electoral Roll Date Signature of the proposer ----------------------------------------------------------------------------------------- Name and Address of the Seconder :: Number of the Seconder in the :: Electoral Roll Date Signature of the Seconder ------------------------------------------------------------------------------------------ ## **CONSENT AND AFFIDAVIT OF THE CANDIDATE** 1. I agree to serve on the Senate, if elected. *2. I am not already a member of the Senate. *3. I am already a member of the Senate, but my term of office as such will expire before the membership for which I am seeking election, takes effect. Date Signature of the Candidate ------------------------------------------------------------------------------------------ *Strike off 2 or 3 whichver is not applicable. **Note** All nomination papers will be scrutinized by the Registrar or other officers authorized by the ViceChancellor. Candidates or one representative of each candidate, appointed in writing by him, may be present at the time of the scrutiny of nominations. ``` WP(C) NO. 14968 OF 2023 ..14.. ``` The statutory nomination form requires the proposer and the seconder to provide their names, addresses, and respective electoral roll number with signature and date on the nomination form. The candidate is required to sign a consent and affidavit in terms of Statute 35 (2), with date. Neither the proposer nor the seconder has put date in Ext. P2 nomination form at the given place. The candidate/ petitioner has not put date while signing the consent statement and the affidavit. It is submitted that the petitioner had submitted three sets of nomination papers, and the columns to write the date is not filled up by the candidate, the proposer and the seconder in any of these three sets of nomination papers. The election to the Senate is regulated by Statutes. Every intending candidate for election has to formally offer his candidature in a form prescribed for the purpose. A nomination form for election to Senate under item No. (6) to Section 17 is prescribed in terms of Statute 4(1) (b). Statute ``` WP(C) NO. 14968 OF 2023 ..15.. ``` 35 provides for requirements for a valid nomination. The date borne on the nomination paper undoubtedly is proof of the fact that the nomination has been filed after the publication of the election notification and before the last date notified for receipt of nominations. The date to be put in the nomination the and the paper by proposer/seconder candidate assumes importance because there are chances of the signature of the proposer/seconder being obtained in blank nomination paper downloaded from the website prior to the date of notification for election. A nomination paper delivered to the Returning Officer without any date by the candidate, the proposer, and the seconder does not satisfy the requirements of a valid nomination. It is a nomination presented with defect of a substantial character. On a perusal of Ext. P2, it can be seen that there is also no ‘statement’ by the candidate to the effect that he is not already a member of the Senate or if he is already a member, whether his term of ``` WP(C) NO. 14968 OF 2023 ..16.. ``` office would expire before the membership for which he is seeking election, takes effect. The nomination form provides for striking off whichever is not applicable. In Ext. P2, the petitioner has not struck off either. Accordingly, there is no ‘statement’ of the candidate in the nomination paper as provided under Statute 35 (2). Ext. P2 is not a valid nomination. If the contention of the petitioner that the nomination can be rejected only on the grounds stated in Statute 37 is accepted, a nomination 'proposed' by a person who is not an elector in the electoral roll of any of the constituencies cannot be rejected, as Statute 37(ii) provides for rejection of nomination only where the 'seconder' is not registered in the electoral roll. Statute 35 (2) provides that, every nomination paper shall be 'proposed' by an elector whose name is in the electoral roll and 'seconded' by another elector of the concerned constituency. Statute 35 provides for the requirements for a valid nomination and a nomination ``` WP(C) NO. 14968 OF 2023 ..17.. ``` which does not satisfy the requirements of Statute 35 can be rejected and these are grounds in addition to the grounds for rejection of nomination provided in Statute 37. The nomination of the petitioner does not satisfy the requirements for a valid nomination and has been rightly rejected by the Returning Officer. I do not find any reason to interfere with the decision of the Returning Officer in rejecting the nomination. 11. The facts and situations in **Vadakkevila Sasi** (supra) and the cases referred to therein are not similar and the said decisions will not be of any help to the petitioner. 12. A serious candidate for an election, who is keen on contesting, cannot leave the dates in all three sets of nomination papers blank. At the same time, when the nomination paper is delivered to the Returning Officer, the Returning Officer can check whether the nomination paper has been properly filled and duly completed. If such defects **`WP(C) NO. 14968 OF 2023 ..18..`** are not cured despite bringing them to the notice of the candidate, the same can be rejected at the time of scrutiny for not satisfying with the requirements for valid nomination. With the above observation, the writ petition is dismissed. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **`WP(C) NO. 14968 OF 2023 ..19..`** ## **`A PPENDIX`** ||**`A`**<br>**`PPENDIX`**| |---|---| |`PETITIONER`|`EXHIBITS`| |`Exhibit-P1`|`TRUE COPY OF THE NOTIFICATION NO.`| ||`ELECTION/SENATE/ RECONSTITUTION/2023 DATED`| ||`03.04.2023 ISSUED BY THE RESPONDENT UNIVERSITY.`| |`Exhibit-P2`|`TRUE COPY OF THE NOMINATION SUBMITTED BY THE`| ||`PETITIONER DATED NIL`| |`Exhibit-P3`|`TRUE COPY OF THE LETTER SUBMITTED BY THE`| ||`PETITIONER TO THE 3RD RESPONDENT DATED`| ||`19.04.2023.`| |`Exhibit-P4`|`TRUE COPY OF THE LETTER NO.`| ||`ELECTION/SENATE/26972/2023 DATED 19.04.2023`| ||`ISSUED BY THE RESPONDENT UNIVERSITY.`| |`Exhibit-P5`|`TRUE COPY OF THE REPRESENTATION DATED`| ||`19.04.2023 SUBMITTED BY THE PETITIONER BEFORE`| ||`THE 2ND RESPONDENT.`| |`Exhibit-P6`|`TRUE COPY OF THE REPRESENTATION DATED NIL`| ||`SUBMITTED BY THE PETITIONER TO THE 2ND`| ||`RESPONDENT ALONG WITH ONLINE PAYMENT RECEIPT`| ||`DATED 23.04.2023`| |`Exhibit-P7`|`TRUE COPY OF THE NOTIFICATION NO.`| ||`ELECTION/SENATE/RECONSTITUTION/2022-23 DATED`| ||`25.04.2023 ISSUED BY THE UNIVERSITY.`| |`Exhibit-P8`|`TRUE COPY OF THE EMAIL COMMUNICATION DATED NIL`| ||`SENT BY THE PETITIONER TO THE 2ND RESPONDENT.`|