Faisal Ibrayinte Purakkal & Anseera Beeg Hum PV & Kamariya Sana K v. Returning Officer, Thunjath Ezhuthachan Malayalam University; Vice Chancellor, Thunjath Ezhuthachan Malayalam University; Election Grievance Redressal Cell; Thunjath Ezhuthachan Malayalam University (represented by Registrar)

W.P(C) No. 39707/23 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945 ``` ## **`WP(C) NO. 39707 OF 2023`** ## **`PETITIONER/S:`** ``` 1FAISAL IBRAYINTE PURAKKAL AGED 23 YEARS S/O HANEEFA IBRAYINTE PURAKKAL HOUSE VAKKAD P O MALAPPURAM-, PIN - 676502 2ANSEERA BEEGHUM P V AGED 23 YEARS D/O MOHAMMED ASHRAF P V PALAKKAVALAPPIL, VATTAPARAMBIL HOUSE, CHENNARA P O MALAPPURAM, PIN - 676561 3KAMARIYA SANA K AGED 22 YEARS D/O IBRAHIM KARUVATHIL HOUSE, CHULLIPARA MALAPPURAM-, PIN - 676508 BY ADVS. P.E.SAJAL AJAS K.S. ``` ## **`RESPONDENT/S:`** ``` 1THE RETURNING OFFICER THUNJATH EZHUTHACHAN MALAYALAM UNIVERSITY VAVAKKAD, THIRUR, MALAPPURAM-, PIN - 676502 2VICE CHANCELLOR THUNJATH EZHUTHACHAN MALAYALAM UNIVERSITY VAVAKKAD, THIRUR, MALAPPURAM-, PIN - 676502 3ELECTION GRIEVANCE REDRESSAL CELL ``` W.P(C) No. 39707/23 2 ``` REPRESENTED BY DEAN/PROFESSOR, THUNJATH EZHUTHACHAN MALAYALAM UNIVERSITY VAVAKKAD, THIRUR, MALAPPURAM-, PIN - 676502 ``` ``` 4THUNJATH EZHUTHACHAN MALAYALAM UNIVERSITY REPRESENTED BY ITS REGISTRAR VAVAKKAD, THIRUR, MALAPPURAM-, PIN - 676502 BY ADV P.C SASIDHARAN, SC FOR R1 to R4 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 09.01.2024, THE COURT ON 12.01.2024 DELIVERED THE FOLLOWING: ``` W.P(C) No. 39707/23 3 ## **MOHAMMED NIAS C.P., J** **.........................................................…….. W.P(C) No.39707 of 2023** **..........................................................……..** Dated this the 12[th] day of January, 2024 ## **O R D E R** Petitioners are the students of Thunjath Ezhuthachan Malayalam University, the 4[th] respondent herein. The 1[st] respondent Returning Officer issued a Notification dated 22.11.2023, intimating Union Election for the year 2023-2024, Ext.P1. The schedule of the election was set out in Ext.P1. The petitioners had decided to participate in the election. The 1[st] petitioner submitted his nomination to the post of General Secretary on 24.11.2023 before 12 p.m., the stipulated time. The 1[st] petitioner came to know that his nomination was rejected, and he enquired the reason for the same with the 1[st] respondent. No reason was given to him. Thereafter, on 25.11.2023 a representation was given by him for knowing the reason for rejection. The 2[nd] and 3[rd] petitioners had also filled in their nominations for the post of Chairperson and Sports Secretary. Though they filled their nominations and in the column where the Finance Officer and the Director of the 2[nd] respondent University had also signed and were standing in the queue for submitting their nomination papers, the college authorities came to the queue and issued tokens only to 16 students randomly and that the same W.P(C) No. 39707/23 4 was not given to the 2[nd] and 3[rd] petitioners. Accordingly, the 2[nd] and 3[rd] petitioners could not submit their nomination papers and the 1[st] respondent had denied the right of the petitioners to participate in the election. It is stated that the election rules issued by the 1[st] respondent, dated nil, is Ext.P4, which does not speak of any token instruction. The petition was submitted by the 2[nd] petitioner on behalf of the 3[rd] petitioner as well on 24.11.2023, pointing out the above. The 2[nd] petitioner had also moved the 2[nd] respondent to get the reason for not providing tokens and not accepting their nomination papers. The 2[nd] petitioner had also submitted a complaint to the 3[rd] respondent on 24.11.2023. The petitioners contend that the entire election procedure was wrong as against Exts.P1 and P4 and the relevant rules. The list of candidates after scrutiny is produced as Ext.P8. The petitioners also allege that since the final candidature list could have been published on 27.11.2023 by 3 p.m. as per Ext.P1, the newspaper dated 25.11.2023, Ext.P9, showed that the students belonging to a particular union had won all the seats in the University Election. Thus, it is the contention of the petitioners that the nominations of the petitioners were rejected illegally and prayed for quashing Ext.P1 Notification and also commanding the 1[st] respondent to accept the nomination of the petitioners and also to declare rejection of the 1[st] petitioner’s nomination as void. 2. A statement on behalf of the University has been filed, and later, a counter affidavit in which they have taken a stand that the 1[st] petitioner’s 5 W.P(C) No. 39707/23 application was defective as the serial number of the petitioner was erroneously shown as Part I (1)-18 instead of the correct serial number in the final electoral roll which is Part X(1)-18 and since the information in the nomination was not correct, a communication was issued on 27.11.2023, Ext.R1(a). Though scrutiny was held on 25.11.2023, the 1[st] petitioner was informed over the phone, and he did not attend the scrutiny shown where his nomination was not approved. As regards the 2[nd] and 3[rd] petitioners, the University contended that they had not approached the Returning Officer with their nomination forms, and hence, they could not be included in the list of candidates. It is also stated that no token was issued on that date. It is pointed out that the first statutes of the 4[th] respondent University do not deal with the Union Election as it deals only with the election to the General Council and executive committee. The allegation that the rejection of the nomination of the petitioners was on political grounds was also denied. 3. Heard the learned counsel for the petitioners Sri P.E.Sajal and Sri.P.C.Sasidharan, the learned Standing Counsel appearing for the University. 4. This Court had passed two interim orders, the first among which was on 27.11.2023 directing the 1[st] respondent to accept the nomination of the petitioners provisionally; the second order was passed on 29.11.2023, where it was recorded that the nominations submitted by the petitioners W.P(C) No. 39707/23 6 were accepted pursuant to the interim orders and that there was a direction that the election may go on, but the result of the election need not be declared. These orders were challenged by the respondent University in W.A.No.2111/2023, and by judgment dated 7.12.2023, the Division Bench found that the interim orders are not to be interfered with and directed the writ petition to be considered. 5. The learned counsel on either side has reiterated the contentions taken on pleadings. It is seen that, as regards the 1st petitioner, the defect pointed out is that he committed a mistake in writing the serial number. It is not a case that the identity of the student is disputed or that any other material particular in the nomination was wrongly entered. Though the University alleges that the petitioner was not present in the University campus and, therefore, could not participate in the scrutiny of the nomination, the petitioners deny all these, and their complaints dated 24.11.2023 and 25.11.2023 also show that they have raised the question of their rejection before the authorities at the earliest point of time itself. The University also did not point out any disentitlement of the petitioners for contesting the election. Though this Court permitted the election to go on, it is seen that the election was indefinitely postponed by orders dated 27.11.2023 and 29.11.2023. The pleadings on behalf of the University show that around 43 students had submitted their nominations. But it is clear from the pleadings that the others had withdrawn their nominations except W.P(C) No. 39707/23 7 for elected candidates. Thus, it can be seen that there was no contest at all, as the nominations submitted were withdrawn, and the petitioners’ nominations were not accepted. Ext.P4, issued by the University and which cannot be disputed by the University, narrates the requirements for candidature. There is no case that the petitioners do not meet any of those stipulations. 6. On a reading of the pleadings and the facts narrated in the case, it is crystal clear that the petitioners were prevented from even contesting the election. The reasons set forth in the counter affidavit by the University do not inspire any confidence. There were repeated requests on the side of the petitioners pointing out the illegality of their not being able to contest the election. The further turn of events shows that there was no contest in the election and that out of the 43 nominations, except those who were finally elected, all others have withdrawn their nominations. Thus, it has to be noted that there are no affiliated colleges in this University and that the total student strength of the University is only around 424, as revealed from the electoral roll. The postponement of the election happened on the same day when this Court passed orders permitting the election to go on, but only restrained them from publishing the result. 7. I have no doubt in my mind that there is a clear attempt to somehow prevent the petitioners from contesting the election. Though a W.P(C) No. 39707/23 8 time schedule was fixed as per Ext.P1, and the interim orders were passed by this Court provisionally permitting the petitioners to accept the nominations, the same was not done by the University. Instead, they chose to challenge the orders unsuccessfully. The very purpose of the election was defeated by the actions of the University as aforesaid. It was for the Vice Chancellor to ensure a free and fair election between the Students’ Union. 8. It cannot be doubted that in a democracy, the election to any office/body should be free, fair and transparent. Elections lie at the core of the democracy. The authority entrusted by law to hold/conduct elections should be completely independent of any extraneous influence/ considerations. Even otherwise, a rejection of nomination must be on some substantial grounds and not on any trivial reasons. This Court had considered the same in the judgments reported in **Mathew Cherian (Dr.) v. Cochin University of Science and Technology and others [2011 (2) KHC 643]** and **Vadekkevila Sasi v. Cochin University of Science & Technology [2023 (2) KHC 332]** , relying on the earlier judgments and has found that only if the mistake or defect in the nomination papers is of the substantial character, the nomination papers can be rejected. The reason attempted to be stated cannot be said to be any substantial one. As stated earlier, the identity of the candidates is not in question. The alleged mistake can only be an inadvertent error. It is not the University that there were other candidates with the same name. Under such circumstances, I W.P(C) No. 39707/23 9 am inclined to interfere with the election process. Normally, Courts maintain a hands-free approach to ensure that the elections, a manifestation of the electorate's will, are taken to their logical conclusion without delay or dilution thereof. But in cases where issues pop up, and attempts are made to disturb a level plane between the two candidates, there are no justifiable or intangible reasons, and the courts are bound to step in to ensure that the election is conducted in a free, fair and transparent manner. Consequently, I allow the writ petition. There will be a direction to the respondents to accept the nomination of the petitioners. A fresh list of candidates eligible to contest the election will be prepared within a week from today. As indicated in Ext.P1, further steps are to be taken from the stage of scrutiny of nominations. The entire proceedings should be finalised within two weeks from today. The writ petition is allowed as above. Sd/- **MOHAMMED NIAS C.P. JUDGE** okb/ //True copy// P.S. to Judge W.P(C) No. 39707/23 10 ## **`APPENDIX OF WP(C) 39707/2023`** - `PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT DATED 22.11.2023` - `Exhibit P2 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT GIVEN BY THE 1ST RESPONDENT` - `Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 25.11.2023 BY THE 1ST PETITIONER` - `Exhibit P4 TRUE COPY OF THE ELECTION RULES ISSUED BY THE 1ST RESPONDENT IS DATED NIL` - `Exhibit P5 TRUE COPY OF THE PETITION SUBMITTED BY THE 2ND PETITIONER BEHALF OF THE 3RD PETITIONER DATED 24.11.2023 BEFORE THE 1ST RESPONDENT` - `Exhibit P6 TRUE COPY OF THE PETITION SUBMITTED BY THE 2ND PETITIONER BEHALF OF THE 3RD PETITIONER DATED 24.11.2023 BEFORE THE 2ND RESPONDENT` - `Exhibit P7 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND PETITIONER DATED 24.11.2023 BEFORE THE 3RD RESPONDENT` - `Exhibit P8 TRUE COPY OF THE VALID LIST OF THE CANDIDATE AFTER SCRUTINY DATED 24.11.2023` - `Exhibit P9 TRUE COPY OF THE NEWS PAPER REPORT DATED 25.11.2023` - `Exhibit P10 TRUE COPY OF THE 1ST STATUTE OF THE 4TH RESPONDENT UNIVERSITY BY KERALA GAZETTE NOTIFICATION DATED 09.12.2019` - `Exhibit P11 TRUE COPY OF THE FINAL VOTERS LIST DATED 20.11.2023` - `Exhibit P12 TRUE COPY OF THE FILLED NOMINATION PAPERS OF THE 22ND AND 3RD PETITIONERS THAT IS NOT` W.P(C) No. 39707/23 11 ``` ACCEPTED BY THE 1ST RESPONDENT Exhibit P13TRUE COPY OF THE FINAL CANDIDATE LIST PUBLISHED BY THE 1ST RESPONDENT DATED 27.11.2023 Exhibit P14TRUE COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT DATED 29.11.2023 Exhibit P15TRUE COPY OF THE FILLED NOMINATION PAPERS THAT IS ENDORSED AND SIGNED BY THE FINANCE OFFICER AND DIRECTOR OF THE UNIVERSITY OF THE 2ND PETITIONER THAT IS NOT ACCEPTED BY THE 1ST RESPONDENT DATED 24.11.2023 Exhibit P16TRUE COPY OF THE FILLED NOMINATION PAPERS THAT IS ENDORSED AND SIGNED BY THE FINANCE OFFICER AND DIRECTOR OF THE UNIVERSITY OF THE 3RD PETITIONER THAT IS NOT ACCEPTED BY THE 1ST RESPONDENT DATED 24.11.2023 ``` ``` RESPONDENT EXHIBITS EXHIBIT R1(a)True copy of the communication dated 27.11.2023 issued to the 1st petitioner EXHIBIT R1(b)True copy of the reply dated 27.11.2023 to the petitioners ```