V.K. Sreekantan vs Rajeevan K.K. & Others (W.A. No. 1269 of 2016)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938 W.A.No. 1269 of 2016 () IN WP(C).18557/2016 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 18557/2016 of HIGH COURT OF KERALA DATED 21-06-2016 APPELLANT/ADDITIONAL 5TH RESPONDENT: ----------------------------------V.K. SREEKANTAN, AGED 46 YEARS, S/O.KOCHUKRISHNAN NAIR, KRISHNA NIVAS, SHORNUR. BY ADV. DR.GEORGE ABRAHAM RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4: ------------------------------------------- 1. RAJEEVAN K.K., MEMBER, SENATE, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, THENJIPPALAM, MALAPPURAM DISTRICT, RESIDING AT KOOVAKKAVUNGAL, ERAMANGALAM, BALUSSERY - 673 612. 2. THE VICE CHANCELLOR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, THENJIPPALAM, MALAPPURAM DISTRICT - 673 665. 3. THE RETURNING OFFICER APPOINTED FOR THE CONDUCT OF ELECTION TO THE SYNDICATE OF UNIVERSITY OF CALICUT, [REGISTRAR OF UNIVERSITY OF CALICUT], CALICUT UNIVERSITY P.O, THENJIPPALAM, MALAPPURAM DISTRICT - 675 635. 4. THE CHANCELLOR, UNIVERSITY OF CALICUT, RAJ BHAVAN, THIRUVANANTHAPURAM - 695 001. 5. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001. R1 BY ADV. SRI.P.C.SASIDHARAN R2 & R3 BY SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERSITY R4 BY ADV. SMT.M.U.VIJAYALAKSHMI R5 BY SR. GOVERNMENT PLEADER SRI.B. JAYASURYA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 3.6.2016, THE COURT ON 16.12.2016 DELIVERED THE FOLLOWING: ## Thottathil B.Radhakrishnan ## & Anu Sivaraman, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## W.A.No.1269 of 2016 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16[th] day of December, 2016 ## Judgment ## Thottathil B.Radhakrishnan, J . - 1.Heard learned counsel for the appellant, who is the fifth respondent in the writ petition from which this appeal arises. Heard the learned counsel for the first respondent - writ petitioner, the learned standing counsel for the University of Calicut, the learned counsel appearing for the Chancellor and the learned Senior Government Pleader for the first respondent - State of Kerala. - 2.The first respondent, an elected member of the Senate of the University had filed the writ petition seeking to quash Ext.P2 notification and WA1269//16 -: 2 :- Ext.P3 electoral roll for election to the Syndicate of the University of Calicut. The writ petition has been allowed setting aside Ext.P2 and directing the University to take steps to complete the elections, essentially after ensuring that at least a sizable portion of the electorate is filled up before the election. This is under challenge in this writ appeal. 3.Ext.P3 is the electoral roll of the Senate members which constitute the electoral college. The substance of the allegations of the first respondent - writ petitioner before the learned single Judge was that the action taken through the issuance of Exts.P2 and P3 for electing one member of the Syndicate under Section 21 of the Calicut University Act, 1975 is wholly illegal, untenable, politically motivated and is in violation of the Act and the Constitution inasmuch as the electoral roll includes only 78 persons though the strength of the Senate is 109, thereby meaning that 31 persons who would be otherwise eligible are excluded from various WA1269//16 -: 3 :- sources. This, according to the writ petitioner, would debase the entire process and there would be no democratic election to the Syndicate of the University. The writ petitioner attributed this to the effect that no steps were taken to conduct the election to the vacant seats of the Senate, which comes to more than 31, even going by Ext.P3 electoral roll. He pleaded that there is no reasonable justification for issuing Ext.P2 in a hurried manner and such steps are taken for conduct of the election on motives which cannot be countenanced. - 4.The writ petition was contested by the additional fifth respondent, who is the appellant herein, as also, by the University to the extent it attempted to justify the issuance of Exts.P2 and P3. - 5.The learned single Judge found against the plea of the University that the Senate has 78 members out of total membership of 109 and it is a valid electoral roll. The University took the stand WA1269//16 -: 4 :- that it would take months for the elected members to participate in the election to the Syndicate and the University scheduled the election for the purpose of filling up one vacancy, owing to resignation of one of the members. The University also contended before the learned single Judge that no objections were raised before the Returning Officer against the publication of the electoral roll and, since the notification has already been published and the electoral procedure has commenced, the writ court would desist from interfering with such process which is governed by the principles of self-restraint in terms of the precedents of the Hon'ble Supreme Court of India. Reference appears to have been made to Medical Council of India, New Delhi v. Registrar/Returning Officer, Tamil Nadu Dr.M.G.R.Medical University, Chennai and Others [2014 KHC 2180] to support the submission before the learned single Judge. The contesting fifth respondent in the writ petition (appellant herein) adopted the University's defence and made reference to an alternative remedy available by WA1269//16 -: 5 :- raising an election dispute under Statute 29. Reference was placed on decisions rendered by this Court. 6.The learned single Judge held that the writ petitions which were under consideration were maintainable and the petitioners before the learned single Judge had sufficient standing to seek the reliefs sought for. The learned single Judge examined the factual situation as to the vacancy position in the Senate and noticed that almost 1/3 of the Senate stood vacant. The learned single Judge ultimately concluded that considering the totality of circumstances and assessing the electorate, it is necessary to direct the University, in exercise of extraordinary jurisdiction, to keep in abeyance the elections to the Syndicate, so as to ensure that the full contingent or at least a sizable portion of the electorate is filled up. The learned single Judge was persuaded to interfere with the election since it is not an expedient measure attempted by the University, as disclosed from WA1269//16 -: 6 :- the facts. Resultantly, Ext.P2 notification was set aside and the University was directed to take steps to complete the elections to the Senate expeditiously, however that, it would not be possible for the Court to put up a time frame for that. 7.In support of this appeal by the additional fifth respondent in the writ petition, it was argued that the learned single Judge ought not to have interfered with the electoral process once the election was notified, and though there may be vacancies in the electorate and there may be delay in making nominations to the Senate, it was unnecessary for the learned single Judge to have interfered with Ext.P2 notification for election to one vacancy of the Syndicate. It was pointed out that 78 out of 109 members of the Senate being available, it had more than 2/3[rd] strength of its total and that at any given point of time, ordinarily, the Senate will not be in its full strength. The learned counsel appearing for the writ petitioner supported the judgment and argued WA1269//16 -: 7 :- that this is an abundantly fit case where the electoral process cannot be made an eyewash or make belief to demystify the democratic process that is inbuilt in such elections which are statutory but intended to provide representation through election or nomination. 8.The decisions referred to by the learned counsel for parties before the learned single Judge were cited during the course of hearing of this appeal as well. As rightly noted by the learned single Judge, those decisions entirely put an underscored word of caution regarding the exercise of power under Article 226 of the Constitution to interfere with the electoral process. The process of election in a University in terms of the Act and Statutes is not wholesomely comparable with the elections in terms of the Representation of People Act or other laws of such nature. In the contextual situation in hand, learned single Judge rightly noticed that the dearth of 1/3[rd] of the total members of the Senate and proceeding with Ext.P3 WA1269//16 -: 8 :- electoral roll to conduct the election as per Ext.P2 is, on the facts and circumstances, something that militates against the democratic principles enshrined in the application of laws relating to election in the Universities. We are of the view that the learned single Judge was abundantly justified, on the very peculiar facts and circumstances of the case, in issuing the directions as has been done after quashing Ext.P2 notification. The learned single Judge has adverted to and considered all the relevant facts and factors and has come to a reasonable conclusion on the scales of justice in the situation in hand. That having been properly arrived at, we do not find any ground to interfere with the relief granted by the learned single Judge, which is essentially a discretionary one. Under such circumstances, we are of the view that there is no ground to interfere with the impugned judgment of the learned single Judge in exercise of authority of an intra-court appeal under Section 5 of the Kerala High Court Act. This appeal, therefore, WA1269//16 -: 9 :- fails. In the result, this writ appeal is dismissed. Sd/Thottathil B.Radhakrishnan Judge Sd/- Anu Sivaraman Judge Sha/ -true copy- PS to Judge