W.P.(C) Nos. 18557/2016 & 19309/2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938** **WP(C).No. 18557 of 2016 (T) ----------------------------** ## **PETITIONER:** ## **-----------** **RAJEEVAN.K.K MEMBER, SENTATE, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P O, THENJIPPALAM,MALAPPURAM DISTRICT, RESIDING AT KOOVAKKAVUNGAL, ERAMANGALAM, BALUSSERY** ## **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENTS:** **------------** **1. THE VICE CHANCELLOR, UNIVERSITY FO CALICUT CALICUT UNIVERSITY P O, THENJIPPALAM, MALAPPURAM DISTRICT 673635** **2. THE RETURNING OFFICER APPOINTED FOR THE CONDUCT OF ELECTION TO THE SYNDICATE OF UNIVERSITY OF CALICUT,(REGISTRAR, UNIVERSITY OF CALICUT)CALICUT UNIVERSITY P O, THENJIPPALAM, MALAPPURAM DISTRICT 673635 3. THE CHANCELLOR UNIVERSITY OF CALICUT, RAJ BHAVAN, THIRUVANANTHAPURAM 695001 4. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM, PIN 695001 Addl. 5. V . K. SREEKANTAN, AGED 46 YEARS S/O KOCHUKRISHNAN NAIR, KRISHNA NIVAS, SHORNUR. ADDL.R5 IMPLEADED AS PER ORDER DATED 16.06.2016 IN I.A. 9452/2016** **....2** **WP(C).No. 18557 of 2016 (T)** **-2-** **R3 BY ADV. SRI.K.JAJU BABU (SR.) R3 BY ADV. SMT.M.U.VIJAYALAKSHMI, COUNSEL FOR THE CHANCELLOR OF UNIVERSITY R1&2 BY ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS RADDL.R5 BY ADV. DR.GEORGE ABRAHAM R4 BY GOVERNMENT PLEADER BY SMT.M.U.VIJAYALAKSHMI, COUNSEL FOR THE CHANCELLOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-06-2016, ALONG WITH WPC. 19309/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 18557 of 2016 (T)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **P1 TRUE COPY OF THE ELECTORAL ROLL OF SENATE MEMBERS DTD 13/11/2013** - **P2 TRUE COPY OF THE ELECTION NOTIFICATION DTD 11/5/2016** **P3 TRUE COPY OF THE ELECTORAL ROLL OF THE SENATE MEMBERS DTD 3/5/2016** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** ------------------------------------------ W.P.(C) Nos. 18557 & 19309 of 2016 -----------------------------------------Dated: 21[st] June, 2016 ## **J U D G M E N T** The question raised in the above writ petitions is as to whether the scheduling of election to the one which occurred in the of the vacancy Syndicate respondent University on 16.04.2016; be filled up, when the Electorate, being the Senate, is not filled up to its full contingent. 2. The learned Counsel for the petitioners would submit that the University has scheduled the elections in haste, especially when the State has just passed the threshold of the elections to the Legislative Assembly and the vacancies occurred of the representatives from the Local Self Government Institutions, are remaining as such; despite the elections to the local bodies being ## **W.P.(C) Nos. 18557 & 19309/2016** **-2-** over more than an year back. The petitioners contend that the haste displayed by the University would lead to illegality and arbitrariness insofar as the democratic process being frustrated for reason of the Senate being only comprised of 2/3[rd] of its strength. 3. The learned Standing Counsel for the University, however, would seek to sustain the conduct of the elections. As a preliminary issue the maintainability is challenged on grounds, which apply differently to the petitioners herein; both of whom are Senate members and one a candidate in the present election. W.P.(C) No.18557/2016 is filed by a person who can only be deemed to be a wayfarer and the writ petition filed against the election scheduled; if at all, can only be treated as a Public Interest Litigation, especially since the petitioner is not a candidate. With respect to the petitioner in W.P.(C) No.19309/2016, it is ## **W.P.(C) Nos. 18557 & 19309/2016** **-3-** submitted that he participated in the entire procedure, gave his nomination, did not withdraw it in the time provided and after the procedure had advanced considerably, turned around and challenged the election on the ground raised in W.P.(C) No.18557/2016 itself, for obvious reasons. 4. The learned Standing Counsel also would refer to the fact that the Senate, with a total membership of 109, has, at present, 78 persons validly continuing thereat. The prescription as to 30 days' notification, does not regulate the election to the Syndicate; for which 7 days notice is sufficient as per sub-statute (5) of Statute 3. To be included in the Electorate, a member of the Senate has to be continued for at least 60 days, as per Statute 14, and even if the vacancies in the Senate are now sought to be filled up it would take months for the elected members to be participated in ## **W.P.(C) Nos. 18557 & 19309/2016** **-4-** the election to the Syndicate. Only considering the said delay, the University has scheduled the election to the Syndicate for the purpose of filling up the one vacancy, which arose on resignation of one of the members of the Legislative Assembly on 16.04.2016. 5. It is argued that the elections cannot be invalidated by reason of vacancies in the Electorate, as per Statute 10, and that neither of the petitioners made any objection to the Returning Officer against the publication of the Electoral Roll. It is also contended that the writ petition having been filed, after the notification was published and the election procedure having commenced and proceeded considerably, this Court would consider desisting from interference on the well established principles of self-restrain as regulated by and reiterated in, the binding precedents of this Court and the Hon'ble Supreme Court. The learned ## **W.P.(C) Nos. 18557 & 19309/2016** **-5-** Standing Counsel would refer to the decision of the Madras High Court in **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 further buttress his contention regarding the conduct of elections before the vacancies are filled up in the Electorate. 6. The learned Counsel for the additional 5[th] respondent, one of the two contesting candidates, adopts the defense of the University and further points out that there is an alternate remedy available to the petitioners by way of raising an election dispute as per Statute 29. The learned Counsel would rely on the judgments of this Court and the Hon'ble Supreme Court to urge that the extraordinary jurisdiction need not be exercised at this stage, especially when there is ## **W.P.(C) Nos. 18557 & 19309/2016** **-6-** considerable time elapsed from the commencement of the process and now what remains is only the polling which is scheduled on 02.07.2016. The learned Counsel would rely on **Raman Pillai v. Kerala University - 1992 (2) KLT 768** , **Muhammad Ali v. State Election Commission - 2006 (3) KLT 496** and **Shaji K. Joseph v. V. Viswanath and others - 2016 (2) KHC 33** to urge that the election scheduled cannot now be interfered with by this Court. 7. The first contention which has to be considered is that of maintainability. One of the contentions raised by the learned Counsel appearing for the additional respondent is that the writ petition is bad for non-joinder of necessary parties, since he had come on record with an impleading petition and even now the other candidate has not been impleaded herein. When ## **W.P.(C) Nos. 18557 & 19309/2016** **-7-** a necessary party has come on record, on his own application, necessarily, the writ petition cannot be dismissed for non-joinder of parties only on the ground that he was not initially impleaded by the petitioner. With respect to the non impleadment of the other candidate, it is to be noticed that there is a writ petition filed by the other candidate raising similar contentions and hence there is no prejudice caused to him in considering the writ petition filed by the Senate member, who is not a candidate. 8. Another compelling ground taken by the University is that the Senate member, who is the petitioner in W.P.(C) No.18557/2016, can only be deemed to be a wayfarer and, if at all, the writ petition can be maintained only on the ground of it being a PIL. This Court is not convinced that the petitioner can be considered to be a wayfarer, especially since he is a ## **W.P.(C) Nos. 18557 & 19309/2016** **-8-** member of the Senate; the electoral body from which the election is now proposed to another body, the Syndicate. The petitioner being a Senate member is intrinsically connected with the activities of the University, in which the Senate is the supreme authority and the Syndicate comprising of members elected from the Senate and nominated otherwise; being the chief executive body of the University. Hence, it cannot be said that the writ petition is in public interest and in such circumstance this Court does not see any reason to refer the matter to a Division Bench having roster for PIL. The petitioner would come within the definition of an aggrieved person and the challenge raised against the election, is on the grounds of illegality and arbitrariness in not having first filled up the vacant positions in the electoral body; the Senate of which he is a member. ## **W.P.(C) Nos. 18557 & 19309/2016** **-9-** 9. With respect to the preliminary objection taken against W.P.(C) No.19309/2016, this Court is inclined to accept the contention of the University that the petitioner cannot challenge the election notification after having given a nomination as per the notification. The petitioner can only be deemed to have turned around to challenge the notification, after having submitted to it at the first instance, which is not permissible as has been held in **Siraj v. High Court of Kerala - 2006 (2) KLT 923** . W.P.(C) No.19309/2016 hence is dismissed. 10. This Court is quite conscious of the fact and the law on the point; that this Court would invoke the extraordinary discretionary jurisdiction under Article 226 of the Constitution of India, especially in matters of election, only if there is a gross illegality or a blatant arbitrariness, which renders such election bad ## **W.P.(C) Nos. 18557 & 19309/2016** **-10-** ex-facie. It is an admitted fact that the Senate of the University, which has 109 members, has a number of vacancies remaining unfilled. These vacancies were caused by various factors, one of which is by reason of the elections conducted to the local bodies and the Legislative Assembly. The student unions,which also form a sizable chunk of the electorate, coming to around 10, is also not represented for reason of their term having expired. Suffice it to notice that the Senate has, as of now, vacancies almost up to 1/3[rd] of the total vacancies. 11. The elections to the Senate, as contended by the petitioner, have not been conducted, despite the vacancies having arisen a year back. The Syndicate, which has a total membership of 27, has, at this point, 23 members and the election scheduled is to the one vacancy caused by the resignation of an MLA on ## **W.P.(C) Nos. 18557 & 19309/2016** **-11-** 16.04.2016. Out of the four vacancies, one vacancy is sought to be filled up by the present election and two are nominated members and the remaining one is a student member, who is also to be elected. 12. The contention that the petitioner has not approached the Electoral Officer with an objection under Statute 15, cannot be countenanced since there is no ground raised in the writ petition that any person included in the electoral roll, is not so entitled to be included or that any others have been excluded. The petitioner does not have any objection against the electoral roll and the objections raised in the writ petition are not that which could be considered by the Electoral Officer. The allegation is of there being many vacancies in the electoral body being Senate, which has not been filled up as of now and which vacancies are pending for long; while a solitary vacancy to the ## **W.P.(C) Nos. 18557 & 19309/2016** **-12-** Syndicate is attempted to be filled up by election from around 2/3[rd] of the total strength of the electoral body, the Senate. 13. The next contention raised by the respondent is with respect to the alternate remedy available to the petitioner under Statute 29, by way of raising an election dispute. Immediately it has to be noticed that Statute 10 specifically provides that no election can be invalidated by reason of vacancies in the electorate. Hence, the said remedy would also be not available to the petitioner for the only ground raised by the petitioner herein is, of the vacancies that exist in the electorate, which vacancies have not been filled up for long. The plea, as this court understands it, is not on illegality, but on the arbitrariness in filling up a solitary vacancy in the Syndicate before the vacancies existing in the electoral body is filled up. The arbitrariness ## **W.P.(C) Nos. 18557 & 19309/2016** **-13-** pleaded is also on frustrating a democratic process by the unholy haste revealed; in so filling up a vacancy when there is no expediency to have it filled up. In such circumstance, it cannot be said that the petitioner has an effective alternate remedy, in which situation alone the Hon'ble Supreme Court in **Shaji K. Joseph** (supra) found that no interference would be normally caused by the High Court to a process of election, when it has commenced with the publication of the election program and when an alternative statutory remedy was available. Herein, there can be no valid ground of an alternate statutory remedy available. 14. **Raman Pillai** (supra) was in different circumstances; when an election properly constituted was sought to be cancelled. The Court interfered with the cancellation of the election, since it was expedient that the Senate be constituted which was held to be a ## **W.P.(C) Nos. 18557 & 19309/2016** **-14-** legislative mandate. In the present case there can be no legislative mandate urged since the election is to fill up only one vacancy in the Syndicate. There can also be no contention urged of a stalemate if the election is not held as notified now. **Muhammad Ali** (supra) also would not be applicable, since it was noticed that there was an alternate remedy which could have been availed of by the objectors. 15. True, there can be no illegality found insofar as Statute 10 provides for elections to be conducted even when there are vacancies existing in the Electorate. However, it cannot be said that there is a clear mandate on the University to conduct elections even when the vacancies exist, especially when there is no emergency as in a body being rendered in-effective for want of quorum or the term of the body itself expiring. Admittedly, the quorum of the Syndicate is 9 ## **W.P.(C) Nos. 18557 & 19309/2016** **-15-** and there are, as of now, 23 members out of a total of 27, and there is no threat of its term expiring in the immediate future. 16. This Court does not see any illegality in the elections being notified, which is in accordance with the Statutes. However, on the facts revealed and also on the lethargy of the University in not holding elections to the Senate, the electoral body, for long, there is writ large an element of arbitrariness, in now proceeding with the election to the Syndicate. There is discernible an attempt to pre-empt the participation of the elected representatives of the people; both at the Panchayat-level and the State-level. The constitution of the Senate and Syndicate, as is seen from the Calicut University Act,1975; specifically section 17 and section 21, reveals nomination of certain members and election ## **W.P.(C) Nos. 18557 & 19309/2016** **-16-** of others from a cross-section of the society of which the persons who have the mandate of the people, both at the Panjayath and the State level, are also included. When there are no elections held to the vacancies in the Senate, which have been there for more than a year; it has to be accepted that the election now scheduled to a solitary vacancy in the Syndicate is vitiated by arbitrariness. The attempt, obviously, is to carry through the election on the basis of the strength now available in the electorate. Definitely, the vacancies in the Senate if filled up could sway the election this way or that. The University is also unable to give any explanation as to why it is expedient to hold the elections now. 17. The electorate, which has 109 members is, as of now, constituted with 78 members. As was noticed by this Court, the elections to the local bodies were over ## **W.P.(C) Nos. 18557 & 19309/2016** **==> picture [24 x 9] intentionally omitted <==** long back and there are vacancies from the said bodies, as permitted under the Statutes, for reason of many, who were earlier represented, having lost their seat in the local bodies. Likewise, the members of the to which the elections were Legislative Assembly, conducted quite recently, have also vacated their seats in the Senate for reason of they having lost the elections. 18. Considering the totality of the circumstances, this Court is of the opinion that the facts would compel exercise of the extraordinary discretionary remedy insofar as directing the University 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 University could frame rules by which elections are held to the vacant posts ## **W.P.(C) Nos. 18557 & 19309/2016** **-18-** immediately on such vacancy arising, especially those in the supreme body, the Senate. This Court is also persuaded to interfere with the election since it is not an expedient measure attempted by the University, as disclosed from the facts. 19. The only result, on the conclusions made above, is that the notification at Ext.P2 would be set aside. The University shall take steps to complete the elections to the Senate expeditiously and it is also desirable that the authorities, who are entitled to nominate the members to the Senate, expedite the same. This Court would not put a time frame since it involves election and nomination to the supreme authority; the first conduct of which is in the interest of the University itself. W.P.(C) No. 18557/2016, hence, would stand allowed. ## **W.P.(C) Nos. 18557 & 19309/2016** **-19-** In the result, W.P.(C) No.18557/2016 is allowed and W.P.(C) No.19309/2016 is dismissed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 22/6/16