Jyothi Kumar Vs. University of Kerala [Kerala High Court, 04-07-2011]

University (Conduct of Election to various Authorities or Bodies) First Statutes, 1974 (Kerala) – Statute 3(5) – University Act, 1974 (Kerala) – Section 35(6) – General Clauses Act, 1897 – Section 23 – Interpretation of General Clauses Act, 1125 (Kerala) – Section 22 (5) – Mere non-mentioning of the date on which the assent was given by the Chancellor in the Gazette Notification will not make the amendment to the First Statute by incorporating Statute 3(5) invalid nor it would be possible to presume that there was no assent at all.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

The Hon’ble MR. Justice P.R.RAMACHANDRA MENON

W.P. (C) No. 4595 of 2011 (Y)

Dated, this the 4th July , 2011

Jyothi Kumar,Member & Anr. Vs. The University Of Kerala & Ors.

For the Petitioner: George Poonthottam, Advocate. For the Respondent: K. Gopalakrishna Kurup (SR.), Nagaraj Narayanan, Saijo Hassan, Prathap Pillai, Benoj C Augustin.

J U D G M E N T

Election to the Syndicate of the Kerala University, pursuant to Ext. P1 notification dated 07.02.2011 is under dispute.

2. With the same intent, the University had issued a notification earlier, which however was challenged for not notifying the Election in respect of the vacancy of student’s representative in the Syndicate coming under Section 21 (b) (other member) of the Kerala University Act, by filing W.P.(C) No. 1641 of 2011. During the pendency of the said proceedings, the University withdrew the notification, based on which, the said writ petition was closed, leaving open all the issues concerned, vide Ext. P2 judgment dated 21.01.2011.

3. Thereafter, the University published Ext. P2 Electoral roll on 31.01.2011, followed by Ext. P1 Election notification dated 07.02.2011, notifying the various steps in connection with the date of Election and the relevant dates, including the date of counting to be conducted on 05.03.2011. The said notification is sought to be set aside by the petitioners in the instant writ petition, raising many a ground, referring to non-compliance of the mandate under

Clauses 12, 13, 14, 28 and 34 of the Kerala University (Conduct of Election to various Authorities or Bodies) First Statutes, 1974.

4. When the matter came up for consideration before this Court on 22.02.2011, though the writ petition was admitted, interim order of stay was declined, but for making it clear that, the election pursuant to Ext. P1 shall be subject to the result of the writ petition and that all the contesting candidates shall be put on alert as to the proceedings pending before this Court.

5. Being aggrieved of the above order, particularly, for not granting the interim stay, as sought for, the petitioners filed Writ Appeal No. 293 of 2011, which was disposed of as per judgment dated 01.03.2011, observing that, Election could go on and that the results might be kept in a sealed cover until further orders, simultaneously, causing the matter be placed for final hearing. The writ petition is heard accordingly.

6. During the pendency of the proceedings as above, a contestant to the Election got impleaded as the additional 4th respondent, pursuant to the order passed by this Court on 27.05.2011 in I.A.No. 7636 of 2011. The petitioners on coming across the stand taken by the University (who has filed a detailed statement dated 21.02.2011 followed by counter affidavit dated 16.03.2011), with specific reference to the amendment of the statutory prescription by virtue of Statute No. 3 (5) of the above Statutes and the non applicability of the various prescription as to the electoral roll had sought the writ petition be amended by filing an I.A. No. 5158 of 2011 raising new contentions. It was accordingly contended that any Statute framed / amended by the University will become the law, only if it is assented by the Chancellor as contemplated under sub Section 6 of Section 35 of the Kerala University Act. It was alleged that the assent of the Chancellor had never been obtained to Statute 3 (5); that the same was never been published in the official gazette and this being the position, Ext. P1 Election notification was liable to be intercepted by this Court.

7. While so, the additional 4th respondent in his counter affidavit, besides supporting and adopting the version of the University, pointed out that the idea and understanding of the petitioners as to the absence of the assent of the Chancellor and non-publication in the gazette was quite wrong and misconceived. In fact, the above amendment was effected as early as in the year 1975 and a copy of the gazette notification has been produced as Ext. R4(a). Almost simultaneously, the petitioners also realized the fallacy in their submissions/pleadings and sought to file I.A. 9267 of 2011 producing a copy of the said gazette notification dated 02.12.1975 as Ext. P11, tendering unconditional apology on the mistake committed; however, contending that there was no assent given by the Chancellor at all, in respect of Ext. P11 publication in the gazette. Reliance was placed on Ext. P10 minutes of the meeting of the Syndicate held on 29.11.1975, contending that the Senate could have considered the matter only in the ‘next meeting’ as provided, which does not stand satisfied and that it lacks the assent of the Chancellor. Distinction is sought to be established, with reference to Ext. P12 gazette notification dated 30.07.1985 of the University of Kerala, wherein the specific date of assent of the Chancellor was mentioned, which however is stated as conspicuously absent in Ext. P11 (Ext. R4(a)) notification.

8. Mr. George Poonthottam, the learned counsel for the petitioners, with reference to the above pleadings and materials on record, submits that the course and conduct of the University in having proceeded with Ext. P1 notification is per-se wrong and illegal in all respects and is liable to be intercepted by this Court. In view of the violation of the statutory prescription, it is contended that, interference by this Court invoking the discretionary jurisdiction under Article 226 is essential.

9. Mr. K. Gopalakrishna Kurup, the learned senior counsel appearing on behalf of the University submits that, the petitioners have ventured into an experimental litigation, without having a consistent case. The course and conduct being pursued by the petitioners is sought to be deprecated, for raising one contention at one point of time and then changing to something else on the next moment, without taking the minimum effort to ascertain the factual position. The learned senior counsel submits that, by virtue of the amendment carried out, as per Statute 3 (5) w.e.f. 02.12.1975, as notified in the gazette dated 09.12.1975 (notification dated 03.12.1975), there is absolutely no merit in the contentions raised by the petitioners with regard to the alleged lapses. The said provision reads as follows: