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1989 DIGILAW 178 (KER)

Shamsuddin v. Kerala University

1989-04-17

VISWANATHA.IYER

body1989
Judgment :- 1. The petitioner was a member of the Senate of the University of Kerala when elections were held to the Syndicate of the University on September 4, 1984. The petitioner contested as a candidate for election by the Senate from among themselves, for one of the six seats falling in the non-teachers category in S.21(a)(i) of the Kerala University Act, 1974 (the Act, for short). He was declared not elected. He filed an election petition before the Chancellor on October 1, 1984. The Chancellor allowed the petition on April 5,1986 and ordered re-counting in the manner indicated in the order. The Chancellor's order was challenged by writ petition O.P.No.2725 of 1986 in this court which was dismissed on May 25,1987. The Writ Appeals therefrom were also dismissed. Special Leave Petition No.7119 of 1987 was filed in the Supreme Court, which again met with dismissal on July 16, 1987. Thereafter the votes were recounted and the petitioner was declared elected by the notification Ext.P2 dated July 22,1987. The petitioner thus became a member of the Syndicate. 2. The next elections to the Senate, on the expiry of its Tour year term, took place in 1988. The petitioner was again elected to the Senate. The University issued notification under Statute 34 of the Kerala University (Conduct of Elections to the Various Authorities or Bodies) First Statutes, 1974 (the Statutes, for short) notifying elections to the Syndicate to fill up, inter alia, the six seats falling under S.21(a)(i). Petitioner demurred to the election with the plea that he continued to be a member of the Syndicate under S.22, which prescribed the term of a member of the Syndicate as four years from the date of the "election". Petitioner was elected only on July 22,1987 when the notification Ext.P2 was issued after the recount and therefore he could continue till July 22,1991, as he had been elected to the Senate meanwhile. He made a representation accordingly to the Vice Chancellor, but that was rejected by the communication Ext.P5. It was stated that in the context of "the procedure for election", it could not be said that persons elected will hold office for a term of four years starting from different periods in accordance with the dates of declaration of the election results. It was stated that in the context of "the procedure for election", it could not be said that persons elected will hold office for a term of four years starting from different periods in accordance with the dates of declaration of the election results. "Election" in S.22(1) means only the process of choosing, and therefore the four years term should commence from the date on which the election was held. Reference was made to S.43 in support. 3. Petitioner's case is that his election had been notified only by Ext.P2 on July 22, 1987 and therefore he can continue till July 22,1991. The Syndicate is a perpetual body without any limit of term, unlike the Senate, whose term is only four years. Therefore there can be different periods during which different members of the Syndicate could be members. 4. S.21 of the Act provides that the Syndicate shall be the executive body of the University consisting of various categories of members. Under sub-section (a) (i), six of such members shall be persons who are not teachers. The mode of election is prescribed in S.42, namely that it shall be in accordance with the system of proportional representation by means of the single transferable vote. S.43 provides that vacancies among the members (other than ex-officio members) of any body of the University shall be filled up by the person or authority by whom he was elected or nominated, but such member shall hold office only for so long as the member in whose place he was elected or nominated would have held office, if the vacancy had not occurred. 5. S.22 prescribes that the members of the Syndicate, other than the ex-officio members, shall hold office for a term of four years from the date of their election. Statute 33 requires the results of all elections to be published in the gazette. Anticipatory elections shall take effect from the date of occurrence of the vacancy and other elections from the date of notification of the result of the election. It is based on S.22 and this Statute that the petitioner pleads for reckoning of his term of four years from the date of the notification Ext.P2, that is July 22, 1987. 6. Anticipatory elections shall take effect from the date of occurrence of the vacancy and other elections from the date of notification of the result of the election. It is based on S.22 and this Statute that the petitioner pleads for reckoning of his term of four years from the date of the notification Ext.P2, that is July 22, 1987. 6. Counsel for the petitioner contends that the term "election" has been delineated by the Supreme Court in Ponnuswamy v. Returning Officer, AIR 1952 SC 64 as embracing the whole process of election, right upto the declaration of final results, and therefore the petitioner's election took place only on July 22, 1987 when the results were declared by issue of Ext.P2 notification. It is the validity of this contention that has to be tested. 7. I am inclined to take the view that "election" in S.22 means the actual holding of the election for the purpose of determining the candidates, who are to be members of the Syndicate, and that it is not the actual declaration of the results that is contemplated. The scheme of elections to the Syndicate and the context of the section point to such an interpretation. The election of members of the Syndicate is in accordance with the system of proportional representation, by means of the single transferable vote. It is not a case of direct election based on simple majority of votes, but election on the system of preferences with weightage attached to the votes polled. It contemplates a multiplicity of candidates, with each elector having as many preferences as there are candidates. In other words, it envisages the voters exercising their preferences in favour of the numerous candidates, with those candidates polling the largest number of votes based on the weightage attached to each vote, getting elected. 8. The entire system of election based, on proportional representation will get upset if there are to be piecemeal elections held periodically as and when the term of any candidate expires, as contended by the petitioner. S.43(2) provides that any member filling up a vacancy hold office only during the rest of the term of the erstwhile member. The scheme of the Act thus appears to be that the election of the members contemplated by S.21 (a) should take place all at once, and not piecemeal. S.43(2) provides that any member filling up a vacancy hold office only during the rest of the term of the erstwhile member. The scheme of the Act thus appears to be that the election of the members contemplated by S.21 (a) should take place all at once, and not piecemeal. This scheme will be nullified if the petitioner's contention is accepted, with different members of the Syndicate having different terminus aquo for membership of the Syndicate. 9. As stated in Ponnuswamy's case, "election" embraces the entire gamut of processes right from the notification of elections to be declaration of final results. Acceptance of the petitioner's contention will confine it to the declaration of final results. That runs counter to the decision in Ponnuswamy's case. The words "date of election" in S.22 have to be understood in the light of the scheme of the Act as meaning the date on which the election took place for determining the requisite number of persons to occupy the Syndicate. 10. It is true that the results have to be published in the Gazette. But the petitioner has no case that the declaration.of the results of the other persons who were successful in the first count on 4-9-1984 were not declared at that time or that they did not at that time assume office as members of the Syndicate. If the petitioner is to have a further term of four years from the date of Ext.P2, the consequence will be that the vacancy which the petitioner occupies will have a tenure of nearly seven years, being occupied by the rival candidate from September 4, 1984 to July 22, 1987 and thereafter by the petitioner. This goes against the very grain of the Act. The communication Ext.P5 was therefore rightly issued. Petitioner's term has to commence from the date of election, namely September, 4,1984 and not from July 22,1987. The original petition is bereft, of merit. It is accordingly dismissed, without however any order as to costs. Issue photo copy of the judgment on usual terms.