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Kerala High Court · body

2011 DIGILAW 363 (KER)

Mathew Cherian v. Cochin University Of Science

2011-03-29

P.R.RAMACHANDRA MENON

body2011
JUDGMENT 1. Whether the rejection of 'Nomination' paper submitted by the petitioner in respect of Election to the Senate of the respondent University from the 'Teachers' Constituency', admittedly in tune with Ext. P1 Election Notification, but allegedly for not satisfying the requirement of Statute No. 29 of the University of Cochin First Statutes, is correct or not is the question involved. 2. The election to the Senate as well as to the Academic Council was notified as per Ext. P1 notification dated 30.11.2010. In fact, election to the Senate is conducted as per the mandate of Sec. 19 of the Cochin University of Science and Technology Act, 1986, while election to the Academic Council is as per Section 23(2) of the said Act. Different categories of elected members, as specified under sub clauses (i), (ii), (iv), (v), (vi), (vii) and (viii) are involved with regard to the election to the 'Senate' under Section 19. The issue involved pertains to 'Elected Members' under category (v) of Sec.19. 3. The Electoral roll/Ext.P2 dated 26.09.2010 was published by the Returning Officer (second respondent ) much earlier and the petitioner's name was included therein at Sl.No.43. Pursuant to Ext.P1 notification, the name of the petitioner was proposed and seconded by the electors included in Ext. P2 Electoral Roll. The petitioner submitted Ext. P3 nomination, in conformity with Ext.P1 notification on the stipulated date i.e., 17.12.2010, on which date itself, scrutiny was conducted, as notified and the list of validly nominated candidates was published as borne by Ext. P4. Obviously, the petitioner's name was excluded in Ext.P4 having rejected the nomination for the reason that, it was not in conformity with the Statute No.29 and the petitioner had not given the declaration that he was 'not a Member of the Senate', but for showing that he was not a member of Academic Council. The petitioner challenges the said act on many a ground, contending that, after demanding the nomination to be submitted in the particular manner as stipulated in Ext.P1 notification, (which specifically necessitated to give a declaration as 'not a member of the Academic Council' in the appropriate place), it was never open to the Returning Officer to have rejected the nomination referring to something else as not contained in the Notification. 4. 4. In the course of the proceedings, referring to the plea of malafides, the petitioner chose to implead the Returning Officer/Registrar of the University in his personal capacity as Addl. Respondent.No.20 by filing I.A.No.333 of 2011, which was allowed. Respondents No.1 and 2 have filed a counter affidavit and so also, the Respondents No. 14 and 19 as well. It is brought on record that, though a total number of 16 candidates was there as validly nominated from the constituency of 'Teaching Staff', (as given in Ext.P4) on the last date for withdrawing the nomination, there remained only 10 candidates in the Arena in respect of the available 10 seats and accordingly, no election was required to be conducted in respect of the said constituency and all the remaining 10 candidates were declared as elected, leading to Ext. R1(b) notification dated 31.12.2010 constituting the Senate. This necessitated amendment of the writ petition by filing I.A.No. 334 of 2011, which was allowed, incorporating necessary grounds as against Ext.R1(b) as well. The sum and substance of the contentions raised from the part of the respondents, i.e., Registrar/Returning Officer as well as other contestants is that the declaration made by the petitioner was not in conformity with the Statute No.29 of the First Statutes, in so far as the declaration had to be given to the effect that the candidate was not a member of the Body to which the election was conducted or if he was already a member, his term of office as such would expire before the membership for which he was seeking Election took effect. It is stated that Ext.P1 notification contained all the relevant particulars as stipulated to be notified vide Statute No.28 and this being the position, the said notification has to be read and understood in the light of the Statutes 28 and 29, on which event, the petitioner cannot be heard to say that he was misled by the Notification, as he ought to have been aware of the Statutes while submitting the Nomination. It is further contended that the error, as it appears on Ext.P1 notification, is only an inadvertent one, having omitted the word 'Senate' as well and that the said mistake is not substantial, so as to interfere with the process of election, simultaneously pointing out that no interference is warranted in the writ petition, in view of the effective alternative remedy available. 5. The learned Counsel for the respondents 11 and 14 asserted the above proposition referring to the decision rendered by the Apex Court in Rangilal Choudhury vs. Dahu Sao and others (1962 (2) SCR 401). This, however is sought to be rebutted from the part of the petitioner placing reliance on the very same decision, besides referring to the decisions rendered by this Court as reported in 1986 KLT 1058 ( Joy vs. Calicut University ) and 1989 (1) KLT 858 (Damodaran vs. Joint Registrar) to the effect that rejection of the nomination under such circumstance/similar circumstances in an improper manner, is quite illegal and that existence of alternate remedy is not a bar. 6. For proper appreciation of rival contentions, it is necessary to refer to the statutory provisions first. As mentioned already, election to the Senate in respect of different constituencies as contemplated under Section 19 of the Cochin University of Science and Technology Act, 1986, was notified as per Ext. P1. 'Notification of Elections' and 'Nomination of candidates' are dealt with under the Statutes 28 and 29 of the University of Cochin First Statutes on Election, which read as follows: "28. Notification of Elections:- When any vacancy occurs or is about to occur by efflux of time among the members of any University authority or body which has to be filled by election, or if an election has to be conducted for the constitution of any Body, Authority, or any Committee thereof according to the provisions of the laws of the University, the Registrar shall, under the directions of the Vice-Chancellor, cause such fact to be notified for information of the electors and shall also cause such notification to be published in the Gazette. The notification shall contain the following particulars:- (1) date of notification, (2) last date for receipt of nominations, (3) date of scrutiny of nomination and publication of list of candidates validly nominated, (4) last date and hour for withdrawal of candidature, (5) date of publication of the final list of candidates, (6) date of issue of ballot-paper, (7) date and hour fixed for the poll, (8) date and hour of scrutiny and counting of votes. 29. Nomination of candidates:- Evey elector shall be at liberty to nominate a qualified person to fill the vacancy. Every such nomination shall be in the prescribed form and shall be made by an elector in writing and shall be seconded in writing by another elector. The nomination shall be accompanied by the consent in writing of the nominee agreeing to serve on the University Authority or Body, as the case may be, if elected, and declaring that he is not already a member of the authority or body, or if he is already a member, his term of office as such would expire before the membership for which he is seeking election takes effect and the nomination paper must reach the Registrar within the date and hour fixed, which shall not be earlier than 14 clear days after the date of publication of the notification of the election in the Gazette." 7. Going by the contents of Ext. P1 Notification, it is quite true that all the requisite particulars, as contemplated under the Statute 28, have been given in the said Notification. The question is whether there is something more in the Notification giving an idea to the persons to whom such facts are intended to be conveyed, to act in accordance with the terms of the Notification. No doubt, the nomination has to be submitted in accordance with the terms of the Statute No.29 which stipulates that a declaration, as specified therein and mentioned herein before, has to be given by the person concerned. Since the Body to which election is sought to be faced by the petitioner is to the 'Senate', the petitioner had to give a declaration that he was 'not a Member of the Senate'. But the case of the petitioner is that since Ext. Since the Body to which election is sought to be faced by the petitioner is to the 'Senate', the petitioner had to give a declaration that he was 'not a Member of the Senate'. But the case of the petitioner is that since Ext. P1 Notification dealt with the election in respect of both the Senate and Academic Council and further since the Notification insisted to give a declaration that the petitioner was 'not a member of the Academic Council', the same was duly acted upon and Ext. P3 nomination was submitted accordingly, declaring that the petitioner was not a member of the 'Academic Council'. In other words, Ext.P3 Nomination submitted by the petitioner was strictly in accordance with the terms of Ext.P1 Notification. It is also the case of the petitioner that the petitioner was never a member of the Senate, nor was he a member of the Academic Council and as such, nothing prevented him from giving a declaration that he was not a member of the Senate and that the entry made in Ext.P3 nomination that he was 'not a member of the Academic Council', only since it was so insisted in Ext. P1 Notification and for nothing else. It is also the case of the petitioner that the very stipulation in this regard in the Statute itself is otiose, for the reason that such stipulation in the Statute is no more relevant to the present scenario, in so far as election to the Senate is being conducted as a whole, unlike the position as it existed earlier, when a portion of the members of the Senate used to come out on expiry of the term and election was being conducted in respect of such vacancies. Even otherwise, it is contended that, there is no statutory provision prohibiting election of a member to the Senate of the same Body and as it stands so, declaration sought for is without any ostensible purpose. Viewed in the said circumstance, the alleged defect, if any, in Ext. P3 nomination ought not to have been a reason for the second respondent to have the nomination rejected, more so, when it was only because of the fault of the second respondent who issued Ext. P1 Notification, contrary to the terms of the Statute, contends the petitioner. 8. Viewed in the said circumstance, the alleged defect, if any, in Ext. P3 nomination ought not to have been a reason for the second respondent to have the nomination rejected, more so, when it was only because of the fault of the second respondent who issued Ext. P1 Notification, contrary to the terms of the Statute, contends the petitioner. 8. During the course of hearing, it was much asserted from the part of the petitioner that, while rejecting nomination of the petitioner for having declared that he was 'not a member of the Academic Council' ( as insisted in Ext.P1 Notification), the nominations submitted by the other respondents concerned, declaring that they were not members of the Senate and without mentioning anything regarding Academic Council (despite the specific requirement in Ext.P1 Notification), have been accepted, finally leading to Ext.R1(b) declaration of result. So also in the case of one Roy M. Thomas, who had declared that he was neither a member of the Senate nor a member of the Academic council ( ie. in conformity with Ext. P1 Notification as well as Statute 29), the said nomination was also rejected. The second respondent had also rejected the nomination of one 'Tony' in respect of the very same constituency, on the ground that his name was written as 'Jony', on mis-interpretation of letter 'T' as 'J'. It is alleged that such steps were being pursued with a malafide intention and hence the Returning Officer has been impleaded in his personal capacity as Respondent No.20. The prayer of the petitioner is to declare that the petitioner is entitled to be considered as a valid candidate for the election and to set aside Ext.R1(b) or in the alternative, to set aside Ext. P1 Notification as inconsistent with Statute No.29, directing the respondents 1 and 2 to re-notify the election and to proceed accordingly. 9. With regard to the legal position, it is nobody's case that the election could be conducted contrary to the terms of the Statute No.29. The question is whether Ext.P1 notification issued by the second respondent is in conformity with the statutory requirements or whether such notification, by virtue of the mistake admittedly incorporated therein (though inadvertently) has made somebody to act upon the same, making him prejudiced because of such mistake. The question is whether Ext.P1 notification issued by the second respondent is in conformity with the statutory requirements or whether such notification, by virtue of the mistake admittedly incorporated therein (though inadvertently) has made somebody to act upon the same, making him prejudiced because of such mistake. If the mistake in Ext.P1 Notification is not substantial, quite naturally, the alleged defect in Ext.P3 nomination made by the petitioner , based on the so called mistake in Ext.P1 Notification, is also liable to be held as not substantial or in other words, if Ext. P3 Nomination submitted by the petitioner is contrary to the statutory prescription under Statute No.29 of the First Statute , then the stipulation in Ext. P1 Notification containing the mistake has to be held as contrary to the statutory prescription and as such Ext. P1 Notification has to be intercepted causing the concerned respondents to have the election re-notified to alleviate the grievances of the petitioner, who has challenged the proceedings . The rejection of the nomination of the petitioner has to be viewed and appreciated in the above circumstance. 10. In Rangilal Choudhury vs. Dahu and others [(1962) 2 SCR 401], the Apex Court had occasion to consider whether the defect in the nomination paper submitted by a candidate was of a 'substantial character', to have the same rejected with reference to the relevant provisions of the Representation of the People Act, 1951. In fact, the appellant before the Supreme Court was elected as a Member of the Bihar Legislative Assembly in a bye-election from the 'Dhanbad' constituency, while the nomination paper of the respondent was rejected by the Returning Officer on the ground that the proposer had nominated him for election from 'Bihar' assembly constituency and not in respect of 'Dhanbad'. After analyzing the materials on record, the Apex Court arrived at a finding that the defect arose, out of a mistake in the 'Hindi Form' of the Nomination paper which did not exactly conform to the Form prescribed by the Rules. Referring to the gravity of the mistake and possible consequences, the Apex Court declared that the said mistake in the Nomination paper was not of a 'substantial character' as contemplated under section 33 of the Representation of the People Act, 1951. So also, it was held that the defect, arising out of the fact that columns Nos. Referring to the gravity of the mistake and possible consequences, the Apex Court declared that the said mistake in the Nomination paper was not of a 'substantial character' as contemplated under section 33 of the Representation of the People Act, 1951. So also, it was held that the defect, arising out of the fact that columns Nos. 2 and 5 were not properly filled, was not of a substantial character, as the Returning Officer had no difficulty in checking that the proposer and the candidate were voters on the electoral rolls. It was accordingly that the verdict was passed, whereby the appeal preferred before the Apex Court was dismissed upholding the view taken by the High Court, whereby the declaration of the Tribunal that the Returning Officer had rightly rejected the nomination was set aside. Though the said decision was cited from the part of the respondents 11 and 14 in support of their contention that the mistake in Ext.P1 notification is only of a trivial nature, going by the discussion as a whole, it is quite evident that the Apex Court has laid down the law, observing that the mistake/defect, if any, in the nomination paper, unless of a substantial character, cannot be a ground for rejecting the nomination paper . Applying the same to the given set of facts, the alleged defect in Ext.P3 'Nomination' of the petitioner can only be held as 'Not of a substantial character', when the contention of the respondents including the University that the defect in Ext.P1 'Notification' is not of a substantial character is to be accepted. This is more so, when the defect in Ext. P3 nomination is not because of any contribution or lapses on the part of the petitioner, but because of the defective notification issued by the second respondent, asking the electors/candidates concerned to submit the nomination in the particular manner as specified therein. This being the position, no premium is liable to be extended to the second respondent, who has issued Ext.P1 Notification in a casual manner without ensuring that the same is in conformity with the statutory prescriptions. For this reason, Ext.P3 Nomination submitted by the petitioner ought not to have been rejected, so as to have kept him away from the field of contest. 11. For this reason, Ext.P3 Nomination submitted by the petitioner ought not to have been rejected, so as to have kept him away from the field of contest. 11. With regard to the contention of the respondents that the petitioner, if at all, aggrieved has to pursue the alternate remedy, the same does not appear to be attractive at all, due to more reasons than one. It is the settled position of law that alternate remedy is not a bar for entertaining the matter, invoking discretionary jurisdiction under Article 226 of the Constitution of India. So also is the position with regard to the averment/allegation that the petitioner has not produced the contents of second page/reverse page of Ext.P3 Nomination, ( where the declaration to be made in the Nomination has been explained); thus indulging in suppression of facts. As a matter of fact, the relevant page has been produced by the petitioner along with Ext. P1, as rightly pointed out by the learned Counsel for the petitioner and as such, there cannot be any instance of suppression of facts. The question more to be considered is whether the petitioner has to be blamed for having submitted Ext.P3 Nomination, as required in Ext. P1 Notification. The defect, if at all any is in Ext. P1 Notification (as conceded) and this cannot be used as a tool to fix the petitioner who has acted strictly in accordance with the terms of Notification by giving declaration while submitting the Nomination. Such a Nomination ought not to have been rejected by the second respondent, more so in view of the law declared by the Apex Court in (1962) 2 SCR 401 (cited supra ) and by this court in 1986 KLT 1058 and also 1989 KLT 858 (cited supra ) explaining the scope of such an exercise. In the above circumstance, this Court declares that rejection of the Nomination paper of the petitioner by the second respondent is wrong and liable to be set aside, which is ordered accordingly. 12. With regard to the further course of action, it is borne out from the records that the valid list of candidates was notified by the second respondent as per Ext. P4, after rejection of the Nomination of the petitioner on the same date , i.e., 17.12.2010. 12. With regard to the further course of action, it is borne out from the records that the valid list of candidates was notified by the second respondent as per Ext. P4, after rejection of the Nomination of the petitioner on the same date , i.e., 17.12.2010. Since the total number of candidates to be elected to the constituency of 'Teaching staff' was 10 and since all the other candidates beyond '10' chose to withdraw their candidature on the last day for withdrawing the Nomination, the remaining ten candidates were declared as elected as no 'Election' was actually necessitated, finally leading to issuance of Ext.R1(b) Notification dated 31.12.2010 constituting the Senate. Since the rejection of Nomination of the petitioner is held as wrong, election has to be conducted also considering the candidature of the petitioner. The question is whether a corrigendum Notification has to be issued , after curing the defects in Ext. P1 Notification in respect of Teachers' Constituency (as election to the other constituencies notified by Ext.P1 is not under challenge) or whether it could be proceeded further to have election in respect of Teachers' Constituency alone, with the candidates/contestants, as it stands now, including the petitioner. Even though it has been brought to light that the second respondent has wrongly pursued similar exercise in respect of the candidature of some other persons as well, for not being in conformity with Statute No.29, though such nominations were in tune with Ext. P1 Notification, this Court accepts the version of the respondents 1 and 2 that the aggrieved persons have not chosen to challenge the same and hence it cannot tilt the balance. In the case of the petitioner, it is the 'alternate prayer' to conduct re-election after setting aside Ext. P1 Notification. Since the prayer to set aside Ext. P1 Notification for being inconsistent with the statute and to re- notify the election is stated as raised as an alternate prayer, this Court finds that the equilibrium need not be shattered except to the minimal extent, so as to have considered the candidature of the petitioner as well, who alone chose to challenge the rejection of Nomination. 13. In the above circumstance, Ext. P4 declaration of validly nominated candidates and the consequential declaration and nomination of the concerned respondents to the Senate from the 'Teachers' Constituency' as given in Ext. R1(b) are hereby set aside. 13. In the above circumstance, Ext. P4 declaration of validly nominated candidates and the consequential declaration and nomination of the concerned respondents to the Senate from the 'Teachers' Constituency' as given in Ext. R1(b) are hereby set aside. The respondent University, particularly the second respondent, is directed to accept the Nomination of the petitioner and conduct election to the Senate in respect of 'Teachers' Constituency', after publishing a fresh list of validly nominated candidates as shown in Ext. P4, also including the petitioner, fixing dates for withdrawal of the nomination and for election, to be notified in accordance with law. This shall be done by publishing a Notification to the above limited extent, which shall be issued within 'two weeks' from the date of receipt of a copy of the judgment. The proceedings shall be finalized and the name of the persons validly declared as elected to the Senate shall be re-notified immediately thereafter. The Writ Petition is allowed. No Cost.