Partly allowed

J.S.Akhil v. University of Kerala

Kerala HC17 Jun 2016WP(C)/20111/2015

Case brief

AI extract

What is this about?

The High Court in W.P.C. Nos. 20111 & 32876/2015 interpreted the Kerala University Act, 1974, regarding Syndicate tenure. The court held that an Other Member elected from the Senate for a one-year term cannot claim continuance in the Syndicate beyond their Senate term expir

What did the court decide?

W.P.C. No. 32876/2015 allowed; W.P.C. No. 20111/2015 rejected. Respondent deemed to have vacated office w.e.f. 30.03.2015, continuing only de facto for previous acts.

J.S.Akhil Vs University of Kerala — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938

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WP(C).No. 20111 of 2015 (L)

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PETITIONER:

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J.S.AKHIL

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BA MALAYALAM AND MASS COMMUNICATION STUENT. ST.XAVIERS COLLEGE, THUMBA,RESIDING AT THEERTHAM,SIVAJI NAGAR, NJANDOORKONAM,POWDIKONAM PO, THIRUVANANTHAPURAM,PIN 695 588

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BY ADV. SRI.S.M.PREM

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RESPONDENTS:

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1. UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, UNIVERSITY BUILDINGS,THIRUVANANTHAPURAM,PIN 695 034.

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2. VICE CHANCELLOR

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UNIVERSITY OF KERALA, UNIVERSITY BUILDINGS,THIRUVANANTHAPURAM,PIN 695 034

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Addl. 3. HASEEM MUHAMMED S

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KALLUVILA VEEDU, ELAMUDAKKAL PO., ANCHAL - 691 306.

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ADDL. R3 IMPLEADED AS PER ORDER DATED 6.11.2015 IN I.A. 15380/2015

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RADDL.3 BY ADV. SRI.GEORGE POONTHOTTAM BY SRI.BECHU KURIAN THOMAS, SC, UNIVERSITY OF KERALA BY SRI. ACHUTH KYLAS AMICUS CURIAE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2016, ALONG WITH W.P.(C) 32876/2015 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 20111 of 2015 (L)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 COPY OF THE NOTIFICATION NO.ELECTION/1/S/SC/2014 DATED 5/4/2014 OF THE UNIVERSITY

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EXHIBIT P2 COPY OF THE UNIVERSITY'S NOTIFICATION NO. ELECTION/SYBDICATE/2014 DATED 5/2/2015

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EXHIBIT P3 COPY OF THE RELEVANT EXTRACT OF THE PRELIMINARY MINUTES OF THE SEVENTH,MEETING OF THE SYNDICATE OF THE UNIVERSITY HELD ON 6/6/2015

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EXHIBIT P4 COPY OF THE NOTIFICATION NO.ELECTION/1/S/SC/2014-2015 DATED 26/6/2015 OF THE UNIVERSITY

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EXHIBIT P5 COPY OF THE NOTICE NO.AC.A.1/74098/2015 DATED 19/6/2015 OF THE REGISTRAR OF THE UNIVERSITY

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AMICUS CURIAE EXHIBITS

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A1: TRUE COPY OF THE RELEVANT PAGES OF THE KERALS UNIVERISTY ACT, 1974 HANDED OVER BY THE LEARNED STANDING COUNSEL FOR THE UNIVERSITY

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A2: TRUE COPY OF THE RELEVANT PAGES OF THE KERALA UNIVERSITY ACT, 1974 HANDED OVER BY THE LEARNED COUNSEL FOR THE PETITIONER IN W.P.(C) 32876/2015

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A3: TRUE COPY OF THE RELEVANT PAGES OF THE KERALA UNIVERSITY ACT, 1974 PUBLISHED IN MANUAL OF UNIVERSITY LAWS IN KERALA, VOLUME-1 2006 EDITION, PUBLISHED BY SWAMY LAW HOUSE

//TRUE COPY//

P.A. TO JUDGE

JJJ

K. VINOD CHANDRAN, J.

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W.P.(C) Nos. 20111 & 32876 of 2015

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Dated: 17^th June, 2016

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J U D G M E N T

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The petitioner in W.P.(C) No.32876/2015 challenge

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the continuance of the 4^th respondent in the Syndicate of the University, after his term in the Senate expired.

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The 4^th respondent is the petitioner in W.P.(C) No.20111/2015 asserting his claim to continue in the Syndicate on the basis of his re-election to the Senate.

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The parties are referred to from their status in W.P.(C) No.32876/2015. The 4^th respondent was

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elected to the Senate on 31.03.2014 as per Ext.P1. The term of the 4^th respondent is a period of one year in the Senate, as is seen from the third proviso to Section 18 (3) of the Kerala University Act, 1974 (for brevity 'K.U. Act'). The 4^th respondent, in the Senate, is an elected

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W.P.(C) Nos.20111 & 32876/2015

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member as indicated in item (12) under heading 'Elected Members' in Section 17 of the K.U. Act. The 4^th respondent's term ended on 30.03.2015. The 4^th respondent, while he was an elected member of the Senate, was elected to the Syndicate. The continuation of the 4^th respondent in the Syndicate, after his term as a Senate member expired, is the bone of contention in the above case.

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The 4^th respondent would contend that he is entitled to be continued for a period of three months, as per the first-proviso to Section 22. If, in the course of three months; he is re-elected to the Senate, he should be deemed to be continuing in the Syndicate also. The petitioner, on the contrary, argues that what would be applicable to the 4^th respondent; being an 'Other Member' as indicated in sub-clause (3) of clause (b) under 'Other Members' of Section 21, is the second

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W.P.(C) Nos.20111 & 32876/2015

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proviso, by which he would, after his term in the Senate is over, vacate his office and could only seek for re-election to the Syndicate. The issue can be resolved on the interpretation of the various clauses afore noticed.

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Before looking at the provisions it is to be noticed that the Senate is the supreme authority of the University and from the Senate, the members are elected to the Syndicate, which, in fact, is the executive head of the University. The 4^th respondent was elected as a member of the Senate; from item (12) under the heading 'Elected Members' of Section 17. Item (12) under the heading 'Elected Members' include 10 members elected by the members of the General Council of the University Union from among the students with one seat each reserved; for a post-graduate student, research Scholar, student of a professional college and a lady student.

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W.P.(C) Nos.20111 & 32876/2015

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The third proviso to sub section (3) of Section 18 indicates that the term of office of members referred to in item (12) under heading 'Elected Members' and those referred to in item (3) under the heading 'Other Members' of Section 17(3) would be one year. The 4^th respondent, being a member elected from the persons indicated in clause (12) of 'Elected Members', his term in the Syndicate would also be a period of one year as per sub-section (5) of Section 17. The 4^th respondent, having been elected on 31.03.2014, hence, ceases to be a Senate member on 30.03.2015. It is also an admitted fact that the 4^th respondent got re-elected to the Senate on 23.06.2015.

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The contentions have to be looked at on a reference to Section 22(1) & the proviso's, which are extracted here under:

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W.P.(C) Nos.20111 & 32876/2015

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“22.(1) Members of the Syndicate other than ex-officio members, shall hold office for a term of four years from the date of their election or nomination, as the case may be:

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Provided that no person elected in his capacity as a member of a particular body or as the holder of a particular office shall be a member of the Syndicate for a longer period than three months after he has ceased to be such member or holder of such office unless in the meanwhile he again becomes a member of that electorate or the holder of that office:

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Provided further that the member referred to in item (b) under the heading “Other Members” in section 21 shall hold office for a period of one year from the date of his election or till he ceases to be a member of the Senate, whichever is earlier:

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W.P.(C) Nos.20111 & 32876/2015

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Provided also that the term of the Syndicate shall be co-terminus with the term of the Senate.

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Provided also that no person other than an ex-officio member shall be eligible to hold office for more than two terms in succession.”

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7. The term of office of members of the Syndicate

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other than ex-officio members, as per sub-section (1) of Section 22, is four years from the date of their election or nomination, as the case may be. The first proviso provides that no person elected in the capacity of a member of a particular body, shall be the member of the Syndicate for a longer period than three months after he has ceased to be such member of that electorate. Sub-section (5) of section 18 provides that a person ceasing to be the member of the Senate, would

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W.P.(C) Nos.20111 & 32876/2015

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cease to be the member of any other body, to which he was elected by virtue of his membership of the Senate. Hence, when a person is elected from the Senate to the Syndicate, his term of office in the Syndicate would depend upon his tenure in the Senate. The minute his tenure in the Senate ends, the membership in the Syndicate also has to expire. The first proviso only indicates that when such termination and expiration occurs, the membership in the Syndicate can be continued for a further period of three months and if a re-election to the Senate occurs in that period, the membership in the Syndicate would be deemed to continue.

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There can be no dispute on the above proposition, but, for the fact that the second proviso culls out the members elected by the Senate to the Syndicate from item (b) under the heading 'Other Members' of Section 21 and provides that such person

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W.P.(C) Nos.20111 & 32876/2015

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shall hold office for a period of one year from the date of the selection or till he ceases to be a member of the Senate, which ever is earlier. The continuation for three months and the re-election to the Senate from which he is elected to the Syndicate is of no consequence with respect to the said category of persons; to which the 4^th respondent belongs.

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The 4^th respondent is a person who was elected to the Senate from the electorate available in item (12) under the heading 'Elected Members' of Section 17 (the Senate) which is the specific category mentioned under sub-clause (ii) of item (b) under the heading 'Other Members' of Section 21 (the Syndicate). Hence, for the 'Other Members' included in item (b) of Section 21 can continue in the Syndicate only till the expiry of the term in the Senate or one year from the date of his election, which ever is earlier. The date on

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W.P.(C) Nos.20111 & 32876/2015

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which the petitioner was elected to the Syndicate was 05.02.2015. Hence, normally he would have had a term of one year, but, his term in the Senate expired on 30.03.2015 and in such cases, the term in the Syndicate also expires for reason only of the term in the Senate having expired prior to the one year period; he would have been otherwise entitled to continue in the Syndicate.

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Two contentions were raised against the above interpretation, one of harmonious construction and the other of the first proviso being rendered redundant, on such interpretation. As to a harmonious construction being adopted, the same would be required only when there is an anomaly and in application; one provision would work against the other. Looking at the two proviso's this Court does not find any such anomaly or difficulty in both being applied separately. The first

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W.P.(C) Nos.20111 & 32876/2015

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proviso intends that a member elected from the Senate to the Syndicate shall continue in office in the latter body even after the expiry of term in the former; for a period of three months, within which time he could get elected to the Senate and continue his term in the Syndicate. The second proviso, as was noticed herein above, carves out one category, being item (b) under the heading 'Other Members' in Section 21, who can hold office only for a term of one year or till he ceases to be a member of the Senate, which ever is earlier. The rigour of the second proviso does not in any way militate against the application of the first proviso, since it carves out an exception with respect to a particular category of persons elected. Hence, there would be no warrant for a harmonious construction to be adopted in the present case.

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W.P.(C) Nos.20111 & 32876/2015

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As for the redundancy argued, it is to be noticed that the first proviso would be applicable to the persons elected from item (a) under the heading 'Other Members' in Section 21 and any one elected other than item (b) under 'Other Members' of Section 21. Hence there is no question of the second proviso rendering redundant the first proviso.

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It is also to be noticed that the second proviso has been included with a specific intention since the members elected under item (12) under the heading 'Elected Members' of Section 17 can continue only for a period of one year. The Act does not provide for such persons to continue either in the elected body or to the body to which they are elected from the Senate, to be continued after such term. It is an admitted fact that the 4^th respondent got himself re-elected to the Senate, in which event he could very well seek for re-election to

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W.P.(C) Nos.20111 & 32876/2015

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the Syndicate, but he cannot claim continuance on the basis of first proviso to Section 22(1).

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For all the above reasons the only possible conclusion is that the opinion expressed by the Vice Chancellor in Ext.P4 does not reflect the correct legal position. The order of the Chancellor at Ext.P7, finding the 4^th respondent to be entitled to be continued in the Syndicate on the basis of his re-election to the Senate, has to be set aside. The 4^th respondent would be deemed to have vacated office as on 30.03.2015, but, however, since he had been continued on the basis of the order of the Chancellor and the interim order of this Court in W.P.(C) No. 20111/2015, the de facto doctrine would squarely apply insofar as the actions taken by him as a member of the Syndicate in the intervening period. However, he shall not be entitled to participate in any further meetings of the Syndicate.

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W.P.(C) Nos.20111 & 32876/2015

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This Court places on record its appreciation of the work done by the Amicus Curiae and the very detailed report submitted by him, explaining the legal position as occurring to him, which has found favour with this Court.

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W.P.(C) No. 32876/2015 is allowed and W.P.(C) No.

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20111/2015 is rejected. No Costs.

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Sd/K.VINOD CHANDRAN, JUDGE

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jjj 18/6/16

J.S.Akhil v. University of Kerala

Case brief

What is this about?

What did the court decide?

J.S.Akhil v. University of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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