Kerala High Court
Dr.M.Jeevan Lal vs University Of Kerala on 9 October, 2017
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 6TH DAY OF DECEMBER 2017/15TH AGRAHAYANA, 1939
WP(C).No. 36172 of 2017 (V)
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PETITIONER :
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DR.M.JEEVAN LAL,
PRINCIPAL, DR. PALPU COLLEGE OF ARTS AND SCIENCE,
PANGODE, PUDUSSERY, MATHIRA-691 536,
KADAKKAL, KOLLAM DISTRICT.
BY ADVS.SRI.GEORGE POONTHOTTAM
SMT.NISHA GEORGE
RESPONDENT(S):
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1. UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS,
PALAYAM, THIRUVANANTHAPURAM-695 034,
REPRESENTED BY THE REGISTRAR.
2. THE VICE CHANCELLOR,
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS,
PALAYAM, THIRUVANANTHAPURAM-695 034.
3. THE RETURNING OFFICER,
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS,
PALAYAM, THIRUVANANTHAPURAM-695 034.
R1 TO R3 BY SRI.THOMAS ABRAHAM, SC,
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28-11-2017, THE COURT ON 06-12-2017 DELIVERED THE
FOLLOWING:
sts
WP(C).No. 36172 of 2017 (V)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE NOTIFICATION/COMMUNICATION
NO. ELECTION/SENATE-1/PRINCIPAL/2017-18 DATED 09.10.2017.
EXHIBIT P2 TRUE COPY OF THE NOTIFICATION ISSUED IN INDIAN EXPRESS DAILY
DATED 16.10.2017.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 19.10.2017 ISSUED BY
THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION GIVEN TO THE NATIONAL
COUNCIL FOR TEACHER EDUCATION BY THE UNIVERSITY DATED
03/12/2007
EXHIBIT P5 TRUE COPY OF THE DRAFT VOTERS LIST/ELECTORAL ROLL OF
PRINCIPALS OF COLLEGES-2017-18
RESPONDENT(S)' EXHIBITS AND ANNEXURES:
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ANNEXURE R1(A) COPY OF THE LETTER NO.ELECTION/SENATE/COMP 1/2017
DATED 18/11/2017 ISSUED IN REPLY TO EXHIBIT P3.
/TRUE COPY/
P.S.TO JUDGE
sts
SHAJI P. CHALY, J.
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W.P.(C) No.36172 of 2017
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Dated this the 6th day of December, 2017
JUDGMENT
This writ petition is filed by the petitioner, who is the Principal of an unaided College, seeking to set aside the conditions stipulated in Ext.P1 to the extent "the details of Principals, whose appointment have been approved by the University as on 14.09.2017 alone need be forwarded for inclusion in the electoral roll", and for other consequential reliefs. Material facts for the disposal of the writ petition are as follows:
2. Petitioner is the Principal of Dr. Palpu College of Arts and Science, Kollam. As of now, petitioner is an elected member of the Syndicate of the University, elected from the constituency of Principals to the Senate of the University. The term is to expire on 16.05.2018. Therefore, elections from various constituencies to constitute the Senate are to be completed before the said date. In terms of Sec.17(1) of the Kerala University Act, seven Principals are to be elected to the Senate from among themselves, of whom, two shall be from W.P.(C) No.36172 of 2017 2 among Principals of Government colleges, one from among Principals of Professional Colleges and one from among Principals of Junior Colleges. Since junior colleges are no more in existence, the representative from among them is not elected.
3. As of now, there are 19 Government colleges, 44 aided colleges and 112 unaided colleges, which are affiliated to the respondent University. In terms of Sec.2(15) of the Kerala University Act, the Principal is defined as head of a college.
The Kerala University has framed the First Statutes in relation to conduct of elections to various bodies in the year 1974. Statute 17 prescribes the preparation of Electoral rolls, which read thus:
"The electoral roll of the Principals of Colleges shall contain the name and official address of the Principals concerned."
Statute 19 deals with Electoral Rolls of Teaching Staff of Colleges and University for election to the Senate: which are as follows:
"(i) Names and official address of the teachers of the Colleges whose appointments have been approved by the University. The roll shall be prepared separately for Private and Government Colleges.
(ii) Names and official addresses of the teachers of the University."W.P.(C) No.36172 of 2017 3
4. According to the petitioner, under the scheme of the University Act and the Statute made thereunder, there is no procedure prescribed for approving a person who is appointed as Principal. However, for the purpose of drawing and disbursing salary, Principals of aided colleges are authorized and empowered to draw the salary and disburse among the teaching and non-teaching staff. It is only on issuing such communication to the respective Deputy Director of Education, salary will be disbursed from the respective offices in favour of the Principals so authorized. However, there is no statutory prescription or statutory modalities providing method of approval of Principals of affiliated colleges. Whereas Statute 19 specifically provides for approval of teachers. The approval of teachers is also for teachers appointed in aided colleges.
5. Matters being so, the Returning Officer, who is none other than the Registrar of the University, issued a communication to the Principals of affiliated colleges directing to provide the details of Principals whose appointment have been approved by the University as on 14.09.2017, for inclusion in the Electoral roll, evident from Ext.P1. According to the petitioner, the University has not given approval for any W.P.(C) No.36172 of 2017 4 Principal under the University, and therefore, the inclusion of the condition in Ext.P1, that only details of approved Principals need be forwarded for inclusion in the electoral rolls, is contrary to the provisions of the Act, Statutes and the binding judgment and order issued by this Court on the very same subject matter.
6. After issuance of Ext.P1, University issued notification for conducting the election in two newspapers. Though it is required to be gazetted in terms of the provisions of law, the notification has not yet been gazetted as required. Immediately on coming to know of the communication as per Ext.P1, petitioner and a member of the Syndicate, brought to the notice of the Registrar, who is the Returning Officer, in respect of the communication, and specifically the condition contained in Ext.P1, evident from Ext.P3.
7. Though Ext.P3 was given as early as on 19.10.2017, the Vice Chancellor has not taken any decision, and therefore, petitioner apprehends that the Principals will be eliminated from the electoral rolls by virtue of the conditions contained in Ext.P1. These are the background facts projected by the petitioner in the writ petition.
W.P.(C) No.36172 of 2017 5
8. A statement is filed for and on behalf of respondents 1 to 3. Among other contentions, it is stated that, Sec.57 of the Kerala University Act, 1974 provides the modalities to be followed while making appointment and promotions of Teachers and Principals. Section 57(9) states that "every appointment under this Section shall be reported to the University for approval". Further, as per Sec.2(27) of the Kerala University Act, 1974, "teacher" is defined to mean; a principal, professor, associate professor, assistant professor, reader, lecturer or such other person supervising research in any of the colleges or recognized institutions and whose appointments has been approved by the University.
9. It is also contended that, in the light of the judgment rendered by a Full Bench of this Court in 'Dr. D. Radhakrishnan Pillai v. The Travancore Devaswom Board' [2016 (2) KLT 245 (F.B)], irrespective of whether the University Act enacted under Entry 25 of list III, or the Statutes framed thereunder are amended in line with the UGC Regulations or not, in view of its adoption by the State of Kerala with effect from 18.09.2010, as per the Government Order dated 10.12.2010, the Universities and affiliated colleges W.P.(C) No.36172 of 2017 6 are bound to comply with the UGC Regulations, 2010. Therefore, according to the respondents, unless the appointments are made in tune with the provisions of the UGC Regulations, the same are illegal. It is further submitted that, matters being so, Annexure-R1(a) reply was given to Ext.P3 representation submitted by the petitioner. Other contentions are also raised to justify the conditions contained in Ext.P1.
10. Petitioner has filed a reply affidavit, reiterating the stand adopted in the writ petition and making other contentions, also to establish that the elections to the Senate are guided by the Kerala University (Conduct of Elections to various Authorities or Bodies) First Statutes, 1974, and accordingly, the Principals of the colleges form as a separate electoral college other than the teachers prescribed thereunder. Ext.P5 is also produced along with the reply affidavit, which is the electoral roll of Principals of colleges. Therefore, according to the petitioner, now as per Ext.P5, it is evident that, the respondents have included only the names of the Principals whose appointment have been approved by the University as on 14.09.2017.
W.P.(C) No.36172 of 2017 7
11. I have heard learned counsel for the petitioner and the learned Standing Counsel appearing for the University. Perused the documents on record and the pleadings put forth by the respective parties.
12. Learned counsel for the petitioner invited my attention to Statute 12 of Kerala University (Conduct of Elections to various Authorities or Bodies) First Statutes, 1974 [hereinafter called 'the Regulations for elections'], which stipulates that the Returning Officer shall maintain an electoral roll for each electoral body entitled to elect members at any election conducted by the University, showing the names and addresses of all persons. Statute 17 deals with Electoral roll of Principals of Colleges, which stipulates that, the electoral roll of the Principals of Colleges shall contain the name and official address of the Principals concerned, whereas Statute 19 stipulates that Electoral rolls of teaching staff of colleges and University for election to the Senate, shall be:
The electoral rolls of the teaching staff of colleges affiliated to the University and the teachers of the University shall include the following:
(i) names and official address of the teachers of the Colleges whose appointments have been approved by the University. The roll shall be prepared separately for Private and Government Colleges. W.P.(C) No.36172 of 2017 8
(ii) names and official addresses of the teachers of the University.
13. Learned counsel for the petitioner has placed heavy reliance on a Division Bench judgment of this Court in 'University of Kerala v. Sankaran Nampoothiry' [2005 (1) KLT 229] and invited my attention to paragraph 5 of the said judgment, which read thus:
"5. The contention of Sri. Chandramohan Das, learned counsel appearing for the appellant University is that, Principal is also a teacher as defined under S.2 (27) of the Act. The teacher under S.2(27) should be one whose appointment has been approved by the University. We are afraid the contention cannot be appreciated. There is no quarrel to the proposition that teacher includes the Principal. But the principal is distinctly defined as the head of a college and the college is defined as an institution affiliated to the University where instruction is imparted according to the statutes, regulations and ordinances issued under the Act. There are separate and distinct channels for Principals and teachers, in the Senate. As far as teachers are concerned, they have a representation of 16 members elected by the teachers of private colleges from among themselves. For Principals of private colleges, there is a separate quota for 5. If Principal is a teacher for the purpose of Senate election, there was no need for a separate quota. In this context it is also pertinent to note that the University has no demur against the participation of the Managers of private colleges. No distinction is sought to be made on the basis of aid. All the Managers, be it of aided private colleges or unaided private colleges, are eligible to participate in case their colleges are affiliated to the University. What is relevant is only affiliation and aid is an irrelevant factor. Therefore, we hold that the Principals of unaided private colleges/self financing colleges affiliated to the University are also eligible to participate in the election to the Senate and other organs of the Kerala University as in the case of W.P.(C) No.36172 of 2017 9 Principals of aided private colleges."
In my considered opinion, the judgment is a wholesome answer to the issue.
14. However, learned Standing Counsel for the University submitted that, in accordance with Sec.2(27) of the Kerala University Act, 1974, "teacher" means a principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting instructions or supervising research in any of the colleges or recognized institutions and whose appointment has been approved by the University. Therefore, the prime contention advanced relying upon the said provision is that, the Principal who is a teacher should be an approved person as is contemplated under Statute 19 of the Election Regulations.
15. However, in my considered opinion, when a specific rule is provided for the conduct of the election to the Senate and other bodies in accordance with Statute, 1974, the parameters provided thereunder are to be strictly followed. Therein, Statute 17 clearly prescribes a separate electoral roll of Principals of College and separate electoral roll of teaching staff of colleges and University for election to the Senate. W.P.(C) No.36172 of 2017 10 Reading Statutes 17 and 19 of the Regulations for elections together, it could be gathered that the Principals of Colleges are entitled to be included in the electoral rolls, irrespective of any approval. This is further exemplified, since the term "approval" is absent in Statute 17, whereas, the said terminology is employed in Statute 19, so far as the teachers are concerned. Therefore, I have no hesitation to hold that the Principals of Colleges, irrespective of their approval, are entitled to be included in the electoral rolls.
16. Circumstances being so, the requirement that is made in Ext.P1 communication dated 09.10.2017 to the effect that, the appointment of the Principal is to be approved by the University as on 14.09.2017, and such names alone need be forwarded for inclusion in the electoral rolls, cannot be sustained at all, and therefore, I quash the said portion and hold that the Principals of all colleges are entitled to be included in the electoral roll of the Principals from the said constituency for conduct of election to the Senate.
17. True, an approved electoral roll is prepared as per Ext.P5. However, Statute 15 empowers the Returning Officer to make any addition, correction, alteration or deletion in any W.P.(C) No.36172 of 2017 11 electoral roll, provided that the fact necessitating such correction or alteration or deletion is brought to the notice of the Returning Officer within 15 days after the publication of the electoral roll, and if he is satisfied that such correction or alteration or deletion is necessary. Therefore, in my considered opinion, it is only appropriate that a direction is issued to the 3rd respondent to include the name of the petitioner and any other similarly situated persons in the electoral roll, for electing the representatives of Principals from the constituency of Principals to the Senate of the University. Accordingly, I do so.
The writ petition is allowed to the above extent.
Sd/-
SHAJI P. CHALY JUDGE St/-
01.12.2017