Kerala High Court
T.V. Balan And Ors. vs University Of Calicut And Ors. on 12 April, 1996
Equivalent citations: AIR1996KER278, AIR 1996 KERALA 278
ORDER P. Shanmugam, J.
1. Both the Original Petitions relate to election of a representative to the committee constituted to recommend the appointment of Vice-Chancellor to the Calicut University.
2. Constitutional set up : The Calicut University Act, 1975 (hereinafter referred to as the Act) provides for the reorganisation of the University of Calicut. Among the seven authorities of the University we are concerned with the Senate and the Syndicate constituted under Sections 17 and 21 of the Act. The Senate constitute of ex-officio, elected and other members totalling 118. The Syndicate consists of ex-officio and other members totalling 17. As per Section 19 the Senate is the supreme authority of the University and has the power to review the action of the Syndicate and the Academic Council and has retained all the residuary powers of the University. An elected member of the Senate has to be member of a three member committee for recommending the appointment of the Vice-Chancellor under Section 10 of the Act. The Syndicate is the Chief Executive Body of the University.
3. Issue before the Court : As per Section 10 it is the Senate that has to elect a member to the committee for recommending the appointment of the Vice-Chancellor. The Syndicat in its meeting held on 28-12-1995 nominated, elected Sri V.M. Manoharan, a Syndicate member to the committee constituted for selection of the Vice-Chancellor in terms of Section 10(1) of the Act. The Syndicate exercised this power of nomination by invoking Section 23-A of the Act. The following questions arise for consideration : (1) Whether the Syndicate is entitled to elect/ nominate a representative of the Syndicate to the committee? (2) Whether the Senate after its reconstitution on 28-8-1988 has lapsed after 28-8-1992 or is continuing till its re-constitution? (3) Whether the appointment if Sri V.M. Manoharan is proper?
4. The legal position: The relevant provisions that arise for consideration are extracted as follows:
"18. Reconstitution of the Senate :--(1) The Senate shall be reconstituted ever four years.
(2) The term of office of any member referred to in items (13) and (14) under the heading "Ex-Officio Members" in Section 17 shall be two years from the date of his nomination.
(3) Every member of the Senate, other than ex-officio members, shall, subject to the provisions of this Act and the Statutes, hold office until the next reconstitution of the Senate:
Provided that no member nominated or elected in his capacity as a member of a particular body or as the holder of a particular office shall hold office 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 :
.....
(5) When a person ceases to be a member of the Senate, he shall cease to be a member of any of the authorities of the University of which he may happen to be a member by virtue of his membership of the Senate.
.....
22. Term of office of members of Syndicate--Members of the Syndicate, other than ex-officio members, shall hold office for a term of four years from the date of their election:
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.
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 :
Provided also that a member other than an ex-officio member shall, notwithstanding the expiration of his term, continue to hold office until his successor is elected.
Provided also that no person other than an Ex-officio member shall be eligible to hold office for more than two terms in succession.
23A. Special power of the Syndicate :--Notwithstanding anything contained in this Act, the Syndicate shall exercise all the powers and perform all the functions of the Senate except the power of review under Subsection (1) of Section 19 till the reconstitution of the enate."
Section 18 mandates that the Senate shall be reconstituted every four years. But at the same time Section 18(3) states that the members of the Senate other than ex-officio members shall hold office until the next reconstitution of the Senate. Section 23A which came into force on 22-10-1993 states that notwithstanding anything contained in the Act, the Syndicate shall exercise all the powers and functions of the Senate till the reconstitution of the Senate. The Syndicate has invoked this provision for exercising the power of the senate. As per Section 20(2) the quorum of the Senate shall be one-fifth of the total Senate members. Under Section 7(4) the Chancellor has the power to suspend or dismiss any of the authorities of the University. The term of an officer/body/authority is fixed under the various provisions of the Act. For instance, Sections 10(6), 11(4), 22, 24(4), 26(6), 27(3), 28(3) and 29(4).
5. Contentions : The petitioner in O. P. No. 4248/96 is a member of the Senate last reconstituted and is also a member of the Syndicate of the University. According to the learned counsel for the petitioner Mr. Alexander Thomas, the Senate is a continuing body and has its legal existence till it is reconstituted. It does not lapse or cease to be in existence after the expiry of its term of four years, that is on 28-8-1992. As it continues its existence the Syndicate cannot usurp the power of the Senate for the purpose of electing a committee member to select the Vice-Chancellor of the University. According to him, the Senate is the supreme authority of the University by virtue of its composition, constitution and organisation set up and is entitled to determine who shall be the Chief Executive of the University. The Senate has also got the privilege to nominate one member to the committee for selection of the Vice-Chancellor which cannot be deprived by the Syndicate, Learned counsel submits that Section 23-A can be invoked only if it is impossible to reconstitute the Senate. The election to the Senate was completed before the first week of January, 1996 and without formally declaring reconstitution of the Senate the procedure adopted by the Syndicate without any emergency or need is illegal. He also submit that respondents 5, 6 and 7 in O. P. 4248/96 are not legally entitled to continue as members of the Syndicate and therefore the election of the 4th respondent as proposed and seconded respectively by respondents 5 and 6 and with the participation of respondent No. 7 is illegal. Learned counsel also raised the plea of mala fides and political consideration in the selection and appointment of the 4th respondent.
6. Learned Advocate General who appeared on behalf of respondent No. 1 raised the following objections: (1) The petitioners have approached this Court with unclean hands and with dishonest intentions and therefore, they are not entitled to the discretionary relief. (2) There is an effective alternative remedy under Section 76 of the Act and therefore, without exhausting the same the petitioners cannot seek relief under Article 226. (3) On a plain reading of Section 23A which overrides all other provisions of the Act, the Syndicate has the competency to elect and pass the impugned orders. Learned Advocate General also submits that the election of a member to the committee is not going to materially affect the outcome of the selection since under the process of selection of Vice-Chancellor under Section 10 the role played by one member of the committee is insignificant. Learned Advocate General fairly submitted that the office of the Vice-Chancellor remains vacant from 5-2-1996 and in view of this controversy the University suffers without a Vice-Chancellor. He also submitted that he has no-objection for any other name being considered for nomination at the instance of the petitioner. But the learned counsel for the 4th respondent is not willing to accede to the said proposal. Both the petitioners and the 4th respondent submitted that even if a name is suggested in the place of 4th respondent, until the issue relating to appointment of a member to the committee is resolved, there will be scope for raising the issue by another litigation even after the appointment of the Vice-chancellor. Hence they requested that a decision may be given on the issues raised.
7. Learned counsel appearing on behalf of the 4th respondent submits that the Senate is not officially in existence and it has become functus officio and therefore the Syndicate is entitled to invoke the provisions under Section 23-A. The term of office of the Senate cannot exceed beyond four years. Section 18(3) has to be read down to mean that the continuance of office of the Senate members should be restricted to the term of their office and not after the expiration of the term. Section 18(1) is pre-emptory and mandatory in nature. It follows that Senate once reconstituted can have existence only for four years. In other words, if the Senate is not reconstituted on the expiry of four years it becomes functus officio. By the introduction of Section 23-A the intention of the legislature is to exercise the power of the Senate till it is reconstituted and this provision would prevail over Section 18(3). Respondents 5 and 6 are entitled to continue by virtue of the 3rd proviso to Section 22(1) notwithstanding the expiration of the term until their successor is elected. Learned counsel also submits that the petitioner had participated in all the Syndicate meetings and he had not raised any objections and that it is the stand of the respondent that the Senate is not continuing and no member of the Senate can be appointed to be member of a committee. He also submits that the petitioner has deliberately omitted to raise the objection regarding the illegal continuance of Dr. T.P. Mubarak Sani. Therefore, the allegations are made with ulterior motives and without bona fides. Learned counsel also raised the plea that the petitioners should have exhausted the alternative remedy before invoking the jurisdiction of this Court under Article 226 of the Constitution. .
8. Learned counsel for the University advanced the same arguments of the learned Advocate General and learned counsel for respondents 4 to 7 in reference to all the legal points raised by them. Besides he submits that the Syndicate has been functioning by virtue of Section 23 A for the last four years and the Senate has not met all these years. Therefore, the petitioner is estopped from raising this objection.
9. Decisions : Learned counsel for the petitioners referred to the decision in R.C. Mitter and Sons v. I.T. Commr., W. B., AIR 1959 SC 868. The Supreme Court while dealing with the constitution of a firm held that the word "constituted" does not necessarily mean "created" or "set up", though it may mean that also. It also includes the idea of clothing the agreement in a legal form. In Ramachandra v. State of Andhra Pradesh, AIR 1965 AP 40 a Division Bench of the A. P. High Court while dealing with the constitution of Panchayats held that a corporate body does not ipso facto become dissolved, nor is it destroyed, cither by the non-user of its powers in whole or in part, or even where all the members cease to exist or the inhabitants remove outside the corporate limits. There must be some power, either express or implied, under which such dissolution or extinction of corporate existence can be effected. These legal principles lead to the conclusion that the mere fact that Panchayat Samithis are recognised in such a way as to decrease the territory of other Panchayat Samithis to their total extinction, even if that power to annex exists, does not ipso facto dissolve or extinguish the Samithi whose territory has been completely annexed. There should either be an express provision to effect such dissolution, or where an implied power is sought to be spelled out, the other provisions of the Act must justify it. The Division Bench also noted that a legal person does not of necessity lose its life with the destruction or disappearance of its corpus or bodily substance.
10. Relying on these two decisions learned counsel for the petitioners submits that unless there is a specific provision for dissolution or cessation of the Senate it deems to continue. In the light of the specific provisions under Sections 18(1) and 18(3) the Senate is thus a continuing body and Section 23 A cannot take away that existence.
11. Learned counsel appearing on behalf of respondents 4 to 7 referred to the decision in G.V.G. Chetty v. Desarathamaiah, AIR 1975 SC 1277 wherein the Supreme Court while dealing with the market committee constituted for a notified area which was superseded and on the expiry of its supersession, a new market committee was constituted by the Government, held that it undoubtedly constituted a new market committee. The Supreme Court further held that where a market committee has been constituted for a notified area for the first time and the term of office of its members, whether original or extended expires, the Government is then required to reconstitute the market committee under Section 5. 'Reconstitute', according to its plain natural connotation, means nothing else than 'constitute again'. The Government has, therefore, to constitute the market committee again. That would clearly be a new market committee, but it would not be a market committee constituted for the first time. This decision would not help the case of the respondents since from the facts of the case it is clear that the first market committee was superseded by the order of the Government and the term of its members expired. Thereafter the Government reconstituted the market committee. In Motiram Ghelabhai v. Jagan Nagar, 1985 2 SCC 279 : (AIR 1985 SC 709) referring to the import of the proviso the Supreme Court referred and followed a passage in Craies on Statute Law (Fifth Edition) and the same was relied upon by the learned counsel for the respondents. The said passage is as follows :
"The law with regard to provisos is well-settled and well-understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses, in which cases they will not be construed as controlled by the section."
Learned counsel also referred to the same judgment to the general principle that normally under the rule of interpretation the special provision must prevail over the general and therefore if a case is covered by the special provision the general provision will not be attracted to it. The case of the respondents is that the term of office of respondents 5 to 7 is saved by the proviso to Section 22 and not controlled by Section 18(5). The proviso to Section 22 can apply only to Section 22 and cannot apply to the mandate of Section 18. In Bhagirath v. Delhi Administration (1985) 2 SCC 580 : (AIR 1985 SC 1050) the Supreme Court while dealing with the term of 'life imprisonment' held that imprisonment for life is a sentence for life and nothing less and since the term of life is itself uncertain, the sentence of life imprisonment is for an uncertain term, that is to say, that it is not imprisonment for a term. In Union of India v. Tulsiram Patel (1985) 3 SCC 398 : (AIR 1985 SC 1416) while dealing with 'tenure' the Supreme Court held that 'tenure' means "manner, conditions or term of holding something" according to Webster's Third New International Dictionary, and "terms of holding; title; authority" according to the Oxford English Dictionary. It, therefore, means the period for which an incumbent of office holds it. In Sadasiva Panicker.v. State of Kerala, 1975 KLT 643 this Court held that once a person is nominated the term of office of the person so nominated shall be three years from the date of nomination. Reading the relevant clauses of the section, it is not possible to think that superannuation of the Government nominee in service will shorten the term of that member. Relying on these three decisions learned counsel for the respondents submitted that the term of office of respondents 5 and 6 would continue until their successors are appointed. In Gujarat University v. N.U. Rajguru, 1987 (Supp) SCC 512 : (AIR 1988 SC 66) the Supreme Court while dealing with the election of teachers to the Court of the Gujarat University held that election to the membership of the Court is regulated by the statutory provisions. Under Section 58 of the Gujarat University Act if a dispute arises with regard to the constitution of any of the authorities of the University, it should be referred to the State Government for determining the same. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. It is not permissible to invoke the jurisdiction under Article 226 of the Constitution by passing the machinery designated by the Act for determination of the election dispute.
12. Relying on these decisions learned counsel for the respondents submits that under the present Act Section 76 specifically provides for settling the dispute as to the constitution of a University authority. Therefore, writ petition under Article 226 is not the proper remedy and the petitioners should have invoked Section 76 of the Act. In the same judgment, 1987 Supp SCC 512 : (AIR 1988 SC 66) the Supreme Court held that ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by passing the alternative remedies. In this case it is not a mere question of election dispute. The question relates to the power of the Senate vis-a-vis the power of the Syndicate. The Senate is the supreme body and the Syndicate is an executive body. The question is whether the Syndicate is entitled to function as a Senate when the Senate is in existence. Therefore, in my view the question raises an exceptional or extraordinary issue which would justify by passing the alternative remedies.
13. In Hameedia Hardware Stores v. B. Mohan Lal Sowcar, AIR 1988 SC 1060 the Supreme Court while construing a provision held that it should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the Court should construe it in a harmonious way to make it meaningful. In Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical College (1990) 3 SCC 130, 142, the Supreme Court held that the statutory and constitutional provisions should be interpreted broadly and harmoniously. Where there is conflict between two provisions, these should be so interpreted as to give effect to both. Nothing is surplus in a Constitution and no part should be made nugatory. In S.P. Gupta v. Union of India, 1981 Supp SCC 87 : AIR 1982 SC 149 the Supreme Court held that no provision of the Constitution can be interpreted literally so as to conflict with any of the basic features of the Constitution. In Bhim Singhji v. Union of India, AIR 1981 SC 234 the Supreme Court held that Courts can and must interpret words and read their meanings so that public good is promoted and power misuss is interdicted. While laying down the rule of 'reading down' the Supreme Court held that to sustain a law by interpretation is the rule.
14. Based on the decisions on interpretation the apparent conflict between Sections 18 and 23A should be avoided. Section 23A cannot be interpreted so as to mean to make Sections 18(1) and 18(3) as nugatory. It would not serve the purpose or interest of the University if one were to construe the cessation of the supreme body viz. the Senate on the expiry of the four years' period. As it has been found that there is no specific provision in centra-distinction with other provisions of the Act to dissolve the Senate or to bring the Senate to come to an end after a term, the Senate is a continuing body and when it is so the interpretation could be only to harmoniously construe both the provisions of Sections 18 and 23A. Thus construed Section 23A can come into operation only under certain extraordinary circumstances as set out above.
15. Findings : After going through all the relevant provisions of the Act one thing that is striking is that the term of office is fixed by specific provisions in reference to Section 10(6) --term of office of the Vice-Chancellor is four years from the date on which he enters upon his office, Section 11(4) -- the Pro-Vice-Chancellor shall hold office for a term of four years, Section 22 -- the members of the Syndicate shall hold office for a term of four years from the date of their election, Section 24(4) -- members of the Academic Council shall hold office for a term of four years from the date of their appointment or nomination as the case may be, Section 26(6) -- members of faculties shall hold office for a period of three years from the date of their nomination or election, as the case may be, Section 27(3) -- the Dean of a faculty shall hold office for a term of two years, Section 28(3) -- members of the Board of Studies shall hold office for a period of three years from the date of their entering into office and Section 29(4) -- the members of the Students' Council shall hold office for a term of one year from the date of their election or nomination, as the case may be. In contra-distinction in so far as the Senate is concerned, it has not been stated that the term of office is four years. On the contrary under Section 18(3) it is stated that every member of the Senate shall hold office until the next reconstitution of the Senate. Therefore, the contention of the petitioner that the Senate is a continuing body and though it is reconstituted every four years, the members of the Senate shall hold office until the next reconstitution of the Senate has much force. The Senate shall not cease to function by the expiry of its term of office of four years. This is so far three reasons : (1) No tenure of term of Senate is prescribed under Section 18, while the tenure of office for other authorities is prescribed under the Act specifically. (2) The Senate being the supreme authority, has to exercise all the residuary powers of the University. (3) Section 18(3) specifically provides for holding of office until it is reconstituted.
16. Now the provision of Section 23A which enables the Syndicate to exercise the powers of the Senate till the reconstitution of the Senate has to be reconciled. No doubt, Section 23 A starts with a non-obstante clause enabling the Syndicate to do all the functions until the Senate is reconstituted. At the same time we have to note that while amending Section 23A, the provisions of Sections 18(1) and 18(3) have not been amended. They are kept intact. Therefore, the legislature's intention of keeping the Senate as a continuing body and allowing the members to continue until it is reconstituted has to be given effect to. In that case Section 23A can be activated or put into operation only under the circumstances where the Senate had been dissolved or it has become impossible for the Senate to exercise Us powers by virtue of fall of its membership to less than the statutory one-fifth quorum required under Section 20 or due to en masse resignation or breakdown or deadlock situation whereby it is impossible for the peaceful and proper functioning of the Senate. So long as the Senate continues by virtue of Section 18(3), invoking of the power of the Senate would not arise. When Section 18(3) says that every member of the Senate shall hold office until the next reconstitution, Section 23A says that the Syndicate can perform the functions of the Senate till the reconstitution of the Senate. So there is an apparent conflict and overlapping of the powers of the Syndicate and the Senate. Therefore, the only interpretation that can be attributed to Section 23A is that the power which comes under Section 23A is an enabling power to tide-over an extraordinary situation and not for normal continuance of the Senate. If any other interpretation is permitted then it would mean that it would make the provisions of Sections 18(1) anil 18(3) otiose and meaningless. If two interpretations are possible then an interpretation which would allow the functioning of a supreme body of the University which consists of 118 members composing of different important functionaries cannot be deprived of its function and performance.
17. Therefore, I am of the view that the Senate though not reconstituted in the year 1992 as it should have been done, the members of the Senate continue in office and they have not ceased to be members of the Senate. I am of the view that Section 23 A cannot be put into operation for the purpose of exercising the powers of the Senate while the Senate is in existence. Consequent on my finding the resolutions passed by the Syndicate exercising the powers of the Senate to nominate and elect a representative of the Senate viz. Exts. P 3 and P 4 are ultra vires of Section 18 of the Act and illegal.
18. Respondents 5 and 6 are elected from the Senate to the Syndicate. Section 18(5) provides that when a person ceases to be member of the Senate he shall cease to be member of any other authority of the University of which he may happen to be a member by virtue of his membership of the Senate. The first proviso to Section 22 is only reiteration of Section 18(5). Cessation of membership and expiration of the term of office are two different concepts. A member can cease to be a member by virtue of Section 18(5) read with first proviso to Section 22. The exception that is pleaded based on the 3rd proviso to Section 22 is applicable only to Section 22 and it cannot control Section 18. Therefore, by operation of Section 18(5) a person who has been elected by virtue of membership of the Senate will cease to be a member of that body. No other interpretation can possibly be given to Section 18(5). Admittedly respondents 5 and 6 are continuing as members of the Senate as well as members of the Syndicate by virtue of their election. If the stand of the respondents is that the Senate has ceased of its term, then they also cease to be members of the Senate and by virtue of Section 18(5) they will cease to be members of the Syndicate also. The 7th respondent was elected to the Senate reconstituted on 29-8-1988 from Local Authority constituency, he being President and member of Panchayat Committee on 9-2-88. But his term of office expired on 8-2-1993 and therefore, he appears to have continued only as member of the Panchayat Administrative Committee. After election to the Panchayat in the year 1995 he has ceased to be a member. Consequent on his expiry of membership of Senate on 7-5-93 and Syndicate by operation of Section 18(5). The contention that once they are elected from the Senate their right would continue cannot be accepted in view of specific Sub-section (5) to Section 18. Therefore, their participation in the election of the 4th respondent and the resultant election are illegal.
19. In view of my findings the other aspects relating to motives of the petitioners and confining of the prayer to respondents 4 to 7 need not be gone into. The petitioner cannot be estopped from raising the plea since no estoppel against statute be pleaded. The petitioner's concession cannot have relevance to the constitutional question of the Senate. In view of sustaining of the legal attack on the decision of the Syndicate meeting and appointment of the 4th respondent, the other findings may not be gone into. Then the only question that remains is whether the petitioners can invoke the jurisdiction of this Court when there is an alternative remedy. Section 76 of the Act is as follows:
"76. Dispute as to constitution of University authority or body:--
If any question arises regarding the interpretation of any provision of this Act, or of any Statute, Ordinance, Regulation, rules, bye-law or order or as to whether a person has been duly elected or appointed as or is entitled to be, a member of any authority or body of the University, the matter may be referred to the Chancellor and shall be so referred to him if not less than twenty-five members of the Senate so require, and the Chancellor shall, after taking such advice as he deems necessary, decide the question and such decision shall be final."
A dispute relating to interpretation of provisions of the Act may be referred to the Chancellor. This reference has to be made by the Vice-Chancellor. If not less than twenty-five members of the Senate require for a reference the Chancellor after taking such advice as he deems necessary will decide the question. Thus the reference may have to be made by the Vice-Chancellor to the Chancellor if twenty-five members of the Senate require. It is fairly conceded by the learned Advocate General that interpretation of the provisions that we are concerned with is not without difficulties. The sections with so many provisions have apparent conflicts leaving scope for doubts and uncertainty. Therefore, Section 76 cannot be said to be an alternative remedy on the facts and circumstances of the case.
20. Before parting with the case I record my appreciation for the able assistance rendered by the learned Advocate General, and M/s. Alexander Thomas and O.V. Radhakrishnan in the conduct of the case.
I may add further that it is right time that suitable amendments be made to avoid apparent conflict between the various provisions of the Calicut University Act.
For all these reasons stated above, I set aside Exts. P3 and P4 to the extent that it elects the 4th respondent to the committee constituted by the Chancellor under Section 10(1) of the Act. Original petitions are allowed as above.