Kerala High Court
Muhammed Muhsin vs University Of Calicut on 11 February, 2020
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941
WA.No.174 OF 2020
AGAINST THE JUDGMENT DATED 24-01-2020 IN WP(C) 34279/2019(H) OF
HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 MUHAMMED MUHSIN
AGED 20 YEARS, S/O. SIDDHIQUE,
UNIVERSITY UNION COUNCILOR,
GOLDEN HILLS ARTS AND SCIENCE COLLEGE,
KODUVALLY, KOZHIKODE-673572.
2 MUHAMMED SHIYAS,
AGED 20 YEARS, S/O. KUNJAMMED,
UNIVERSITY UNION COUNCILOR,
SILVER ARTS AND SCIENCE COLLEGE, PERAMBRA,
KOZHIKODE-673525.
3 MUHAMMED SHABEEH P N
AGED 20 YEARS, S/O. BASHEER P N,
UNIVERSITY UNION COUNCILOR,
A V ABDURAHIMAN HAJI MEMMORIAL ARTS AND SCIENCE
COLLEGE, PAYYOLI, KOZHIKODE-673522.
BY ADVS.
SRI.G.SHRIKUMAR (SR.)
SRI.E.C.AHAMED FAZIL
SRI.P.E.SAJAL
RESPONDENTS/RESPONDENTS:
1 UNIVERSITY OF CALICUT
CALICUT UNIVERSITY POST,
THENIPALAM, MALAPPURAM DISTRICT-673635,
REPRESENTED BY ITS REGISTRAR.
2 THE REGISTRAR
UNIVERSITY OF CALICUT,CALICUT UNIVERSITY POST,
THENIPALAM, MALAPPURAM DISTRICT-673635.
WA Nos.174 & 175/2020 -2-
3 THE DEAN OF STUDENTS WELFARE,
UNIVERSITY OF CALICUT
CALICUT UNIVERSITY POST,
THENIPALAM, MALAPPURAM DISTRICT-673635.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
11.02.2020, ALONG WITH WA.175/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA Nos.174 & 175/2020 -3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941
WA.No.175 OF 2020
AGAINST THE JUDGMENT DATED 24-01-2020 IN WP(C) 34445/2019(E) OF
HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 HILAL SHAN K
AGED 20 YEARS, S/O ABDUL SALAM,
UNIVERSITY UNION COUNCILOR,
AVAH ARTS AND SCIENCE COLLEGE,
PAYYOLI, KOZHIKODE-673524.
2 FARHAN.K,
AGED 20 YEARS, S/O FIROZ.K,
UNIVERSITY UNION COUNCILOR,
K.M.O.ARTS AND SCIENCE COLLEGE,
KODUVALLY, KOZHIKODE-673525.
BY ADVS.
SRI.G.SREEKUMAR
SRI.H.NUJUMUDEEN
RESPONDENTS/RESPONDENTS:
1 UNIVERSITY OF CALICUT
CALICUT UNIVERSITY POST, THENIPALAM,
MALAPPURAM DISTRICT-673635,
REPRESENTED BY ITS REGISTRAR.
2 THE REGISTRAR,
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY POST,
THENIPALAM, MALAPPURAM DISTRICT-673635.
3 THE DEAN OF STUDENTS WELFARE
UNIVERSITY OF CALICUT,CALICUT UNIVERSITY POST,
THENIPALAM, MALAPPURAM DISTRICT-673635.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
11.02.2020, ALONG WITH WA.174/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA Nos.174 & 175/2020 -4-
C.K. ABDUL REHIM, J.
&
T.V. ANILKUMAR, J.
-------------------------------------------------
W.A. Nos. 174 & 175 OF 2020
-------------------------------------------------
DATED THIS THE 11th DAY OF FEBRUARY, 2020
JUDGMENT
Abdul Rehim, J:
Both the writ appeals arise out of a common judgment of the Single Judge through which the respective writ petitions were dismissed. Petitioners in the respective writ petitions are the appellants herein and the respondents are the respondents in the writ petitions.
2. Challenge in both the writ petitions are against the amendments brought to the Constitution of the University Union of the 1st respondent University, with effect from 03-12-2019, especially against Article VI (B) introduced therein. A consequential proceedings issued by the Dean of the Students' Welfare of the University, dated 05-12-2019, publishing the schedule of elections to the University Union is also under challenge in both the writ petitions.
3. Exhibit P2 in both these cases is the Constitution of the University Union, which stood in force till the amendment was effected on 03-12-2019. It is the Constitution approved by the WA Nos.174 & 175/2020 -5- Syndicate of the University, through its resolution adopted as early as on 24-05-1980. Article IV of the said Constitution provides about the membership in the University Union. It provides that, all 'College Unions' in the institutions affiliated to the University of Calicut and the 'University Departments' Union' are eligible for membership in the Calicut University Union. Article VI of Ext.P2 deals with the 'General Council' of the University Union. It provides that, the General Council shall include (i) the University Union Councillors of the College Unions of affiliated colleges and (ii) the University Union Councillors of the University Departments' Union. It is provided that the General Council will hold office for one year or till the election date of next election for the College Union. Article VII in Ext.P2 stipulates that, the Office Bearers of the University Union include, Patron, Vice-Patron, Chairman, Vice-Chairman (two), Secretary, General Secretary, honarary Treasurer and Executive Committee. The Vice-Chancellor of the University is the ex-officio Patron of the University Union. The Vice-Patron shall be a person nominated by the Patron. Article VII (C) provides that the Chairman and all other Office Bearers (except the ex-officio members) shall be elected from and by the General Council of WA Nos.174 & 175/2020 -6- the University Union, which include the University Union Councillors of the College Unions of affiliated colleges and the University Union Councillors of the University Departments' Union. Article X of Ext.P2 Constitution provides that, any amendment to the Constitution can be made by the Syndicate of the University.
4. With respect to the Academic Year 2019-2020, notification dated 22-07-2019 was issued by the 1 st respondent University, incorporating the schedule for conduct of the elections to the College Unions, as per Ext.P1 produced in both the writ petitions. All the colleges under the University were directed to notify elections to the College Unions on 08-08-2019, as per the detailed schedule attached, in any one of the 3 modes suggested by the 'Lyngdoh Committee Report' approved by the hon'ble Supreme Court, and in compliance with the College Union Election Rules framed by the University which are in force. The colleges affiliated to the University were requested to forward result of the elections along with other documents as stipulated therein, signed by the Returning Officer and counter signed by Principals of the respective colleges, so as to reach the University within 15 days after conduct of the elections. It is WA Nos.174 & 175/2020 -7- mentioned that, forwarding of such results within the date stipulated is required to enable the University authorities to conduct the University Union elections properly. In the said letter the Principals of the respective colleges were required to send attested Photographs of the University Union Councillors elected from each college. It is clarified that the names of the University Union Councillors from the respective colleges will not be considered for inclusion in the electoral roll of the University Union Election, if the documents as required is not forwarded within the time stipulated. It is averred in the writ petitions that the College Union elections were conducted in accordance with the schedule prescribed in Ext.P1, and the petitioners in both the cases are the University Union Councillors elected from different colleges affiliated to the respondent University. According to the petitioners, they being the elected University Union Councillors, are also entitled to be members of the General Council of the University Union and are entitled to vote for electing Office Bearers of the University Union.
5. But, after completion of elections to the College Unions on 29-08-2019, Syndicate of the University had amended WA Nos.174 & 175/2020 -8- the Constitution of the University Union, on 03-12-2019. Exhibit P3 is the amended Constitution. Under Article IV of the amended constitution it is stipulated that, elected College Unions in all the institutions affiliated to the University of Calicut and the University Departments' Students' Union shall be eligible for membership in the University Union. Under Article VI (A) it is provided that, the General Council of the University Union shall consist of (i) the University Union Councillors of the College Unions of the affiliated colleges and its off-campuses and
(ii) the University Union Councillors of the University Departments' Students' Union. It is stated that those members of the General Council will hold office for one year or till constitution of the next General Council, whichever is earlier. But, under the amended Constitution, Article VI (B) was introduced for creating an intermediary body named "Executive Council" of the Calicut University Union. A new system for electing an intermediary "Executive Council" was introduced. Membership to the Executive Council was restricted through District-wise elections from among the elected University Union Councillors, of affiliated educational institutions, other than from the Government Colleges affiliated to the University, Aided WA Nos.174 & 175/2020 -9- colleges affiliated to the University, University teaching departments and University off-campus centres at the ratio of 1 :
3. True extract of Article VI (B) introduced through the amended Constitution is reproduced hereunder, for a better appreciation;
"Article VI (B) : Executive Council of the Calicut University Union : The executive council of the Calicut University Union shall consist the following members.
(i) All the University Union Councillors elected from the Govt. colleges affiliated to the University.
(ii) All the University Union Councillors elected from the aided colleges affiliated to the University.
(iii) All the University Union Councillors elected from the university teaching departments (i.e. from the Department Students Union).
(iv) All the University Union Councillors elected from the university off-campus centers (eg. Lakshadweep and Vatakara).
(v) All the University Union Councillors who are elected from and by the total University Union Councillors elected from each Revenue District from all other affiliated educational institutions except above VI (B) (i), (ii), (iii),
(iv), Sectors within each zone.
1. Each three councillors of the above University Union Councillors elected from each Revenue Districts from all other educational institutions except above VI (B) (i), (ii),
(iii), (iv), Sectors within each zone may elect one councillor from among themselves to the University Union executive council.
2. Those executive councillors shall be elected from each zone (Revenue Districts and Lakshadweep) from among themselves. One councillor from among themselves shall propose the nominee and another shall second the proposal.
WA Nos.174 & 175/2020 -10-
3. Such an elected member and one who proposed or seconded a nominee shall not propose or second another member.
4. A proposer or seconder shall not be elected to the executive council for that academic year.
(a) The chairperson shall preside over all the meetings of the executive council. In the absence of the chairperson one of the vice-chairpersons delegated by the chairperson shall preside over the executive council.
(b) Chairperson shall conduct the business of the executive council. The chairperson shall have the right to take decisions and to give ruling and his decisions shall be final, so far as the meeting of the executive council is concerned.
(c) The secretary or in the absence of the secretary one of the joint secretaries delegated by the secretary of the university union shall convene the meeting of the executive council as and when decided by the executive committee.
(d) The minutes of the meeting will be kept by the secretary. He should keep all proceedings and other documents of the executive council.
The chairperson and all other office bearers of the Calicut University Union (Except the ex-officio members) shall be elected by the members of the executive council from among themselves."
It is provided that, the Chairperson and all other Office Bearers of the University Union (except the ex-officio members) shall be elected by the members of the Executive Council from among themselves.
WA Nos.174 & 175/2020 -11-
6. By virtue of the amendment effected the method of electing the Office Bearers of the University Union was changed. The task of electing the Office Bearers is now entrusted with Executive Council, instead of the General Council. In effect, the University Union Councillors elected from all the colleges, who are members of the General Council of the University Union, will not get opportunity to be elected as Office Bearers of the University Union. All of them will also not get opportunity to vote for electing the Office Bearers Instead, the University Union Councillors elected from certain affiliated colleges alone were classified as a distinct and different group and they have to elect their representative / nominee Councillors to the Executive Council, in the elections to be conducted in the respective Revenue Districts (zones) at the ratio 1 : 3. This amendment, which prescribed a different mode for electing the Office Bearers of the University Union, has in effect denies opportunity of the petitioners to be elected as Office Bearers directly from the General Council and also denies their voting power to elect the Office Bearers. The amendment in this respect, which was adopted by the Syndicate on 03-12-2019, was approved by the Vice-chancellor through an order dated 04-12-2019 and it was WA Nos.174 & 175/2020 -12- directed to be implemented. Accordingly, the Dean of Students' Welfare had issued a proceedings dated 05-12-2019, publishing schedule of elections to the Executive Council of the University Union and for electing the Office Bearers. The date and time for filing of nominations to the Executive Council was fixed as 28-12- 2019. The scrutiny of nominations at various zonal level was fixed on 30-12-2019 and 31-12-2019. The date of publication of the list of Executive Councillors was fixed as 01-01-2020. The date of filing of nominations to the posts of Office Bearers from the Executive Council is fixed as 08-01-2020. The scrutiny of those nominations were fixed on the same day. Polling if necessary to elect the Office Bearers of the University Union was scheduled on 18-01-2020. The counting and publication of results were also scheduled on the same day.
7. Under the above mentioned circumstances, the writ petitioners have challenged the amendments made to the Constitution of the University Union, especially Article VI (B) thereof; and also the consequential proceedings issued by the University fixing the schedule of election to the Executive Council and also the election of Office Bearers from and by the Executive Council.
WA Nos.174 & 175/2020 -13-
8. Before appreciating grounds of the challenges and its sustainability, we may mention here that, by virtue of an interim order passed by the learned Single Judge on 19-12-2019, it was directed that the results of the election to the Executive Council of the university union shall not be published on 01-01-2020, as scheduled; and it shall be deferred until 06-01-2020. It was also clarified that the elections to the Executive Council, even if done, will be subject to result of the writ petitions. The writ petitions were thereafter dismissed through the judgment impugned herein, on 24-01-2020. According to its Standing Counsel appearing for the University, the results of the elections conducted to the Executive Council was published on 25-01- 2020, after dismissal of the writ petitions, and the final roll of the Executive Council members were published on the same day. It is also submitted that, the schedule for election of the Office Bearers of the University Union stands revised. The last date for filing of nominations is now fixed as 30-01-2020 and the scrutiny of the nominations will be conducted on the same day. Polling, if necessary, has to be held on 12-02-2020. Counting of votes and publication of results will also be made on the same day. WA Nos.174 & 175/2020 -14-
9. When the above writ appeals were moved for admission on 30-01-2020, the above mentioned facts were brought to our notice. We heard the appeals on that day itself and reserved the cases for pronouncement of judgment. Through an interim order passed on that day, this court had directed the respondents to keep in abeyance declaration of result of the election of Office Bearers, either through polling or otherwise, until further orders. Therefore it is evident that the election of the Office Bearers of the University Union, from and among members of the Executive Council, has not taken place so far and that the court had interdicted publication of result of election, if any conducted.
10. Standing Counsel appearing for the University had filed a statement in W.P.(C) No.34279 of 2019. It is mentioned that the modifications brought in the Constitution of University Union, especially Article VI(B), is intended to give more representation to the University Union Councillors elected from, Government Colleges, Aided Colleges, University Teachings Departments and Off-campus centers, in the University Union. In other words, it is stated that, the intention is to create a group of University Union Councillors elected from all other affiliated WA Nos.174 & 175/2020 -15- institutions, except the Government Colleges, Aided Colleges, University Teachings Departments and Off-campus centres. The said group includes the University Union Councillors elected from colleges in the self-financing sector. The statement would illustrate that, 159 University Union Councillors are elected from the first group of four types of colleges representing about 90,000 students; whereas 345 University Union Councillors were elected from the self-financing sector, which represented about 1,20,000/- students. According to the University, many self- financing colleges are having only very few student strength and majority of the students admitted in the Aided Colleges and Government Colleges are loosing proportionate representation in the University Union. It is in that background the amendment was introduced, is the contention. It is clarified that, it is to bring reasonable and adequate representation of students undergoing studies in Government Colleges, Aided Colleges, University Teachings Departments and Off-campus centres, that the present modification in the Constitution was introduced. It is for the better interest of the students community as a whole and it is intended to bring the main stream students representatives in the Executive Council of the University Union, WA Nos.174 & 175/2020 -16- that the amendment is made. It is further intended to balance the representation of Government and Aided Colleges vis-a-vis Self-financing Colleges.
11. One of the main attack against the amendment introduced to the Constitution of University Unions is that, the same is against the letter and spirit of the recommendations of the 'Lyngdoh Committee Report', which was accepted by the hon'ble Supreme Court through its order passed on 22 nd September, 2006, reported in University of Kerala v. Council, Principals' Colleges, Kerala and others(2006 (8) SCC 304). It is pointed out that, the Ministry of Human Resources Development, Government of India, had constituted a committee headed by Sri. J.M. Lyngdoh (former Chief Election Commissioner) to frame guidelines to the Students' Union Elections in Colleges and Universities, on the basis of a direction issued by the hon'ble Supreme Court of India in the Special Leave Petition(Civil) No.24295/2004, on 12 th December, 2005. The committee had submitted its report on 23 rd May, 2006. Among other things the Committee had recommended the modes of elections, which may be applied to the Universities and institutions, on a case to case basis. When SLP(C) 24295/2004 WA Nos.174 & 175/2020 -17- and other connected cases were considered by the hon'ble Supreme Court on 22nd September, 2006, in the light of the recommendations of the 'Lyngdoh Committee Report', the hon'ble Supreme Court observed that " we are, prima facie of the view that the recommendations need acceptance and as an interim measure, we direct the following recommendations to be implemented, subject to such modifications indicated hereinafter." The modes of elections adopted by the hon'ble Supreme Court, adopted from the 'Lyngdoh Committee Report', which is enumerated in the decision cited above, is reproduced here-under;
"6.2. Modes of elections 6.2.1. A system of direct election of the office- bearers of the student body, whereby all students of all constituent colleges, as well as all students of university departments vote directly for the office-bearers. This model may be followed in smaller universities with well- defined single campuses (for e.g. JNU/University of Hyderabad), and with a relatively smaller student population. A graphic representation of this model is annexed herewith at Annexure IV-A. In respect of universities with large, widespread campuses and large student bodies either of the following models may be adopted.
6.2.2. A system of elections, where colleges and campuses directly elect college and campus office- bearers, as well as university representatives. The university representatives form an electoral college, which shall elect the university student union office- WA Nos.174 & 175/2020 -18- bearers. A graphic representation of this model is annexed herewith at Annexure IV-B. 6.2.3. A system of elections where on one hand, directly elected class representatives elect the office- bearers of the college as well as the university representatives, and the campus itself directly elects the campus office-bearers and the university representatives. The university representatives shall form an electoral college, which shall elect the office-bearer of the university student union. A graphic representation of this model is annexed herewith at Annexure IV-C. 6.2.4. A system of election wherein class representatives shall be directly elected in the colleges and universities' campus and they in turn shall elect the office-bearers for the college unions and the university campus union. Also they shall elect their representatives for university student union. These elected representatives from colleges and university campus shall form the electoral college, which shall elect the office- bearers of the university student union. This model shall be applicable to large universities with a large number of affiliated colleges. A graphic representation of this model is annexed herewith at Annexure IV-D."
The hon'ble Supreme Court in the above said order observed that, "it is made clear that the recommendations, which we have accepted to be adopted as an interim measure, shall be followed in all Colleges/University elections, to be held hereinafter, until further orders."
12. On a consideration of the recommendations accepted by the hon'ble Supreme Court with respect to the modes of elections, the model suggested as applicable to Universities WA Nos.174 & 175/2020 -19- with large number of affiliated colleges, is the model enumerated under clause 6.2.4, with respect to which a graphic representation is annexed along with the report of the Committee as Annexure IV(D). It stipulates that, the elected representatives from the Colleges and University campuses shall form the electoral college, which shall elect the Office Bearers of the University Students' Union. Therefore it is evident that, the method of the General Council of the University Union electing the Office Bearers of the University Union, is the method recommended by the committee, which was adopted by the hon'ble Supreme Court. In the amendment Constitution impugned herein, contrary to the above method, the respondent University has adopted the method of electing the Office Bearers through an intermediary body, named Executive Council.
13. According to the learned Standing Counsel, the recommendations contained in the 'Lyngdoh Committee Report' is not with respect to the University Union; but it is with respect to 'University Students' Union'. Such an argument could not be accepted because both in the directions issued by the hon'ble Supreme Court and in the order issued by the Government of India while constituting the recommendatory committee, the WA Nos.174 & 175/2020 -20- purpose was specifically mentioned as, to frame guidelines on Students' Union Elections in colleges and in the Universities. Therefore, we are persuaded to hold that the mode suggested by the Committee with respect to elections to the 'University Students Union', is nothing other than one relating to elections to the University Union. There is no Students' Council formed by elections from College Unions.
14. Another contention raised by the Standing Counsel is that, the recommendations with respect to the mode of elections is intended only with respect to Universities having only single campus, like JNU, University of Hyderabad etc. which are having only relatively small students' population and it is not applicable to large universities as that of the respondent herein, with large number of affiliated colleges. But the distinction is clearly mentioned in the recommendations and distinct methods with respect to both the category are provided in clause 6.2.1 and clause 6.2.4. Therefore the argument advanced in this respect cannot be accepted.
15. Next contention put forth by the Standing Counsel is that, the impugned amendment is in no way repugnant or contrary to the recommendations contained in the report of the WA Nos.174 & 175/2020 -21- Committee, nor it is repugnant to the directions issued by the hon'ble Supreme Court in (2006) 8 SCC 304. But, as observed above, the specific recommendation is that the elected representatives from the Colleges and the University Campuses shall form the Electoral College, which shall elect the Office Bearers of the University Unions. Therefore, we are persuaded to hold that the amendment effected to the extent of creating an intermediary body as Executive Council of the University Union, will definitely be repugnant to the method approved by the hon'ble Supreme Court.
16. But a further question arises as to whether the impugned amendment can be set aside merely because it is repugnant or contrary to the recommendations made by the Lyngdoh Committee, which was directed to be adopted in the University elections, as directed by the hon'ble Supreme Court in the order dated 22-09-2006 ((2006) 8 SCC 304). It is to be noted that when SLP (C) No.24295/2004 and connected cases were subsequently taken up for consideration before hon'ble Supreme Court, the Bench which heard the matter expressed a doubt regarding implementation of such a measure, based on an opinion that the directions contained in the interim order of 22 nd WA Nos.174 & 175/2020 -22- September, 2006 will amount to a judicial legislation, which is not legally permissible. Therefore the matter was referred to a larger Bench, through its decision reported in University of Kerala V. Council of Principals of College, Kerala and others ((2010) 1 SCC 353). But subsequently, despite the order directing the matter to be placed before the Chief Justice of India for constituting a Constitution Bench, the matter came up before another Bench. However, Civil Appeal No.887/2009 which arose out of the SLP (C) No.24295/2004 was closed by observing as follows:
"It is submitted on behalf of the parties that acting on the recommendations of the Lyngdoh Commission, as accepted by the Division Bench of this court by its order dated 22- 09-2006 as referred to in University of Kerala (supra), elections of the students' unions are being held since thereafter in accordance therewith. When the instant matter was called on for hearing today, it was submitted on behalf of the parties that as elections are presently being held in terms of the Order dated 22-09-2006, founded on the Lyngdoh Committee's recommendations, no live issue survives for the scrutiny of this Court.
In this view of the matter, we feel it expedient to leave the issue at that for the present, to be examined in future in appropriate case, if the occasion so arises.
The petition stands closed in these terms."
17. Since the direction issued by the hon'ble Supreme Court through its order dated 22-09-2006 was only an interim direction and since the judgment of the Division Bench of this WA Nos.174 & 175/2020 -23- court in Council of Principals of Colleges V. State of Kerala (2004 (2) KLT 995) was not ultimately reversed, it cannot be said that the directions contained in the order dated 22-09-2006 of the hon'ble Suprem Court had the effect of a binding judicial precedent, which need to be followed by all the Universities within the country. However, it is pertinent to note that, with respect to the Academic Year 2019-2020, the election process with respect to College Union elections were started on the basis of instructions given to all the affiliated colleges based on Ext.P1, in which it was specifically directed that the colleges / institutions affiliated to the University shall conduct elections in one of the three modes suggested in the Lyngdoh Committee Report, as approved by the hon'ble Supreme Court of India and in accordance with the College Union Election Rules of the University, which are in force.
18. Another contention raised to assail the amendment is that, Clause VI (B) of Ext.P3 will run contrary to provisions contained in Section 27 of the Calicut University (Conduct of Elections to Various Authorities or Bodies) First Statutes, 1975. The said provision is extracted hereunder;
"27. Electoral roll of the Members of the General Council of the University Union and Full-time WA Nos.174 & 175/2020 -24- students of the departments of the University for election to Students Council.- The electoral roll shall contain the name and college address of all the members of the general council of the University Union constituted by the University in accordance with the constitution of the University Union. In the case of full-time students of the departments of the University, it shall, show the names of the full-time students department-wise.
The First Statute mentioned above is intended to lay down procedure for conduct of the elections to various authorities and bodies in the University. Section 27 deals with the method of preparation of electoral roll of the General Council of the University Union. It provides that, the electoral roll should contain the names and college address of all the members of the General Council of the University Union, constituted by the University, in accordance with the Constitution of the University Union. The Constitution of the University Union, despite the amendments incorporated, specifies that the General Council of the University Union shall consist of all the University Union Councillors elected from the affiliated colleges and the off- campuses. Learned Senior Counsel, Sri. George Poonthottam, appearing for the appellants in WA No.175/2020 had raised a contention that, since the method of preparation of the electoral roll of the General Council is stipulated under Section 27 of the First Statute, the Syndicate of the University is not entitled to WA Nos.174 & 175/2020 -25- prescribe any other method contrary to what is provided under Section 27. Contradicting the argument, Adv. P. C. Sasidharan, learned Standing counsel, pointed out that, the First Statute is intended to prescribe the method for conduct of elections only to various statutory bodies functioning in the University. It is pointed out that, the University Union, being a non-statutory body, provisions of the First Statue mentioned above will not apply for conduct of its elections. We cannot accept such a contention because, the specific provision contained in Section 27 prescribes the method of preparation of electoral roll of the General Council of the University Union. The First Statute mentioned above has got statutory force as far as method of preparation of electoral roll is concerned. But it is pertinent to note that Section 27 thereof stipulates only the method for preparation of the electoral roll of the General Council of the University Union, in which it is insisted that it should contain names of the University Union Councillors elected from affiliated colleges. Going by the amended Constitution also, the General Council contains names of all the elected University Union Councillors. The change brought in through the amendment is something different. It only introduces an intermediary body WA Nos.174 & 175/2020 -26- named Executive Council of the University Union and it confined the voting power to elect the Office Bearers of the University Union on the Executive Council. Therefore it cannot be strictly concluded that the amendment will go contrary to the provisions contained in Section 27 of the First Statute.
19. Another crucial aspect agitated on behalf of the appellants is that, the process of election to the College Unions and the University Union had started on the basis of Ext.P2 Constitution, which governed the field since the year 1980. It is pointed out that in Ext.P1 notification, dated 22-07-2019, which stipulated the schedule for conduct of the College Union elections, it was specifically mentioned that the respective colleges should notify the election for the Academic Year 2019- 2020 on 08-08-2019 and the polling has to be conducted on 29- 08-2019. In the said notification it is specifically mentioned that, the election of the College Unions will be conducted in accordance with the College Union Election Rules of the University which are in force as on the date of the said notification. All the colleges affiliated to the University were requested to forward results of the elections, signed by the Returning Officer and counter signed by the Principals, to the WA Nos.174 & 175/2020 -27- University. Various documents pertaining to identity of the University Union Councillors elected from different colleges, was directed to be forwarded to the University Department, so as to receive within 15 days, after conduct of the elections. Therefore it is evident that, at the time when the College Union elections were conducted Ext.P2 Constitution of the Calicut University Union was in force. Various candidates from different affiliated colleges had contested the elections to the post of University Union Councillors, based on the legitimate expectation that, if elected, they will become members of the General Council of the University Union and that they will be included in the electoral roll of the Electoral College to elect the Office Bearers in the University Union. They were also having a legitimate expectation that, if being elected as University Union Councillors, they will be entitled to contest to any of the posts of the Office Bearer in the University Union. But, after completion of the College Union Elections, the Syndicate had changed the Constitution with respect to formation of the University Union, through its resolution dated 03-12-2019. Evidently, the Vice-Chancellor had approved the resolution of the Syndicate on the next day itself i.e. on 04-12-2019. The new schedule of the elections were also WA Nos.174 & 175/2020 -28- notified on the very next day of 05-12-2019. The appellants, being elected University Union Councillors, were denied of their opportunity to contest to the post of Office Bearer, as well as denied of their right to vote to elect the Office Bearers. As far as the Constitution of the University Union is concerned, the process starts with elections to the College Unions and election of the University Union Councillors from each colleges. It continues with the formation of the General Counsel of the University Union and ultimately ends up with election of the Office Bearers of the University Union. The Constitution of the University Union with respect to the Academic Year concerned will become complete only by election of the Office Bearers of the University Union. It is a continuing process of election upto the University Union.
20. Question arises as to whether the Constitution and the method of formalities of the University Union and conduct of its elections can be changed mid-way, in a manner prejudicing the legitimate expectations of those who had contested for the elections and those who became victorious to be the University Union Councillors from the respective colleges. It is settled principle of law that, 'rule of the game cannot be changed after WA Nos.174 & 175/2020 -29- starting of the game'. The principle is supported by a catena of legal precedents. Therefore the appellants had stiffly opposed the impugned amendment brought in at the mid-way of the elections at the University Union, after conclusion of the elections in the affiliated colleges and after election of the respective University Union Councillors.
21. Learned Standing Counsel controverted the above argument by contending that the University Union is not a statutory body and the right for participation in the election is not a statutory right conferred on any student. It is also contended that, by virtue of the amendment, which in effect denied opportunity to certain University Union Councillors, will not in any manner infringe any fundamental rights of the appellants protected under the Constitution of India. It is further contended that, any dispute with respect to the elections to a non-statutory body cannot be challenged in a writ petition. It is pointed out that University Act as well as the relevant Statutes provides mechanism for raising disputes with respect to elections, before the appropriate forum and hence the writ petition is not maintainable.
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22. Even assuming that the University Union is a non- statutory body, its Constitution is regulated by the University, by virtue of Regulations framed in exercise of powers conferred upon the Syndicate, with the approval of the Vice-Chancellor, which power can be traceable only from the First Statute of the University enacted for that specific purpose. Hence merely because the University Union is a non-statutory body it cannot be said that the act of bringing amendment to the Constitution cannot be challenged before this court in a writ petition, if such Constitution is in any manner legally unsustainable. Secondly, even it is conceded that participation in an election is not a statutory right or constitutional right, the University is not entitled to change the Rule of elections in the mid-way of the process of election. Since the challenge is against amendment of the Constitution, it is a matter which can be subjected to judicial review, especially when it affects the the rights and legitimate expectations of the University Union Councillors, who became victorious in the College Union Elections. Therefore we are of the considered opinion that the issue agitated can be looked into in exercise of power vested on this court under Article 226 of the Constitution of India.
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23. In the impugned judgment of the learned Single Judge, the issue was approached in a totally different perspective. The evaluations were made on the basis of an impression that the writ petitioners are seeking right to be included in the Executive Council of the University Union. In other words, the Single Judge had examined the issue on the basis of a question as to whether the writ petitioners have got any right to be included in the Executive Council, which is intended to be formed based on the impugned amendment. In view of the fact that the challenge was against Ext.P3 amendment itself, especially to Clause VI (B) therein, the consideration as mentioned above was not relevant. The learned Single Judge observed that, there existed no statutory right or accrued right upon the writ petitioners to claim that they should also be included in the Executive Council. But in fact the writ petitioners were challenging creation of the Executive Council itself, as an intermediary body in between the General Council and the Office Bearers of the University Union. Therefore we are of the opinion that the issue involved in the writ petitions were not dealt with in is proper perspective.
24. In view of the observations and findings contained in the foregoing paragraphs, we are of the considered opinion that, WA Nos.174 & 175/2020 -32- changes brought into the Constitution of the University Union, after completion of the College Union Elections for the Academic Year 2019-2020, cannot be sustained legally. We are of the opinion that the election for the Academic Year need to be completed in accordance with the unamended constitution (Ext.P2). Learned Standing Counsel had pointed out that the elections to the Executive Council of the University stands completed as of now. Since those who got elected to the Executive Council were not made parties in the writ petition, the relief to the extent of quashing the amendment to the Constitution and quashing of the election already conducted to the Executive Council, cannot be granted. But as observed above, by virtue of an interim order passed in the writ petitions, this court had clarified that elections if any conducted will be subject to result of the writ petitions. Further, we notice that, when the validity of the Constitution itself is found to be legally unsustainable, election if any conduced based on such Constitution will become automatically invalid. Therefore the contention raised in this regard cannot be countenanced as legal. More over there will not be infringement of any of the rights of the elected members of the Executive Council, because WA Nos.174 & 175/2020 -33- they will continue as University Union Councillors and will continue to retain their rights as members of the General Council of the University Union. They will also be entitled to contest or vote for in the elections to be, conducted to elect the Office Bearers of the University Union.
25. Result of the above discussion is that, Ext.P3 amended Constitution of the Calicut University Union, which was introduced with respect to the Academic Year 2019-2020, is liable to be held as unsustainable, especially Clause VI (B) therein providing for constitution of an Executive Council of the University Union and conferring power on the Executive Council to elect Office Bears of the University Union.
26. Hence the above writ appeals as well as the respective writ petitions are hereby allowed and Ext.P3 is hereby quashed. The 1st respondent University is directed to conduct election of the Office Bearers of the University Union from and by the General Council of the Calicut University Union, which consist of the University Union Councillors elected out of the College Unions of affiliated colleges and the University Departments Union, as contained in the unamended Constitution (Ext.P2), with respect to the Academic Year 2019-2020.
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However, we make it clear that the above judgment will not stand in the way of the University introducing any amendment with respect to elections to the next Academic Year onwards, subject to its sustainability under law.
Sd/-
C.K.ABDUL REHIM JUDGE Sd/-
T.V.ANILKUMAR JUDGE AMG/ul/AMG