Kerala High Court
Dr.Abdul Vahab. A vs The State Of Kerala on 12 August, 2021
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
WA NO. 1045 OF 2021
AGAINST THE ORDER IN WP(C) 15171/2021 OF HIGH COURT OF KERALA,
ERNAKULAM
APPELLANTS/WRIT PETITIONERS:
1 DR.ABDUL VAHAB A.,
AGED 46 YEARS, S/O.ABDUL AZEES, PROFESSOR (ID
NO.P18752) DEPARTMENT OF PHARMACEUTICAL SCIENCES,
SCHOOL OF MEDICAL EDUCATION UNDER CPAS, CHERUVANDOOR,
ETTUMANOOR P.O., KOTTAYAM - 686 631.
2 DR.ARUN RAJ R., AGED 35 YEARS, S/O.P.G.RAJENDRAN,
ASSISTANT PROFESSOR (ID NO.P18455)
DEPARTMENT OF PHARMACEUTICAL SCIENCES, SCHOOL OF
MEDICAL EDUCATION UNDER CPAS,PUTHUPPALLY, RUBBER BOARD
P.O., KOTTAYAM - 686 009.
BY ADVS.
SRI. MANU RAMACHANDRAN
SRI. M.KIRANLAL
SRI. R.RAJESH (VARKALA)
SRI. T.S.SARATH
SRI. SAMEER M NAIR
SRI. ANSU VARGHESE
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY, STATE OF KERALA,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.
2 THE PRINCIPAL SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH,
STATE OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
W.A.No.1045 of 2021
2
4 THE KERALA UNIVERSITY OF HEALTH SCIENCES,
THRISSUR- 680 596, REPRESENTED BY ITS REGISTRAR.
5 THE VICE CHANCELLOR, THE KERALA UNIVERSITY OF
HEALTH SCIENCES, THRISSUR - 680 596.
6 THE REGISTRAR, THE KERALA UNIVERSITY OF HEALTH
SCIENCES, THRISSUR - 680 596.
7 THE RETURNING OFFICER (DEAN STUDENT AFFAIRS),
ELECTION TO SENATE, THE KERALA UNIVERSITY OF HEALTH
SCIENCES, THRISSUR - 680 596.
8 THE CENTRE FOR PROFESSIONAL AND ADVANCED STUDIES
(CPAS), GANDHINAGAR P.O., KOTTAYAM- 686 008
REPRESENTED BY ITS DIRECTOR.
SRI. TEK CHAND, SR GP FOR R1 TO R3,
SRI.P.SREEKUMAR, SC FOR R4 TO R7,
SRI.P.C.SASIDHARAN, SC FOR R8
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.1045 of 2021
3
JUDGMENT
Dated this the 12th day of August, 2021 S.Manikumar, CJ.
In W.P.(C) No.15171 of 2021, petitioners/appellants herein, have sought for the following reliefs:
"i) To issue a writ of Certiorari or any appropriate writ or direction, calling for the records pertaining to Exhibit P6 letter dated 22.05.2021 issued by KUHS, and quash the same;
ii) To issue a writ of Certiorari or any appropriate writ or direction, calling for the records pertaining to Exhibit P8 draft electoral roll of teachers of private pharmacy colleges in the State under KUHS, to the extent of inclusion of petitioners and institutions under CPAS therein, and quash the same;
iii) To issue a writ of mandamus, or any appropriate writ or direction directing the respondents 4 to 7 to consider Exhibits P9 and P10 representations dated 18.07.2021 & 17.07.2021, within a time frame fixed by this Hon'ble Court;
iv) Direct the 7th respondent to provisionally include the petitioners and similarly placed persons in the Electoral roll meant for Government Colleges for the election to the Senate of KUHS."
2. Pending disposal of the writ petition, appellants/writ petitioners have sought for a direction to the Returning Officer, Kerala University of Health Sciences, respondent No.7, not to finalise the Electoral roll for the election to the Senate of KUHS till the adjudication of the issues raised in Exhibits P9 and P10 W.A.No.1045 of 2021 4 representations.
3. After considering the averments and submissions, writ court on 29.07.2021, ordered as under:
"Admit.
2. The learned Government Pleader takes notice for respondents 1 to 3. The learned respective Standing Counsel takes notice for respondents 4 to 7 and 8. Respondents shall place pleadings on record.
3. There will be an interim direction to the 7th respondent to consider Exts.P9 and P10 requests made by the petitioner without delay, at any rate, within a period of four weeks from the date of receipt of a copy of this order."
4. Being aggrieved, instant writ appeal is filed on the sole ground that the learned Judge while directing the representations to be considered, ought to have granted an order directing the Returning Officer, Kerala University of Health Sciences, respondent No.7, not to finalise the Electoral roll for the election to the Senate of KUHS.
5. Added further, Mr. Manu Ramachandran, learned counsel for the appellants, submitted that once the electoral roll is finalised, appellants have no other remedy.
6. Learned counsel further submitted that one of the prayers made in the writ petition is for a direction to the Returning Officer, Kerala University of Health Sciences, respondent No.7, to W.A.No.1045 of 2021 5 provisionally include the appellants and similarly placed persons, in the electoral roll meant for Government Colleges, for the election to the Senate of KUHS, and that, the writ court failed to advert to the same.
7. Heard the learned counsel for the appellants and perused the material available on record.
8. Exhibit P9 representation dated 24.7.2021 is reproduced:
"From Dr. Abdul Vahab A, Professor (ID No. P18752) Department of Pharmaceutical Sciences, School of Medical Education under CPAS, Cheruvandoor, Ettumanoor P.O, Kottayam- 686 631 To The Returning Officer (Dean Student Affairs), Election to Senate, The Kerala University of Health Sciences, Thrissur- 680 596.
([email protected]) Dear Sir, Sub- Seeking deletion of my name as well as my fellow teachers from the draft Electoral roll under Constituency No.26 and our inclusion in the constituency meant for Government Pharmaceutical Colleges-Reg
1. I am a Professor (1D No.P18752) in the Department of Pharmaceutical Sciences, Cheruvandoor (No. P43) (Hereinater referred to as 'the College') a Government run self-financing W.A.No.1045 of 2021 6 College, under the Centre for Professional and Advanced Studies (hereinafter referred to as CPAS), the Governing body constituted by the Government of Kerala. Earlier the College along with other self-financing institutions was under the administration and control of the Mahatma Gandhi University and presently the administration and control was handed over to the CPAS.
2. I am aggrieved by the stand taken by the Kerala University of Health Sciences considering the medical and allied institutions under the CPAS as private self-financing colleges even after the complete and pervasive control of the Government of Kerala over CPAS making the same a Government Institution in all aspects. In that manner the University have included the Manager, Principal and teachers like me of the Colleges under CPAS in the draft electoral roll of private self-financing colleges for the Senate election in the University, even after the same is specifically sought to be rectified. The inclusion of Colleges under CPAS within the category and electoral roll and constituency of private self- financing colleges in election to Senate is detrimental to the candidates from colleges under CPAS in various manners. It is detrimental on the reason that that the colleges under CPAS are not private colleges and hence not associated with the colleges of the said nature and due to increased competition in the Constituency meant for Private Colleges.
3. The CPAS is a charitable society registered under the provisions of the Travancore Cochin Charitable Societies Act, which is formed by the Government of Kerala with the object of establishing, administering and managing self-financing institutions earlier under M.G University among other functions and managed by the Governing body comprised of members nominated by the Government and University and W.A.No.1045 of 2021 7 other members.
4. The State Government is in absolute control over the functions affairs of CPAS through officers nominated by the Government. Article 6 and 7 of the Memorandum of Association of CPAS shows the control and power of Government over the CPAS. The Governing Body of CPAS consists of Minister for Education as its Ex-officio Chaiman, Secretaries to Higher Education Department, Health Department and Finance Department, representative from MG University, representatives recommended by State Government, Director of Medical Education, State of Kerala and Director of Society as its Ex-officio Member Secretary. As per the Rules framed the Director of the Society is also appointed by the Government. The Memorandum of Association and Rules states about the control of the Government over CPAS and power to take over administration of CPAS directly by Government from CPAS. In the above regard the CPAS is as an instrumentality of Government though its works as an Educational Agency managing self- financing institutions under it. Even as per the University, the Manager of the entire institutions under CPAS is the Government Secretary of Higher Education Department, State of Kerala.
5. But to the utter dismay of mine and other teachers and employees of various institutions coming under the CPAS and is afiliated to KUHS was regarded as Private Colleges and its employees in the same manner. The University while calling for the details of the Principal, Teaching and non-teaching staff and Manager for preparation of electoral roll have issued letter no.967/2021/Admn-Estt/KUHS dated 15.04.2021 to the institutions coming under the CPAS which is affiliated to KUHS as if those institutions are private colleges.W.A.No.1045 of 2021 8
6. Even much before the notification for the election to the Senate, the CPAS send a letter dated 05.05.2020 seeking to categorize the institutions under CPAS 'as Government Controlled Self-Financing Institutions. The KUHS has given a reply vide letter no. 2394/2019/AC II/PM/A 1/KUHS dated 11.10.2020 stating that the creation of category "Government Controlled the Self Financing institutions" cannot be done by the University but the State Government has to make suitable changes in the Statute.
7. It is submitted that the said stand taken by the KUHS is not having any backing of lawon an analysis of varius definitions and provisions of Kerala University of Health Sciences Act, 2010 and its First Statutes. As per S.2(t) of the KUHS Act a "Private College means a college maintained by an educational agency other than the Government or Local Self Government Institutions or the University and affiliated to the Kerala University".
As per Section 2(n) "Government College" as a College maintained by the Government and afiliated to the University.
As per Section 2(q) "Management" means the trustees, or the managing or governing body by whatever name called, of any trust or society registered under the relevant laws, responsible for management and administration of the educational institutions or colleges and in relation to any college or institution established or maintained by the Central Government or State Government or a society or agency, established by the Central Government or State Government or a local authority, such as panchayat, municipality, it means, respectively, the Central Government or the State Government or the society or ageney, or the concerned local authority, such as the panchayat, municipality as the case may be.
W.A.No.1045 of 20219
As per Section 2(za) "Un-aided college or institution" as means a private college or institution which is not entitled to have financial assistance from the Government or University.
8. It is submitted that the Section 50 of the KUHS Act and Chapter XXI of the Kerala University of Health Sciences First Statutes, 2013 recognizes the professional medical or other colleges or institutions owned by Government of Kerala or Government controlled societies, private aided and private un-aided educational agencies for the purpose of affiliation. Hence it is not at all correct on the part of the KUHS in issuing a letter min the manner represented therein. Though the category "Government Controlled Self Financing institutions"
is absent there is nothing which precludes the University from including the Colleges under CPAS as Government Colleges, be it self-financing or not.
9. Contrary to the very definitions and explanations regarding the status and nature of institutions like CPAS, the colleges and institutions under it are now termed as private self- financing institutions for the purpose of the election towards Senate of KUHS. The Returning Officer published draft Electoral roll of various constituencies for the election to the Senate of the KUHS on 06.07.2021. The teachers of private pharmacy colleges in the State affiliated to KUHS are in the Constituency no.26 and I as well as other teachers of the College are included under the said Constituency. As per the Electoral roll my name comes in serial no.930 along with other teachers of the College. As per notification no.967/2021/ A2/Admin-Esst/KUHS dated 06.07.2021 the correction, alteration etc., in the draft Electoral roll is to be brought to the notice of the Returning Officer on or before 5 pm on 21.07.2021. It is also very awkward and illegal that the Principal Secretary, High Education Department, State of W.A.No.1045 of 2021 10 Kerala, our manager, is included in the constituency meant for Managers of Private Colleges by KUHS. Accordingly, I prefer this representation seeking deletion of my name as well as my fellow teachers from the draft Electoral roll for private medical and allied colleges and our inclusion in the constituency meant for Government medical and allied colleges including pharmaceticals.
Puthuppally Dr. Abdul Vahab A.
18.07.2021"
9. Reading of the abovesaid representation shows that appellants are aggrieved by the inclusion of their names in the specific constituency. They want their names to be included in the constituency meant for Government, Medical and Allied Colleges, including pharmaceuticals.
10. Now, the writ court has directed the Returning Officer, Kerala University of Health Sciences, respondent No.7, to consider Exhibits P9 and P10 representations dated 17.07.2021 & 18.07.2021 made by the appellants, without any further delay. There cannot be any direction to provisionally include the name of the appellants in the Electoral rolls meant for Government Colleges, for election to the Senate of the KUHS. The abovesaid prayer as included is one of the main prayers in the writ petition. If the writ court has to grant such a relief, then, there is nothing for the Returning Officer, Kerala University of Health Sciences, respondent No.7, to decide. That apart, granting of an interim prayer of the W.A.No.1045 of 2021 11 abovesaid nature, would amount to granting the main relief itself, which the Hon'ble Supreme Court, time and again, has held as 'not permissible'. On the said aspect, reference can also be made to few decisions of the Hon'ble Apex Court.
"(i) In Deoraj v. State of Maharashtra reported in AIR 2004 SC 1975, the Hon'ble Supreme Court, at para 12, held as follows:
"Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent."
(ii) In State of U.P v. Ram Sukhi Devi, [(2005) 9 SCC 733], the Hon'ble Supreme Court held that final relief cannot be granted by way of interim relief. Paragraph 8 of the aforesaid decision is extracted hereunder:-
W.A.No.1045 of 202112
"To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. (1985 (1) SCC 260 at p. 265), State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC 217 at p.224), State of U.P. and Ors. v. Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214).] No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment."W.A.No.1045 of 2021 13
11. Contention of the learned counsel for the appellants that after finalisation of the Electoral rolls, appellants are remediless, also cannot be accepted. Law is settled that in such cases, aggrieved persons can approach the competent forum, after the elections are completed.
In the light of the above discussion and decisions, we are not inclined to interfere with the interim order. Writ appeal is accordingly dismissed.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv //TRUE COPY// P.A. TO JUDGE