Madras High Court
Madras University Teacher'S ... vs The University Of Madras on 2 November, 2012
Author: N. Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2-11-2012 CORAM: THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.26064 of 2012 M.P.Nos.1 & 2 of 2012 Madras University Teacher's Association, Tower Clock Building, Chepauk Campus, Chennai-5, rep.by its General Secretary G.Ravindran ... Petitioner Vs. 1. The University of Madras, Centenary Buildings, Chepauk, Chennai -5, rep.by its Vice Chancellor 2. The University of Madras, Centenary Buildings, Chepauk, Chennai 5 rep.by its Registrar 3. The Additional Chief Secretary to Government, Higher Education Department, Secretariat, Chennai 9. 4. Dr.R.Balasubramanian, Director, Faculty of Science and Humanities, SRM University, Kattankulathur 603 203. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the first and second respondent dated 23.7.2012 in sofar as the election of the 4th respondent is concerned and set aside the nomination of the 4th respondent to the Search Committee and consequently quash the notification/order of the 3rd respondent dated 10.9.2012 vide G.O.(1D)No.259, Higher Education (H1) Department, and direct the respondents 1 and 2 to hold the election to nominate a member from the Syndicate to serve as a Member of Search Committee. For Petitioner : Mr.S.Vijayakumar For Respondents 1&2 : Mrs.G.Thilagavathy For 3rd Respondent : Mr.P.Sanjai Gandhi, Additional Govt. Pleader For 4th Respondent : No appearance O R D E R
This writ petition is filed to quash the order of the respondents 1 and 2 dated 23.7.2012 insofar as the election of 4th respondent is concerned and set aside the nomination of 4th respondent to the Search Committee and consequently quash the notification issued by the third respondent in G.O.(1D)No.259 Higher Education Department, dated 10.9.2012 and direct the respondents 1 and 2 to hold election to nominate a Member from the Syndicate to serve as Member of the Search Committee.
2. The petitioner is the Madras University Teachers' Association, registered under the Societies Registration Act, bearing Registration No.37/1977, representing the Teachers of the Madras University.
3. The second respondent, by notification, convened a special meeting of the Syndicate on 20.7.2012 at 11.00 a.m. fixing an agenda to consider nomination of a person by the Syndicate to serve on the Search Committee to be constituted, which has to recommend a panel of three names to the Chancellor for the appointment of Vice-Chancellor in accordance with Section 11(1)(ii) of the Madras University Act, 1923, as amended subsequently. The present Vice-Chancellor has taken charge on 13.10.2009 and his term of office was upto 12.10.2012. Therefore a Committee was to be constituted to recommend the panel of names prior to the expiry of his term. According to the petitioner Association, many members of the association are serving as Syndicate Members of the University and it expected that there will be an unanimity in nominating a member to the Search Committee and if there are more than one nomination, election will have to be conducted by secret ballot.
4. The Madras University Act, 1923, stipulates procedures to conduct election to various bodies. The University is required to follow Chapter XIX Clause 15 of the Madras University Act, 1923 for the conduct of elections. Clause 15(3) and (4) states that all members present in the meeting shall be entitled to vote and no vote shall be given by proxy. The Returning Officer shall ascertain that the person desiring to vote has not already voted. The ballot paper shall contain names of all candidates arranged in alphabetical order. The second respondent convened the special meeting of the Syndicate to elect/nominate a member to include in the Search Committee and the Syndicate contains seven ex-officio members; six elected members by the Senate from among its members; five members elected by the Academic Council; three members nominated by the Chancellor; three University Professors from among the Heads of Department of Study and Research; One University Reader, nominated by the Vice-Chancellor by rotation according to seniority; and one University Lecturer, nominated by the Vice-Chancellor by rotation according to seniority. Chapter IV states that if any ex-officio member is unable to attend the meeting of the Syndicate for any reason, he may depute any officer of his department not lower in rank than that of the Deputy Secretary to Government, to attend the meeting, which means, ex-officio members are given liberty to nominate proxy to attend the meeting and they are not entitled to vote in the event of election.
5. In the meeting held on 20.7.2012, the Vice-Chancellor chaired the meeting. One ex-officio member viz., Additional Chief Secretary, Higher Education Department, Government of Tamil Nadu, proposed the nomination of the 4th respondent to serve in the Search Committee as nominee of the Syndicate, which was seconded by another ex-officio member viz., Director of Technical Education. One Professor S.Sathikh's name was proposed by one of the Syndicate Member viz., Dr.M.Michael Aruldhas, which was seconded by Dr.G.Ravindran. As there was two contenders among the members, conduct of election was necessitated. The election was conducted by secret ballot and it was declared by the first respondent that the 4th respondent was elected as nominee of the Syndicate to serve on the Search Committee and the said conduct of election is virtually challenged in this writ petition contending that among 27 members of the Syndicate, seven members are ex-officio members and as some of the ex-officio members were unable to attend the meeting, they nominated proxies to attend the meeting. As per Clause 3 of Chapter XIX, all members present at the meeting are eligible to vote and no vote shall be given by proxy. According to the petitioner, three proxies were allowed to vote, which is a statutory violation, which also vitiates the election result.
6. On coming to know about the voting by proxies, ten members of the Syndicate recorded their dissent. Three proxy members attended and voted are the Additional Secretary to Government, Department of Law; the Deputy Director of Department of Health; and the Director of Legal Studies (in-charge), Chennai. The objection/dissent was ignored by the second respondent and the 4th respondent was declared as elected. The only contention of the petitioner is that since the proxy members are not entitled to vote, allowing three proxy members to participate in the voting tilted the result and vitiates the election and therefore the 4th respondent's election as Search Committee Member is illegal and consequently the Government Order issued constituting Search Committee, including the 4th respondent through G.O.(1D)No.259 Higher Education Department, dated 10.9.2012 is also illegal.
7. The 2nd respondent has filed counter affidavit contending that the constitution of the Search Committee, which is a statutory Committee, is contemplated under Clause 2 of Section 11. The Syndicate nominated one member, one member is nominated by the Senate, and another member is to be nominated by the Chancellor and all the three members will finally recommend the panel of three names from and out of which, one person is appointed as Vice-Chancellor under the Orders of the Chancellor. Insofar as the conduct of election of the authorities of the University is concerned, Chapter XIX Clause 15 deals with the elaborate procedures. According to the 2nd respondent, a combined reading of Section 18(aa) and Statute 15(3), any member participating in the meeting can vote and proxies will attend as a silent spectator. According to the respondents, taking part in the meeting includes right to vote. It is further stated in the counter affidavit that the right of the Director of Legal Studies (in-charge) to vote cannot be disputed as he was given full additional charge of the post of Director of Legal Studies, who is also an ex-officio member of the Syndicate and therefore he would not be disqualified to discharge any function. The objection raised by the dissenting members are also forwarded to the Chancellor, who called for report and thereafter only the notification was issued through Government Order and therefore the petitioner is not entitled to file this writ petition and if the petitioner is having any grievance it can appeal to the Chancellor under Section 41 of the Madras University Act, 1923.
8. The learned counsel appearing for the petitioner reiterated the contentions raised in the affidavit and relied on the statutory provisions by contending that if the proxies are not allowed to vote, the 4th respondent ought not to have been elected as member of the Search Committee as a Syndicate nominee and by allowing three persons, who attended the meeting as proxies to vote, has vitiated the election and the subsequent nomination as Search Committee member. The learned counsel also submitted that if a proxy is entitled to vote, the same should be specifically stated in the statute and for instance, Section 24(4) of the Tamil Nadu Dr.Ambedkar Law University Act specifically provides voting rights to the proxies, and in this case, in the absence of any specific provision under the Madras University Act, 1923 and statutes, the respondents 1 and 2 are not justified in permitting the proxies to cast their vote. Therefore, learned counsel prayed that the election/nomination of the 4th respondent as Member of the Search Committee and the consequential order issued by the Government are to be declared as invalid and for a consequential direction to hold election to nominate a member from the Syndicate to serve as member of the Search Committee afresh.
9. The learned counsel appearing for the respondents 1 and 2 on the other hand contended that there is no prohibition to vote by proxies in the election conducted and the procedure contemplated to conduct election to various bodies is not applicable to elect a person to be nominated as a Member of the Search Committee as the said post is not defined as an authority under the Madras University Act, 1923 and the statutes. Thus, there is no illegality in permitting the proxies to vote during the election held to select a Syndicate nominee.
10. I have considered the rival submissions made by the learned counsel for the petitioners as well as learned counsel for respondents 1 and 2 and also the learned Additional Government Pleader appearing for third respondent. In spite of service of notice to the 4th respondent as early as on 27.9.2012 and affidavit of service filed on 5.10.2012, none appeared for 4th respondent.
11. The election to nominate one member to the Syndicate of the Madras University to recommend a panel of three names to the Chancellor for appointment of Vice-Chancellor is provided under Section 11(1) and (2) of the Madras University Act, 1923. The period of office of the Vice-Chancellor was to expire on 12.10.2012. In compliance with the said statutory requirement, for nominating a Syndicate member through election, a special meeting of the Syndicate was convened on 20.7.2012 at 11.00 a.m. The Syndicate of the Madras University consist of 27 members, of which seven are ex-officio members. The 4th respondent's name was proposed by the Additional Chief Secretary, Higher Education Department, Government of Tamil Nadu, which was seconded by the Commissioner of Technical Education, Chennai-25. Prof.S.Sathikh's name was proposed by Dr.M.Michael Aruldoss, Professor and Head of the Department of Hendocrinology, University of Madras, who is a Syndicate member, which name was seconded by the Professor and Head of Department of Journalism and Communication viz., G.Ravindran. Out of the seven ex-officio members, two of them sent proxies and Prof.Dr.S.Narayanaperumal, Director of Legal Studies (in-charge) also participated and voted as there was no regular Director of Legal Studies appointed. The two proxy members were also allowed to vote and their votes were also counted during the election and the 4th respondent was declared as elected nominee of the Syndicate to serve in the Search Committee. Ten persons objected the action of the Returning Officer in giving voting rights to the proxies. The said election of the 4th respondent as nominee of the Syndicate to be in the Search Committee was objected by the members of the Syndicate by sending a report before the Chancellor on 23.7.2012, pointing out that Chapter XVI-B pertaining to conduct of election and items 3 and 4 of the University of Madras Calendar Volume-I of the Madras University Act, 1923 ex-officio members if are unable to attend the meeting, they can depute members, however no vote shall be given by proxy. The Additional Secretary to Government of Tamil Nadu Department of Law; the Deputy Secretary to Government of Tamil Nadu, Department of Health; and the Director in charge of Director of Legal Studies, Chennai were permitted to vote as proxies in spite of their raising objection. Hence the Chancellor was requested to intervene and do the needful. It is seen from the pleadings that even though the Chancellor has called for remarks, no reply was given to the said objection already raised and ultimately the 4th respondent was nominated as Member of the Search Committee through G.O.(1D)No.259 Higher Education Department, dated 10.9.2012.
12. The points for consideration in this writ petition are as follows:
(1) Whether allowing the proxies to vote has materially vitiated the election of the 4th respondent as a nominee of the Syndicate to be included in the Search Committee ?
(2) Whether the proxies can be allowed to vote in case of election ?
13. The contention of the petitioner that the Director of Legal Studies (in charge) was to be treated as Proxy and he cannot be allowed to vote, cannot be countenanced in view of the Full Bench Judgment of this Court reported in 2008 (3) LW 760 (A.Savariar v. The Secretary, Tamil Nadu Public Service Commission and Another). Dr.S.Narayanaperumal attended the meeting as an ex-officio member in his official capacity as Director of Legal Studies (in charge). He was assigned with full additional charge of the post of Director of Legal Studies. In the Full Bench Judgment, it is held that 'as per FR.49, the Government may appoint a Government Servant whether permanent or officiating, to hold full additional charge or to discharge the current duties of one or more independent posts at one time as a temporary measure and grant additional pay'. Considering FR.49, the Full Bench held thus, "3. ............... not only the permanent holder of the post but also who is holding the post as an additional full charge or in his officiating capacity can exercise the powers of the said post. Likewise, when an Officer is posted as an in-charge, he is holding the said post. Necessarily while holding that post, he has to perform the functions of that post and execute the responsibilities of the said post. Even the term 'in-charge of a post' means, overall control of the post or of the Company or of the Firm. That means, when one is posted as in-charge, he is having the overall control of that post which necessarily follows the execution of the powers and functions of the said post. Unless, contrary intention is expressed by the Government either by way of a statutory provision or by way of an executive instruction, an officer who holds the post in-charge has got the power to discharge the statutory functions and the responsibilities of the said post."
(Emphasis Supplied) The Full Bench, for coming to the said conclusion relied on the decision of the Supreme Court reported in AIR 1996 SC 1729 (Gopalji Kanna v. Allahabad Bank). Thus, the Director of Legal Studies (in charge) participated in the Syndicate meeting as an ex-officio member and not as a proxy, who also cast his vote.
14. The Syndicate of the Madras University is having 27 members and in the meeting held on 20.7.2012, 26 persons attended the meeting and one Dr.A.Ramachandran absented from attending the meeting. The then Vice-Chancellor, who was chairing the meeting did not cast his vote and the remaining 25 persons exercised their vote. The 4th respondent secured 14 votes and the rival candidate viz., Prof.S.Sathikh secured 11 votes. The difference between the elected and defeated candidate is three votes. As already held, the Director of Legal Studies (in charge) cannot be treated as Proxy as he participated on his own right by virtue of his holding the office of Director of Legal Studies (in charge). Even assuming that the votes exercised by two proxy members are construed to be not valid, the 4th respondent has 12 valid votes and the rival candidate secured only 11 votes, which means, the 4th respondent is entitled to be declared as elected with majority of valid votes. Therefore, it is beyond doubt that permitting the two proxies viz., the Additional Secretary to the Government of Tamil Nadu, Department of law; and the Deputy Secretary to the Government of Tamil Nadu, Department of Health to vote in the election has not materially affected the result of the election. In other words, the election of the 4th respondent is not vitiated by merely permitting the two proxies to cast their votes.
15. In the light of the above undisputed facts, viz., 4th respondent is elected by majority of valid votes, which is more than the votes secured by the rival candidate viz., Prof.S.Sathikh, the election of 4th respondent for nomination to the Syndicate to act as Member of the Search Committee and the consequential notification issued by the third respondent in G.O.(1D)No.259 Higher Education Department dated 10.9.2012 cannot be declared as invalid.
16. As the issue No.1 i.e, permitting the two proxies to vote in favour the 4th respondent has not materially affected the election of the 4th respondent, who secured 12 votes when compared to the 11 votes secured by the rival candidate, the issue as to whether the respondents 1 and 2 are justified in permitting the proxies to vote in the election held on 20.7.2012 has become purely academic insofar as this case is concerned. Therefore the said issue need not be answered at this juncture.
The writ petition is dismissed, leaving open the issue of right of the proxy to vote in the election. No costs. Connected miscellaneous petitions are also dismissed.
Index : Yes/No.
Internet : Yes/No. 2-11-2012
vr
To
1. The Vice Chancellor, University of Madras,
Centenary Buildings, Chepauk, Chennai -5,
2. The Registrar, University of Madras,
Centenary Buildings, Chepauk, Chennai 5
3. The Additional Chief Secretary to Government,
Higher Education Department, Secretariat,
Chennai 9.
N. PAUL VASANTHAKUMAR, J.
Vr
Pre-Delivery Order in
W.P.No.26064 of 2012
2-11-2012