IN THE HIGH COURT OF KERALA AT ERNAKULAM

 C.N. Ramachandran Nair and B.P. Ray, JJ.

WP (C) No. 5794 of 2011(Y)

Decided On: 04.03.2011

Dr. K.A. Andrew

Vs.

The Vice Chancellor, University of Kerala, Tvm and Ors.

Head Note:-

Kerala University Act, 1974 - Section 22(1) - Syndicate members - Term of office - The entitlement or disability of a person for successive membership in the Syndicate under the fourth proviso to Section 22(1) has to be decided by keeping in mind the entitlement of a person to become a member for two successive terms of four years each, that is for a total period of 8 years.

Held: So much so, membership in succession has to be taken only with reference to elected or nominated membership for the full period of four years. In other words, the interim arrangement by the Government constituting Syndicate for a short period on account of failure to hold election during such period should not be treated as tenure of office of the Syndicate for the purpose of eligibility or disability for continuation of membership for the third term under the fourth proviso to Section 22(1) above referred. So much so, we are of the view that University rightly has not counted the short period of one and a half years of the Syndicate formed by the Government through nomination under the Ordinance, 2005 and treated the Petitioner as successively served two terms in the Syndicate that is from 2000--2004 and 2006--2010 disentitling him to contest for the third term by virtue of the fourth proviso to Section 22(1) referred above.

For Petitioner: John Joseph Vettikad, Adv.

For Respondents: M. Rajagopalan Nair, SC, Kerala UTY

Chronological List of Cases Cited:

1. Ramakrishna Pillai Vs. Joint Registrar, 1993 (1) KLT 362
2. Sreekantan Nair Vs. Chancellor, University of Kerala, ILR (1982) Ker. 103

J U D G M E N T

C.N. Ramachandran Nair, J.

1. Writ Petition is filed challenging Ext.P9 issued by the Registrar of Kerala University rejecting the nomination submitted by the Petitioner for election to the Syndicate of the University for the reason that Petitioner having been a member of the Syndicate for two terms in succession is not eligible to become member of the Syndicate for another term by virtue of the fourth proviso to Section 22 of the Kerala University Act, 1974, hereinafter called the "Act". We have heard counsel appearing for the Petitioner and senior counsel Sri. K. Gopalakrishna Kurup, appearing for the University.

2. Petitioner is Principal of a self-financed College affiliated to the Kerala University. He got first elected to the Senate of the University and therefrom representing Principals' constituency, he got elected as member of the Syndicate for two terms commencing from 2000-04 and from 2006-2010. Admittedly a person who has been a member of the Syndicate for two terms in succession is not eligible to contest election for the third succeeding term. This prescription is provided under the fourth proviso to Section 22(1) of the Act. However, the Petitioner's case is that on expiry of the term of Senate and Syndicate in 2004, when he was a member, election could not be held in time and therefore Government constituted Senate and Syndicate for Kerala and Calicut Universties through nominations by virtue of the powers vested in the Government in the University Laws (Amendment) Ordinance, 2005. The nominated members of the Senate and Syndicate served around one and a half years and on election to the Senate and Syndicate in accordance with the statutory provisions, their tenure ceased and new Senate and Syndicate took over. The Petitioner who was elected to the Senate and Syndicate for the term 2000-04 was reelected for the term 2006-10. Since there is no prohibition for successive membership in Senate and Syndicate, Petitioner continued to be as such, and for the third term he filed nomination for election to the Syndicate from the Principals' constituency which is rejected by the Returning Officer, namely, the Registrar of the University vide Ext.P9 holding that Petitioner having completed two terms in succession as member of the Syndicate is not eligible to contest election for the third term in succession. While the case of the Petitioner is that the period during which the nominated members constituted the Syndicate will create a break between 2004-06 and so much so, he has not served two terms in the Syndicate in succession, the case of the University is that interim arrangement made by the Government for continuation of the functioning of the Senate and Syndicate cannot be treated as one term of office of Senate or Syndicate referred to in the fourth proviso to Section 22(1) and so much so two terms served by the Petitioner as Syndicate member from 2000-04 and 2006-10 should be treated as successive holding of office of Syndicate for two terms. University's counsel relied on single Bench judgment of this Court in Sreekantan Nair v. Chancellor, University of Kerala ILR (1982) 1 Ker. 103. Counsel for the Petitioner has relied on another single Bench judgment of this Court in Ramakrishna Pillai v. Joint Registrar (1993) 1 K.L.T. 362.

3. In order to consider rival contentions, we have to refer to relevant provision of the Act, which is as follows:

22. Term of Office of members of Syndicate:

(1) Members of the Syndicate, other than ex-officio members, shall hold office for a term of four years from the date of their election or nomination.

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 of 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 the term of the Syndicate shall be co-terminus with the term of the Senate.

Provided also that no person other than an ex-officio member shall be eligible to hold office for more than two terms in succession.

....

Relying on Sub-section (1) of Section 22 extracted above, counsel for the Petitioner contended that two terms of membership in Syndicate in succession which disqualifies a member from contesting for the third term can be through election or nomination. Therefore according to him, after expiry of his first term as elected member of the Syndicate, there was another Syndicate created through nominations which is the immediately successive term of Syndicate from 2004, however short it may be, and therefore the term of office held by him as Syndicate member from 2006-10 should not be treated as holding office as Syndicate member in succession to the previous term, which was from 2000-04. However, the contention raised by counsel for the University is that short tenure of the Syndicate for one and a half years from 2004 till election was held in 2006 should not be treated as statutory term of office of the Syndicate and so much so, next full term of four years for which election was held in 2006 is to be taken as membership in succession for the second term. The controversy arising could be resolved by finding out the nature of constitution of Senate and Syndicate by the Government under the provisions of the Ordinance above referred to serve short period after expiry of the term of office of these bodies in 2004 till election was held in 2006. We have therefore to refer to relevant provision of the Ordinance in 2005 which is Clause (8) and the same is extracted hereunder for easy reference:

(8) Special provision for alternate arrangements temporarily of the Senate and Syndicates of the Kerala and Calicut Universities:

(1) Notwithstanding anything contained in the Kerala University Act, 1974 (17 of 1974) or the Calicut University Act, 1975 (5 of 1975) or in any Statute, regulation, ordinance or rules made thereunder or in any judgment, decree or order of the Court, in the case of the Syndicates of the Kerala and Calicut Universities, the term of office which expires on the date of commencement of this ordinance, the functions of the Senate and Syndicate of the said Universities shall be exercised by a body nominated by the Government under Sub-section (2) for a period of six months or till the reconstitution of the Senate and Syndicate in accordance with the provisions of the Kerala University Act, 1974 (17 of 1974) and the Calicut University Act, 1975 (5 of 1975) whichever is earlier.

What is clear from the above clause is that arrangement of nomination made by the Government is for an indefinite and short period commencing from the expiry of term of office of Senate and Syndicate in 2004 for six months or till reconstitution of the Senate and Syndicate in accordance with the provisions of the Statute, that is through election. The Senate and Syndicate formed through nominations by the Government under the above clause remained there for one and a half years. The question to be considered is whether the tenure of the term of office of Syndicate which is created through nominations under the above clause should be treated as term of office within the meaning of fourth proviso to Section 22(1), to treat that term as next immediately succeeding term of office of the Syndicate, which is the contention of the Petitioner. What we notice from the fourth proviso to Section 22(1) above stated is that no person shall be eligible to hold office as member of Syndicate for more than two terms in succession. The term of office as Syndicate member stated in the main part of Section 22(1) is four years. Section 22(1) read with fourth proviso thereto entitles a person to hold office of Syndicate member in succession for two terms, that is for full 8 years. Leaving aside the situation arising in the Petitioner's case, if we accept Petitioner's contention that short period of membership as nominated member in the Syndicate created by the Government for period during which no election could be held is to be treated as full tenure of office, what would have happened is that a person, who continued as elected member of the Syndicate for a period of four years from 2000-04 if nominated during the short period to become a member of the Syndicate by the Government in exercise of powers vested in it under Clause (8) of Ordinance, 2005, would have been disabled from contesting the election for the next term that is for the period 2006-10. We feel if this interpretation is accepted, this will work as injustice to such persons who could not complete membership in the Syndicate for two terms, that is for 8 years, for which period he was eligible, but for the nomination by the Government as member of Syndicate for a short period. The entitlement or disability of a person for successive membership in the Syndicate under the fourth proviso to Section 22(1) has to be decided by keeping in mind the entitlement of a person to become a member for two successive terms of four years each, that is for a total period of 8 years. So much so, membership in succession has to be taken only with reference to elected or nominated membership for the full period of four years. In other words, the interim arrangement by the Government constituting Syndicate for a short period on account of failure to hold election during such period should not be treated as tenure of office of the Syndicate for the purpose of eligibility or disability for continuation of membership for the third term under the fourth proviso to Section 22(1) above referred. So much so, we are of the view that University rightly has not counted the short period of one and a half years of the Syndicate formed by the Government through nomination under the Ordinance, 2005 and treated the Petitioner as successively served two terms in the Syndicate that is from 2000-04 and 2006-10 disentitling him to contest for the third term by virtue of the fourth proviso to Section 22(1) referred above. The decision in Ramakrishna Pillai's case relied on by the Petitioner which is in the context of Co-op. Societies Act, does not have any relevance to the facts of this case. Consequently we uphold the impugned order Ext.P9 issued by the Returning Officer and dismiss the Writ Petition.