Dr. Vinod P vs The University Of Kerala
2023 Latest Caselaw 5494 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
         TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945
                        WP(C) NO. 14968 OF 2023
PETITIONER/S:

            DR. VINOD P
            AGED 52 YEARS
            S/O. K. PRABHAKARAN PILLAI,
            ASSISTANT PROFESSOR, DEPARTMENT OF ZOOLOGY,
            NSS COLLEGE, PANDALAM, PATHANAMTHITTA DISTRICT - 689501.
            RESIDING AT VINOD VILLA, SOUTH MANKUZHI,
            PULLIKANAKKU P.O., KAYAMKULAM,
            ALAPPUZHA, PIN - 690537
            BY ADVS.
            NISHA GEORGE
            A.L.NAVANEETH KRISHNAN


RESPONDENT/S:

     1      THE UNIVERSITY OF KERALA
            SENATE HOUSE CAMPUS, PALAYAM,
            THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR,
     2      THE VICE CHANCELLOR
            THE UNIVERSITY OF KERALA,
            SENATE HOUSE CAMPUS, PALAYAM,
            THIRUVANANTHAPURAM, PIN - 695034
     3      THE RETURNING OFFICER FOR SENATE ELECTION
            REGISTRAR, UNIVERSITY OF KERALA,
            SENATE HOUSE CAMPUS, PALAYAM,
            THIRUVANANTHAPURAM., PIN - 695034
            BY ADVS.
            THOMAS ABRAHAM, SC
            Thomas Abraham


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14968 OF 2023        ..2..




                          JUDGMENT

The petitioner is working as an Assistant Professor in

the Department of Zoology at N.S.S. College, Pandalam, a

College affiliated to the University of Kerala (for short 'the

University'). He is an elector included in the electoral roll of

the constituency of Teachers of Private Colleges for election

to the Senate of the University. The election for

reconstitution of the Senate of the University was notified by

the Returning Officer, the Registrar of the University, the 3 rd

respondent, on 03.04.2023 vide Ext. P1 in terms of the

provisions of the Kerala University (Conduct of Elections to

Various Authorities or Bodies) First Statutes, 1974

(hereinafter referred to as 'the Election Statutes' for short).

As per Ext. P1, the last date for receipt of nominations in

respect of teachers of private colleges was 18.04.2023. The

date of scrutiny of nominations in respect of the said WP(C) NO. 14968 OF 2023 ..3..

constituency was 19.04.2023 and the date of publication of

final list of candidates was 25.04.2023. The date notified for

poll is 20.06.2023.

2. The petitioner submitted nomination for election to

the Senate under item No. (6) of Section 17 of the Kerala

University Act, 1974 (Teachers of private college

constituency) on 13.04.2023. Ext.P2 is the copy of one of the

three sets of nomination papers submitted by the petitioner.

At the time of scrutiny of nominations on 19.04.2023,

objection was raised on behalf of other candidates that the

nomination of the petitioner is not duly filled as it does not

bear any date and it is invalid. The Returning officer,

accordingly, rejected his nomination. The petitioner

submitted Ext.P3 letter dated 19.04.2023 seeking reasons for

the rejection of his nomination. By Ext.P4, the Returning

Officer furnished a reply to the petitioner stating that the

three sets of nomination papers filed by him were not duly WP(C) NO. 14968 OF 2023 ..4..

filled and there was objection by other candidates against

acceptance of invalid nomination and hence, his nomination

was rejected as provided under Statute 37 of the Election

Statutes. The petitioner, therefore, approached the Vice

Chancellor of the University, the 2 nd respondent, by

submitting Exts.P5 and P6 representations. However,

pending those representations, the Returning Officer

published the list of candidates validly nominated vide Ext.P7

notification dated 25.04.2023. The petitioner submitted yet

another representation to the Vice Chancellor by e-mail on

27.04.2023. Since no action was taken thereon by the Vice

Chancellor, the petitioner has filed this writ petition seeking

direction to quash Ext.P4 and to include him in the final list

of candidates for the constituency of private college teachers

in the election notified as per Ext.P1.

3. The petitioner contends that the rejection of his

nomination by the Returning Officer is illegal and arbitrary WP(C) NO. 14968 OF 2023 ..5..

and based on political considerations. He states that he has

filed his nomination before the last date notified therefor and

it contains his declaration, signature and is proposed and

seconded by electors in the electoral roll and is a valid

nomination as stipulated by Statute 35. It is contended that

the nomination cannot be rejected on the ground that it does

not bear any date, particularly when the respondents do not

have a case that the nomination was filed after the last date

notified for filing the nominations. It is further contended

that the nomination can be rejected only for reasons provided

in Statute 37 and the said Statute does not provide for

rejection of nomination on the ground that the nomination

paper does not bear date.

4. A statement has been filed on behalf of the

respondents stating that the nomination of the petitioner was

rejected during the scrutiny of nominations due to

submission of incomplete sets of nomination papers. The WP(C) NO. 14968 OF 2023 ..6..

candidates/agents present at the time of scrutiny of

nominations submitted written objections against the

acceptance of incomplete nomination papers of the petitioner

and the Returning Officer considered the objections and

found that the candidate, the proposer and the seconder had

omitted to write date on the nomination papers and rejected

the nomination in terms of the Election Statute.

5. Heard Sri.A.L.Navneeth Krishnan, learned counsel for

the petitioner and Sri.Thomas Abraham, learned Standing

Counsel appearing for the respondents.

6. Referring to Statute 35, Sri. Navneeth Krishnan,

learned counsel for the petitioner, submits that the petitioner

had presented 3 sets of nomination papers before the last

date notified for receipt of nominations and all three sets of

nomination papers contain the signature of the

candidate/petitioner, the proposer and the seconder and the

nomination satisfies all the requirements of a valid WP(C) NO. 14968 OF 2023 ..7..

nomination as provided under Statute 35. He further submits

that the absence of date in the nomination papers is

immaterial as the Returning Officer has no case that the

petitioner has filed the nomination papers after the last date

notified for filing nominations. Sri. Navneeth contends that

the omission to write the date in the nomination paper is not

a material defect for rejection of nomination and a

nomination can be rejected only on grounds provided in

Statute 37. Sri. Navneeth refers to the decision of this Court

in Vadekkevila Sasi v. Cochin University of Science &

Technology [2023 (2) KHC 332] and the decisions referred

to therein and submits that this Court has held that

nomination for election cannot be rejected on technical

grounds and in similar situations, this Court has interfered

with the rejection of nomination for election to the Senate.

7. Sri. Thomas Abraham would submit that the absence

of date in all the three sets of nomination papers is a material WP(C) NO. 14968 OF 2023 ..8..

defect which entails rejection of the nomination. Referring to

Statute 35 of the Election Statutes, he submits that the

nomination shall be in the prescribed form and shall contain

the signature of the proposer, the seconder, and a declaration

of the candidate with his signature. Inviting my attention to

Ext. P2 nomination form, Sri. Thomas Abraham submits that

neither the proposer nor the seconder had put date in the

relevant columns of the nomination and the

candidate/petitioner has not put date in the declaration. He

submits that the relevant portions in the nomination paper

where the date has to be filled by the proposer, the seconder

and the candidate are kept blank, and the nomination is

incomplete and there is no valid declaration by the candidate

and Ext. P2 does not satisfy the requirements of a valid

nomination. He also points out that the persons in Ext. P7 list

of candidates validly nominated are necessary parties to the

writ petition in the nature of the contentions of the petitioner.

WP(C) NO. 14968 OF 2023 ..9..

8. Section 17 of the Kerala University Act, 1974 deals

with Senate and provides that it consists of ex-officio

members, elected members, life members and other

members. Section 18 deals with the reconstitution of the

Senate and Section 33 of the Act deals with disqualification

for membership in the Senate. The election of members to

the Senate of Kerala University is regulated by the Kerala

University (Conduct of Elections to Various Authorities or

Bodies) First Statutes, 1974. Statute 4 provides that the Vice-

Chancellor shall be responsible for the conduct of all

elections held by the University and shall have the power to

prescribe the form of nomination paper, ballot paper etc.

Statute 3 of the Election Statutes deals with the procedure

for conduct of election and Statute 3 (3) provides that

election of members to the Senate under item No. (6) of

Section 17 of the Act (Teachers of private college

constituency) shall be held without postal ballot and the WP(C) NO. 14968 OF 2023 ..10..

procedure for election as provided under Statutes 35 to 41

shall mutatis mutandis apply for election to Senate under

item No. (6) of Section 17 of the Act. Statute 29 deals with

Election Disputes and provides that an election petition

calling in question any election shall be made in writing and

shall be forwarded to the Vice-Chancellor with the prescribed

fee remitted to the credit of the Kerala University Fund, so as

to reach him within seven days of the declaration of the

result of the election. An election to the Senate can be called

in question only after the election.

9. Statute 35 of the Election Statutes deals with

presentation of nomination paper and requirements for a

valid nomination. Statutes 35 to 37 read thus:

35. Presentation of Nomination paper and requirements for a valid Nomination:-

(1) On or before the date appointed under Statute 34, each candidate shall either in person or by his proposer deliver to the Returning Officer at the place specified in this behalf in the notification issued under Statute 34 a nomination paper in the prescribed form, WP(C) NO. 14968 OF 2023 ..11..

which shall, on application, be supplied free of cost by the Returning Officer to any elector whose name is in the electoral roll.

(2) Every nomination paper shall be proposed by an elector whose name is in the electoral roll and seconded by another elector of the concerned constituency with his signature. The candidate shall sign a declaration on it expressing his willingness to serve on the University authority or body, as the case may be, if elected.

He shall also make a statement to the effect that he is not already a member of such authority or body or if he is already a member, in such capacity, his term of office would expire before the membership for which he is seeking election takes effect. The nomination paper shall reach the Returning Officer within the date and hour fixed, which shall not be earlier than 14 clear days after the date of publication of the notification in the newspapers.

36. Scrutiny of Nominations:- All nomination papers received through the post or deposited in the box provided for the purpose in the office of the Returning Officer within the prescribed hour on the prescribed date shall be scrutinised by the Returning Officer, The candidate or one of his representatives who shall be appointed in writing by him and approved by the Returning Officer may be present at WP(C) NO. 14968 OF 2023 ..12..

the time of scrutiny of nominations.

37. Decisions of the Returning Officer on Objections:-The Returning Officer shall then examine the nomination papers and decide all objections which may be made at the time to any nomination and may, either on such objection, or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination, on any of the following grounds-

(i) That the candidate is ineligible for election under section 33 of the Act subject to the exceptions mentioned therein;

(ii) That the seconder is a person whose name is not registered in the electoral roll;

(iii) That the signature of the candidate or seconder is not genuine or has been obtained by fraud.

The decision of the Returning Officer, shall, in each case be endorsed by him on the nomination paper in respect of which such decision is given.

(emphasis supplied)

10. The form of nomination paper prescribed by the

Vice-Chancellor in terms of Statute 4(1) (b) is reproduced

hereunder:

 WP(C) NO. 14968 OF 2023                       ..13..

                               UNIVERSITY OF KERALA

ELECTION TO THE SENATE BY THE TEACHERS OF PRIVATE COLLEGES (Under Section 17 - Elected Members (6) of the Kerala University Act, 1974) NOMINATION PAPER Name and address of the Candidate ::

       as in the Electoral Roll
       Number of the Candidate in the                                 ::
       Electoral Roll

------------------------------------------------------------------------------------------

       Name and Address of the Proposer                               ::
       Number of the Proposer in the                                  ::
       Electoral Roll
       Date                                              Signature of the proposer

-----------------------------------------------------------------------------------------

       Name and Address of the Seconder                               ::
       Number of the Seconder in the                                  ::
       Electoral Roll
       Date                                              Signature of the Seconder

------------------------------------------------------------------------------------------

CONSENT AND AFFIDAVIT OF THE CANDIDATE

1. I agree to serve on the Senate, if elected. *2. I am not already a member of the Senate.

*3. I am already a member of the Senate, but my term of office as such will expire before the membership for which I am seeking election, takes effect.

Date Signature of the Candidate

------------------------------------------------------------------------------------------ *Strike off 2 or 3 whichver is not applicable. Note All nomination papers will be scrutinized by the Registrar or other officers authorized by the Vice- Chancellor. Candidates or one representative of each candidate, appointed in writing by him, may be present at the time of the scrutiny of nominations.

WP(C) NO. 14968 OF 2023 ..14..

The statutory nomination form requires the proposer and the

seconder to provide their names, addresses, and respective

electoral roll number with signature and date on the

nomination form. The candidate is required to sign a consent

and affidavit in terms of Statute 35 (2), with date. Neither

the proposer nor the seconder has put date in Ext. P2

nomination form at the given place. The candidate/ petitioner

has not put date while signing the consent statement and the

affidavit. It is submitted that the petitioner had submitted

three sets of nomination papers, and the columns to write the

date is not filled up by the candidate, the proposer and the

seconder in any of these three sets of nomination papers. The

election to the Senate is regulated by Statutes. Every

intending candidate for election has to formally offer his

candidature in a form prescribed for the purpose. A

nomination form for election to Senate under item No. (6) to

Section 17 is prescribed in terms of Statute 4(1) (b). Statute WP(C) NO. 14968 OF 2023 ..15..

35 provides for requirements for a valid nomination. The date

borne on the nomination paper undoubtedly is proof of the

fact that the nomination has been filed after the publication

of the election notification and before the last date notified

for receipt of nominations. The date to be put in the

nomination paper by the proposer/seconder and the

candidate assumes importance because there are chances of

the signature of the proposer/seconder being obtained in

blank nomination paper downloaded from the website prior

to the date of notification for election. A nomination paper

delivered to the Returning Officer without any date by the

candidate, the proposer, and the seconder does not satisfy

the requirements of a valid nomination. It is a nomination

presented with defect of a substantial character. On a perusal

of Ext. P2, it can be seen that there is also no 'statement' by

the candidate to the effect that he is not already a member of

the Senate or if he is already a member, whether his term of WP(C) NO. 14968 OF 2023 ..16..

office would expire before the membership for which he is

seeking election, takes effect. The nomination form provides

for striking off whichever is not applicable. In Ext. P2, the

petitioner has not struck off either. Accordingly, there is no

'statement' of the candidate in the nomination paper as

provided under Statute 35 (2). Ext. P2 is not a valid

nomination. If the contention of the petitioner that the

nomination can be rejected only on the grounds stated in

Statute 37 is accepted, a nomination 'proposed' by a person

who is not an elector in the electoral roll of any of the

constituencies cannot be rejected, as Statute 37(ii) provides

for rejection of nomination only where the 'seconder' is not

registered in the electoral roll. Statute 35 (2) provides that,

every nomination paper shall be 'proposed' by an elector

whose name is in the electoral roll and 'seconded' by another

elector of the concerned constituenc y. Statute 35 provides for

the requirements for a valid nomination and a nomination WP(C) NO. 14968 OF 2023 ..17..

which does not satisfy the requirements of Statute 35 can be

rejected and these are grounds in addition to the grounds for

rejection of nomination provided in Statute 37. The

nomination of the petitioner does not satisfy the

requirements for a valid nomination and has been rightly

rejected by the Returning Officer. I do not find any reason to

interfere with the decision of the Returning Officer in

rejecting the nomination.

11. The facts and situations in Vadakkevila Sasi (supra)

and the cases referred to therein are not similar and the said

decisions will not be of any help to the petitioner.

12. A serious candidate for an election, who is keen on

contesting, cannot leave the dates in all three sets of

nomination papers blank. At the same time, when the

nomination paper is delivered to the Returning Officer, the

Returning Officer can check whether the nomination paper

has been properly filled and duly completed. If such defects WP(C) NO. 14968 OF 2023 ..18..

are not cured despite bringing them to the notice of the

candidate, the same can be rejected at the time of scrutiny

for not satisfying with the requirements for valid nomination.

With the above observation, the writ petition is

dismissed.

Sd/-

                              MURALI PURUSHOTHAMAN
                                      JUDGE
SB
 WP(C) NO. 14968 OF 2023     ..19..

                           APPENDIX
PETITIONER EXHIBITS
Exhibit-P1     TRUE COPY OF THE NOTIFICATION NO.

ELECTION/SENATE/ RECONSTITUTION/2023 DATED 03.04.2023 ISSUED BY THE RESPONDENT UNIVERSITY. Exhibit-P2 TRUE COPY OF THE NOMINATION SUBMITTED BY THE PETITIONER DATED NIL Exhibit-P3 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 19.04.2023.

Exhibit-P4 TRUE COPY OF THE LETTER NO.

ELECTION/SENATE/26972/2023 DATED 19.04.2023 ISSUED BY THE RESPONDENT UNIVERSITY.

Exhibit-P5 TRUE COPY OF THE REPRESENTATION DATED 19.04.2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

Exhibit-P6 TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT ALONG WITH ONLINE PAYMENT RECEIPT DATED 23.04.2023 Exhibit-P7 TRUE COPY OF THE NOTIFICATION NO.

ELECTION/SENATE/RECONSTITUTION/2022-23 DATED 25.04.2023 ISSUED BY THE UNIVERSITY.

Exhibit-P8 TRUE COPY OF THE EMAIL COMMUNICATION DATED NIL SENT BY THE PETITIONER TO THE 2ND RESPONDENT.