R.Murthy v. The University of Madras Chepauk, Chennai-600005

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.03.2011CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.6149 of 2010and M.P.Nos.1 and 2 of 2010R.Murthy ..PetitionerVs.1.The University of Madras Chepauk, Chennai-600005 Rep. by the Registrar2.Dr.L.V.Uvaraj3.The Principal Presidency College Autonomous Chennai-600 005..RespondentsPrayer : Petition under Article 226 of the Constitution of Indiapraying for a Writ of Certiorarified Mandamus calling for the recordsculminating in the impugned letter Ref.VI/ELAG 2KB/Aff Coll/0-209/493dated 26.10.2009 letter dated 06.11.2009 addressed by the thirdrespondent to the first respondent declaring the second respondent ashaving been elected to the Academic Council of the first respondentquash the same and direct the first respondent to notify and conductthe elections afresh to a vacancy to the Academic Council to befilled from among the eligible teachers of Presidency College. For Petitioner :: Mr.S.Namasivayam For respondents :: for R1 :: Ms.G.Thilakavathy for R2 :: Mr.A.Palaniappanfor R3 :: Mr.A.Suresh, Govt.AdvocateO R D E R The petitioner is a member of the teaching staff in the thirdrespondent college. The third respondent college is an autonomouscollege granted autonomy by the University of Madras. In the presentwrit petition, the petitioner seeks to quash the election and the https://hcservices.ecourts.gov.in/hcservices/ declaration of second respondent as having been elected to theAcademic Council of the first respondent-University of Madrasrepresenting the constituency formed out of the third respondentcollege. 2. The grievance of the petitioner was that electionnotification calling for nomination for the membership of theacademic council from the constituency of the third respondentcollege had not been properly notified as per the statute governingsuch elections. It was deliberately held during the vacation of thecollege. Hence in the absence of proper notification of election,the election held has to be set aside and fresh elections had to beordered by this court. 3. Private notice was ordered in this writ petition. Pursuantto the private notice, the first respondent University had filed acounter affidavit dated 23.07.2010. In the counter affidavit, it isstated that the University has drawn election program and sent thesame to 53 affiliated colleges for conducting election as per theschedule and no exclusive arrangement can be made to any college.Therefore, the information received by the University revealed thatthe Principal in-charge of the college had duly displayed theelection notification on the college notice board and also intimatedthe voters through circular to all the departments on 27.10.2009 and28.10.2009. Therefore, there is no case for conducting any freshelection. 4. The third respondent-Principal had filed a counter affidavitdated Nil (May 2010) stating that he had published electionnotification as per the election schedule sent by the University andeven circular was issued by him to all the departments. It isfurther stated that Heads of department of College, who belonged toan association in which the petitioner had represented had signed theelection circular and the election has been conducted as per theschedule. 5. The elected candidate viz., the second respondent, who hadalso become a syndicate member had also filed a counter affidavitdated 19.04.2010. In the counter affidavit, it was averred that thereis proper publicity in terms of election and he had filed duenomination. Since there was no opposing candidate, he has beendeclared elected for the Academic Council. 6. In the light of the factual background, it is seen thatwhether any case is made out for setting aside the election of thesecond respondent who has been elected as a member of the AcademicCouncil representing the third respondent college. 7. The petitioner had not sent any objection after the election.On the contrary, he relies upon a petition sent by teachers of the https://hcservices.ecourts.gov.in/hcservices/ college found in page 10 of the typed set of papers filed in supportof the writ petition dated 02.12.2009. In that, the petitioner isnot a signatory though signatures of 14 teachers are found. Even thesecond objection dated 07.12.2009 was sent only by an Association.It must be noted that election schedule fixed for the college hadfixed the date of receipt of nomination as 06.12.2009. In case ofcontest, the election was fixed on 04.12.2009 and votes were to becounted on 04.12.2009 itself. In the present case, if the petitioneris aggrieved over the improper conduct of elections, the MadrasUniversity Act, 1923 more particularly Section 41 provides for asettlement of disputes with reference to constitution of anyUniversity authority. If any question arise whether any person hasbeen duly elected or nominated as or is entitled to be a member ofany authority (or other body) of the University, the question shallbe referred to the Chancellor whose decision thereon shall be final.In the present case, the Chancellor of the University is the Governorof Tamil Nadu. 8. Pursuant to the said provision, statutes have been framed forraising disputes in Chapter XIX of the statutes relating to theelection to the authorities of the University. Rule 8 provides forObjections to elections shall be made in writing and shall beforwarded to the Vice-Chancellor so as to reach him within sevenclear days after the declaration of the results of the election. 9. In the present case, neither the petitioner nor any aggrievedteacher have sent representations to the authorities provided underthe Act. In such circumstances, whether this court under Article 226of the Constitution of India can entertain such a objection of thepetitioner is the only question to be considered. Hence, it isnecessary to refer to the judgment of the Supreme Court in the caseof Gujarat University Vs. N.U.Rajgru and Others reported in 1987(Supp.) SCC 512. In that case, the Hon'ble Supreme Court construedprovisions of Section 58 of the Gujarat University Act, 1949, whichis almost identically worded as that of Section 41 of the presentAct, of course, with slight modification. 10. The Hon'ble Supreme Court held in paragraph 6 as follows:-"6. It is well settled that where a statute providesfor election to an office, or an authority or institutionand if it further provides a machinery or forum fordetermination of dispute arising out of election, theaggrieved person should pursue his remedy before the forumprovided by the statute. While considering an electiondispute it must be kept in mind that the right to vote,contest or dispute election is neither a fundamental nor acommon law right, instead it is a statutory right regulatedby the statutory provisions. It is not permissible toinvoke the jurisdiction of the High Court under Article 226 https://hcservices.ecourts.gov.in/hcservices/ of the Constitution bypassing the machinery designated bythe Act for determination of the election dispute.Ordinarily the remedy provided by the statute must befollowed before the authority designated therein. Butthere may be cases where exceptional or extraordinarycircumstances may exist to justify bypassing thealternative remedies. In the instant case, there existedno circumstance justifying departure from the normal ruleas even the challenge to the validity of Statute 10 was notpressed by the respondents before the High Court."11. The said judgment of the Supreme Court came to be referredand followed in respect of an election to Bharathiar University,another University in Tamil Nadu vide judgment of a Division Bench ofthis Court presided by A.K.Ganguly, C.J., (as he then was) in thecase relating to The Vice Chancellor, Bharathiar University,Coimbatore-641 045 Vs B.Markandan reported in 2009 W.L.R.6. Afterreferring to the above said judgment, the Bench in paragraph 22 hadobserved as follows:-"22. For the reasons aforesaid, we are of the opinionthat the learned Judge of the writ court should not haveentertained the writ petition and by entertaining the writpetition, the judgment which was delivered by the learnedJudge was not done on a proper exercise of jurisdictionunder Article 226, in the facts and circumstances of thecase. As such the judgment of the learned Judge is setaside. The appeals are allowed. "12. In the light of the factual matrix and binding legalprecedents, no case is made out. Accordingly, the writ petitionstands dismissed. 13. M.P.No.2 of 2010 was filed by another teacher to get himselfimpleaded in the writ petition, since the main writ petition itselfhad been dismissed and as he had not chosen to file separate writpetition on the merits of the matter, this court is not inclined toentertain M.P.2 of 2010. Hence, the same stands dismissed.M.P.No.1 of 2010 also stands closed. No costs. Sd/-Asst. Registrar//true copy//Sub Asst.Registrarnvsri https://hcservices.ecourts.gov.in/hcservices/ To1.The Registrar University of Madras Chepauk, Chennai-600005 1 cc to M/s.G.Thilakavathi, Advocate, Sr.No.189891 cc to Mr.A.Palaniappan, Advocate, Sr.No.200391 cc to Mr.D.Nagasaila Advocate, Sr.No.194991 cc to Government Pleader, Sr.No.19300W.P.No.6149 of 2010RS {CO}TP/6.4.2011.