Madras University Teacher's Association, Tower Clock Building,Chepauk Campus,Chennai-5 v. The University of Madras, Centenary Buildings, Chepauk, Chennai -5 & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 2-11-2012CORAM:THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.26064 of 2012M.P.Nos.1 & 2 of 2012Madras University Teacher's Association,Tower Clock Building,Chepauk Campus,Chennai-5,rep.by its General SecretaryG.Ravindran...PetitionerVs.1.The University of Madras,Centenary Buildings,Chepauk, Chennai -5,rep.by its Vice Chancellor2.The University of Madras,Centenary Buildings,Chepauk, Chennai – 5rep.by its Registrar3.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....RespondentsPrayer:Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of Certiorarified Mandamus calling forthe records relating to the first and second respondent dated23.7.2012 in sofar as the election of the 4th respondent is concernedand set aside the nomination of the 4th respondent to the SearchCommittee and consequently quash the notification/order of the 3rdrespondent dated 10.9.2012 vide G.O.(1D)No.259, Higher Education (H1) https://hcservices.ecourts.gov.in/hcservices/ Department, and direct the respondents 1 and 2 to hold the electionto nominate a member from the Syndicate to serve as a Member ofSearch Committee.For Petitioner: Mr.S.VijayakumarFor Respondents 1&2: Mrs.G.ThilagavathyFor 3rd Respondent: Mr.S.Diwakar Additional Govt. PleaderFor 4th Respondent: No appearanceO R D E RThis writ petition is filed to quash the order of the respondents1 and 2 dated 23.7.2012 insofar as the election of 4th respondent isconcerned and set aside the nomination of 4th respondent to the SearchCommittee and consequently quash the notification issued by the thirdrespondent in G.O.(1D)No.259 Higher Education Department, dated10.9.2012 and direct the respondents 1 and 2 to hold election tonominate a Member from the Syndicate to serve as Member of the SearchCommittee.2.The petitioner is the Madras University Teachers'Association, registered under the Societies Registration Act, bearingRegistration No.37/1977, representing the Teachers of the MadrasUniversity.3.The second respondent, by notification, convened a specialmeeting of the Syndicate on 20.7.2012 at 11.00 a.m. fixing an agendato consider nomination of a person by the Syndicate to serve on theSearch Committee to be constituted, which has to recommend a panel ofthree names to the Chancellor for the appointment of Vice-Chancellorin accordance with Section 11(1)(ii) of the Madras University Act,1923, as amended subsequently. The present Vice-Chancellor has takencharge 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 ofnames prior to the expiry of his term. According to the petitionerAssociation, many members of the association are serving as SyndicateMembers of the University and it expected that there will be anunanimity in nominating a member to the Search Committee and if thereare more than one nomination, election will have to be conducted bysecret ballot.4.The Madras University Act, 1923, stipulates procedures toconduct election to various bodies. The University is required tofollow Chapter XIX Clause 15 of the Madras University Act, 1923 forthe conduct of elections. Clause 15(3) and (4) states that allmembers present in the meeting shall be entitled to vote and no vote https://hcservices.ecourts.gov.in/hcservices/ shall be given by proxy. The Returning Officer shall ascertain thatthe person desiring to vote has not already voted. The ballot papershall contain names of all candidates arranged in alphabetical order.The second respondent convened the special meeting of the Syndicateto elect/nominate a member to include in the Search Committee and theSyndicate contains seven ex-officio members; six elected members bythe Senate from among its members; five members elected by theAcademic Council; three members nominated by the Chancellor; threeUniversity Professors from among the Heads of Department of Study andResearch; One University Reader, nominated by the Vice-Chancellor byrotation 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 attendthe meeting of the Syndicate for any reason, he may depute anyofficer of his department not lower in rank than that of the DeputySecretary to Government, to attend the meeting, which means, ex-officio members are given liberty to nominate proxy to attend themeeting and they are not entitled to vote in the event of election.5.In the meeting held on 20.7.2012, the Vice-Chancellorchaired the meeting. One ex-officio member viz., Additional ChiefSecretary, Higher Education Department, Government of Tamil Nadu,proposed the nomination of the 4th respondent to serve in the SearchCommittee as nominee of the Syndicate, which was seconded by anotherex-officio member viz., Director of Technical Education. OneProfessor S.Sathikh's name was proposed by one of the SyndicateMember viz., Dr.M.Michael Aruldhas, which was seconded byDr.G.Ravindran. As there was two contenders among the members,conduct of election was necessitated. The election was conducted bysecret ballot and it was declared by the first respondent that the 4threspondent was elected as nominee of the Syndicate to serve on theSearch Committee and the said conduct of election is virtuallychallenged in this writ petition contending that among 27 members ofthe Syndicate, seven members are ex-officio members and as some ofthe ex-officio members were unable to attend the meeting, theynominated proxies to attend the meeting. As per Clause 3 of ChapterXIX, all members present at the meeting are eligible to vote and novote shall be given by proxy. According to the petitioner, threeproxies were allowed to vote, which is a statutory violation, whichalso vitiates the election result.6.On coming to know about the voting by proxies, ten membersof the Syndicate recorded their dissent. Three proxy membersattended and voted are the Additional Secretary to Government,Department of Law; the Deputy Director of Department of Health; andthe Director of Legal Studies (in-charge), Chennai. Theobjection/dissent was ignored by the second respondent and the 4threspondent was declared as elected. The only contention of the https://hcservices.ecourts.gov.in/hcservices/ petitioner is that since the proxy members are not entitled to vote,allowing three proxy members to participate in the voting tilted theresult and vitiates the election and therefore the 4th respondent'selection as Search Committee Member is illegal and consequently theGovernment Order issued constituting Search Committee, including the4th 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 contendingthat the constitution of the Search Committee, which is a statutoryCommittee, is contemplated under Clause 2 of Section 11. TheSyndicate nominated one member, one member is nominated by theSenate, and another member is to be nominated by the Chancellor andall the three members will finally recommend the panel of three namesfrom and out of which, one person is appointed as Vice-Chancellorunder the Orders of the Chancellor. Insofar as the conduct ofelection of the authorities of the University is concerned, ChapterXIX Clause 15 deals with the elaborate procedures. According to the2nd respondent, a combined reading of Section 18(aa) and Statute 15(3), any member participating in the meeting can vote and proxieswill attend as a silent spectator. According to the respondents,taking part in the meeting includes right to vote. It is furtherstated in the counter affidavit that the right of the Director ofLegal Studies (in-charge) to vote cannot be disputed as he was givenfull additional charge of the post of Director of Legal Studies, whois also an ex-officio member of the Syndicate and therefore he wouldnot be disqualified to discharge any function. The objection raisedby the dissenting members are also forwarded to the Chancellor, whocalled for report and thereafter only the notification was issuedthrough Government Order and therefore the petitioner is not entitledto file this writ petition and if the petitioner is having anygrievance it can appeal to the Chancellor under Section 41 of theMadras University Act, 1923.8.The learned counsel appearing for the petitioner reiteratedthe contentions raised in the affidavit and relied on the statutoryprovisions by contending that if the proxies are not allowed to vote,the 4th respondent ought not to have been elected as member of theSearch Committee as a Syndicate nominee and by allowing threepersons, who attended the meeting as proxies to vote, has vitiatedthe election and the subsequent nomination as Search Committeemember. The learned counsel also submitted that if a proxy isentitled to vote, the same should be specifically stated in thestatute and for instance, Section 24(4) of the Tamil Nadu Dr.AmbedkarLaw University Act specifically provides voting rights to theproxies, and in this case, in the absence of any specific provisionunder the Madras University Act, 1923 and statutes, the respondents 1and 2 are not justified in permitting the proxies to cast their vote.Therefore, learned counsel prayed that the election/nomination of the4th respondent as Member of the Search Committee and the consequential https://hcservices.ecourts.gov.in/hcservices/ order issued by the Government are to be declared as invalid and fora consequential direction to hold election to nominate a member fromthe Syndicate to serve as member of the Search Committee afresh.9.The learned counsel appearing for the respondents 1 and 2 onthe other hand contended that there is no prohibition to vote byproxies in the election conducted and the procedure contemplated toconduct election to various bodies is not applicable to elect aperson to be nominated as a Member of the Search Committee as thesaid post is not defined as an authority under the Madras UniversityAct, 1923 and the statutes. Thus, there is no illegality inpermitting the proxies to vote during the election held to select aSyndicate nominee.10.I have considered the rival submissions made by the learnedcounsel for the petitioners as well as learned counsel forrespondents 1 and 2 and also the learned Additional GovernmentPleader appearing for third respondent. In spite of service ofnotice to the 4th respondent as early as on 27.9.2012 and affidavit ofservice filed on 5.10.2012, none appeared for 4th respondent.11.The election to nominate one member to the Syndicate of theMadras University to recommend a panel of three names to theChancellor for appointment of Vice-Chancellor is provided underSection 11(1) and (2) of the Madras University Act, 1923. The periodof office of the Vice-Chancellor was to expire on 12.10.2012. Incompliance with the said statutory requirement, for nominating aSyndicate member through election, a special meeting of the Syndicatewas convened on 20.7.2012 at 11.00 a.m. The Syndicate of the MadrasUniversity consist of 27 members, of which seven are ex-officiomembers. The 4th respondent's name was proposed by the AdditionalChief Secretary, Higher Education Department, Government of TamilNadu, which was seconded by the Commissioner of Technical Education,Chennai-25. Prof.S.Sathikh's name was proposed by Dr.M.MichaelAruldoss, Professor and Head of the Department of Hendocrinology,University of Madras, who is a Syndicate member, which name wasseconded by the Professor and Head of Department of Journalism andCommunication viz., G.Ravindran. Out of the seven ex-officiomembers, two of them sent proxies and Prof.Dr.S.Narayanaperumal,Director of Legal Studies (in-charge) also participated and voted asthere was no regular Director of Legal Studies appointed. The twoproxy members were also allowed to vote and their votes were alsocounted during the election and the 4th respondent was declared aselected nominee of the Syndicate to serve in the Search Committee.Ten persons objected the action of the Returning Officer in givingvoting rights to the proxies. The said election of the 4th respondentas nominee of the Syndicate to be in the Search Committee wasobjected by the members of the Syndicate by sending a report beforethe Chancellor on 23.7.2012, pointing out that Chapter XVI-Bpertaining to conduct of election and items 3 and 4 of the University https://hcservices.ecourts.gov.in/hcservices/ of Madras Calendar Volume-I of the Madras University Act, 1923 ex-officio members if are unable to attend the meeting, they can deputemembers, however no vote shall be given by proxy. The AdditionalSecretary to Government of Tamil Nadu Department of Law; the DeputySecretary to Government of Tamil Nadu, Department of Health; and theDirector in charge of Director of Legal Studies, Chennai werepermitted 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 hascalled for remarks, no reply was given to the said objection alreadyraised and ultimately the 4th respondent was nominated as Member ofthe Search Committee through G.O.(1D)No.259 Higher EducationDepartment, dated 10.9.2012.12.The points for consideration in this writ petition are asfollows:(1)Whether allowing the proxies to vote has materially vitiated theelection of the 4th respondent as a nominee of the Syndicate tobeincluded 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 LegalStudies (in charge) was to be treated as Proxy and he cannot beallowed to vote, cannot be countenanced in view of the Full BenchJudgment of this Court reported in 2008 (3) LW 760 (A.Savariar v. TheSecretary, Tamil Nadu Public Service Commission and Another).Dr.S.Narayanaperumal attended the meeting as an ex-officio member inhis official capacity as Director of Legal Studies (in charge). Hewas assigned with full additional charge of the post of Director ofLegal Studies. In the Full Bench Judgment, it is held that 'as perFR.49, the Government may appoint a Government Servant whetherpermanent or officiating, to hold full additional charge or todischarge the current duties of one or more independent posts at onetime as a temporary measure and grant additional pay'. ConsideringFR.49, the Full Bench held thus,"3................ not only the permanentholder of the post but also who is holding thepost as an additional full charge or in hisofficiating capacity can exercise the powers ofthe said post. Likewise, when an Officer isposted as an in-charge, he is holding the saidpost. Necessarily while holding that post, he hasto perform the functions of that post and executethe responsibilities of the said post. Even theterm 'in-charge of a post' means, overall controlof the post or of the Company or of the Firm. Thatmeans, when one is posted as in-charge, he ishaving the overall control of that post whichnecessarily follows the execution of the powers https://hcservices.ecourts.gov.in/hcservices/ and functions of the said post. Unless, contraryintention is expressed by the Government either byway of a statutory provision or by way of anexecutive instruction, an officer who holds thepost in-charge has got the power to discharge thestatutory functions and the responsibilities ofthe said post."(Emphasis Supplied)The Full Bench, for coming to the said conclusion relied on thedecision of the Supreme Court reported in AIR 1996 SC 1729 (GopaljiKanna v. Allahabad Bank). Thus, the Director of Legal Studies (incharge) participated in the Syndicate meeting as an ex-officio memberand not as a proxy, who also cast his vote.14.The Syndicate of the Madras University is having 27 membersand in the meeting held on 20.7.2012, 26 persons attended the meetingand one Dr.A.Ramachandran absented from attending the meeting. Thethen Vice-Chancellor, who was chairing the meeting did not cast hisvote and the remaining 25 persons exercised their vote. The 4threspondent secured 14 votes and the rival candidate viz.,Prof.S.Sathikh secured 11 votes. The difference between the electedand defeated candidate is three votes. As already held, the Directorof Legal Studies (in charge) cannot be treated as Proxy as heparticipated on his own right by virtue of his holding the office ofDirector of Legal Studies (in charge). Even assuming that the votesexercised by two proxy members are construed to be not valid, the 4threspondent has 12 valid votes and the rival candidate secured only 11votes, which means, the 4th respondent is entitled to be declared aselected with majority of valid votes. Therefore, it is beyond doubtthat permitting the two proxies viz., the Additional Secretary to theGovernment of Tamil Nadu, Department of law; and the Deputy Secretaryto the Government of Tamil Nadu, Department of Health to vote in theelection has not materially affected the result of the election. Inother words, the election of the 4th respondent is not vitiated bymerely permitting the two proxies to cast their votes.15.In the light of the above undisputed facts, viz., 4threspondent is elected by majority of valid votes, which is more thanthe votes secured by the rival candidate viz., Prof.S.Sathikh, theelection of 4th respondent for nomination to the Syndicate to act asMember of the Search Committee and the consequential notificationissued by the third respondent in G.O.(1D)No.259 Higher EducationDepartment dated 10.9.2012 cannot be declared as invalid. 16.As the issue No.1 i.e, permitting the two proxies to vote infavour the 4th respondent has not materially affected the election ofthe 4th respondent, who secured 12 votes when compared to the 11 votessecured by the rival candidate, the issue as to whether therespondents 1 and 2 are justified in permitting the proxies to vote https://hcservices.ecourts.gov.in/hcservices/ in the election held on 20.7.2012 has become purely academic insofaras this case is concerned. Therefore the said issue need not beanswered at this juncture.The writ petition is dismissed, leaving open the issue of rightof the proxy to vote in the election. No costs. Connectedmiscellaneous petitions are also dismissed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Vice Chancellor, University of Madras,Centenary Buildings, Chepauk, Chennai -5,2.The Registrar, University of Madras,Centenary Buildings, Chepauk, Chennai – 53.The Additional Chief Secretary to Government,Higher Education Department, Secretariat,Chennai – 9.1 cc To Mr.S.Vijayakumar, Advocate, SR.676391 cc To Mr.G.Thilakavathi, Advocate, SR.67029W.P.No.26064 of 2012 SSI (CO)SRA(07/11/2012)