Ashwin. E vs Kannur University Represented By Its Registrar

Mohammed Nias C.P., J

The petitioners are students studying in the Nirmalagiri College, Kuthuparamba. The Union election of the college for the year 2023-2024 was held on 29.9.2023. In the election, out of the 9 General seats, five were won by the students of the Students Federation of India (SFI) and the rest of the seats by students from the Kerala Students Union (KSU). The remaining seats include representatives of various departments and respective years of study. The total seats comes to 15 seats out of which 7 seats were won by the students owing allegiance to KSU. Thus, in the Union Council, there is an equal division of students in both groups. The petitioners are the elected members of the Union Council. As per the by-law of the Kannur University/College campus students union incorporating Lyngdoh Committee Recommendations, the union council has to elect a union executive.

The union executive committee shall consist of 13 members, out of which three members shall be elected by the Union Council from among themselves as per Clause 7(x) of the Kannur University bylaws of the affiliated college/University campus students union, Ext.P1. The petitioners state they had contested to the executive committee as per Clause 7(x) of Ext.P1 by-law in the election held on 27.10.2023. The petitioners and respondents 6 to 8 got equal votes in the election (12 votes each). Thereafter, the 5th respondent, the Chairman of the College Union, exercised a casting vote apart from his normal vote in favour of respondents 6 to 8, and the 4th respondent declared them to be elected. The exercise of casting vote purportedly in tune with Clause 15 of Ext.P1 by the 5th respondent is challenged as illegal and improper. A complaint was filed in this regard as Ext.P2. The petitioner, therefore, prays for quashing that part of Ext.P2 regarding elected members from the council to the college Union executive and seeks a direction against the third respondent to adopt the process of election of three members from the petitioner and respondents 6 to 8 by a lot to the union executive committee and declare the results based on the lot.

This Court has passed an interim order staying Ext.P2 with respect to the inclusion of respondents 5 to 8 for a period of three weeks.

Respondents 5 to 8 have filed a counter affidavit stating that the elected Chairman had a right to a casting vote and also that the writ petition was not maintainable as the petitioners had an efficacious remedy by way of an appeal to the Grievance Redressal Cell of the college. It was pointed out that there was a tie after the 24 elected members cast their votes and therefore, the election of the three representatives could not be proceeded further. It is stated that the principal decided to seek an opinion from the University as per Ext.R5(a), and since there was no response from the University to the said communication, another mail was sent, Ext.R5(b). In the meantime, the principal received a communication dated 10.10.2023 from the Director of Student Service informing that the University's Vice Chancellor had ordered an election to the 3-member executive from among the 24-member Union council. As no reply was received, the principal, being the president of the College Union Council, chaired the meeting to elect the three member executive from among the Union Council members, which was held on 27.10.2023. Since all the candidates got 12 votes each, the Chairman, following Clause 15 of the University by-laws, decided to exercise his casting vote in favour of respondents 6 to 8 and accordingly, they were declared elected by the principal.

A counter affidavit was also filed by respondents 3 and 4, raising identical contentions and supporting the President who used the casting vote.

The University has filed a statement which reads as follows:-

“3. As per Clause 15 of KANNUR UNIVERSITY, BYE-LAWS OF THE AFFILIATED COLLEGE/UNIVERSITY CAMPUS STUDENTS UNION incorporating the Lyngdoh Committee Recommendations approved by the Hon'ble Supreme Court of India and as per G.O(MS) No.149/06/H.Edn.Dept dated 14/11/2006, 'The Union Council and the Executive Committee shall take decisions by simple majority. In case of the tie, the chairman will have a casting vote in addition to his normal vote. The quorum for the meeting shall be 1/3 of the total members.'

It is submitted that for Clause 15 of the above-mentioned Bye-Law is applicable only after getting elected, being a member of the committee and thereafter passing a resolution in case of tie. Before being a member of the committee, nobody can avail benefit of casting vote. To become a member of Parliament, Legislative Assembly, Municipality, Panchayats and other statutory bodies or even clubs etc.. casting vote cannot be used for electing a member.

As per exhibit R3(d) bearing number DSS/A1/222/2023 dated 10/10/23 Director of Student Service informed 'to conduct election among the 24 member general council for the 3 seats for the Executive Committee'.

It doesn't mean that the college can conduct election in accordance with their whims and fancies. A bare perusal of clause 15 of the byelaw will categorically suggest that in the case of tie, in taking a decision or resolution by a duly elected body, vote can be casted by the leader of the committee. That does not mean that the leader of the committee can cast vote to enroll, enlist, infiltrate etc a member or an office bearer.

The election  of  a candidate  by  exercise  of casting vote  is a fundamental error which ought not to have been adopted by the 3rd respondent being the authority of the College.”

Heard the learned counsel appearing on all sides.

Learned counsel Sri. Jawahar, who appeared for respondents 5 to 8, brings to my notice the judgment of the Madras High Court in T.R.Gunasekharan v. S.Ramakrishnan (W.P.Nos.964 and 1352 of 1963), in support of the contention that the Chairman had the power to exercise his casting vote.

Having considered the rival submissions, a reading of Clause 15, extracted above, would clearly mean that the Chairman has a casting vote only when the Union Council and Executive Committee take decisions. The executive committee, admittedly, was not formed, and hence, a casting vote cannot be used for the formation of the executive committee. If, after the formation of the executive committee, a decision is to be taken in a meeting, the chairman obviously will have a casting vote in addition to his normal vote. Clause 15 cannot be understood as giving power to make one eligible to be included in the executive committee. In the case cited by the learned counsel, it was not denied that even the choice of an applicant to a particular office was made the subject matter of voting at a meeting of the Council, which is distinct in the instant case where the formation of the executive committee is the issue. Vesting of power, like clause 15, postulates its exercise in an impartial and bonafide manner and not for one's own benefit. In the instant case, the chairperson belonging to a particular faction cannot obviously be expected to maintain impartiality, and therefore, it's unwise to permit him to exercise his casting vote to elect a member to the executive committee. Therefore, the casting vote cannot be allowed to turn the scales, particularly when there is a conflict between interest and duty. It is clear from reading clause (15) itself that otherwise, the decisions are to be taken by a majority, allowing casting a vote in a situation like the instant one will also be undemocratic.

I am in support of the stand taken by the University in the counter. Accordingly, the impugned order in so far as it allowed the chairperson to permit a casting vote is quashed. It will be open to the Vice Chancellor of the University to decide as to whether the drawing of lots or any other method must be adopted for forming the executive committee in case the members are equally divided.

Accordingly, the writ petition is allowed, and the Vice Chancellor will take a decision in tune with the observations made in the judgment as to the steps to be taken without resorting to the power of the chairperson to resort to casting vote within a period of two weeks from today.