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John Joseph Vs. University of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberW.A. No. 457 of 1982
Judge
Reported inAIR1983Ker52
ActsKerala University Act, 1957 - Sections 5 and 40
AppellantJohn Joseph
RespondentUniversity of Kerala and ors.
Appellant Advocate M.M. Cherian,; Ashok M. Cherian and; Poly Mathai, Ad
Respondent Advocate Vincent Panikulangara, Adv. and;Adv. General
Excerpt:
constitution - tenure of office - sections 5 and 40 of kerala university act, 1957 - will general council (gc) of university of kerala cease to function by reason of some of members of council ceasing to be students of colleges affiliated to university - tenure of members of gc till reconstitution of gc with condition that if such reconstitution does not take place within 12 months on expiry of 12 months gc's tenure will end - gc continue to function even when academic year ends - term of members continue till reconstitution of gc - in order to keep gc intact till new gc comes into existence by reconstitution all those elected by students as representatives to continue as such - question answered in negative. - - of course it is the duty of the syndicate to take all steps to..........elaborating on this theme the learned judge further finds that once some of the members of the general council cease to be students the general council itself would cease to function. in. other words irrespective of the date the general council comes into existence during an academic year it will normally cease to function at the end of the academic year since by then it is likely that some at least of the members of the general council would cease to be students by reason of passing out from the final year class of the colleges. though the bye-laws framed by the syndicate in exercise of the powers conferred under section 5 of the kerala university act envisages continuance of the university union until a new council is reconstituted this provision has been held to be ultra vires of.....
Judgment:

Subramonian Poti, Ag. C.J.

1. Will the General Council of the University Union of the Kerala University cease to function by reason of some of the members of the Council ceasing to be the students of the Colleges affiliated to the University? This is the question that calls for decision in this appeal. The learned single Judge whose judgment is challenged by the General Secretary of the Kerala University Union has held that the Statute envisages a University Union for students and this necessarily means that the University Union must be of the students and by the students. Elaborating on this theme the learned Judge further finds that once some of the members of the General Council cease to be students the General Council itself would cease to function. In. other words irrespective of the date the General Council comes into existence during an academic year it will normally cease to function at the end of the academic year since by then it is likely that some at least of the members of the General Council would cease to be students by reason of passing out from the final year class of the colleges. Though the bye-laws framed by the Syndicate in exercise of the powers conferred under Section 5 of the Kerala University Act envisages continuance of the University Union until a new Council is reconstituted this provision has been held to be ultra Vires of Section 5 (xv)(c) of the Kerala University Act, as then it would enable a University Union to function though not composed entirely of students. We are called upon to decide the correctness of this view.

2. Thomas Mathew the petitioner in the Original Petition is a full-time student undergoing study in the final year B. Sc. class in K.E. College at Mannanam, a college affiliated to the Kerala University. The Kerala University Union for students is functioning in terras of the byelaws made under Section 40 of the Act. The Union has a General Council, an Executive Committee and an Accounts Committee. The General Council consists of the councillors of the Union elected from Colleges/Departments under the Kerala University. Among the functions and powers of the General Council of the Union, election of 10 members from among the full-time students to the Senate of the University is envisaged under Section 17 of the Act

3. The General Council of the Union for the year 1981-82 was constituted by a notification dated 3-3-1982. By a notification dated 4-6-1982 issued by the Returning Officer/Registrar for election of student representatives to the Senate such election by the members of the General Council of the Union for the year 1981-82 was notified. The election was to take place on 28-6-1982. This notification issued by the second respondent is Ext. P-S. This notification is challenged in the Original Petition and that is on the basis that those who constituted the General Council on 3-3-1982 automatically went out of office on 31-5-1982, that being the close of the academic year 1981-82 and therefore they had no right to elect the student representatives to the Senate. In support of this plea reference is made to a decision of a learned single Judge of this Court in O P. No. 5455 of 1981. There the question was whether as the byelaws stand the term of the General Council would expire by the end of the academic year. The decision therein was the subject of an appeal and since there was no occasion to consider that appeal on the merits the matter is said to have been left open. Whatever that be the bye-laws have been subsequently amended and it is the bye-Jaws as amended that is now called into question. That we have to consider in this appeal. The question would be whether after the end of the academic year the General Council could continue to function so long as no new Council has been constituted

4. Section 5 of the Kerala University Act defines the powers of the University. Clause (xv) provides that one of such powers would be to 'institute and provide funds wherever accessary for the maintenance of

'(a) .....

(b) .....

(c) a University Union for students.'

Section 40 of the Act concerns making rules, bye-laws and orders. That section provides that--

'The Syndicate shall have power to make rules, byelaws and orders not inconsistent with the provisions of this Act, the Statutes, the Ordinances and the Regulations, for the guidance and working of Boards and Committees and other bodies constituted under the provisions of this Act or the Statutes or the Ordinances or the Regulations and for regulating the procedure and conduct of business at meeting of any authority of the University other than the Senate.'

In exercise of this power the Syndicate of the University of Kerala have made byelaws for the working of the Kerala University Union for students. Byelaw 2 (1) defined a student to mean

'..... any person undergoing a course of sudy on a full-time or part-time basis in a University department established and maintained by the Kerala University or in a College affiliated to the Kerala University.'

The definition further provided that--

'such person ceases to be a student after the last date of the academic year.'

The constitution of General Council is provided for by byelaw 8. The General Council is to consist of Councillors to the University Union elected from Colleges/Departments. The powers of the General Council are defined to be (a) to give general guidance over all College Unions/Departments' Union, (b) to frame rules for the conduct of business at meetings of the Union, (c) to issue instructions not inconsistent with the bye-laws and the rules in all matters not otherwise provided for and (d) to consider and approve the budget estimates of the Union. Bye-law 15 (2) provides that the Honorary Treasurer shall be an ex-officio member of the Executive Committee and the General Council without voting power and that such Honorary Treasurer shall be the Honorary Director of Youth Welfare. Bye-law 21 relates to reconstitution which is relevant for our purpose. It read:

'The General Council, the Executive Committee and the Accounts Committee of the Union shall be reconstituted by the Syndicate every year.'

Bye-law 6 relating to tenure of office may now be read:

'The members of the General Council, Executive Committee and Accounts' Committee shall hold office till the reconstitution of the General Council.'

Though this was the clause in force earlier this was amended by the Syndicate on 27-3-1982 and this amendment has been brought into force by notification Ext. p-4 from 2-3-1982. Ext. p-3 resolution reflects the relevant amendments. The definition of student in bye-law 2 (I) as amended reads:

' 'Student' means any person undergoing a course of study on a full-time or part-time basis in a University Department established and maintained by the Kerala University or in a college affiliated to the Kerala University. Such person ceases to be a student after the last date of the academic year which happens to be Final year of the particular course he is undergoing.'

Bye-law 6 has been amended and as amended it reads thus:

'6. Tenure of office: the Members of the General Council, Executive Committee and Accounts Committee shall hold office for a period of 12 months or till the reconstitution of the General Council whichever is earlier notwithstanding the fact that such members cease to be students.'

5. It could thus be seen that till 2-3-1982 the tenure of the members of the General Council was till the reconstitution of the General Council, and after the amendment which came into force with effect from 2-3-1982 that continues to be the same but with a qualification that if such reconstitution does not take place within 12 months on the expiry of 12 months the General Council's tenure will come to an end. In other words while under bye-law 6 as it stood prior to the amendment the General Council could continue in office irrespective of the length of period of its existence until the new Council is constituted there is restriction imposed by the amendment that if the new Council is not reconstituted within a period of 12 months the existing Council ceases to function automatically- Perhaps experience has shown that there were occasions as pointed out by counsel for the appellant, when the existing council continued for periods of 15 and 17 months and that might not have been considered to be proper or healthy. Whatever that be the effect of the amendment was to restrict the unlimited life of the General Council in cases where a fresh Council has not been reconstituted and limit it to a maximum period of 12 months. Of course if earlier a new Council is constituted, as it should be, on such constitution the earlier Council will cease to be in force.

6. Now let us consider whether merely by reason of expiry of the academic year the existing council ceases to function. There is no reason to say so on the basis of the provisions of the Act or the bye-laws of the Kerala University Union. Bye-law 21 which obliges the reconstitution of the General Council by the Syndicate every year envisages the duty of the Syndicate to see that there is a fresh General Council for every fresh academic year. Normally what is envisaged is a General Council to come into existence as early in the academic year as is practicable and that to function throughout that year. Of course a similar constitution in the next academic year is also contemplated and in order to avoid, if possible, an interregnum, the continuance of the existing General Council until a new one is constituted in the next academic year is envisaged. By the amendment that again is limited as we have already discussed. Therefore reading bye-laws 6 and 21 we see no reason to take the view that merely because an academic year has come to an end the General Council of the Kerala University Union ceases to function automatically. On the other hand on the plain language of the bye-laws adverted to the Council will continue to function subject, of course, to the limitation already indicated.

7. Now we will have to consider another aspect of the same question. Do the members of the General Council cease to be such members merely because they have ceased to be students having passed out of college or otherwise? Assuming that they cease to be members of the General Council, does the General Council cease to function for that reason? It would be normal to expect in the composition of the General Council at any time some students who belong to the final year class. If they are elected as members of the General Council when they art students they are properly elected as such members and they no doubt represent the student community. Bye-law 6 applies directly to them. That provides that their term as members continues till the reconstitution of the General Council. Despite this plain language it is urged that the provision of such bye-laws would be ultra vires of Section 5 (xv) (c) of the Act. That section only envisages the power in the University to institute a University Union for students. What was evidently argued before the learned single Judge was that a University Union for students should also be a Union by the students and of the students. With great respect to the learned Judge who was persuaded to accept the view we think otherwise. A University Union for students need not be composed entirely of students. The object of the University Union is to promote student interest. No doubt the composition of the Union must be mainly of students. The non-student element, if any, must not be predominant and the non-student element should not belong to a community which has no nexus with student interest. The presence of elements which do not represent the interests of the student community and which have no relevance to such interests in any material or appreciable degree may, no doubt, change the character of the Union from one that is for students. But that would not be the case where the body is composed of students and those whose presence has relevance in the matter of promotion of interests of students. When a General Council is constituted it will be of students of all classes including the final year class. A student lender in whom the general population of students had bestowed faith and confidence and had sponsored him so to place him in a representative position need not lose his interest in the student community the moment he ceases to be a student of the college. In other words it need not be taken that his presence in the body could result in the presence of a person who has no relevance to student interests. The most practical way of continuing the body intact till the new General Council comes into existence by reconstitution is to allow all those elected by the students as representatives to continue as such. In short we do not think that a University Union for students must necessarily be of the students and by the students. With great respect, we do not subscribe to the view Unit the moment a member of the General Council ceases to be a student he ceases to be a member of the General Council or when that happens the General Council itself ceases to function.

8. If what we have said above is the situation the Kerala University Union which came into existence on 3-3-1982 will continue to function during the academic year 1982-83 until a new General Council is reconstituted or the expiry of 12 months whichever is earlier. No new General Council has yet been reconstituted and therefore the General Council which has been constituted on 3-3-1982 must necessarily continue to function and we declare so. The appeal is allowed to that extent.

9. There is also a prayer in the Original Petition that a mandamus be issued to constitute the General Council of the Kerala University Union for the academic year 1982-83 as early as possible. Of course it is the duty of the Syndicate to take all steps to reconstitute a General Council every academic year and if they fail in such duty it would only be appropriate that this Court issues a mandate or direction that it shall take necessary steps in that behalf. A schedule was fixed by the learned single Judge on the basis that earlier General Council had ceased to exist on 31st May, 1982. But that is found to be not the case. It may also not be practicable to fix a rigid schedule for election in the present context. That is because our present University Education system has, unfortunately many aberrations and one of them is the perverse schedule of admissions, courses of instructions, examinations and publication of results. Occasional lapses in a regular time schedule may be explained as due to unforeseen events and could be corrected. But an erratic time schedule has come to stay as a regular feature. The normal academic year, as once understood, was the period from June to March commencing with 1st of June and ending with 31st of March leaving a recess of 2 months. But more or less regular belated examinations resulting in belated publication of results have caused the postponement of admissions to the middle, if not the end, of the year. The courses of instruction start late in the academic year and naturally the students clamour at the end of the year that examinations according to the regular schedule would be premature. Examinations are therefore postponed. This goes on year after year. By the end of 1981 December there may be instances where admissions for 1981-82 were not yet over. A number of illustrative cases can be cited. We notice that admissions for post-graduate medical courses for 1981-82 (the academic year was over long ago) have not yet been finalised. The postgraduate course for law in the Law College at Ernakulam for the year 1981-82 commenced on 1st Jan., 1982 and the one year course was closed on 31st March, 1982 as was noticed in another case. There is no need to multiply illustrations. This being the state of affairs it will be impossible even for the Syndicate in the normal course to start on reconstitution of a General Council at the beginning of the academic year in June or July as should be the case, for, the result of many examinations on which permissions depend would not have been published by that time. If so, many of the students for the academic year would have no voice in the election to the General Council if elections are held promptly at the beginning of the year. If elections are held towards the end of the year and the new Council comes into existence by the end of the year that Council cannot function effecttively for that academic year as its life would be too short during that academic year. Though in this case we are only observing incidentally the seriousness of the failure to conform to a proper schedule of College Admissions, College Examinations and necessarily the courses of studies In the colleges, this is a matter which is of serious concern and we may have to bestow more attention on this aspect of the case if and when our orders are sought in appropriate proceedings that may come up before us. It would be healthy and in the interests of promotion of education if even without such an occasion arising those who are concerned with the duty to see that regular courses of instruction are held in the colleges take strict measures to see that examinations are held in March every year, admission process commences sufficiently in advance for instruction in colleges to commence by beginning of June and students have a full academic year for study so that they can be ready for examination in March. May be in this process one may have to skip one year. We do believe that these observations would receive serious consideration at the highest level.

For the present so far as the case before us is concerned we consider the request of the petitioner quite fair and reasonable. The University Syndicate shall forthwith take up the matter of reconstitution of the General Council of the Kerala University Union for the academic year 1982-83, shall forthwith fix a time schedule for that purpose and implement the time schedule by taking all necessary steps so that the General Council comes into existence as early as is possible. To that extent the petitioner in the Original Petition succeeds. The Writ Appeal is disposed of as above. No costs.


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