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P.N. Krishnan Nambisan Vs. Registrar (Returning Officer) for the Conduct of Elections for the Appointment of Vice-chancellor, University of Cochin - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberW.A. No. 406 of 1981
Judge
Reported inAIR1982Ker73
ActsCochin University Act, 1971 - Sections 10(1) and 54; Constitution of India - Article 226
AppellantP.N. Krishnan Nambisan
RespondentRegistrar (Returning Officer) for the Conduct of Elections for the Appointment of Vice-chancellor, U
Appellant Advocate P.K. Appa Nair and; Mohan C. Menon, Advs.
Respondent Advocate C.K.S. Panicker, Adv.
DispositionWrit appeal allowed
Cases ReferredMitchell v. Torup
Excerpt:
.....member of committee should be elected by senate - whether person elected by senate required to be member of senate - representative of senate not required to be member of senate but should be elected by members of senate. - - the words themselves alone do, in such a case, best declare the intention of the law giver. but if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to chief justice dyer, is a key to open the minds of the makers of the act, and the mischiefs which they intend to redress. as we have indicated reading other provisions of the statute to which we have already adverted, we..........will not be possible to read the words 'one elected fay the senate' as limited to a member of the senate elected by the senate, 7. it is the duty of the court to give effect to the decision of the legislature. to understand such decision the main source of information available to a court is the language employed by the statute. to start with it is only proper to assume that the draftsman employed the words in their ordinary sense. even the rule in 'heydon's case (1584-3 co. rep. 7a) --which of course has no application here -- was not accepted as the sole satisfactory guide to interpretation. the mischief rule in heydon's case came to be superseded to a large extent, in course of time by the 'literal' or 'plain meaning' rule. tindal. c. j. in his advice to the house of lords on the.....
Judgment:

Subramonian Poti Ag., C. J.

1. Aquestion of considerable importance arises in this case. That concerns the construction at Section 10 (1) of the Cochin University Act, 1971. Section 10 (1) provides that the Vice-Chancellor of the University shall be appointed by the Chancellor on the unanimous recommendation of a Committee appointed by him consisting of three members, 'one elected by the Senate. One elected by the Syndicate and the third nominated by the Government.' Whether the one member to be elected by the Senate should be a member of the Senate is the question here. The appellant before us who was the petitioner in the petition under Article 226 of the Constn. before the learned single Judge nominated a person who was not a member of the Senate as a candidate to be elected by the Senate to the three member Committee to be appointed by the Chancellor under Section 10 (1) of the University Act. The Registrar of the University who is the Returning Officer rejected the nomination, evidently taking the view that the words 'one elected by the Senate' in Section 10 (1) of the University Act should be understood as one elected by the Senate from among the members of the Senate. The petitioner challenges this decision of the Returning Officer in the Original Petition. The learned single Judge dismissed the Original Petition holding that it is only a member of the Senate who could be elected by the Senate under Section 10 (1) of the University Act. This is challenged in this writ Appeal.

2. It is agreed at the Bar that subsequent to the decision of the Returning Officer election was held during the pendency of the Original Petition, but the Committee has not been so far constituted by the Chancellor as required by Section 10 (1) since the Government has not nominated the third member of the Committee. The Committee under Section 10 (1) has to make its recommendation concerning the choice of the Vice-Chancellor within 3 months of its appointment. That stage has not yet been reached because appointment has not been made by the Chancellor.

3. We extract Section 10 (1) of the Cochin University Act here :

'10 The Vice-Chancellor :-- (1) The Vice-Chancellor shall be appointed by the Chancellor on the unanimous recommendation of a Committee appointed by him constituting three members, one elected by the Senate, one elected by the Syndicate and the third nominated by the Govt. The Committee shall make the recommendation within a period of three months of its appointment.'

Learned counsel Sri C. K. Sivasankara Panicker appearing for the University contends that the words 'one elected by the Senate' must be read and understood as one elected by the Senate from among the members of the Senate, and not from outside. That idea, according to counsel, is inherent, for, no qualification having been laid down in the University Act or in the Statutes as qualifications for nomination to the Committee to be appointed by the Chancellor there must be read into the Section some qualification and that would only be that any one of the Senators alone could stand for election by the Senate.

4. Our attention has been drawn by learned counsel Sri. P. K. Appa Nair, appearing for the appellant, to various Sections of the University Act relating to election to various authorities of the University. According to counsel the Act is specific in the matter of election by a body from among its members where the Act intended that should be the case. Section 15 relates to the constitution of the Senate. Among the elected members six are to be elected by the registered graduates 'from among themselves', four to be elected from members of the Academic Council 'from among themselves' and there are several other classes of persons specified in 2 to 9 and 11 to 14 under the title 'Elected members' who are to be so elected from among themselves. The term 'from among themselves' appears in other Sections too such as Section 19 (1) which refers to election of two Deans of Faculties, not being members of Syndicate, elected 'from among themselves'. Section 22 (1) (v) and (vi) concerns the Board of Graduate and undergraduate studies. Two members, being Principals of Constituent Colleges are to be elected from among themselves and three members, being teachers of Constituent Colleges in charge of instruction at the graduate level of studies of such Colleges, are to be elected from among themselves. Section 23 (j) and fm) concern the election to Academic Council of three members, not being teachers, elected by members of the Senate from among themselves and 5 members, being teachers of the University and teachers of the Constituent Colleges from among themselves. We are referring to these provisions to indicate that the draftsman has used the expression 'from among themselves' whenever the idea sought to be conveyed was that the candidate should not be outside the fold of those who were entitled to elect. Any Statute has to be read and understood as a whole scheme and any provision in the Statute has to be read in the context of other provisions therein. We cannot but notice that the use of the expression 'from among themselves' in the other Sections is relevant in considering the plea that even without the words 'from among themselves' in Section 10 (1) of the University Act that Section should be read as so qualified.

5. Both sides have adverted to the First Statutes on Election of the Cochin University. The mode of election is specified in Statute 2 and Clause 3 of this statute 2 provides, inter alia, that election of one member each by the Senate and Syndicate to the Committee for appointment of the Vice-Chancellor under Sub-section (1) of Section 10 shall be held in accordance with the provisions in Part IV, Part IV of the Statutes on Elections pro-vides in Statute 94 that certain of the Statutes particularly Statutes 28 to 35 shall mutatis mutandis apply to election under Part IV and Statute 95 provides that the election shall be held at the meeting of the authority or body concerned. Therefore there is provision that the election of one member to the Committee to recommend the appointment of the Vice-Chancellor is to be held at the meeting of the Senate and that Statutes 28 to 35 concerning elections would apply to such election. Statute 28 deals with notification of elections, Statute 29 deals with nomination of candidates, Statute 30 deals with scrutiny of nomination. Statute 31 deals with decisions of the Returning Officer on objections and Statute 32 deals with list of candidates validly nominated. These Statutes give no indication on the question before us. In fact the Statutes may not be of any assistance to understand the Act, for, the meaning of any provision in the University Act cannot depend upon the provisions of the Statutes. Anyhow there is no provision in the Election Statutes which throws light on the construction of Section 10 (1) of the University Act.

6. To us it appears to be plain in the absence of the words 'from among themselves' or any other words conveying the same idea that it will not be possible to read the words 'one elected fay the Senate' as limited to a member of the Senate elected by the Senate, 7. It is the duty of the Court to give effect to the decision of the legislature. To understand such decision the main source of information available to a Court is the language employed by the Statute. To start with it is only proper to assume that the draftsman employed the words in their ordinary sense. Even the rule in 'Heydon's case (1584-3 Co. Rep. 7a) --which of course has no application here -- was not accepted as the sole satisfactory guide to interpretation. The mischief rule in Heydon's case came to be superseded to a large extent, in course of time by the 'literal' or 'plain meaning' rule. Tindal. C. J. in his advice to the House of Lords on the Sussex Peerage Claim ((1844) 11 C1 & Fin 85} stated the rule thus:

'The only rule for the construction of Acts of Parliament, is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense. The words themselves alone do, in such a case, best declare the intention of the law giver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer, is a key to open the minds of the makers of the Act, and the mischiefs which they intend to redress.'

In the application of the literal meaning rule the plain meaning of the words construed were not to be understood in isolation, but only in the context of the provisions of the rest of the statute. This idea is conveyed by what is commonly called the Golden Rule which allows a departure from the literal rule when the words used in the enactment, understood in the ordinary sense would be repugnant to or inconsistent with the other provisions in the enactment or may lead to manifest repugnance. Parker C. B. in Mitchell v. Torup (1766) Park 227 expressed this idea thus:

'It allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the Court considers to be an absurdity. Theusual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in. The scope of the golden rule is debatable, particularly so far as the meaning of an 'absurdity' is concerned.'

The result of applying this rule is to read into the Act words which are not there or omitting words which are there, if on a reading of the entire provisions of the Act, such a construction is called for to prevent manifest repugnancy or inconsistency. In short the golden rule serves as a guide to understand the true import of the words in their ordinary sense. The rule of reading words in and out of the Statutes is stated by Cross on 'Statutory Interpretation' at page 84 thus:

'This brings us to the illustration of the third of the basic rules set out on p. 43; the Judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute.'

The same author elaborates the rule thus at page 92:

'The power to add to, alter or ignore statutory words is an extremely limited one. Generally speaking it can only be exercised where there has been a demonstrable mistake on the part of the draftsman or where the consequence of applying the words in their ordinary, or discernible secondary, meaning would be utterly unreasonable. Even then the mistake may be thought to be beyond correction by the Court, or the tenor of the statute may be such as to preclude the addition of words to avoid an unreasonable result.'

8. The question in this case is, could it be said that there is a demonstrable mistake of the draftsman in omitting the words 'from among themselves' in Section 10 (1) of the University Act so that the Court is bound to supply that omission. Would it be totally unreasonable to read the Section as it is in the plain sense without the addition of the words? Will the consequence attendant on such construction be to render the meaning manifestly absurd or repugnant to the provisions of the Statute?

9. Reading Section 10 (1) as it is without the addition of the words suggested it plainly enables the Senate to elect a member, either one from among themselves or one from outside their fold. As we have indicated reading other provisions of the Statute to which we have already adverted, we notice that the legislature was aware that when the choice has to be limited to the members of the voting body that could be expressed precisely by the use of the words 'from among themselves'. There is no manifest absurdity or repugnancy in assuming that to a three member Committee to which the Senate is to nominate one member the choice need not be limited to the members of the Senate. If there is any indication in the other provision of the Statute that indication is only in favour of a construction that there is no need to read into Section 10 (1) any limitation as contended for the University. Elected members of the Senate are drawn from various classes such as academicians, businessmen and Trade Unionists. They may represent various interests and may be experts in their own field. There may be equally competent men or perhaps more competent men outside their fold -- by competence we mean the expertise to choose a proper academician-cum-Administrator to be the executive Head of the University -- who they may choose to elect. The function of the 3 member Committee is to recommend a suitable name for appointment as Vice-Chancellor. If the members of the Committee are unable to unanimously recommend the name they have to submit a panel of 3 names from out of which the Chancellor is to make selection. The choice of names for a very responsible office in such a high academic body as the University cannot be satisfactorily made by persons uninformed of the field of eligibles with academic distinctions suited to such a high office as that of a Vice-Chancellor. Therefore while the members of the Senate must have the voice to choose a proper man--it could well be one among themselves-- who can discharge the function of recommending an eminent person as a Vice-Chancellor they can leave that job to that one in whom they have confidence as one suited and qualified for that purpose. Therefore there is no unreasonableness in the Senators electing a person outside their own fold for membership of the Committee. When other provisions of the Act indicate that no limitation was contem-plated in the case of election by the Senate under Section 10 (1) and the result would in no way be unjust or unfair there is no reason to give an interpretation contrary to the plain or ordinary sense. There is no justification to read any words which are not in the Statute.

10. A contention was raised before the learned single Judge that Section 54 of the Act precludes this Court from entertaining the Original Petition. Section 54 of the University Act reads thus:

'Dispute regarding interpretation of this Act and the Statutes, Ordinances, Regulations and Rules made thereunder or regarding the constitution of any authority or body -- If any dispute arises regarding the interpretation of any provision of the Act or any Statutes, Ordinances, Regulations or Rules as to whether a person has been duly elected, appointed, or nominated or is entitled to be a member of any authority or body of the University, the matter may be referred to the Chancellor, and shall be so referred to him if not less than twenty-five members of the Senate so require.

(2) The Chancellor shall after taking such advice as he deems necessary, decide the question and his decision thereon shall be final:

Provided however that the decision of the Chancellor shall not be binding on the University Appellate Tribunal.'

The dispute falling within the latter part is one whether a person has been duly nominated to be a member of any authority or body of the University. Respondents' counsel has no case that the Committee to be constituted under Section 10 (1) is an authority of the University or is a body of the University. It cannot be a body of the University, for, it is composed not only of a member elected by the Senate and another elected by the Syndicate but also one nominated by the Government. We need not examine that further, for, the case of the respondent is not that Section 54 would apply because the nomination is to the body of the University but that this is a case where a dispute has arisen regarding the interpretation of a provision of the Act, namely, Section 10 (1) of the University Act. Therefore it is said that Section 54 (1) will apply and if so the matter may be referred to the Chancellor whereupon the decision on the question by the Chancellor will be final. Section 54, it may be noted, does not indicate who has to make a reference to the Chancellor. Is it the Returning Officer? Is it the Pro-Vice-Chancellor? Is it the Senate or the Syndicate? The Act is silent about this. Apart from this reference is obligatory only where not less than 25 members of the Senate require such reference. Learned counsel for the University fairly agreed with us that while reference on the request by the 25 members of the Senate is obligatory, it is not so where the motion is that f any other person. Under what circumstances such reference should be made is a matter into which we need not go further in this case. The University's stand is that it is not as of right that any person could seek reference. It is not the University's case that merely because any person seeks a reference there is an obligation on the part of any authority of the University to make such reference. If that be the case the provision for reference is not an effective or adequate remedy and the petitioner could not be put tout of Court for that reason.

11. Hence we hold that any member of the Senate is competent to nominate a person who is not a member of the Senate to be a candidate for the election as member of the Committee to recommend the name of Vice-Chancellor under Section 10 (1) of the University Act. In that event the rejection of the nomination of one Sri P. Radhakrishnan made by the petitioner-appellant here was contrary to the provisions of Section 10 (1) of the University Act.

In the circumstances the Writ Appeal is allowed and the rejection of the nomination paper filed by the appellant nominating one Sri. P. Radhakrishnan is set aside. Consequently the subsequent election will also stand set aside. This shall not preclude the election proceedings being continued from the stage prior to the rejection of the nomination paper of Sri. P. Radhakrishnan. No costs.


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