Madras High Court
B.Madhan vs The Registrar on 10 December, 2014
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 10-12-2014
CORAM:
THE HONBLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.15284 of 2010
B.Madhan .. Petitioner
Versus
1. The Registrar,
University of Madras,
Centenary Buildings,
Chepauk Campus,
Chennai-600 005.
2. The Principal,
Dr.Ambedkar Government Law College,
Puducherry-605 014.
3. Shri R.Krishnamoorthy
4. Chennai Port Trust,
Rep. by the Secretary,
No.1, Rajaji Salai,
Chennai-600 001. .. Respondents
Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records of the first respondent in connection with the order in No.Legal Cell/2010/2830, dated 5.7.2010 quash the same and directed the first respondent to cancel BL Degree obtained on 19.8.1982 by the 3rd respondent.
For Petitioner : M/s.John Zachariah
For Respondents : Mrs.G.Thilakavathi for R1
M/s.S.Annamalai
Mr.T.Sundaravadanam for R3
M/s.P.M.Subramanian for R4
R2-No appearance
ORDER
The petitioner has come forward with the present Writ Petition, seeking for cancellation of B.L.Degree obtained by the 3rd respondent.
2. According to the petitioner, he is working as Senior Assistant Secretary (Establishment), General Administration Department of Chennai Port Trust. The 3rd respondent, while in service, had completed B.L.Degree in the year 1981. He joined services of the Chennai Port Trust as a regular employee on 11.10.1979 on probation. While discharging services as regular employee, it could not have been possible for him to attend the regular course at Pondicherry Law College which is situated almost 150 kms from place of work of the 3rd respondent. During the period of probation, the employee is not entitled to extended periods of leave and even if he avails such extension of period of leave, then consequently, period of probation would get extended for a further period. His probation was declared in the said post of Lower Division Clerk on 22.11.1981, by which, it is clear that he had never taken any extended periods of leave for the purpose of pursuing the course. Even for pursuing the said course, the third respondent had not obtained any prior permission from the concerned authorities as per the Rules and Regulations of the Chennai Port Trust. By virtue of said BL Degree, the third respondent got promoted to the post of Legal Assistant and thereafter, reached to the present level of Senior Class-I of Senior Asst.Secretary (Estt.). According to the petitioner, while the third respondent himself obtained fraudulent BL Degree and got promotions, he has no locus standi or right to continue in the present post. The petitioner made a representation to the 2nd respondent and the Bar Council of Tamil Nadu on 9.10.2009 to look into the genuineness of the BL Degree obtained by the third respondent. He also made application to the first respondent under RTI Act for information as regards completion of B.L.Course by the third respondent. By letter, dated 24.2.2010, the first respondent informed that the Puducherry Law College, the third respondent was permitted to write examination. The petitioner made a representation dated 4.3.2010 to the second respondent, seeking information with regard to the years of course completion and attendance details of the third respondent between October, 1979 to August, 1981. By proceedings, dated 12.4.2010, the second respondent informed the petitioner that the third respondent was admitted on 4.7.1977 and issued TC on 22.1.1980. The petitioner again sought for information from the second respondent on 26.4.2010 the reasons for delay in completion of the course by the third respondent. By proceedings dated 24.5.2010, second respondent informed the petitioner that they have no records and they could not be traced out. Finally, the petitioner sent a letter dated 21.6.2010 to the first respondent seeking for cancellation of the B.L.Degree conferred on the third respondent. By proceedings, dated 5.7.2010, the first respondent while considering the representation of the petitoner dated 9.10.2009, intimating that the University permits the candidate to appear for the examination based upon the examination application of the candidate duly forwarded by the Principal of the appropriate college and any candidate appearing for the examination should have the prescribed eligible attendance and the responsibility to ascertain candidate to appear for the examination vested only with the Principal and thereby, the Principal of the Government Pondicherry Law College is responsible to deal with the issue. Aggrieved by the said proceedings, the petitioner has come forward with the present writ petition.
3. A detailed counter affidavit has been filed by third respondent, stating that since the third respondent along with other employees complained to the higher authorities about posting of the petitioner as Deputy Secretary contrary to the Recruitment Rules, the petitioner developed vengeance towards third respondent and raised allegations without any basis for the past several years. Based on outstanding sports excellence, by order dated 4.9.1979, the 4th respondent offered an appointment under Sports quota to the third respondent. During the year 1979, he completed regular two years BGL Degree course and completed part of regular B.L.Degree during 1979-80 in the Government Law College, Pondicherry and before joining into service, these facts were brought to the notice of the then Secretary, Madras Port Trust who was an Office Bearer of the Madras Sports Council, who in turn gave oral assurance that the third respondent could avail leave and concessions/facility in order to complete last few months of B.L.course. Thereafter, he successfully completed the probation on 22.11.1981 while he was on duty since he was permitted to undergo training during fully day relief period at Cuddalore which is very near to Pondicherry in the year 1979-80. According to the 3rd respondent, after sports training in early morning and evening, the day rest time was utilized by him by attending classes in Law College, Pondicherry. He left the College on 16.5.1980 as per transfer certificate issued by the College and he did not continue in college till 1981 or 1982 as alleged by the petitioner. 3rd respondent appeared examinations in failed papers and thereafter, he cleared all the papers and the University of Madras awarded B.L.Degree on 19.8.1982. He was sanctioned leave by the Trust to appear for the examinations. The said B.L.Degree obtained by the third respondent was accepted by the Trust in the year 1982 and thereafter, he was promoted to the post of Legal Assistant (Class-III). Therefore, according to the third respondent, he did not obtain the B.L.Degree by a fraudulent manner and hence, the Writ Petition filed by the petitioner by way of PIL, is not maintainable and it is liable to be dismissed.
4. Chennai Port Trust, 4th respondent herein filed counter affidavit, stating that the allegations made by the petitioner are untenable as the 3rd respondent had elevated to various posts by competent recommendations made by the Departmental Promotion Committee and approved by the competent authority after due review and not in a fraudulent manner as alleged by the petitioner. He was appointed to the post of Clerk under Sports quota on 11.10.1979 and as per service records, he had qualified for BGL Degree in the year 1981 and qualified for the B.L.Degree in the year 1982. He completed the period of his probation on 22.11.1981. He pursued the B.L.course and appeared for the examinations by availing eligible leave, viz., casual leave, leave without pay, etc. and also availed full day relief on sports reasons as adduced during the enquiry proceedings. Before proceeding for disciplinary proceedings against the officer, the charge sheet and related papers were forwarded to CVC based on their guidelines and completely gone through by the Central Vigilance Commission since the third respondent is covered under the administrative jurisdiction of CVC. After a detailed evaluation, the CVC has observed that the matter is administrative in nature devoid of any vigilance angle and advised the Port trust to take suitable administrative action. Pursuant to the same, disciplinary proceedings were initiated against the 3rd respondent, wherein, after conducting the enquiry, the Enquiry Officer submitted a report holding that the charges were not proved. However, the disciplinary authority ordered a note of warning. During the period of examinations, he was allowed to avail 21 days leave to appear for the examinations.
5. It is further stated that the statements of the petitioner were already taken into consideration during the course of enquiry proceedings and analysed elaborately and the lapses were taken note of by the Enquiry Officer/Administration/Disciplinary Authority and hence, it does not require further examination. The allegations made by the petitioner are baseless and the promotions effected to the third respondent in various categories, is strictly in accordance with the method of recruitment stipulated in the Recruitment Regulations. His selection to the post of Legal Assistant (Class III) was made since he was possessing a Degree in Law and also requisite experience having worked in the Legal Section attached to Secretarys Department. In the year 2006, in the level of Sr.Class I Officer, there was no incumbent holding the post of Dy.Secretary and by way of interim arrangement for meeting out the administrative reasons and to maintain the required strength of Sr.Class I Officer, the 3rd respondent was considered for promotion on adhoc basis and later he was appointed on regular basis by relaxing the qualifying service of 6 months with the approval of the competent authority. It is denied by the 4th respondent that the third respondent is seeking to get further advancement in the career based on fraudulent/bogus certificate is not fair and baseless. With these averments, the 4th respondent sought for dismissal of the writ petition.
6. Heard the learned counsel appearing on either side and perused the entire materials available on record.
7. While reiterating the averments mentioned in the affidavit filed in support of the writ petition, learned counsel appearing for the petitioner would contend that the B.L.Degree of the third respondent cannot be recognized for any purpose since he obtained the same by a fraudulent manner. According to the learned counsel, while working in a regular job at Chennai, the third respondent could not have attended the regular course at Pondicherry which is humanly impossible. In this regard, he relied upon a decision of a Division Bench of this Court in W.A.No.330 of 2006, dated 23.01.2008 wherein, under similar circumstances, it was held as under:
5. We have considered the entire materials placed on record. When we put a question to the learned Government Pleader with regard to the distance from the place of work viz., Nedumannur, Sankarapuram Taluk, Villupuram District to the place of Central Law College, he has submitted that it is more than 400 kms. Therefore, we are satisfied that it is humanly possible for the appellant to go to the college after attending his duties. The contention of the appellant that the distance is 100 kms cannot be believed as seen from the affidavit that he had attended his duties daily as teacher and headmaster and then he attended the classes of law college between 6.30 a.m. and 8.30 p.m. Therefore, the Bar Council of India has rightly rejected the application of enrolment on the ground that he could not have had requisite attendance in the law college and how it is possible for the Central Law College, Salem in allowing him to appear for the examination. Moreover, we see no reason to interfere with the order of the learned single Judge. The Writ Appeal fails and is dismissed accordingly. No order as to costs.
8. Relying on this, the learned counsel for the petitioner would vehemently contend that it is not possible for the third respondent to attend the regular classes of law college at Pondicherrt to pursue B.L.Degree and as such, he could not have secured 75% of attendance which is a must for a candidate to appear for examination. Further, the third respondent had not obtained prior permission from the competent authority to pursue the B.L.Degree course after joining the duty. Therefore, based on an invalid B.L.Degree, the respective promotions got by the third respondent, cannot be hold good and he should be reverted to the original position. He also contended that the third respondent suppressed the material fact that he was pursuing B.L.Degree at Pondicherry while he was offered appointment and after joining the employment, by producing invalid B.L.Degree, the third respondent misled the authorities and thereby the post holding by the petitioner itself is void and non est in the eyes of law. In this regard, he relied upon the decisions of the Honble Supreme Court reported in Central Airmen Selection Board versus and another versus Surender Kumar Das (2003) 1 SCC 152; Ved Vrat Singh versus Union of India & others versus Union of India & others (ILD (2008) I Delhi 907 and also of this Court in K.Palanikumar versus Indian Bank and another (1980) 1 LLJ 414.
9. On the other hand, the learned counsel appearing for the third respondent would contend that the writ petition is liable to be dismissed as devoid of merits since the petitioner, having vengeance against the third respondent, has filed the present writ petition with all false and baseless averments, seeking cancellation of B.L.Degree of the third respondent. He contends that even before appointment, third respondent had joined B.L.Course in the year 1977 and completed two years and for the remaining few months, the third respondent had informed the authorities and as per assurance given by them, he successfully completed the course by availing eligible leave, viz., casual leave, earned leave and leave without pay, etc. Therefore, he contended that there is absolutely no fraudulent manner acted by third respondent as alleged by the petitioner in obtaining the B.L.Degree. He also pointed out that on verification of genuineness of the said B.L.Degree, the authorities approved and entered the same in service records and based on the said qualification, he was given promotions from time to time. In support of his contentions, the learned counsel also referred to the counter affidavit filed by the department, supporting the version of the third respondent.
10. Having heard the learned counsel and on going through the entire materials placed before this Court, I find considerable force in the contention of the learned counsel for the third respondent. The petitioner has questioned the validity of the B.L.Degree obtained by the third respondent, which according to him, third respondent obtained in a fraudulent manner as while working as a full time employee in the Trust at Chennai, it is not possible for him to attend the regular classes in Law College at Pondicherry and without satisfying the prescribed eligible attendance for appearing examinations and when the petitioner sought for particulars regarding the attendance from the University of Madras, by proceedings, dated 5.7.2010 impugned in the writ petition, without furnishing the same, it was informed to the petitioner that the responsibility to ascertain candidate to appear for the examination vested only with the Principal of the concerned College and hence, the Principal of the Government Pondicherry Law College is responsible to deal with the issue. The view taken by the Registrar, University of Madras is, in my opinion, is reasonable and acceptable since it is the responsibility to ascertain the candidates to appear for the examination would vest only with the Principals of the colleges. Therefore, I do not find any irregularity or illegality in the impugned order, in order to interfere with the same.
11. The claim of the petitioner as regards cancellation of the so-called B.L.Degree of the third respondent is concerned, it is to be pertinent to note that the matter relates to the year 1980, during which year, the third respondent completed the course and obtained the B.L.Degree as could be seen from Transfer Certificate, dated 22.11.1980 annexed in the typed set of papers. By now, nearly more than three decades have lapsed. Therefore, at this distant point of time, for the sake of petitioners self motive, it is not feasible for this Court to probe into the allegations made by him that by fraudulent manner, the third respondent obtained the so-called B.L.Degree and based on the same, the post holding by him as well as the promotions thereof, are non est in law and contrary to the Recruitment Rules. Further, it is the specific case of the third respondent that even prior to entry into service, he joined B.L.Course in the year 1977 and completed two years and for the remaining few months, the third respondent had informed the authorities and as per assurance given by them, he successfully completed the course by availing eligible leave, viz., casual leave, earned leave and leave without pay, etc. In fact, the department also asserted the same by filing counter affidavit stating that the third respondent has completed the B.L.course after availing casual and earned leave etc. Therefore, when the department itself supported the version of the third respondent and when the third respondent has specifically denied the contentions raised by the petitioner, the same would become as disputed questions of fact which requires evidence and if at all the petitioner wants to establish the same, he has to work out his remedy before the appropriate forum in the manner known to law and absolutely, the writ court is not the remedial forum. It is also pertinent to note that based on the said qualification of possessing B.L.Degree, the third respondent has been promoted from time to time and at no point of time, the petitioner has raised any objections nor questioned the said promotions as illegal for the past years. However, when the third respondent was promoted to the post of Sr.Class I Officer (Legal), the petitioner has come forward with the present writ petition. Therefore, as rightly contended by the learned counsel for the third respondent, the writ petition is liable to be dismissed as devoid of merits.
12. However, before parting with, this Court is inclined to observe as follows:
a) In order to gain knowledge in the field of law or any subject, it is not a serious misconduct or an offence in pursuing the course in any mode either by way of distance education or by attending evening colleges or whatever method may be, however, the persons who got the degree by such method, are certainly not entitled to any employment;
b) If the persons who are already in employment gets a degree without prior permission or without attending college while the college is one State and their employment in another State, are not entitled to promotion based on such degree and even if any person gets promotion based on such invalid degree, is liable to be demoted or imposed with a lesser punishment rather than dismissal from service, which may be disproportionate;
c) Generally, permission will not be granted to sub-ordinates since they acquire more qualification than officers and in such circumstances, the employees would venture to study even without prior permission. These cases have to be dealt with separately and no punishment is warranted, but that qualification cannot be utilised for promotion; and
d) That such degree is invalid for enrolment and practice in the Bar.
For the forgoing reasons, this Writ Petition fails and it is dismissed for devoid of merits and laches. No costs.
Suk
Index: Yes 10-12-2014
Internet: Yes
S.VAIDYANATHAN, J.
Suk
PRE DELIVERY ORDER IN
W.P.NO. 15284 OF 2010
10-12-2014