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2010 DIGILAW 688 (BOM)

Anil Ganpat Lohar v. State of Maharashtra

2010-05-05

P.V.HARDAS, S.V.GANGAPURWALA

body2010
JUDGMENT S. V. GANGAPURW ALA, J.:- Heard Shri. P. M. Shah, learned Sr. Counsel for the petitioner, Shri. K. G. Patil, learned A.G.P. for respondent No.1, and Shri. A. B. Girase, learned counsel for respondent Nos.2 & 3. 2. The petitioner has filed present petition, seeking mandamus against the respondent Nos.2 & 3 to relax the permanent disqualification of the petitioner, incurred Under Section 44(e) of the Maharashtra Universities Act, 1994, so also for declaration that the letter dated 08/07/2009 issued by the respondent No.3 refusing to relax the disqualification incurred Under Section 44(e) of the Maharashtra Universities Act, 1994 is null and void abinitio. The facts as are necessary to decide this petition can be culled out as under. 3. The petitioner herein is tainted with punishment for having indulged in unfair practices as an examiner at the examination conducted by the respondent University in the year 1996. The petitioner was held guilty and was debarred for three years from participating in any manner in the conduct of University examination. The said order was passed on 12/16-08-2006. The petitioner is presently working as Principal of Advocate Sitaram (Babanbhau) Anandramji Baheti Art, Commerce and Science College, Jalgaon. 4. The Petitioner was desirous of getting elected as a member to the authority of the respondent-University. Section 24 of the Maharashtra Universities Act, 1994 enumerates the authorities of the University. Section 24 of the Maharashtra Universities Act, 1994 contemplates following authorities :- "Section 24 :- Authorities of the University. The following shall be the authorities of the university, namely :- (1) the Senate; (2) the Management Council; (3)the Academic Council; (4) The Faculty; (5) the Board of College and University Development; [(5-A) the Board of university Teaching and Research]; (6)the Board of Studies; (7) the Board of Inter Disciplinary studies; (8) the Board of Examinations; (9)the Board of Adult and Continuing Education and Extension Services; (10) the Students' Council; (11) Such other bodies of the universities as are designated by the Statutes to be the authorities of the University." 5. The petitioner applied to the Vice Chancellor of the respondent No.2 to relax the disqualification incurred Under Section 44(e) of the Maharashtra Universities Act, 1994 for being a member of the authority of the university. The petitioner applied to the Vice Chancellor of the respondent No.2 to relax the disqualification incurred Under Section 44(e) of the Maharashtra Universities Act, 1994 for being a member of the authority of the university. The respondent-University had communicated him that his request for relaxation of disqualification Under Section 44(e) of the Maharashtra Universities Act, 1994 cannot be considered and had rejected his said request. Section 44 deals with the disqualification of a person for becoming a member of the authority of the University. The same is reproduced below :- "Section 44 :- Disqualification for membership of author it v :- A person shall be disqualified for being a member of any of the authorities of university, if he,- (a) Is of unsound mind and stands so declared by a competent court. (b) Is an undercharged insolvent; (c) has been convicted of any offence involving moral turpitude; (d) Is conducting or engaging himself in private tuitions or private coaching classes; (e) Has been punished for indulging in or promoting unfair practices in the conduct of any examination in any form anywhere. (f) Discloses or causes to disclose to the public, in any manner whatsoever of which he has come to be in possession, due to his official position.]" Though the petitioner was desirous of getting elected as member to the authority of the university, he was not in a position to contest the election by virtue of Section 44(e) of the Maharashtra Universities Act, 1994. 6. The petitioner therefore, has approached this Court with a prayer to relax the disqualification incurred on him. 7. According to the learned Sr. Counsel Shri. Shah, the disqualification as contemplated Under Section 44(e) of the Act, is co-terminus with the duration of punishment and the said disqualification is not continuous, permanent and unlimited in point of time. According to him, petitioner was disqualified in the year 1996 for the period of three years from participating in any manner in the examinations held by the University as such cannot be held disqualified for becoming a member of the authority of the University after completion of period of three years. The petitioner wants to contest the election of the authorities of the respondent No.2, but is not being considered and is held ineligible by virtue of letter dated 08/07/2009 issued by respondent No.3. 8. The learned Sr. The petitioner wants to contest the election of the authorities of the respondent No.2, but is not being considered and is held ineligible by virtue of letter dated 08/07/2009 issued by respondent No.3. 8. The learned Sr. Counsel, has further submitted that the disqualification is not automatic. According to him, under Section 9(5) of the Maharashtra Universities Act, 1994, the Hon'ble Chancellor has to pass an order disqualifying any such member. Section 9(5) of the Maharashtra Universities Act, 1994 reads as under :- "Section 9 :- Chancellor and his Powers: (1) ................... (2) ................... (3) ................... (4) ................... (5) Where, in the opinion of the Chancellor, the conduct of any elected or nominated or appointed for co-opted member is detrimental to the smooth functioning of university or any authority or body or committee, he may, after giving such member an opportunity to offer his explanation in writing and after considering such explanation, if any, and satisfying himself that it is necessary so to do, [disqualify such member suspend him for such period as he may deem fit]." 9. Shri. A. B. Girase, learned counsel appearing for respondent Nos.2 & 3 submitted that the petitioner has been held guilty for unfair practices and was not allowed to participate in any examination of the University for a period of three years in the year 1996. According to him, the University has received a communication from the Hon'ble Chancellor stating that disqualification of membership of the authorities of the University as laid down Under Section 44 of the Maharashtra U ni versities Act, 1994 is permanent. According to him, the authorities of the University for which the petitioner is aspiring to be a member are constituted to regulate the working of the University, they are involved in taking policy decisions, maintenance of discipline, framing of Rules etc., and such a tainted person cannot be a member of the authority which is involved in the decision making process. According to him, the disqualification is permanent for being member of any of the authorities of the University. 10. We have given anxious thoughts to the arguments advanced by the respective counsels, on going through Section 44 of the Universities Act, it is manifest that the said provision in no manner restricts or limits the duration of disqualification. According to him, the disqualification is permanent for being member of any of the authorities of the University. 10. We have given anxious thoughts to the arguments advanced by the respective counsels, on going through Section 44 of the Universities Act, it is manifest that the said provision in no manner restricts or limits the duration of disqualification. In this particular case, the petitioner is disqualified for being a member of any of the authorities of the University by operation of Section of 44(E) of the Maharashtra Universities Act, 1994. 11. The learned Sr. Counsel for the petitioner referred to other local laws, and submitted that, in none of the Statutes, disqualification for purpose of contesting election is permanent or in perpetuity. According to us, other respective Acts, lay down specific period of disqualification, but the present statute does not in any manner quantify the duration of disqualification. If it is to be held that, the period of disqualification contemplated Under Section 44 is co-terminus with the duration of the punishment imposed, would be nothing but legislating, which is certainly not permissible. The plain language of Section 44 and Sub Section (e) of Section 44 is un-ambiguous, no other interpretation is permissible. If, the legislature in its wisdom had an intention to limit period of disqualification, then it would have incorporated the same in the provision. The fact that, the period of disqualification has not been quantified would lead to an irresistible conclusion that the disqualification is permanent, in perpetuity and the reason is obvious that the authorities of the University, regulate the working of the University. They are entrusted with avowed jobs, and are involved in policy decisions. They would be entitled to impose punishment if any teacher or student engages in mal-practices in the examination and for such decisions, University would not like to have tainted persons as member of the authorities. 12. Applying the literal meaning and taking into account, the phraseology of Section 44, it cannot be interpreted that the disqualification contemplated therein Under Section 44(e) is for limited duration or is co-terminus with the duration of punishment. The learned Sr. Counsel tried to submit that in case of Section 44(a), the disqualification is incurred, if a person is of unsound mind and stands so declared by the Competent Court. The learned Sr. Counsel tried to submit that in case of Section 44(a), the disqualification is incurred, if a person is of unsound mind and stands so declared by the Competent Court. According to him, after such person regains sanity the disqualification would be extinguished as the duration of disqualification would be commensurate to the unsoundness of mind. This argument does not lead us any where. The disqualification incurred by the petitioner by indulging in unfair practices in the conduct of the examination is an act, committed by him on his own volition, which reflects on the character of the person and such a stigma on the person of having committed malpractice in the examination is for his life and in perpetuity. The petitioner accepted punishment which has become final, and as such, has incurred disqualification. The said disqualification cannot be relaxed, there is no provision under the Act for relaxation of such disqualification, nor there is any room for interpretation that the disqualification Under Section 44 is co-terminus with the duration of the punishment that he has undergone. 13. The plain and literal language of Section 44 no where envisages that the disqualification contemplated therein is co-terminus with the duration of the punishment imposed upon a person. Sub-Section 5 of Section 9 also operates in a different sphere. Section 9(5) would come into operation, if a person is a member of an authority and during his term as a member of the authority he has suffered any disqualification, or his conduct is unbecoming of a member. Said provision would not be applicable in a case where the person has already incurred disqualification and, thereafter seeks election for being a member of an authority. The dictum of the Division Bench of this Court in the case of "Shankar s/o. Bhagwan Ambhore (DR.) Vs. Vice Chancellor, Dr. Babasaheb Ambedkar Marathwada University, Aurangabad and others, reported in 2006(3) Mh.L.J. 835 : 12006(4) ALL MR 522)", relied by the learned Sr. Counsel in this behalf deals with a situation when a person is a member of the authority of university and during his continuance as a member suffers disqualification. This Court held that, cessation of membership is not automatic but further order as per Section 9(5) of the Act will have to be passed. In the present case, the petitioner is seeking election/nomination for being a member of the authority. This Court held that, cessation of membership is not automatic but further order as per Section 9(5) of the Act will have to be passed. In the present case, the petitioner is seeking election/nomination for being a member of the authority. Section 9 Sub-Section 5 of the Act cannot be stretched to such f an extent, so as to include and apply even to a person who wants to get himself elected/ nominated as a member of the authority. 14. The learned Sr. Counsel, Shri. Shah relying on Section 108 of the Universities Act, contended that whenever a dispute regarding the interpretation, constitution of the authority or body arises, then in such circumstances, it is the Chancellor who has to decide the said question. According to him, in this particular case the subject matter has not been referred to the Chancellor. Section 108 reads thus :"Section 108 :- guest-ions regarding interpretation and disputes regarding constitution of the University, authority or body, etc: If any question arises regarding the interpretation of any provision of this Act, or of any Statutes, Ordinance, Regulation or Rule, or whether a person has been duly elected or appointed or nominated or co-opted as or is entitled to be a member of any authority or body of the university, the matter may, be referred, on petition by any person or body directly affected, or suo motu by the Vice-Chancellor to the Chancellor; who shall after taking such advice as he thinks necessary, decide the question, and his decision shall be final: Provided that, such reference shall be made by the Vice-Chancellor to the Chancellor upon a requisition signed by not less than twenty-five members of the Senate. " On bare reading of Section 108 it is manifest that it is also open to the petitioner to approach the Chancellor for a decision regarding his eligibility to be a member of any authority of the University. The petitioner is not precluded from approaching the chancellor as per the said provision, in such circumstances, if the petitioner if he so desires and is so advised, may approach the Chancellor in that regard. 15. In view of the above, there is no merit in the writ petition and is dismissed in liming. However, there shall be no order as to costs. Petition dismissed.