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2018 DIGILAW 727 (CAL)

Utpal Sharma v. Akshay Pant

2018-09-28

BISWANATH SOMADDER, SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : Sabyasachi Bhattacharyya, J. 1. The present six mandamus appeals are taken up together for hearing in view of those having arisen out of several orders passed by a learned Single Judge in a single writ petition, bearing WP No. 271 of 2016 (Akshay Pant v. Union of India and others). 2. Three of the appeals have been preferred by the Lieutenant Governor, Andaman and Nicobar Islands and the Secretary (Education), Andaman and Nicobar Administration against orders dated August 09, 2018, August 16, 2018 and August 20, 2018. The other three appeals have been preferred by Dr. Utpal Sharma, against the same three orders. Dr. Sharma was the private respondent in the said writ petition. 3. The writ petition was filed in the form of a public interest litigation, seeking a writ of quo warranto. The present respondent No. 1, namely, Akshay Pant, preferred the said writ petition, challenging the appointment and functioning of Dr. Utpal Sharma as the Principal, Dr. B.R. Ambedkar Institute of Technology, Pahargaon, Port Blair. As per the respondent No. 1 (the petitioner in the writ petition), Dr. Sharma had produced fake certificates to be appointed to the said post of Principal and had no authority to continue in the said post. 4. The learned Single Judge, while passing the first of the impugned orders, dated August 09, 2018, proceeded from the inception on the premise that the document annexed at page 36 of the writ petition appeared to be fraudulent. The reason behind such observation was, according to the learned Single Judge, that the date of issuance of the certificate in question was sometime in the year 1974, whereas it pertained to an examination held in the month of May 1983. Paragraphs 12 and 13 of the affidavit-in-opposition filed by the respondent nos. 1 and 2 in the writ petition, paragraph 23 of the affidavit-in-opposition used by the respondent No. 8 (Dr. Utpal Sharma) as well as paragraph 13 of the last mentioned affidavit, according to the learned Single Judge, indicated that the pass certificate relating to the B.E. examination of Dr. Sharma did not appear to be genuine. The learned Judge went on to find that although a copy of a letter from the Controller of Examination of Osmania University, which had conferred the B.E. Degree on Dr. Sharma did not appear to be genuine. The learned Judge went on to find that although a copy of a letter from the Controller of Examination of Osmania University, which had conferred the B.E. Degree on Dr. Sharma, was produced, the said letter was of recent vintage and could not be said to be contemporaneous with the issuance of the certificate. Accordingly, the respondent No. 8 in the writ petition was held not to have the basic qualification to be appointed as a Principal of the Polytechnic, which was later merged in and upgraded as an Institute of Technology. 5. It was observed in the order dated August 09, 2018 that upgrading the respondent No. 8 therein along with the institute was wholly illegal. The Union of India and the Administration were given one more chance to correct their "arbitrary steps in showing undue favour to the respondent No. 8". Certain other observations were made against the Administration and time was granted to the respondents until the next Circuit to come back with instructions as to how quickly they could initiate a process of selection of a duly qualified person as Principal of the upgraded institute, naturally after cancelling the appointment of the present incumbent/respondent No. 8 as Principal. In case such selection was made, it was clarified that nothing in the final order which was proposed by the learned Single Judge to be passed would prevent the respondent No. 8 from competing for the said post and for participating in the selection process if he could show genuine qualifications including mark sheets and pass certificates which would establish beyond doubt that he acquired the qualifications necessary for the post. The writ petition was directed to appear for further consideration before the next Circuit. 6. The learned Single Judge held that the order would not prevent the official respondents from ascertaining whether the private respondent No. 8 therein actually acquired a Bachelor Degree and a Master Degree in Engineering and a Doctorate in Philosophy, as alleged by him in his affidavit-in-opposition and, if so, on which dates. The official respondents were given liberty to disclose the letter by which they sought such clarification, the answer thereto and any document sent therewith to the official respondents by way of a rejoinder to the affidavit-in-reply. The official respondents were given liberty to disclose the letter by which they sought such clarification, the answer thereto and any document sent therewith to the official respondents by way of a rejoinder to the affidavit-in-reply. The writ petitioner was given liberty to use a sur-rejoinder which would be the last pleadings to be used in the writ petition. 7. The learned Single Judge held that until such clarification, if any, was obtained, the eighth respondent in the writ petition was restrained from discharging any duty as Principal of the upgraded Institute of Technology; all his functions would be discharged by the next senior most Professor who would carry on and discharge the duties of the Principal. It was expected by the learned Single Judge that authorities of the respective universities should send answer to the request for clarification within seven days from the receipt of the request of clarification. The parties were injuncted from communicating the order to any person whosoever excepting to the authorities themselves for compliance with the order. Any reportage of the contents of the order was to be construed as contempt of Court, as per the learned Single Judge. 8. Apparently, by a subsequent order dated August 10, 2018 (not under challenge in the present appeals), certain directions were issued for consideration as to whether suo moto rule of contempt should be issued against one Deepak Mandal for having circulated the previous order on social media. 9. The matter next came up on August 16, 2018, before the learned Single Judge, which gave rise to the second impugned order. By such order, Deepak Mandal was cautioned and released from police custody with certain observation. It was further observed that the original message on social media was sent by one Mr. Sanjay Kumar, lecturer of Enterprises Solutions of Dr B.R. Ambedkar Institute of Technology. The said Mr. Kumar was not responding to the telephone calls made by the police authorities, as recorded by the learned Single Judge. As such, the police authorities were allowed further time to comply with the order dated August 10, 2018. Meanwhile, it was observed, Mr. Sanjay Kumar was a lecturer of the same institute where the respondent No. 8 was serving as a Principal and apparently Mr. Kumar had an axe to grind in the matter. Accordingly, Mr. Sanjay Kumar was directed to be added as party respondent no. Meanwhile, it was observed, Mr. Sanjay Kumar was a lecturer of the same institute where the respondent No. 8 was serving as a Principal and apparently Mr. Kumar had an axe to grind in the matter. Accordingly, Mr. Sanjay Kumar was directed to be added as party respondent no. 9 to the writ petition and a copy of the petition and orders passed therein were directed to be served on him by the Administration. The presence of Mr. Kumar was directed to be ensured by the police authorities before the next circuit, after service was effected. Since damage had already been done, according to the learned Single Judge, the original interim order relating to reportage of the proceeding of the case was modified to the extent of restraining any information relating to the case being circulated in any social media or print media or in any media whatsoever excepting certified photocopy of the order or orders passed in the proceeding. 10. An application, bearing CAN 091 of 2018, was taken out in connection with the writ petition by the respondent Nos. 5 and 6 therein, which was dismissed on the technical ground that it contained certain errors. However, the documents sought to be relied on by the said respondent, since also a part of a rejoinder, were permitted to be relied on by the respondent No. 5 and 6 to the writ petition. 11. The Administration prayed for recall of the portion of the order dated August 09, 2018 by which the respondent No. 8 in the writ petition was directed not to discharge any duties as the Principal of the upgraded Institute of Technology. Documents were relied on which showed that the concerned University had declared that the certificates in question were genuine, except for a mistake as to the date of issuance, which was observed in the declaration of the University as "may be rectified". It was submitted that the question was no longer that the documents were fraudulent, even prima facie, but whether they could not be relied upon. 12. It was submitted that the question was no longer that the documents were fraudulent, even prima facie, but whether they could not be relied upon. 12. Certain judgments cited on behalf of the Administration were discussed by the learned Single Judge and ultimately the Bench observed that it had never intended to cause anguish to the members of the permanent Civil Service, on whose shoulders the burden of Administration always falls, who are first to suffer the brickbats and the last to get the bouquets. Such observations, as made in the order dated August 09, 2018 against the Administration, were struck off and expunged from the records. 13. The contention of the Administration, that the discrepancy in the date of issuance of the pass certificate was an error, was disbelieved by the learned Single Judge on the finding that the mistake was yet to be rectified. Since it was declared by the concerned University that the details furnished by the respondent No. 8 in the writ petition were "genuine (except the date of issuance of the certificate)", it was held by the learned Single Judge that the authority had found that the certificate in question was not genuine. It was further held that the certificate was fake. Accordingly, the learned Single Judge refused to recall the interim order, even on the basis of the documents disclosed on August 20, 2018, in Court. The learned Single Judge held that the question of variation of the interim order would be considered and the writ petition would be heard on merit before the next Circuit. 14. Thereafter, the matter came up before the learned Single Judge on August 20, 2018, when it was observed that the respondent No. 8 in the writ petition must demonstrate beyond a shadow of doubt that as on the date of his appointment he had a genuine certificate to support his baccalaureate qualification. 14. Thereafter, the matter came up before the learned Single Judge on August 20, 2018, when it was observed that the respondent No. 8 in the writ petition must demonstrate beyond a shadow of doubt that as on the date of his appointment he had a genuine certificate to support his baccalaureate qualification. The premise of such observation was again the discrepancy in the date of issuance of pass certificate produced by the respondent No. 8 with the writ petition The earlier interim order was modified to the extent that while the respondent No. 8 "shall not function at present as a Principal" of the concerned Institute of Technology and his appointment shall abide by the result of the writ petition, the person who shall officiate as a Principal shall be decided by the Administration in conjunction with the UPSC, which was the respondent No. 3 to the writ petition. 15. It was further observed that pendency of the writ petition or the subsistence of the interim order would not prevent the respondent No. 3 and the Administration from initiating the process for fresh selection for the position of Principal of the concerned Institute of Technology and even to fill up such position subject to the result of the writ petition. 16. Learned Single Judge observed that in case the respondent No. 8 could satisfy the authorities that he had the said qualification as on the date of the advertisement when such fresh selection starts, he might also participate in the said fresh selection and, if eligible, might be chosen and appointed. The added respondent, Sanjay Kumar Puri, was granted leave to file vakalatnama through his learned advocate on record. It was made clear in the order dated August 20, 2018, that pendency of the writ petition would not prevent the appropriate authority of the Osmania University in issuing a corrected certificate in accordance with law in favour of the respondent No. 8 in the writ petition. The original of the certificate, a copy of which had been annexed to the pleading, was directed to be filed in the records of the Court and kept in a sealed cover. Both the respondent No. 8 in the writ petition, namely Dr. Utpal Sharma, and the Administration have challenged the said three orders in separate sets of appeals. 17. The original of the certificate, a copy of which had been annexed to the pleading, was directed to be filed in the records of the Court and kept in a sealed cover. Both the respondent No. 8 in the writ petition, namely Dr. Utpal Sharma, and the Administration have challenged the said three orders in separate sets of appeals. 17. The common contention of the appellants in both sets of appeals is that the learned Single Judge acted wholly without jurisdiction in forming a preconceived notion as to the certificate in question being fraudulent and fake. It is submitted that the discrepancy in the date of issuance of such certificate was obviously a mistake, as admitted by the Osmania University, which issued the certificate, itself. It is argued that the date of issuance of the certificate was irrelevant and was rendered academic in view of the University itself having clarified in its letter dated August 13, 2018 that not only had Utpal Sharma furnished correct details which were found to be genuine by the University barring the date of issuance of the certificate, the said Utpal Sharma (subsequently Dr. Utpal Sharma) had completed his Bachelor of Engineering course in the first division with distinction, in the month of May, 1983. He had also studied Master of Engineering and completed the course with first division in the month of December, 1997, the details regarding which were also genuine. The only apparent error was in the date of issuance of the certificate, which was the fault of the University at best and could not be attributed to Dr. Utpal Sharma at all. 18. It was further argued that the impugned orders amounted to prejudging the entire writ petition prior to hearing the same on merits. Since the Administration had been permitted to decide in conjunction with the UPSC as to the person who should officiate as a Principal in place of the said Dr. Utpal Sharma and it was held that the Administration would not be prevented from initiating the process for fresh selection for the position of Principal and even to fill up such position, subject to the result of the writ, nothing remained to be decided in the writ. 19. Accordingly, it was submitted that the impugned orders ought to be set aside. 20. 19. Accordingly, it was submitted that the impugned orders ought to be set aside. 20. Controverting such contentions, the private respondent, who was the writ petitioner before the learned Single Judge, submitted that there were several other discrepancies even apart from the mistake in the date of issuance of pass certificate of Dr. Utpal Sharma. Such patent discrepancies were overlooked by the Administration while appointing Dr. Sharma as a Principal. 21. Learned counsel for the private respondent? Akshay Pant, further argues that learned Single Judge acted within jurisdiction in passing the impugned orders inasmuch as the pass certificate in question was admittedly issued later than what was recorded in the certificate itself. As such, the correct presumption was drawn by the learned Single Judge as to the certificate being fake. 22. In normal circumstances, while deciding Intra-Court Mandamus appeals, nitty-gritty's of findings and niceties of law -- let alone fact -- are generally not looked into. Interference is usually warranted only in such cases where the order of the learned Single Judge suffered from gross infirmities or was palpably perverse or patently without jurisdiction. 23. In the present case, it appears that the observations of the learned Single Judge in the first impugned order dated August 09, 2018 were overwhelmingly influenced by the discrepancy in the date of issuance of the pass certificate. Although the certificate was obtained for an examination held in the month of May, 1983, the date of issuance of the same was recorded to be in 1974. However, merely on such error apparent on the face of the certificate, there was no scope for forming the preconceived notion that the same was fraudulent and fake. There was always scope of a bona fide error in recording of such date. 24. Even if the date of issuance was erroneously recorded in the certificate itself, such error could at best be attributed to the University which had issued the certificate and no fault could be attributed to the respondent No. 8 in the present writ petition. Moreover, the learned Single Judge perpetuated the observation as to the certificate being fake, even in the teeth of a declaration issued by the concerned University itself that all details furnished by Dr. Utpal Sharma were genuine. 25. Moreover, the learned Single Judge perpetuated the observation as to the certificate being fake, even in the teeth of a declaration issued by the concerned University itself that all details furnished by Dr. Utpal Sharma were genuine. 25. In the declaration itself; to be precise, in the sentence immediately succeeding the statement that the details were genuine "except the date of issuance of the certificate", it was specifically clarified by the Osmania University through its Controller of Examination that the convocation stamp used in the pass certificate was erroneous. Instead of 1984', the year 1974' was imprinted by the stamp, which gave rise to an inadvertent error. In the same declaration, the university unequivocally declared that Utpal Sharma not only completed his Bachelor of Engineering in the first division with distinction, but the incumbent had also completed his Master of Engineering course with first division. 26. This apart, the Indian Institute of Technology, Kharagpur, also gave a declaration that the said Utpal Sharma was awarded a degree of Doctor of Philosophy at the 58th Annual Convocation held on September 15, 2012, thereby corroborating the details furnished by Dr. Utpal Sharma as to his doctorate as well. 27. Such documents and the combined effect thereof were totally overlooked and/or ignored by the learned Single Judge while passing the impugned order. 28. The error, if any, on the date of issuance of the certificate, was not only technical in nature but was, admittedly, attributable to the concerned University. The details furnished by the candidate, Dr. Utpal Sharma, was declared to be genuine in respect of his Bachelor of Engineering, Master and Doctoral degrees by all the concerned institutes, at all levels. Such genuineness rendered the minor discrepancy in respect of the date of issuance of the certificate to the realm of insignificance. 29. This apart, the observations as to the certificate being fraudulent -- as recorded in the impugned order -- could not have been arrived at "prima facie", without any detailed enquiry, and that too, at the premature stage of entertaining the writ petition. The principles embodied under Order VI Rule 4 of the Code of Civil Procedure with regard to furnishing of particulars as to the nature of alleged fraud, was not at all complied with in the writ petition. The principles embodied under Order VI Rule 4 of the Code of Civil Procedure with regard to furnishing of particulars as to the nature of alleged fraud, was not at all complied with in the writ petition. No unambiguous proof was furnished at all as to any fraud being practised or as to any motive being attributable to the respondent No. 8 in the writ petition for practising such fraud. 30. It was entirely upon the institutes issuing the degrees to Dr. Utpal Sharma to have challenged the degrees. Let alone challenge, all the concerned institutes repeatedly corroborated and reaffirmed the genuineness of the details furnished by Dr Sharma for being appointed as the Principal. Despite such documents being on record, those were discarded and/or overlooked and/or glossed over merely because those were not contemporaneous with the issuance of the certificate under consideration, which, in the circumstances, was a totally irrelevant yardstick. 31. Although the observation as to the Administration having extended undue favour to the respondent No. 8 in the writ petition and arbitrary steps having been taken, were expunged, those formed an integral part of the ratio behind the initial ad interim order, which was perpetuated later. In view of the expunction of the observations, such perpetuation by the subsequent orders was ex facie without jurisdiction. 32. Furthermore, the stringent measure taken against Dr. Utpal Sharma by dint of the initial ad interim order was entirely premature and sealed the fate of Dr. Sharma without hearing the writ petition against him on merits. 33. Although the Quo Warranto writ petition was kept pending and the interim orders were subjected to the result of the writ petition, for all practical purposes, finality was given to the fate of Dr. Sharma by permitting, nay, directing, the Administration to proceed with fresh selection process and appointing a new incumbent to the post-in-question. In the same breath, Dr. Sharma was given opportunity to apply afresh for the same post, the fate of which was made subject to the result of the writ petition. If the appointment of Dr. Sharma was to be abide by the result of the writ, there could not be any occasion for a fresh selection in the meantime, wherein Dr. Sharma was given liberty to apply afresh, thereby giving go by to his already existing appointment. If the appointment of Dr. Sharma was to be abide by the result of the writ, there could not be any occasion for a fresh selection in the meantime, wherein Dr. Sharma was given liberty to apply afresh, thereby giving go by to his already existing appointment. Such a Catch-22 situation itself rendered the orders under challenge nugatory and lent an air of absurdity thereto. 34. That apart, the addition of Sanjay Kumar Puri as a respondent to the quo warranto petition merely because he had "an axe to grind in the matter" had no sound logic or rationale behind it. "An axe to grind" does not give any person a locus standi to be impleaded in a writ petition in the nature of quo warranto and could at best give rise to a cause of action to such person for raising a private dispute in an independent proceeding. Hence, such interim order of addition of Sanjay Kumar Puri as respondent no. 9 cannot also be sustained. 35. Since the writ petition itself was kept pending, the rigmarole of a fresh appointment at a substantially huge public expenditure was entirely unnecessary and uncalled for. An absurdity would arise in the event Dr. Utpal Sharma participated in the fresh selection process as per the direction of the learned Single Judge and was selected, while subsequently, the writ petition was dismissed, thereby retaining Dr. Sharma in his original post of Principal. In such a situation, Dr. Utpal Sharma would have the rare distinction of joining as his own junior in the same post twice over ! 36. Moreover, if such selection process was completed and ultimately Dr. Sharma proved his credentials then he would be, in any event, be entitled to retain his original post as the Principal, thereby rendering nugatory the subsequent selection process. Such a situation would then be evocative of the proverbial time warp of science fiction lore and could itself be justification enough for setting aside the orders impugned in the appeals. 37. Hence, the three orders impugned in the six appeals suffer from palpable infirmities bordering on perversities, apart from suffering patent jurisdictional error, thereby justifying interference even in an Intra-Court appeal, where such interference is seldom warranted. 38. 37. Hence, the three orders impugned in the six appeals suffer from palpable infirmities bordering on perversities, apart from suffering patent jurisdictional error, thereby justifying interference even in an Intra-Court appeal, where such interference is seldom warranted. 38. Accordingly, all the six appeals, bearing MA No. 032 of 2018, MA No. 033 of 2018, MA No. 034 of 2018, MA No. 037 of 2018, MA No. 038 of 2018 and MA No. 039 of 2018 are allowed and the impugned orders dated August 09, 2018, August 16, 2018 and August 20, 2018 passed in WP No. 271 of 2018 are set aside. All applications filed in connection with such appeals stand disposed of accordingly. 39. Although virtually nothing remains to be decided in respect of the writ petition, being WP No. 271 of 2016, since the orders impugned were ad-interim in nature, let the writ petition be placed before a learned Single Judge in the next Circuit for necessary order. 40. For unnecessary harassment caused to the appellants herein, respondent No. 1 Akshay Pant will pay costs assessed at Rs. 20,000/- to the appellant(s) in each of the six appeals within a fortnight from date. In default of such payment, the appellant(s) in each of the appeal will be at liberty to take appropriate steps for execution of the same as a money award. 41. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of requisite formalities.