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2019 DIGILAW 421 (ALL)

Adarsh Singh v. State of U. P.

2019-02-15

AJAY BHANOT

body2019
JUDGMENT : Ajay Bhanot, J. 1. Supplementary affidavit filed is taken on record. Learned counsel for the petitioner is permitted to correct the array of parties. 2. By the order dated 13.03.2018 the candidature of the petitioner for the B.T.C. Course (Batch-2015) has been cancelled. The petitioner has assailed the order dated 13.03.2018 in the instant writ petition. 3. The petitioner was admitted to the 3rd Semester B.T.C. Course (Batch-2015). He passed the 1st and 2nd Semester examinations of the B.T.C. Course (Batch 2015). The petitioner was promoted and began to attend the classes of the 3rd Semester of the B.T.C. course. The order impugned was passed during the 3rd Semester of the B.T.C. course. Consequently, the studies of the petitioner were interrupted. 4. The order dated 13.03.2018 records that an enquiry into the validity of the candidature of the petitioner was instituted on the foot of a complaint made by one Vinod Pratap Singh. The enquiry found that the petitioner had passed the B.A. IIIrd Year as an institutional candidate from the Deen Dayal Upadhyay, Gorakhpur University in the subject of Hindi and Geography. The order dated 13.03.2018, then opines, since the petitioner had passed the B.A. IIIrd Year in the year 2015 he was enrolled in the B.A. Ist Year in the year 2012-13. The order further records that the petitioner had qualified the B.A. IIIrd Year examination as an institutional candidate in the subject of Hindi and Sanskrit from Singari Devi Smarak Mahavidyalaya, Ramnagar, District Ambedkarnagar which is affiliated to Ram Manohar Lohia, Awadh University, Faizabad. The order deduces that since the petitioner had qualified B.A. IIIrd Year examination from the Ram Manohar Lohia, Awadh University, Faizabad in the year 2013, he was enrolled as B.A. Ist Year candidate for the academic year 2013-14. 5. After referencing the aforesaid facts the order records that the petitioner was enrolled simultaneously as an institutional candidate in two Universities for the academic session 2013-14, 2014-15, which was not possible. Consequently, the certificates of graduation issued by the Universities are illegal and cannot be justified. With these findings the order dated 13.03.2018 states that the candidature of the petitioner is unconstitutional and unjustifiable, i.e., ^^voS/kkfud vkSj U;k;ksfpr ugha gS** 6. Learned counsel for the petitioner submits that the degree of the petitioner awarded by Gorakhpur University has been cancelled by the Gorakhpur University. With these findings the order dated 13.03.2018 states that the candidature of the petitioner is unconstitutional and unjustifiable, i.e., ^^voS/kkfud vkSj U;k;ksfpr ugha gS** 6. Learned counsel for the petitioner submits that the degree of the petitioner awarded by Gorakhpur University has been cancelled by the Gorakhpur University. The petitioner is in possession of the B.A. Degree of the Ram Manohar Lohia Awadh University, Faizabad. In any case he submits that there is no bar in the First Statutes of either of the University which would preclude the petitioner from pursuing two academic courses simultaneously in both the Universities. 7. Learned counsel for the petitioner submits that the order visits the petitioner with penal consequences. The order has been passed without affording any opportunity of hearing to the petitioner. This fact has not been disputed in the counter affidavit. Further the order dated 13.03.2018 holds that the degrees issued by the Universities are illegal. The authority has thus exceeded its jurisdiction by questioning the validity of the degrees issued by the recognized Universities. Further the order does not disclose any prohibition under any provision or law which prevented the petitioner from pursuing two courses simultaneously. The petitioner is fully qualified and eligible to continue the B.T.C. Course 2015. 8. The learned Standing Counsel has attempted to defend the order impugned by relying on the recitals contained therein. 9. Heard learned counsel for the parties. 10. The order dated 13.03.2018, cancels the candidature of the petitioner for the B.T.C. Course (batch-2015). The order visits the petitioner with penal consequences. Specific pleadings have been taken and categorical submissions were made that the order was passed in violation of the principles of natural justice. The pleadings have not been traversed by the respondents in the counter affidavit. The arguments could not be rebutted by the learned Standing Counsel. On the contrary, learned Standing Counsel in his usual fairness pointed out that from the records and pleadings before this court, it cannot be established that the order dated 13.03.2018 was passed in compliance with the principles of natural justice. 11. This Court finds that the order dated 13.03.2018 was passed in violation of principles of natural justice. The prejudice caused to the petitioner is beyond recall. The order is arbitrary, illegal and is liable to be set aside on this ground alone. 11. This Court finds that the order dated 13.03.2018 was passed in violation of principles of natural justice. The prejudice caused to the petitioner is beyond recall. The order is arbitrary, illegal and is liable to be set aside on this ground alone. In the established facts of the case, the breach of principles of natural justice, vitiates the order dated 13.03.2018. 12. Courts in India have frequently faced situations, where the statutes provide no guide to the procedure to be adopted by the authorities before passing orders adverse to the parties. This lack of statutory guidance left the citizens to the unguided discretion of the authorities. The authorities often adopted arbitrary procedures which lead to miscarriage of justice. The legal challenge thus posed was faced frontally and dealt with on a conceptual basis. The courts resolved the issue by evolving and entrenching the principles of natural justice in our processual jurisprudence. The principles of natural justice were set out with clarity and implemented with consistency. Today natural justice lies at the heart of procedural jurisprudence and is an indispensible element of procedural propriety. If an order which visits a person with civil consequences has been passed in breach of principles of natural justice, the order will stand vitiated. Such order cannot stand. 13. At this stage it would be apposite to understand and extract the elements of natural justice which would be relevant for a judgment on the issue at hand. 14. The case law on various aspects of natural justice is very large and largely consistent. It would not be prudent to overburden this judgment with repetitive citations. However a few relevant case laws would suffice to give a comprehensive understanding of the law and provide a clear vision for action. 15. In the case of Dharampal Satyapal Ltd. vs. Deputy Commissioner of Central Excise and Ors., (2015) 8 SCC 519 , the Hon'ble Supreme Court considered the jurisprudential foundation of natural justice and the necessity of incorporating it in administrative procedures to ensure fairness and good governance and prevent miscarriage of justice. The judgment also cites with approval past authority of the Hon'ble Supreme Court wherein principles of natural justice were held to be an integral part of Article 14 of the Constitution of India. It was also held that the principles of natural justice were applicable even when there was no statutory requirement. The judgment also cites with approval past authority of the Hon'ble Supreme Court wherein principles of natural justice were held to be an integral part of Article 14 of the Constitution of India. It was also held that the principles of natural justice were applicable even when there was no statutory requirement. The relevant extracts of the judgment are quoted here under: “24. The principles have sound jurisprudential basis. Since the function of the judicial and quasijudicial authorities is to secure justice with fairness, these principles provide great humanising factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take administrative decision and who are not necessarily discharging judicial or quasijudicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision making that decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong. 26. Allan, on the other hand, justifies the procedural fairness by following the aforesaid principles of natural justice as rooted in rule of law leading to good governance. He supports Galligan in this respect and goes to the extent by saying that it is same as ensuring dignity of individuals, in respect of whom or against whom the decision is taken, in the following words: “The instrumental value of procedures should not be underestimated; the accurate application of authoritative standards is, as Galligan clearly explains, an important aspect of treating someone with respect. But procedures also have intrinsic value in acknowledging a person's right to understand his treatment, and thereby to determine his response as a conscientious citizen, willing to make reasonable sacrifices for the public good. If obedience to law ideally entails a recognition of its morally obligatory character, there must be suitable opportunities to test its moral credentials. Procedures may also be though to have intrinsic value in so far as they constitute a fair balance between the demands of accuracy and other social needs: where the moral harm entailed by erroneous decisions is reasonably assessed and fairly distributed, procedures express society's commitment to equal concern and respect for all.” 27. Procedures may also be though to have intrinsic value in so far as they constitute a fair balance between the demands of accuracy and other social needs: where the moral harm entailed by erroneous decisions is reasonably assessed and fairly distributed, procedures express society's commitment to equal concern and respect for all.” 27. It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms. 28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not. 29. De Smith captures the essence thus "Where a statute authorises interference with properties or other rights and is silent on the question of hearing, the courts would apply rule of universal application and founded on plainest principles of natural justice". 30. Wade also emphasizes that principles of natural justice operate as implied mandatory requirements, nonobservance of which invalidates the exercise of power. 31. In Cooper v. Sand worth Board of Works (1863) 14 GB (NS) the Court laid down that: '...although there is no positive word in the statute requiring that the party shall be heard, yet justice of common law would supply the omission of Legislature". 33. 31. In Cooper v. Sand worth Board of Works (1863) 14 GB (NS) the Court laid down that: '...although there is no positive word in the statute requiring that the party shall be heard, yet justice of common law would supply the omission of Legislature". 33. In his separate opinion, concurring on this fundamental issue, Justice K. Ramaswamy echoed the aforesaid sentiments in the following words: “61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well settled law that principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice.” 34. Likewise, in C.B. Gautam v. Union of India and Ors. (1993) 1 SCC 78 , this Court once again held that principle of natural justice was applicable even though it was not statutorily required. The Court took the view that even in the absence of statutory provision to this effect, the authority was liable to give notice to the affected parties while purchasing their properties Under Section 269UD of the Income Tax Act, 1961. It was further observed that: “30.........the very fact that an imputation of tax evasion arises where an order for compulsory purchase is made and such an imputation casts a slur on the parties to the agreement to sell leads to the conclusion that before such an imputation can be made against the parties concerned they must be given an opportunity to show-cause that the under valuation in the agreement for sale was not with a view to evade tax. It is, therefore, all the more necessary that an opportunity of hearing is provided.” 35. From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. It is, therefore, all the more necessary that an opportunity of hearing is provided.” 35. From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. Later on, this principle was applied to other quasi judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A.K. Kraipak's case (supra) that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In the case of Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 also the application of principle of natural justice was extended to the administrative action of the State and its authorities. It is, thus, clear that before taking an action, service of notice and giving of hearing to the notice is required. In Maharashtra State Financial Corporation v. Suvarna Board Mills and Anr. (1994) 5 SCC 566 , this aspect was explained in the following manner: “3. It has been contended before us by the learned Counsel for the Appellant that principles of natural justice were satisfied before taking action Under Section 29, assuming that it was necessary to do so. Let it be seen whether it was so. It is well settled that natural justice cannot be placed in a straightjacket; its rules are not embodied and they do vary from case to case and from one fact situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law: All will depend on facts and circumstances of the case.” 16. In the case of Gorkha Security Services Vs Govt. of NCT of Delhi (2014) 9 SCC 105 , the Hon'ble Supreme Court provided for implied applicability of principles of natural justice to statutory provisions unless the stature specifically or by necessary implication excluded such applicability. In the case of Gorkha Security Services Vs Govt. of NCT of Delhi (2014) 9 SCC 105 , the Hon'ble Supreme Court provided for implied applicability of principles of natural justice to statutory provisions unless the stature specifically or by necessary implication excluded such applicability. The Hon'ble Supreme Court held as under: “29. However, their aim is to secure justice and to prevent miscarriage of justice. It is now well established proposition of law that unless a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice, in exercise of power prejudicially affecting another must be in conformity with the rules of natural justice. 30. We are conscious of the following words of wisdom expressed by this Court through the pen of Justice Krishna Iyer in the case of Chairman, Board of Mining Examination and Anr. v. Ramjee 1977 (2) SCC 256 : “1..If the jurisprudence of remedies were understood and applied from the perspective of social efficaciousness, the problem raised in this appeal would not have ended the erroneous way it did in the High Court. Judges must never forget that every law has a social purpose and engineering process without appreciating which justice to the law cannot be done. Here, the sociolegal situation we are faced with is a colliery, an explosive, an accident, luckily not lethal, caused by violation of a Regulation and consequential cancellation of the certificate of the delinquent shot firer, eventually quashed by the High Court, for processual solecisms, by a writ of certiorari. 13....Natural justice is no unruly horse, no lurking land mine, nor a judicial cure all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter.... 14...We cannot look at law in the abstract or natural justice as a mere arte fact. Nor can we fit into a rigid mould the concept of reasonable opportunity. ” 17. No man shall be hit below the belt that is the conscience of the matter.... 14...We cannot look at law in the abstract or natural justice as a mere arte fact. Nor can we fit into a rigid mould the concept of reasonable opportunity. ” 17. In Dharampal Satyapal Ltd. Vs Deputy Commissioner of Central Excise and Ors., (2015) 8 SCC 519 , the Hon'ble Supreme Court recognized and provided for the need to adapt the principles of natural justice with flexibility to the facts of the case. The Hon'ble Supreme Court declined to cast the principles of natural justice in any straight-jacket formula. In para 38 Hon'ble Supreme Court stated the law as under: “38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straightjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.” 18. Yet again in the case of Poonam Vs State of U.P. and Ors. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.” 18. Yet again in the case of Poonam Vs State of U.P. and Ors. (2016) 2 SCC 779 , the Hon'ble Supreme Court emphasized the need to embed principles of natural justice even when not embodied in a statute or in the rules framed there under. The Hon'ble Supreme Court also required that the administrative authorities which passed orders affecting the rights of individuals need to inform their decisions by principles of natural justice. The Hon'ble Supreme Court laid down law and in paragraph 20 of the judgment held as under: “20. In this context the authority in Sadananda Halo and Ors. v. Momtaz Ali Sheikh and Ors. (2008) 4 SCC 619 is quite pertinent. The Division Bench referred to the decision in All India SC and ST Employees' Assn. v. A. Arthur Jeen (2001) 6 SCC 380 wherein this Court had addressed the necessity in joining the necessary candidates as parties. The Court referred to the principle of natural justice as enunciated in Canara Bank v. Debasis Das (2003) 4 SCC 557 . We may profitably reproduce the same: “63...Natural justice has been variously defined. It is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on n tural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasijudicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.” And again: “63...Concept of natural justice has undergone a great deal of change in recent years. These rules are intended to prevent such authority from doing injustice.” And again: “63...Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed there under. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance.... ” 19. In the case of Alagaapuram R. Mohanraj and Ors. Vs Tamil Nadu Legislative Assembly and Ors. (2016) 6 SCC 82 , the Hon'ble Supreme drew additional contours of principles of natural justice, namely providing adverse material and an opportunity to meet the same to parties who would be adversely affected by the decision. The Hon'ble Supreme Court laid down the law on the aforesaid proposition in the following terms: 44. The principles of natural justice require that the Petitioners ought to have been granted an opportunity to see the video recording. Perhaps they might have had an opportunity to explain why the video recording does not contain any evidence/material for recommending action against all or some of them or to explain that the video recording should have been interpreted differently. 45. The Privileges Committee should have necessarily offered this opportunity, in order to make the process adopted by it compliant with the requirements of Article 14. Petitioner No. 1 in his reply letter to the notice issued by the Privileges Committee seeks permission to give further explanation when the video recording is provided to him. The Petitioner No. 3 in his reply letter states that he believes his version of his conduct will be proven by the video recording. The other Petitioners do not mention the video recording in their reply letters. However, it is not the Petitioners' burden to request for a copy of the video recording. The Petitioner No. 3 in his reply letter states that he believes his version of his conduct will be proven by the video recording. The other Petitioners do not mention the video recording in their reply letters. However, it is not the Petitioners' burden to request for a copy of the video recording. It is the legal obligation of the Privileges Committee to ensure that a copy of the video recording is supplied to the Petitioners in order to satisfy the requirements of the principles of natural justice The failure to supply a copy of the video recording or affording an opportunity to the Petitioners to view the video recording relied upon by the committee in our view clearly resulted in the violation of the principles of natural justice i.e. a denial of a reasonable opportunity to meet the case. We, therefore, have no option but to set aside the impugned resolution dated 31.03.2015 passed in the Tamil Nadu Legislative Assembly. The same is accordingly set aside.” 20. The order dated 13.03.2018 does not record any act of fraud on the part of the petitioner. The order alleges in vague terms that the acquisition of the degrees by the petitioner was “unconstitutional”. This is a vague finding. No specific provisions of law, which were allegedly violated, have been cited. The candidature of a candidate cannot be invalidated on such weak and vague grounds. There are other aspects to the matter as well. The degrees were issued to the petitioner by recognized Universities. The competent authority to recall the degree is the University itself or a competent Court of law. No other authority can sit in the judgment nor a decree conferred by a recognized University. In case all and a sundry are permitted to sit in judgment and invalidate degrees issued by recognized Universities, the sanctity of the degrees would be called in question. The system of awarding degrees would be in a disarray. It will create uncertainty in the careers and lives of students. 21. It is noteworthy that in the instant case, no proceedings were taken out by the Universities into the issue of alleged lack of validity of the degrees. No specific provision of law has been pointed out which prohibited the petitioner pursing the degree courses simultaneously. 22. It will create uncertainty in the careers and lives of students. 21. It is noteworthy that in the instant case, no proceedings were taken out by the Universities into the issue of alleged lack of validity of the degrees. No specific provision of law has been pointed out which prohibited the petitioner pursing the degree courses simultaneously. 22. In such a situation, the degrees issued by such Universities cannot be called in question or invalidated, nor can effect of the degree be diluted by the respondents No.2 or 4. In the wake of above, this Court finds that the order dated 13.03.2018 was beyond jurisdiction. Besides the degree awarded by the Gorakhpur University has now been cancelled, at the instance of the petitioner. 23. The cumulative effect of the narrative in the preceding paragraphs is the order dated 13.03.2018 which is arbitrary, illegal and cannot stand. The impugned order dated 13.03.2018 is quashed. 24. The matter is remitted to respondent no. 3, Secretary, Examination Regulatory Authority, U.P. Allahabad. The petitioner shall be permitted to continue the B.T.C. Course (now called D.L.Ed. course) from the 3rd Semester onwards. The petitioner was admitted in the B.T.C. Course (batch-2015). However, the petitioner shall now be permitted to appear in the 3rd Semester Examination of the D.L.Ed. Course, 2017 which will be conducted in May, 2019 by the respondents. 25. Sri Ramesh Chandra Misra, learned counsel for the complainant/caveator submits that the caveator/complainant does not press his complaint. 26. The writ petition is allowed.