Khagendra Nath Paul vs State of West Bengal

Satyabrata Sinha, J.—The writ Petitioner-Appellant being aggrieved by and dissatisfied with a judgment and order dated July 22, 1996 has filed this writ application amongst others, against the District Inspector of Schools, Secondary Education, 24-Parganas (South) claiming, inter alia, the following reliefs:

(a) Issue a Writ in the nature of mandamus directing the Respondents:

(i) to act in accordance to law;

(ii) direct the Respondent the District Inspector of Schools (S.E.) 24-Parganas (S) to approve the panel filed by the Respondent for the post of Assistant Headmaster of Bratachari Vidyasram which was prepared by the Selection Committee on 10.9.1989 and which was sent to the District Inspector of School by the Managing Committee on 20.9.88 under Memo No. 159/DI/lnt(AKM)/89;

(iii) direct the Respondent not to hold any meeting on 22.2.94 or on any other day for recasting the panel;

(b) Issue a writ in the nature of certiorari directing the Respondents to produce all the relevant papers and documents at the time of hearing, so that a conscionable justice may be done by quashing the same ;

(c) Rule in terms of prayer,

(d) Issue an order of injunction restraining the Respondents Managing Committee from recasting or cancelling the panel which was sent as per interview held on 10.9.89 by the Managing Committee and the panel sent to the District Inspector of School on 20.9.89;

(e) Issue a mandatory order directing the District Inspector of Schools for approving the panel which was sent to him by the Managing Committee on 20.9.89 in the interview dated 10.9.89 for appointment of an Asstt. Headmaster of the school;

(f) Issue an order of injunction restraining the Respondents from interfering in any way with the functioning of the Petitioner as an Assistant Teacher of the School and also for calling of any nature.

The fact of the matter shortly stated is as follows:

The Petitioner was appointed as an Assistant Teacher in Bratachari Vidyasram situate at Joka Thakurpukur (hereinafter referred to as the said School). While he was serving as a teacher he was deputed for undergoing the Courses of B.Ed. It appears that the Petitioner was permitted to undergo the courses of studies of M.Sc. in Jadavpur University and B.Ed. in Calcutta University simultaneously by the then Secretary of the School. If further appears that he was submitted as a student in B.Sc. Course in Jadavpur University in 1977. He appeared in M.Sc. Part-I examination hold in May, 1981.

He appeared in M.Sc. Part-II examination held in September, 1982 and he passed his B.Ed. examination in 1983.

In post of Asstt. Head Master in the School fell vacant and the Petitioner applied therefor on August 31, 1989- A panel was prepared wherein the name of the Petitioner was at Serial No. 2. Admittedly Smt. Chandana Bandapadhyay whose name was placed at Serial No. 1 in the panel, left her job as the Assistant Teacher.

The said panel was sent to the District Inspector of Schools for approval but the same was sent for recasting thereof pursuant to a letter of complaint of one Swapan Kantha dated February 26, 1990 wherein it was alleged that the Petitioner had completed his M.Sc. in the Evening Course at Jadavpur University during the Session 1979-80 and completed B.Ed. Examination on deputation in 1980-81 and passed his M.Sc. Examination in 1982 and B.Ed. Examination in 1983 which is illegal.

Admittedly certain correspondences passed between the authorities of the School and the concerned Universities and according to them a candidate can pursue his studies only in one University at a time. The Petitioner at that time filed a writ application and by an order dated February 28, 1994 a learned single Judge of this Court while issuing direction for filing affidavits also directed that the order would not prevent the school to appoint teacher on ad hoc basis. On or about March 17, 1994 Sri Partha Roy Chowdhury pursuant to an order passed in the writ application, was appointed as Assistant Headmaster on an ad hoc basis with effect from the date of his joining in his school subject to the final decision in the writ application.

The learned trial Judge by reason of the impugned order, inter alia, held:

The post having been filled up upon approval of the panel, the writ application has become in fructuous;

In view of the rules of the University debarring students from pursuing two courses of studies at the same time, the District Inspector of Schools was right in rejecting the Petitioner''s candidature, and, thus, the impugned order cannot be said to be arbitrary or unreasonable;

The District Inspector of Schools (S.E.) was statutorily competent to consider the panel and pass an appropriate order.

The writ Court grants equitable relief and the Petitioner having not approached the Court with clean hands is not entitled thereto;

It was directed:

In any case since the panel has already been approved and intimated to the School Authorities and the School Authorities have already issued appointment letter to the candidate concerned this writ application has become infructuous and accordingly the same is dismissed, of but in the circumstances without costs.

Mr. J.K. Gupta, the learned Counsel appearing on behalf of the Appellant submitted that the relevant ordinance of the Jadavpur University upon which reliance has been placed by the Respondents was approved by the Chancellor on August 7, 1985 and, thus, there was no bar at the relevant time to pursue two Courses of studies simultaneously. According to the learned Counsel the Petitioner had undergone the course in M.Sc. Mathematics (Evening Courses) under Jadavpur University for the year 1977-78 upto June, 1980 and attended B.Ed. Course under Calcutta University from July, 1980 to May 15, 1981.

Our attention was further drawn to the fact that Jadavpur University has issued the migration certificate in terms of its letter dated April 2, 1984 bearing No. 211 of 1983-84. The learned Counsel has further brought to our notice a letter dated December 10, 1986 issued by the Registrar, Calcutta University, from a perusal whereof it appears that his migration had been sanctioned and his old registration number would remain in force. It was, therefore, contended that the impugned judgment is erroneous in law.

Mr. Bhattacharya ''the learned Counsel appearing on behalf of the Respondents, however, submitted that the Mark-Sheets produced by the Petitioner would clearly show that the courses of studies for obtaining M.Sc. degree being for a period of 3 years, the Petitioner cannot be said to have completed the same until he had taken the examination and admittedly while pursuing the said courses of studies, he took admission in B.Ed. Course in Calcutta University by suppressing the material facts the same was illegal. Admittedly, he dropped his B.Ed. Examination in 1981 and passed in 1983. The learned Counsel has drawn our attention to the letters, of the Assistant Registrars of Jadavpur University dated December 23, 1992 wherein Clause 1(vii) of Chapter-II of the first Ordinance of the Jadavpur University Act had been referred as also the letter of the Assistant Registrar of Calcutta University dated September 13, 1993 wherein it was contended that a student is not allowed to continue to pursue two Courses simultaneously, in that University as also in another University. It was submitted that in terms of Section 4(13) of Jadavpur University Act, 1981 the University has the power to withdraw and cancel degrees, titles etc. In any event, contends the learned Counsel, the District Inspector of Schools being the competent authority and having taken such a decision, the same cannot be interfered with by this Court. Mr. Bhattacharya would also urge that the Petitioner having not approached this Court with clear hands is not entitled to any equitable relief.

The first question which, therefore, arises for consideration is whether the Courses of studies undertaken by the Petitioners were overlapping. Although the Petitioner might have attended classes in Jadavpur University for one course upto June, 1980 and B.Ed. Courses in Calcutta University from July, 1980, admittedly, he appeared at the M.Sc. Part-I Examination held in May, 1981 and Part-II in September, 1982. He appeared at the B.Ed. Examination in 1983.

Therefore, he undertook the Courses of studies in the same Session. The question, however, which arises for consideration as to whether thereby he has violated any regulation or not. Section 47 of the Jadavpur University Act upon which strong reliance has been placed by Mr. Bhattacharya provides for submission thereof for assent before the Chancellor and the same is to come into force on being assented to by the Chancellor.

Sub-section (5) of Section 47 of the said Act provides that an Ordinance unless cancelled or modified by the Chancellor shall remain in force until repealed or amended by a new Ordinance similarly passed and brought into force. Nothing has been brought to our notice to show that a similar Ordinance was in existence earlier. However, from the Jadavpur University First Ordinance, to which reference has been made by the Registrar of the said University in his aforementioned letter dated December 23, 1992 it would appear that Rule 7 hereof prohibits any undergraduate or postgraduate student to pursue any other course of study leading to a degree simultaneously in that or any other University, was approved by the Chancellor only on August 7, 1985.

Thus, it does not appear that there existed any provision which prohibited the Petitioner to undergo two courses at the same time in two different Universities. The letter of the Asstt. Registrar of the Calcutta University does not refer to any rule or statute and, thus, the same amounts to hearsay evidence. No presumption can be drawn as to the existence of a statute on the basis of such a letter alone as it was obligatory on the part of the Respondents to show existence of such laws, if any, before this Court. In any event, the effect of violation of provision of any such law would be that the University itself may take action as against the concerned candidate. Section 4(13) of the Jadavpur University Act, inter alia, empowers it:

to withdraw or cancel degrees, titles, diplomas, certificates or other academic, distinctions under such conditions as may be prescribed by Statutes and after giving the person affected a reasonable opportunity to present his case.

It is, thus, for the University only to withdraw or cancel the degree under such condition as may be prescribed by the statutes and after giving the person a reasonable opportunity to present his case. Nothing has been brought to our notice that there exists any rule prescribed by statute for taking recourse to such a power. In any event, such a power can be exercised only upon giving an opportunity of hearing to the affected person. Admittedly, the University has not cancelled the degrees obtained by the writ Petitioner-Appellant.

It is well known that right to exercise the power includes right not to do the same. The University may or may not cancel the degrees held by the Petitioner.

Even assuming that he has violated the provision of the Ordinance, so long the degrees obtained by the Petitioner are not cancelled by the concerned University, the same would remain in force and all concerned are bound to give effect thereto. As the power to cancel a degree is only vested in the University, evidently, the school authorities or the District Inspector of Schools cannot deprive the Petitioner from having the benefit thereof inasmuch as it well known that a person cannot be permitted to do something indirectly which he cannot do directly.

It is also well known that an order which is void or voidable remains valid unless it is declared as such.

An executive order even may not be permitted to be questioned collaterally. Even a Court of law may decline to set aside a void order on certain grounds. As noticed hereinbefore, it is only for the University alone to take action against the Petitioner. Unless the degrees obtained by the Petitioner are cancelled by passing a valid order by the University, the same would remain valid and all concerned including the school authorities and the District Inspector of Schools would be bound to give effect the etc.

Furthermore, the Petitioner had been working as an Asstt. Teacher in the school in question from March 14, 1975. The Petitioner had placed all relevant documents before the school authorities and the District Inspector of Schools. The concerned authorities of the schools, viz. the selection committee and the managing committee had included his name in the panel upon verification of his testimonials. They cannot, therefore, be permitted to resile therefrom. Furthermore, if the Petitioner has committed any misconduct, he could have been charge sheeted and a departmental proceedings could have been initiated against him. Nothing of that sort has been done and in that view of the matter, the Petitioner cannot be deprived of his appointment to the post of Assistant Headmaster if he is otherwise entitled thereto.

It is true as has been held by the learned trial Judge that the Court, while exercising its jurisdiction under Article 226 of the Constitution of India, grants an equitable reliefs, and, thus, it may refuse to grant a relief if the Petitioner approaches the Court with unclean hands. However, nothing has been shown before this Court that the Petitioner has approached the Court with unclean hands. In this connection reference may be made to the following passage from Spry on Equitable Remedies at page 5 where the learned Author says:

An example is found in the use of the maxim, he who seeks equity must approach the Court with clean hands. It is doubtless a maxim which is both striking and succinct, and which may be found to be of value for many explanatory or justificatory purposes. But when its content is examined it is seen that it is of little or no use in assisting a Court to decide whether, if specific performance is sought, relief should in the particular circumstances be refused. Thus indeed it has been established that even a Plaintiff who has been guilty of fraud, which is hardly consistent with clean hands, may under some circumstances obtain equitable relief, such as where, for example, the material fraud has been waived by the other party and there is no additional consideration which renders the grant of that relief unjust. Again, it has been said that the absence of clean hands is of no account ''unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity used for.

We further hold that keeping in view the interim order passed by this Court this writ application had not become infructuous only because, another teacher has been appointed in his place. It is now well settled that when this is permitted to be done on condition that the same would be subject to the result of the writ application and in particular when the appointment in question has been made on an ad hoc basis and subject to the result of the writ application, the Court cannot refuse to grant relief to the Petitioner. The learned trial Judge, therefore erred in law in holding that this writ application has become infructuous.

For the foregoing reasons we are unable to uphold the judgment passed by the learned trial Judge which is accordingly set aside. The writ petition filed by the Appellant, therefore, is allowed and the Respondents are directed to act in terms of the decree treating the Petitioner to be a valid holder of'' M.Sc. and B.Ed. degrees. But this order shall not prevent the concerned Universities to take appropriate action against the Petitioner if they are so advised and in accordance with law. The appeal is, therefore, allowed but in the facts and circumstances of this case there will be no order as to costs.

Ruma Pal, J.

I agree.