Institution Of Mechanical ... vs Union Of India And Ors.
2002 Latest Caselaw 31 Del

JUDGMENT

Mukul Mudgal, J.

1. This is an application for interim stay in the above writ petition. The writ petition seeks the following relief:-

"a) issue writ of Certiorari or any other appropriate writ, order or direction to set aside as illegal and bad in law the proceedings and conclusion of the 3rd High Level Committee held on 09.05.2001 and the subsequent Notification (60) dated 23.05.2001 issued by the Respondent".

2. The writ petition avers as under :-

(a) The petitioner institution has 75,000 students members and 1,000 corporate members.

(b) That the institution was working satisfactorily, but due to ouster of Mr. R.N. Engineer on 30-8-99, the said Mr. Engineer on account of being ousted from the post of President, started conducting a campaign against the petitioner institution and on the complaint of Mr. Engineer and Mr. S.N. Mody, compliance reports were sent by the petitioner to the Human Resource Development Ministry, respondent No. 1 on 15th July, 1999 and 15th October, 1999. A member of respondent No. 2 i.e. All India Council of Technical Education, Shri R.S. Nirjar raised the issue of recognition of the petitioner with the Special Secretary, HRD Ministry. Accordingly a motivated enquiry was sought to be instituted against the petitioner. The campaign of Mr. Engineer resulted in an enquiry in the nature of Administrative Enquiry outside the purview of respondent No. 1 as the petitioner was neither a Government institute nor did it receive and financial aid whatsoever from the Government. Consequently the enquiry should have been carried out by the Charity Commissioner, and City Civil Court, Mumbai. In spite of the motivated nature of the enquiry, the petitioner offered to cooperate and offered to honour the suggestions in addition and alteration in the Syllabus with suggestions were in fact incorporated by July, 1999. A writ petition 2168/2000 was filed in the Bombay High Court by Forum for Fairness in Education at the behest of Shri Engineer and the Bombay High Court passed the following Order dated 4th April, 2001 :-

"41. It is not for us to examine the rival contentions, and therefore, we refrain from expressing any opinion on the rival contentions, we direct the Union of India to consider the representation, Exhibit 'N', dated 28th April, 2000 and dispose of the same in accordance with law. The Government of India may inquire into the matter by itself or through the AICTE as it may be advised and as may be permissible in law. Thereafter, it shall take a decision in the matter and communicate the same to Respondent No. 1 as well as the Petitioners. This should be done within a period of two months from today.

42. We clarify that nothing said in this Order should be construed as an expression of opinion on the rival contentions advanced before us by the parties."

(c) The enquiry conducted now by respondent No. 1 had not given any opportunity to the petitioner and was one sided.

(d) The petitioner by a letter dated 1st July, 2000 to respondent No. 1 presented its point of view and welcomed the enquiry into the affairs of the petitioner. On 13th September, 2000, respondent No. 1 informed the petitioner that a high powered committee has set up to review the functioning of the petitioner and on 19th September, 2000, the petitioner wrote to respondent No. 1 asking for copies of the complaints against the petitioner's functioning. The petitioners were not granted any opportunity to explain its stand.

(e) The petitioner thereafter set a notice dated 9th April, 2001 to the respondents as the continuance of the enquiry violated the principles of natural justice.

(f) The petitioner also filed CW 2739/2001 in this Court seeking an opportunity of hearing before the respondents before reaching of a conclusion. On 1st May, 2001, the said writ petition was dismissed with liberty to the petitioner to approach the Bombay High Court.

(g) On 9th May, 2001, High Level Committee held its meeting at New Delhi. Three of the representatives were present but were not given not opportunity of hearing. They were not even informed the agenda of the meeting. Shri Kaushik Desai of petitioner institute was informed of the meeting only one day prior to the meeting. The Chairman of the said High Level Committee made the following recommendations :-

"Summing up the deliberations, the Chairman of the High Level Committee suggested that the recognition granted to IME(I) for their part I & II of Technician Engineers Examination and Section A & B Associate Membership Examination by temporarily suspended for a period of 3 months. In the meanwhile.

a) The institute should take immediate action to rectify the defects in the system of examination and also remove all shortcomings pointed out by the expert committee. The examination should be conducted with utmost fairness and secrecy.

b) Revise the constitution, to ensure no person becomes an office bearer of the Society for a period of more than 3 years in one post and not more than 6 years in all other posts.

c) A fresh annual General Meeting be held under the aegis of Registrar of Societies, Maharashtra. The election should be by Secret Ballot and a proper management structure should be in place."

h) On 23rd May, 2001 copy of notification giving legal force to the recommendation of the legal committee which recommendation has bee impugned in the writ petition was also received by the petitioner. The petitioners have filed by present writ petition therefore challenging the proceedings of the High Level Committee meeting dated 9th May, 2001 and the notification dated 23rd May, 2001.

3. In the present application for interim relief i.e., CM. No. 6240/2001, this Court passed the following order 30th May, 2001:-

"Since the examination are to be held on 14th June 2001 and 25,000 students are said to be candidates the notice is made returnable on 4th June 2001 before the Vacation Court. The principal grievance of the petitioner is that for an adverse order of suspension of three months passed on 9th May 2001 the notice was given to the petitioner only on 8th May 2001 and it had no occasion or opportunity to deal with the adverse comments against the petitioner institution.

Notice.

Ms. Monika Arora accepts notice on behalf of the respondents.

Reply be filed on or before 2nd June, 2001 with advance copy to the counsel for the respondent. Rejoinder, if any, before the next date of hearing. It is stated by Mr. Rajeev Dutta, learned counsel appearing for the petitioner that the notification dated 22nd May 2001 has not yet been gazetted.

Until the next date of hearing the notification dated 22nd May 2001 shall not be gazetted."

This order continued from time to time and on 18th September, 2001, the following order was passed in the present application by this Court:

"CW. 9180/01, 6240/01 in CW. 3577/01

The impugned Order dated 9th of May, 2001, challenged in the writ petition related to a Final Report dated 20th of December, 2000 submitted by the Sub Committee based on the visits of the respondent No. 1's officials to the petitioner-Institute. There were certain suggestions, observations and recommendations in the said Report which are contained at Pages 146-147 of the petition contained at Pages 146-147 of the petition. In the impugned Order, three directions are given at Page 71 of the petition which are based upon the alleged shortcomings pointed out by the Expert Committee in its Report dated 20th of December, 2000.

Mr. Dutta, the learned Senior Counsel, appearing for the petitioner states that without prejudice to its pleas, the petitioner-Institute will file a response to the Report of the Expert Committee dated 20.12.2000 within 2 weeks from today and will attend the hearing thereafter before respondent No. 1 as suggested by Ms. Monica Arora, the learned counsel for respondent No. 1.

Response be filed on or before 3rd of October, 2001. The hearing will be held on 10th of October, 2001 at 2.00 PM.

The hearing of the case before this Court, slated for 10th of October, 2001 with the consent of the parties is now fixed for 17th of October, 2001 instead of 10.10.2001. Accordingly, the case need not be listed on 10.10.2001 before this Court.

Interim orders to continue up to the next date."

4. Thereafter intervention applications were filed on behalf of Forum for Fairness in Education and students of the petitioners Institute and the said applications were allowed by this court. Arguments were thereafter heard on the continuance/vacation of the interim order.

5. The intervenors-Students have contended that more 75,000 students have taken the exams and derecognition would deeply affect them for no fault of theirs.

6. The respondents and the intervenor-Forum for Fairness in Education have contended inter-alia as under in seeking the vacation of the interim order :-

(a) that the plea that enough time was not given for the Meeting dated 9th of May, 2001 is not correct, the petitioner was fully aware of the charges against it and merely because the information about the Meeting was intimated a day earlier which meeting was attended by the representative of the petitioner, it cannot be stated that there was any violation of principles of natural justice vitiating the Order dated 9th of May, 2001 and

(b) that the results of the petitioner are extremely poor, and out of 25,000 to 30,000 students only 250 have passed the exams.

7. The respondent No.1 has inter-alia contended as under:

"(a) that the Board of Assessment (now High Level Committee) for recognition of educational Qualifications in its meeting held on 2-8-1980 decided not to extend provisionally recognition granted earlier;

(b) that the AICTE vide their letter Jan 12, 1999 pointed out that the are many deficiencies in the curriculum of Technician Engineers part-I and part-II Examination (both in theoretical and practical input) when compared with Diploma in Mechanical Engineering and recommended that recognition should not be accorded for Technical Engineers part-I and part-II Examination at par with Diploma in Mechanical Engineering;

(c) that due to the regular complaints being received against IME(I) right from 1996, the matter was taken up in the 1st meeting of the High Level Committee on Educational Qualification in its meeting held on 3-7-2000. It was decided in the meeting to form a group as under to enquire into the complaints received against the Institutions of Mechanical Engineers (India) Mumbai and submit a report;

1. Shri V.S. Pandey, JS(T) Chairman

2. Shri Vijay Bharat, Member Secretary Director (T) & Member Secretary, High Level Committee

3. Prof. S.L. Bapat, (III, Mumbai) Expert

4. Prof. C. Amarnath, (III, Mumbai) Expert

5. Dr. A.K. Saxena, Director (E&T) AICTE, New Delhi Member

(d) that the group under the Chairmanship of JS(T) visited the Institute on 27-9-2000. However, based on the information provided by IME (I), the experts have given their final comments vide their letter dated 20-12-2000, which are detailed below :-

(i) IME is being operated in an ad-hoc manner. No records of all activities are maintained.

(ii) The management of IME is not along accepted norms.

(iii) We have not been provided documentation to convince us that curriculum has been revised. In the absence of minutes we wonder whether a curriculum Committee has met.

(iv) IME appears to be reluctant to give full details of the names, qualifications and affiliations of all examiners. We feel that the appointments are done in an ad-hoc fashion. there are no Committee meeting minutes to support the appointments. In fact IME has itself stated that they have no records of qualifications of examiners!

Records show that some individuals have been examiners/paper setters for several (twenty plus) diverse subjects. Likewise some individuals have examined hundreds of projects. Some examiners do not appear to be degree holders in Mechanical Engineering.

(v) Coaching Classes are closely associated with IME - this is plain from the fact that Governing Council has gone on record to thank them.

There is no evidence of any contact programmes.

(vi) A few individuals have extensively travelled abroad on IME funds -

incurring excessive expenses for short visits. There are no records on the outcome/benefits of these visits.

(vii) We wonder how the Governing Council and the corporate members have over the years have not shown any concern about the affairs of IME - despite being aware that Ministry of Human Resource Development had withdrawn its recognition of several IME exams 20 years ago. Ministry of Human Resource Development perhaps restored recognition a year later upon a promise by IME to reform its systems but this does not seem to have happened.

(viii) With a very poor passing percentage IME seems to have benefited a minuscule percentage (around 1%) of registered candidates and most of the others have contributed their valuable earnings to the huge cash reserves and assets of IME.

8. After the receipt of the Final Report from the Experts committee, Meeting was held by the Chairman of the Group on 29th of December, 2000 and the two experts, the representative of the petitioner and the complainants were present and after hearing both the parties the Committee deliberated upon the Report and other documents.

Thereafter on 27th of April, 2001, the two experts from Indian Institute of Technology (III), Mumbai were also invited to give their views since the Chairman felt that the representative of the petitioner should also be heard, it was decided that the copy of the Expert Committee Report be given to the petitioner for eliciting their views for the next Meeting and this is how a copy of the Expert Committee Report was sent to the Honorary Secretary of the petitioners asking him to be present on 9th of May, 2001. In the said Meeting on 9th of May, 2001, three persons represented the cause of the petitioner and matters were discussed in detail and all were heard and the following action was directed to be taken within a period of three months:-

"(a) An amendment to the Constitution of the Society so that no office bearer can hold one post more than three years and no office bearer can remain in office (for all posts together) for more than six years.

(b) A special AGM be convened under the auspices of the Registrar of Societies so that fresh elections under the new Constitution are held at once, after due notice to all the voting members.

(c) Accordingly a notification dated 23-5-2000 to the above effect has been issued to Govt. of India Press, Faridabad for publication in the Gazette of India under intimation to IME (I) and all others concerned."

The respondent No. 2 inter-alia contended as follows:

"(a) that the petitioner cannot import any Technical Education, of any nature whatsoever, without the prior approval of the answering respondent. The Regulations aforesaid unambiguously postulates and require the prior approval of the council by and Technical Institution imparting Technical Education;

(b) that in spite of the alleged recognition, if any, as alleged to have been obtained from the Board of Assessment of Union of India, the petitioner cannot run any course of any Technical Education without the prior approval of the council. Any such recognition does not resolve the liability of the petitioner to obtain the prior approval from the council for running the Technical Institution and for imparting Technical Education and

(c) in view of the fact that the petitioner cannot be allowed and permitted to impart any Technical Education without prior approval of the council, any such programme which is being run by the petitioner is ultravirus the statute and illegal."

9. The intervenor-Forum for Fairness in Education contended that the petitioner apart from committing several malpractice such as under :

"i) Issuance of fake and bogus Degrees and Diplomas against payment of consideration (A.M.I.E. Degree Holders Association, Haryana having alleged that the IME was selling the degree at the rate of Rs. 2,000/-

per paper and since full course comprises about 14 papers, this amounts to payment of Rs. 28,000/- per student);

ii) Fudging and fabrication of mark sheets (which are computer generated) to the effect that students failing in one semester were shown in the next semester mark sheet as having passed the previous semester examination without even re-appearing in the subjects in which they had failed;

iii) Giving a complete go by to the eligibility criterion and pre-requisite qualification (as stipulated in the prospectus) while enrolling candidates for Degree level course;

iv) In several instances; results were communicated within 3 days of the date of examination;

v) Issuance of Certificates of Sunday;

vi) Immediate destruction of Assessment sheets and Answer Books (so as to destroy all evidence of fudging and issuance of incorrect marks);

vii) Outdated syllabus, the same having never been revised/reviewed;

viii) The nexus of Coaching Classes, the so called "Patron Members" of the IME being used as conduits to collect monies from students desirous of getting confirmed results (against payment of "commission"/consideration)."

10. It was further contended that the petitioner-Institute was running as an exclusive domain of father and son team of Shri H.M. Desai and his son Shri Kaushik H. Desain complete exclusion of other Council Members of the petitioner and in disregard of its Memorandum, Constitution and bye-laws and no AGM has been held since 1999 and no Council Meeting held since July, 2000. Even though 4 such meetings required to be held in a year. In was also contended that the petitioner was proceeding in a malafide manner and no move was made since 23rd May, 2001 by the petitioner to implement any of the recommendations made on 23rd of May, 2001.

11. It was further averred that there were following other factors which vitiate the probity and conduct of the petitioner-Institute:-

"i) Sh. H.M. Desai, in flagrant violation of the IME Constitution, has appointed himself as the Sole Controller of Examinations, all Mark-Sheets of Certificates bear his signature (rubber stamped), and in this manner he is in a position to manipulate Mark-Sheets to benefit those who have paid "consideration" to ensure grant of Certificates.

ii) Even though Shri Kaushik H. Desai is not a Mechanical Engineer (being only as M.Sc. in Metallurgy) it is he alone who is assessing and evaluating the Referee/Project Reports submitted by students and in his manner he is in a position to ensure that the Projects of those students who have paid "consideration" are granted Certificates.

iii) A close family relative of Shri H. M. Desai has been appointed as the sole computer operator of facilitate manipulation of the computer generated Mark-Sheets and destruction of data so as to leave no evidence.

iv) The signatories to the Bank Accounts of IME are this father and son team working in their Proprietary capacity of the Institution, i.e. to the exclusion of other Council Members, including the Treasurer, and since there has been no AGM since 1999, there has been no possibility of putting up the "Audited Accounts" for approval of the Council and Corporate Members - therefore, they have enjoyed a free and unchecked reign to use misuse of IME funds for their personal use. The Forum is today in a position to place before this Hon'ble Court proof of misuse of IME funds by the said father and son team if and as and when called upon to do so by this Hon'ble Court.

v) There are no records pertaining to the examination being conducted by the IME, including inter-alia, records of meetings, examiners, paper setters, their qualifications, all have been destroyed to remove evidence and trace of mal-practice.

vi) Low pass rate is an indication not of any high standard or stringent assessment but of poor quality of study material/curricula and education and grant of certificates against payment of consideration.

The aforestated internal manipulations are being highlighted only to bring to the attention of this Hon'ble Court that the IME today has been reduced virtually to a money making teaching shop, thousands upon thousands of candidates/students are being lured to apply for in the guise of AICTE approval and to appear for the examination, thereby enriching the personal pockets of this father and son team."

12. Respondents have further submitted that after the Order of this Court dated 30th of May, 2001, there was an adverse Order against the petitioner on 9th of October, 2001 by the Gujarat High Court and a suit for declaration was filed in this Court on 11th of October, 2001 without disclosing the pendency of the present writ petition by the petitioner and this conduct alone disentitled the petitioner for any discretionary relief. It was further submitted that the departure of the petitioner's counsel on 10th of October, 2001 prematurely from the hearing fixed by this Court was motivated and calculated to continue the interim order unjustifiedly. It was submitted that the petitioner wanted to delay and prolong the proceeding so as to continue the interim orders. Vacation of the interim orders was accordingly sought.

13. After hearing submissions of Shri G.L. Sanghi & Shri Rajiv Dutta, the learned Senior Counsel, appearing for the petitioner and Shri Navin Chawla & Shri Ravi Gupta, appearing for the respondents on the continuance of the interim order, certain prima facie conclusions which emerges from the pleadings and the pleas of the parties are as under :-

(a) that there are certain vital deficiencies in the functioning of the petitioner Institute;

(b) that the Expert Body comprising of a reputed academicians from IIT Mumbai has investigated the affairs of the petitioner Institute and has found several deficiencies which affected the academic functioning of the petitioner;

(c) that significantly the details, qualifications and affiliations of the examiners were not provided to the Expert Committee lending substance to the doubts about the veracity and the qualifications of such examiners;

(d) that the poor passing percentage of the petitioner-Institute, about 1% also prima facie leads to an inference that the affairs of the petitioner-Institute are not being carried on so as to augment and benefit the academic environment requisite for such an Institute.

14. Rival contentions were advanced to support or counter the plea of the malfunctioning of the petitioner Institute but since I am only concerned with the interim relief, I am not delving in detail into the merits of such disputes at this prima facie juncture.

15. The conduct of the petitioner-Institute, however, leaves much to be desired. The following instance of the petitioner's conduct need to be noticed and in my view would have a vital bearing on the continuance of the interim order. The fact that the petitioner-Institute chose to walk out from the hearing specifically fixed by this Court at a particular time on the plea that the concerned Officers did not sit at the stipulated time is significant. The learned counsel for respondent No. 1-UOI sought to rebut this plea by submitting that the hearing was delayed due to a Parliamentary Committee hearing in which the concerned officer was involved but the petitioner was given adequate notice of the postponement of the meeting. In particular the hand-written notation made by the counsel for the petitioner, Shri A.V. Bajaj, on the typed representation prepared by the petitioner dated 10th October, 2001, is significant. It notes that at 2.20 PM the counsel for the petitioner was told that the hearing was at 3.00 PM or thereafter. The petitioner's counsel has given reasons for his early departure from the hearing and the departure from Deli by a late night flight. Various grounds including grounds of ill-health of the counsel, appearing for the petitioner in the hearing, fixed on 10th of October, 2001 at 2.00 PM pursuant to this Court's Order dated 18th of September, 2001. Without going into the veracity of the affidavit of the counsel for the petitioner, prima facie it does appear that the petitioner was not over-anxious to go on with the hearing fixed by this Court on 10th of October, 2001 at 2.00 PM so as to grant the petitioner an opportunity of being heard which was the principal plea in the present writ petition. While I do not for a moment doubt the medical condition of the counsel of the petitioner as per his affidavit, there is no satisfactory explanation of the departure of the petitioner and his counsel from the hearing at 2.25 PM. While the Senior Counsel for the petitioner has pointed out with some vehemence that it is the respondents who were remiss by not conducting the hearing at the precise time ordered by this Court and this plea is not entirely lacking in merit, nevertheless the petitioner's conduct does show that even the petitioner was not anxious in the least to go with the hearing. The departure from the site of hearing at 2.25 PM by leaving a cellphone number is not sufficient demonstration of the bonafides of the petitioner. while the respondents may not have been entirely right in not commencing the hearing at the precise time prescribed by this Court but since the petitioner enjoyed an interim order in its favor it ought to have at least waited till 3.00 PM the time when the hearing was to take place as per the postponement by respondent No. 1 before departing from the place of hearing. Presumably this was because an interim order had been operating in favor of the petitioner.

16. The other ground why the petitioner's conduct has been said to be not totally above-board as per the respondents contention is the fact that while this writ petition was pending in this Court the petitioner chose to file a suit for declaration claiming reliefs overlapping with those claimed in the writ petition without disclosing the pendency of writ petition in this Court. An explanation is sought to be given for this omission but at this stage I am not going into the correctness of these pleas. In so far as the intervenors-students' pleas are concerned, the mere fate of students cannot justify the continuance of an interim order which impedes the academic functioning of the institution. Furthermore the students of the petitioner institute are part time students and are mostly employed gainfully and no serious prejudice would be caused to them by the vacation of the interim order. In fact if the functioning of the petitioner Institute improves, it will only benefit the students.

17. In any case, I am of the view that even on merits the impugned Order given three ameliorative suggestion as noted earlier, in the light of the facts of the case which suggests prima facie serious deficiencies in the academic conduct of the petitioner institution, are such steps, interdiction of which is not required at the interim stage in the present writ petition. The steps indicated merely suggest (a) the improvement of the system of the examination as recommended by the Expert Committee (b) the revision of the constitution to prevent monopoly of office bearers and (c) the holding of fresh Annual General Meeting. I am of the view that the impugned directions are not such so as to require an interim stay by this Court and accordingly, the interim Order dated 30th of May, 2001 stands vacated with effect from 16th of January, 2002.

18. In view of the above, the application stands disposed of with no orders as to costs.

19. CW. 3577/2001 : Rule