Rahul Sharma vs Indira Gandhi National Open ...
2012 Latest Caselaw 1197 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+          W.P.(C) 5232/2008 and CMs 9999/2008, 10528/2009

                                                        Decided on: 22.02.2012
IN THE MATTER OF
RAHUL SHARMA                                                ..... Petitioner
                         Through: Mr. Ajay Veer Singh Jain, Advocate with
                         Mr. Atul Agarwal, Advocate

                    versus


INDIRA GANDHI NATIONAL OPEN UNIVERSITY & ORS.         ..... Respondents
                   Through: Mr. Aly Mirza, Advocate for R-1 and R-2.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (ORAL)

1. The present petition is filed by the petitioner praying inter alia

for directions to respondents No.1 and 2/University to permit him to

continue with his B.Sc. (Nautical Science) course conducted by respondents

No.1 and 2/University. The second relief sought by the petitioner is to direct

the respondents to send him on sea on-board training and to adjust the fee

already paid by him for on-board training. Lastly, he has sought quashing of

the order dated 31.03.2008 passed by respondents No.1 and 2/University,

whereunder, the respondents reiterated an earlier decision of cancelling the

admission of the petitioner and declined to regularize the same on account

of his having submitted fake documents to respondents No.1 and

2/University.

2. At the outset, counsel for respondents No.1 and 2/University

states that the relief sought in the present petition at prayers (i) and (ii)

have been rendered infructuous for the reason that respondent

No.1/University has discontinued the B.Sc. (Nautical Science) course since

January, 2009 and only those students are being permitted to continue with

the course, who had taken admission prior to January, 2009. No doubt the

discontinuation of the subject course by the respondents No.1 and

2/University, makes the first two reliefs prayed for in the writ petition,

redundant.

3. As regards the third and the last relief sought by the petitioner,

which is for quashing of the impugned order dated 31.03.2008 passed by

respondent No.1/University, learned counsel for the petitioner states that in

the year 2001, the petitioner had appeared in the high school examination

conducted by respondent No.4/Board of High School & Intermediate

Education, UP (in short „Board‟). The high school certificate issued by

respondent No.4 contained a typographical error with respect to the date of

birth of the petitioner. It is submitted that though the correct date of birth

of the petitioner is 02.06.1987, his date of birth was erroneously mentioned

in the certificate as 15.02.1984.

4. In the counter affidavit filed by respondent No.1/University it is

averred that admission to the programme of B.Sc. (Nautical Science) takes

place under two categories, i.e., sponsored and non-sponsored category.

Under the sponsored category, the students approach the shipping

companies and are directly admitted at the training institutes jointly

recognised by respondent No.1/University and the Directorate General of

Shipping, Government of India. The training institutes thereafter forward a

list of admitted candidates alongwith their original testimonials to

respondent No.1/University for confirmation of their admission and

verification of their testimonial. Under the non-sponsored category, the

candidates are selected directly by respondent No.1/University on the basis

of an entrance test conducted by the University followed by an interview and

on selection, they are allotted training institutes.

5. As per respondent No.1/University, in the year 2005, the

petitioner had sought admission as a non-sponsored candidate, but when it

was found out that there was a discrepancy in his age certificate and as he

could not produce the original high school certificate carrying his date of

birth, which made him eligible for the programme, the petitioner was denied

admission. As per respondent No.1/University, the petitioner was over aged

for the programme in terms of the certificate produced by him, the

maximum age to secure admission in the programme at the relevant time

being 20 years in case of 10+2 students.

6. It is pertinent to note that though the petitioner has not made

any averment in the present writ petition that prior to institution of the

present petition, he had approached the High Court by filing a writ petition

registered as W.P.(C) 11786/2005, counsel for respondents No.1 and

2/University states that he had filed such a petition wherein directions were

sought to the respondents to grant him admission in the said course upon

his producing the rectified high school certificate. Notice to show cause was

issued in the aforesaid writ petition vide order dated 22.07.2005,

whereafter, a counter affidavit was filed by respondent No.1/University. In

view of the fact that serious questions of facts with regard to the correct

date of birth of the petitioner were raised in the counter affidavit, the Court

had declined to exercise its jurisdiction under Article 226 of the Constitution

of India and instead, it was observed that the petitioner had his remedy of

filing a regular suit, seeking a declaration of his actual date of birth. With

the aforesaid observation, the earlier writ petition was dismissed on

25.08.2005.

7. Without making a mention of the aforesaid earlier writ petition

filed by the petitioner, that came to be dismissed on 25.08.2005, he filed the

present writ petition on 16.07.2008 stating inter alia that in the year 2007,

i.e., at the time of applying to respondent No.1/University for admission in

the aforesaid course through respondent No.3/Shipping Corporation of India,

he had enclosed a photocopy of the High School Examination Certificate

dated 25.06.2001 bearing No.00036224, wherein his date of birth was

mentioned as 02.06.1987. Based on the photocopy of the aforesaid

certificate filed by the petitioner, he was granted admission in the aforesaid

course by the respondent No.1/University. Thereafter, when respondent

No.1/University scrutinized the documents enclosed by the petitioner with

his application, it was observed that the certificate submitted by him lacked

all the security features incorporated by the respondent No.4/Board. The

said certificate was found to be a colour photocopy of the original certificate,

over which material had been typewritten and it was also observed that

there was overwriting on the date of issue of the certificate. As a result, the

petitioner was informed vide letter dated 17.4.2007 that his admission in the

B.Sc. (Nautical Science) course could not be allowed to continue and that

the same stood cancelled.

8. Learned counsel for the petitioner states that the reason for the

petitioner to have submitted the aforesaid certificate of date of birth to

respondent No.1/University was that the earlier high school certificate issued

by respondent No.4/Board had erroneously mentioned an incorrect date of

birth of the petitioner. As a result, in October, 2005, he had approached

respondent No.4/Board for correction of the same and at that time, the

petitioner had surrendered the original high school certificate to the

respondent No.4/Board and he was informed that he would receive the

corrected certificate in due course. It is the contention of the learned

counsel for the petitioner that while leaving the office of respondent

No.4/Board, the petitioner was contacted by a person, who assured him that

he would arrange for a provisional certificate, if he desired one, to which he

gave his consent. It is alleged that the aforesaid provisional certificate was

later on delivered to the petitioner by post. However, there is no proof of

receipt of the aforesaid certificate by post placed on record. Learned

counsel for the petitioner submits that some time later, respondent

No.4/Board had dispatched the corrected high school certificate to the

petitioner, wherein his date of birth was shown as 02.06.1987 and the said

certificate has been enclosed with the petition as Annexure P-4.

9. It is, therefore, stated that after respondent No.1/University had

issued a letter dated 17.04.2007 to the petitioner, informing him about the

cancellation of his admission due to the aforesaid reasons, the petitioner

procured the corrected high school certificate and submitted the same to

respondent No.1/University on 02.06.2007. It is the case of the petitioner

that having submitted the aforesaid corrected certificate alongwith the other

supporting documents, respondent No.1/University was satisfied that he was

entitled to continue studying in respondent No.1/University but, when he did

not hear from respondent No.1/University, he again approached it by writing

a letter dated 25.08.2007. However, the impugned order dated 31.03.2008

was passed by respondent No.1/University, informing the petitioner that his

admission to the course in question had been cancelled and all the original

documents except the "fake document" as discovered by respondent

No.1/University would be returned to him. Aggrieved by the aforesaid order

passed by respondent No.1/University, the petitioner has filed the present

petition.

10. Learned counsel for respondent No.1 and 2/University states the

present petition is liable to be dismissed in view of the fact that while filing

the present petition, the petitioner has not disclosed any of the material

information as regards an earlier litigation initiated by him against

respondent No.1/University, subject matter of W.P.(C) 11786/2005. He

further states that the aforesaid information has been deliberately withheld

by the petitioner knowing very well that in the earlier proceedings, the Court

had observed that it would be inappropriate to exercise its jurisdiction under

Article 226 of the Constitution of India and the petitioner had been relegated

to file a regular civil suit for seeking a declaration of his actual date of birth.

11. It is not denied by the counsel for the petitioner that pursuant to

the order dated 25.08.2005 passed in the aforesaid writ petition, the

petitioner did not take any steps to file a civil suit for declaration of his

actual date of birth. The explanation offered by the counsel for the

petitioner is that there was no need for the petitioner to have approached

the civil court by filing a regular civil suit in this regard for the reason that

respondent No.4/Board had rectified the certificate issued in that regard,

does not take away from the fact that the petitioner has not uttered a

syllable with regard to the earlier round of litigation initiated by him against

respondent No.1/University, that culminated in the order dated 25.08.2005.

12. Records reveal that after being denied admission in the year

2005, the petitioner had applied to respondent No.1/University as a

company sponsored candidate ,i.e., sponsored by respondent No.3/Shipping

Corporation of India and resultantly, he was directly admitted in the

Maritime Training Institute (MTI), owned by respondent No.3/Shipping

Corporation of India. At the time of his admission, the petitioner did not

submit his original documents pertaining to his date of birth in the form of

high school certificate, mark sheet, intermediate certificate etc. When he

was asked by respondent No.1/University to produce his original high school

certificate, the petitioner visited respondent No.1/University on 13.04.2007

and produced the certificate enclosed with the writ petition as Annexure P-2.

Pertinently, the photocopy of the certificate submitted by the petitioner to

respondent No.1/University was self-attested as true copy. As noted above,

upon scrutinizing the aforesaid certificate, respondent No.1/University

observed that it lacked all the security features incorporated by respondent

No.4/Board and also had overwriting on it. As the said certificate was found

to be a fake certificate, respondent No.1/University had informed the

petitioner that the certificate submitted by him being fake, his admission to

the course was cancelled. Later on, the petitioner‟s father and uncle had

visited respondent No.1/University and submitted another high school

certificate bearing the date of birth of the petitioner as 02.06.1987 and they

sought withdrawal of the earlier certificate submitted by him. This fact was

brought to the notice of the Registrar (SRED) of the respondent/University,

who had observed that once a candidate produces a fake document, his

admission could not be allowed to continue or be restored even if such a

candidate submits the original document later in time. In view of the above

decision, the admission of the petitioner was finally cancelled by respondent

No.1/University and all his original documents were returned to him except

for the fake certificate.

13. Pertinently, a counter affidavit has also been filed by respondent

No.4/Board, who was impleaded later on as a co-respondent. Respondent

No.4/Board has confirmed the fact that the provisional certificate bearing

No.00036224 that had been produced by the petitioner before respondent

No.1/University, photocopy of which has been enclosed with the writ petition

as Annexure P-2, had not been issued by the Board.

14. It is relevant to note that the petitioner has not filed rejoinders

either to the counter affidavit filed by respondents No.1 and 2/University or

to the counter affidavit filed by respondent No.4/Board. Therefore, this

Court has no option but to assume that the averments made by the

respondents in their counter affidavits stand admitted by the petitioner as

true and correct and an adverse inference ought to be drawn against him.

15. Counsel for the petitioner submits that the entire confusion as

regards the submission of the corrected high school certificate by the

petitioner was on account of an error on the part of respondent No.4/Board

in originally issuing a certificate bearing an incorrect date of birth of the

petitioner, i.e., 15.02.1984 instead of 02.06.1987. The aforesaid

explanation cannot be a justification for the petitioner to have later on

submitted a fake certificate to the respondent No.1/University, which had

been duly self-attested by the petitioner, who had described it as a

"provisional certificate" issued by respondent No.4/Board, when no such

"provisional certificate" had ever been issued by respondent No.4/Board as

per its assertion in the counter affidavit. Merely because the petitioner had

approached respondent No.1/University after issuance of the cancellation

letter dated 17.04.2007, so as to submit another certificate, which is stated

to be the correct certificate issued by respondent No.4 (Annexure P-4),

cannot justify his conduct in earlier submitting a fake certificate to

respondent No.1/University when he was initially seeking admission in the

B.Sc.(Nautical Science) course.

16. In such circumstances, the impugned order dated 31.03.2008

passed by respondents No.1 & 2/University is upheld as it does not suffer

from the vice of any illegality, arbitrariness or perversity. Even otherwise

the petitioner is not entitled to any relief for the reason that counsel for

respondents No.1 and 2/University has stated at the outset that the

University has discontinued the subject course since June 2009 and,

therefore, the question of permitting the petitioner to continue with the said

course does not arise. The request made by learned counsel for the

petitioner that the fee deposited by the petitioner to undertake the course

with respondent No.1/University be directed to be refunded to him, is

declined, as the same has been rightly forfeited by the University upon

cancelling his admission on account of submitting a fake certificate at the

time of applying to the University for admission.

17. In view of the above, the present petition fails and is accordingly

dismissed alongwith the pending applications, while leaving the parties to

bear their own costs.

                                                        (HIMA KOHLI)
FEBRUARY 22, 2012                                          JUDGE
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