Delhi High Court
Rocky Tuseed vs University Of Delhi & Ors. on 20 July, 2018
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: July 12, 2018
Judgment delivered on: July 20, 2018
+ W.P.(C) 7980/2017, CM Nos. 34670-34671/2017 & 40556/2017
ROCKY TUSEED ..... Petitioner
Through: Mr. Mukul Gupta, Sr. Adv. with
Mr. Arjun Harkauli and
Mr. Tushar Gupta, Advs.
Versus
UNIVERSITY OF DELHI & ORS. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. and
Mr. Prang Newmai, Adv. for R-
1/University of Delhi Ms. Suman
Chauhan, Adv. with Mr. Jivesh Tiwari,
Adv. for Intervenor.
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
CM No. 40556/2017
This is an application filed by the petitioner seeking
condonation of 15 days delay in filing reply to the intervenor
application. For the reasons stated in the application, the delay
of 15 days in filing reply to the intervenor application is
condoned. Application stands disposed of.
W.P.(C) 7980/2017
1. The present petition has been filed by the petitioner with
the following prayers-
"In the above premise, it is most humbly prayed that
this Hon'ble Court be graciously please
i. Call for the records of the abovementioned
election pertaining to the petitioner;
ii. to issue a writ of certiorari quashing the impugned
order dated 06.09.2017 and all actions of the
respondents' before and after rejecting the candidature
of the petitioner;
iii.to pass such other orders and further orders as may
be deemed necessary on the facts and in the
circumstances of the case."
2. It is the case of the petitioner that he filed nomination for
the post of President in the Delhi University Students Union
(DUSU) elections on September 04, 2017. On the same day, a
provisional list of 36 prospective candidates for the post of
President was notified by the Chief Election Officer Sh. S.B.
Babbar, the respondent No.2 herein on the basis of preliminary
scrutiny. It is averred, on September 05, 2017, the respondent
No.2 initiated an enquiry against the petitioner on the basis of an
"e-mail received by DUSU 2017-2018 Election Commission"
citing a disciplinary action against the petitioner taken by his
college in the past. It is averred that the copy of the said e-mail
was not supplied to him and the name of the sender of e-mail was
kept secret. On September 06, 2017 information was sent by the
Principal of the College in the affirmative that disciplinary action
was taken against the petitioner. The e-mail of the Principal was
sent by the University to Panel Lawyer and Deputy Dean (Legal)
for their legal opinions.
3. It is alleged that the Panel Lawyer / Dy. Dean (Legal) had
given a hurried affirmation. On the same day, the respondent
No.2 declared the petitioner as non-eligible to contest the post of
President, DUSU. It is stated the action is arbitrary and the
statement of the Principal is contradictory to the character
certificate issued. On the same day, the representative of the
National Students Union of India, at the request of the petitioner
filed a complaint through an e-mail stating arbitrary action of the
Election Commission in rejecting the candidature of the
petitioner.
4. A counter affidavit has been filed by the respondents,
wherein it is stated that according to the Lyngdoh Committee
Recommendations, the candidate shall not have a previous
criminal record, that is to say he should not have been tried
and/or convicted of any criminal offence or misdemeanor. The
candidate shall also not have been subject to any disciplinary
action by the University authorities. It is stated the petitioner
undertook to abide by the Code of Conduct for the candidates
contesting DUSU elections. It is stated, as per the Code of
Conduct every candidate is required to furnish an affidavit along
with the security deposit, to the effect that (i) He/she does not
have any previous criminal record and has not been subjected to
any disciplinary action by the University / College (ii) Has not
failed in the previous academic year or readmitted in the current
year. A reference is also made to Clause 19 of the Code of
Conduct, which provides that contravention of any of the above
provisions of Code of Conduct may make candidate liable to be
striped of his candidature, or his elected post, as the case may be.
The College / University may also take appropriate disciplinary
action against such violator. Further, Clause 22 of the Code of
Conduct states, notwithstanding anything contained in the
aforesaid Code of Conduct, the directives of the Supreme Court
Judgement dated September 22, 2006 shall prevail. The
petitioner submitted an affidavit as required for contesting the
Delhi University Students Union election 2017-2018 for the post
of President. The petitioner stated in his affidavit that he has
carefully read the constitution of DUSU; Code of Conduct for the
candidates contesting DUSU elections; Lyngdoh Committee
Recommendations as accepted by the Supreme Court vide its
judgment dated September 22, 2006 in the case of University of
Kerala v. Council, Principals, Colleges, Kerala and others and
National Green Tribunal's order dated July 18, 2016 and he shall
abide by all the rules/provisions contained thereto. In case of
violation of the same, his candidature may be cancelled and he be
stripped of his elected post, at any stage. The petitioner had filed
his nomination on September 04, 2017 for the post of President in
DUSU election. However, four complaints were received on
September 04th and 05th, 2017 by the office of the respondent
No.2 conducting the DUSU election that the petitioner does not
fulfil the criteria for contesting the DUSU elections. He initiated
the enquiry into the matter and the Principal of the Shivaji
College where the petitioner studied was contacted. The
Principal, Shivaji College then sent an e-mail confirming that the
disciplinary action was taken against the petitioner. He had sent
a copy of the minutes of the meeting of the disciplinary
committee along with the apology letter of the petitioner. It
transpired that the complete record was sent to the respondent
No.2 with regard to the disciplinary action taken against the
petitioner by the said College in the year 2014 when the
petitioner was student of the said College.
5. On September 06, 2017 the respondent No.2 after
considering the matter in entirety was of the view that nomination
of the petitioner could not be accepted on the basis of complaints
of disciplinary action taken against the petitioner by Shivaji
College in the year 2014. Accordingly, the petitioner was
informed of the decision of the Chief Election Officer, DUSU
vide letter dated September 06, 2017. It is stated that the
representation made by the petitioner against the cancellation of
nomination was of no consequence in the given facts. It is urged
that a strong action should be taken against the petitioner for
breaching the election Code of Conduct of the University of
Delhi and the Lyngdoh Committee report, as according to the
respondents the petitioner had mislead the Court and has also
deliberately suppressed the material facts and furnished false
affidavit, which is a serious offence. The respondents have also
stated that the petitioner has failed to disclose that he was a
student of M.A. Part I (Buddhist Studies) in the academic session
2016-2017 and could not clear paper 101 (first semester 2016),
paper 201, 202 and 203 (second semester 2017). It is also stated
that the petitioner after failing to clear his paper in M.A.
(Buddhist Studies) Part I in the academic session 2016-2017
withdrew his admission from the Department of Buddhist
Studies, University of Delhi. After withdrawing his admission,
he took admission once again in M.A. Part-I (Buddhist Studies).
6. A rejoinder to the counter affidavit has also been filed.
7. It may be stated here that an application being CM
No. 34670/2017 has been filed by one Rajat Choudhary, who is
said to be a first year student of M.A. Political Science at Moti
Lal Nehru College, University of Delhi, seeking his intervention.
I may only state here that in his intervention application, the
applicant therein has primarily stated that in terms of clause 6.5.7
of the Lyngdoh Committee, which has been accepted by the
Supreme Court for implementation, clearly stipulates that the
candidate shall not have a previous criminal record, that is to say
he should not have been tried and/or convicted of any criminal
offence or misdemeanor. According to the applicant, the
petitioner has not disclosed the material fact that in the year 2014
an FIR bearing No. 860 dated August 06, 2014 was registered
against him in the Police Station Rajouri Garden under Section
308/323/341/34 and the petitioner was kept in judicial custody
from August 28, 2014 to September 15, 2014. The applicant also
averred that he has come to know from the reliable sources that
the police has filed a charge sheet in the abovesaid matter and the
petitioner is an under trial of the serious and grave offence like
attempt to murder, criminal trespass etc. The applicant has also
stated that the petitioner is also ineligible to contest the election,
inasmuch as the petitioner took admission in M.A. (Buddhist
Studies) in academic session 2016-2017 under the Roll No. MA
(P) 8 and University Roll No. 71533. The petitioner appeared in
the first semester under the said Roll number. However he
suffered Essential Repeat - 101 in first semester and Essential
Repeat - 201, 202, and 203 in the second semester of the said
course. As per the election Code of Conduct, the petitioner was
required to give an undertaking that he has no academic arrears,
that is to say there are no pending papers to be cleared by him. In
order to overcome the said clause of the Lyngdoh Committee, the
petitioner on August 16, 2017 moved an application to the Head
of Department of Buddhist Studies, University of Delhi for the
withdrawal / cancellation of his admission in the said course.
The said application was accepted and his admission was
cancelled. However, on August 16, 2017 itself a waiting list for
the admission in the same course for which the petitioner had
requested for cancellation appears in most callous manner and
this waiting list reflects the name "..a.Rocky Tushir" and through
this differently spelt name the petitioner took a fresh admission
just at the difference of few hours after ditching the complete
software of Delhi University in most fraudulent manner.
8. A reply has been filed by the petitioner. In the said reply,
the petitioner challenged the maintainability of the application by
the applicant. It is also stated, the scope and ambit of the writ
petition as filed by him is limited to the decision of the
respondent No.2 and has to be tested on the basis of material as
was available on the file of the respondent No.2 and nothing
more. In other words, it is stated that the respondent No.2 cannot
alter or change its stand now before this Court. It is also stated
that the applicant had lost the election to the petitioner and as
such the application is a motivated one. A reference is also made
to an FIR registered against the applicant. It is also stated that in
the past also, number of candidates were allowed by the Election
Committee of the Delhi University to contest election despite
having FIRs registered against their names. With regard to the
FIR, it is stated by the petitioner, he has not been tried or
convicted, hence the stipulation of 6.5.7 shall not be applicable.
In other words, even though a charge sheet has been filed, but no
charges have been framed against the petitioner. On the aspect of
fresh admission, it is stated that the petitioner took admission in
M.A. (Buddhist Studies) in the academic session 2016-2017 in
the name Rocky Tuseed. He had already applied for change of
name to '..a.Rocky Tushir' and the same was published in the
National Gazette on March 04, 2016. According to him, he was
advised by the College authorities at the time of admission that he
can get his name changed any time during the academic session
2016-2017 and that when petitioner requested the College
authorities to change his name as per the Gazette notification
during the academic session 2016-2017, the Authorities declined
his request and asked him to get a decree from the Court to that
effect. Thereupon, the petitioner moved a declaration suit before
the Civil Judge, Patiala House Court, New Delhi which was
consequently not decreed in his favour. The petitioner acted
upon the advise of the College authorities to take fresh admission
in M.A. (Buddhist Studies) in academic year 2017-2018 under
the new name '..a. Rocky Tushir' and appeared in fresh entrance
examination with the new name and cleared the same. But in
order to take fresh admission the petitioner had to withdraw from
his earlier course and apply for fresh admission in the academic
session 2017-2018 based on his entrance result. It is stated that
the College authorities rejected his request to admit the petitioner
under his new name as all the other academic records reflected
his old name and the suit for declaration was not decreed in his
favour and instead offered to give him admission under his old
name i.e Rocky Tuseed.
9. Mr. Mukul Gupta, learned Senior Counsel appearing for
the petitioner submitted that the challenge in the present Writ
petition is to the letter dated September 06, 2017, issued by the
respondents rejecting the petitioner's representation against
rejection of his nomination/candidature for election to the post of
President of the DUSU. This was done after he was provisionally
declared as a candidate on September 04, 2017. The only basis of
the rejection is that the petitioner is alleged to be not eligible as
some disciplinary action was taken against him and he has filed a
false affidavit. Mr. Mukul Gupta submitted, the respondent
University appears to have held some sort of enquiry between
September 5, 2017 and September 6, 2017 at the back of the
petitioner. The contents of the inquiry were not disclosed to the
petitioner. The petitioner was not associated with the said enquiry
nor provided any opportunity of hearing, neither prior to the
decision nor post decision. He was not given any material in
respect of the alleged ground for his disqualification. Even on a
subsequent representation dated September 7, 2017 to the
Grievance Committee as well, he was not provided any hearing.
However, it was only on September 7, 2017, the petitioner was
provided with some of the documents exchanged relating to the
said enquiry and thus the petitioner was compelled to file the
Writ Petition on September 7, 2017 itself. Mr. Mukul Gupta
stated, the petitioner did not had time to represent to the
Grievance Committee against sketchy documents, as some of
them were clearly procured and fabricated. The petitioner filed
the writ merely to seek natural justice. The Delhi University for
the first time on July 11, 2018, during the course of hearing
provided copies of certain documents and another set of
documents on July 12, 2018 after the judgment was reserved by
this Court relating to the said enquiry. Ex facie none of these
documents were the basis of the rejection. None of these were
filed with the counter affidavit.
10. It was the submission of Mr. Mukul Gupta, after the
petitioner was declared successful, the defeated candidate on
September 19, 2017 filed an application seeking intervention by
placing certain facts and documents which were not part of the
enquiry of the Delhi University. Thereafter, on January 04, 2018
the Delhi University filed its short counter affidavit to the writ
petition, wherein also it was not disputed that either any notice
was given or was the petitioner allowed to participate in the
proceedings against him. Mr. Mukul Gupta submitted, the Delhi
University in its short counter affidavit used all those documents
which were used by the intervener in his application which did
not form part of the supposed enquiry. Mr. Mukul Gupta at the
outset, pointed out that such an application by the defeated
candidate or anybody else, who is not party to such enquiry, is
not permissible in the writ. The applicant is neither the
complainant nor a witness in the Enquiry, and hence, is a third
party. Further, even as per Lyngdoh Committee Report, the
complainant and the person against whom an action is sought to
be taken will have to appear and make good its case. Mr. Mukul
Gupta submitted, the present writ petition will have to be
examined from the standard of Judicial Review of the
administrative decision. It is well settled that Judicial Review is
only permissible to the extent of finding out whether the process
in reaching at the decision has been followed correctly and not to
find out the correctness of the decision itself. Critical or
independent analysis or appraisal of the materials/evidence by the
Court exercising power of judicial review is not permissible
unlike that by an Appellate Court. The Court while exercising the
power of judicial review cannot substitute its own views for the
views of the authority. It is not akin to adjudication of the case on
merits as an appellate authority.
11. It was the submission of Mr. Mukul Gupta, that no show
cause notice was ever served upon the petitioner nor such fact has
even been contested by the respondent. He made a reference to
the judgment in the case reported as (2003) 4
SCC 557 Canara Bank v. Debasis Das to contend that adherence
to principles of natural justice is a must. The first and foremost
rule under Principles of Natural Justice is Audi Alteram Partem.
Notice is the first limb of this principle. It must be precise and
unambiguous. It should apprise the party determinatively of the
case he has to meet along with adequate time to respond to the
same. In the absence of a notice of this kind and such reasonable
opportunity, the order passed becomes vitiated. In fact, it was
held in the case reported as (1967) 2 SCR 625 State of Tamil
Nadu v. Dr. Miss. Binapani Dei that even an administrative
order which involves civil consequences has to be consistent with
Principles of Natural Justice by informing the party of the case
against him, the evidence is support thereof and giving him an
opportunity of being heard and explaining the evidence against
him. Similarly, it was held in the case reported as (2013) 16 SCC
771 Mahipal Singh Tomar v. State of UP that non providing of
material would vitiate the order passed. In the case reported as
(1993) 3 SCC 259 DK Yadav v. JMA Industries, it was held that
it was a fundamental rule of law that no decision must be taken
which affects the rights of a party without first being informed of
the case and giving him/her an opportunity of putting forward
his/her case. There is no material to show what materials were
used to disqualify the petitioner. There is no show cause notice,
no reply sought from the petitioner, no record of hearing and no
speaking order on Court record till date. Mr. Mukul Gupta also
submitted, the intervenor applicant and the respondent University
seek to validate the action of cancellation of nomination by
producing fresh material before this Court. He submitted that this
Court cannot go into these materials and the validity of the
impugned order has to be judged only on the basis of the material
before the authority and the reasons provided. It was held by the
Constitution Bench of the Supreme Court in the case reported as
AIR 1978 SC 851 Mohinder Singh Gill v. Chief Election
Commissioner that when a statutory functionary makes an order
based on certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented by fresh
reasons in the shape of affidavits or otherwise. Otherwise, an
order bad in the beginning may, by the time it comes to the court
on account of a challenge may get validated by additional
grounds brought out. Further, the Supreme Court in the case
reported as (1978) 2 SCC 586 Union of India v. HP Chothia
held that material supplied by a third party who was not involved
with the decision making process cannot be considered. Relying
on Mohinder Singh Gill (Supra), it was held in the case reported
as (2016) 1 SCC 724 State of Punjab v. Bandeep Singh that
there can be no gainsaying that every decision of an
administrative or executive nature must be a composite and self-
sustaining one, in that it should contain all the reasons which
prevailed on the official taking the decision to arrive at his
conclusion. It is beyond cavil that an authority cannot be
permitted to travel beyond the stand adopted and expressed by it
in the impugned order. Ultimately, the Supreme Court in the case
reported as (2013) 14 SCC 225 State of Maharashtra v. Namdeo
held that after exercising the power of judicial review, even if the
Court comes to a decision that the order is flawed or perverse, the
High Court can, at the most, remit the matter back to the
authority. He submitted, the ground that the petitioner had an
FIR against him is of no consequence as the disqualification as
per the Lyngdoh Committee Report is attracted only if a person
has been 'tried' or 'convicted' of an offence, whereas the
petitioner was never tried for any criminal offence. In the
Constitution Bench judgment reported as (2014) 3 SCC 92
Hardeep Singh v. State of Punjab, it has been held that the trial
in a criminal case starts only once the charges have been framed
and not before that. Hence, pendency of an FIR or even the filing
of a chargesheet will be of no consequence. Mr. Mukul Gupta
further submitted that none of the prescribed penalties were
imposed upon the petitioner as a consequence of the alleged
disciplinary inquiry, which could be termed as disciplinary action
by the college/University rules and as per the Lyngdoh
Committee. Any other purported action which does not fall
within the realm of prescribed penalties above cannot be termed
as "disciplinary action" under the Lyngdoh Committee.
According to him, it is an admitted case of the respondent
University that as per the Code of Conduct, the guidelines laid by
the Supreme Court affirming the Lyngdoh Committee Report
shall be given credence over any other rule or provision made by
the University. He also relies upon the following judgments in
support of his contention:-
(i) (2010) 10 SCC 408 State of Assam v. Union of India &
Ors;
(ii) (2003) 9 SCC 592 Syed Naqshbandi v. State of Jammu
and Kashmir;
(iii) AIR 1996 SC 1232 State of Tamil Nadu v. S.
Subramanium;
(iv) (2012) 5 SCC 443 Heinz India (P) Ltd. v. State of UP;
(v) (1997) 3 SCC 657 Rae Bareli Kshetriya Gramin Bank v.
Bhola Nath Singh
(vi) (1993) 3 SCC 552 Harpal Singh Chauhan v. State of
UP;
(vii) (2012) 6 SCC 357 Registrar General, High Court of
Patna, v. Pandey Gajendra Prasad;
12. On the other hand, Mr. Mohinder J.S. Rupal, learned
counsel for the respondents submitted as directed by this Court
the record of the Chief Election Officer, DUSU election 2017
relating to complaints received against the Petitioner as well as
the response received from Principal Shivaji College has been
already tendered for consideration by this Court. He submitted
during oral arguments before this court, the petitioner has himself
filed part of the record of the Disciplinary proceedings to which
he was subjected to while undergoing B.A. History (Honours)
Course in Shivaji College in the year 2014. Nowhere the
petitioner has alleged in the petition that the said record was
made available only subsequently as was otherwise alleged orally
by the counsel for the petitioner. He stated, the petitioner has
also filed with the Writ Petition, the two legal opinions separately
sought by the Chief Election Officer before passing the Impugned
Order dated September 06, 2017 rejecting the Candidature of the
Petitioner. The petitioner malafidely and intentionally suppressed
this material fact while contesting for the post of President DUSU
election 2017, though Lyngdoh Committee guideline 6.5.7
specifically lay down the eligibility criteria for candidates
wherein it has been clearly mentioned that "the Candidate shall
also not have been subject to any disciplinary action by the
University authorities". He submitted, not only this, the
Petitioner had also sworn an affidavit and submitted the same
before the Chief Election Officer as per mandatory requirement
to contest election wherein in Clause 5 of the said affidavit the
Petitioner falsely stated that "I have not been subjected to any
disciplinary action by the University/College". He in the said
affidavit also gave an undertaking that he has carefully read (i)
the Constitution of DUSU (ii) Code of Conduct for the
Candidates contesting DUSU Elections, (iii) Lyngdoh Committee
recommendations as accepted by the Supreme Court of India vide
its judgment dated September 22, 2006 in the case entitled
"University of Kerala v. Councils, Principals, Colleges Kerela &
Ors". And (iv) National Green Tribunal's order dated July 18,
2016. He promises to abide by all the Rules/Provision contained
thereto. In case of violation of any of this by him, his candidature
may be cancelled/he may be stripped of his elected post, at any
stage.
13. Mr. Rupal further submitted, the petitioner has not denied
this affidavit tendered before the Chief Election Officer, DUSU
Election 2017. Hence all the documents referred above have been
admitted by the Petitioner and thus admitting that he was
subjected to disciplinary proceedings while studying in Shivaji
College. He also submitted, that the petitioner gave a
representation to the Chief Election Officer on September 07,
2017. None of the grounds as sought to be raised during the oral
arguments have been raised either in the said representation or in
the Writ Petition. Hence, there is no case made out by the
Petitioner to seek any challenge to the impugned order dated
September 06, 2017. He stated, though the Chief Election
Officer has rejected the Candidature of the Petitioner on the sole
ground that he was subjected to disciplinary action and
consequently furnished a false affidavit in this regard but this
Court may also take judicial notice of another vital fact, that the
petitioner also violated the law as laid down by the Supreme
Court in the case of University of Kerala (supra), more
particularly Clause 6.5.4. Mr. Rupal stated, the complaints
received against the Petitioner, the 'Petitioner indeed had
academic arrears. But to overcome this prohibition took fresh
admission in the same course. But even this could not overcome
the express undertaking given by the Petitioner in the affidavit
sworn and tendered before the Chief Election Officer that "I have
not failed in the preceding academic year/or readmitted in the
current year". It is well laid down principle of law that what
cannot be done directly cannot be done indirectly. Thus on all
counts the Candidature of the Petitioner for the post of President
deserve to be rejected and hence the Impugned Order dated
September 06, 2017 passed by the Chief Election Officer is valid
and proper. The result of the Petitioner was declared subject to
the outcome of the present Writ Petition as per the Interim order
passed by this Court. He seeks the dismissal of the present writ
petition.
14. Having heard the learned counsel for the parties, at the
outset it is necessary to reproduce the law laid down by the
Supreme Court in the case of University of Kerala (supra)
wherein the Supreme Court had accepted the recommendations
made by the Lyngdoh Committee and directed that the
recommendations made by the Lyngdoh Committee shall be
followed in all College / University elections. The relevant
recommendations for the purpose of this case are 6.5.7 and 6.5.8,
which reads as under-
"6.5.7. The candidate shall not have a previous
criminal record, that is to say he should not have been
tried and/or convicted of any criminal offence or
misdemeanor. The candidate shall also not have been
subject to any disciplinary action by the University
authorities.
6.5.8. The candidate must be a regular, full-time
student of the college/university and should not be a
distance/proximate education student. That is to say
that all eligible candidates must be enrolled in a full-
time course, the course duration being at least one
year."
15. In the petition, the petitioner has challenged the
communication dated September 06, 2017, the same reads as
under-
"Dear Mr. Rocky Tuseed,
Please refer to your representations given today
challenging the denial of your nomination for
contesting for the post of President, Delhi University
Students' Union (DUSU). Your representation was
sent to (1) a Delhi University Panel Lawyer and (2)
Deputy Dean (Legal). Their response to your
representation are attached. The opinion of both is
that you are not eligible to contest the DUSU
elections."
16. A perusal of the same would reveal that the said
communication was accompanied by the opinions of the Panel
Lawyer and the Deputy Dean (Legal). The said opinions are
annexed at pages 29 and 30 of the paper book. Suffice to state,
the action to declare him ineligible was primarily because of
disciplinary action taken by the College where the petitioner had
studied for his graduation.
17. It was the submission of Mr. Mukul Gupta that the
respondent Authority appears to have held some sort of enquiry
between September 05, 2017 and September 06, 2017 at the back
of the petitioner and the contents of the enquiry were not
disclosed to the petitioner nor was he associated with the said
enquiry nor provided any opportunity of hearing nor prior to the
decision nor post the decision. He was not given any material in
respect of the alleged ground for his disqualification. In support
of his submission he had referred to the communications
exchanged between the respondent No.2 and the Shivaji College
where the petitioner had studied at pages 25 and 26. Suffice to
state, the initial communication sent by the respondent No.2 was
on September 05, 2017, to the Principal of the Shivaji College.
He had called upon the Principal to check the veracity of the
statements made therein and the attachment thereto. In response
to the same, the Principal confirms the fact that the disciplinary
action was taken against the petitioner. A copy of the minutes
dated November 05, 2014 of the Disciplinary Committee and the
apology letter received from the petitioner were attached.
Pursuant thereto, the respondent No.2 sought legal opinions, a
reference of which is already made above.
18. Mr. Rupal sought to justify the disciplinary action
initiated by the College by referring to pages 27 and 28 of the
writ petition, which are the minutes of the Disciplinary
Committee held on November 05, 2014 and apology letter
submitted by the petitioner on September 18, 2014. The minutes
of the meeting dated November 05, 2014 refers to his apology
and his request to allow him to appear in the final year exam.
The minutes of the meeting also stated that his entry in the
college without prior permission is also banned. During hearing,
Mr. Rupal had produced some of the documents related to the
disciplinary action initiated against the petitioner. On July 11,
2017, he placed before the Court a compilation of documents,
which included complaints made by certain students; minutes of
the meeting of the Disciplinary Committee held on April 01,
2014 summoning the petitioner before the Committee on
numerous times when the petitioner refused to appear. The
apology letter of the petitioner, letters of the students; minutes of
the Disciplinary Committee dated April 09, 2014 wherein the
Disciplinary Committee decided to suspend the petitioner and
another student till they take their annual exam and a notice
issued by the Convener of the Disciplinary Committee with a
photograph of the petitioner stating that the entry of the
petitioner, who is the student of B.A. Hons. (History), Fourth
Semester into the College is strictly prohibited.
19. After the orders were reserved, a compilation of
documents was filed by Mr. Rupal wherein he has annexed
certain complaints dated September 04, 2017 and September 05,
2017 received against the petitioner by the Election Commission
of the Delhi University from some students with regard to the
petitioner having not cleared certain papers of the M.A. (Buddhist
Studies); the petitioner having taken re-admission and the
disciplinary action having been taken against the petitioner. As is
clear from the above, the respondent No.2 on the receipt of the
complaints did sought information from the Principal of the
Shivaji College where the petitioner had studied. Based on the
information, the action was taken by the respondent No.2. The
process, which has been carried out by the respondent No.2 is to
ascertain the contents of the complaints. No doubt, the two
documents i.e minutes of the meeting of September 05, 2014 and
the apology letter of the petitioner were not put to the petitioner
before the impugned action was taken, but the same is not fatal.
Unfortunately, the petitioner does not refer to such an action
having been taken against him in his affidavit given along with
his nomination. He also does not mention about such an action
having been taken against him in the petition. The action against
the petitioner was on the basis of a complaint made by some
students, which inter-alia stated that the petitioner and his friend,
had physically abused one student. It is not the case of the
petitioner, at least in the writ petition that the action, which has
been taken is not a disciplinary action. Much reliance has been
placed by Mr. Gupta on the Provisional-cum-Character
Certificate dated July 19, 2016 issued by the College wherein it is
stated that the petitioner bears a good moral character and has a
good conduct during his stay in the College. The plea of the
respondents that the certificate was given since he was allowed to
appear in the examination after he apologized for his conduct and
the same does not mean that there was no disciplinary
proceedings initiated against the petitioner at the relevant time by
the College is appealing. In any case, since the stand of the
respondents is based on the disciplinary action initiated against
the petitioner and the minutes of the meeting of the Disciplinary
Committee held on November 05, 2014 and the apology letter of
the petitioner himself having been placed on record, the onus is
surely on the petitioner to satisfy the conscious of the Court that
the action of the respondents to bar the petitioner from entering
the College is not a disciplinary action. Such a submission even
though made would not hold any credence for the simple reason,
the compilation of documents as filed by Mr. Rupal, a copy of
which was given to Mr. Mukul Gupta, more specifically the
minutes of the Disciplinary Committee dated April 09, 2014 does
show that the Committee intended to rusticate the petitioner but
reviewed its decision by suspending him till the annual exam are
taken. In any case, the minutes of the meeting of November 05,
2014 does clearly conclude that the entry of the petitioner without
prior permission is banned. The apology letter of the petitioner
reads as under:-
"To,
The Principal
Shivaji College,
Raja Garden,
New Delhi
18 September 2014
Respected Madam,
Subject: Apology Letter
I Rocky Tuseed student of BA History Hons IInd year
apologize for the mistake. I am extremely sorry for my
past incidents. As I earlier applied for the NOC three
times but I did not get NOC, so I want to continue in
Shivaji College only. I gave 1st application to Hemant
Lamba and next 2 application to PA, Principal Madam
and now the admission and migration procedure have
also stopped in other Colleges of Delhi University. I
request to you to allow me to study in this prestigious
College. I apologize for all my mistakes and my
misbehavior and I assure that this won't happen again
in future and I promise that I won't take part in any
anti-social activity."
20. The said decision was followed by issuance of a notice
banning his entry without permission by the College authorities,
which is unprecedented. The petitioner has not challenged the
complaints made against him; constitution of the Disciplinary
Committee / the proceedings held by the Disciplinary Committee
nor the banning of his entry in the College and also the issuance
of notice by the College Authorities for the information of all.
Further, the said action having been taken against the petitioner
on an apology tendered by him makes it clear that he accepts his
misdemeanor, which resulted in the extreme action of banning his
entry in the College, would surely demonstrate that the same was
the disciplinary action against him, which does not require
framing of any charge against him. The affidavit given by the
petitioner that he was not subject to any disciplinary action by the
University authorities, was not correct. Surely, the ground on
which the petitioner was declared ineligible i.e there was a
disciplinary action against him has caused no prejudice to him, if
the material regarding the disciplinary action was not put to him
before the impugned action was taken as he was privy to such
information and was himself required to disclose it in the
affidavit and the petition.
21. I may only refer to Ordinance XV B of the University,
which relates to maintenance of discipline amongst the students
of the University. The same reads as under:-
Ord. XV-B Maintenance of Discipline among Students of the
University;
1. All powers relating to discipline and disciplinary action are
vested in the Vice-Chancellor.
2. The Vice Chancellor may delegate all or such powers as
he/she deems proper to the Proctor and to such other persons as
he/she may specify in this behalf.
3. Without prejudice to the generally to power to enforce
discipline under the Ordinance. The following shall amount to
acts of gross indiscipline.
a) Physical assault or threat to use physical force, against any
member of the teaching and nonteaching staff of any
institution/Department and against any student within the
University of Delhi.
b) Carrying of, use of, or threat to use of weapons.
c) Any violation of the provisions of the Civil Rights Protection
Act, 1976.
d) Violation of the status, dignity and honor of students belonging
to the scheduled castes and tribes:
e) Any practice-whether verbal or otherwise-derogatory of
women:
f) Any attempt at bribing or corruption in any manner:
g) Willful destruction of institutional property:
h) Creating ill-will or intolerance on religious or communal
grounds:
i) Causing disruption in any manner of the academic functioning
of the University system
j) Ragging as per ordinance XV-C
4. Maintenance of discipline and taking such action in the
interest of maintaining discipline as may seem him/her
appropriate, the Vice-Chancellor, may in the exercise of his/her
powers aforesaid order or direct that any students or students
a) Be expelled: or
b) Be, for a stated period rusticated; or
c) Be not for a stated period, admitted to a course or courses of
study in a College, Department or Institution of the University
OR
d) Be fined with a sum of rupees that may be specified: or
e) Be debarred from taking a University or College or
Departmental Examination or Examinations for one or more
years: or
f) That the result of the students or students concerned in the
Examination or Examinations in which he/she or they have
appeared be cancelled.
5. The Principals of the Colleges, Heads of the Halls, Dean of
Faculties, Heads of Teaching Departments in the University, the
Principal, School of Correspondence Courses and Continuing
Education and Librarian shall have the authority to exercise all
such disciplinary powers over students in their respective
Colleges, Institutions, Faculties and Teaching Departments , in
the University as may be necessary for the proper conduct of the
Institutions, Halls and teaching in the concerned Departments.
They may exercise their authority through, or delegate authority
to, such of teachers in their Colleges, Institutions or Departments
as they may specify for these purposes."
22. From the above, it is clear that the action of the College to
ban the entry of the petitioner was for maintaining the discipline
in the College, and as such a disciplinary action.
23. Further, the action, which has been taken by the
respondents is in conformity with the affidavit submitted by the
petitioner that in the eventuality there is any violation of the Code
of Conduct for the candidates contesting DUSU elections /
Lyngdoh Committee Recommendations, as accepted by the
Supreme Court, his candidature may be cancelled. This issue can
be seen from another perspective, inasmuch as when an affidavit
is filed by a candidate contesting the election, the Authority
concerned is within its right to verify the contents of the affidavit.
The respondent No.2 was within his right to write to the Principal
of the College to verify the contents of the affidavit submitted by
the petitioner. In such an eventuality also, the Principal (in this
case) or any other Authority, would be within its right to submit
such material to the respondent No.2 if he has any material in his
possession contradicting the contents of the affidavit, which have
a bearing on the eligibility of a candidate for standing in the
election. This Court cannot lose sight of the fact that the
Supreme Court has accepted the recommendations of the
Lyngdoh Committee, which clearly stipulates if a candidate had a
disciplinary action, the same would be a non-eligibility for such a
student to stand in the election. The spirit underlying the
recommendation is that a person should have a clean record for
standing in the election, cannot be lost sight of.
24. Insofar as the judgments relied upon by Mr. Gupta are
concerned, the case of Canara Bank v. Debasis Das (supra) shall
not be applicable in the facts of this case, inasmuch as the
petitioner does not dispute that Disciplinary Committee was
constituted against him for certain misdemeanor and resulted in
banning of his entry into the College and a notice for the
information of all was also issued, that too, on the apology
tendered by him, which is part of the writ petition.
25. Similar, is the position in the cases of State of Tamil
Nadu v. Dr. Miss. Binapani Dei (supra), Mahipal Singh Tomar
(supra), D.K. Yadav (supra).
26. In so far as the submission of Mr. Gupta that the court
while exercising the power of judicial review cannot substitute its
own views with the views of the Authority by relying upon Syed
Naqshbandi (supra), State of Tamil Nadu (supra), Heinz India
(P) Ltd. (supra), Rae Bareli Kshetriya Gramin Bank (supra),
Harpal Singh Chauhan (supra) and Registrar General, High
Court of Patna v. Pandey Gajendra Prasad (supra) is
concerned, there is no dispute on the said proposition. My
finding above, does not amount to this Court substituting its own
views with the views of the Authority. Rather, this Court has
only tested the view taken by the Authority that the disciplinary
action having been taken against the petitioner, the petitioner
shall be ineligible in terms of the Code of Conduct / Lyngdoh
Committee Recommendations as accepted by the Supreme Court.
The said judgments are distinguishable.
27. Now coming to the application filed by the applicant
namely Rajat Choudhary is concerned, Mr. Gupta has opposed
the maintainability of the application as the same is by a person,
who was defeated by the petitioner. There is no dispute that the
action challenged is of the Delhi University declaring the
petitioner ineligible for contesting the post of President. It is the
legality of the said action, which has to be decided by this Court.
The applicant has sought his intervention on the ground that the
petitioner was also ineligible, as per other recommendations of
the Lyngdoh Committee, which have been accepted by the
Supreme Court, is no reason to seek his intervention, as he is
neither proper nor a necessary party. Mr. Gupta may be right in
contending that the order has to be tested on the reasoning given
by the University in declaring the petitioner ineligible, which
submissions have already been noted above by relying upon
various judgments of the Supreme Court including Mohinder
Singh Gill (supra), Union of India v. H.P. Chothia (supra),
State of Punjab v. Bandeep Singh (supra) is appealing. I do not
see any merit in the application for intervention. But at the same
time, it must be noted, the petitioner in his affidavit has stated
"That I have not failed in the preceding academic year and / or
re-admitted in the current year" which in view of the fact that the
petitioner got admission in M.A. Buddhist Studies in August,
2017 in which elections were held, is an incorrect fact.
28. During the course of his submissions, Mr. Mukul Gupta
did mention that the tenure of the petitioner as a President would
come to an end in the month of August, 2018. This Court is of
the view, in view of the petitioner's affidavit and Lyngdoh
Committee recommendations as accepted by the Supreme Court,
this Court is bound to decide the issue, which has arisen in this
matter. Moreover, this Court had already in its order dated
September 12, 2017, allowed the declaration of the result to the
post of President, subject to the outcome of the writ petition. The
issue raised in the present petition goes to the root whether the
petitioner could at all stood for election to the post of President.
The answer to which is "No". In view of the above discussion,
this Court is of the view that the challenge to the communication
dated September 06, 2017 rejecting the representation of the
petitioner and treating the petitioner to be ineligible for the post
of President, Delhi University Students Union cannot be faulted.
The writ petition is dismissed. No costs.
CM No. 34671/2017
Dismissed as infructuous.
V. KAMESWAR RAO, J
JULY 20, 2018/ak
