Delhi High Court
Professor Rajiv Saxena vs Jawaharlal Nehru University, ... on 11 December, 2020
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11.12.2020
+ W.P. (C) 5921/2020, CM Nos. 28555/2020, 21590/2020
PROFESSOR RAJIV SAXENA ..... Petitioner
Through: Mr. Abhik Chimni and Mr. Mayank
Goyal, Advocates.
versus
JAWAHARLAL NEHRU UNIVERSITY,
THROUGH ITS REGISTRAR ..... Respondent
Through: Ms. Monika Arora, Advocate for JNU.
Mr. Kabir Singh Ghosh, Advocate for
R-2.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
1. Petitioner holds the position of Chairperson of Centre of Spanish,
Portuguese, Italian and Latin American Studies (hereinafter referred to as
the 'Centre') and has headed the Centre since February, 2017.
Respondent No.2 who holds the post of Assistant Professor at the Centre
was admitted as a Ph.D Degree candidate at the Respondent No.1
University (hereinafter referred to as 'University') and has been awarded
the Ph.D degree and the Notification has been issued on 28.07.2020.
Petitioner was appointed as Supervisor of Respondent No.2 for Thesis/
Ph.D on 18.07.2017, has filed the present petition to quash the order of
the University awarding the Ph.D degree as well as the viva-
voce/Committee constituted for conducting the viva-voce examination on
03.06.2020 amongst other reliefs which are as follows:
"(i) Issue an appropriate writ quashing the order of the
Respondent University to award Ph.D. degree to Mr. Gaurav
Kumar;
(ii) Issue an appropriate writ quashing the viva voce
board/committee constituted for conducting the viva voce
examination of Mr. Gaurav Kumar on 03.06.2020;
(iii) Issue an appropriate writ quashing the RAC constituted
for conducting the viva voce examination of Mr. Gaurav
Kumar on 03.06.2020;
(iv) Issue an appropriate writ directing Respondent University
to set aside the removal of Petitioner from the post of
Supervisor for Mr. Gaurav Kumar;
(v) Issue an appropriate writ directing the Respondent
University to set aside the appointment of 2 Supervisors for
conducting the online viva voce examination of Mr. Gaurav
Kumar on 03.06.2020;
(vi) Issue an appropriate writ directing the Respondent
University to constitute a new RAC as per rules followed and
practised in the Centre for conducting the viva voce
examination of Mr. Gaurav Kumar;
(vii) Issue an appropriate writ directing the Respondent
University to conduct viva voce of Mr. Gaurav Kumar as per
the provisions of JNU Act, Schedules, Ordinances and
Regulations;
(viii) Award the Petitioner costs related to the filing of the
present Petition;
(ix) Pass any such further orders as this Hon'ble Court may
deem fit in the facts and circumstances of the instant case
and/or in the interest of justice."
2. The brief narrative of facts as set out in the petition is that vide
Notification dated 18.07.2017 Petitioner was appointed as Supervisor of
Respondent No.2 for his Thesis/ Ph.D for the topic "Analysis of
Grammatical Errors in the Written Expression of Indian Learners of
Spanish as Foreign Language" and remained so till 31.05.2020.
3. Petitioner certified on 23.10.2019 that he had supervised the Thesis
and forwarded the same to the Examiners for evaluation. The Examiners
Dr. Ravi Kumar and Professor Thakur Dass issued recommendations on
27.01.2020 and 07.02.2020, respectively, to grant the Degree to the
candidate subject to his passing the viva-voce examination. The
Assistant/Deputy Registrar sent a letter to the Dean of the Centre on
18.02.2020 containing the evaluation report, asking the Dean to send the
reports together with recommendations of the viva-voce Board.
4. The Dean of the Centre sent an email to the Petitioner on
09.05.2020, asking him to schedule the viva-voce examination with
immediate effect and assured that all logistics support shall be extended
to do so. Petitioner avers that he was surprised at the urgency in
conducting the viva-voce and sent three emails pointing out the Centre's
reservations regarding technical infrastructural requirements as well as
documentation as per UGC Guidelines in conducting a viva-voce.
5. Petitioner states that the University issued a notice dated
01.06.2020 scheduling the viva-voce on 03.06.2020 and also mentioned
Dr. Sovon Kumar Sanyal (CSPILAS) and Dr. Lipi Biswas Sen
(CSPILAS) as Supervisors of Respondent No.2. Being the Chairman of
the Centre and the Supervisor of Respondent No.2, Petitioner ought to
have been informed, in advance, of the appointment of the two
Supervisors. Petitioner through his letter dated 02.06.2020 pointed out
various issues with regard to the Thesis submitted by Respondent No.2,
as well as, the evaluation report including other aspects in conducting the
viva-voce.
6. On 03.06.2020 University issued the Minutes of the Final Meeting
of the Ph.D viva-voce, recording that the viva-voce was held on
03.06.2020 at 12:30 pm online and also mentioning the names of the
External Examiner therein. The Minutes also recorded the names of the
other members of the Committee constituted for the said purpose. Report
was submitted by the External Examiner stating therein that the Thesis
submitted were Respondent No. 2's own work and that his grasp in the
field was satisfactory. Finally the University convened the 154th (B)
Meeting of the Academic Council on 22.06.2020 and placed Respondent
No.2 in the list of students whose Thesis for Ph.D was to be evaluated by
a panel of Examiners and the name of the Petitioner was mentioned as the
Supervisor of the Respondent No.2.
7. The challenge of the Petitioner to the award of Ph.D degree to
Respondent No.2 is on manifold grounds which can be aptly summarized
as follows:
a. Petitioner was appointed as Supervisor for the Thesis of
Respondent No.2 vide Notification dated 09.07.2017 for the topic
"Analysis of Grammatical Errors in the Written Expression of
Indian Learners of Spanish as Foreign Language" from 2017 till
31.05.2020. Petitioner was the only Supervisor and responsible for
guiding the Thesis and ensuring that it meets the required academic
standards in the field of languages, which concerns the Centre.
Petitioner has been, however, removed in an arbitrary manner as
the Supervisor, without communicating the decision to that effect,
despite the fact that he was appointed as a Supervisor because of
his expert and domain knowledge in Spanish language.
b. University arbitrarily appointed Dr. Sanyal and Dr. Sen as
Supervisors, though none of them had any history of working with
Respondent No.2, on its Thesis and none participated in the viva-
voce on 03.06.2020. Neither of the two are expert in teaching
Spanish as a foreign language. Process of appointment of
Supervisor for a Ph.D candidate is laid down in Clause 3(a) of the
Ordinance relating to the Committee for Advance Studies and
Research (CASR) and the procedure required under the said Clause
was not followed for appointment of the Supervisors. The
Ordinance relating to CASR provides the constitution of the CASR
which requires the Dean of the School, Heads of Centers and
Departments in the School, one Professor/Senior Fellow, one
Associate Professor/Fellow and one Assistant Professor/Associate
Fellow as part of the Committee. Petitioner being a Chairman of
the Centre is the member of the CASR and yet was kept out of the
process of the appointment of Supervisors of Respondent No.2.
c. Clause 16 of the Ordinance provides that viva-voce shall be
conducted by Board of Examiners comprising of one of the
External Examiners of the Thesis and the Supervisor(s). The
University undermined and diluted Clause 16 by removing the
Petitioner as Supervisor. Additionally, this was a deliberate attempt
to circumvent the objections raised by the Petitioner to the holding
of the viva-voce.
d. University has violated Regulations 24 and 25 of the Academic
Rules and Regulations which prescribe as follows:
"S 24. *Viva-Voce through SKYPE.
The Executive Council resolved to approve that all M.Phil.
Viva-Voce will be conducted through SKYPE only. Ph.D.
Viva-Voce may also be conducted preferably through
SKYPE. However, in case the Ph.D. Viva-Voce needs to be
held by inviting experts to the School or Centre, due
justification may be forwarded through Chairperson/Dean to
the competent authority for prior permission in this regard. It
was also resolved to constitute a Committee to frame
guidelines to hold Viva-Voce through SKYPE. The
Committee has submitted the following guidelines.
Guidelines
1. The schedule and details of the Viva-Voce to be held
should be circulated to all concerned in advance.
2. The Viva-Voce shall be held in a hall/room which is
equipped with necessary infrastructure to hold Viva-Voce
examination through Video-conferencing. Wherever
necessary, the CIS, JNU will provide the necessary technical
help for conducting the viva-voce examination.
3. Members of the Research Advisory Committee of the
concerned student should be present in person during the
Viva-Voce. However, in exceptional circumstances, if a RAC
member is unable to attend the Viva-Voce, he/she, in
consultation with Supervisor and with the approval of the
Dean of the concerned School/Chairperson of the concerned
Special Centre, may nominate some other faculty (as per the
composition of RAC). At least two RAC members, including
the supervisor, should be present in person during the Viva-
Voce examination.
4. After the Viva-Voce examination, the external examiner
may submit his/her report/ recommendation through e-mail
and include a signed scanned copy of report/recommendation
as attachment to the official e-mail of the Dean of the
concerned School/Chairperson of the concerned
Centre/Special Centre. A printout of this
report/recommendation shall be signed and certified by the
Supervisor of the Viva-Voce Committee and the Dean of the
concerned School/Chairperson of the concerned
Centre/Special Centre.
5. No local travel expenses or any other charges/payment for
hardware/software assistance/hiring/purchase etc. will be
reimbursed to the external examiner or any other person for
availing of video-conferencing facility for holding of
M.Phil./Ph.D. Viva-Voce examination.
6. If, in any case, more than one external examiner is invited
to hold the Viva-Voce, the honorarium amount shall be
divided equally among them, as per Clause 3.6 of Academic
Ordinance number 27 of JNU.
7. Exemption for Ph.D. Viva-Voce - In extraordinary
circumstances where viva-voce cannot be held through
video-conferencing, the Dean/Chairperson of the
School/Centre/Spl. Centre shall take prior approval of the
Vice-Chancellor, to hold viva-voce in person. However, all
the M.Phil Viva-Voce will be conducted through video-
conferencing only.
8. The Viva-Voce report with relevant documents must be
submitted by the School/Centre in the prescribed existing
format along with the recommendation of the external
examiner as mentioned at point-4 above.
9. In case any dispute arises with respect to the
recommendation of the examiner and the member(s) of RAC,
the Competent Authority may take appropriate measures to
resolve the dispute. The decision of the Competent Authority
will be final.
S 25. *Composition of Research Advisory Committee in
Schools/Centres.
The Executive Council resolved that the composition of
Research Advisory Committee (RAC) for M.Phil. and Ph.D.
students will be as follows:
(a) Research Supervisor as Convener of the Committee;
(b) One internal expert from the concerned Centre/Special
Centre/School (where no Centres exist); and
(c) One external expert from outside the concerned
Centre/Special Centre/School(where no centres exist), but
from within the University only."
8. Perusal of the viva-voce Committee shows that it is contrary to the
Regulations inasmuch as the two Professors teach at the Centre for
English Studies and Indian languages, respectively and have no
understanding of the Spanish language. There is also violation of Clause
3 of the JNU Ordinance 2016 inasmuch as the Supervisors were not
appointed by CASR but by the Dean.
9. Petitioner is a person of repute and well-known academician
throughout India with great credibility in academic arena. The impugned
action of the University shall have an effect on the other students under
his supervision, and would be misused as a precedent seriously
undermining the efforts of the Petitioner and tarnishing his reputation.
The violations of the Ordinance in appointment of Supervisors will lead
to academic chaos and adversely affect the quality of research output and
the academic council of JNU shall run as per the wishes of the Dean.
10. Ms. Monika Arora learned counsel for University had appeared on
advance copy of the writ petition. She submitted that the petition deserves
to be dismissed at the outset as the contentions of the Petitioner are
unfounded, misconceived and the Petition is an abuse of process of law.
The submissions made by Ms. Arora are as follows:
a) Respondent No. 2 who is an Assistant Professor in the Centre with
effect from 28.12.2006 submitted his thesis for the award of Ph.D.
Degree, under supervision of the Petitioner on 23.10.2019. The
Petitioner who is the Chairperson of the Spanish Centre as well as
the Supervisor of Respondent No. 2 signed his thesis and the
Official Thesis Submission Form, confirming submission of his
Thesis. He also provided the names of five External Examiners
endorsing the Thesis to be sent to the External Examiners for
evaluation.
b) Thesis was sent to two External Examiners, one being an Assistant
Professor at Mahatma Gandhi International Hindi University,
Wardha and the other retired Professor of Central Hindi Institute,
Agra, as per norms. Both appreciated the research work of
Respondent No. 2 and recommended award of the Degree, subject
to passing the viva-voce.
c) An External Examiner has four options while evaluating a Thesis
viz. (i) to recommend award of Degree and proceed for viva-voce;
(ii) suggest minor corrections before viva-voce; (iii) suggest major
corrections and sent the Thesis back for incorporation and for the
examiner to evaluate and (iv) rejection of the Thesis. Both the
examiners followed the path of recommending the award of
Degree.
d) On receipt of the Report, the Evaluation Branch forwarded the
Report to the concerned Centre on 18.02.2020 for conduct of viva-
voce. The Petitioner did not arrange for the conduct of viva-voce
despite several requests by Respondent No. 2 vide e-mails dated
11.03.2020, 13.03.2020, 18.03.2020, 14.04.2020 and 28.04.2020.
Dean of the School also requested to do the needful both
telephonically and via emails dated 14.04.2020, 25.04.2020,
09.05.2020 and 14.05.2020 to schedule online viva-voce, but to no
avail.
e) Seeing the apathy of the Petitioner, the Dean apprised the
University administration of the deadlock in the matter and
accordingly a Committee was proposed to look into the matter,
which concluded that a substitute/alternate Supervisor be appointed
to conduct the viva-voce. Acting upon the recommendations and in
accordance with provisions of Ordinance XVI, the University
appointed two faculty members as Supervisors and finally the viva-
voce was held online on 03.06.2020 as per the UGC Guidelines.
The Ph.D. Notification dated 28.07.2020, nonetheless, mentions
the name of the Petitioner as Supervisor, to give him credit for his
supervision during the relevant period.
f) Once Respondent No. 2 submitted his Thesis and his research work
was duly approved by the Examiners, there was no reason why the
University should have stalled the holding of the viva-voce and
delaying the award of Degree. Petitioner is incorrect in stating that
he is affected by the award of the Degree and in fact he has no
locus to even file the present petition and the Petition is more in the
nature of a Public Interest Litigation and not maintainable. It is also
notable that the Petitioner is responsible for not holding the viva-
voce despite several requests and can only blame himself if the
University appointed two other Supervisors.
11. Respondent No. 2 was also represented by a counsel, who adopted
the stand of the University and reiterated the arguments put forth by Ms.
Arora. Learned counsel submits that the Petitioner has no locus to file the
present petition and challenge the award of Degree which has been
awarded to Respondent No. 2 on the basis of his research work, duly
recommended by the Examiners.
12. I have heard the learned counsels for the parties and examined their
rival submissions.
13. The Petitioner was the Supervisor of Respondent No. 2 for his
Thesis for award of Ph.D. Degree. The question however that arises for
consideration before this Court is whether the Petitioner has any locus
standi to file the present petition challenging the award of Degree to
Respondent No. 2. To answer this question, I may need to examine the
provisions of Article 226 of the Constitution of India. Article 226
empowers the High Court to issue to any person or Authority, including
the Government, within its territorial jurisdiction, directions, orders or
writs including writs of habeas corpus, mandamus, prohibition, quo
warranto and certiorari for enforcement of fundamental rights and for any
other purpose.
14. Going by most of the English decisions, in order to invoke
certiorari jurisdiction, the Petitioner should be an 'aggrieved person' and
the question that next arises is who is an aggrieved person. In Jasbhai
Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, (1976) 1 SCC
671 the Supreme Court described the expression 'aggrieved person' as
follows:
"13. This takes us to the further question: Who is an
"aggrieved person" and what are the qualifications requisite
for such a status? The expression "aggrieved person"
denotes an elastic, and to an extent, an elusive concept. It
cannot be confined within the bounds of a rigid, exact and
comprehensive definition. At best, its features can be
described in a broad tentative manner. Its scope and
meaning depends on diverse, variable factors such as the
content and intent of the statute of which contravention is
alleged, the specific circumstances of the case, the nature
and extent of the petitioner's interest, and the nature and
extent of the prejudice or injury suffered by him. English
courts have sometimes put a restricted and sometimes a wide
construction on the expression "aggrieved person".
However, some general tests have been devised to ascertain
whether an applicant is eligible for this category so as to
have the necessary locus standi or "standing" to invoke
certiorari jurisdiction."
15. In the same decision, the Court observed that in order to have the
locus standi to invoke the extraordinary jurisdiction under Article 226 an
applicant should ordinarily be one who has a personal or individual right
in the subject matter, though in writs of habeas corpus or quo warranto,
the Rule is relaxed. Para 34 being relevant is as under:
"34. This Court has laid down in a number of decisions that
in order to have the locus standi to invoke the extraordinary
jurisdiction under Article 226, an applicant should ordinarily
be one who has a personal or individual right in the subject-
matter of the application, though in the case of some of the
writs like habeas corpus or quo warranto this rule is relaxed
or modified. In other words, as a general rule, infringement
of some legal right or prejudice to some legal interest
inhering in the petitioner is necessary to give him a locus
standi in the matter, (see State of Orissa v. Madan Gopal
Rungta [AIR 1952 SC 12 : 1952 SCR 28] ; Calcutta Gas
Co. v. State of W.B. [AIR 1962 SC 1044 : 1962 Supp (3) SCR
1] ; Ram Umeshwari Suthoo v. Member, Board of Revenue,
Orissa [(1967) 1 SCA 413] ; Gadde Venkateswara
Rao v. Government of A.P. [AIR 1966 SC 828 : (1966) 2 SCR
172] ; State of Orissa v. Rajasaheb Chandanmall [(1973) 3
SCC 739] ; Satyanarayana Sinha Dr v. S. Lal & Co. [(1973)
2 SCC 696 : (1973) SCC (Cri) 1002] )."
16. The expression 'ordinarily' was also explained by the Court in para
35 as follows:
"35. The expression "ordinarily" indicates that this is not a
cast-iron rule. It is flexible enough to take in those cases
where the applicant has been prejudicially affected by an act
or omission of an authority, even though he has no proprietary
or even a fiduciary interest in the subject-matter. That apart,
in exceptional cases even a stranger or a person who was not
a party to the proceedings before the authority, but has a
substantial and genuine interest in the subject-matter of the
proceedings will be covered by this rule. The principles
enunciated in the English cases noticed above, are not
inconsistent with it."
17. Explaining the concept of locus standi in the context of writ of
certiorari, the Court observed as follows:
"37. It will be seen that in the context of locus standi to apply
for a writ of certiorari, an applicant may ordinarily fall in any
of these categories: (i) "person aggrieved"; (ii) "stranger";
(iii) busybody or meddlesome interloper. Persons in the last
category are easily distinguishable from those coming under
the first two categories. Such persons interfere in things which
do not concern them. They masquerade as crusaders for
justice. They pretend to act in the name of pro bono publico,
though they have no interest of the public or even of their own
to protect. They indulge in the pastime of meddling with the
judicial process either by force of habit or from improper
motives. Often, they are actuated by a desire to win notoriety
or cheap popularity; while the ulterior intent of some
applicants in this category, may be no more than spoking the
wheels of administration. The High Court should do well to
reject the applications of such busybodies at the threshold.
38. The distinction between the first and second categories of
applicants, though real, is not always well-demarcated. The
first category has, as it were, two concentric zones; a solid
central zone of certainty, and a grey outer circle of lessening
certainty in a sliding centrifugal scale, with an outermost
nebulous fringe of uncertainty. Applicants falling within the
central zone are those whose legal rights have been infringed.
Such applicants undoubtedly stand in the category of "persons
aggrieved". In the grey outer circle the bounds which separate
the first category from the second, intermix, interfuse and
overlap increasingly in a centrifugal direction. All persons in
this outer zone may not be "persons aggrieved"."
18. Finally, the Court examined the locus of the Appellant therein to
approach the Court for an alleged legal wrong and it would be useful to
refer to two passages of the Report in this regard as under:
"48. In the light of the above discussion, it is demonstrably
clear that the appellant has not been denied or deprived of a
legal right. He has not sustained injury to any legally
protected interest. In fact, the impugned order does not
operate as a decision against him, much less does it
wrongfully affect his title to something. He has not been
subjected to a legal wrong. He has suffered no legal
grievance. He has no legal peg for a justiciable claim to hang
on. Therefore he is not a "person aggrieved" and has no locus
standi to challenge the grant of the no-objection certificate.
49. It is true that in the ultimate analysis, the jurisdiction
under Article 226 in general, and certiorari in particular is
discretionary. But in a country like India where writ petitions
are instituted in the High Courts by the thousand, many of
them frivolous, a strict ascertainment, at the outset, of the
standing of the petitioner to invoke this extraordinary
jurisdiction, must be insisted upon. The broad guidelines
indicated by us, coupled with other well-established self-
devised rules of practice, such as the availability of an
alternative remedy, the conduct of the petitioner etc. can go a
long way to help the courts in weeding out a large number of
writ petitions at the initial stage with consequent saving of
public time and money."
19. Very recently a Coordinate Bench of this Court in Tirupati
Buildings and Offices Pvt. Ltd. v. Reserve Bank of India, 2019 SCC
OnLine Del 8990, again examined the law on the expression 'person
aggrieved' relying on the earlier judgments on the subject and I may only
allude to a few paragraphs as follows:
"53. Admittedly, no petition has been filed by the respondent
No. 3 Edelweiss Asset Reconstruction Company Limited; who
had submitted the bid which was held to be highest. If the
stand of the petition is that the said bid of the respondent No.
3 has not been decided, then it shall be grievance of the
respondent No. 3 to raise an issue. Merely because the bid is
for taking over of the loan given by the Dena Bank to the
petitioner even though would suggest some interest of the
petitioner but that would not show locus of the petitioner to
maintain the writ petition for a prayer as noted above, as it is
settled law to maintain a writ under Article 226 of the
Constitution of India it should be shown by the petitioner that
its right has been infringed by the inaction on the part of the
respondent No. 2 to decide the bid submitted by the
respondent No. 3 Edelweiss Asset Reconstruction Company
Limited, which according to Mr. Aggarwal it has failed.
Further it is not the case of the petitioner that the present
petition has been filed in public interest. Surely such cases
are exception to the locus standi rule as held by the Supreme
Court in various judgments including Bandhua Mukti
Morcha v. Union of India, (1984) 3 SCC 161 : AIR 1984 (SC)
802. Further, the submission of Mr. Tripathi that the
Edelweiss and the petitioner have been writing to the
Dena Bank for consummation of sale is concerned; the same
can be a ground for Edelweiss but not the petitioner, who is
not the bidder to approach the Court with relief as prayed
for. So, the relief to the respondent No. 3 cannot be given at
the asking of the petitioner. In other words, the
cause of action is the submission of bid which has not been
decided. It is surely a cause for the respondent No. 3 to
approach the Court against Dena Bank and not the
petitioner. So, it follows the judicial review of the inaction on
the part of the Dena Bank to decide the bid on any ground at
the behest of any party other than Edelweiss is
impermissible. Hence, this plea of Mr. Aggarwal needs to be
accepted and it must be held that the petitioner has no locus
standi to seek prayer(s) as stated above in this writ petition.
In support of my aforesaid conclusion, I may refer to the
following judgments of the Supreme Court on the
issue of maintainability of the writ petition by a person who
has no locus standi to file a petition:
54. In Calcutta Gas Company (Proprietary) Ltd. v. State of
West Bengal, AIR 1962 SC 1044, in para 5 the Supreme
Court has held as under:
"...Article 226 confers a very wide power on the High
Court to issue directions and writs of the nature
mentioned therein for the enforcement of any of the
rights conferred by Part III or for any other purpose. It
is, therefore, clear that persons other than those
claiming fundamental rights can also approach the
court seeking a relief thereunder. The Article in terms
does not describe the classes of persons entitled to
apply thereunder; but it is implicit in the exercise of
the extraordinary jurisdiction that the relief asked for
must be one to enforce a legal right. In State of
Orissa v. Madan Gopal, 1952 SCR 28: (AIR 1952 SC
12) this Court has ruled that the existence of the right
is the foundation of the exercise of jurisdiction of the
Court under Art. 226 of the Constitution. In Charanjit
Lal Chowdhuri v. Union of India, 1950 SCR 869: (AIR
1951 SC 41), it has been held by this Court that the
legal right that can be enforced under Art. 32 must
ordinarily be the right of the petitioner himself who
complains of infraction of such right and approaches
the Court for relief. We do not see any reason why a
different principle should apply in the case of a
petitioner under Art. 226 of the Constitution. The right
that can be enforced under Art. 226 also shall
ordinarily be the personal or individual right of the
petitioner himself, though in the case of some of the
writs like habeas corpus or quo warranto this rule may
have to be relaxed or modified..."
55. In Mani Subrat Jain v. State of Haryana, (1977) 1 SCC
486 : AIR 1977 SC 276, in para 9 the Supreme Court has
held as under:
"..It is elementary though it is to be restated that no
one can ask for a mandamus without a legal right.
There must be a judicially enforceable right as well as
a legally protected right before one suffering a legal
grievance can ask for a mandamus. A person can be
said to be aggrieved only when a person is denied a
legal right by some one who has a legal duty to do
something or to abstain from doing something. (See
Halsbury's Laws of England 4th Ed. Vol. I, paragraph
122); State of Haryana v. Subash Chander, (1974) 1
SCR 165 = ((1974) 3 SCC 220 : AIR 1973 SC 2216);
Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir
Ahmed, (1976) 3 SCR 58 = ((1976) 1 SCC 671 : AIR
1976 SC 578) and Ferris Extraordinary Legal
Remedies paragraph 198."
(emphasis supplied)
56. In Ghulam Qadir v. Special Tribunal, (2002) 1 SCC 33,
in para 38 the Supreme Court has held as under:
"38. There is no dispute regarding the legal
proposition that the rights under Article 226 of the
Constitution of India can be enforced only by an
aggrieved person except in the case where the writ
prayed for is for habeas corpus or quo warranto.
Another exception in the general rule is the filing of a
writ petition in public interest. The existence of the
legal right of the petitioner which is alleged to have
been violated is the foundation for invoking the
jurisdiction of the High Court under the aforesaid
Article. The orthodox rule of interpretation regarding
the locus standi of a person to reach the court has
undergone a sea change with the
development of constitutional law in our
country and the constitutional courts have been
adopting a liberal approach in dealing with the cases
or dislodging the claim of a litigant merely on
hypertechnical grounds. If a person approaching the
court can satisfy that the impugned action is likely to
adversely affect his right which is shown to be having
source in some statutory provision, the petition filed by
such a person cannot be rejected on the ground of his
having not the locus standi. In other words, if the
person is found to be not merely a stranger having no
right whatsoever to any post or property, he cannot be
non-suited on the ground of his not having the locus
standi."
(emphasis supplied)
57. Further the expression "aggrieved person" has come up
for consideration before the Supreme Court on many
occasions wherein the Supreme Court has held, aggrieved
person would mean who has suffered legal injury. In this
regard reference can be made to its opinion in Babua
Ram v. State of U.P., (1995) 2 SCC 689 wherein, in
paragraph 17, it observed as under:
"17. In Collins English Dictionary, the word
'aggrieved' has been defined to mean "to ensure
unjustly especially by infringing a person's legal
rights". In Webster Comprehensive Dictionary,
International Edition at page 28, aggrieved person is
defined to mean "subjected to ill-treatment, feeling an
injury or injustice. Injured, as by legal decision
adversely infringing upon one's rights". In Strouds
Judicial Dictionary, Fifth Edn., Vol. 1, pages 83-84,
person aggrieved means "person injured or damaged
in a legal sense". In Black's Law Dictionary, Sixth
Edn. at page 65, aggrieved has been defined to mean
"having suffered loss or injury; damnified;
injured" and aggrieved person has been defined to
mean:
"One whose legal right is invaded by an act
complained of, or whose pecuniary interest is
directly and adversely affected by a decree or
judgment. One whose right of property may be
established or divested. The word 'aggrieved' refers to
a substantial grievance, a denial of some personal,
pecuniary or property right, or the imposition upon a
party of a burden or obligation."
58. The person aggrieved, therefore, must be one who has
suffered a legal injury.
59. Further the Supreme Court in Jasbhai Motibhai
Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 1 SCC
671 : AIR 1976 SC 578, while dealing with the expression
"aggrieved person", has in paragraphs 12, 25, 29 and 38
observed as under:
"12. According to most English decisions, in order to
have the locus standi to invoke certiorari jurisdiction,
the petitioner should be an "aggrieved person" and in
a case of defect of jurisdiction, such a petitioner will
be entitled to a writ of certiorari as a matter of course,
but if he does not fulfill that character, and is a
"stranger", the Court will, in its discretion, deny him
this extraordinary remedy, save in very special
circumstances. This takes us to the further question:
Who is an "aggrieved person"? And what are the
qualifications requisite for such a status? The
expression "aggrieved person" denotes an
elastic, and, to an extent, an elusive concept. It cannot
be confined within the bounds of a rigid,
exact and comprehensive definition. At best, its
features can be described in a broad tentative manner.
Its scope and meaning depends on diverse variable
factors such as the content and intent of the
statute of which contravention is alleged, the specific
circumstances of the case, the nature and extent of the
petitioner's interest, and the nature and extent of the
prejudice or injury suffered by him. English Courts
have sometimes put a restricted and sometimes a wide
construction on the expression "aggrieved person".
However, some general tests have been devised to
ascertain whether an applicant is eligible for this
category so as to have the necessary locus standi or
'standing' to invoke certiorari jurisdiction.
xxx xxx xxx
25. Emphasising the 'very special
circumstances' of the case, the court read into the
statute, a duty to act fairly in accordance with the
principles of natural justice. Thus, a corresponding
right to be treated fairly was also imported, by
implication, in favour of the applicants. Viewed from
this standpoint, the applicants had an interest
recognised in law, which was adversely affected by the
impugned action. They had suffered a wrong as a
result of the unfair treatment on the part of the
corporation.
xxx xxx xxx
29. ...Salmon J. quoted with approval these
observations of James LJ in James LJ
in Sidebothem (1880) 14 Ch D 458 at p. 465 The
words 'person aggrieved' do not really mean a man
who is disappointed of a benefit which he might have
received if some other order had been made. A 'person
aggrieved' must be a man who has suffered a legal
grievance, a man against whom a decision has been
pronounced which has wrongfully deprived
him of something or wrongfully refused him something,
or wrongfully affected his title to something.
(emphasis supplied)
xxx xxx xxx
38. To distinguish such applicants from 'strangers',
among them, some broad tests may be deduced from
the conspectus made above. These tests are not
absolute and ultimate. Their efficacy varies according
to the circumstances of the case, including the
statutory context in which the matter falls to be
considered. These are: Whether the applicant is a
person whose legal right has been infringed? Has he
suffered a legal wrong or injury, in the sense that his
interest, recognised by law, has been
prejudicially and directly affected by the act or
omission of the authority, complained of? Is he a
person who has suffered a legal grievance, a person
'against whom a decision has been pronounced which
has wrongfully deprived him of something or
wrongfully refused him something, or wrongfully
affected his title to something? Has he a
special and substantial grievance of his own beyond
some grievance or inconvenience suffered by him in
common with the rest of the public? Was he entitled to
object and be heard by the authority before it took the
impugned action? If so, was he prejudicially affected
in the exercise of that right by the
act of usurpation of jurisdiction on the part of the
authority? Is the statute, in the context of which the
scope of the words 'person aggrieved' is being
considered, a social welfare measure designed to lay
down ethical or professional standards of conduct for
the community? Or is it a statute dealing with private
rights of particular individuals?"
(emphasis supplied)
60. In a recent pronouncement the Supreme Court
in Ayaaubkhan Noorkhan
Pathan v. State of Maharashtra, (2013) 4 SCC 465, while
dealing with the expression "person aggrieved" in
paragraph 9 observed thus:
"9. It is a settled legal proposition that a stranger
cannot be permitted to meddle in any proceeding,
unless he satisfies the authority/court, that he falls
within the category of aggrieved persons. Only a
person who has suffered, or suffers from legal injury
can challenge the act/action/order etc. in a
court of law. A writ petition under Article 226 of the
Constitution is maintainable either for the
purpose of enforcing a statutory or legal right, or
when there is a complaint by the appellant that there
has been a breach of statutory duty on the part of the
authorities. Therefore, there must be a judicially
enforceable right available for enforcement, on the
basis of which writ jurisdiction is resorted to. The
Court can, of course, enforce the performance of a
statutory duty by a public body, using its writ
jurisdiction at the behest of a person, provided that
such person satisfies the Court that he has a legal right
to insist on such performance. The existence of such
right is a condition precedent for invoking the writ
jurisdiction of the courts. It is implicit in the
exercise of such extraordinary jurisdiction that the
relief prayed for must be one to enforce a legal right.
In fact, the existence of such right, is the
foundation of the exercise of the said jurisdiction by
the Court. The legal right that can be enforced must
ordinarily be the right of the appellant himself, who
complains of infraction of such right and approaches
the Court for relief as regards the same.
[Vide State of Orissa v. Madan Gopal Rungta, AIR
1952 SC 12, Saghir Ahmad v. State of U.P., AIR 1954
SC 728, Calcutta Gas Co.
(Proprietary) Ltd. v. State of W.B., AIR 1962 SC 1044,
Rajendra Singh v. State of M.P., (1996) 5 SCC
460 and Tamilnad Mercantile Bank Shareholders
Welfare Assn. (2) v. S.C. Sekar, (2009) 2 SCC 784.]"
(emphasis supplied)
61. The Supreme Court in M.S. Jayaraj v. Commissioner of
Excise, Kerala, (2000) 7 SCC 552, examined the issue of
"locus standi" and held that the person should be asked to
disclose the legal injury suffered by him and if he cannot,
then, obviously, the person has no locus standi to file a writ
petition under Article 226 of the Constitution of India."
20. Applying the ratio of the judgments referred to above, the
inevitable conclusion that can be drawn is that the Petitioner has no locus
standi to file the present petition seeking a writ of certiorari under Article
226 of the Constitution of India. Petitioner cannot be termed as a 'person
aggrieved' going by the law enunciated in the judgments above.
21. Petitioner was admittedly appointed as Supervisor for the Ph.D.
Thesis of Respondent No. 2 vide Notification dated 25.07.2017. He had
guided the Thesis and finally signed on them including endorsing the
Thesis Submission Form, thereby confirming the submission of the
Thesis. As per procedure and norms the Thesis was sent to the
Examiners, who were from independent Universities and recommended
the award of Degree, without even suggesting a minor correction in the
Thesis. The recommendations were subject to the conduct of viva-voce
examination. The documents placed on record by the Petitioner himself
are a pointer to the fact that several emails were sent to the Petitioner to
organize the conduct of viva-voce as he was the Chairperson of the
Centre. However, requisite action was not taken by the Petitioner despite
the fact that it was obligatory for him to hold the viva-voce as a part of
his statutory duty, being the Chairman of the Centre.
22. In my view, the University rightly contends that if the Petitioner
did not take timely action for conducting the viva-voce, there was no
reason why the process should have been stalled, unnecessarily delaying
the award of a Ph.D. Degree to a candidate who worked hard on the
Thesis and even got favourable recommendations from two independent
Examiners.
23. I also find force in the contention of the University that the
provisions of the JNU Ordinance 2016 itself permit the University to
proceed with the viva-voce examination by recommending another
member of the faculty, as a Supervisor, in a situation where the appointed
Supervisor is unable to participate in the viva-voce examination, within a
reasonable time. Relevant provision of the Ordinance 2016 is as under:
"Ordinance 16: Procedure for conduct of viva-voce for
award of Ph.D Degree
"The viva-voce examination of candidate shall be conducted
by a Board of examiners consisting of one of the external
examiners of the thesis and the Supervisor(s). Provided, where
neither of the examiners, who evaluated the thesis, is in a
position to conduct the viva-voce examination, another
examiner shall be appointed in his/her place.
Provided that where the Supervisor is unable to be present
within a reasonable time to participate in the viva-voce
examination, the Committee for Advanced Studies and
Research may recommend another member of the faculty in
his/her place."
24. The action of the University is therefore in accordance with the
provision of the Ordinance and contrary to what has been argued by the
Petitioner, in the interest of academic institutions. Needless to state that
research students cannot be made to suffer on account of delay caused by
administrative constraints or the subjective perceptions of the
Supervisors. Petitioner failed to take timely and necessary action to
conduct the viva-voce and can only blame himself for the action of the
University in appointing two other Supervisors.
25. During the course of hearing counsel for the University informed
the Court that name of the Petitioner is shown as the Supervisor of
Respondent No. 2 on the Ph.D. Notification dated 28.07.2020 and
therefore in my view the Petitioner cannot complain of any harm to his
reputation.
26. For all the aforesaid reasons, the petition fails and is accordingly
dismissed.
27. Pending applications are disposed of accordingly.
JYOTI SINGH, J
DECEMBER 11, 2020
sr, rd
