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Homesh Kumar Sharma Vs. the Vice Chancellor, Aligarh Muslim University, Aligarh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 11266 of 1983
Judge
Reported inAIR1985All166
ActsConstitution of India - Article 226; Academic Ordinance; Aligarh Muslim University Act, 1920 - Sections 36A; Aligarh Muslim University (Amendment) Act, 1981
AppellantHomesh Kumar Sharma
RespondentThe Vice Chancellor, Aligarh Muslim University, Aligarh and anr.
Appellant AdvocateV.K. Gupta, Adv.
Respondent AdvocateHaidara Husain, Adv.
DispositionPetition allowed
Excerpt:
.....- - 1. facts giving rise to this petition directed against order dated 8-9-1983 passed by the vice-chancellor, aligarh muslim university, aligarh, are so glaring and shocking that it leaves one amazed that an institution like university entrusted with responsibility of imparting education could pass such arbitrary order which attempted to scuttle the career of a brilliant student and he had to rush to this court for seeking protection from torture to which he was being subjected. he also applied for being considered in the reserved quota for admission as he was a good sportsman during his college career and had been awarded certificate for the year 1980-81 for having stood first in 200 meters race. after trial the committee recommended petitioner's name for being admitted and he was..........petitioner's name for being admitted and he was admitted in b.sc. engineering course by the vice-chancellor in february, 1982. in july, 1982 he was informed by opposite party no. 2 that he was not regular at games. it was replied on 17th july, 1982. the petitioner informed that he went for practice in march and april but due to ragging he was so scared that he discontinued. and from may he was suffering from acute acririte bhimitis. this was supported by a medical certificate of a private physician and a certificate from captain of the athletic club -- he received another letter dated 14th august, 1982 from the president of athletics informing him that he should appear in the office at 5.20 p.m. else his admission shall be cancelled. in paragraph 18 of the petition it is averred.....
Judgment:

R.M. Sahai, J.

1. Facts giving rise to this petition directed against order dated 8-9-1983 passed by the Vice-Chancellor, Aligarh Muslim University, Aligarh, are so glaring and shocking that it leaves one amazed that an institution like University entrusted with responsibility of imparting education could pass such arbitrary order which attempted to scuttle the career of a brilliant student and he had to rush to this Court for seeking protection from torture to which he was being subjected.

2. Admittedly, petitioner after having passed his Intermediate Examination appeared in a qualifying competitive examination for admission to the B.Sc., Engineering Course of the University for the year 1981-82 for which minimum qualifying marks were forty per cent. He also applied for being considered in the reserved quota for admission as he was a good sportsman during his college career and had been awarded certificate for the year 1980-81 for having stood first in 200 meters race. In the competitive examination the petitioner having been found to have qualified was required to appear before the Athletic Committee, comprising of Sri Idris Qureshi, President, Professor Aslam Qadir, Game Secretary and Sri M. Abid, Member of the Committee. He was required to run distance of 800 meters. After trial the Committee recommended petitioner's name for being admitted and he was admitted in B.Sc. Engineering Course by the Vice-Chancellor in February, 1982. In July, 1982 he was informed by opposite party No. 2 that he was not regular at games. It was replied on 17th July, 1982. The petitioner informed that he went for practice in March and April but due to ragging he was so scared that he discontinued. And from May he was suffering from acute Acririte Bhimitis. This was supported by a medical certificate of a private physician and a certificate from Captain of the Athletic club -- He received another letter dated 14th August, 1982 from the President of Athletics informing him that he should appear in the office at 5.20 P.M. else his admission shall be cancelled. In paragraph 18 of the petition it is averred that he appeared before the President and explained the circumstances in which he could not appear regularly for practice. This is not denied in the counter-affidavit. It appears that when the petitioner met the President he was asked to present himself for retrial on 15th August. This was postponed due to his illness, and he received another letter dated 16th August, 1982 by the President of the club that the trial was now fixed for 19th August. It was replied by the petitioner's father on 18th August. He mentioned that he apprehended that some anonymous complaint was responsible for direction to his son to appear for retrial. It was stated that he was ill and was advised rest by doctors. And no sooner he becomes all right he shall take part in the games. It was mentioned that his son was admitted at J.M.I.T. Darbhanga as well but as he was at Aligarh he got his admission cancelled there and got him admitted at Aligarh. Medical certificate of a doctor was also attached. On 19th August, the President of the club informed that in view of medical certificate the test was postponed and the petitioner should inform as soon as he was physically fit. The petitioner's father met the Vice-Chancellor as well on 18th August, 1982 and informed him that although his son was sick but he was submitting as desired by the authorities but he should be made to run a short distance to avoid any strain. On 20th August Captain of the Athletic club sent a letter to the Athletic President informing him in reference to copy of letter of Sri M. P. Sharma, father of petitioner issued to him from the Games Committee that petitioner started practice from 18th August, 1982. He had personally watched him practising although he was sick but was trying to maintain his timings. He was of opinion that if he was given proper training he might be fruitful for the University team. Copy of this letter was sent to the Vice-Chancellor and Secretary, Games Committee, as well. Another letter was received by petitioner on 24th August dated 21st August 1982 informing him that letter dated 19th August was superseded and he should appear for retrial of 800 meters race on 28th August, and in case he was medically unfit for retrial he should appear before a Medical Board on 28th August. It is not denied that he appeared before the Medical Board. On 31st August, petitioner got himself examined by the Chief Medical Officer who found him to be suffering from rheumatic arthralgia, and advised avoiding physical strain for two months. Then there was silence for one year and on 26th July, 1983 petitioner received another letter dated 26th July, 1983 informing him to appear before Vice-Chancellor at his residence at 6 p.m. As directed petitioner met the Vice-Chancellor and explained to him the circumstances and assured him that after II year examination, scheduled to take place between 26th July and 20th August, 1983 he shall start the practice. On 13th September, 1983 he received the impugned order dated 8th September which runs as under :

Order

'Mr. Homesh Kumar Sharma was nominated to the B.Sc., Engineering Class (I year) on the basis of his alleged performance at the athletic trials. It transpired, however, that he got himself impersonated by some one at the trials. In spite of definite evidence for this, a further opportunity was given to Mr. Sharma to explain his conduct and appear for a trial; but he made use of one pretext or another to delay matters, and finally refused to appear for retrial.

I gave him another hearing and am satisfied that he was unable to refute and dispel the charge of having organised an impersonation to get nominated under the sports quota. I am fully satisfied that Mr. Sharma had got his admission by use of impersonation and fraudulent means.

Under the powers vested in me by statute 3(2) of the Statutes of the University read with Ordinances 3 B and 7 A of Chapter VIII of the Academic Ordinances of the University, I order that the admission of Mr. Homesh Kumar Sharma to 1st year B.Sc., Engineering Class be cancelled.'

Sd. Saiyid Hamid.

Vice Chancellor.'

In the counter-affidavit the allegations are more or less admitted. In fact they could not be disputed as they are based on recitals in letters exchanged between petitioner and University authorities. But the order is defended as petitioner having not taken part in 57th Annual Athletics Meet and Inter-Hall Athletic Championship 1981-82 held from 4th to 6th June, 1982 the authorities became 'suspicious that petitioner had obtained admission by impersonation which was established because signature of petitioner obtained at time of Athletic trial in February, 1982, on intimation card, did not tally with his signature.

3. From what has been narrated above it stands out clearly that petitioner was ill and was suffering from rheumatism after he was admitted to the B.Sc. I year Engineering course. It is amply supported by various medical certificates issued by doctors including the Chief Medical Officer and Head of Department of Medicines of the University. The petitioner was further examined by the Medical Board. But the result was not communicated to him. Even in the counter-affidavit it has not been stated that the Board found him medically fit. Therefore non-participation of petitioner in games practice was for reasons on which he had no control. At least it has been satisfactorily explained. Even otherwise it is doubtful if the admission of a student from reserve quota of sports could be cancelled because he did not participate in games. The question, however, is if the Vice Chancellor had any power Under Section 3 read with Sections 3A and 3B of the Academic Ordinances of the University and even if he had, is the exercise of power justified. The order is founded on his satisfaction that the petitioner had obtained admission by impersonation and fraudulent means. Legal question apart this Court could have refused to interfere, as vehemently argued by learned counsel for University, if the finding on impersonation and using fraudulent means could be substantiated. Although the order mentions that there was definite evidence of impersonation hut none has been disclosed in the counter-affidavit except of course the difference in signature of petitioner from the one on intimation card. From July, 1982, to July, 1983 as many as six letters were issued by University authorities but there is no whisper in either of them about impersonation. As a matter of fact it was petitioner's father who in his letter sent on 14th August, 1982 had informed that his son was being asked to undergo second trial at close of Session on some anonymous mischievous complaint which was baseless as his son was awarded first Prize in 200 meters race when he was in college and his trial was taken in presence of the President of the athletic club after verifying the identity by comparing the photo. Even after this letter the University never intimated petitioner that there was suspicion of impersonation. It is admitted in the counter-affidavit that athletic test was taken by the President and Sri Abid Ali. No letter or correspondence or any material has been brought on record that any of these authorities ever expressed any doubt. On the other hand the President accepted the explanation offered on behalf of petitioner permitted him to appear when he was all right. But something was happening in the office of the Vice-Chancellor. On the very next day the letter was superseded and petitioner was asked to appear for retrial. Even in this Court it has not been stated that the President or Sri Abid Ali who had taken the test and before whom petitioner appeared had the least doubt that they had taken test of some other student. Then there are certificates of two of the athletic captains. Even if the first is ignored as argued by learned counsel as he was no more in the University although he was captain at the relevant time how can the second certificates be ignored. And the material disclosed in the counter-affidavit of difference in signature to say the least is amusing. What a material for inferring impersonation! That also without informing the petitioner. Then the signature on intimation card does not tally with which signature? Except the order parsed by the Vice-Chancellor there does not appear any inkling from any material or any latter which may suggest that at any time there was any feeling by any authority or any report suggesting that the petitioner had impersonated. The argument advanced by the learned counsel for the University that petitioner having been informed and opportunity having been given to him by the Vice-Chancellor it was for him to establish that there was no impersonation, to say the least, is misconceived. It was the University which was claiming that the petitioner had impersonated and, therefore, before any order could be passed it was for the University to have been satisfied from material on record that petitioner had in fact impersonated in the Athletic trial held in February, 1982, it is not in dispute that the Athletic committee which took trial of candidates who were to be admitted from the reserved quota of sportsmen comprised of Sri Idris Oureshi as President, Professor Aslam Qadir as Games Secretary and Sri M. Abid as member of the Committee and two of the members of the Committee were present at the time of trial but there is no whisper nor is there any letter or communication by any of these persons to the Vice-Chancellor that the petitioner was not the person who participated in the trial earlier. On the other hand, the letters which have been sent from time to time to the petitioner to appear for trial and take part in games have been issued by Sri Idris Oureshi as President of the Athletic club. The vital averment in paragraph 18 of the petition that petitioner personally appeared before the president of the Club and explained the circumstances in which he could not appear have not been denied. He would have been the best person to inform the Vice-Chancellor if he had least suspicion that the petitioner was a person other than the person who appeared at the time of the trial. In fact, from the letter sent by him the inference arises that he never had the least doubt that it was petitioner and petitioner alone who had participated at the time of trial for admission under the reserved quota. On facts, therefore, the order cannot stand. No impersonation or use of fraudulent means has been made out. The order is wholly unwarranted and arbitrary. Therefore, even if the Vice-Chancellor had power the circumstances for its exercise were non-existent.

4. The order is bad in law as well. The Vice-Chancellor has cancelled the admission of petitioner in exercise of power conferred on him under Clause 3-B read with Clause 3-A of the Academic Ordinances which are quoted hereunder :

'3.A. All admissions granted shall, in the first instance, be deemed to be provisional. The committee may also refuse admission in any individual case, and no candidate shall be entitled to claim admission as of right.

3.B. The admission committee may for any reason cancel the admission granted provisionally or otherwise, to any student.'

According to the learned counsel for University the power conferred under Clause 3-B is discretionary and it having been specifically provided that the Admission Committee could cancel the admission for any reason this Court could not substitute its own reason or cancel the result on the ground that the discretion exercised by the Admission Committee was improper. We must confess our inability to appreciate the argument. It is true that the expression used is 'for any reason' but it has to be understood reasonably and considered in a manner which may impart rationality to it. It cannot be construed as conferring arbitrary and whimsical power on the authority which is entrusted under the Ordinances. The framers of the Ordinances contemplated that Admission Committee shall exercises power so as to advance the interest of the University and if it finds that any student has acted in a manner which may be considered to be illegal, irregular or derogatory to the University it may cancel the admission hut it cannot be accepted that this clause confers unbridled power on the Vice-Chancellor to act in any manner and cancel the admission of any student for any reason which cannot be supported either on facts or in law. Moreover, this power conferred under Clause 3-B has to be read alongwith Clause 3-A which provides that all admissions granted shall, in the first instance, be deemed to be provisional. The word 'Provisional' has been defined in Oxford Dictionary as 'for present', 'for the occasion', 'temporarily' and that is reasonable also because every admission when it is made has to be temporary and for the time being but once it is acted upon and the student is finally admitted, permitted to continue his studies and appear in the examination then the character of provisional' comes to an end. In fact, the moment a student is admitted and is permitted to continue his studies it ceases to be provisional, unless intimated otherwise. To say, therefore, that the provisional character of admission continued and the Vice Chancellor in exercise of power under clause 3-B was right in cancelling the provisional admission is to say something which is not made out by any of these clauses.

5. Learned counsel then urged that clause 35 of the Statutes of the University conferred entire powers in the Vice-Chancellor relating to discipline and disciplinary action in relation to students. According to learned counsel as petitioner did not appear for retrial despite repeated letters to him it amounted to indiscipline and, therefore, the exercise of power by the Vice-Chancellor was not liable to interference by this Court. Attention has been drawn to Sub-clause (6) of this clause also which provides that at the time of the admission every student shall be required to sign a declaration to the effect that he shall submit to the disciplinary jurisdiction of the Vice-Chancellor and the other authorities of the University. There can hardly be any dispute that the discipline in Academic Institutions is of prime importance and no student who is guilty of indiscipline should be permitted to remain there and this Court should not interfere if a student is being removed and debarred from examination or his admission is being cancelled for disciplinary action but unfortunately the learned counsel has failed to point the act of indiscipline committed by petitioner. Despite strenuous arguments the learned counsel has not been able to point out, any rule or any practice which may lay down that a student who did not appear for retrial of sports as directed by the authorities due to illness is guilty of indiscipline. Moreover, the Vice-Chancellor had not cancelled the admission of the petitioner in exercise of his! power under Clause 35 of the Statutes. This argument has been made on the basis of allegations made in the counter-affidavit but as the order was not passed under this statute this Court is not called upon to deal with it any further.

6. In the end, the learned counsel in desperation relied on Section 36-A of the Aligarh Muslim University Act of 1920 as amended in 1981 and urged that petitioner had an alternative remedy to approach the Executive council by way of appeal. The argument cannot be accepted because from reading of Sub-section (1) of Section 36-A it is abundantly clear that it confers a right of appeal on a student or a candidate whose name has been removed from the rolls of the University and who has been debarred from appearing at the examinations of the University for more than a year. It does not apply to a ease where admission of a candidate has been cancelled in exercise of power under Clause 3 B of the Academic Ordinances. Even if it is assumed that the appeal would have been maintainable we are satisfied that it was not efficacious as petitioner's admission having been cancelled and he having appeared in B.Sc., Part II it would be asking too much from him to wait for another one year and waste his academic career. The petitioner secured first division marks approximately 75 per cent. To ask such a candidate to waste another one year in filing appeal and getting a decision when there is no dispute on facts would be doing injustice to him.

7. In the result the petition succeeds and is allowed. The order dated 8-9-1983 passed by the Vice-Chancellor is quashed. The petitioner shall be entitled to his costs.


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