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Prof. M. Ramaswamy Professor of Constitutional Law in the Faculty of Law and ors. Vs. Miss Manju Bakhru - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 74-D of 1952
Judge
Reported inAIR1963P& H419
ActsConstitution of India - Article 226
AppellantProf. M. Ramaswamy Professor of Constitutional Law in the Faculty of Law and ors.
RespondentMiss Manju Bakhru
Appellant Advocate K.K. Raizada and; B.K. Jaii, Advs.
Respondent Advocate R.L. Tandon, Adv.
DispositionAppeal allowed
Cases ReferredPunjab Cooperative Bank Ltd. Amritsar v. Commr. of Income
Excerpt:
.....moral character. 6. 5. the learned counsel for miss manju argued that the countersigning of the character certificate by the magistrate amounts to giving her a certificate of good character as required. it will be erroneous to construe from signature of the magistrate that he himself certified the candidate to be a person of good moral character. what the magistrate virtually indicates by countersigning, is that shri bhatia has certified that miss manju bakhru bears a good moral character and not that the magistrate himself knows her to bear good moral character as certified by shri bhatia. aggarwal, the magistrate, knew miss manju personality and was certifying of his own knowledge that she bore good character. the time was, therefore, clearly of the essence. it was clearly pointed..........her name was not included, she was informed that her character certificate was net from a first class magistrate. he did not accept her contention that the countersigning of the certificate by a magistrate was tantamount to a certificate from him. higher authorities did not grant her redress and the petitioner received on 23rd of july, 1962, a communication from the superintendent of the faculty of law informing her that her letters had received careful consideration of the vice-chancellor and that he had decided that the rejection of her application was right. a further representation made by her father on her behalf was rejected. a writ petition was moved in this court and the petitioner's contention was that the character certificate produced was in order and complied with the.....
Judgment:

Tek Chand, J.

1. This is a Letters Patent Appeal from the judgment of learned Single Judge preferred by Professor M. Ramaswamy in the Faculty of Law in the University of Delhi, Professor L. R. Sivasubramanian, Dean of the Faculty of law, and Dr. C. D. Deshmukh, Vice-Chancellor of the Dellhi University, against Miss Manju Bakhru, under Clause 10 of the Letters Patent of this Court. A writ petition (Civil Writ No. 518-D of 1962) was presented to this Court in which the petitioner stated that she had obtained the Degree of the Bachelor of Arts from the Punjab University. Examination was held in April, 1991, and she appeared as a private candidate securing 203 out of 500 marks. She applied for admission to the LL.B. (Previous) class (1962-3) of the Faculty of Law of the University of Delhi. On 30th of June, 1962, at about 11.00 A.M. the requisite application form was submitted along with the required certificates. As per 'Bulletin of Information' (1962-63) and 'Instructions to Applicant' (1962-63), published and issued by the Faculty of law, she was required to produce a number of certificates along with her application form for admission. According to 'Bulletinof Information', page 7, a candidate admitted to the LL.B. (Previous) was also required to produce a character certificate, the relevant instruction proceeded as under:

'Those who have passed the last examination privately without undergoing a regular course of study in any recognised University, College, or Institution, but who are not in Government service, should produce, in original, along with the application form for admission, a character certificate from a Judge or a First-Class (stipendiary) Magistrate, or the Principal of a first-grade Degree College of a recognised University, or the Registrar of a University,.....'

The petitioner, among other certificates, had also produced along with her application form for admission a character certificate in original signed by Shri V. N. Bhatia, Joint Secretary and Draftsman to the Government of India, Ministry of Law, and countersigned by Shri M. M. Aggarwal, a First Class (Stipendiary) Magistrate of Delhi. The certificate of Shri Bhatia states that Miss Manju Bakhru daughter of Shri Chandiram Bakhru is known to him well for the last ten years. To the best of his knowledge and belief she bears a very good moral character. There are counter-signatures on this certificate as under:

'Countersigned.

M. M. Aggarwal.

M. I. C. 30-6-62.

Magistrate 1st Class Delhi

2. On 12th of July, 1962, the list of candidates, who were selected for admission to the LL.B. (Previous) Class was notified on the Faculty notice-board, but the petitioner's name was not included. When the petitioner enquired of the first appellant as to why her name was not included, she was informed that her character certificate was net from a First Class Magistrate. He did not accept her contention that the countersigning of the certificate by a Magistrate was tantamount to a certificate from him. Higher authorities did not grant her redress and the petitioner received on 23rd of July, 1962, a communication from the Superintendent of the Faculty of Law Informing her that her letters had received careful consideration of the Vice-Chancellor and that he had decided that the rejection of her application was right. A further representation made by her father on her behalf was rejected. A writ petition was moved in this Court and the petitioner's contention was that the character certificate produced was in order and complied with the relevant provisions. On the above allegations it was prayed that a writ in the nature of mandamus or other appropriate writ should be issued directing the three University authorities to accept the character certificate produced by the petitioner and to allow her admission to the LL.B. (Previous) Class 1962-63.

3. The matter came up before D. K. Mahajan J. who expressed the view that the University of Delhi had taken a correct stand that the certificate of character was not from a Magistrate. The learned Single Judge did not agree with the contention raised on behalf of the University authorities that the application was not in order as it was not accompanied by a proper certificate, He followed the view expressed by Grover J. in Parma Nand v. University of Delhi, (1960) 62 Pun LR 79 : (AIR 1960 Punj 150). The petition was accordingly allowed and the order of the University authorities refusing to entertain the petitioners application for admission to the LL.B. (Previous) Class was quashed. Letters Patent Appeal has been preferred from that order.

4. Shri K. K. Raizada has drawn our attention to the printed application form for admission. There are certain instructions for the applicants printed on the first page of the application form including the following:

'N. B. -- (1) *****

(2)*****

(3) Applications not accompanied by the requisite certificates, or the certificate in proof of the age or the certificate in respect of marks obtained by the candidate, or certificate of Character, in original, and applications which, are incomplete in any other respect, 'will be rejected summarily'. Receipt of ah application by the faculty Office, either at the counter, or through post, will not mean that the application has been treated as complete, it is the responsibility of the candidate concerned to make sure that he has filed all the requisite certificates, by personally calling on the Office, if necessary, before the last date prescribed for the receipt of application. No correspondence in regard to this matter will be entertained.

4. Before filling in the form and signing it, read the whole of it carefully and also the leaflet entitled 'Instructions to Applicant'. The latter will give you an idea Qf the courses of studies, summary of the ordinances, proper regulations and rules regarding payment of fees, attendance, examination and other matters pertaining to the students of this Faculty. No plea will be entertained that the students were ignorant of such Ordinances, Regulations, Rules, or other provisions.

5. (a) Applications of candidates for admission to the LL.B. Previous Course should reach the Faculty Office not later than 4-30 P.M. of June 30, 1962.

(b) Applications of candidates seeking admission to the LL.M. Part 1, or B.C.L. Part 1 course, should reach the Faculty Office not later than 4-30 P.M. of July 7, 1962.

(c) No application will be received after the time and date prescribed. Those applications received by post after the time and date prescribed will also not be entertained.

6. *****'

5. The learned counsel for Miss Manju argued that the countersigning of the character certificate by the Magistrate amounts to giving her a certificate of good character as required. 'Countersign' signifies signing in addition to the signature of another in order to attest the authenticity. Words 'countersign' and 'attest' indicate a solemn personal act of authentication of genuineness. It Is an act of authentication of a previously signed document by an additional signature. The object is to authenticate the signature of another to the writing. By this process the authenticity of the signatures on the writing is attested by the person countersigning. It will be erroneous to construe from signature of the Magistrate that he himself certified the candidate to be a person of good moral character. What he really certified by countersigning was the signatures of the person certifying. What the Magistrate virtually Indicates by countersigning, is that Shri Bhatia has certified that Miss Manju Bakhru bears a good moral character and not that the Magistrate himself knows her to bear good moral character as certified by Shri Bhatia.

There is no suggestion on this record that Shri M. M. Aggarwal, the Magistrate, knew Miss Manju personality and was certifying of his own knowledge that she bore good character. That being so, the character certificate cannot be said to be from a First Class (Stipendiary) Magistrate. The Joint Secretary is not included in the category of those whose certificate of character can be-accepted by the University. It does not matter as to how high the status of a person deposing to the excellence of a candidate's character is. If such a person does not come within the category of a Judge, or a First Class (Stipendiary) Magistrate, or the Principal of a first-grade Degree College of a recognised University, or the Registrar of a University, there Is no compliance with the requirements qualifying a candidate for admission.

6. It is then contended that this view is extremely technical and this Court should grant the relief if there is a substantial confirmance with the rules rather than insist upon a rigid adherence. If the University authorities act according to the rules it Is not for this Court to reframe their rules or to ask them not to follow those rules or, while construing those rules, to make them flexible when they were intended to he strict. In other words it will be extremely inconsistent for this Court to Interfere with the action taken by the University authorities on the ground that It Is rigorously in accord with the rules framed by them. If the rules are strict and compliance with them results in hardship, so long as the rules admit of no ambiguity, this Court cannot grant the relief.

7. I cannot help remarking that the rigidity of these rules has resulted in great hardship, among others to the petitioner before us. It has been stated at the far by Shri Raizada that there are several other instances of candi-dates who were otherwise suitable but their character certificates, though from highly reputable persons, had suffered from the lacunae that they were countersigned only, by the Magistrate first Class. In the case of Private students it is very difficult to get certificates from one out of the four categories of officers mentioned in the 'Bulletin of Information.' Every candidate cannot claim to be personally known to a Judge or a Stipendiary Magistrate First Class and the only other two persons qualified to certify as to a candidate's character are the Principal of a first grade Degree College or the Registrar of the University.

In the case of a candidate who has passed the last examination privately without having been admitted to a college, production of a character certificate from the Principal is out of question. It is equally impossible for a Registrar of a University to give a character certificate to a candidate not personally acquainted with him. The result of the rule Is that a character certificate from a person of the highest status in the land is of no avail for securing admission. This is undoubtedly an unsatisfactory state of affairs but the remedy lies with the University and not with this Court. Unless the University chooses to abate the rigour of its rigid rules and decides to accept character certificates given by gazetted officers and other reputable persons, admission to otherwise worthy students is going to be denied on grounds which cannot be deemed logical or just. The rule In question is harsh and its strict and rigorous application has resulted in this case and in similar other cases in acute mental suffering and in loss of one year's study which, but for Its relentlessness, should have been avoided. The lot of candidates, who have been prevented from getting admission because of their omission in getting a character certificate from a person of specified status, is unenviable and the privation Is not commensurate with the fault, particularly when there is no 'locus poeniten-tiae', the mistake having become irretrievable and therefore Incurable.

8. The leadned Single Judge has relied upon an observation of Graver J. In (1960) 62 Pun LR 79 : (AIR 1960 Punj 150), which is reproduced below:

'it appears that the real reason why the petitioner was not admitted was the last one mentioned above as is clear from the endorsement made on his application in red pencil (Annexure 'I' to the Dean's affidavit). None of the other reasons are mentioned there and they seem to be an after thought. Moreover, little attention need be given to such technical pleas as absence of proper certificate from a Judge and non-filing of the detailed list of marks because these formal defects could have been brought to the notice of the petitioner and he could have easily rectified them.'

The above observation is in the nature of an 'obiter dictum.' In that case the petitioner, who had obtained the B. A. Degree of the Punjab University appearing as a private candidate had sought admission to the LL.B. (Previous) Class. The petitioner's application had been received but his name was not included among those who were admitted. This led to the petitioner to file a petition of writ which the learned single Judge found to be without merit. In the return filed on behalf of the University four reasons were given for not admitting the petitioner. One of them was that he did not file a character certificate from a Judge or a First Class Magistrate as required by the 'Bulletin of information' and the 'Instructions to Applicant'. The character certificate filed by him was of an Additional Settlement Commissioner of the Rehabilitation Department. It was held that the admission was rightly refused as the classification that had been made by the Admission Committee was based on reasonable data and there was no unjust discrimination.

The observations quoted above were made by the learned Single Judge only 'en passant'. These observations are not in the nature of 'ratio decidendi' of the case. In the instant case it was required that the applications should reach the Faculty Office not later than 4-30 P.M. of June 30, 1962, accompanied with the necessary certificates. It was further stated In explicit terms that no application would be received after the time and date prescribed. The time was, therefore, clearly of the essence. In this case the application of Miss Maju Bakhru was made on June 30, 1962, which was the last date and she could not have rectified the defect after 30th of June by obtaining a character certificate from one of the four persons indicated in the instructions. It was clearly pointed out in the note on the first page of the application form for admission, which has also been reproduced above, that applications not accompanied 'inter alia' by certificate of character would be rejected summarily. Even if it was possible to cure the defect in Parma Nand's case, 62 Pun IR 79 : (AIR 1960 Punj 150), this could not have been done in the present case.

9. For the reasons stated above I am unable to persuade myself to treat the observations in Parma Nand's case, 62 Pun LR 79 : (AIR 1960 Punj 150), as a correct statement of law justifying interference with the decision of the University authorities which was according to the 'rules framed for the purpose.

10. In order to justify interference under Article 226 of the Constitution there must not merely be an error, but an error on the face of the record. In this case no error can be imputed since the rules have been followed. This Court cannot arrogate to itself jurisdiction and cannot sit in judgment on the justness of the rules which have been framed by the University in accordance with law.

11. It was observed by Lord Morton in Lennox Arthur Patrick O'Reilly v. Cyril Cuthbert Gittens, AIR 1949 P C 313, an appeal from the Supreme Court of Trinidad and Tobago, as under:

'Provided that the tribunal does not exceed its jurisdiction and acts honestly and in good faith, the Court cannot intervene, even if it thinks that the penalty is severe or that a very strict standard has been applied. The mattersdealt with in the Judgment of Hallinam, J. under this headdo not affect the jurisdiction of the tribunal, and no attachhas been made upon the honesty or good faith of its members.'

12. In Maclean v. The Workers' Union, (1929) 1 Ch D 602, Maugham J. expressed the view that the Court has no jurisdiction to vary or to set aside the decision of a domestic tribunal if in giving its decision the tribunal has acted honestly in accordance with its own rules and in good faith. The Courts could not give redress to persons on whom hardship was worked by decisions of domestic tribunals given honestly and In good faith and under the Rules of the body of which such persons are members.

13. Mr. Tandon, learned counsel for the respondent, relied upon the observations of the Supreme Court in Pratap Singh v. Shri Krishna Gupta, (S) AIR 1956 SC 140, which was a case of inaccuracy in a nomination paper filed by a candidate for the office of president of the Municipal Com-mittee. The Supreme Court observed:

'We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice enures; and when the legislature does not itself state which is which Judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines. This principle was enunciated by Viscount Maugham in Punjab Cooperative Bank Ltd. Amritsar v. Commr. of Income-tax, Lahore, AIR 1940 PC 230 at p. 233 (8) and was quoted by the learned High Court Judges: 'It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly; but it is sufficient if a directory 'enactment be obeyed or fulfilled substantially'.'

14. I do not think that the respondent can lean upon the above observations for purposes of this case. In this case the rules, which have been contravened, have been expressly stated to be mandatory. Whether the rules are vital and mandatory or merely directory and dispensable is to be determined by the framers of the rules. It the rule has been intentionally clothed in mandatory language this Court cannot take away its obligatory character by imposing its own will that its observance need only be elective.

15. For reasons discussed above, the severity of the rules resulting from their strict interpretation cannot be alleviated. It is only for the University authorities to re-examine their rules and to reframe them with a view to avoid any hardship as has no doubt occurred in the present case. The remedy by way of writ under Article 226 cannot be availed of. The decision of the learned Single Judge cannot, therefore, be sustained. I would, therefore, allow the appeal but leave the parties to bear their own costs.

D. Falshaw, C.J.

16. I agree.


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