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S.G. Desai Vs. the Director of Education, Government of Pondicherry - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1978)1MLJ517
AppellantS.G. Desai
RespondentThe Director of Education, Government of Pondicherry
Cases ReferredIssardas v. Collector of Madras
Excerpt:
- .....1973 that he did not possess the requisite qualification, namely an equivalent to the b.s.c. (hons) degree of the university of madras, he requested the government of pondicherry to get exemption from the university of madras, to which tagore arts college where he had been appointed as assistant professor was affiliated and permit him to continue as assistant professor without reversion as senior instructor. he has alleged in the affidavit filed in support of the writ petition that he is a graduate of the karnataka university with b.sc. (hons.) degree in chemistry and in his explanation dated 9th april, 1973 he informed the respondent that he was fully qualified for appointment as assistant professor in chemistry according to the relevant rules. a division bench of this court in r......
Judgment:

A. Varadarajan, J.

1. This writ appeal has been preferred against the order of Ismail, J., dismissing Writ Petition No. 353 of 1974 (P) which had been filed by the appellant to issue a writ of certiorari and quash the respondent's order dated 2nd February, 1974 in proceedings No. 20428/Est.I/D5/2330-Education.

2. The appellant had obtained a B.Sc. degree with Hons. from the Karnataka University in 1957. After he had worked in a College at Bellary in Karnataka State of about 51/2 years, he was appointed as a Senior Instructor in Chemistry in Motilal Nehru Polytechnic at Pondicherry on 3rd February, 1965. The Education Department of the Government of Pondicherry invited applications in the newspapers on 19th June, 1968 for the post of Assistant Professors, Tutors etc. The qualification prescribed for the post of Assistant Professors was first or second class M.A./M.Sc., or B.A.(Hons.)/B.Sc. (Hons.) in the subjects concerned. The appellant applied for the post of Assistant Professor and was appointed as Assistant Professor of Chemistry, Tagore Arts College, Pondicherry, by an order, dated 17th July, 1968, which stated that the appointment was purely temporary and that he was liable to be reverted to his old post at any time. While he continued to function as Assistant Professor, he was appointed as an, Examiner by the University of Madras for certain examinations, including the Chemistry Examination for the Pre-University students. While he was functioning as Examiner, some persons who had functioned as Examiners with him, wrote to the University of Madras that he was only a B.Sc., graduate with Hons. and not a B.Sc. (Hons.) graduate and that he had secured appointment as Assistant Professor in the Tagore Arts College, Pondicherry, by misrepresenting his educational qualifications. On those representations, both the University of Madras and the Tagore Arts College, Pondicherry, made enquiries. The Government of Pondicherry was informed by the University of Karnataka that the University had only a B.Sc. degree and not B.Sc. (Hons.) degree in 1957 and that candidates who passed the examination in the First and Second class in that year were declared to have passed the Examination with. Honours and it was, however, not equivalent to the B.Sc. (Hons.) degree of the Madras University. After that clarification the Syndicate of the University of Madras resolved to inform the Principal of Tagore Arts College, Pondicherry that the appellant was not qualified for appointment as Assistant Professor. Thereupon, the respondent, the Director of Education, Government of Pondicherry, informed the appellant by notice, dated 4th April, 1973 that as he did not possess a degree equivalent to the B.Sc. (Hons.) or M.Sc. degree of the University of Madras, it was not possible to retain him as Assistant Professor and called upon the appellant to show cause within 15 days of the receipt of the communication why he should not be reverted to his original post of Senior Instructor. In his reply dated 9th April, 1973, the appellant impliedly admitted that he was not qualified to hold the post of Assistant Professor and requested the Government of Pondicherry to obtain exemption from the University of Madras' for continuing him as Assistant Professor without reverting him as Senior Instructor. The respondent, however, reverted him by order dated 2nd February, from the post of Assistant Professor to his original post of Senior Instructor, which he held prior to his appointment as Assistant Professor in 1968; The writ petition was filed to quash that order dated 2nd February, 1974.

3. In the affidavit filed in support of the writ petition the appellant has stated that he is a graduate of the Karnataka University with B.Sc. (Hons.) degree in Chemistry and that in his explanation dated 9th April, 1973, he informed the respondent that he was fully qualified for appointment as Assistant Professor in Chemistry according to the relevant rules. He denied that there was any suppression of any fact on his part regarding his educational qualification and. contended that after verifying his credentials and appointing him as Assistant Professor, it is not just and proper for the Government of Pondicherry to say that he did not possess the requisite qualification. The impugned order dated 2nd February, 1974 does not give any reasons at all for the reversion and is arbitrary and mala fide. The respondent has not mentioned the alleged ground of want of necessary qualification in the impugned order as it would be illegal by reason of the principle of equitable estoppel.

4. The respondent contended in the counter-affidavit that the appellant passed off his B.Sc. degree with Hons. as B.Sc. (Hons.) degree, though they were not equivalent. This fact was known only to the appellant and could not be discovered by the Selection Committee with the ordinary care. Therefore, it was not open to the appellant to contend that the respondent is not entitled to question the lack of necessary qualification on the part of the appellant. The appellant did not produce his original degree or even a duplicate thereof, in spite of communications dated 26th May, 1971, 12th June, 1971 and: 16th July, 1971 calling upon him to do so, and he stated in his reply, dated 20th July, 1971 that he did not understand, the necessity for production of the degree. He was given adequate opportunity to represent his case. In his reply dated 9th April, 1973 he admitted that he was possessing a degree not equivalent to the B.Sc. (Hons.) degree of the University of Madras, but requested the Government of Pordicherry to take a lenient view and obtain exemption from the University of Madras and permit him to continue as Assistant Professor. He was reverted only for lack of qualification to hold the post of Assistant Professor. Further, the appellant's appointnent was purely temporary and in the circumstances the respondent was entitled to cancel his appointment. It is a matter of contract between the parties and the appellant has no right to claim the post of Assistant Professor.

5. Ismail, J., observed in his order that the appellant holding a B.Sc. degree with Hons., obtained after undergoing a two-years course, could not have imagined that he had the B.Sc. (Hons.) degree and considered that he was qualified for applying for the post of Assistant Professor. The learned Judge noted that the appellant's educational qualification was entered as B.Sc. with Hons in his service register. But the learned Judge opined that it is unnecessary to go into the question whether the appellant has misrepresented his educational qualification or not. The learned Judge rejected the contention that there was any equitable estoppel in this case on the ground that there was no representation on the part of the Government of Pondicherry and the appellant did not place any reliance on any such representation and had not charged his position to his detriment. The learned judge further held that the appellant had been informed by the order of appointment that it was purely temporary and he was liable to be reverted to his old post at any time and that, therefore, it was not open to the appellant to contend that he had a right to the post of Assistant Professor and that there is any equitable estoppel. In this view, the learned Judge held that no interference with the impugned order by exercise of the powers conferred under Article 226 of the Constitution of India was called for, and he dismissed the writ petition without costs.

6. There is no dispute that the educational qualification prescribed in the notice calling for applications for the post of Assistant Professor was First or Second Class M.A./M.Sc. or B.A. (Hons.)/B.Sc. (Hons.) in the subject concerned, that the appellant mentioned his educational qualification in his application for appointment as Assistant Professor as B.A. (Hons.) which appears to have required a three-years course and that, as a matter of fact, he held only a B.Sc. degree with Hons., which could be obtained after undergoing a two-years' course and was not equivalent to the B.Sc. (Hons.) degree of the University of Madras. Nor was admitted in his letter dated 9th April,1973 that he did not possess the requisite qualification and that he requested the Government of Pondicherry to obtain exemption from the University of Madras and permit him to continue as Assistant Professor without reversion as Senior Instructor. In these circumstances we are unable to See how there was no misrepresentation in the application for appointment as Assistant Professor as regards his educational qualification.

7. We find that the appellant has been given all opportunities for representing his case. The final for representation made his case. The final representation made by him was by way of a request to the Government of pondicherry to obtain exemption from the University of Madras as regards his educational qualification and permit him to continue as Assistant Professor without reversion as Senior Instructor. We are, therefore, unable to accept the appelant's contention that he was not given reasonable opportunities to represent his case. Such a contention does not appear to have been made on his behalf before the learned Judge who dismissed the writ petition.

8. The learned Counsel for the appellant relied upon the decision in Uma Shankar Misra v. Board of High School and Intermediate Edition, U.P., Allahabad and Ors. : AIR1974All290 .and contended that the Selection Committee, which considered the applications for appointment as Assistant Professor, looked into the qualification of the appellant and appointed him after knowing that he held only the B.Sc., degree with Honours and that the respondent is estopped by the principle of equitable estoppel from contending after a period of six years that he did not have the requisite qualification. That decision will not apply to the facts of the present case. There the petitioner's name was published in the recognised newspapers as having passed the High School Supplementary Examination in 1968. On that basis he proceeded and in due course he passed the B.A. Part I Examination. But in 197l he was required to show cause why action should not be taken against him for getting undue admission into the intermediate course. There was no evidence to show that the petitioner was guilty of any fraud, misrepresentation, suppression of facts or lack of bona fides. In those circumstances it has been held by Prem Prakash J. of the Lucknow Bench of the Allahabad High Court in that case that the Board and the College acted in a manner which amounted to recognition of the petitioner having been duly admitted to the intermediate course of study and that being so, when the Board had remained inactive for a considerable time, the transaction, although originally had become impeachable, has become unimpeachable and the petitioner can legitimately invoke the bar of equitable estoppel against the Board. In the present case, however, there was no representation on the part of the respondent that the appellant had the requisite qualification, and the appellant did not proceed on that basis and submit his application for appointment as Assistant Professor. Therefore, it is not open to the appellant to contend that there was any equitable estoppel against the respondent. There is no question of any estoppel, equitable, or otherwise, against the respondent in this case, for as observed by Ismail, J., there was no representation on the part of the Government of Pondicherry that the appellant had the necessary qualification and the appellant did not place reliance on any such representation and had not changed his position to his detriment. On the other hand, it was the appellant that made the representation, which has since turned out to be incorrect, that he held the B.Sc. (Hons.) degree and it is on. the basis of this representation, which appears to have, been accepted to be correct without proper verification, he was selected as Assistant Professor by the respondent. It is the respondent who had acted to its detriment by acting on this representation on the part of the appellant, and there was no change of position of the appellant to his detriment. On the other hand, the appellant improved his position by his selection as Assistant Professor which is a post higher than the post of Senior Instructor, which he, held on the date of his appointment as Assistant Professor. In N. Ramanatha Pillai v. The State of. Kerala and another : (1973)IILLJ409SC , it has been observed:

The High Court was correct in holding that no estoppel could arise against the State in regard to abolition of post. The appellant Ramanatha Pillai knew that the post was temporary. In American Jurisprudence 2nd at page 783 paragraph 123 it is stated-

Generally, a State is not subject to an estoppel to the same extent as an individual or a private corporation. Otherwise, it might be rendered helpless to assert its powers in Government. Therefore as a general rule the doctrine of estoppel will not be applied against the State in its Governmental public or sovereign capacity. An, exception however arises in the application of estoppel to the State where it is necessary to prevent fraud or manifest injustice.

The estoppel alleged by the appellant Ramanatha Pillai was on the ground that he entered into an agreement and thereby changed his position to his detriment. The High Court rightly held that the Courts exclude the operation of the doctrine of estoppel, when it is found that the authority against whom estoppel is pleaded has owed a duty to the public against whom the estoppel cannot fairly operate.'

The appellant's appointment as Assistant Professor was stated, in the order of appointment itself, to be purely temporary and he was informed that he may be reverted to his original post of Senior Instructor at any time. The respondent was bound to maintain a standard of qualification necessary for an Assistant Professor in the interest of the students, and therefore, it owed a duty to the public, and consequently the principle of equitable estoppel cannot fairly operate against the respondent. Moreover, the appellant knew the real state of affairs as regards his educational qualification. It would appear from the circumstances of the case that the Selection Board was not aware that the appellant did not hold the B.Sc. (Hons.) degree which he represented to do in his application for appointment, and that the B.Sc. degree with Honours which he really had was not equivalent to the B.Sc. (Hons.) degree of the University of Madras. The Privy Council has observed in Mohori Bibee v. Dharmodas Ghose (1993) I.L.R. 30 Cal. 539 (P.C.) : 30 I.A 114 : 5 Bom. L.R. 421 : 7 C.W.N. 441.

Section 115 of the Evidence Act (I of 1872) does not apply to a case where the statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement. There can be no estoppel where the truth of the matter is known to both parties.

9. In the present case the appellant, who had obtained the B.Sc. degree with Honours after undergoing a two-years course, must have known that he did not hold the B.Sc. (Hons.) degree when he made the application for appointment as Assistant Professor saying therein that he held the B.Sc. (Hons.) degree qualification. Therefore, it is not open to him to contend that there is any estoppel, equitable or otherwise, against the respondent.

10. Moreover, the appellant had not come to Court with clean hands, for even after impliedly admitting in his letter dated 9th April, 1973 that he did not possess the requisite qualification, namely an equivalent to the B.S.C. (Hons) degree of the University of Madras, he requested the Government of Pondicherry to get exemption from the University of Madras, to which Tagore Arts College where he had been appointed as Assistant Professor was affiliated and permit him to continue as Assistant Professor without reversion as Senior Instructor. He has alleged in the affidavit filed in support of the writ petition that he is a graduate of the Karnataka University with B.Sc. (Hons.) degree in Chemistry and in his explanation dated 9th April, 1973 he informed the respondent that he was fully qualified for appointment as Assistant Professor in Chemistry according to the relevant rules. A Division Bench of this Court in R. Venkata Subbu and Ors. v. The Director of Enforcement, Enforcement Directorate, New Delhi and another : (1969)1MLJ281 , has observed at page 286 thus:

According to the learned Advocate-General, it is very clear that the petitioners have approached the Court with unclean hands, in respect of a discretionary remedy like certiorari which is not available ex debito justitiae, to a party thus seeking to pollute the very fountains of justice. The maxim ex turpi causa non oritur actio applies in this case, and there are ample authorities to support this view. The learned Advocate-General would also place reliance on the other equally well-known maxim, nullus commodum capere potest de Injuria sua propria (no man can take advantage of his own wrong).

And at page 293:

We now come to the ground relating to turpitude. Here, it seems to me that the matter is clear beyond all doubt. The nature of the writ of certiorari has been considered in several authorities, and perhaps it is Sufficient to refer to the decision of Ramachandra Iyer, J. (as he then was) in Issardas v. Collector of Madras : AIR1959Mad528 . Undoubtedly, the writ of certiorari is issued at the discretion of the superior Court and is ordinarily not a writ of right, except, in, the United Kingdom, where the situation is different when the Attorney-General prays for the issue of this prerogative writ. But the law has been stated in Halsbury's Laws of England, Volume X] (Simonds Edition), page 140, in the form that the writ issues ex debito justitiae, though it is discretionary..Where it is shown that the Court below has acted without jurisdiction, or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disen title him to relief....

Obviously, here the metaphor of clean hands is essential and pertinent. If in relation to the proceedings a party approaches this Court for the issue of a writ of certiorari with a record of depravity of conduct intrinsic to the very proceedings, the Court has every right and, indeed, the duty to decline him relief.

We accept the contention of the learned Counsel for the respondent that the appellant has not come to Court with clean hands and is not entitled to the discretionary relief of a writ of certiorari. It is significant to note that the appellant did not produce the original degree or even a duplicate thereof, in spite of communications dated 26th May, 1971, 12th June, 1971 and 16th July, 1971 calling upon him to do so, and he had stated in his reply dated 20th July, 1971 that he did not understand the necessity for production of the degree. This would show that he was aware that be did not possess the necessary qualification and was, therefore, reluctant to produce his degree or even a duplicate of it, in spite of repeated demands by the respondent.

11. As found by Ismail, J., the appointment of the appellant was purely temporary and he was so informed by the order of appointment itself which stated clearly that he may be reverted to his original post of Senior Instructor at any time. Therefore, it may not be open to the appellant to contend that he had a right to the post of Assistant Professor and world not be reverted to this original post. However, we are inclined to base our judgment more on the ground that the reversion was due to the fact that the appellant, who claimed in his application for appointment as Assistant Professor, to have the B.Sc. (Hons.) degree qualification was found to have no such qualification but held only the B.Sc. degree with Honours for which a two-years course alone was necessary and it was not equivalent to the B.Sc. (Hons.) degree of the University of Madras.

12. There is no merit in this writ appeal and it is accordingly dismissed with costs. Advocate's fee Rs. 250.


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