IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.07.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.3363 and 17707 of 2012 and M.P.Nos.1 and 1 of 2012 Arunai College of Engineering (Formerly Kamban Engineering College), represented by its Principal Dr.Sathy Gauranga Velu Nagar, Mathur (Village and Post), Tiruvannamalai-606 603. .. Petitioner in both writ petitions Vs. 1.Anna University, rep by its Registrar, Chennai-600 025. 2.Anna University of Technology, rep by its Registrar, Chennai-600 025 3.All India Council for Technical Education, New Delhi. .. Respondents in W.P.No.3363 of 2012 1.The Commissioner of Technical Education, Directorate of Technical Education, Guindy, Chennai-600 032. 2.Anna University, rep by Registrar, Chennai-600 025. 3.Anna University of Technology, rep by its Registrar, Chennai-600 025. 4.The Secretary, Tamil Nadu Engineering Admissions, Anna University, Chennai-600 025. 5.The Principal Secretary, Department of Higher Education, Secretariat, Fort St. George, Chennai-9. .. Respondents in W.P.No.17707 of 2012 W.P.No.3363 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in the proceedings in letter No.COE/4784/C36/MP/2011-59/Show Cause Notice/2012, dated 2.2.2012 and quash the same as malafide, arbitrary and lacking jurisdiction. W.P.No.17707 of 2012 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent to include the name of the petitioner college in the list of colleges in counseling process at the time of admission for 1st year B.E. Courses and lateral entry for 2nd year B.E. Courses with counseling code for the academic year 2012-2013 within the time frame fixed by the court. For Petitioner : Mr.P.Wilson, SC for Mr.K.Karthik Jagannath For Respondents : Mr.P.H.Arvind Pandian, AAG assisted by Mr.V.Jayaprakash Narayanan, Spl.GP for RR1 and 5 in W.P.No.17707 of 2012 Mr.V.Shanmuga Sundar for RR2 to 4 in W.P.No.17707 of 2012 and for RR1 and 2 in W.P.No.3363 of 2012 Ms.AL.Ganthimathi for R-3 in W.P.No.3363 of 2012 - - - - COMMON ORDER Both writ petitions came to be posted on being specially ordered by the Hon'ble Chief Justice, vide order dated 13.7.2012. 2.These two writ petitions were filed by the same College, i.e., Arunai College of engineering (formerly called as Kamban Engineering College), represented by its Principal. 3.In the first writ petition (W.P.No.3363 of 2012), the challenge is to the order passed by the Anna University, dated 02.02.2012 and seeks to set aside the same. The impugned order is nothing but a show cause notice issued by the Anna University asking the petitioner college Principal to explain as to why the University should not recommend to the All India Council for Technical Education (for short AICTE) to withdraw the approval for one year for all post graduate programme over and above the withdrawal of affiliation recommended previously in the case of Meda Arun Kumar Reddy and to recommend to the Anna University of Technology, Chennai to withdraw the affiliation for all post graduate degree programme for one year over and above the withdrawal of affiliation recommended previous in the case of Meda Arunkumar Reddy and to inform the Government of Tamil Nadu. 4.In the said writ petition, notice of motion was ordered. Pending the notice, an order of status quo in respect of cancellation of affiliation was issued. Even while that case was pending, the second writ petition (W.P.No.17707 of 2012) came to be filed seeking for a direction to the first respondent Commissioner of Technical Education to include the name of the petitioner college in the list of the colleges in counseling process at the time of admission to first year B.E. Course and for lateral entry for second year B.E course with counseling code for the academic year 2012-2013 within a time frame. 5.When that writ petition came up on 10.07.2012, this court ordered notice on admission and directed the learned Special Government Pleader Mr.V.Jayaprakash Narayanan to take notice for first and fifth respondents. In respect of the Anna University, Mr.V.Shamuga Sundar, learned Standing counsel was directed to take notice for respondents 2 to 4. 6.It was only when the second writ petition came up for hearing, the pendency of the earlier writ petition was brought to the notice of this court. Hence the Hon'ble Chief Justice was accordingly informed and both matters were directed to be disposed of as ordered by the Chief Justice. Pending the writ petition, no interim order was passed. On notice from this court, a counter affidavit, dated Nil (July, 2012) was filed by the first respondent Commissioner of Technical Education, Chennai together with supporting typed set of papers. 7.The petitioner college was established in the year 2001. It was granted recognition by the AICTE. It was also affiliated to the Anna University. During the year 2011, the name of the college was changed from Kamban Engineering College to that of the Arunai Engineering College, which was also approved by the authorities. When the examinations of the university was held during April, 2011, the Controller of Examinations of Anna University along with an inspection team had visited the college and seized several incriminating documents. By a notice dated 6.5.2011, the Principal who is the Chief Superintendent of the Examinations was issued with a notice to appear for an enquiry on 11.05.2011. It was stated that it related to an enquiry into irregularities in the conduct of examinations during November, December, 2010 and April, 2011 by the university. Apart from the Principal of the college, certain lecturers as well as one student by name Meda Arun Kumar Reddy doing 6th semester, B.E. Computer Science and Engineering, were also asked to appear for an enquiry on 11.5.2011. One girl student by name Gutti Vijitha was also directed to appear for the subsequent enquiry held by the Controller of Examinations. It is pursuant to these enquiries, a show cause notice was issued by the Registrar of the University, dated 6.7.2011. 8.In the show cause notice, the petitioner college was directed to explain as to why the Anna University should not recommend to the AICTE to withdraw the approval and to the then Anna University of Technology, Chennai to withdraw the affiliation for one year for the college for the academic year 2011-2012 and why admission should not be stopped for the academic year 2011-2012. The explanation was directed to be offered within seven days. In the notice it was stated that a complaint about a student by name Meda Arun Kumar Reddy was received by the Vice Chancellor on 25.4.2011. Pursuant to the complaint, the Controller of examinations and two others went to the college on 28.04.2011 and seized several documents relating to the malpractice adopted. The records were verified and observed that there was prima facie materials to show that malpractice mentioned in the complaint was true. Based upon the said complaint, a committee was constituted by the Vice Chancellor to enquire into the alleged irregularities in the conduct of examinations and to submit the report to the university. The committed had conducted its proceedings on several days starting from 5.5.2011 to 30.6.2011 and enquired 48 persons working in the college as well as external invigilators and examiners and Anna University representatives from the other affiliated colleges with reference to the conduct of examination by the college. After a thorough enquiry of persons concerned, the committee had noted several irregularities. It was found that the answer book and question papers at start of every theory examinations was taken away to delivery it to one student by name Meda Arun Kumar Reddy waiting in the secret room so as to create fraudulent answer scripts. The said Meda Arun Kumar Reddy was made to write the examination either in the Secretary's room or Registrar's room or Vice Chairman's room of the college far away from the normal exam halls. The faculty members of the college illegally provided answers by marking them on the book concerned relevant to the subject of the examination for each theory examinations. One P.Saravanan, Head of the Department of Computer Science and Engineering, used to call the faculty member concerned to do his dishonest work as per the instructions of the Secretary M.Prukinthraj and that Meda Arun Kumar Reddy was allowed to copy the marked answers from the book. 9.Further, there was highly immoral act of telling lies to get the signature of genuine invigilator on the fraudulent written answer script. Further, they were coercing the internal invigilators to part with one blank answer booklet from the assigned bunch of answer scripts and getting the signature forcibly from the invigilator for fraudulent use. They had deliberately and willfully tampered the attendance sheet of the university theory examinations to erase the absent marking against the name of Meda Arun Kumar Reddy and substitute it by obtaining his signature. Cheating the university representatives by inserting the fraudulently written answer scripts in the appropriate bunch of genuine answer scripts. Further, abandoning the fraudulently written answer script as damaged and abusing a senior student under threat to force that senior student to write laboratory records pertaining to the 3rd, 4th, 5th and 6th semesters practical subjects of Meda Arun Kumar Reddy for fraudulent use by him. Fraudulent conduct of practical exams by providing undue and illegal help by allowing Meda Arun Kumar Reddy to copy from laboratory record note book. Attendance was given illegally to Meda Arun Kumar Reddy even though he had not attended any class. The fake internal assessment marks awarded to Meda Arun Kumar Reddy even though he neither attended any class nor written any class test. They threatened the senior student to write laboratory records for the said student. Impersonation under threat was arranged by the management by forcing a senior student to write two theory examinations on 15.11.2010 and 19.11.2010. 10.All these activities were carried out by using the entire college machinery as per the instructions of the Secretary of the College M.Purkinthraj as the said student happened to be the cousin of Ms.Gutti Vijitha, wife of the college Chairman E.V.Kumaran. The committee had recommended as per clause 7.9 of the Statutes for affiliation 2004 that affiliation should be withdrawn for a period of one year for all UG and PG progammes. It was also informed to the State Government and the AICTE. The Syndicate of the university had resolved to issue a show cause notice. 11.The petitioner's college sent a reply dated 12.07.2011 . I the reply, they had stated that the Chairman of the College E.V.Velu had taken over the management and affairs of the trust with effect from 15.5.2011 and all academic affairs were entrusted to professional team headed by the Principal. Prompt correct actions were taken by the founder Chairman. The services of the Principal at the relevant time was dispensed with. With reference to the connected staff indulged in alleged irregularities, they were to be replaced. An in-house committee was formed for comprehensive action and a police complaint was also lodged. The said Arun Kumar Reddy was issued with the Transfer Certificate and was removed from the college roll. Further, a new Chief Superintendent was appointed. 12.In the reply, it was significantly mentioned as follows : "....we wish to submit that these are the acts of commission & omissions of a small group by the erstwhile principal, Principal's Secretary, HOD CSE and an office Asst, apart from the said Arunkumar Reddy and this group, cannot constitute an entire college machinery and the management had no role in this matter. ......
The said student Mr.Meda Arun Kumar Reddy appears to have fraudulently claimed as if he is related to the trustees and has gained confidence with the Principal and with the help of principal he might have involved in malpractice. It so happened that the management suspected the bonafides of the principal and some non teaching staffs only when the Controller of Examination visited the premises on 28.04.2011 and has taken away a few documents on the grounds of alleged malpractice. Till that date the management was not aware of any of the alleged irregularities committed by the principal or any malpractice committed by the said student or non teaching staff. No written complaint has been received by the management so far in this aspect."
13.Therefore, in the light of these admissions and the alleged assurance of future good conduct, they requested the university to drop further action. However, the university was not satisfied with the explanations offered and had issued a notice on 19.7.2011 pointing out the irregularities in the conduct of Anna University examinations at the college and also sought for punishment of as many as 32 staff both teaching and non teaching and held that they were involved in irregularities. The university also informed the appointment of 100% external invigilators for conducting theory and practical examinations in the said college for a period of three years from October, 2011. The Principal of the college was further informed by a letter dated 18.11.2011 that their request for further affiliation to the course will be considered only on the basis of satisfactory report submitted by the inspection committee. In the meanwhile, the college sent affiliation fees for the grant of affiliation to the college for the academic year 2011-2012 and had enclosed a copy of the AICTE approval. Even while these proceedings are pending, the impugned show cause notice came to be issued.
14.Even during the proceedings, the said Gutti Vijitha, Wife of the then Chairman of the College E.V.Kumaran filed a writ petition before this court being W.P.No.3588 of 2012 seeking to challenge the show cause notice issued by the University dated 2.2.2012. this court had granted an interim stay of the proceedings and that writ petition is pending. At this stage, the State Government had published the admission procedure for engineering admissions for Tamil Nadu for the academic year 2012-2013. According to the petitioner, the name of the petitioner college was shown as Serial No.377 with the college code No.1504. The Commissioner of Technical Education also sent a circular to all Principals of the Government aided and self financing colleges regarding details of surrender of seats under management quota for admission to second year lateral entry to B.E., B.Tech courses for the academic year 2012-2013 for including the same under the government quota seats for allotment through single window counseling. The petitioner management also sent a communication, dated 12.5.2012 informed the details of surrender of seats under the management quota for admission into lateral entry for the academic year 2012-2013. However, on 28.5.2012, the petitioner college informed the Commissioner that during counseling, a booklet for counseling was issued and circulated, but the name of the petitioner's college was missing from the list. He also referred to the interim order obtained by them in the earlier writ petition. Therefore, in view of the status quo order granted by the court and also sending affiliation fee and compliance report by them. Therefore, they threatened the Commissioner with contempt proceedings if their name was not included in the single window counseling. They also requested to include their name in the list of counseling to avoid any possible damage to the admission to the college for the current academic year. They sent a further letter dated 8.6.2012 once again reminding them about the status quo order. In the meanwhile, they also referred to a copy of the communication sent by the AICTE addressed to the Principal Secretary, Higher Education Department, dated 25.6.2012 regarding admission with intake capacity to be done in the college for the academic year 2012-2013 apart from sending a further letter dated 7.7.2012 and a telegram. When there was no response, they filed the present second writ petition.
15.It was stated by Mr.P.Wilson, learned Senior counsel appearing for the petitioner college that after the show cause notice, a reply was sent to them that the college had acted bonafide by punishing the concerned staff and had taken corrective measures in the management. Further, the college had suffered with the punishment of three years bar in the local faculty in conducting examinations and 100% external invigilators for conducting theory and practical examinations in the said college. Apart from that the concerned student was also punished. In view of the above, there is no question of further punishing the college. He also pressed into service the concept of "double jeopardy" in such matter. He further referred to the additional affidavit stating that in similar circumstances, other engineering colleges, where close relatives of the management were involved, were let off with minor penalty and they were never threatened with withdrawal of recognition.
16.In the counter affidavit filed by the Commissioner of Technical Education in the second writ petition, it was stated that for the purpose of including the college under the single window counseling for the year 2012-2013, two types of admissions were given. First is the admission to second year lateral entry B.E. / B.Tech degree courses for the year 2012-2013, for which an approval of the AICTE for the year 2011-2012 is required and that affiliation to Anna University of Technology is also required. Similarly, for the admission to the first year B.E./ B.TEch degree courses, the approval of AICTE for the year 2012-2013 is required and also affiliation to Anna University of Technology for the year 2011-2012 for the courses and the extension of approval of the AICTE is also required. The college was required to produce these documents for inclusion of seats under single window counseling. Accordingly, the Commissioner had sent a circular to all engineering colleges. Though the petitioner college had responded to the circular, but did not produce affiliation copy for the courses for the academic year 2011-2012 which is required for inclusion in the counseling list. The university also received a communication from the Anna University of Technology giving details of list of engineering colleges affiliated to the university and the approved intake for the year 2011-2012. But the university did not furnish the details of the courses for the year 2011-2012 for the petitioner college and merely informed that Anna University, Chennai legal action pending. While the details of the 171 colleges were furnished, the details of the petitioner college was not given. Since affiliation for the course conducted by the petitioner college for the year 2011-2012 was not granted by the university, the name of the college could not be included in the counseling list. Since affiliation for the year 2011-2012 itself is under question, there is no ground to assume that the college will be given affiliation for the year 2012-2013. Therefore, in the absence of any affiliation for the year 2011-2012, the question of including their name does not arise.
17.They also enclosed the minutes of the First meeting of the Coordination Committee, Anna University as well as the list of engineering colleges affiliated to the Anna University of Technology. In that list the petitioner's college name did not find place. They also referred to documents relating to sending of required documents by the college for inclusion in the list of counseling.
18.In the reply affidavit filed by the petitioner college, it was stated that with reference to affiliation for the year 2010-2011, since the University has not filed any counter affidavit, the affiliation is continuing. Even as per the show cause notice issued by the university, the withdrawal of affiliation was only sought for the academic year 2011-2012. Therefore, non issuance of affiliation for the subsequent year 2012-2013 was not contemplated. The university had permitted students to write examinations for the academic year 2011-2012 and had declared results. Therefore, the affiliation is subsisting. The college was under the strong impression that affiliation is continuing for the academic year 2011-2012. The Commissioner of Technical Education is also the Chairman of the Standing committee appointed to look into the matter of affiliation of all colleges. Hence he cannot absolve his responsibility.
19.Mr.P.Wilson, learned Senior counsel also referred to a judgment of the Supreme Court in Kalabharati Advertising Vs. Hemant Vimalnath Narichania and others reported in (2010) 9 SCC 437 for contending that the university itself cannot review its order. They had only asked to show cause for withdrawal of affiliation for the year 2011-2012 and permitted students to take examination for the year 2011-2012.
20.However, in the backdrop of this matter, it has to be seen whether the petitioner's challenge to the show cause notice is maintainable? and in the absence of their fulfilling the obligation to furnish necessary documents, as a matter of right whether they are entitled to be included in the single window counseling?
21.Insofar as the first writ petition is concerned, the University had issued a show cause notice based on certain concrete materials including the report given by the committee appointed for the said purpose. It is not clear as to what stand the university may take ultimately on the basis of the explanation offered by the petitioner college. It is for the university which had issued the show cause notice to take an appropriate action.
22.Though the learned senior counsel contended that it would amount to double jeopardy, the said concept is only applicable to criminal law and it has been held by the Supreme Court that even in respect of service cases, such a concept will not apply. The Supreme Court in S.A. Venkataraman v. Union of India reported in 1954 SCR 1150 = AIR 1954 SC 375 in paragraphs 4 to 6 had observed as follows:
"4.The scope and meaning of the guarantee implied in Article 20(2) of the Constitution has been indicated with sufficient fullness in the pronouncement of this Court Maqbool Hussain v. State of Bombay1. The roots of the principle, which this clause enacts, are to be found in the well-established rule of English law which finds expression in the maxim Nemo debet bis vexari a man must not be put twice in peril for the same offence. If a man is indicted again for the same offence in an English court, he can plead, as a complete defence, his former acquittal or conviction, or as it is technically expressed, take the plea of autrefois acquit or autrefois convict. The corresponding provision in the Federal Constitution of the U.S.A. is contained in the Fifth Amendment, which provides inter alia: Nor shall any person be subjected for the same offence to be put twice in jeopardy of life and limb. This principle has been recognised and adopted by the Indian Legislature and is embodied in the provisions of Section 26 of the General Clauses Act and Section 403 of the Criminal Procedure Code.
5.Although these were the materials which formed the background of the guarantee of the fundamental right given in Article 20(2) of the Constitution, the ambit and contents of the guarantee, as this court pointed out in the case referred to above, are much narrower than those of the common law rule in England or the doctrine of Double Jeopardy in the American Constitution. Article 20(2) of our Constitution, it is to be noted, does not contain the principle of autrefois acquit at all. It seems that our Constitution-makers did not think it necessary to raise one part of the common law rule to the level of a fundamental right and thus make it immune from legislative interference. This has been left to be regulated by the general law of the land. In order to enable a citizen to invoke the protection of clause (2) of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words prosecuted and punished are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted. The position is also different under the American Constitution. There the prohibition is not against a second punishment but against the peril in which a person may be placed by reason of a valid indictment being presented against him, before a competent court, followed by proper arraignment and plea and a lawful impanelling of the jury. It is not necessary to have a verdict at all2.
6.It has also been held by this Court in Maqbool Hussain case1 that the language of Article 20and the words actually used in it afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or Judicial Tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence. In that case the proceedings were taken under the Sea Customs Act before a Customs Authority who ordered confiscation of goods. It was held that such proceedings were not prosecution , nor the order of confiscation a punishment within the meaning of Article 20(2) inasmuch as the Customs Authority was not a court or a Judicial Tribunal and merely exercised administrative powers vested in him for revenue purposes."
23.Further, the Supreme Court in Union of India v. Sunil Kumar Sarkar, reported in(2001) 3 SCC 414 in paragraph 11 had observed as follows:
"11.Before concluding we must point out that during the course of arguments, a doubt was raised as to the maintainability of the concurrent proceedings initiated against the respondent by the authorities. The respondent in this case has been punished for the same misconduct both under the Army Act as also under the Central Rules. Hence, a question arises whether this would tantamount to double jeopardy and is in violation of Article 20 of the Constitution of India. Having considered the arguments addressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the Organisation against the respondent both under the Army Act and the Central Rules are concerned, they are unexceptionable. These two proceedings operate in two different fields though the crime or the misconduct might arise out of the same act......."
24.Whether the student as well as staff members were punished are all matters which will have to be proved by way of records and the university will have to be convinced on it. But the fact that the student was punished and staff members responsible were punished will not absolve the responsibility of the college. Further the contention that the present Chairman has revamped the structure will not leave the college without appropriate punishment. Even in their reply, they have not denied the incident. Therefore, it cannot be said that the university had issued the show cause notice without any material.
25.With reference to the proportionality of any punishment to be imposed and reliance placed upon the details furnished in the reply affidavit regarding information of other colleges who were similarly accused of were let off with minor penalties are all grounds which can be raised only when the university takes a firm decision based on the reply to be sent by the college. Therefore, the termination of the show cause notice is not in the interest of justice and certainly under Article 226, this court cannot interfere with the show cause notice unless the competent authority takes a decision on the show cause notice and the reply with other relevant records. Hence W.P.No.3363 of 2012 is liable to be dismissed.
26.With reference to non inclusion of the petitioner college in the list of the colleges to be included in the counseling for single window system, the respondents have correctly explained that the petitioner had not provided necessary materials required for inclusion of their name. The absence of the petitioner college producing affiliation order for the academic year 2011-2012, the question of presuming the university had impliedly granted affiliation or by the conduct of events will not take the case of the petitioner any further. On the other hand, so far as the inclusion of the name, the booklet published by the first respondent clearly shows that the requirement of certain details and records are necessary for inclusion of their name. In the present case, the order of the affiliation has not been produced. The petitioner college by challenging the show cause notice and obtaining a stay order, cannot contend that they are having actually affiliation for the relevant year in question.
27.By merely contending that the Commissioner has the responsibility being the Chairman of the Standing Committee and he should have been aware of the same also does not stand to reason. It is not as if the petitioner college is precluded from admitting the students on their own in the absence of any candidate being sponsored under the single window counseling. Though the petitioner contended that the action of omitting the name had resulted in civil consequences, it is not clear as to how any civil consequences of the college is affected. On the other hand, they are empowered to admit 100% students on their own without any candidate being sponsored by the State Government. Unlike after the judgment of the Supreme Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others reported in (1993) 1 SCC 645 and subsequently clarified by subsequent judgments, the obligation for a single window system is no longer involuntary. In the present system of allotment of candidates by the single window system, the required obligation is to be fulfilled by the colleges which are willing to participate in the single window counseling. Therefore, it cannot be said that any civil consequence will arise. On the other hand, since always private colleges have advocating unlimited right to admit students as being a part of their right, it cannot be said any civil consequence of the petitioner is affected.
28.This court do not find that the reasons adduced by the Commissioner of Technical Education are either irrelevant or irregular so as to issue a direction to include their name in the single window system. Hence W.P.No.17707 of 2012 is misconceived and bereft of legal reasons and is liable to be dismissed.
29.In the result, both writ petitions will stand dismissed. However, there will be no order as to costs. Consequently connected miscellaneous petitions stand closed.
vvk To
1.The Registrar, Anna University, Chennai-600 025.
2.The Registrar, Anna University of Technology, Chennai-600 025
3.All India Council for Technical Education, New Delhi.
4.The Commissioner of Technical Education, Directorate of Technical Education, Guindy, Chennai-600 032.
5.The Secretary, Tamil Nadu Engineering Admissions, Anna University, Chennai-600 025.
6.The Principal Secretary, Government of Tamil Nadu, Department of Higher Education, Secretariat, Fort St. George, Chennai 9.
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