IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION No. 971 OF 2008
Rajan Lakule, Age 45,
Principal, Sir, J. J. College of Architecture,
78/3, Dr. D. N. Road, Mumbai-400 001.
1. The Council of Architecture
India Habitant Centre,
Core 6-A, Lodhi Road,
New Delhi 110 003.
2. Vinod Kumar,
Secretary, Council of Architecture,
Core 6-A, 1st Floor,
New Delhi 110003
3. Prakash Shewale,
212 Millan Industrial Estate,
Kala Chowky, Mumbai .
. . Respondents
Mr. A. V. Anturkar with S. B. Deshmukh, for the Petitioner.
Mr. R. A. Dada, Sr. Counsel with Mr. A. V. Bukhari, Mr. Manoj Gorkela & Mr. R. L. Nerlekar, for the Respondent No. 1.
Mr. R. A. Rodrigues for University of Mumbai.
CORAM: F. I. REBELLO, & A. A. KUMBHAKONI, J. J.
DATE: OCTOBER 18, 2008.
JUDGMENT [ PER: F. I. REBELLO, J. ]
1. Rule. Rule by consent heard forthwith.
2. The petitioner has approached this Court praying for relief by way of writ of Mandamus or any other appropriate writ to quash and set aside the constitution of the Disciplinary Committee, constituted by the respondent No. 1 to inquire into the allegations contained in letter dated 30th January, 2008, addressed by the respondent No. 3 to respondent No. 1.
3. A few facts may be set out. The petitioner is a qualified architect and is registered with the Council of Architecture, respondent No. 1 herein. The petitioner in the year 1984 obtained Bachelor's degree in the first class. He was a Gold Medalist. In the year 2000 the petitioner obtained Post-Graduate Degree of Master of Architecture. In 2003 the petitioner obtained On-Line Ph. D. degree from Ashwood University, America.
4. According to the petitioner, the petitioner is in practice since 1984 and continued to do so till 2004 and was working as an Architect at Sangli, Kolhapur and Ichalkaranji in various hospitals, private banks and industrial tenements.
The petitioner has also done the work of designing. Till 1992 the petitioner was working on an individual basis and from 1992 till 1996 as part and parcel of M/s. Chougule Lakule Patil Pvt. Ltd. Company and was carrying on profession in that Company. In 1996 the petitioner has again started working on an individual basis.
5. Before doing his Ph. D. degree from Ashwood University, America, the petitioner approached the Mumbai University as well as the Council of Architecture i. e. respondent No. 1 for the purpose of seeking information as to whether a Ph. D. degree can be considered on the objective assessment of work experience, either from Mumbai University or the respondent Council. The petitioner had approached Ashwood University, America and obtained online Ph. D.
The same was informed to the Council of Architecture as well as the Director of Technical Education Maharashtra Mumbai in the year 2003. From the year 2000 the petitioner was working as an Assistant Professor of Sir J. J.
College of Architecture and as Professor since 2003. The said selection was made through Mumbai University.
6. On 6th April 2004 an advertisement was published for the post of Principal of Sir J. J. College of Architecture. According to the petitioner, at that time when the advertisement was issued, the petitioner was duly qualified in terms of the advertisement. The concerned candidate ought to have obtained Bachelor Degree in Architecture, and also must have obtained Master's degree in Architecture, with a First Class in either of the said levels and a doctorate degree or published research work which can be considered equivalent to Ph. D. There was also requirement of work experience of 15 years in Teaching/Practice/Research out of which 5 years had to be at the level of Professor. Candidate who did snot possess Ph. D had to have 18 years of professional experience out of which 5 years should be at the level of professor and above.
Candidates from practice were also eligible if they met the requirements as set out. Ph. D. was not a mandatory condition for candidates from practice. Even if the Ph. D. degree from Ashwood University from America is ignored, the petitioner was eligible for consideration in terms of the advertisement.
7. On the petitioner applying for the said post, pursuant to the advertisement the petitioner was called for the interview.
The Interview Committee consisted of Dr. Mungekar, the then Vice Chancellor of Mumbai University; Smt. Snehalata Deshmukh, the Ex-Vice Chancellor of Mumbai University; Prof. Pasalkar, the Director of Technical Education, Mr. Chandrashekhar Prabhu, and the experts in the subject, Mr. Atul Desai and Mr. Sudhakar Bodake. The petitioner was informed by the Mumbai University on 24th June, 2004 that he was appointed to the post of Principal of Sir J. J. College of Architecture and accordingly from 29th June 2004 the petitioner is working as the Principal of Sir J. J. College of Architecture.
8. One Mr. Prakash Shewale, the respondent No. 3 has filed the complaint to respondent No. 1 Council. It will be necessary to reproduce relevant contents of the said complaint hereunder-
"2. I understand that in order to be eligible for the post of Principal, for which Ph. D. is mandatory, Prof. Rajan Lakule has managed to get an online Ph. D. Ashwood University, which I believe is against the proper procedure of completing Ph. D. work, which is the normal practice, followed in all the universities. It appears that in order to grab the position of Principal in the J. J. College of Architecture, he has fraudulently & dishonestly submitted his online Ph. D. in Architecture to the Mumbai University, as the same is not recognized by Central/State Govt. being a teacher, he should not have restored to such unethical practices & his procuring a fraudulent degree & submitting the same in University of Bombay by posing himself to be possessing qualification of Ph. D. though he does not have Ph. D. recognized by the authorities in India. Therefore, action against Prof. Lakule is absolutely necessary in the interest of architectural education otherwise this would send a wrong message to other teacher & students studying architecture will be deprived of a qualified Principal in Sir J. J. College of Architecture. Further it has come to my notice that Shri Lakule has mentioned against his name as being holder of Ph. D. in 2003 from Ashwood University which is not a recognized qualification.
Particulars of evidence, oral and documentary, if any, to substantiate the complaint.
3. I request the Council of Architecture to verify the Degree conferred on Prof. Lakule and certify its authenticity and if found to be unrecognized then take action against him for professional misconduct. "
The information mentioned above is authentic. On going through the we print out of the Ashwood University, it is abundantly clear that Prof. Lakule obtained the Ph. D. , qualification without pursuing, undergoing and subjecting himself for the program in a recognized system. "
9. Respondent No. 2 forwarded the complaint to the petitioner for filing the statement of defence in the matter within 40 days. The petitioner filed his reply on 21st November, 2007, denying all the allegations. It was further pointed out that the allegations would not constitute misconduct and the complaint ought to be rejected out-right. In spite of the said reply, the petitioner received the communication informing of the setting up of the Disciplinary Committee and that hearing would be held before the Disciplinary Committee on Friday 15th February, 2008 from 11. 00 onwards.
10. At this stage, we may note that a Writ Petition had earlier been filed before this Court being Writ Petition No. 179 of 2007 filed by the Registrar, Council of Architecture, challenging the appointment of the petitioner herein to the post of Principal of Sir J. J. College of Architecture. Minutes of the orders were filed in the said petition on behalf of the petitioner and also respondent No. 2, whereby a Fact Finding Committee was to be constituted to investigate whether the appointment of respondent No. 2 as Principal was legal, valid and whether the petitioner possess necessary qualifications and experience, in accordance with the advertisement dated 28th April, 2004. The petition was disposed of in terms of "Minutes of the Order" dated 1st February, 2008.
11. Regulations have been framed by the Council of Architecture and are, known as "theArchitects Act (Professional Misconduct) Regulations, 1989, hereinto referred to as the Conduct Regulations. These have been framed pursuant to the powers conferred under section 45 of the Architects Act, 1972.
Nowhere in the complaint or in the show-cause notice issued nor in the notice for hearing have respondent Nos. 1 and 2 specified as to what is the misconduct alleged against the petitioner. However, on query to the counsel appearing for respondent Nos. 1 & 2, learned Counsel considering the conduct Regulations, more specifically Regulation 3, pointed out that violation of any of the provisions of sub-regulation (1) shall constitute a professional misconduct in terms of sub-regulation (3). In so far as the petitioner is concerned, according to counsel for respondent Nos. 1 and 2, following are the misconducts alleged against him, as set out in Regulation (3).
(viii) Maintain high standard of integrity,
(ix) Promote the advancement of architecture,standards of Architectural Education, research, training and practice.
(x) Conduct himself in a manner which is not derogatory to his professional character, nor likely to lessen the confidence of public in the profession, nor bring architects into dispute though not specified in the show cause notice.
12. A reply has been filed on behalf of the respondent Nos. 1 and 2. No reply has been filed on behalf of the respondent No. 3.
The reply filed on behalf of the respondent Nos. 1 and 2 is signed by Vinod Kumar respondent No. 2. The said affidavit has not even been verified. Without going into those technical objections, we may consider the averments therein.
In terms of the mandate under section 21 of the Architects Act, the Council has framed Minimum Standards of Architectural Education Regulations Act, 1983, by which the minimum qualifications and experience prescribed for each post at the degree level education are prescribed. According to the respondent, these qualifications have been modified on 22nd January, 2002, 20th November 2004 and 20th April, 2005. We really would not be concerned with the qualifications as laid down in 2004 and 2005, as advertisement issued by the Mumbai University is dated 20th April, 2004. Since 2002 it is pointed out, Ph. D is one of the essential qualifications for the post of Principal/Professor.
13. Reference is then made to the application submitted by the petitioner, to the University of Mumbai for the post of Principal at Sir J. J. College of Architecture. The claim to be holder of Ph. D degree was, it is contended, was in order to meet that requirement. Certain online Universities are issuing degrees of doctorate in Architecture, merely on payment of money. Such universities are not recognised by any concerned authority in India and hence cannot be considered for recruitment to the post of Principal. The petitioner's degree is one such degree, as the Ashwood University of America, is not recognised by the respondent No. 3 or concerned authority in India. According to the averments, the petitioner had knowingly made a representation that he was holding Ph. D. degree, with a view to show his eligibility for appointment to the post of Principal.
14. The Disciplinary Committee as contemplated under section 35 of the Council of Architecture Rules 1973 consists of three members, as provided under Rule 35(1)(a).
The Council has constituted a Disciplinary Committee consisting of only two members as according to them one of the post for a specific category of member is vacant. The said issue is the subject matter of Writ Petition in the Delhi High Court. The stand of the Council is that the decision to appoint a two member committee was taken bona fide on the basis of Doctrine of Necessity and that it is not in public interest or in the interest of the Council to indefinitely delay the disciplinary action against ig the petitioner. In these circumstances it is prayed that the petition ought to be dismissed.
15. The respondent Nos. 1 and 2 have raised an objection that this Court should not entertain the writ petition, as there is a remedy available and petitioner can appear before the Disciplinary Committee appointed by the respondent Nos. 1 and show cause and raise all objections which will be considered by the committee. We may note that the President/Chairman of the Council himself was one of the candidates for Selection to the post of Principal. Secondly the Council itself was a petitioner before this Court, challenging the appointment of the petitioner herein in Writ Petition No. 179 of 2007. The matter was pursued by the respondent No. 1 before the Fact Finding Committee. Also according to respondent No. 2, the Disciplinary Committee has not been constituted in terms of the Rules. Though there is a requirement that there should be three member committee, but the Committee constituted is of only two members. In these circumstances, in our opinion, considering the direct interest that the respondent Nos. 1 and 2 have expressed, this would be a fit case for the Court to exercise our extraordinary jurisdiction.
The interest expressed is not only by the Chairman/President but by the Council of Architecture itself. The doctrine of necessity as explained in Institute of Chartered Accountants of India Vs. L. K. Ratna, A. I. R. 1987 S. C. 171 would not be attracted. Apart from that this would be a fit case to apply the doctrine of test of real danger of possibility in the decision making process of the Committee as explained in Localbail (UK) Ltd. Vs. Bayfieled Properties Ltd. & Another (2000) 1 All E. R. 65 and the direct interest of the members of the Committee on the issue as they are members of the Council, which has already taken a decision on the petitioner's degree of Doctorate considering the challenge to the appointment of the petitioner to the post of Principal in Writ Petition No. 179 of 2007 [See: R. V. Bow Street Stipendary Metropolitan Magistrate and Others vs. Ex-parte Pinochat Ugarte (No. 2), (1999) 1 All ER 578.
They have thus disqualified themselves in sitting in judgment over the alleged misconduct of the petitioner.
16. Considering the pleadings, the question that we are called upon to answer is whether the show-cause notice issued to the petitioner, based on the alleged misconduct, to appear before the Disciplinary Committee can be sustained in law.
The entire case of the respondent Nos. 1 and 2 is that the petitioner obtained an online doctorate degree and that this degree has not been recognised either by the Council of Architecture or for that matter by any University. If not for that degree, the petitioner was ineligible to apply for selection to the post of Principal of Sir J. J. School of Architecture. To answer the issue we may refer to some of the documents filed in the companion petition also, as both petitions had been heard together. The Selection Committee of the University whose constitution we have set out earlier was headed by the then Vice Chancellor of the University and recommended as under-
"The Committee after interviewing the candidates on prepage after taking into consideration their qualifications, teaching and research experience, publications etc. and also their performance at the interview, unanimously decided to recommendof the Maharashtra Universities Act, 1994 that the following candidate who is suitable be appointed to the post of Principal, Sir J. J. College of Architecture, University of Mumbai in the pay-scale of Rs. 16,500-450-
20,900-500- 22,400/- on probation for a period of two years.
1) Shri Lakule Rajan G. "
This was a unanimous decision of the members of the Committee who were present. The recommendations of the Committee were accepted and accordingly a letter of appointment was issued to the petitioner. Before that, on 11th May, 2004, the Scrutiny Committee consisting of Dr. Sudhir Panse (Convener), Director, BCUD and Dr. S. S. Mantha, Dean, Faculty of Technology found amongst others, the petitioner, eligible along with 4 other candidates. The petitioner had disclosed that he has a Ph. D. from Ashwood University.
Under Section 30 of the Architects Act, 1972, if on receipt of a complaint made to it, the Council is of the opinion that any architect has been guilty of professional misconduct which, if proved, will render him unfit to practice as an architect, the Council may hold an inquiry in such manner as may be prescribed by rules. Section 30 of the Architects Act, 1972 reads as under-
"30. Procedure in inquiries relating to misconduct (1)When on receipt of a complaint made to it, the Council is of opinion that any architect has been guilty of professional misconduct which, if proved, will render him unfit to practice as an architect, the Council may hold an inquiry in such manner as may be prescribed by rules.
(2)After holding the inquiry under sub-section (1) and after hearing the architect the Council may, by order reprimand the said architect or suspend him from practice as an architect or remove his name from the register or pass such other order as it thinks fit. "
It is thus, clear that the professional misconduct alleged must render him unfit to practice as an architect. The Council if it finds him guilty, can reprimand the architect or suspend him from practice as an architect or remove his name from the register or pass order as it thinks fit.
17. We may now refer to the regulations made under the Architects Act, 1972 in the matter of qualifications for the post of Principal. It is themselves that the Regulations, 1983 have thereafter been modified from time to time, including on 21st February, 2002.
A perusal of the Rules pertaining to the post of Principal does not in any way show that a person has to be registered with the Council of Architecture, to be eligible to be either appointed as a lecturer or as an Assistant Professor or as a Professor or as a Principal. The requirement is that he must possess the qualification as set out therein. The degrees are not conferred by the Council of Architecture. At the highest considering the regulations made, for appointment to various posts, the qualification laid down under the Architects Act and regulations thereunder will have to be followed by the respective universities. There is no further requirement that for the teaching posts, a person must necessarily be registered with the Council of Architecture. Incidentally when a person applies in the category of "candidate from practice" they have to be registered with the Council. Who has to examine the qualification is not the Council of Architecture but the respective Selection Committee of the University. It is thus only in the case of a candidate appearing from the category of practice, does the candidate incidentally stands registered with Council of Architecture and even in such case for appointment to the post of Principal, there is no requirement that the candidate must have obtained Ph. D. Degree. Thus respondent no. 1 has no control over the selection process nor does selection to the post of Principal has any connection either direct or remote with the practice of Profession of Architecture. Nothing has also been placed on record by the respondent Nos. 1 and 2 that an Architect if registered, requires their permission to prosecute further studies in any university or to apply for the post of Principal. There is therefore, no nexus between applying for the post of Principal and practicing the profession of Architecture.
18. The other issue is, before any action for misconduct is initiated against an architect, registered with the Council, by way of disciplinary proceedings for professional misconduct, the act complained of must prima facie constitute a misconduct within the meaning of the Regulations. In other words they must constitute one of the misconducts as set out in Regulation 1(2). Also considering section 30(1) such misconduct must render him unfit to practice as an Architect. The complaint does not disclose any act which renders the petitioner unfit to practice. The alleged misconduct is because he had applied for the post of Principal, based on a Ph. D. degree obtained by him from Ashwood University, America, and as the said Ph. D.
degree is not recognised. The respondent Nos. 1 and 2 have not issued any show-cause notice to the petitioner, specifying the misconduct which he is alleged to have committed. In the communication of October 2007 the respondent has only forwarded the complaint made by the respondent No. 3. The petitioner thereafter has replied to the said complaint. There is nothing on record to indicate whether the reply filed was considered by any Committee of by respondent no. 2 before the matter was placed before the Disciplinary Committee of the Council of Architecture. Even while referring the matter, no misconduct has been specified or set out, which would have enabled the petitioner to specifically answer the allegations of misconduct. In our opinion, before a Disciplinary Committee could be constituted or inquires into an act of misconduct, the principles of natural justice and fair play demand, that the person against whom the inquiry is proposed is specifically informed of the specific misconduct in terms of the Professional Misconduct Regulation 1989. That has not been done. No person in the absence of having knowledge of what is the specific misconduct alleged against him, would be in a position to answer the same, and an inquiry based on vague allegations and/or without prima facie considering whether the complaint discloses a misconduct, in our opinion would be violative of the principles of natural justice and fair play.
In our opinion, on this ground alone the proceedings are liable to be quashed and set aside.
19. Yet another aspect of the matter, as we have seen based on the reply filed on behalf of the respondent Nos. 1 and 2, is that the petitioner is sought to be charge sheeted and an inquiry held, on the ground that he claimed selection based on a degree which is not a recognised. Nothing has been pointed out to us to show that under the Act, Rules or Regulations there is a bar in obtaining an online Ph. D. degree.
At the most the said Ph. D. Degree may not be recognised, and as such, the candidate may not be eligible to be considered based on the said online Ph. D. degree. That exercise is for the examining body or the selection Committee of the college or university where the petitioner applies to consider. In the instant case, as we have noted earlier, the decision of Selection Committee of the University does not disclose whether the petitioner was considered as a candidate based on the Ph. D degree.
ig On the contrary, the University under the Right to Information Act has clearly set out that the petitioner was not selected, based on his Ph. D. degree. The very basis therefore, on which the complaint was filed by respondent No. 3 and based upon which the respondent Nos.
1 and 2 issued notice and constituted the Disciplinary Committee is devoid of substance and consequently the proceedings would be without jurisdiction. The petition on this ground also is also liable to be allowed.
20. As earlier noted and considering section 30, the Misconduct must render an Architect unfit to practice as an architect. It is not the case of the respondent Nos. 1 and 2 that the petitioner in his capacity as an architect has done any act which would render him unfit to practice in so far as professional duties as an Architect are concerned. The only allegation is that he wanted his online Ph. D. degree to be considered, for selection to the post of Principal. The qualification prescribed by the respondent No. 1, are to be followed by the concerned University. There is no requirement that a person should possess a degree or post-graduate or a doctorate, which must be be recognised by the Council of Architecture, to enable a person to apply for the post ig of Principal. If that be the case, the alleged misconduct if any, would not be in the course of his professional duties and as such, neither the regulations nor provisions off the Architects Act would apply. On this ground also, the petition will have to be allowed.
21. The issue can also be considered from another aspect. The misconduct must be in the course of his professional work as an Architect and the alleged misconduct must render him unfit to practice as an Architect. The misconduct therefore, must be related to the profession of Architecture. At the relevant time when the petitioner applied for the post of Principal, he was working as as professor in the Sir J. J. College of Architecture. The application for the post of Principal was not in connection with his work in the profession of architect. The academic post which he held had no connection with the profession of an architect i. e. because as section 30(1)itself notes, that if the misconduct is proved, that must render him unfit to practice as an Architect. When a penal provision is construed, that must be considered strictly. This is the normal course of construction of penal provisions. The provision therefore, regarding misconduct in the Regulations must be strictly construed. [ See: Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court Meerut and Ors (1984) 1 SCC 1]. Once so construed in the absence of the alleged act, having no connection with the practice of profession of an Architect, the disciplinary proceedings against the petitioner must be quashed.
22 In the light of the above, the petition is allowed.
Rule is made absolute in terms of prayer clause (a) and (b).
In the circumstances of the case, each party to bear their own costs.
|[ A. A. KUMBHAKONI, J. ]||[ F. I. REBELLO, J. ]|