Full Text
HIGH COURT OF DELHI
SUNNY CHHILLAR ..... Petitioner
Through: Mr.P.Chidambaram, Mr.Anoop George Choudhari, Sr. Advocates with Mr.Aman Pawar, Mr.V.Elan
Chezhiyan, Mr.Jawaid Hussain Khan, Mr.Yogesh Sharma, Mr.Rashid N. Azam, Mr.Vivek
Kumar, Ms.Komal Vashishtha, Mr.Mahinder Pareek, Mr.Anis
Manzar, Mr.Sunil Kumar, Mr.Rajat Sharma and Mr.Aditya
Ranjan, Advocates
Through: Ms.Pinky Anand, ASG with Mr.Mohinder J.S.Rupal, Ms.Saudamini Sharma, and
Mr.Chakitan Vikram Shekher, Advocates for respondent
No.1/DU.
Mr.Amit Singh Chadha, Sr Advocate with Mr.Sindhu Sinha, Mr.Sandeep Mahapatra, Mr.Sahil
Monga and Mr.Vikrant Goyal, Advocates for applicant in CM
No.50847/2018.
2018:DHC:7973
JUDGMENT
1. The brief facts of the case as alleged by the petitioner are: a) On 12.09.2018 DUSU Elections 2018-2019 were conducted; b) on 14.09.2018 DUSU Elections 2018-2019 results were declared in which the Respondent No.2 was elected for the post of President; c) on 17.09.2018 the petitioner filed a writ petition (C) No.9805 of 2018 before this Court in which the petitioner challenged the elections and its results due to EVM frauds. This Court issued notice and secured the EVMs; d) in the meantime, on 18.09.2018 the petitioner came to know through a letter obtained by the Chairman, Tamil Nadu Congress Committee (SC Department) from Controller of Examinations, Thiruvalluvar University, Serkadum, Vellore, Tamil Nadu 632115 stating interalia "With reference to the above, it is informed that the copy of the certificate of following candidate has been verified and found that the said certificate is Not GENUINE. It is a FAKE CERTIFICATE."; e) immediately on 19.09.2018 the petitioner filed a complaint with the Vice-Chancellor, University of Delhi. Since no action was taken by respondent No.1 nor any direction was made despite complaint and reminders/ request made to the respondent No.1 by the petitioner, the petitioner filed a writ petition W.P. (C) No.10441 of 2018 dated 27.09.2018 before this Court for cancelling the admission of the petitioner; f) in the meantime on 02.10.2018 the petitioner came to know the respondent no. 2 had pursued a regular course during the year 2013-16 in the College of Vocational Studies (CVS) in the University of Delhi, hence it is alleged that the respondent no.2 have not only committed forgery of creating documents but also played fraud with the University of Delhi. The petitioner has obtained the attendance sheet from the web site of the college (http://www.cvs.edu.in/upload/Eco-B-VI-SEM.pdf) and (http://www.cvs.edu.in/upload/Eco-B-V-SEM.pdf) and came to know about the vital additional material facts and grounds necessary to deliver justice and moved an application for withdrawal of the writ petition W.P.(C) No.10441/2018, filed on dated 27.09.2018 with liberty to re-file a fresh writ petition with facts subsequently found; g) on 08.10.2018 this petition was listed in Court for hearing and learned counsel for respondent No.1 sought time to obtain instructions and matter was adjourned to 09.10.2018; h) on 09.10.2018 since Bench could not assemble, the matter was adjourned to 15.10.2018, however, for same reason the matter was adjourned to 23.10.2018; i) on 23.10.2018, the matter was adjourned to 30.10.2018 at the request of learned counsel for respondent No.1; j) on 25.10.2018, petitioner filed an additional affidavit along with annexure (media reports and letter dated 03.10.2018, showing his concern that the respondent No.1/ University deliberately delayed the enquiry and action against the respondent No.2 so that the period of two months from the date of declaration of election result could pass and re-election deliberately avoided to give undue benefit of ABVP so that on vacancy the post of President could be filled up by Vice President DUSU 2018 (ABVP candidate); k) on 30.10.2018, it was submitted on behalf of the respondents that verification process is likely to be completed on or before 12.11.2018, hence the matter was also adjourned to 12.11.2018; l) on 12.11.2018, learned ASG submitted the report of verification is likely to be available by the evening and this Court while adjourning the matter to 20.11.2018 directed “let the verification report be placed on record under cover of an appropriate index with an advance copy given to learned counsel for the petitioner.” m) on 17.11.2018 an additional affidavit was filed on behalf of petitioner regarding deliberate delay by respondent No.1 in enquiry and action against respondent No.2 saying it was preplanned and intentional to defeat objective and purpose of Lyngdoh Committee recommendation/ guidelines with political move to occupy post of President DUSU by ABVP and to avoid re-election; hence, this petition.
2. The entire case hinges upon interpretation of clause No.6.10.[4] of the recommendation of the Lyngdoh Committee, stated as under:- “6.10.[4] In the event of the office of any major post of office bearer falling vacant within two months of elections, reelections should be conducted; otherwise the Vice President may be promoted to the post of President and Joint Secretary to the post of Secretary, as the case may be.”
3. It is submitted by the learned senior counsel for the petitioner even if we go by clause 6.10.[4] of the Lyngdoh Committee recommendations as accepted by the Supreme Court and upon which even the respondent No.1 University places its reliance on, the respondent No.1 is bound to order fresh elections for the post of President.
4. It is the case of the petitioner the respondent No.2 was never qualified to be nominated to the post of President for the elections and though the University / respondent No.1 was made aware of the fake mark sheets /degree of respondent No.2 on 19.09.2018 itself but the respondent No.1 delayed such verification for one reason or the other and ultimately the University got the verification done on 13.11.2018 and hence the deliberate delay on the part of the university/respondent No.1 should raise an adverse inference against respondent No.1 University.
5. On other hand, respondent No.1 had averred in the counter affidavit that Dean of Student Welfare (DSW), Delhi University received a complaint dated 18.09.2018 from the petitioner herein on 19.09.2018 and it was forwarded it to the Head of Department, Buddhist Studies, by the DSW vide letter dated 21.09.2018 for necessary action. The Head of Department, Buddhist Studies met the DSW on 25.09.2018 to discuss about the complaint. The Head of Department, Buddhist Studies then vide letter dated 26.09.2018 had informed the DSW that it had been decided in the meeting of the Admission Committee of the Department held on 26.09.2018 that the mark sheet and qualification degree certificate submitted by the respondent No.2 are to be verified. The Head of Department, Buddhist Studies further informed vide the same letter that a letter will be sent to the Registrar of Tamil Nadu University immediately to check the authenticity of the documents submitted by the respondent No.2. The minutes of the meeting of the Admission Committee with the Head of Department, Buddhist Studies of dated 26.09.2018 and the letter dated 26.09.2018 wherein the Head of Department, Buddhist Studies had agreed to get the mark sheet verified was annexed.
6. A letter dated 27.09.2018 was thus sent by the Head of Department, Buddhist Studies to the Registrar of Tamil Nadu University by registered post annexing therewith all six mark sheets of BA semester submitted by the respondent No.2 with request to verify and authenticate the mark sheets. Since the Department of Buddhist Studies did not receive any response until one week, another letter was sent on 08.10.2018 and again on 16.10.2018. In the meanwhile, the present matter was listed on 08.10.2018 and case was adjourned to 09.10.2018 to enable the counsel on behalf of the respondent No.1 to obtain instructions. The communication was received by the Department of Buddhist Studies for the first time from Controller of Examinations, Thirvualluvar University, Tamil Nadu on 15.10.2018 that a fee of Rs.500/- for issue of genuineness certificate is required to be deposited. Hence, the Head of Department, Buddhist Studies deposited Rs.500/through NEFT on 25.10.2018 in the account of Thirvulluvar University. A SMS to the Registrar of Tamil Nadu University was also sent by Head of Department, Buddhist Studies to which the response was the Tamil Nadu University will look into the matter.
7. The Head of Department, Buddhist Studies again vide its letter dated 29.10.2018 intimated the Registrar of Delhi University of all the developments regarding the verification process and it sent the emails to the Registrar, Tamil Nadu University on 05.11.2018, 06.11.2018 and 09.11.2018 regarding the verification process.
8. On 10.11.2018, Head of Department, Buddhist Studies again sent SMS to the Registrar of Tamil Nadu University to which the response was received on the same date informing not to worry on the issue. In the meanwhile, the matter was listed on 13.10.2018 and this development was apprised to this Court. Since no response from Tamil Nadu University till 12.11.2018 was received, so the request was made to renotify the present matter to 20.11.2018. However, the Controller of the Examinations, Tamil Nadu University sent a letter dated 13.11.2018 to the Head of Department, Buddhist Studies, Delhi University informing the Head that certificate /degree of respondent No.2 is not genuine and its fake certificate.
9. It is also alleged that after the receipt of the letter dated 13.11.2018 from the Controller of Examinations, Tamil Nadu University, the Head of Department, Buddhist Studies held a meeting of the Admission Committee on 14.11.2018 and cancelled the admission of the respondent No.2 in MA Part – I and informed the respondent No.1. The Registrar of Delhi University then informed the office of Proctor, University of Delhi who in turn informed these developments to the Chief Election Officer, DUSU Elections Committee of 2018 vide letter dated 17.11.2018 with a request to convene a meeting and accordingly an emergent meeting of the Election Committee was convened on 19.11.2018 to deliberate on the election status of respondent No.2 as President of DUSU 2018 in the light of new revelations. The Election Committee then decided the election of respondent No.2 is invalid and post of DUSU President of 2018 falls vacant henceforth. Hence, it is the case of respondent No.1 that post of President of DUSU Elections 2018 has fallen vacant on 19.11.2018, when the Election Committee 2018, viz. the competent authority had decided on the elections status of respondent No.2 as President of DUSU, 2018 elections.
10. It is also averred by the respondent No.1 / Delhi University that they had received representation on 19.11.2018 from Shakti Singh, Vice President of 2018 to promote him to the post of President on the basis of applicable recommendations of Lyngdoh Committee and such representation has been placed before the DUSU election Committee who has deliberated at length on various aspects and is now seized of the matter.
11. Hence, the counter affidavit as filed along with the supporting documents do show there was no unreasonable delay on the part of the respondent No.1 to get the mark sheets verified from the concerned university.
12. Now, I come to the second contention raised by the petitioner viz the respondent No.2 was never qualified for his nomination, hence his nomination ought not to have been accepted and that on verifying his mark sheet being fake and his admission having stood cancelled, his disqualification should relate back to the date of his nomination and hence his elections be declared to be void.
13. In support of his contention, the learned senior counsel relied upon
14. It was also argued the ratio of K.Prabhakaran (supra) was reaffirmed in Ravikant S. Patil vs. Sarvahhouma S Bagali (2007) 1 SCC 673 which held the election of respondent to be void as the disqualification of respondent would relate back to the date of notification/elections and fresh elections were declared.
15. The judgments cited above by the learned senior counsel for the petitioner are, primarily, under the Representation of the People Act, 1951 and those interpret Section 100 (1)(d)(i) of the said Act i.e. if there is any improper acceptance of any nomination of a candidate, then the High Court would declare the election of the returned candidate to be void.
16. Would this Act apply to the students’ union election? The Representation of the Peoples Act, 1950 is an Act to provide for the allocation of seats in, and the delimitation of constituencies for the purpose of elections to, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls (the manner of filling seats in the Councils of States to be filled by representatives of (Union Territories) and matters connected therewith. This Act primarily relate to the elections to the House of People and Legislator of States, hence, would not apply to DUSU election.
17. Here we need to look into the Lyngdoh Committee recommendations and the Constitution of DUSU which shall be relevant for the purpose. Neither the Lyngdoh Committee recommendations nor the Constitution of the DUSU has any such like clause as Section 100 of the Representation of the People Act which empowers the High Court to declare the elections void in case of improper acceptance of any nomination. The Lyngdoh recommendations and the Constitution of DUSU rather speaks of disqualifications and vacancy arisen thereof.
18. Hence, the moot question in the present case would not be the date to which the disqualification of a member would relate to, but the date on which the post has fallen vacant per clause 6.10.[4] of the Lyngdoh recommendations.
19. It is not in doubt Lyngdoh recommendations have been duly accepted by the Supreme Court in University of Kerala vs. Council of Principals of Colleges, Kerala and Others (2011) 14 SCC 357 and relied upon by the Division Bench of this Court in Abhishek Verma vs University of Delhi and Others MANU/DE/2273/2017. Since such recommendations have been accepted by the Supreme Court, hence is the law declared.
20. Now if one peruse the Constitution of the DUSU one find Article 12 relates to disqualification of office bearers and it notes:-
21. The Constitution of DUSU thus provides for disqualification of an office bearer if he or she has been found guilty and punished for the use of unfair means in any examination of a University or Board. Similarly, the Lyngdoh Committee recommendations also provides for the mode of elections; grievance redressal mechanism; the applicability of certain provisions of the Indian Penal Code 1860 qua the offences relating to the elections; and more specifically clause 6.10.[4] which speaks of the post having fallen vacant. Thus, a resort to Section 100 of the Representation of People Act, 1951 in DUSU election would not be desirable and this specific provision cannot be read either into DUSU Constitution or Lyngdoh recommendations by necessary implication.
22. The Lyngdoh recommendations speak about the vacancy. It, of course, is an automatic consequence of disqualification, but such disqualification need to be declared by an appropriate authority as was held in Consumer Education and Research Society vs Union of India 2009 (1) SCALE 708 the Court held:-