Smt. Tripti Dutta, Prt, Group C, Vs. Union of India (Uoi) Through the - Court Judgment

Excerpt:
1. applicant in oa 2184/2007 obtained b-ed degree in the year 1987 from mahila gram vidhyapitha, prayag, allahabad and joined as a primary teacher in kendriya vidhyalaya sangthan (kvs) on 29.10.1988 whereas applicant in oa 242/2008 obtained b-ed degree from maithili vishwa vidhyalaya dharbhanga, bihar. the aforesaid degrees have been found to have been recognized by the ministry of education, government of india.2. however, a disciplinary proceeding was initiated against the applicant in oa 2184/2007 on the ground that b-ed degree obtained by the applicant was from a non-recognized university, which is fake as per the ugc letter dated feb.2002. accordingly, applicant has committed a misconduct, whereas the applicant in oa 242/2008 has been charged of misconduct on the ground that he acquired b-ed degree from maithili vishwa vidhyalaya, which is not recognized university as per ugc. in both the cases, inquiry officer did not prove the charge and on the basis of one decided case by the high court of delhi took cognizance of the fact that applicants shall obtain perquisite degree within a stipulated period of time.3. the above finding was considered by the disciplinary authority vide order even dated 5.9.2006 wherein according an opportunity to acquire b-ed degree from a recognized university within three years, the inquiry has been dropped. accordingly, applicant in oa 242/2008 had already acquired a degree whereas in oa 2184/2007 applicant has been appearing in the b-ed examination for obtaining degree before the stipulated period prescribed by the appointing authority.4. however, the appellate authority by exercising of suo motu powers vested under rule 29 of the ccs (cca) rules, 1965,which has been adopted by the kvs issued notices to the applicants proposing a penalty of removal from service despite disciplinary authority's order has been brought to the notice of the disciplinary authority in jan.2007, after a period of more than six months, which are being assailed before us.5. learned counsel of the applicants stated that the notice issued is without jurisdiction as has been issued beyond six months from the date of the order brought to the notice of the disciplinary authority.6. shri e.j. verghese has also stated that in an identical situation, relying upon the mumbai bench decision, the bangalore bench of the tribunal in raminder duggal v. kendriya vidyalaya sangathan and anr. oa 781/2003 decided the aforesaid issue in favour of the applicant.7. learned counsel would also contend that though the b-ed degrees obtained by applicants have been decided fake by the ugs in 2002, as the same were obtained from non-recognized universities but the fact that the ministry of education once certified the recognition of the university, the de-recognition has to be construed prospectively from 2002 and the degrees obtained in 1987 by the applicants would have to be treated valid in law. moreover, it is stated that by virtue of their having continued in service for more than 15 years and on acquiring subsequently requisite qualifications, the show cause notice cannot be sustained in law.8. lastly, it is stated by shri verghese that the applicant as per kvs code on production of their educational qualification, the same were meticulously and thoroughly examined by the concerned authorities and on full satisfaction of the qualifications, the applicants have been appointed. in this backdrop, it is stated that when no misrepresentation or fraud has been found to have been exercised by the applicants, respondents in the wake of doctrine of principles of legitimate expectation are estopped from taking such view, which is not permissible in law.9. on the other hand, respondents' counsel opposed the contentions and fairly admitted that there may be negligence on the part of the appellate authority not to have exercised the statutory power within the stipulated time limit, yet it is stated that once the applicants are ineligible for appointment as to their qualifications, which are essential for their appointment, the appointment of the applicants is void ab initio and not even to be declared as such. accordingly, it is stated that applicants have no right to continue in service. it is also stated that the applicants were properly charge sheeted and it is the appellate authority, which has come to know of the decision of the disciplinary authority only on 9.1.2007. as such, the action is without limitation and the decision of the apex court in r.vishwanatha pillai v. state of kerala 10. we have carefully considered the rival contentions of the parties and perused the material on record.11. in the matter of judicial review, more particularly interference at an interlocutory stage of the disciplinary proceedings, the apex court in divisional forest officer v. m.ramalinga reddy 2007(9) scc 286 ruled that when the order has been passed without jurisdiction, the court has jurisdiction to interfere.12. the administrative authority when functions as a quasi-judicial authority being a creature of a statute are bound by the rules and also the statute being its creature. if a thing is to be done as prescribed by the rules, no other manner can be adopted, which will not be inconsonance with the law. the apex court in bhavnagar university v.palitana sugar mill (p) ltd. and ors. (42) we are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative. (43) in sutherland, statutory construction, 3rd edition, vol. 3 at p. 102 the law is stated as follows: ...unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the officer. at p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow noncompliance with the provision. at p. 111 it is stated as follows: as a corollary of the rule outlined above, the fact that no consequences of noncompliance are stated in the statute, has been considered as a factor tending towards a directory construction. but this is only an element to be considered, and is by no means conclusive. [see also crawford on statutory construction, article 269 at p. 535].in dattatreya v. state of bombay, generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. when the provisions of status relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. (45) in craies on statute law viii edition at page 262, it is stated thus: it is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.... that is each case you must look to the subjectmatter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory. (46) in the aforementioned backdrop, we may usefully refer to the decision of this court in the land acquisition officer, city improvement trust board, bangalore's case (supra) wherein it has been stated: 22. there was some argument on the meaning of the words "so far as they are applicable," used in section 27 of the bangalore act. these words cannot be changed into "in so far as they are specifically mentioned" with regard to the procedure in the acquisition act. on the other hand, the obvious intention, in using these words, was to exclude only those provisions of the acquisition act which become inapplicable because of any special procedure prescribed by the bangalore act (e.g. section 16) corresponding with that found in the acquisition act (e.g. section 4 (1)). these words bring in or make applicable, so far as this is reasonably possible, general provisions such as section 23 (1) of the acquisition act. they cannot be reasonably construed to exclude the application of any general provisions of the acquisition act. they amount to laying down the principle that what is not either expressly, or, by a necessary implication, excluded must be applied. it is surprising to find misconstruction of what did not appear to us to be reasonably open to more than one interpretation. (47) we may at this juncture usefully quote the words of oliver wendell holmes: it is sometimes more important to emphasize the obvious than to elucidate the obscure". (see the interpretation and application of statutes by reed dickerson at page 7).13. it is also trite that being bound by the procedure of a statute, the statutory authority cannot pass an order without jurisdiction, as held by the apex court in devender v. state of punjab and ors. 2007(12) scale 496. also held in damodar sugar mills v. state of uttranchal that a public authority when acts with oblique motive and bad faith and this exercise is not in accordance with law, the same is to be set aside.14. in the light of above trite law, kvs authorities through a conscious and considered decision under the kvs code had adopted ccs (cca) rules for conduct of disciplinary proceedings against the employees and teachers and also the rules contained therein for appeal, revision and review. rule 29(5) of the ccs (cca) rules, 1965 empowers the appellate authority suo motu to call for the records of the inquiry and pass any order as may deem fit. however, in respect of president, cag and member (personnel) of postal service, there is no time limit in suo motu revising an order of the disciplinary authority, yet for appellate authority, the time limit laid down is within six months from the date the order proposed to be revised as per dop&t om dated 30.3.1990. dgpt letter dated 27.7.1972 lays down methodology to reckon the period of revision of six months ruled on the basis of the decision of the high court that the order proposed to be revised the power of revision shall have to be exercised within a period of six months from the date order to be passed.15. in the above view of the matter, an admitted stand by the respondents on rti the appellate authority has come to now about the order passed by the disciplinary authority on 19.1.2007, yet a proposal to suo motu revise the order of the disciplinary authority was taken on publication vide memorandum dated 13.11.2007, which falls beyond six months. computing the time limit as per the guidelines from the date of original order of the disciplinary, which is 5.9.2006 in both the cases and assuming in law to compute it from the date of the knowledge i.e.19.1.2007. the memorandum was issued on 13.11.2007, which is beyond six months. as such as the proposal to revise the order by the appellate authority has not been made within the stipulated time limit as prescribed under the rules, the order issued to propose penalty of removal from service is wholly without jurisdiction and cannot be sustained in law.16. moreover, another aspect of the matter, which cannot be forgotten is that as per trite law, an appointment of unqualified person is bad in law, yet decision in r.vishwanatha pillai's case (supra) has clearly ruled that before such an appointment is terminated, a reasonable opportunity has to be afforded but also it is held as a ratio that when an appointment in service has been acquired by practicing fraud or deceit, such an appointment is no appointment in law. applying the aforesaid ratio in the present case, this is not a case of the respondents that applicants had practiced any fraud or misrepresentation upon the respondents rather it is ruled that no such misconduct has been committed by the applicant. in the light of the above, r.vishwanatha pillai's case (supra) would have no application. a coordinate bench at banglore has taken into consideration the above aspect of the matter with the following observations: there is no doubt in the settled position that court/tribunal have no jurisdiction to go into the correctness or truth of the charge. it is well settled that tribunal/court has to see whether the statement of facts and material supplied to the delinquent officer disclose the alleged misconduct. it is the specific case of the applicant that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer, i.e., applicant. a perusal of the charge memo read along with imputation goes to show that the only allegation made is that she "got offer of appointment" on furnishing academic qualification acquired from a "fake university". neither there is any allegation of 'fraud' or any misrepresentation. similarly, no notification/circular issued by ugc declaring the said institution as fake university was even relied upon or supplied to the applicant. the document relied upon is the press note, which too is alleged to have appeared in the newspaper and not in any authentic notification/circular, etc. the respondents cannot be allowed to read the alleged allegation of misrepresentation emphasized in memo, dated 7-11-2003 into the charge memo, dated 14-10-2003. they also cannot be permitted to amend the same further at this late stage particularly in the facts and circumstances of the present case. reliance placed on ugc letter, dated february, 2002 is not sufficient, in as much as the reliance placed on said letter was not accepted by mumbai bench of the tribunal in o.a. no. 572 of 2003. our attention was also drawn to para 34 of article 59 of education code for kendriya vidyalaya, which provides that every teacher shall at all times maintain absolute integrity, maintain devotion to duty and do nothing which is unbecoming of an employee of the sangathan. para. 34(b) clarifies that nothing contained in part (a), noticed hereinabove, shall be deemed to take away or abridge the right of a teacher to appear at any examination to improve his qualifications, etc. when the code itself empowers a teacher to improve his/her educational qualification, we are unable to comprehend how the assistant commissioner, kvs, could place restriction on the said aspect, i.e., denying her permission to obtain required qualification. in our considered view, shri phadke, learned counsel for the applicant was justified in emphasizing that in view of article 59, para. 34(a) and (b) of education code, the respondent no. 2 acted illegally, arbitrarily and with malice in rejecting her request to obtain required qualification with a reasonable period of time vide impugned memo, dated 7-11-2003, particularly when her application was forwarded by the principal, kvs, yelahanka prior to 30-6-2003 and also furnished undertaking to ignou, pursuant to its letter, dated 12-9-2003 that the school will provide facility to the applicant needed for carrying practical work for b.ed. course. when such were the facts, what impelled respondent no. 2 to reject the applicant's request to acquire required qualification and that too after almost 2 months time thereafter, remains a mystery besides being unexplained. we have come across an order, dated 6-5-2004, passed in o.a. no. 572 of 2003, smt. vijaya laxmi sinha v. the commissioner and others, passed by the mumbai bench of this tribunal, wherein, a similar allegation as of the present case was made and charge-sheet, dated 26-4-2003 was issued alleging that the said applicant got the offer of appointment in kvs by furnishing academic qualifications including professional qualifications acquired from a fake university, i.e., varanaseya sanskrit vishwavidyalaya. after considering the matter in detail, the mumbai bench quashed the said charge-sheet, dated 26-4-2003 and observed as under: 7. after hearing both the counsel and going through the facts of the case we are inclined to believe that varanesaya sanskrit vishwa vidyalaya which awarded the degree of b.ed. in 1968 to the applicant was a university duly recognized by ugc and not a fake university. however, in the letter of deputy registrar (edu.) addressed to the applicant indicated the date of name change as 16-12-1974. on the other hand in the counter affidavit filed by the respondent no. 4 and signed by the under secretary ugc mentioned that the name of the university was changed in 1978. however, this will not affect the 1968 status of the university. 8. it is very apparent that the disciplinary action against the applicant was initiated without obtaining requisite information from the ugc that whether the university which awarded the b.ed degree to the applicant in the year 1968 was a genuine one or not. the authorities merely relied on a list of fake universities which essentially indicates the name of varanaseya sanskrit vishwa vidyalaya being operated from jagatpuri, delhi. after going through the contents of the counter affidavit filed on behalf of ugc, no further evidence is required to hold that the university which awarded the degree to the applicant in 1968 was genuine one. thus, the disciplinary proceedings are based on a wrong presumption and, therefore, are not legally sustainable and deserve to be quashed and set aside. we, therefore, direct the respondent nos. 1,2,3 and 5 to drop the disciplinary proceedings intiated against the applicant. no order as to costs. we may note that smt. vijaya laxmi sinha's name did not appear in the list of 22 officials who as per the respondents communication, dated 9-1-2003 were in possession of b.ed. or equivalent degree from fake universities. the respondents in their reply have specifically averred that the issue of fake university was raised in lok sabha and on information collected from all the regions of kvs reveal that there were 22 teachers working in kvs who obtained b.ed. or equivalent certificates from such fake universities. hence, it was stated that the competent authority of kvs decided to proceed against such teachers and kvs headquarters issued letter, dated 9-1-2003 to all the assistant commissioners of kvs regional office. in our considered view, this statement on the face of it is not supported by facts as noticed herein above and further that the respondents have taken different and inconsistent stand on the aforesaid aspect. we have carefully perused the said note portion and are of the considered view that if the allegation of misrepresentation, which was the basic plank of the respondents in memorandum dated 7-11-2003, allegedly approved on 28-8-2003, then how such a vital aspect was lost sight and not included in the revised charge-sheet, dated 14-10-2003, remains unexplained. obviously, all these pleas as raised now and the documents produced before us are not convincing. further, no explanation is forthcoming as to why the applicant's reply, dated 21-10-2003 was not examined prior to issuance of memo, dated 7-11-2003. a perusal of the said file at pages 100-103 further show that the said reply, dated 21-10-2003 was sent by the applicant through speed post. on perusal of the same, it appears that the same is not the original copy but a photo copy of the same. moreover, the envelope under which such reply was sent, is not available or record to answer specifically about the date of its receipt in the respondent office. an article sent by speed post in the same city would not take about 28 days for delivery. the cumulative effect of all these aspects lead to one irrefutable and irresistible conclusion that the respondents have not acted fairly and rather made the attempt to mislead everyone. further, perusal of pages 98-99 (note, dated 21-11-2003) shows that after the alleged receipt of the applicant's reply on 18-11-2003, an attempt was made to amend the article of charge as well as imputation. there is no specific order passed by respondent no. 2 on the said note, though it was signed on the even date with the remark "please issue today itself". what was approved, when it was issued, all these remain a mystery. we have carefully considered the judgments cited by respondents and are of the considered view that none of them is applicable in the facts and circumstances of the present case and are clearly distinguishable. we are also of the view that we as a co-ordinate bench are bound by the precedent as noted in order, dated 6-5-2004 passed in o.a. no. 572 of 2003 by the mumbai bench of the tribunal. on bestowing our careful consideration, analysis and examination of the entire facts of the case, we are of the considered view that the grounds urged by the applicant cannot be brushed aside through we are not inclined to deal with the issue of malice and motive in detail, suffice however to record that the accepted methodology of governmental working being fairness and the same is lacking in its entirety in the matter under consideration. it was not the case of respondents that the recognition granted to mahila gram vidyapitha prayag, allahabad by ministry of education vide d.o. letter, dated 29-9-1965, as noted in the prospectus, was withdrawn, cancelled at later stage. the respondents action was actuated by mala fides. we further find that there had been factual inaccuracies in the respondents stand. there had been more than one glaring irregularity committed by the respondents at every stage of the proceedings, which we have notice in detail hereinabove. the memo, dated 7-11-2004 was illegal, arbitrary, result of predisposition to decide against the applicant and vindictive, besides violative of principle of nature justice and fair play.17. the aforesaid in all fours covers the present issue as well. though no doubt ugc has come into being in 1956, yet no declaration as to the fake universities had been made prior to 2002 much before that, ministry of education, government of india has acknowledged the authenticity and recognition of the universities from where applicants had acquired b-ed degree, which ultimately shows that at the time the degree was obtained, the universities were not described as fake and their degrees were recognized for the purposes of employment. however, as one of the applicants had already acquired b-ed degree and the second one is in process of acquiring it, this issue does not require to be detailed. a coordinate bench in ms. tajinder kaur v. union of india and ors. oa no. 1327/2005 by an order dated 20.9.2005 decided an identical issue in favour of the applicants, which also covers in all four the present oas as well.18. in the result, for the foregoing reasons, oas are allowed.memoranda in both the oas are set aside. consequences to follow in law.no costs.

Judgment:
1. Applicant in OA 2184/2007 obtained B-Ed degree in the year 1987 from Mahila Gram Vidhyapitha, Prayag, Allahabad and joined as a Primary Teacher in Kendriya Vidhyalaya Sangthan (KVS) on 29.10.1988 whereas applicant in OA 242/2008 obtained B-Ed degree from Maithili Vishwa Vidhyalaya Dharbhanga, Bihar. The aforesaid degrees have been found to have been recognized by the Ministry of Education, Government of India.

2. However, a disciplinary proceeding was initiated against the applicant in OA 2184/2007 on the ground that B-Ed degree obtained by the applicant was from a non-recognized university, which is fake as per the UGC letter dated Feb.2002. Accordingly, applicant has committed a misconduct, whereas the applicant in OA 242/2008 has been charged of misconduct on the ground that he acquired B-Ed degree from Maithili Vishwa Vidhyalaya, which is not recognized university as per UGC. In both the cases, inquiry officer did not prove the charge and on the basis of one decided case by the High Court of Delhi took cognizance of the fact that applicants shall obtain perquisite degree within a stipulated period of time.

3. The above finding was considered by the disciplinary authority vide order even dated 5.9.2006 wherein according an opportunity to acquire B-Ed degree from a recognized university within three years, the inquiry has been dropped. Accordingly, applicant in OA 242/2008 had already acquired a degree whereas in OA 2184/2007 applicant has been appearing in the B-Ed examination for obtaining degree before the stipulated period prescribed by the appointing authority.

4. However, the appellate authority by exercising of suo motu powers vested under Rule 29 of the CCS (CCA) Rules, 1965,which has been adopted by the KVS issued notices to the applicants proposing a penalty of removal from service despite disciplinary authority's order has been brought to the notice of the disciplinary authority in Jan.2007, after a period of more than six months, which are being assailed before us.

5. Learned Counsel of the applicants stated that the notice issued is without jurisdiction as has been issued beyond six months from the date of the order brought to the notice of the disciplinary authority.

6. Shri E.J. Verghese has also stated that in an identical situation, relying upon the Mumbai Bench decision, the Bangalore Bench of the Tribunal in Raminder Duggal v. Kendriya Vidyalaya Sangathan and Anr. OA 781/2003 decided the aforesaid issue in favour of the applicant.

7. Learned Counsel would also contend that though the B-Ed degrees obtained by applicants have been decided fake by the UGS in 2002, as the same were obtained from non-recognized universities but the fact that the Ministry of Education once certified the recognition of the university, the de-recognition has to be construed prospectively from 2002 and the degrees obtained in 1987 by the applicants would have to be treated valid in law. Moreover, it is stated that by virtue of their having continued in service for more than 15 years and on acquiring subsequently requisite qualifications, the show cause notice cannot be sustained in law.

8. Lastly, it is stated by Shri Verghese that the applicant as per KVS Code on production of their educational qualification, the same were meticulously and thoroughly examined by the concerned authorities and on full satisfaction of the qualifications, the applicants have been appointed. In this backdrop, it is stated that when no misrepresentation or fraud has been found to have been exercised by the applicants, respondents in the wake of doctrine of principles of legitimate expectation are estopped from taking such view, which is not permissible in law.

9. On the other hand, respondents' counsel opposed the contentions and fairly admitted that there may be negligence on the part of the appellate authority not to have exercised the statutory power within the stipulated time limit, yet it is stated that once the applicants are ineligible for appointment as to their qualifications, which are essential for their appointment, the appointment of the applicants is void ab initio and not even to be declared as such. Accordingly, it is stated that applicants have no right to continue in service. It is also stated that the applicants were properly charge sheeted and it is the appellate authority, which has come to know of the decision of the disciplinary authority only on 9.1.2007. As such, the action is without limitation and the decision of the Apex Court in R.Vishwanatha Pillai v. State of Kerala 10. We have carefully considered the rival contentions of the parties and perused the material on record.

11. In the matter of judicial review, more particularly interference at an interlocutory stage of the disciplinary proceedings, the Apex Court in Divisional Forest Officer v. M.Ramalinga Reddy 2007(9) SCC 286 ruled that when the order has been passed without jurisdiction, the Court has jurisdiction to interfere.

12. The administrative authority when functions as a quasi-judicial authority being a creature of a statute are bound by the rules and also the statute being its creature. If a thing is to be done as prescribed by the rules, no other manner can be adopted, which will not be inconsonance with the law. The Apex Court in Bhavnagar University v.Palitana Sugar Mill (P) Ltd. and Ors.

(42) WE are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.

(43) In Sutherland, Statutory Construction, 3rd edition, vol. 3 at p. 102 the law is stated as follows: ...UNLESS the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the officer.

At p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow noncompliance with the provision. At p. 111 it is stated as follows: AS a corollary of the rule outlined above, the fact that no consequences of noncompliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive.

[See also Crawford on Statutory Construction, Article 269 at p.

535].In Dattatreya v. State of Bombay, GENERALLY speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of status relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.

(45) In Craies on Statute Law VIII edition at page 262, it is stated thus: IT is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.... That is each case you must look to the subjectmatter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.

(46) In the aforementioned backdrop, we may usefully refer to the decision of this Court in The land acquisition officer, city improvement trust board, Bangalore's case (supra) wherein it has been stated: 22. There was some argument on the meaning of the words "so far as they are applicable," used in Section 27 of the Bangalore Act. These words cannot be changed into "in so far as they are specifically mentioned" with regard to the procedure in the Acquisition Act. On the other hand, the obvious intention, in using these words, was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g. Section 16) corresponding with that found in the Acquisition Act (e.g. Section 4 (1)). These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23 (1) of the Acquisition Act. They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act. They amount to laying down the principle that what is not either expressly, or, by a necessary implication, excluded must be applied. It is surprising to find misconstruction of what did not appear to us to be reasonably open to more than one interpretation.

(47) We may at this juncture usefully quote the words of Oliver Wendell Holmes: It is sometimes more important to emphasize the obvious than to elucidate the obscure". (See the interpretation and application of statutes by Reed Dickerson at page 7).

13. It is also trite that being bound by the procedure of a statute, the statutory authority cannot pass an order without jurisdiction, as held by the Apex Court in Devender v. State of Punjab and Ors. 2007(12) SCALE 496. Also held in Damodar Sugar Mills v. State of Uttranchal that a public authority when acts with oblique motive and bad faith and this exercise is not in accordance with law, the same is to be set aside.

14. In the light of above trite law, KVS authorities through a conscious and considered decision under the KVS Code had adopted CCS (CCA) Rules for conduct of disciplinary proceedings against the employees and teachers and also the rules contained therein for appeal, revision and review. Rule 29(5) of the CCS (CCA) Rules, 1965 empowers the appellate authority suo motu to call for the records of the inquiry and pass any order as may deem fit. However, in respect of President, CAG and Member (Personnel) of postal service, there is no time limit in suo motu revising an order of the disciplinary authority, yet for appellate authority, the time limit laid down is within six months from the date the order proposed to be revised as per DOP&T OM dated 30.3.1990. DGPT letter dated 27.7.1972 lays down methodology to reckon the period of revision of six months ruled on the basis of the decision of the High Court that the order proposed to be revised the power of revision shall have to be exercised within a period of six months from the date order to be passed.

15. In the above view of the matter, an admitted stand by the respondents on RTI the appellate authority has come to now about the order passed by the disciplinary authority on 19.1.2007, yet a proposal to suo motu revise the order of the disciplinary authority was taken on publication vide memorandum dated 13.11.2007, which falls beyond six months. Computing the time limit as per the guidelines from the date of original order of the disciplinary, which is 5.9.2006 in both the cases and assuming in law to compute it from the date of the knowledge i.e.

19.1.2007. The memorandum was issued on 13.11.2007, which is beyond six months. As such as the proposal to revise the order by the appellate authority has not been made within the stipulated time limit as prescribed under the rules, the order issued to propose penalty of removal from service is wholly without jurisdiction and cannot be sustained in law.

16. Moreover, another aspect of the matter, which cannot be forgotten is that as per trite law, an appointment of unqualified person is bad in law, yet decision in R.Vishwanatha Pillai's case (supra) has clearly ruled that before such an appointment is terminated, a reasonable opportunity has to be afforded but also it is held as a ratio that when an appointment in service has been acquired by practicing fraud or deceit, such an appointment is no appointment in law. Applying the aforesaid ratio in the present case, this is not a case of the respondents that applicants had practiced any fraud or misrepresentation upon the respondents rather it is ruled that no such misconduct has been committed by the applicant. In the light of the above, R.Vishwanatha Pillai's case (supra) would have no application. A Coordinate Bench at Banglore has taken into consideration the above aspect of the matter with the following observations: There is no doubt in the settled position that Court/Tribunal have no jurisdiction to go into the correctness or truth of the charge.

It is well settled that Tribunal/Court has to see whether the statement of facts and material supplied to the delinquent officer disclose the alleged misconduct. It is the specific case of the Applicant that the Charge Memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer, i.e., Applicant. A perusal of the charge Memo read along with imputation goes to show that the only allegation made is that she "got offer of appointment" on furnishing academic qualification acquired from a "fake University". Neither there is any allegation of 'fraud' or any misrepresentation. Similarly, no Notification/Circular issued by UGC declaring the said Institution as fake University was even relied upon or supplied to the Applicant. The document relied upon is the press note, which too is alleged to have appeared in the Newspaper and not in any authentic Notification/Circular, etc. The Respondents cannot be allowed to read the alleged allegation of misrepresentation emphasized in Memo, dated 7-11-2003 into the Charge Memo, dated 14-10-2003. They also cannot be permitted to amend the same further at this late stage particularly in the facts and circumstances of the present case.

Reliance placed on UGC letter, dated February, 2002 is not sufficient, in as much as the reliance placed on said letter was not accepted by Mumbai Bench of the Tribunal in O.A. No. 572 of 2003.

Our attention was also drawn to Para 34 of Article 59 of Education Code for Kendriya Vidyalaya, which provides that every teacher shall at all times maintain absolute integrity, maintain devotion to duty and do nothing which is unbecoming of an employee of the Sangathan.

Para. 34(b) clarifies that nothing contained in Part (a), noticed hereinabove, shall be deemed to take away or abridge the right of a teacher to appear at any examination to improve his qualifications, etc. When the Code itself empowers a teacher to improve his/her educational qualification, we are unable to comprehend how the Assistant Commissioner, KVS, could place restriction on the said aspect, i.e., denying her permission to obtain required qualification. In our considered view, Shri Phadke, learned Counsel for the Applicant was justified in emphasizing that in view of Article 59, Para. 34(a) and (b) of Education Code, the Respondent No. 2 acted illegally, arbitrarily and with malice in rejecting her request to obtain required qualification with a reasonable period of time vide impugned Memo, dated 7-11-2003, particularly when her application was forwarded by the Principal, KVS, Yelahanka prior to 30-6-2003 and also furnished undertaking to IGNOU, pursuant to its letter, dated 12-9-2003 that the school will provide facility to the Applicant needed for carrying practical work for B.Ed. Course.

When such were the facts, what impelled Respondent No. 2 to reject the Applicant's request to acquire required qualification and that too after almost 2 months time thereafter, remains a mystery besides being unexplained.

We have come across an Order, dated 6-5-2004, passed in O.A. No. 572 of 2003, Smt. Vijaya Laxmi Sinha v. The Commissioner and others, passed by the Mumbai Bench of this Tribunal, wherein, a similar allegation as of the present case was made and charge-sheet, dated 26-4-2003 was issued alleging that the said Applicant got the offer of appointment in KVS by furnishing academic qualifications including professional qualifications acquired from a fake University, i.e., Varanaseya Sanskrit Vishwavidyalaya. After considering the matter in detail, the Mumbai Bench quashed the said Charge-Sheet, dated 26-4-2003 and observed as under: 7. After hearing both the Counsel and going through the facts of the case we are inclined to believe that Varanesaya Sanskrit Vishwa Vidyalaya which awarded the degree of B.Ed. in 1968 to the Applicant was a University duly recognized by UGC and not a fake University.

However, in the letter of Deputy Registrar (Edu.) addressed to the Applicant indicated the date of name change as 16-12-1974. On the other hand in the counter affidavit filed by the Respondent No. 4 and signed by the Under Secretary UGC mentioned that the name of the university was changed in 1978. However, this will not affect the 1968 status of the university.

8. It is very apparent that the disciplinary action against the Applicant was initiated without obtaining requisite information from the UGC that whether the University which awarded the B.Ed Degree to the Applicant in the year 1968 was a genuine one or not. The authorities merely relied on a list of fake Universities which essentially indicates the name of Varanaseya Sanskrit Vishwa Vidyalaya being operated from Jagatpuri, Delhi. After going through the contents of the counter affidavit filed on behalf of UGC, no further evidence is required to hold that the University which awarded the degree to the Applicant in 1968 was genuine one. Thus, the disciplinary proceedings are based on a wrong presumption and, therefore, are not legally sustainable and deserve to be quashed and set aside. We, therefore, direct the Respondent Nos. 1,2,3 and 5 to drop the Disciplinary Proceedings intiated against the Applicant. No order as to costs.

We may note that Smt. Vijaya Laxmi Sinha's name did not appear in the list of 22 officials who as per the Respondents communication, dated 9-1-2003 were in possession of B.Ed. or equivalent degree from fake Universities. The Respondents in their reply have specifically averred that the issue of fake University was raised in Lok Sabha and on information collected from all the regions of KVS reveal that there were 22 teachers working in KVS who obtained B.Ed. or equivalent certificates from such fake Universities. Hence, it was stated that the Competent Authority of KVS decided to proceed against such Teachers and KVS Headquarters issued letter, dated 9-1-2003 to all the Assistant Commissioners of KVS Regional Office.

In our considered view, this statement on the face of it is not supported by facts as noticed herein above and further that the Respondents have taken different and inconsistent stand on the aforesaid aspect.

We have carefully perused the said note portion and are of the considered view that if the allegation of misrepresentation, which was the basic plank of the Respondents in Memorandum dated 7-11-2003, allegedly approved on 28-8-2003, then how such a vital aspect was lost sight and not included in the revised Charge-Sheet, dated 14-10-2003, remains unexplained. Obviously, all these pleas as raised now and the documents produced before us are not convincing.

Further, no explanation is forthcoming as to why the Applicant's reply, dated 21-10-2003 was not examined prior to issuance of Memo, dated 7-11-2003. A perusal of the said file at Pages 100-103 further show that the said reply, dated 21-10-2003 was sent by the Applicant through Speed Post. On perusal of the same, it appears that the same is not the original copy but a photo copy of the same. Moreover, the envelope under which such reply was sent, is not available or record to answer specifically about the date of its receipt in the Respondent office. An article sent by Speed Post in the same city would not take about 28 days for delivery. The cumulative effect of all these aspects lead to one irrefutable and irresistible conclusion that the Respondents have not acted fairly and rather made the attempt to mislead everyone. Further, perusal of Pages 98-99 (note, dated 21-11-2003) shows that after the alleged receipt of the Applicant's reply on 18-11-2003, an attempt was made to amend the Article of Charge as well as Imputation. There is no specific order passed by Respondent No. 2 on the said Note, though it was signed on the even date with the remark "Please issue today itself".

What was approved, when it was issued, all these remain a mystery.

We have carefully considered the judgments cited by Respondents and are of the considered view that none of them is applicable in the facts and circumstances of the present case and are clearly distinguishable. We are also of the view that we as a Co-ordinate Bench are bound by the precedent as noted in Order, dated 6-5-2004 passed in O.A. No. 572 of 2003 by the Mumbai Bench of the Tribunal.

On bestowing our careful consideration, analysis and examination of the entire facts of the case, we are of the considered view that the grounds urged by the Applicant cannot be brushed aside through we are not inclined to deal with the issue of malice and motive in detail, suffice however to record that the accepted methodology of Governmental working being fairness and the same is lacking in its entirety in the matter under consideration. It was not the case of Respondents that the recognition granted to Mahila Gram Vidyapitha Prayag, Allahabad by Ministry of Education vide D.O. Letter, dated 29-9-1965, as noted in the prospectus, was withdrawn, cancelled at later stage. The Respondents action was actuated by mala fides. We further find that there had been factual inaccuracies in the Respondents stand. There had been more than one glaring irregularity committed by the Respondents at every stage of the proceedings, which we have notice in detail hereinabove. The Memo, dated 7-11-2004 was illegal, arbitrary, result of predisposition to decide against the Applicant and vindictive, besides violative of principle of nature justice and fair play.

17. The aforesaid in all fours covers the present issue as well. Though no doubt UGC has come into being in 1956, yet no declaration as to the fake universities had been made prior to 2002 much before that, Ministry of Education, Government of India has acknowledged the authenticity and recognition of the universities from where applicants had acquired B-Ed degree, which ultimately shows that at the time the degree was obtained, the universities were not described as fake and their degrees were recognized for the purposes of employment. However, as one of the applicants had already acquired B-Ed degree and the second one is in process of acquiring it, this issue does not require to be detailed. A Coordinate Bench in Ms. Tajinder Kaur v. Union of India and Ors. OA No. 1327/2005 by an order dated 20.9.2005 decided an identical issue in favour of the applicants, which also covers in all four the present OAs as well.

18. In the result, for the foregoing reasons, OAs are allowed.

Memoranda in both the OAs are set aside. Consequences to follow in law.

No costs.