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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. ] Petitioner
Vs.
1.
The Council of Architecture]
India Habitant Centre, ]
Core 6-A, Lodhi Road, ]
New Delhi 110 003. ]
]
2. Vinod Kumar, ]
Council of Secretary, ]
Council of Architecture, ]
Indian Inhabitant, ]
Core 6-A, 1st Floor, ]
Lodhi Road, ]
New Delhi 110003 ]
]
3. Prakash Shewale, ]
212 Millan Industrial ]
Estate, Abhyuday Nagar, ]
Kala Chowky, Mumbai ... Respondents
Mr. A. V. Anturkar with S. B. Deshmukh, for the Petitioner.
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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
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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
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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.
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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
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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, whichI believe is against the proper procedure of
completing Ph.D. work, which is the normal
practice, followed in all the universities. Itappears that in order to grab the position of
Principal in the J.J. College of Architecture,
he has fraudulently & dishonestly submitted hisonline 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 unethicalpractices & his procuring a fraudulent degree &
submitting the same in University of Bombay
by posing himself to be possessingqualification 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
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qualified Principal in Sir J.J. College of
Architecture. Further it has come to my noticethat 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
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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.
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11. Regulations have been framed by the Council of
Architecture and are, known as “the Architects 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
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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
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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
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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
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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
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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-
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"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 recommendto the Vice Chancellor. Under Section 78
of the Maharashtra Universities Act, 1994
that the following candidate who issuitable 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.
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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, willrender 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 theregister or pass such other order as it thinks fit.”
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. 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
ig the case of respondent Nos. 1 and 2
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
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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,
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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
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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,
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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
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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
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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.
Sd/- Sd/-
[ A. A. KUMBHAKONI, J.] [ F.I. REBELLO, J.]
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