Court No. - 39
Case :- WRIT - C No. - 17374 of 2019 Petitioner :- Sudha Pandey Respondent :- Secretary, Ministry Of Human Resource Development And 5 Others Counsel for Petitioner :- Sushil Kumar Shukla Counsel for Respondent :- A.S.G.I.,Neeraj Tripathi,Ramesh Chandra Pandey,Ved Byas Mishra,Vinod Kumar Shukla
Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.
Heard Sri Sushil Kumar Shukla, learned counsel for the petitioner, Sri Ved Byas Mishra, learned counsel for respondent no. 4 and Sri Vinod Kumar Upadhyay, learned Senior Advocate assisted by Sri K.R.S. Jadaun, learned counsel for respondent no. 5.
Sri V.K. Shukla has accepted notice on behalf of respondent no.
2. Sri R.C. Pandey, learned Central Government Counsel has accepted notice on behalf of respondent no. 1. Sri Laxmikant Tripathi has accepted notice on behalf of respondent no. 3.
The petitioner in the writ petition is seeking a direction to the respondents no. 4 & 5 to hold an enquiry under Regulation 2018 on the allegations that the respondent no. 6 was granted the Ph.D degree by the respondent no. 5 on the thesis which was originally written by the petitioner and therefore, the thesis submitted by the respondent no. 6 has been plagiarised by the respondent no. 6.
We find that the petitioner has not made any complaint to the Vice Chancellor, Banaras Hindu University, Varanasi, respondent no. 5. No such complaint has been filed along with the writ petition. The complaint which has been filed as annexure-3 to the writ petition, has been preferred to the Vice Chancellor, Sampurnanand Sanskrit University, Varanasi, respondent no. 4. If the degree has been granted by the Banaras Hindu University then the enquiry into the complaint of plagiarism has to be conducted by the respondent no. 5. However, since there is no complaint before the Banaras Hindu University and Sri Vinod Kumar Upadhyay, learned Senior Advocate also states that no complaint has been preferred by the petitioner, we can not issue mandamus to the respondent to hold enquiry. Without approaching the authorities first, the petitioner cannot approach this Court directly seeking a writ in the nature of mandamus.
This writ petition is, therefore, not maintainable in view of the decisions in the case of Saraswati Industrial Syndicate Ltd. Vs. Union of India reported in AIR 1975 SC 460 and the Supreme Court has in paragraph 24 held as under:
"24. As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. The powers of the High Court under the Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognized rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applied in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied for us, as it is in England, when a writ of Mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England.
As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal."
Similarly, In the case of Amrit Lal Berry vs. Collector, C.E.C.Revenue reported in AIR 1975 Supreme Court 538 in which the Supreme Court in paragraph 25 has held as under:-
"25. In the petition of K.N.Kapur and others, we do not even find an assertion that any representation was made against any violation of a petitioner's right. Hence, the rule recognized by this Court in Kamini Kumar Das v. State of West Bengal, AIR 1972 SC 2060 at p.2065 that a demand for justice and its refusal must precede the filing of a petition asking for direction or Writ of Mandamus, would also operate against the petitioners."
In view of the above, the writ petition is dismissed as not maintainable. The petitioner may approach the respondents first before approaching the Court.
Civil Misc. Amendment Application no. of 2019 is taken up.
Learned counsel for the petitioner states that the representation of the petitioner to the Vice Chancellor, Banaras Hindu University, Varanasi has been filed at page 197-198 of the affidavit in support of the amendment application.
In the affidavit filed in support of the amendment application there is no averment that any such representation has been made to the Vice Chancellor, Banaras Hindu University, Varanasi.
Learned counsel for the petitioner states that the complaint of the petitioner dated 9.7.2013 has been endorsed by the office of the Banaras Hindu University. The endorsement at page 197 of the affidavit does not contain any seal of the Banaras Hindu University.
Since the writ petition has been dismissed this amendment application is also rejected. However, if the petitioner has any grievance she is at liberty to submit her complaint before the Vice Chancellor, Banaras Hindu University, Varanasi.
Order Date :- 30.5.2019 nd