Karnataka High Court
Dr K R Venugopal S/O Kuppanna vs Bangalore University Jnana Bharathi on 21 June, 2013
Bench: K.L.Manjunath, L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
WRIT APPEAL NO.111/2009 C/W 295/2009 (S.PRO)
IN W.A.NO.111/2009
BETWEEN:
DR. K.R.VENUGOPAL
S/O KUPPANNA
AGED ABOUT 53 YYEARS
NO.109, 4TH MAIN
12TH CROSS
HAL 3RD STAGE
BANGALORE. ...APPELLANT
(BY SRI K.SACHINDRA KARANTH, ADV.,)
AND:
1.BANGALORE UNIVERSITY
JNANA BHARATHI
BANGALORE-560056.
BY ITS REGISTRAR
2.K.S.GURUMURTHY
S/O LATE SATHYANARAYANA RAO
AGED ABOUT 57 YEARS
367, 3RD A MAIN ROAD
2
1ST STAGE, II BLOCK
H.B.R. LAYOUT, THOMAS TOWN
BANGALORE-560084.
3.STATE OF KARNATAKA
DEPARTMENT OF HIGHER EDUCATION
REPRESENTED BY THE SECRETARY FOR
THE DEPARTMETN OF HIGHER EDUCATION
VIDHANA SOUDHA
BANGALORE-560001. ... RESPONDENTS
(BY SRI D.VIJAY KUMAR, AGA FOR R2,
SRI M.R.NAIK, SR. ADV., FOR R3
SRI B.M.ARUN, ADV., FOR R1,)
IN W.A.NO.295/2009
BETWEEN:
BANGALORE UNIVERSITY
JNANA BHARATHI
BANGALORE-560056. ...APPELLANT
REP. BY ITS REGISTRAR
(SRI D.N.NANJUNDA REDDY, SR. ADV., FOR
SRI T.P. RAJENDRA KUMAR SUNGAY)
AND
1.GURUMURTHY K S
S/O LATE SATHYANARAYANA RAO
AGED ABOUT 57 YEARS
OCCUPATION: PROFESSOR
DEPARTMENT OF ELECTRONICS
UNIVERSITY VISHVESWARAIAH COLLEGE
OF ENGINEERING
K.R.CIRCLE
BANGALORE-560001.
3
2.STATE OF KARNATAKA
DEPARTMENT OF HIGHER EDUCATION
M.S.BUILDING
BANGALORE-560001.
3.DR. K.R.VENUGOPAL
S/O KUPPANNA
AGED ABOUT 53 YEARS
PROFESSOR
DEPARTMENT OF COMPUTER SCIENCE
AND ENGINEERING
UNIVERSITY VISHVESWARAIAH
COLLEGE OF ENGINEERING
K.R.CIRCLE
BANGALORE-560001. ... RESPONDENTS
(BY SRI D.VIJAY KUMAR, AGA FOR R2,
SRI M.R.NAIK, SR. ADV., FOR R3
SRI B.M.ARUN, ADV., FOR R1,)
***
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
NO.43097/2002 DATED 05/01/2009.
THESE APPEALS COMING ON FOR HEARING,
THIS DAY, MANJUNATH J, DELIVERED THE
FOLLOWING:
JUDGMENT
The legality and correctness of the Order passed by the Learned Single Judge in W.P.No.43097/2002 dated 05/01/2009 is called in question in these appeals.
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2. The Writ Appeal 111/2009 is filed by the appellant K.R.Venugopal, who was respondent No.3 in the writ petition. W.A.No.295/2005 is filed by the Bangalore University respondent No.1 in the writ petition. In Order to appreciate the case of the parties, the parties would be referred as per the status before the Learned Single Judge.
3. The petitioner Gurumurthy filed the writ petition requesting the Court to quash the Order of the Bangalore University dated 02/01/2002 Annexure-A promoting and appointing the third respondent as Professor as illegal and direct the University to make promotion to the post of Professor by following the procedure contemplated under Sec.54 of the New Act. Prior to filing of this writ petition, the very same petitioner had filed a writ petition in W.P.No.36045/2001 requesting the Court to quash the process of selection to the post of professor in the department of Electronics and Computer Science 5 Engineering, University Visvesvaraya Engineering College, Bangalore-1 and to fill up the vacancies to the post of Professor in the Department of Electronics and Computer engineering in accordance with the Karnataka State University Act, 2000.
4. Before adverting to the facts in the writ petition, the undisputed facts in these appeals are as hereunder:
In the university college of engineering there was only one branch known as Department of Electrical concerning the three branches viz., Electrical, Electronics and Computer Science and the Department of Electrical, Electronics and Computer Science were not divided into separate three branches. All the three branches were housed under one department known as Electrical department. The writ petitioner Gurumurthy was appointed as a lecturer in electronics in the college on 24-2-1983 and similarly the respondent K.R.Venugopal was also appointed as a lecturer in electronics. Venugopal was appointed along with others 6 subject to a condition that they shall obtain M.tech/M.E. degree within five years from the date of their appointment failing which they would not earn future increment; until they acquire the prescribed qualification. It is clear that Venugopal had not possessed Post Graduation degree when he was appointed as a lecturer in electronics. It appears, later he has acquired Post Graduation degree in Computer Science.
5. The department of electrical was later bifurcated into a department of electrical, electronics and computer science. On account of bifurcation, the writ petitioner Gurumurthy and Venugopal were together working as lecturers in the electronics. Later, Gurumurthy the writ petitioner was promoted as a reader in electronics with effect from 1-12-1997 and similarly Venugopal was promoted as reader in Computer Science with effect from 17-11-1995. It is not in dispute that when respondent Venugopal was promoted as Reader in computer science his promotion 7 was questioned by the writ petitioner Gurumurthy in W.P.No.28860 and 28861/1995. The said writ petitions came to be allowed by the order of the learned Single Judge dated 27-2-2002. Against which two appeals were filed by the University as well as Venugopal in W.A.2882-83 and 2575-76/2002. The aforesaid appeals were heard together by a co-ordinate bench of this Court on 11th March 2003 and the writ appeals filed by the Bangalore University and Venugopal came to be dismissed by confirming the order of the learned Single Judge against which Venugopal took up the matter before the Hon'ble Supreme Court in SLP 7066-67/2003 and the same were converted into Civil Appeals 178- 179/2005 which appeals came to be allowed and the order of the Division Bench and the learned Single Judge were set aside and consequently the promotion of Venugopal came to be confirmed.
6. Aggrieved by the order of the Hon'ble Supreme Court allowing the civil appeals, the writ petitioner Gurumurthy also filed review petitions in 8 R.P.No.1735-1736/2010 before the Hon'ble Supreme Court which review petition also came to be dismissed on 19-10-2010. Thus, it is clear the order of promotion of the respondent Venugopal as reader in computer science has become final.
7. The actual dispute in the present litigation commenced when the University processed the paper of Venugopal to fill up the post of professor in computer science. At that juncture Gurumurthy filed the earlier writ petition on the ground that the post of professor in the University shall be made by way of direct recruitment by constituting a Board of appointment under Sec.53 of the Karnataka University Act, 2001 and so far as the promotion to the higher cadre the same shall be done in accordance with the scheme evolved by the D.G.Cor All India Committee for Technical Education under Section 51 of the Act and contended that the University is making hectic efforts to appoint respondent No.2. W.P.36045/2001 came to be filed to quash the process of promotion to the post of 9 professor in the department of electronics and computer science engineering. The writ petition came to be rejected on the ground that the writ petition was premature without considering whether process of filling up the post of professor in computer science was in accordance with rules of the University or not. Thereafter the University has promoted Venugopal as professor by virtue of Annexure-A to the writ petition dated 02/01/2002. This Order is called in question in the writ petition contending that the appointment of third respondent as professor is illegal and to make promotion to the post of professor by following the procedure contemplated in Sec. 54 of the Act.
8. The University and Venugopal contended that the writ petition is not maintainable because the petitioner is not entitled for the relief as the petitioner is no way concerned with the promotion to the post of professor in computer science since the writ petitioner is working as a reader in electronics and not in computer science. It was also contended that the post 10 of professor has to be filled up by giving promotion based on seniority cum merit from among the eligible readers. According to them, Venugopal alone was eligible to be promoted as a professor in computer science since he has fulfilled all the eligible criteria. According to them, he is a Ph.D. holder in computer science and he has put in service as a Reader of minimum of five years. Since he was eligible, his case for promotion was considered. Accordingly he has been promoted. The petitioner who is no way concerned with the computer science cannot maintain the petition and he cannot be considered as an eligible person.
9. The learned Single Judge after hearing the parties came to the conclusion that Venugopal was promoted as a professor by an Order dated 2-1-2002 in violation of Sec.54 of the Act and there was no statute and that Gurumurthy has locus standi to challenge the Order of promotion of Venugopal. Accordingly, he allowed the writ petition quashing the promotion given to Venugopal and directed the University to fill up the 11 post of professor by following the procedure contemplated under Sec.54 of the Act. This order is called in question in these appeals.
10. We have heard Mr.Nanjunda Reddy, learned Senior Counsel for the appellant- University, Mr. M.R.Naik, learned Senior Counsel appearing for Venugopal and Mr.Arun, learned counsel appearing for the respondent herein.
11. The main contention of the learned counsel for the University and the promotee is that the learned Single Judge did not consider the maintainability of the writ petition. According to them, respondent has no locus standi to maintain the writ petition as he cannot be considered as an aggrieved person. Relying upon the decision of the Hon'ble Supreme Court in Civil Appeals filed by Venugopal in C.A.Nos.178 and 179/2005 the Hon'ble Supreme Court has clearly held that the promotion to the post of Reader in the department of Computer Science promoting Venugopal has been 12 confirmed and therefore when once the order of appointment of Venugopal as Reader in Computer Science has been confirmed by the Hon'ble Supreme Court when he had pre-requisite eligibility criteria to be promoted to the post of professor in computer science the writ petitioner Gurumurthy having lost the case in the earlier round of litigation when Venugopal was promoted as a reader in computer science he could not have maintained the writ petition as he cannot be considered as an aggrieved person. They also relied upon the observations made by the Hon'ble Supreme Court in the aforesaid civil appeals stating that Gurumurthy had no locus standi to challenge the appointment of Venugopal when he was promoted as a reader in computer science.
12. According to them, as per AICTE norms the post of Professor in computer science is required to be filled up only by way of promotion and not by way of advertisement inviting the application from others. 13
13. According to them, in view of sub.sec.9 of sec.49 of the Act if a vacancy had arisen then the said vacancy has to be filled up only by way of promotion as per the statute. He also contend that the learned Single Judge did not consider the statute which was in force and the promotion of Venugopal was well within the statute of University Act. According to them, with a malafide intention, the respondent has filed the writ petition. They further submit that the writ petitioner Gurumurthy has attained the age of superannuation and has retired from service and that he was also promoted as a professor in electronics with effect from 9-8-2008 and that the writ petition was required to be dismissed.
14. Per contra, Mr. Arun, learned counsel appearing for the respondent submits that none of the contentions raised by the learned Senior counsel appearing for the parties are tenable. According to him, he being a professor in the Department of Electronics and computer science he is entitled to question the 14 promotion of Venugopal since his promotion has adversely affected his seniority. According to him, the observations made by the Hon'ble Supreme Court in Civil appeals that respondent had no locus standi to maintain the writ petition is not tenable.
15. Mr.Arun, leaned counsel for the respondent relying upon the judgment of the Hon'ble Supreme Court in the case of State of Orissa and another -vs- Mamata Mohanty reported in (2011) 3 SCC 436, contends that unless a teacher possess a good academic record with minimum prescribed qualification for eligibility, is not entitled for appointment or promotion. Taking us through various paragraphs of the aforesaid judgment, he contends that in the instant case, Venugopal had not possessed required qualification and therefore, he could not have been promoted as Professor in Computer Science. He also relied upon the judgment of (2010) 10 SCC 63 {M.S.Patil (DR.) -vs- Gulbarga University and others} and contends that when a person did not possess the required qualification, he cannot be 15 allowed to continue in the said post and therefore, he request this Court to dismiss the appeals.
16. Having heard the counsel for the parties, we have to consider the following two points in these appeals:
1) Whether the Respondent Gurumurthy can be considered as an aggrieved person?
2) Whether Venugopal did not possess the required prescribed qualification in order to consider his promotion to the post of Professor in Computer Science?
3) Whether the promotion of Venugopal as Professor in Computer Science is contrary to the Statute?
17. So far as the first point is concerned, Gurumurthy has not filed the petition as a public interest litigation challenging the procedure followed by the University which is contrary to the statute. His 16 main grievance is that Venugopal was not eligible for promotion and that he was to be promoted as Professor in the Department of Telecommunications. Therefore, what is to be considered is whether Venugopal had requisite qualification for promotion in order to promote him to the post of Professor in Computer Science by ignoring the seniority of Gurumurthy and in such circumstances, whether Guru Murthy can file a writ petition challenging the promotion of Venugopal.
18. Admittedly, at an undisputed point of time, there was only one Department known as Electrical Department where the Electronics and Computer Science were also housed in the same Department. Later, the Department of Electrical was divided and separated as Electrical Department and Electronics and Computer Science. It is also not in dispute that Gurumurthy and Venugopal were together working, though appointed on different dates as Lecturers in the Department of Electronics and Computer Science. It is also not in dispute that considering the qualification 17 acquired by Venugopal, he was promoted as Reader in the Department of Computer Science Section. From there onwards, the faculty of Gurumurthy and faculty of Venugopal were got separated and their seniority has to be reckoned considering their Department separately.
19. Gurumurthy had challenged the order of promotion of Venugopal promoting him as Reader in the Department of Computer Science and the promotion given to Venugopal as Reader in Computer Science has been upheld by the Hon'ble Supreme Court .
20. When the appointment of Venugopal as Reader in the Computer Science has attained finality, the next question would be, if a post of Professor in Computer Science has become vacant or created whether Gurumurthy can be considered as an aggrieved person if the case of Venugopal is promoted as Professor in Computer Science. According to us, Gurumurthy cannot have any say in the matter if Venugopal's case has to be considered for the post of Professor in 18 Computer Science because Guru Murthy was in the Department of Electronics and Communications.
21. It is not the case of Gurumurthy that Dr.Venugopal do not possess the required qualification to consider his case for promotion as Professor in Computer Science. Admittedly, he possess a masters degree and doctorate in Computer Science and he possess required experience in different capacity, viz., Lecturer/Reader in order to consider his case for promotion. In the circumstances, either the judgment of the Hon'ble Supreme Court in the State of Orissa and another -vs- Mamath Mohanty or the case of M.S.Patil - vs- Gulbarga University have no application because the Hon'ble Supreme Court while dealing with those matters had an occasion to consider whether a particular candidate was eligible for a particular post or not and whether he had requisite qualification. But, such an occasion has not arisen in this case. Therefore, we are of the view that if Venugopal has been promoted as Professor in Computer Science, writ petitioner 19 Gurumurthy being a Reader / Professor in the Department of Electronics Communications cannot be considered as an aggrieved person to question the promotion of Venugopal. Be that as it may. the main contention of Mr.Gurumurthy is that the promotion of Venugopal is contrary to the statutes and therefore, when Section 54 of Karnataka State University Act, 2000 was not in force and when Section 49 of the old Act had been repealed, case of Venugopal could not have been considered for promotion to the post of Professor. So far as this point is concerned, admittedly, Gurumurthy had filed earlier writ petition in W.P.No.36045/2001. The very same question had raised by him. The said writ petition came to be rejected on 24.09.2001 stating that such a contention cannot be permitted to be allowed and permission is granted to challenge the selection if the same is made without following the rules and the learned single Judge, while dismissing the petition has clearly stated 20 that only an aggrieved person can alone maintain the writ petition.
It would be relevant for us to quote the order of the learned Single Judge while dismissing the writ petition of Gurumurthy in W.P.No.36054/2001.
"It is not known whether the University would select a person to the post of Professor contrary to the rules at this stage. If really if any selection is made without following the rules, then it is open for the aggrieved person to challenge the same (emphasis supplied by us). Therefore, at this stage, on apprehension, no writ could be issued, Hence, the following order:
Writ petition is rejected."
From looking into the order of the learned Single Judge passed in W.P.No.36054/2001, the writ petition filed by Gurumurthy has been dismissed permitting the aggrieved person to challenge if any promotion is given to a Professor contrary to the Rules. In view of the aforesaid order of the learned Single Judge as we have already held that the petitioner Gurumurthy cannot be considered as an aggrieved person because he cannot 21 be a contender to the post of Professor in Computer Science as he was working as Reader in the Department of electronics. In the circumstances, we are of the opinion that there is no necessity for us to hold that Gurumuthy cannot contend that the promotion of Venugopal as Professor in computer science is contrary to Sec.49(2) of the old Act or Sec.54 of the New Act. It is also not the case of Gurumurthy that there were other eligible candidates in the department of computer science to give promotion as professor in computer science. On perusal of the records maintained by the Bangalore University it is revealed to us that no other eligible persons were there for promotion to the post of computer science other than Venugopal. So in this view of the matter, we are of the view that the learned Single Judge without considering the maintainability of the writ petition by the writ petitioner though he is not an aggrieved person and without considering that Venugopal had requisite qualification for promotion to the post of professor in computer science has set aside 22 the selection which according to us the learned Single Judge has committed an error and that there is no necessity for this Court to interfere with the same.
In the result, the writ appeals are allowed. The order passed by the learned Single Judge in Writ Petition No.43097/2002 dated 5th January 2009 is hereby set aside. The writ petition filed by Gurumurthy stands dismissed. Parties to bear their costs.
Sd/-
JUDGE Sd/-
JUDGE NT/DH/-