Karnataka High Court
Dr K M Mahadevan vs State Of Karnataka on 18 June, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
-1-
NC: 2024:KHC:21661
WP No. 8413 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 8413 OF 2024 [S-TR]
BETWEEN:
DR K M MAHADEVAN
S/O MARISWAMY,
AGED ABOUT 51 YEARS,
WORKING AS REGISTRAR [EVALUATION],
UNIVERSITY OF MYSORE
MYSURU 560005.
RESIDING AT NO 132/133
M FOUR, MYSORE BANNUR MAIN ROAD,
VAJAMANGALA,
SRI.RANGA LAYOUT,
BUGATAHALLI,
MYSURU 570028.
...PETITIONER
[BY SRI. VAISHALI HEGDE., ADVOCATE]
Digitally
signed by AND:
ANAND N
Location:
HIGH
COURT OF 1. STATE OF KARNATAKA
KARNATAKA
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT,
DEPARTMENT OF HIGHER EDUCATION,
M S BUILDING,
BENGALURU 560001.
-2-
NC: 2024:KHC:21661
WP No. 8413 of 2024
2. UNIVERSITY OF MYSORE
CRAWFORD HALL
VISHWAVIDYANILAYA,
KARYA SOUDH,
MYSURU 560005
REPRESENTED BY ITS REGISTRAR.
3. DR BASAPPA
CHAIRMAN,
DEPARTMENTOF STUDIES
IN ORGANIC CHEMISTRY,
UNIVERSITYOF MYSORE,
MANASAGANGOTHRI,
MYSURU 560006.
...RESPONDENTS
[BY SRI.REUBEN JACOB., AAG ALONG WITH
SRI. PRINCE ISAC, AGA FOR R1;
SRI. T.P. RAJENDRA KUMAR SUNGAY, ADVOCATE
FOR R2;
SRI. DILIP KUMAR ADVOCATE FOR C/R3]
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE NOTIFICATION DATED 15/03/2024 BEARING NO.
ED 520 UBV 2023 PASSED BY THE R1 VIDE
ANNEXURE-A AND GRANT ALL CONSEQUENTIAL
BENEFITS THERETO.
THIS PETITION, COMING ON FOR FINAL
DISPOSAL, THIS DAY, THE COURT MADE THE
FOLLOWING:
-3-
NC: 2024:KHC:21661
WP No. 8413 of 2024
ORDER
The petitioner, who is appointed as Registrar [Evaluation] with the second respondent on 28.03.2023, is aggrieved by the first respondent's Notification dated 15.03.2024 [Annexure-A]. The first respondent - the State Government by this impugned Notification dated 15.03.2024 has appointed the third respondent as the Registrar [Evaluation] with the second respondent in the place of the petitioner and has placed the petitioner's services with the parent university [Kuvempu University]. It remains undisputed that the third respondent has assumed charge and is functioning as the Registrar [Evaluation] pursuant to this Notification dated 15.03.2024.
2. This Court has not granted interim order, but the petitioner has filed IA.2/2024 for direction to the respondents to reinstate the petitioner holding the third respondent as ineligible to hold the post of Registrar [Evaluation]. With -4- NC: 2024:KHC:21661 WP No. 8413 of 2024 pleadings being complete and upon informing the other counsels for the parties that the petition would be taken up for final disposal, Ms. Vaishali Hegde, the learned counsel for the petitioner, is heard at the first instance on 30.05.2024. This Court has recorded the learned Counsel's submissions in support of the petition in the following terms1:
[a] The petitioner is indeed appointed on 28.03.2023 as a Registrar [Evaluation] until further orders, but on 15.03.2024, the eve of the Election Code of Conduct Regime, the impugned Notification is issued reverting the petitioner and appointing the third respondent. This appointment is only at the behest of the Hon'ble Chief Minister and the third respondent is not duly qualified even according to the notice by the State Government.
B] As held by this Court in Dr. K. Janardhanam v. State of Karnataka and Others [[2020] 3 AIR Kant R 800], 1 This Court must observe that certain typographical error in the proceedings dated 30.05.2024 are corrected while incorporating the submissions in this order.-5-
NC: 2024:KHC:21661 WP No. 8413 of 2024 the usage of the term 'until further orders' in the orders of appointment cannot be construed as giving a carta blanche to the Government to do what reason and justice will not approve and that the mere mentioning in the order that is in public and administrative interest would not suffice unless strong circumstances are brought on record to justify, to pass muster in judicial review, to demonstrate that indeed the decision is to sub serve the public and administrative interest. c] The provisions of Section 18[1] of the Karnataka State Universities Act, 2000 must necessarily be construed as enabling only a senior faculty member of any university to be appointed and the third respondent, who admittedly working as an Assistant Professor from the month of October 2022, would not be such a senior member when 58 professors are working with the University.
3. Ms. Vaishali Hegde, the learned counsel for the petitioner, reiterates these grounds. Mr. Dilip Kumar, the learned counsel for the third -6- NC: 2024:KHC:21661 WP No. 8413 of 2024 respondent, and Mr. Reuben Jacob, Additional Advocate General, point out that the third respondent was working not as an Assistant Professor as recorded by this Court but as an Associate Professor, and Mr. Dilip Kumar and Mr. Reuben Jacob are heard in the light of the afore submissions, and they at the first refute the third of the afore grounds.
4. Mr. Reuben Jacob and Mr. Dilip Kumar contend that the provisions of Section 18[1] of the Karnataka State Universities Act, 2000 [for short, the Act] only stipulate that the Government may either appoint an officer of the Karnataka Administrative Service not below the rank of Group-A or a Senior Member of Faculty of any University to be the Registrar [Evaluation] of the given university. They argue that if the State chooses to appoint a member of faculty, the question whether such person could be called a Senior Member of Faculty must necessarily be considered in the light of the -7- NC: 2024:KHC:21661 WP No. 8413 of 2024 provisions of Section 34[9] of the Act. They argue that this Court, upon a conjoint reading of Section 18[1] and 34[9] of the Act, must opine that any senior member of a faculty as envisaged under Section 34[9] of the Act will be a Senior Member of Faculty as contemplated under Section 18[1] of the Act. They contend that the third respondent is construed a Senior Member of Faculty as he is appointed as Chairman of the Department of Organic Chemistry
5. Mr. Reuben Jacob and Mr. Dilip Kumar, as regards the second contention, assert that the appointment of Registrar [Evaluation] under Section 18 of the Act need not be for any term, and this indicates that it would be within the State Government's power, in exercise of its power under the doctrine of pleasure, to remove an incumbent and if such power is exercised reasonably there cannot be any interference by the Courts.
-8-
NC: 2024:KHC:21661 WP No. 8413 of 2024
6. Mr. Reuben Jacob elaborates contending as follows:
[a] that the exercise of power under the doctrine of pleasure must be examined in the light of the different reasons that could be relevant to take a decision by a Government in that regard, and the learned Additional Advocate General contends that in certain cases, it could be that the Government for reasons that could be characterized as stigmatic could remove an incumbent, but the Government, instead of resorting to a detailed procedure which will be inevitable in such situation, exercise powers under the doctrine of pleasure.-9-
NC: 2024:KHC:21661 WP No. 8413 of 2024 [b] that the reason for doctrine of pleasure is essentially rooted in this premise, and therefore, as is held by the apex Court in Krishna, son of Bulaji Borate vs State Of Maharashtra And others2 the Courts must examine the merits of a decision taken in exercise of the powers under the doctrine of pleasure with appropriate leeway to the Government.
7. Mr. Dilip Kumar submits that the scope of judicial review is limited to verifying whether a decision taken to remove an incumbent in exercise of the power under the doctrine of pleasure is unreasonable, and only if the decision is unreasonable, there could be judicial intervention. The learned counsel argues that this Court must 2 [2001]2 SCC 441
- 10 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 make a distinction in the present case and not apply the proposition Dr. K. Janardhanam supra because in that case it could be demonstrated that the Court was influenced by the fact that the petitioner therein was removed without any other person being appointed in his place.
8. On the petitioner's contention that the decision to remove him and appoint the third respondent in his place on the eve of Election Code of Conduct regime, both Mr. Reuben Jacob and Mr. Dilip Kumar submit that the process is begun with a Note by the Hon'ble Chief Minister, but the decision is taken after inviting comments from the Hon'ble Vice Chancellor and considering his remarks as also the fact that the petitioner himself is appointed when there are 58 professors with the second respondent.
9. In rejoinder, Ms. Vaishali Hegde submits that neither Mr. Dilip Kumar nor Mr. Reuben Jacob can contest that the Vice Chancellor
- 11 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 has opined that the third respondent, though an Assistant Professor, is appointed as Chairman of the Department of Organic Chemistry only because the post of Professor in the department is not filled up and the relevant Statute provides for appointment of a Chairman to the Department of Studies on rotation and this cannot be the basis for deciding the seniority of the third respondent for the purposes of Section 18[1] of the Act.
10. Further, Ms. Vaishali Hegde emphasizes that the respondents are not able to place on record any circumstance that would justify the decision taken by the impugned Notification dated 15.03.2024 to replace the petitioner with the third respondent on the eve of Election Code of Conduct regime which was scheduled to commence on 16.03.2024, and that this circumstance, amongst others, must vitiate the decision to appoint the third
- 12 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 respondent in favour of the petitioner even on the scale of an unreasonable decision.
11. In the light of these rival submissions, the questions for consideration must be:
[a] Whether this Court must opine that the first respondent's impugned decision to replace the petitioner with the third respondent is an unreasonable decision because the respondents have failed to establish that it is in public or administrative interest.
[b] Whether this Court must opine that the third respondent was eligible to be appointed as the Registrar [Evaluation] only because he is appointed as the Chairman of the Department of Organic Chemistry without considering there are over 58 professors with the second respondent.
- 13 -
NC: 2024:KHC:21661 WP No. 8413 of 2024
12. This Court must observe that the rival submissions leading to the first question must be examined in the light of this Court's decision in Dr. K. Janardhanam supra. There cannot be any dispute that there are strong similarities in the present case and in the case on hand and in Dr. K. Janardhanam. In both these cases, the Government has removed the incumbent within a year in exercise of powers under the doctrine of pleasure. This Court, while deciding on the limits of the powers that could be under the doctrine of pleasure, in the aforesaid decision has explicated as follows:
"[j] There is a lot of force in the submission of the learned counsel for the petitioner that, regardless of its power of appointment & removal, the government cannot treat the university as it's department and its statutory authorities, as its own civil servants; a contention to the contrary undermines the essential autonomy enacted in favour of the universities; the
- 14 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 decisions relied upon by the learned AGA namely Ratilal B Sony Vs. State of Gujarat, 1990 Supl. SCC 243 and Kunal Nanda Vs. UOI, [2005] 5 SCC 362, do not come to the rescue of respondents; apparently, they did not involve displacement of high statutory functionaries like the petitioner; what norms ordinarily apply to the transfer & posting of civil servants does not ipso facto apply to the appointment & removal of university functionaries; case of the petitioner is not one of transfer & posting of ordinary civil servants in the routine administration; it involves a matter far serious, by its very nature; these Rulings were rendered in a fact matrix that was miles away from the one in this petition.
[k] Here is, a case of abrupt & unceremonious removal of a prominent university functionary in less than a year of appointment, allegedly 'in the public and administrative interest'; to substantiate this assertion, as already mentioned above, neither the File is produced nor the circumstances are pointed out which vouch the employment of these high sounding words; it is not the requirement of petitioner's services for teaching or that his
- 15 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 continuation was not conducive to the administration of university affairs; nor his removal is founded on any allegations; thus, the expression 'in the public and administrative interest' which is mechanically pasted almost invariably in the Government Orders of the kind now a days, cannot be chanted like a vedic mantra for pre-empting their challenge; what a Co-ordinate Bench of this court had observed in its judgment dated 19.06.2017 in W.P.No.24645/2017 between Dr.R. Rajanna Vs. State of Karnataka, which the AGA pressed into service does not save the impugned action from invalidation, these observations having been made in different circumstances of the case and no law having been laid down, after examining the provisions of the Act."
13. This Court must observe that neither Mr. Reuben Jacob nor Mr. Dilip Kumar contests the afore propositions, and in fact, no material is placed for this Court to opine that it can be in disagreement with the afore propositions. The fall out of these explications are that [a] the norms that ordinarily
- 16 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 apply to transfer and posting of civil servants cannot ipso facto be applied to the appointment and removal of university functionaries and the appointment of university functionaries are not routine matters, [b] when there is an abrupt or any unceremonious removal of the university functionary within a short time, the expression 'in the public and administrative interest' cannot be employed as high sounding words to prevent challenge to the exercise of such power and some material must be brought on record to justify the decision when there is a challenge to the same.
14. The relevant Office Notes in Nos. 6814677/2023 and 6910890/2023 are placed on record to justify that the petitioner's replacement with the third respondent. As such, this Court must observe that in the present case it cannot be opined that the first respondent has not placed on record the necessary material. However, these notes are
- 17 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 examined with the assistance of Mr. Reuben Jacob and other learned counsels to arrive at a just decision. At the first instance, as seen in the Note No.1 in File No. 6814677/2023, the proceedings are commenced with a note from the Chief Minister for the appointment of the third respondent as Registrar [Evaluation] with the second respondent or with the Karnataka State Open University.
15. The Vice Chancellor, in response to the communication for his opinion on whether the third respondent, the Chairman of a Department of Studies could be considered a Senior Member of a Faculty of the university, has opined that the Chairman of a Department of Studies is appointed for a period of two years on rotation; that the third respondent is appointed as the Chairman of the Department of Organic Chemistry because the post of Professor is not occupied; that the third respondent, who is promoted with effect from 06.10.2022 as
- 18 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 Associate Professor and appointed as the Chairman of the Department of Organic Chemistry, cannot be considered as a senior faculty member.
16. This file in No. 6814677/2023 is closed on 29.02.2024 [as could be seen from Note No.33] but is reopened again on 13.03.2024 with a note from the Hon'ble Chief Minister and concluding in the observation that the outcome must await the decision in another file which is a reference to the file in No.6910890/2023. This file commences with the Note from the Hon'ble Chief Minister for transfer and appointment of certain third parties to the Animal Husbandry Universities, and with the Hon'ble Chief Minister putting up another note [as stated by Mr.Reuben Jacob on 04.03.2023] the petitioner's replacement with the third respondent is considered as part of the decision to appoint the aforesaid as high functionaries of Bangalore University and it is ultimately done on 15.03.2024.
- 19 -
NC: 2024:KHC:21661 WP No. 8413 of 2024
17. These circumstances will have to be examined to ascertain whether the first respondent's impugned order, which admittedly is in exercise of powers under the doctrine of pleasure, is in public or administrative interest. In view of the opinion rendered by the Vice Chancellor, the circumstances in which the file is closed and reopened to await the decision in another file, and ultimately leading to replacement of the petitioner with the appointment of the third respondent just on the eve of the Election Code of Conduct regime, this Court must opine that neither public interest nor administrative interest is established, and if the impugned notification fails, on this score there must be judicial intervention or otherwise the Universities' institutional autonomy could be in jeopardy. The first question is answered accordingly.
- 20 -
NC: 2024:KHC:21661 WP No. 8413 of 2024
18. The next question must be examined in the light of the provisions of Section 18[1]3 and 34[9] of the Act, and these provisions read as under:
Section 18[1]:
"18. The Registrar [Evaluation]- [1] The Registrar [Evaluation] shall be a whole time officer of the University. The State Government may appoint an officer of the Karnataka Administrative Service, not below the rank of Group-A Senior Scale or a senior member of Faculty of any University to be the Registrar [Evaluation] of a University:
Provided that where no such person is available then the Registrar [Evaluation] shall be appointed by the Vice Chancellor with the approval of the Syndicate from out of a penal of not less than three persons recommended by the Vice Chancellor. If none of the persons in the panel is approved by the Syndicate within the time prescribed by the Statutes, the Chancellor may, in 3 The sub clauses of this Section relate to the functions of the Registrar [Evaluation]
- 21 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 consultation with the Vice Chancellor appoint such other person as he deems fit to be the Registrar [Evaluation]. The terms and conditions of service and emoluments of the Registrar [Evaluation] so appointed shall be such as may be determined by the Chancellor.
Section 34[9]:
"34[9] Each Faculty shall consist of the following members, namely:- [i] the Dean of the Faculty; [ii] the Registrar [Evaluation]; [iii] the Chairman of the Department of Studies in the Faculty;
[iv] all the Professors and in the absence of Professors, Readers in the Faculty from each Department in the Faculty;
[v] one Reader and one Lecturer in each Department of Studies nominated by the Vice-Chancellor by rotation in the order of seniority for a term of two years;
[vi] five Teachers of colleges and two experts from other Universities in the State nominated by the Vice-Chancellor for a term of two years; and
- 22 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 [vii] such other persons as may be specified by the Statutes."
The crucial expression in Section 18[1] of the Act is a Senior Member of Faculty of any University, and if a person could be recognized a senior member of a faculty of any university, such person would be eligible for appointment.
19. The expression a Senior Member of Faculty of any University is not defined specifically, nor anything is mentioned to indicate in Section 18 of the who, for the purposes of appointment as the Registrar [Evaluation], will be a Senior Member of Faculty. However, the provisions of Section 34 of the Act, while stipulating that a University shall have Faculties, stipulate that faculties shall consist of Department of Studies and the composition of the Department of Studies with a Chairman. As regards the composition of a faculty, the provisions of Section 34[9] of the Act mandate that it shall, apart from the
- 23 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 Dean of Faculty and Registrar [Evaluation] and the Chairman of the Department of Studies in the Faculty, comprise of Professors, a Reader and a Lecturer in each Department.
20. This Court in the light of afore provisions must opine that the Chairman of the Department of Studies in a Faculty of university will be a senior member of faculty as contemplated under Section 18[1] of the Act, and the Act does not admit any ambiguity. The question for the present purposes is, whether the third respondent could be called a senior member of the faculty only because he is appointed as the Chairman of the department of Organic Chemistry.
21. The Government should have necessarily examined this question in the light of Vice Chancellor's opinion that the third respondent's appointment as the Chairman of the Department of Studies would not have come about if there was a
- 24 -
NC: 2024:KHC:21661 WP No. 8413 of 2024 professor in the department of Organic Chemistry. If the petitioner fortuitously comes to occupy the position, this Court must say that it cannot by itself confer eligibility. The Government should have considered all aspects before displacing the petitioner with the third respondent's appointment. Therefore, the second question is answered holding that the third respondent could not have been eligible to be appointment as the Registrar [evaluation] only because he is appointed as the Chairman of the Department of Organic Chemistry.
For the aforesaid reasons, the petition is allowed, and the impugned Notification dated 15.03.2024 bearing No. ED 520 UBV 2023 passed by the first respondent [Annexure-A] is quashed.
SD/-
JUDGE NV