Karnataka High Court
Dr Prema Kumara K vs The Prinicpal Secretary on 19 January, 2018
Author: G.Narendar
Bench: G. Narendar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE G. NARENDAR
WRIT PETITION NO.21841/2015
C/W
WRIT PETITION NO.104414/2015 (S-RES)
IN W.P.NO.21841/2015:
BETWEEN
Dr.Prema Kumara K
S/o H.B.Krishnamurthy,
Aged about 46 years,
Occ. Director cum Professor
Centre for Folklore Translation
Karnataka Janapada Vishwa Vidyalaya,
Gottagodi, NH-4, Shiggaon,
District Haveri - 581 110.
... Petitioner
(By Sri K.Raghavendra Rao &
Smt V.Vidya Iyer, Advocates)
AND
1. The Principal Secretary,
Department of Higher Education (Universities)
M.S.Building, Bangalore - 560 001.
2. The Karnataka Janapada Vishwa Vidyalaya,
Represented by its Registrar,
Gottagodi, NH-4, Shiggaon,
District Haveri - 581 110.
2
3. Dr.Harilal S/o Kheeru Pawar,
Age 53 years, Occ. Director,
Publication, Karnataka University,
Dharwad, R/o KIADB Layout,
79-K, Holiyal Cross,
Tapavan Road, Dharwad.
... Respondents
(By Sri Ravi Hosmani, AGA for R1;
Sri J.S.Shetty, Advocate for R2;
Sri Hemanthkumar L.Hayarangi, Adv. for R3)
This writ petition is filed under Article 226 and
227 of Constitution of India, praying to issue a writ of
certiorari or any other writ or direction to quash the
impugned order dated 07.05.2015 issued by the
respondent No.1 bearing No.ED 590 UNE 2014 vide
Annexure-K and issue direction to the 1st respondent
to forward the resolution of the Syndicate of the 2nd
respondent University dated 11.04.2014 vide
Annexure-D to the Chancellor in terms of Section 73
of the Karnataka Janapada Vishwa Vidyalaya Act,
2011 and pass any such other order or orders as
deemed fit by this Hon'ble Court on the facts and
circumstances of the case.
IN W.P.NO.104414/2015:
BETWEEN
Dr.Harilal S/o Kheeru Pawar,
Age 53 years, Occ. Director,
Publication, Karnataka University,
Dharwad, R/o KIADB Layout, 79-K,
Haliyal Cross, Tapavan Road, Dharwad.
... Petitioner
(By Sri M.Keshava Reddy and
Sri Hemant Kumar L.Havaragi, Advocates)
3
AND
1. The Principal Secretary,
Higher Education (University),
The State of Karnataka,
Vidhana Soudha,
Bengaluru.
2. The Vice Chancellor (VC),
Janapada University,
Gotagodi, NH-4,
Shiggaon, Tq. & Dist. Haveri.
3. The Registrar,
Janapada University,
Gotagodi, NH-4,
Shiggaon, Tq. & Dist. Haveri
4. Dr.Premakumar K
S/o H.B.Krishnamurthy,
Aged about 46 years,
Occ. Director cum Professor
Centre for Folklore Translation
Karnataka Janapada Viswa Vidyalaya,
Gottagodi, NH-4, Shiggaon,
Haveri District.
... Respondents
(By Sri Ravi V.Hosmani, AGA for R1;
Sri J.S.Shetty, Advocate for R2;
R3- served, and
Sri K.Raghavendra Rao and
V.Vidya Iyer, Advocates for R4)
This writ petition is filed under Article 226 and
227 of Constitution of India, praying to a) issue a writ
in nature certiorari to quash the amended
Notification No.KFU/AD/No.45/2015-16 dated
09.04.2015 passed by the 2 respondent through
nd
Vijayavani Paper Publication which is produced as
4
Annexure-G, b) Issue a writ in nature certiorari to
quash the Resolution No.09 dated 11.04.2014-2014-
15 passed by the 2nd respondent which is produced
as Annexure-C2, and appointment order
No.PÀeÁ««/D«/¸Éë/PÀæªÀiÁAPÀ/2014-15/441, dated 12.06.2014
passed by the 2nd respondent which is produced as
Annexure-C3, c) a writ in the nature of mandamus
directing the 2nd respondent to consider the petitioner
application for the post of professor that the 3rd
respondent invited to the petitioner for interview for
the post of professor and d) issue any other writ or
direction, which this Hon'ble Court deems fit under
the facts and circumstances of the case.
These writ petitions having been heard
and reserved for orders; this day, the Court
made the following:
Date of Reserving the Order :
17.01.2018
Date of pronouncing the Order :
19.01.2018
ORDER
Heard the learned counsels for the petitioner, Additional Government Advocate and the learned counsel for the 2nd respondent-University and the learned counsel for the 3rd respondent.
2. Brief facts of the case:
The petitioner in the present writ petition is seeking for the issuance of a writ of certiorari or any other writ or direction to quash the impugned order 5 dated 07.05.2015 passed by the 1st respondent vide Annexure-K to the writ petition. The petitioner has also sought for further direction to the 2nd respondent-University to direct the said respondent to forward the resolution of the Syndicate dated 11.04.2014 vide Annexure-D to the writ petition for obtaining the assent and approval of the Chancellor in terms of Section 73 of the Karnataka Janapada Vishwavidyalaya Act.
The facts necessary for the disposal of the writ petition are that, the petitioner was working as a Deputy Registrar with the Kannada University at Hampi. That the 2nd respondent-University placed a proposal with the 1st respondent requesting for deputing the services of the petitioner to the post of Senior Research Officer. That the 1st respondent after examining the proposal by order dated 04.07.2012 granted an approval, whereby the services of the petitioner were made available to the 2nd respondent-University for a period of 03 years or 6 until further orders, whichever was earlier. Pursuant to the said order, the petitioner joined the services of the 2nd respondent-University as a Senior Research Officer. That the petitioner in the course of discharge of his duties as a Senior Research Officer, which is admittedly a non-teaching post, has in para No.2 claimed that he has rendered excellent service in all research projects. The research projects detailed in the writ petition are as under;
MINOR RESEARCH PROJECT:
1. Kannada Folklore Dictionary
2. South Indian Native Agricultural Science Encyclopaedia
3. Village History Volumes of Karnataka
4. Kannada Folklore Bibliography
5. Pilot Project About Male Mahadeshwara Tradition
6. Our Village Folklore
7. Documentation of Karnataka Tribal Folklore Survey Report
8. Folklore Encyclopaedia Project
9. Desi Aahara Paddati 7
10. Organisation of National and State Level Seminar That apart, the petitioner has also detailed the various committees of the University on which he has been serving. He has also detailed the administrative responsibilities delegated to him. That the Registrar of the 2nd respondent-University taking note of the contribution of the petitioner, vide Annexure-C submitted a proposal to the Syndicate to absorb the services of the petitioner as a Director in the Department of Translation and that out of the three posts of professorship sanctioned by the Government, one post of Professor may be renamed as Director, Folklore Translation Centre. That the said proposal by the Registrar came to be approved by the Syndicate vide Annexure-D in its meeting held on 11.04.2014. That pursuant to the resolution, order of appointment came to be issued by the 2nd respondent-University appointing him as a Director-
cum-Professor for Center of Folklore Translation and 8 that the resolution by the Syndicate is in exercise of the powers vested in it under Section 73 of the KJVV Act, 2011 and prior to the order of appointment dated 12.06.2014, the Vice-Chancellor of the 2nd respondent-University addressed a communication to the Vice-Chancellor Kannada University, seeking that the petitioner be relieved permanently in view of the decision of the Syndicate to absorb the petitioner on a permanent basis as Director-cum-Professor of the Folklore Translation Centre and the Kannada University, Hampi vide its communication dated 06.06.2014 was pleased to relieve the petitioner from his services and also forwarded his service records. Subsequently, the 2nd respondent-University opened the Service Register in respect of the petitioner. That when the said order was came to the notice of the 1st respondent, the 1st respondent got issued a show cause notice to the Vice-Chancellor of the 2nd respondent-University and also issued the impugned order annulling the resolution of the Syndicate and also recalling the order dated 04.07.2012 whereby 9 the services of the petitioner were placed at the disposal of the 2nd respondent-University on the basis of deputation, the said order dated 07.05.2015 is in viewed by the petitioner.
3. The writ petition is opposed by the University and the respondents by filing their detail statement of objections.
4. The 1st respondent in the statement of objections has stated that the petitioner, an employee of the Kannada University, Hampi was deputed to the 2nd respondent-University as a Senior Research Officer for a period of three years only or until further orders whichever is earlier. That the action of the Syndicate of the 2nd respondent-University to create a post of Director-cum-Professor Folklore Translation Centre and the resolution of the Syndicate to absorb the petitioner is contrary to the order of deputation itself as the deputation being by an order of the 1st respondent, the 2nd respondent-University could not have absorbed the service of the petitioner without 10 obtaining the prior permission of the Government that the deputation of the petitioner was only as a Senior Research Officer and the 2nd respondent- University cannot appoint him to any other post contrary to the Act and Rules. That the Government had by order dated 16.04.2012 granted permission to the 2nd respondent-University to make appointments to the various teaching and non-teaching posts and out of that three posts of Professors, which is a teaching post, was also approved.
5. It is further stated that the impugned order is well within the competency of the Government in view of the provisions of the Section 8 of the Karnataka Janapada University Act, 2011. It is stated that even assuming that the appointment is made invoking the provisions of Section 73, the same is contrary to the provisions of Section 73 in as much that no approval of the Chancellor has been obtained and has prayed for dismissal of the appeal. 11
6. The 2nd respondent-University has also filed its detailed objections. It is stated that the 2nd respondent-University was established for the purpose providing greater platform in Folklore Studies and in order to fulfil the long felt desire of Folklorist of the State to develop Kannada Folklore on scientific principles. That though the University was established in 2011, the University did not possess permanent workforce. That the authorities are required to act in consonance with the provisions of the Karnataka Janapada Vishwavidyalaya Act.
7. That the petitioner was deputed to work as a Senior Research Officer only and that too for a period of three years only. That the petitioner who was working as a Deputy Registrar with the Kannada University, Hampi has experience in matters of administration and has no teaching experience and accordingly his posting was to a non-teaching post. That the 2nd respondent-University felt the need for creating a separate Centre of Folklore Translation 12 and hence the University framed a statute in exercise of the powers vested in it under Section 39 of the Act and forwarded the same to the Chancellor for approval vide Annexure-R2. The copy of the draft statute is also produced along with the statement of objections. A perusal of the same would show that the statute has been specifically drafted with the sole purpose of creating a post of Director, Centre for Folklore Translation and with the object of absorbing the petitioner in the services of the 2nd respondent- University.
8. That the 2nd respondent-University vide letter dated 10.05.2013 made a reminder once again requesting the 1st respondent to obtain the assent of the Chancellor for the said statute. It is further stated that no such approval or assent of the Chancellor has been obtained, hence the proposal for creation of the post of Director Folklore Translation Centre has merely remained on paper as the same was not assented to by the Chancellor. 13
9. That all appointments by the 2nd respondent-University are governed by Sections 52 to 55 of the Act and as per Section 52 appointments can be only after their selection by a Board of Appointment. That the Board of Appointment for selection of Professor has neither met nor recommended the selection of the petitioner. It is further stated that, even as per the draft statute, the appointment to the post of Director, Folklore Translation Centre, is by way of absorption of a Deputy Registrar and the petitioner was only working as Senior Research Officer.
10. Apart from the above, the fact remains that the very post itself is not sanctioned or approved post. That as per sub-section 4 of Section 52, every post of Professor, etc to be filled by selection should be widely advertised and the minimum other qualification, experience, scale of pay, the number of posts ought to be specified in the advertisement and that, apart from the applicants, such of those 14 teachers who are already in the service of University and possess the minimum qualification may also be called for interview.
11. That as per sub-Section 7 of Section 52, the Board has to prepare the list of persons in the order of merit. That there is no provision in the Act for absorption or re-designating a teaching post as a non teaching post. That the resolution of the Syndicate creating a new department and appointing the petitioner is yet to be approved by the Chancellor.
12. That the petitioner has no vested or statutory right to seek for the relief of direction to the University to forward the resolution of the Syndicate for the approval of the Chancellor. That in the absence of approval by the Chancellor, the petitioner cannot claim to have been appointed as Director, Folklore Translation Centre and that the resolution recommending appointment of the petitioner becomes legitimate only after the approval by the Chancellor and till such time the petitioner remains and 15 continues as a Senior Research Officer holding additional charge of the post of Director. That there is no prior approval by the State Government also.
13. That, the petitioner has not discharged his duties in any teaching post nor as he worked as a Professor, hence there is no question of extending the UGC pay scale to the said post hence the annulment of the Syndicate resolution is in order and in consonance with law.
14. That even as per the rules for Cadre and Recruitment of Sanctioned Teaching Posts, the recruitment is by a Selection Committee, consisting of the Vice-Chancellor, Head of the Department, Four Subject Experts and the Registrar and the minimum qualification prescribed is Ph.D in Folklore/ Anthropology/Sociology/English, minimum of ten publications as books and / or Research/ Policy Papers, a minimum of ten years teaching experience in University/ College, experience in research at the University/ National Level Institutions, etc and 16 petitioner does not possess any of the above qualifications and hence the petitioner is ineligible to be appointed. It is stated that the draft statute remains a draft and hence question of the petitioner claiming of having already been appointed is unsustainable.
15. In response to the detailed statement of objections preferred by the 2nd respondent, the petitioner has effected a reply by way of detailed re-joinder. It is alleged that the 2nd respondent is guilty of suppression and misrepresentation of facts.
16. It is stated that on the request of the 2nd respondent-University, the 1st respondent made a request to the Kannada University, Hampi to lend the services of the petitioner on deputation and that the Syndicate vide resolution dated 03.08.2012 accepted the same and resolved to relieve the petitioner to hold the post of Senior Research Officer on deputation basis with the 2nd respondent-University. That he 17 has rendered excellent service in all research projects.
17. That the petitioner was given additional charge of Director of the Folklore Translation Centre vide order dated 26.07.2012. That the draft statute for creating the post of Director and for establishment of the Centre for Folklore Translation was passed by the Syndicate in its meeting held on 23.03.2013. That the draft statute is forwarded under covering letter dated 10.05.2013. That by letter dated 04.09.2013 the 1st respondent has expressed its no objection for establishment of the Centre if it is out of the resources of 2nd respondent and that the same tantamount's to approval by the 1st respondent. That the 2nd respondent has not received any communication from the 1st respondent-Government, either rejecting or consenting for the creation of the post of Director and as the 2nd respondent felt it is absolutely necessary and as the petitioner possessed substantial and sufficient experience and knowledge 18 in the field, the Registrar prepared a note and submitted the same to the Syndicate for creating the post of Director-cum-Professor and appointing the petitioner for the said post. That the same was placed before the Syndicate, Syndicate in its meeting held on 15.03.2014 vide Annexure-Q and as per the resolution it was decided to absorb all employees on deputation after obtaining the consent of their respective parent departments and subsequently on the next meeting dated 11.4.2014 the Syndicate resolved to absorb the petitioner as Director-cum- Professor after obtaining approval from his parent University. That pursuant to the resolution of the Syndicate the 2nd respondent addressed a communication dated 22.4.2014 requesting the Kannada University, Hampi to permanently relieve the petitioner from the post of Deputy Registrar. That the request of the 2nd respondent was placed before the Executive Council of the Kannada University, Hampi, which in turn decided to relieve the petitioner from his services permanently. That 19 pursuant to the reliving order, the 2nd respondent issued the appointment order on 12.06.2014 vide Annexure-U incorporating the terms and conditions of appointment.
18. That thereafter, the Registrar of the 2nd respondent had addressed a letter on 03.07.2014 thereby bringing to the notice of the 1st respondent the procedure adopted to create the post and appoint the petitioner and requested for approval as no response was received, the 2nd respondent addressed one more reminder on 18.11.2014. That after the lapse of nine months the 1st respondent issued the impugned order and the same is based on the personal opinion expressed by the Registrar of the 2nd respondent-University and that such personal opinion is inconsequential and it is within the domain of the Syndicate alone to review its earlier decision / resolution. That, on the very same day of issuance of the impugned order a show cause notice also came to be issued to the Vice-Chancellor. 20
19. That it is absolutely false to state that he has no teaching experience and the post does not require imparting tuition to post graduate classes as it is a non-vocational post and it requires only knowledge of administration and research. That, he was holding additional charge of teaching by working in Kannada University and to that effect an order dated 20.07.2002 had been issued (Annexure-Z).
20. That the appointment of the petitioner is against the sanctioned post and hence the allegations that the post is not sanctioned is baseless. That as per Annexure-R6 the post of Director is equivalent to the post of Professor of University and hence he is entitled for UGC Scale. That no opportunity has been afforded to the petitioner before passing the impugned order. That as a consequence of, he being relieved, the Kannada University, Hampi has filled up the said post by promoting one of its employees.
21. That the Syndicate has followed the provisions of the Act in absorbing the petitioner and 21 there are no irregularities or infirmities warranting the exercise of the power under Section 8 of the Act and the absorption is not inconsistent with the policy of the State Government.
22. The 2nd respondent has also placed on record a memo enclosing therewith the copy of the statute governing the cadre and recruitment to teaching posts and non-teaching post of the University. The notification inviting applications to the post of Professor.
23. The parties have also filed the written submission, which is a reproduction of their averments in the petition and the statement of the objections. That apart the petitioner has placed much stress on the relevancy of the application for amendment of the writ petition to incorporate additional grounds. On perusal of the application for amendment, it is seen that the facts and grounds urged therein have already been raised by the petitioner in the detailed rejoinder preferred by him 22 in response to the statement of objections preferred by the 2nd respondent. The only other ground i.e., additionally raised in the application for amendment is that the impugned order is not published in the gazette. The said argument is a legal argument, question of allowing the application for amendment does not arise, no new ground or fact is pleaded. Hence, the application for amendment - I.A.No.2/2017 requires to be rejected and accordingly is rejected.
24. Another application-I.A.No.1/2017 is preferred seeking to bring on record eight other parties as party respondents to the proceedings. The only ground urged in support of the application is that they are required in view of the contents of Annexures-D & K. What is under challenge is Annexure-K, authored by the 1st respondent, who is already on record and he alone is required to answer the contentions raised by the petitioner. The other relevant party is the 2nd respondent who is the 23 petitioner's employer who is required to answer with regard to legality of the petitioner's appointment and whether the procedure adopted is as mandated under the Act and Rules. The other proposed respondents are irrelevant for determining the lis that has arisen on account of the impugned proceedings. Hence, the said application I.A.No.1/2017 requires to be rejected and accordingly is rejected.
25. Lastly, the remaining application- I.A.3/2016 by the petitioner is preferred under Order 23 Rule 1 (3) r/w Section 151 of CPC and under Article 226 of the Constitution of India. Said application came to be preferred seeking leave of the court to withdraw the writ petition and to reserve liberty to the petitioner to file a fresh writ petition on the same cause of action. The same came to be opposed by the respondents. The reasons stated in support of the application is that his previous employer is a necessary party to adjudicate the matter and that the absence of his original employer 24 i.e., Kannada University, Hampi is a formal defect and on account of the said formal defect the writ petition is likely to fail. How or why the absence of the original employer to the present proceedings is fatal is not explained. It is further contended that some material facts have not been pleaded on account of a bonafide error. What are those material facts and how they are material for adjudication of the present lis is not stated. Nextly, it is contended that certain material annexures have not been placed on record and the same may prove fatal to the writ petition. What are the materials or relevant documents that have been omitted is not stated. Thus, the application, supported by vague and bald averments and no material particulars are pleaded in support of the application. Hence, in the opinion of this Court, the same i.e., I.A.3/2016 is required to be rejected and is accordingly rejected. That apart, it is seen that the petitioner has produced and stated all that he could in the detailed rejoinder filed by him on 03.08.2016 and hence this Court is of the considered 25 opinion that the applications I.A.No.3/2016 and I.A.Nos.1/2017 and 2/2017, which are made at a very belated stage are were preferred for reasons other than the stated purpose.
26. Now, coming to the merits of the petition, it is necessary to extract and relate certain provisions of the KJVV Act, 2011. Section 8 of the Act vests in the Government the authority to annul any order, notification, resolution or any proceeding of the University, the same reads as follows;
"Section 8 : Power to annul the orders of the University : - The Government may be order published in the Official Gazette annul any order, notification, resolution or any proceedings of the University which in its opinion is not in conformity with the provisions of this Act, or the Statutes, Regulations, or Ordinances or is otherwise inconsistent with the policy of the Government."26
27. Chapter-III deals with the Officers of the University and it is seen that Section 9 does not detail the Deputy Registrar as an officer of the University. It is also seen that there is no sanctioned post of Depty Registrar under the Cadre and Recruitment Rules of the 2nd respondent-University. Chapter-IV deals with the authorities of the University. Section 23 provides for various authorities. Section 24 provides for the constitution of the Syndicate. Section 25 details the powers of the Syndicate and clause-XVII of sub-section 2 of Section 25 empowers the Syndicate to institute Professorship, Associate Professorship or any other posts of teachers required by the University on the recommendation of the Academic Council, the said provisions of Section 25(2)(xvii) and sub-section 3 read as follows;
"Section 25(2) (xvii) - to institute Professorship, Associate Professorship, Assistant Professorship or any other posts of teachers required by the University on the 27 recommendation of the Academic Council;"
(Underlining by Court) "Sub-section 3 - Nothing contained in sub-section (2), shall be deemed to confer on the Syndicate, the power to revise the pay scales of any of the employees or to grant any allowances or emoluments to them."
28. Section 27 provides for the constituents of the Academic Council and Section 28 details the powers of the Academic council. Clause (i) (vi) and (ix), (xix) of sub- Section 2 are relevant and read as follows;
(i) To make proposal for issue of
Ordinances, relating to academic
matters ;
(vi) to formulate schemes for promoting research within the University or for promoting other specialised studies;
(ix) to make proposal for the institution of posts of Professorships, Associate Professors, Assistant Professors and other posts of teachers required by the 28 University and for prescribing the duties of such posts;
(xix) to establish and maintain departments of research and specialised studies."
29. Section 29 provides for the constituents and functions of the finance committee. The provisions of relevance are Clause (iii) of sub-section 4 and sub- section 5, which reads as follows;
(4) "(iii) to scrutinise all proposal of the University involving expenditure for which no provision is made in the budget or involving the expenditure in excess of the amount proved for in the budget including creation, up-
gradation and abolition of posts in the University."
"(5) notwithstanding anything contained in sub-section (4), the Vice Chancellor may in case of urgency and for reasons to be recorded in writing, incur without the approval of the Finance Committee, any expenditure not exceeding one 29 lakh rupees in any one case for which no provision is made in the budget or which is in excess of the provisions made in the budget.
Provided that such expenditure
shall be placed before the Finance
Committee for ratification at its
immediate next quarterly meeting;
Provided further that if the
incurring of expenditure by the Vice-
Chancellor is not satisfactory, the Finance Committee may refer it to the Chancellor, whose decision in the matter shall be final."
30. The constitution of faculties and their functions is provided under the provisions of Section 30 (4) of the Act, which mandates that faculties may be established or abolished by the statutes. Section 32 provides for the functions of the Academic, Planning, Monitoring and Evaluation Board and one of the activities of this Board is to plan the academic courses, research programmes etc. and to monitor 30 the implementation of programmes and activities formulated by it. Section 39 empowers the University for framing and issuing statutes, ordinances, regulations and rules. Section 39(1), sub-section 2 and 3 relevant for consideration are extracted below.
"39. Statutes . - (1) Subject tot he provisions of this Act, the Statutes may provide for all or any of the following matters, namely ;-
(i) the constitution, functions and powers of the authorities of the University and such other bodies as may be declared to be authorities of the University from time to time;
(ii) the appointment and continuance in office of members of the said authorities or bodies, including the continuance in office of the first members and the filing of vacancies of members and all other matters relating to those authorities or bodies of which it may be necessary or desirable to provide;
(iii) the conferment of honorary degrees;31
(iv) holding of convocations for conferring degrees and diplomas; and issue of degree certificates in case of urgency before convocation.
(v) the withdrawal of degrees, diplomas,
certificates and other academic
distinctions;
(vi) the establishment, maintenance and
abolition of faculties, departments, hostels and institutions;
(vii) the conditions under which
institutions may be recognised and
such recognition may be withdrawn;
(viii) the institution of fellowships,
scholarships, studentships,
exhibitions, medals and prizes;
(ix) the institution, suspension or
abolition of posts of Professors,
Associate Professors, Assistant
Professors, administrative posts;
(x) creation of posts; (underlining by Court) 32
(xi) the method of recruitment of teachers in the universities and recognised institutions;
Provided that the scales of pay of the employees excluding those who are drawing University Grant Commission scales of pay shall be commensurate with the scales of pay applicable to Government employees.
(xii) the acceptance and management of bequests, donations and endowments.
(xiii) fees to be charged for the course of study in the University and in the recognised institutions and for admissions to the examinations, degrees and diplomas of the University.
(xiv) fees to be charged for the services rendered by the University;
(xv) the conditions of service of the employees including the emoluments; and (xvi) all other matters which by this Act are to be or may be provided for by the Statutes.
33(2) The Statutes shall come into force only from the date of the assent of the Chancellor or on such other date as the Chancellor may direct.
(3) The Statutes governing conditions of service of employees including the emoluments shall be in conformity with the policy of the Government."
31. Section 40 provides for the enactment of the statutes and their making. The provisions of Section 40 is extracted below as it will go to the very root of the matter.
"40. Enactment of Statutes and their making : (1) The Statutes shall be made, amended or repealed by the Syndicate in the manner hereinafter proved.
(2) The Syndicate may take up for consideration the draft of a Statute either on its own monition or on a proposal made by the Academic Council.
When the draft is not proposed by the Academic Council, the Syndicate shall obtain the opinion of the Academic 34 Council thereon before considering the same.
(3) The Syndicate shall obtain the opinion of the Finance Committee in respect of such of the Statutes involving financial implications.
(4) The Syndicate if it thinks necessary may also obtain he opinion of any officer, authority or body of the University in regard to draft of the Statute before taking it up for consideration.
(5) Every Statute passed by the Syndicate shall be transmitted to the Government for submission to the Chancellor for assent with its specific recommendations.
(6) The Government shall on receipt of the draft Statute submit such draft Statutes along with its comments and specific recommendation to the Chancellor within two months from the date of its receipt and the Chancellor may within one month of the date of receipt of the draft Statute from the Government assent or withold his assent thereto or 35 refer it to the Syndicated for further consideration.
(7) A Statute passed by the Syndicate shall not be given into effect, until it is assented to by the Chancellor."
32. The other provisions relevant for determination of the lis are sub-section 2 (A) of Section 52, sub-section of 9 of Section 52 and Section 54, 55 and 73 are extracted below;
"52.(2)(A) to the post of Professors, Associated Professor and Assistant Professors shall consist of, -
(i) The Vice-Chancellor-ex-officio Chairman;
(ii) The Chairman of the Departmental Council concerned, if he is a Professor an if he is not a Professor, a Professor from the same Department, and if there is no Professor, a Professor in the concerned Department form any other Univesrity in the State nominated by the Chancellor, on the recommendation of the Government.36
Provided that if no such
Professor is available in any of the
universities in the State, such
Professor in the concerned
Department form a Central Institute within the State or from a university in any other State shall be nominated.
(iii) Four experts to be nominated by the Chancellor on the recommendation of the Government from among the persons serving in any University of the State or any other institutions recognised by the Government of whom one shall be a person belonging to Scheduled Castes or Schedules Tribes and another to other Backward Classes;
Provided that if such persons are not available in any of the Unversities in the State, such persons serving in any other University in India shall be nominated."
"52. (9) Whenever any new subject is introduced in the University or any new Department is established, the appointment of Professors, Associate Professors, 37 Assistant Professors and Lecturers in such a subject or Department, as the case may be, shall be made under the provisions of this Section."
"54. Temporary appointment : (1) Notwithstanding anything in sections 52, 53, and 55, the Vice Chancellor may make temporary appointments of not more than one year duration to posts of Lecturers and such non-teaching staff as may be specified in the Statutes where such posts are either temporary or appointments to such posts cannot be made in accordance with sections 52, 53, and 55 without delay.
(2) The appointments under sub-
section (1) shall be made only against sanctioned posts, and in the manner prescribed by the Statutes."
"55. Appointment of Administrative, Ministerial and other Staff. - (1) There shall be constituted a Board of Appointment to select the candidates for appointment to administrative, ministerial and other posts in the University.
(2) the Board shall consist, -38
(i) the Vice-Chancellor-ex-officio Chairman;
(ii) a member nominated by the Academic Conical;
(iii) A member nominated by the Syndicated;
(iv) Three administrative experts;
(v) (an expert nominated by the Vice-
Chancellor;
(vi) The Registrar;
(3) The Board shall prepare a list of candidates for appointment to the direct recruitment vacancies arranging the names in the order of merit being determined on the basis of the percentage of marks obtained by them in the qualifying examinations and the marks awarded in the interview.
(4) While preparing the select list under sub-section (3), the Board shall follow the rules or orders issued by the Government from time to time in the matter of reservation of appointments or posts for persons belonging to the Schedules Castes and the Schedules 39 Tribes and Other Backward Classes, under Article 16(4) of the Constitution.
(5) All appointments shall be made by the Syndicate by operating the select list prepared by the Board in the order of merit in which the names have been arranged. If any difference arises between the Board and the Syndicate, the matter shall be referred to the Chancellor, through the Government in the Department of Education. The decision of the Chancellor upon such reference shall be final.
(6) The quorum for the meeting shall be four."
"73. Special mode of appointment.
- (1) The Syndicate may invite a person of high academic distinction and professional attainments to accept a post of a teacher or Research Officer in the University on such terms and conditions as it deems fit, and on the person agreeing to do so appoint him to the post, subject to the approval by the Chancellor.40
(2) The Syndicate may appoint a teacher or any other member of the academic staff working in any other University or organisation for undertaking a joint project in accordance with the manner prescribed."
33. This court has given its anxious consideration to various contentions raised by the parties the counsels have reiterated the contentions set out in their written submissions. The counsel for the petitioner would contend that the impugned is order is bad being violated of the provision of Section 8 of the Act as the same is not published in the gazette.
34. On close scrutiny of the impugned order it is seen the impugned order not merely annuls the resolution of Syndicate but proceeding further it recalls the earlier order dated 04.07.2012 whereby the petitioner who was sent on deputation from the Kannada University, Hampi to second respondent university as a Senior Research Officer. 41
35. In the light of the above provisions extracted, what requires to be considered and determined by this Court are two fold. Firstly, whether the petitioner's appointment as a Director of the Department Folklore Translation Centre is in accordance with the Act and secondly whether the petitioner is qualified to hold the post of Professor as resolved and designated by the Syndicate vide Annexure-D to the writ petition dated 11.4.2014.
36. As contended by the petitioner it is not in dispute that the 1st respondent by the order dated 04.07.2012 has been pleased to approve and ordered the deputation of the petitioner to the post of Senior Research Officer in the 2nd respondent-University from his erstwhile post of Deputy Registrar, Kannada University, Hampi and that he joined the services of the 2nd respondent-University on 05.07.2012 as Senior Research Officer and on 26.07.2012 he was given additional charge of Director, Department of Centre for Folklore Translation. If the pleadings are to 42 be taken at face value, this additional charge was in recognition of his excellent service in all research projects in a span of 20 days. It is also relevant to note that he has joined the services of the 2nd respondent-University and given the additional charge of Director, Department of Folklore Translation. Even prior to his being relieved by his parent University i.e., Kannada University, Hampi as it was only resolved on 03.08.2012 by the Kannada University, Hampi to relieve him from his erstwhile post. In view of the proceedings of the 1st respondent dated 04.07.2012 a semblance of legality may be attached to the fact of the petitioner assuming charge even prior to his being relieved by his parent department and it is this order/ proceedings which the petitioner uses as the corner stone of his case.
37. Nextly, the 2nd respondent-University got prepared and issued a draft statute and vide Annexure-N. The draft statute was forwarded to the 1st respondent with a request to place it before the 43 Chancellor and obtain his assent to the same. The copy of the draft statute is produced by the 2nd respondent as Annexure-R3 and R-6. On perusal of the same, it is found that the 2nd respondent has invoked the provision Section 28 (XIX) and 25 (2)(xxii) for the purpose of establishing the department of Folklore Translation Centre.
38. Under the scheme of the Act, no doubt powers are vested with the 2nd respondent to issue ordinances relating to making proposals for the purpose of the establishing of the department. The power under Clause(xix) of Sub-section-2 of Section 28 of KJVV Act, 2011 is valid only if the same is resolved and passed by the academic council, one of the authorities recognized under Section 23. In the instant case, the petitioner had not placed on record any resolution of the academic council, recommending the creation of the department. Further, what is more relevant is that there is not even a whisper as to whether the Finance Committee 44 has approved the expenditure as required under Section 29 (4).
39. It is an admitted fact that though the draft statue came to be issued invoking the provisions of Section 39, the same has not been assented by the Chancellor. In this regard sub-section 2 of Section 39 is of relevance. It clearly states that the statute would come into force only from the date of assent of Chancellor or such other date as the Chancellor may make. In effect the draft statute is a still non-entity until the same is assented to by the Chancellor. Though the proposal for the creation of the post in the form of a draft statute is forwarded for assent in the absence of an assent there is no post of Director, Centre for Folklore Translation in the eye of law as on the date of writ petition.
40. Further, a couple years have passed since the litigation commenced and even till date it is not the case of the petitioner that the post, which he is alleged to have occupied, is legally and validly created 45 under the provisions of the Act on account of the Chancellor assented to the same. In the absence of assent as mandated under sub-section (2) of Section 39, no rights flow out of the draft statute. Hence, the reliance placed on the same by the petitioner, to contend that he has been validly appointed to the post is legally unsustainable, as even as on today as there is no post of Director available in the 2nd respondent-University and the statute forwarded remains a mere draft statute. Hence, the contention that the petitioner is validly holding the post is liable to be rejected and accordingly is rejected.
41. The next point for consideration is whether the petitioner has been validly appointed in accordance with the statute of the University.
42. The provisions of Chapter-VIII, more particularly Section 52 to 55 govern the manner and method of appointment and the method of appointment to the post of Professor is by direct recruitment.
46
43. The manner in which the appointment can be made is provided by sub-section (2) of Section 52, which provides for the constitution of the Board of Selection in respect of the post of Professor and the constituents of the Board of Selection are the vice- chancellor, the Chairman of the Department of the Council concern if he is a Professor and if he is not a Professor, a Professor from the same department and if there is no Professor, a Professor in the concerned department from any other University in the State nominated by the Chancellor on the recommendation of the Government. Four experts to be nominated by the chancellor on the recommendation of the Government i.e., in all a Board of Selection consisting of six members with the Registrar of the University acting as Member Secretary. In fact, the Rules for Cadre and Recruitment of Sanctioned Teaching Post of the 2nd respondent University also are on similar lines. In respect of administrative ministerial and other staff, the same are also to be by a Board of Appointment consisting of the vice- 47 chancellor, a member nominated by the Academic Council, a member nominated by the Syndicate, three administrative experts and expert nominated by the vice-chancellor and the Registrar.
44. As per the provisions of sub-Section (4) of Section 52 every post requires to be widely advertised and the advertisement shall stipulate the minimum and other qualifications, experience, scale of pay, number of posts, etc. The proviso of sub-section(4) provides that, the teacher of the University who are already in service and possess the minimum qualification and fulfil other requirements are also entitled to be called for interview and shall be considered on par with other applicants. The foregoing language of the provision makes it amply clear that the only method of recruitment is by direct recruitment to be initiated by an open invitation which implies an equal opportunity, which is the cardinal principle of Article 14. The Article mandates that the State shall endeavour to guarantee equal 48 opportunities to all who are similarly placed. The very essence of the Article is to encourage open competition and to prohibit and rid the system of back door entries, favouritism, abuse of power, etc., in the matter of employment also. Further, the mode of selection as stipulated under the Act is that the Board of Appointment shall assess the candidate, as prescribed under sub-section (6) of Section 52, and thereafter proceed to prepare a list of selected persons in the order of merit as provided under sub- section (7) and forward the same to the Syndicate to make appointments.
45. Sub-section (9) of Section 52 makes an even more interesting reading. A bare perusal of the said provision is suffice to clear any cobwebs. It mandates that even in the event of appointment in respect of any department established or a new subject introduced the provisions of Section 52 are made applicable. It is not in dispute that in the instant case the Department, Centre for Folklore 49 Translation is also a newly commenced Centre and the 2nd respondent even attempted to institute a Professorship or rather re-designate one of out of the three sanctioned post of Professorship. Once the same is a sanctioned post of Professor merely by renaming or re-designating the post of Professor as Director-cum-Professor would not take it out of the rigor of Section 52 (2) as mandated by sub-section(9) of section 52.
46. In the instant case, the facts reveal that the petitioner has not been appointed to the post of Professor or Director-cum-Professor as claimed by adopting the method mandated under the Act. The appointment is apparently is not in consonance with the provisions of Chapter-VIII.
47. It is alternatively argued that the appointment is a special mode of appointment as provided under Section 73 of the Act. A bare reading of the provision of Section 73 would suffice to negate the contention and reject the same. The provision 50 empowers the Syndicate to invite a person of high academic distinction and professional attainments to accept a post of Teacher or Research Officer in the University and if the said invitee agrees then he may be appointed to the post, subject to the approval by the Chancellor.
48. It is contended by the petitioner that in view of the language employed in Section 73 it must be held that the appointment of the petitioner based on the resolution of the Syndicate is legal and valid.
49. In the light of the above contention, it is necessary to revisit the resolution passed of the Syndicate. The resolution dated 11.04.2014 primarily recommends for the creation of a new post as provided under Section 25(2) (xvii) and for appointing the petitioner in the newly created post of Professor- cum-Director, and there is no reference to the provisions of Section 73 in the resolution.
50. Assuming for argument sake that the Syndicate has indeed invoked the provisions of 51 Section 73, what is to be looked into is whether the provisions of Section 73 is justified or they can be made applicable to the case of the petitioner?
51. The provision visualises "an invitation" to "a person of high academic distinction and professional attainments" and appointment of such a person subject to " the approval of the Chancellor". The section empowers the Syndicate to appoint a Teacher or a Research Scholar only and the petitioner is neither. The petitioner has not placed on record any material to demonstrate that he too taught in any recognised University or College (for 10 years or more as required by the Cadre and Recruitment Rules) nor has he or the Syndicate, placed on record his scholarly pursuits or his professional attainments.
52. From a bare reading it is apparent that the invitation can be extended only to the post of a teacher or Research Officer. In the words of the petitioner himself as set out in paragraph 16 of the rejoinder though the post is designated as Director- 52 cum-Professor, the incumbent is not required to teach and it is a non-vocational post. Even assuming that the post is one of Research the petitioner cannot by any stretch of imagination be classified as a person of "high academic distinction and professional attainments" and a testimony to this conclusion is Annexure-A to the writ petition, which is styled as curriculum vitae. The person visualised under Section 73 is not only required to be a person of high academic distinction but must also achieve professional attainments. What are the professional attainments is not forthcoming in Annexure-A. If administrative experiences and daily duties discharged, are to be considered and interpreted as professional attainments it would amount to rendering the provision otiose and nugatory.
53. The phrase professional attainments used has to be read as one referring to an attainment or achievement acclaimed by peers and the public alike. Apart from Ph.D in translation the so called, 53 curriculum vaites does not disclose any professional attainments. Even if it is taken that it is a academic attainment whether it is an academic attainment of an order which can be qualifying as one of high academic distinction. In the opinion of this Court it is an emphatic no.
54. To top it all, not only there ought to be an invitation by the Syndicate and acceptance by the said invitee, the proposal to appoint is subject to the approval of the Chancellor. In the instant case, there is no such approval by the Chancellor. In fact that is one of the prayers sought for by the petitioner for a mandamus, to direct the 1st respondent to place the resolution of the Syndicate before the Chancellor for approval. In the light of the above discussion, the petitioner is not entitled for such a relief. In the opinion of this Court, the resolution is an abuse of powers by the concerned.
55. In conclusion this Court is constrained to hold that neither is the post validly created nor is the 54 petitioner validly appointed. It also requires to be clarified that the approval as mandated under the provisions of Section 73 is to be read as a pre- appointment approval and not as a post appointment rectification. The approval should be a pre decisional exercise and not a post decisional ratification. If it is interpreted as a post decisional ratification then it would virtually render the act of approval as an empty formality. This Court concludes so in the light of the fact that section 73 provides for special mode of employment and is an exception to the general mode of appointment as provided under the provisions of Chapter-VII of the Act (S.52 to 55). Further if the provisions of Section 73 are interpreted to be understood as a post decisional ratification then the provision would advance the mischief, which the provisions of Section 52 to 55 of the Act endeavour to pre-empt and prevent. The present case is an illustration by itself. If vested interest join hands and keep getting issued appointment orders to persons of the choice and do not even forward it for couple of 55 years for the post decisional ratification, persons like the petitioner, who are ineligible to hold the post of Professor would prosper under the garb of special mode of appointment and thereby give scope for abuse of the provisions. Hence, in the light of the above discussion, this Court concludes that the petitioner is neither validly appointed nor the petitioner is qualified to be appointed to the said post. Though the writ petition filed by the 3rd respondent was heard it is seen that the said writ petition is now rendered on academic exercise in the light of the above order rejecting writ petition No.21841/2015.
56. In view of the above discussion-
observations, this Court is of the considered opinion that the connected W.P.No.104414/2015 could be disposed of by directing the 2nd respondent-university to consider the same as a representation by the petitioner and shall dispose of the same within four 56 weeks after affording an opportunity of hearing to the petitioner in WP. No.104414/2015.
57. On an appreciation of the facts relating to the deputation, it is revealed that the powers that be of the second respondent University has indulged in favouritism and has gone out of the way to promote the cause of the petitioner. The entire sequence of actions by the 2nd respondent-University in so far as it relates to the petitioner are vitiated by malfeasance and mis-reasons. This court is constrained to conclude as above in view of the following undisputed facts.
58. It is not in dispute that the order of deputation was passed by the first respondent on 0n 04.07.2012, the records and pleadings reveal that the petitioner has joined the services of the second respondent University on 05.07.2012 even before he was relieved of his charge as Deputy Registrar by the Kannada University, Hampi. The resolution to relieve the petitioner from the post of Deputy Registrar is 57 passed by the Executive Council of the Kannada University only 03.08.2012. It is not even known as to whether the petitioner had handed over charge before assuming duty with the second respondent University.
59. Within 20 days of his taking charge and even before the he could be relieved of this duties by the Kannada University, Hampi he was handed the additional charge as Director of the Folklore Translation Centre. Though he was specifically deputed to officiate as a Senior Research Officer, which admittedly is of a lower cadre than the post which he earlier held. The speed and urgency with which the events turned out makes it apparent, that the acts of were premeditated, as there was nothing on record to substantiate the petitioners claim to fame this conclusion of the court is strengthened after perusal of Annexure-A to the petition, which he claims to be his curriculum, which details the so called administrative abilities of the petitioner. Even 58 as per the said document his claim to teaching experience is restricted to the period between 1984 to 1986 as Hindi Teacher in Hindi Prachara Samithi, Holenarsipura, Hassan District and as a Hindi Teacher in Government High School, Srinivasapura, Channarayapattan between 1986 to 1988 and as Assistant Teachers in D.Banumyya High School, Mysuru upto 1992. As a English Lecturer in the Department of Music and Dance of Kannada University, Hampi in 2002 to 2003. Apart from the above the petitioner has not detailed any teaching experience. This being his teaching experience, it is not made known as to how, he could be absorbed in the post of Professor. The enigma surrounding the petitioner's tryst with the second respondent University gets further repelled by the petitioners own admission in Para No.16 of his rejoinder. It is averred that the post of Director-cum-Professor is a non vocational post and the said post only requires an administrative and research experience. If that be true then the Syndicate was in error in re-designating 59 one post of Professor out of the three post sanctioned by the Government. It is apparent that the re- designation is done with the sole purpose of accommodating the petitioner and thereby enable him to the pay scale fixed by the University Grants Commission.
60. On close scrutiny of the material on record manipulation of the system is writ large on the proceedings of the Syndicate which came to be annulled by the first respondent. This court concludes so after a scrutiny of the draft statute proposing the creation of the post of Director. The qualifications and experience stipulated in the statue is Post Graduate Degree and a Phd. and five years experience in the field of administration and translation are specified as required qualifications and they have sought to equate it with the post of Professor. When apparently the minimum experience stipulated even under the Universities Cadre Recruitment Rules is ten years teaching experience in 60 any recognized university or college. In the case of the petitioner he does not even possess half the experience stipulated under the second respondent Universities Rules for Cadre and Recruitment of Sanctioned Teaching Posts. The petitioner as a Research Officer was drawing a pay scale of Rs.40500-56550/- but now in view of upgrading and equating the post of Director with that of a Professor he would be entitled to pay scale of Rs.37,400- 67,000/- + AGP Rs.10,000/- placing it on par in the UGC Scale. The petitioner has not even demonstrated as to whether he is entitled to the post of Professorship even as per the UGC norms and guidelines. If that be the case then the natural question that would arise is, why this anxiety to equate the non teaching post of the Director with the teaching post of Professor. The only logical answer is that it is to enable the petitioner to draw higher pay scale to which he is legally not entitled. As per the Universities Rule for Cadre, Recruitment of Sanctioned Teaching Posts, the petitioner would not 61 qualify to be appointed and to hold the post of Professor.
61. The only legal contention advanced by the petitioner is that the impugned order is contrary to the provisions of Section 8 of the Act as the same has not been published in the gazette as required by the provision of Section 8. On a specific query from this Court the learned Government Advocate has placed on a record a memo enclosing therewith a communication from the respondent stating that the same would be published after the stay granted by this Court is vacated implying that the same has not been published in the official gazette. Though it can be fruitfully argued that the non-publication in the official gazette vitiates the impugned order. The same has to be repelled for the short reason that if the same is accepted, it would result in the revival of the illegalities in the appointment of the petitioner. Moreover, if the contention of the petitioner is accepted that the order under Section 8 becomes 62 enforceable only after it is published in the official gazette and till then the impugned order is non est in the eye of the law, then the very writ petition itself is premature. The primary reason for this Court to not quash the impugned proceedings is as stated above as it would result in the illegal appointment of the petitioner getting ratified. It would suffice if the 1st respondent is directed to have the impugned proceedings published in the official gazette immediately on receipt of the copy of this order.
62. In view of the above, the following order is made:
ORDER
i) Writ petition No.21841/2015 is rejected with costs of Rs.15,000/-, payable within four weeks.
ii) The impugned order cancelling the deputation and repatriating the petitioner back to his parent organisation is upheld.
iii) The order annulling the Syndicate resolution is not interfered with for otherwise as explained 63 above it would result in revival of the illegal order of appointment vide Annexure-U dated 12.06.2014.
iv) It is held that the post Director-cum-Professor is non est in law for want of the Chancellor's assent as mandated under Section 39(2).
v) It is held that the provisions of Section 73 do not provide for nor authorize the appointment by way of absorption.
vi) It is held that the approval as mandated under Section 73 is pre decisional. Hence, the order of appointment (Annexure-U) dated 12.06.2014 is contrary to the Act in the absence of the approval as mandated under Section 73.
vii) It is held that the petitioner is not eligible to be appointed to the post of Professor under the Rules for Cadre and Recruitment of the 2nd respondent-University and hence the re- designation and equating the post of Director with that of the sanctioned post of Professor is illegal as being contrary to the Universities Cadre Rules.
viii) It is held that the occupation of the post of Director-cum-Professor by the petitioner from 64 the date of appointment i.e., 06.12.2014 is illegal being contrary to the scheme of the Act.
ix) Hence, consequently, the sum paid in excess to the salary that he was entitled to draw as a Senior Research Officer is liable to be recovered.
x) Writ Petition No.104414/2015 is disposed of with a direction to the 3rd respondent to consider the same as a representation and dispose of the same within a period of four weeks from the date of the receipt of the copy of this order.
Writ petitions are ordered accordingly. In view of the above, I.A.Nos.3/2015, 1/2016 and 2/2016 filed in W.P.No.21841/2015 do not survive for consideration and are accordingly disposed of. The interim order stands dissolved.
SD/-
JUDGE BL/sn