Karnataka High Court
Bangalore University vs Dr.Sangamesh Patil A on 16 March, 2022
Bench: S.Sujatha, Shivashankar Amarannavar
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
W.A.No.3779/2019 c/w
W.A.No.3780/2019, W.A.No.3839/2019 &
W.A.No.3909/2019 (GM - RES)
IN W.A.No.3779/2019:
BETWEEN :
BANGALORE UNIVERSITY
REP BY THIS REGISTRAR
JNANA BHARATHI CAMPUS
BENGALURU-560 056 ...APPELLANT
(BY SRI RAJENDRA KUMAR SUNGAY T.P., ADV.)
AND :
1. Dr. SANGAMESH PATIL A.,
S/O SRI AMARAPPA
AGED ABOUT 62 YEARS
R/AT PALLAVI, PLOT NO.23
1ST MAIN ROAD, 1ST CROSS
ULAVI CHANNABASAVESHWARA NAGAR
DHARWAD-580 007
2. THE CHANCELLOR OF
BANGALORE UNIVESITY
RAJ BHAVAN, BENGALURU-560 001
3. GOVERNMENT OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
-2-
TO HIGHER EDUCATION DEPARTMENT
UNIVERSITIES, M.S.BUILDINGS
BENGALURU-560 001 ...RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W
SRI R.KOTHWAL, ADV. FOR R-1;
SRI ADITYA SONDHI, SENIOR COUNSEL A/W
SRI K.KRISHNA, ADV. FOR R-2;
SRI R.SUBRAMANYA, AAG A/W
SRI B.RAJENDRA PRASAD, HCGP FOR R-3.)
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 24.09.2019 PASSED IN
W.P.NO.55552/2018 BY THE LEARNED SINGLE JUDGE OF THIS
HON'BLE COURT AND DISMISS THE SAID PETITION WITH
COSTS.
IN W.A.No.3780/2019:
BETWEEN :
PROF. VENUGOPAL K.R.,
VICE-CHANCELLOR
BANGALORE UNIVERSITY
JNANA BHARATHI CAMPUS
BENGALURU-560 056 ...APPELLANT
(BY SRI P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SRI OMKAR KAMBI, ADV.)
AND :
1. Dr. SANGAMESH PATIL A.,
S/O SRI AMARAPPA
AGED ABOUT 62 YEARS
R/AT PALLAVI, PLOT NO.23
1ST MAIN ROAD, 1ST CROSS
ULAVI CHANNABASAVESHWARA NAGAR
DHARWAD-580 007
2. THE CHANCELLOR OF
BANGALORE UNIVESITY
-3-
RAJ BHAVAN, BENGALURU-560 001
3. GOVERNMENT OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
TO HIGHER EDUCATION DEPARTMENT
UNIVERSITIES, M.S.BUILDINGS
BENGALURU-560 001
4. BANGALORE UNIVERSITY
REP BY THIS REGISTRAR
JNANA BHARATHI CAMPUS
BENGALURU-560 001 ...RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W
SRI R.KOTHWAL, ADV. FOR R-1;
SRI ADITYA SONDHI, SENIOR COUNSEL A/W
SRI K.KRISHNA, ADV. FOR R-2;
SRI R.SUBRAMANYA, AAG A/W
SRI B.RAJENDRA PRASAD, HCGP FOR R-3;
SRI T.P.RAJENDRA KUMAR SUNGAY, ADV. FOR R-4.)
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 24.09.2019 PASSED IN
W.P.NO.55552/2018 BY THE LEARNED SINGLE JUDGE OF THIS
HON'BLE COURT AND DISMISS THE SAID PETITION WITH
COSTS.
IN W.A.No.3839/2019:
BETWEEN :
OFFICE OF THE CHANCELLOR
BANGALORE UNIVERSITY
RAJBHAVAN, BANGALORE-560001
REP BY THE UNDER SECRETARY (HH) ...APPELLANT
(BY SRI ADITYA SONDHI, SENIOR COUNSEL A/W
SRI K.KRISHNA, ADV.)
AND :
1. Dr. SANGAMESH PATIL A.,
-4-
S/O SRI AMARAPPA,
AGED ABOUT 63 YEARS,
R/AT PALLAVI, PLOT NO.23,
1ST MAIN ROAD, 1ST CROSS,
ULAVI CHANNABASAVESHWARA NAGAR,
DHARWAD-580007
2. GOVERNMENT OF KARNATAKA
REP BY ITS PRINICPAL SECRETARY TO
HIGHER EDUCATION DEPARTMENT
UNIVERSITIES, M.S.BUILDING,
BANGALORE-560001
3. VENUGOPAL K.R.,
VICE CHANCELLOR
BANGALORE UNIVERSITY
BANGALORE-560056
4. BANGALORE UNIVERSITY
REP BY ITS REGISTRAR,
JNANA BHARATHI CAMPUS,
BANGALORE-560056. ...RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W
SRI R.KOTHWAL, ADV. FOR R-1;
SRI R.SUBRAMANYA, AAG A/W
SRI B.RAJENDRA PRASAD, HCGP FOR R-2;
SRI P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SRI OMKAR KAMBI, ADV. FOR R-3;
SRI T.P.RAJENDRA KUMAR SUNGAY, ADV. FOR R-4.)
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE DATED 24.09.2019
PASSED IN W.P.NO.55552/2018 AND DISMISS THE ABOVE
WRIT PETITION.
IN W.A.No.3909/2019:
BETWEEN :
GOVERNMENT OF KARNATAKA
REP BY ITS PRINICPAL SECRETARY TO
-5-
HIGHER EDUCATION DEPARTMENT
UNIVERSITIES, M.S.BUILDING,
BENGALURU-560001 ...APPELLANT
(BY SRI R.SUBRAMANYA, AAG A/W
SRI B.RAJENDRA PRASAD, HCGP.)
AND :
1. Dr. SANGAMESH PATIL A.,
S/O SRI AMARAPPA,
AGED ABOUT 62 YEARS,
R/AT PALLAVI, PLOT NO.23,
1ST MAIN ROAD, 1ST CROSS,
ULAVI CHANNABASAVESHWARA NAGAR,
DHARWAD-580007
2. THE CHANCELLOR OF
BANGALORE UNIVERSITY
RAJBHAVAN, BENGALURU-560001
3. PROF. VENUGOPAL K.R.,
VICE CHANCELLOR
BANGALORE UNIVERSITY
BENGALURU-560056
4. BANGALORE UNIVERSITY
REP BY ITS REGISTRAR,
JNANA BHARATHI CAMPUS,
BENGALURU-560056. ...RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W
SRI R.KOTHWAL, ADV. FOR R-1;
SRI ADITYA SONDHI, SENIOR COUNSEL A/W
SRI K.KRISHNA, ADV. FOR R-2;
SRI P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SRI OMKAR KAMBI, ADV. FOR R-3;
SRI T.P.RAJENDRA KUMAR SUNGAY, ADV. FOR R-4.)
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE WRIT
APPEAL AND SET ASIDE THE ORDER DATED 24.09.2019
PASSED IN W.P.NO.55552/2018 (GM-RES).
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THESE APPEALS HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
Since common and akin issues are involved, the matters are heard together and disposed of, by this common judgment.
2. These intra Court appeals are filed against the order dated 24.9.2019 passed by the learned Single Judge in W.P.No.55552/2018, whereby the learned Single Judge has allowed the writ petition filed by Dr.Sangamesh Patil A, setting aside the notification dated 12.6.2018, by which Professor Venugopal K.R, was appointed as the Vice Chancellor of Bangalore University.
3. The petitioner - Dr.Sangamesh Patil A., claiming to be the Professor in the discipline of Industrial Chemistry, Gulbarga University, Gulbarga, has filed the writ petition challenging the appointment -7- of Dr.K.R.Venugopal as the Vice Chancellor of Bengaluru University.
4. It transpires that the Search Committee had recommended a panel of three names including the petitioner for selection to the post of Vice Chancellor, Bengaluru University, as per the decision taken on 11.5.2017. The Hon'ble Chancellor appointed Professor Venugopal K.R, as Vice Chancellor of Bengaluru University. This appointment of Professor Venugopal K.R, was challenged in the writ petition on the ground that the same is in blatant violation of the provisions of Section 14(4) of the Karnataka State Universities Act, 2000 ('Act' for short) for want of concurrence of the State Government placing reliance on the Co-ordinate Bench decision of this Court in the case of the State of Karnataka, rep., by its Principal Secretary, Higher Education Department v. Dr. Shivayogeppa B.Hinchigeri and others, reported in ILR 2015 KAR -8-
81. It was contended that the Deputy Secretary to Government had forwarded a communication to the Registrar, Bengaluru University, to rescind the order of appointment of Professor Venugopal K.R, to the post of Professor/Vice Chancellor since the Director, Backward Tribe Department has sent a communication to the Principal Secretary, Social Welfare Department, alleging false caste certificate obtained by said Professor Venugopal K.R, on the basis of which he was appointed to the post of Professor.
5. Respondent Nos.1 and 2 had filed the statement of objections. Considering the same, the writ petition came to be disposed of placing reliance on the Division Bench ruling of this Court in Dr. Shivayogeppa B.Hinchigeri, supra, observing that the Court is conscious of the fact that the writ petition has been heard without the objections of the respondent Nos.3 and 4. Accordingly, quashed the notification -9- dated 12.6.2018 - the appointment order of Professor Venugopal K.R, as Vice Chancellor. Being aggrieved, WA.No.3779/2019 is filed by the Bengaluru University; WA.No.3839/2019 is filed by the Hon'ble Chancellor of Bengaluru University; WA.No.3780/2019 is filed by Professor Venugopal K.R; and WA.No.3909/2019 is filed by the State.
6. Learned Senior Counsel Sri Aditya Sondhi appearing for the Hon'ble Chancellor of Bengaluru University (appellant in WA.No.3839/2019) argued that the Search Committee was constituted as per Section 14(2) of the Act to select a panel of three names of eminent academicians for selection of a Vice Chancellor. The Search Committee has submitted the names to the State Government which was submitted to the Hon'ble Chancellor, who was required to appoint one person from the panel as a Vice Chancellor keeping in view merit, equity and social justice and with the
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concurrence of the State Government. As the State Government has not concurred with the appointment of Professor Venugopal K.R, who was selected by the Hon'ble Chancellor, proviso to Section 14(4) of the Act was attracted. In terms of the said proviso, Hon'ble Chancellor with the concurrence of the State Government had called for a second panel. The name of Professor Venugopal K.R was selected. Hon'ble Chancellor had issued a notification dated 12.6.2018 appointing Professor Venugopal K.R, as the Vice Chancellor of the Bengaluru University for a period of four years or till he attains the age of 67 years, whichever is earlier.
7. Learned Senior Counsel argued that no concurrence of the State Government is required when the power is exercised under proviso to Section 14(4) calling for a second panel. The State Government after concurring with the Hon'ble Chancellor appointed the
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second Search Committee who inturn has submitted the names of eminent academicians. As such, the panel submitted by the second Search Committee is final, the concurrence of the State Government as required to constitute the second search committee is complied with.
8. Learned Senior Counsel referring to Section 64 of the Act submitted that the Legislature has employed the phrase "prior concurrence", whereas the phrase "prior" is consciously omitted by the Legislature in Section 14(4) of the Act. Thus, post facto concurrence is valid. The appointment made on 12.6.2018 was concurred with, by the State Government on 28.6.2018, hence ratified. Learned Senior Counsel also submitted that Dr. Shivayogeppa B.Hinchigeri supra, is not applicable to the case on hand since the present case deals with proviso to Section 14(4) of the Act, wherein the Search Committee
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has submitted a second panel which shall be final. In support of his contention, learned Senior Counsel placed reliance on the decision of the Hon'ble Apex Court in the case of All Bihar Christian Schools' Assn. v. State of Bihar, reported in (1988) 1 SCC 206.
9. Learned Additional Advocate General appearing for the State (appellant in WA.No.3909/2019) submitted that the Search Committee, constituted by the State Government under the provisions of Section 14 of the Act, had recommended the names of three candidates for the post of the Vice Chancellor of Bengaluru University, Professor K.R.Venugopal's name proposed by the Hon'ble Chancellor was not concurred by the State Government at the first instance and as such, a second panel was called for, by invoking proviso to Section 14(4), whereby fresh list of three names was suggested. The second panel was sent to the Hon'ble Chancellor. Learned Additional Advocate General
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submitted that the appointment order dated 12.6.2018, whereby Professor Venugopal K.R, was appointed, was subsequently concurred by the State Government on 28.6.2018. As such, the said appointment is not vitiated since the Search Committee was constituted by the State Government under the proviso to Section 14(4) of the Act, the question of once again concurring with the Hon'ble Chancellor, is not mandatory. However, as a caution, concurrence has been given on 28.6.2018.
10. Learned Additional Advocate General placed reliance on the following decision;
1) Ashok Kumar Das v. University of Burdwan, reported in (2010) 3 SCC 616; and
2) High Court of Judicature for Rajasthan v.
P.P.Singh, reported in (2003) 4 SCC 239.
11. Learned Senior Counsel Sri P.S.Rajagopal appearing for Professor Venugopal K.R (appellant in WA.No.3780/2019) submitted that the Courts can only interpret the provisions, but cannot legislate.
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Comparing the provisions of Section 14 with Section 64, it was submitted that the word "prior" being omitted by the Legislature, Court cannot add the said word to Section 14(4). Concurrence with the State Government may be prior or post appointment. Even assuming the appointment order dated 12.6.2018 was not in conformity with Section 14(4) of the Act, the same has been ratified on 28.6.2018. As such, the tenure of the Vice Chancellor being for a period of four years, Professor Venugopal K.R, having a minimum period at this stage i.e., three months, disturbing him from the said post at the fag end of his service, would not be appropriate. Learned Senior Counsel submitted that the decision of the Division Bench referred to, by the learned Single Judge has no precedential value since the respondent No.3 therein, having held office for four years had completed the term. However, the Court proceeded to adjudicate upon the issue, which is academic in nature. Thus, the reliance placed by the
- 15 -
learned Single Judge on Dr. Shivayogeppa B.Hinchigeri, supra, is misconstrued.
12. Learned Senior Counsel has placed reliance on the following judgments in support of his case;
1) Maharashtra State Mining Corporation v.
Sunil, reported in (2006) 5 SCC 96;
2) Bajaj Hindustan Limited v. State of U.P, reported in (2016) 12 SCC 613;
3) Saraswati Industrial Syndicate Ltd., v.
Union of India, reported in (1974) 2 SCC 630;
4) R.s.Nayak v. A.R.Antulay, reported in (1984) 2 SCC 183; and
13. Learned Counsel appearing for the University (appellant in WA.No.3779/2019) adopting the arguments advanced by the learned Senior Counsel Sri P.S.Rajagopal submitted that certain documents were placed by the learned counsel for Dr. Sangamesh Patil - the original petitioner along with a memo in the present writ appeal proceedings. No such documents could be taken on record in the absence of necessary application
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filed along with an affidavit. The memo filed by the learned counsel for the original petitioner cannot substitute the requirement of law for taking the documents on record, that too at the belated stage. It was submitted that document No.(1) i.e., acknowledgement receipt of letter bearing No.GS 1 BUM 2007, dated 25.11.2008 relates to the period 2008, whereas the other documents are all subsequent events, which do not have any relevancy for adjudicating the appointment of Vice Chancellor as per the order dated 12.6.2008. Thus, learned counsel sought for allowing the writ appeal confirming the appointment of Professor Venugoapl K.R as Vice Chancellor of the Bengaluru University rejecting the memo as not maintainable.
14. Learned Senior Counsel Sri Jayakumar S.Patil appearing for Dr Sangamesh Patil A - the original petitioner referring to the statement of objections filed by the Hon'ble Chancellor in the writ
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petition proceedings argued that indisputably, no concurrence was given by the State Government at the time of appointment of Professor Venugopal K.R, albeit the Hon'ble Chancellor keeping in mind merit, equity and social justice, had found Professor Venugopal K.R, as the suitable candidate. Learned Senior Counsel submitted that it is a predetermined case of not seeking concurrence, the mandatory requirement under Section 14(4) of the Act. No appointment of the Vice Chancellor could be made by the Hon'ble Chancellor without the concurrence of the State Government.
15. Inviting the attention of the Court to proviso of Section 14(4) of the Act, the learned Senior Counsel submitted that proviso is an exception carved out to the main provision hence, proviso cannot dispense with the concurrence of the State Government. In this regard, the judgment of the Hon'ble Apex Court in the case of Union of India v. Dileep Kumar Singh, reported in
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(2015) 4 SCC 421 was referred to. Section 3(2)(a) and
(b) of the Karnataka Lokayukta Act, 1984 and the judgment of the Hon'ble Apex Court in the case of Justice Chandrashekaraiah (Retired) v. Janekere C.Krishna and ors., reported in (2013) 3 SCC 117 was cited to take support to explain the phrase 'concurrence' with reference to the interpretation given to the phrase 'in consultation' employed in Section 3 of the Karnataka Lokayukta Act, 1984. Thus, it was argued that no post facto concurrence would be valid; no latitude could be taken in following the formal procedure required under Section 14(4) of the Act and proviso thereof.
16. Referring to the dictionary meaning of 'concurrence', it was submitted that the phrase "approval" cannot be equated with "concurrence". Concurrence would be more stringent than consultation. Concurrence is contemporaneous which
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indeed has to be strictly adhered to, prior to appointment. Article 368(2), proviso (c) with reference to Part IX B of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Union of India v. Rajendra N Shah and Anr., Civil Appeal No.2826/2021 & allied matters, DD July 20, 2021, was relied upon to contend that any ratification would not validate the void order of appointment. Drawing support from the judgment of Dr Shivayogeppa B Hinchigeri, supra, it was submitted that the Division Bench having declared a law whether it is academic or legal, eschewing the same would not arise. The law laid down by the Co-ordinate Bench is binding in nature. Despite the settled law, the Hon'ble Chancellor has issued the appointment order without the consultation of the State Government.
17. Learned Senior Counsel further submitted that the University ought to have been neutral in the
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given facts and circumstances. The University acting through Vice Chancellor, filing the writ appeal is in defiant to its stature. Importing the words of Section 64 "prior" in Section 14(4) would not be permissible. The provisions of Section 64 and 14(4) act in different fields. When the legislature has consciously omitted the word "prior", the same cannot be read into the provision. Thus, the learned Senior Counsel argued that the learned Single Judge having considered these aspects has rightly allowed the writ petition setting aside the order of appointment of Professor Venugopal K.R, as the Vice Chancellor of Bengaluru University and the same requires to be confirmed by this Court.
18. We have given our anxious consideration to the arguments advanced by the learned counsel appearing for the parties and perused the material on record.
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19. Section 14(4) of the Act and the proviso thereof read as under;
" 4. The Vice-Chancellor.-
(1) xxxx
(2) xxxx
(3) xxx
(4) The Search Committee shall submit to the State Government a panel of three persons who are eminent academicians, in the alphabetical order. The State Government shall forward the panel to the Chancellor who shall keeping in view merit, equity and social justice and with the concurrence of the State Government, appoint one person from the panel as the Vice-Chancellor:
Provided that the Chancellor may with the concurrence of the State Government call for a second panel if he considers it necessary and the Search Committee shall submit a second panel which shall be final."
20. In terms of the said proviso, the Search Committee has to submit to the State Government a panel of three persons who are eminent academicians in
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the alphabetical order, subsequent to which the State Government shall forward the panel to the Hon'ble Chancellor. One person from the panel shall be appointed by the Hon'ble Chancellor keeping in view merit, equity and social justice with the concurrence of the State Government. "Concurrence" of the State Government is sine qua non under Section 14(4) of the Act. The proviso carves out an exception to the main provision. In terms of the proviso, the Hon'ble Chancellor may with the concurrence of the State Government call for a second panel, if he considers it necessary. The crucial point is, whether for a second panel, concurrence of the State Government is mandatory.
21. In the case of Dileep Kumar Singh, supra, Section 73(3) and (4) of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the proviso to sub-section
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(2) of Section 47 was considered. In that context, it has been held that the provisions of the statute must be read harmoniously together. However, if this is not possible and a conflict between two sections cannot be reconciled then, it has to be determined which is the leading provision and which is the subordinate provision and which must give way to the other. In paragraph 20 it has been held thus;
20. Equally, it is settled law that a proviso does not travel beyond the provision to which it is a proviso. Therefore, the golden rule is to read the whole Section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. This is laid down in Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, as follows:-
"18. We may mention in fairness to Counsel that the following, among other decisions, were cited at the Bar bearing on the uses of provisos in statutes: CIT v.Indo-Mercantile Bank Ltd, [AIR 1959 SC 713 : 1959 Supp (2) SCR 256, 266 : (1959) 36 ITR 1] ; Ram Narain Sons Ltd. v. Asstt. CST [AIR 1955
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SC 765 : (1955) 2 SCR 483, 493 : (1955) 6 STC 627] ; Thompson v. Dibdin [(1912) AC 533, 541 : 81 LJKB 918 : 28 TLR 490] ; Rex v. Dibdin [1910 Pro Div 57, 119, 125] and Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Supp (2) SCR 875, 893 :
1959 Cri LJ 1231] . The law is trite. A proviso must be limited to the subject- matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. "Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context" (Thompson v. Dibdin, 1912 AC
533). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject- matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a
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proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction."
22. In the case of S. Sundaram Pillai v. V.R. Pattabiraman, reported in 1985 AIR 582, the Hon'ble Apex Court has explained the scope of the proviso, which reads thus;
"A proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something
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which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself.
To sum up, a proviso may serve four different purpose:
1] qualifying or excepting certain
provisions from he main enactment;
2] it may entirely change the very
concept or the intendment of the enactment by
insisting on certain mandatory conditions to be fulfilled in order to make the enactment worktable;
3] it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and 4] it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. [Case law discussed.]"
Thus, a proviso cannot be used to nullify the main provision.
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23. The argument of the respective learned Senior Counsel appearing for the appellants that no concurrence of the State Government is required to appoint one person from the second panel as the Vice Chancellor, under Section 14(4) read with the proviso cannot be countenanced since the Hon'ble Chancellor cannot dispense with the requirements of merit, equity and social justice as well even exercising the power under the proviso, certainly the same applies to 'concurrence' as well. The construction of proviso must be considered in relation to the principal provision to which it stands as a proviso. The cardinal principle is that both should be read together harmoniously.
24. In the case of Dr Shivayogeppa B.Hinchigeri, supra, the Division Bench has considered the dictionary meaning of the word 'concurrence'. It is beneficial to quote the same. Paragraphs 16 and 17 read as under;
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"16. The meaning of the word 'concurrence' in Black's Law Dictionary, IX edition is, '1. Agreement; assent 2. A vote cast by a Judge in favor of the Judgment reached, often on grounds differing from those expressed in the opinion or opinions explaining the Judgment. 3. A separate written opinion explaining such a Vote - Also termed (in sense 3) concurring opinion [cases; courts - 108]. 4. Acceptance by one house in a bicameral legislature of an amendment passed by the other house.'
17. (i) The meaning of the word 'concurrent' in Concise Oxford English Dictionary, 12th Edition, 'concurrent' means, '1. existing or happening at the same time.
2. agreeing or consistent. 3.Mathematics(of three or more lines) meeting at or tending towards one point.'
(ii) K.J. Aiyar's Judicial Dictionary, 16th Edition is:-
'Acting in conjunction; agreeing in the same act; contributing to the same event; contemporaneous.'
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(iii) P. Ramanatha Aiyer's The Law Lexicon, II Edition is:-
'Having the same authority; acting in conjunction; existing together agreeing in the same act; contributing to the same event; contemporaneous; running together; co-operating; contributing to the same effect; accompanying; conjoined; associate; concomitant; joint and equal [as] concurrent sentences; running together in time or space; covering the same ground."
25. Having regard to the use of the word 'concurrence', it has been held that the parties are required to make their points of view known to each other and discuss and examine the relative merits of their views, making it incumbent upon the Hon'ble Chancellor to have made his proposal to the State Government, who may or may not have had a counter proposal, since that stage had yet to set in.
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26. The endeavor made by the learned Senior Counsel appearing for the Hon'ble Chancellor that this judgment is not rendered in the context of the proviso and the same is not applicable herein, is wholly fallacious. Merely for the action if, initiated under the proviso, where the search committee has submitted a second panel, the requirement of concurrence, cannot be waived off which indeed is an essence of the main provision. Proviso cannot be torn out from the main enactment to give a different colour altogether.
27. In the case of Justice Chandrashekaraiah, supra, the Hon'ble Apex Court having regard to the phrase 'consultation' under Section 3 of the Karnataka Lokayuktha Act, 1984, has observed thus;
"77. The Chief Minister is legally obliged to consult the Chief Justice of the High Court and other four consultees, which is a mandatory requirement. The consultation must be meaningful and effective and mere eliciting the views or calling for recommendations would not suffice.
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The consultees can suggest various names from the source stipulated in the statute and those names have to be discussed either in a meeting to be convened by the Chief Minister of the State for that purpose or by way of circulation. The Chief Minister, if proposes to suggest or advise any name from the source earmarked in the statute that must also be made available to the consultees so that they can also express their views on the name or names suggested by the Chief Minister. The consultees can express their honest and free opinion about the names suggested by the other consultees including the Chief Justice or the Chief Minister. After due deliberations and making meaningful consultation, the Chief Minister of the State is free to advise a name which has come up for consideration among the consultees to the Governor of the State. The advice tendered by the Chief Minister will have primacy and not that of the consultees including the Chief Justice of the High Court."
28. It is significant to note that in Section 3(2)(a) of the Karnataka Lokayukta Act, 1984, the Legislature has provided for consultation, wherein no prior or post
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consultation is specifically mentioned. In such circumstances, 'consultation' for the post of Lokayuktha/Upa Lokayuktha is held to be a mandatory requirement at the time of appointment.
29. It is true that Section 64 of the Act deals with Autonomous College, sub-section (1) of Section 64 specifies that the University may with the 'prior concurrence' of the State Government designate for such period as may be specified, an affiliated college, department or units as an Autonomous College for any course of study, after following the procedure and subject to such conditions as may be specified in the Statutes made in this behalf. Sub-section (3) of Section 64 deals with continuing designation of the Autonomous College for a further period as may be specified or to cancel such designation. Thus, the said provision contemplates for 'prior concurrence' of the State Government.
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30. Merely for the reason that Section 64 contemplates 'prior concurrence' of the State Government, it cannot be held that Section 14(4) provides for post facto concurrence. Any phrase consciously not used in Section 14(4) cannot be read in, importing the words provided in Section 64(1) and (3) of the Act. It is well settled that the Courts cannot add or subtract words to a statute or read something into it which is not there. Courts cannot rewrite or recast legislation. The Courts cannot fill up the gap by stretching the word used. It is trite that Courts can only interpret the provision but not to legislate by adding words.
31. In the case of All Bihar Christian Schools Association and another, supra, the Hon'ble Supreme Court while interpreting the phrase 'concurrence' in the context of recognition of minority secondary schools under the provisions of the Bihar Secondary Education
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Board Act, 1976 and the Bihar Secondary Board (Second Amendment) Ordinance, 1980, has held that under clause (b) to the proviso which lays down that the School Service Board while considering the question of granting approval to the appointment of a teacher, shall ascertain if the appointment is in accordance with the rules laying down qualifications, and manner of making appointment framed by the State Government mandates the Managing Committee to make appointment of a teacher with the concurrence of the School Service Board. In that scenario, it has been held that the expression 'concurrence' means approval, such approval need not be prior approval as the clause does not provide for any prior approval. Object or purpose underlying clause (b) is to ensure that the teachers appointed in a minority school should possess requisite qualifications and they are appointed in accordance with the procedure prescribed and the appointments are made for the sanctioned strength.
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32. At this juncture, it would be beneficial to quote the words of Justice Holmes that "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used". Hence, in our considered view, with great respect, interpretation of the expression 'concurrence' in the context of recognition of Minority Secondary Schools under the provisions of the Bihar Secondary Education Board Act, 1976, cannot be treated on par with the "concurrence" of the State Government required under Section 14(4) of the Act.
33. In the case of P.P.Singh, supra, effect of the recommendations of a committee of two judges as regards criteria for grant of selection scale appointed by the Acting Chief Justice which has been subsequently approved by the Full Court was considered. In that context it has been held thus;
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"40. When an approval is required, an action holds good. Only if it disapproved it losses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad and Another v. Friends Coop. Housing Society Ltd and Another [(1995) Supp (3) SCC 456]. In the instant case both the aforementioned requirements have been fulfilled.
41. There is another aspect of the matter. In terms of Rule 2(2) of the Rules, the decision of the Full Court would have a retrospective effect and retroactive operation.
42. In any view of the matter, even in a case where the initial action is illegal, the same can be ratified by a body competent therefor. This aspect of the matter has not been considered by the High Court at all. In Sri Parmeshwari Prasad Gupta v. the Union of India [(1973) 2 SCC 543] this Court held :
"Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16,
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1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953"
(See also Marathwada University v.
Seshrao Balwant Rao Chavan (1989) 3 SCC 132 para 28], Babu Verghese and Others v. Bar Council of Kerala and Others [(1999) 3 SCC 422 para 35] and Barnard v. National Dock Labour Board [(1953) 1 All ER 1113])."
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34. With great respect, in our considered view, this judgment would be of little assistance to the appellants herein.
35. With regard to the judgments relied upon by learned Senior Counsel Sri.P.S.Rajagopal appearing for Professor Venugopal K.R, in the case of Maharashtra State Mining Corporation, supra, the Hon'ble Apex Court was dealing with the order of dismissal of an employee by a legally incompetent authority. In that context, it was held that the High Court rightly held that an act by a legally incompetent authority is invalid, but it was entirely wrong in holding that such an invalid act could not be rectified by ratification of the competent authority. This ratio would not come to the assistance of the appellants while 'concurrence' is contemporaneous in terms of Section 14(4) read with proviso of the Act; in the case of Bajaj Hindustan Limited, supra, the Hon'ble Apex Court has considered
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the effect of ex post facto approval amounts to sufficient compliance with the proviso to sub-section (1) of Section 3-A of the U.P. Sugarcane (Purchase Tax) Act, 1961. The Hon'ble Apex Court has held that the word 'approval' includes ratifying of the action, ratification obviously can be given ex post facto approval. But in our considered view, 'approval' differs from 'concurrence'; and in the case of R.S.Nayak, supra, the question that, regarding the competent authority to sanction prosecution as envisaged in Section 6 of the P.C.Act, 1947, would not arise since the vital question has become one of academic interest. But the said finding would not nullify the decision taken in Dr. Shivayogeppa B.Hinchigeri, supra, it is trite that in order to lay down the correct position of law, if the matter is decided by a Division Bench against the order of the learned Single Judge, the same cannot be held to be not a binding precedent as argued by the learned Senior Counsel for the appellant in WA.No.3780/2019.
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Thus, we are of the considered view that the judgments referred to by the learned Senior Counsel appearing for the appellant have no applicability to the facts and circumstances of the case.
36. The appointment order dated 12.6.2018 impugned in the writ petition does not speak about the concurrence with the State Government, whereas the notification dated 28.3.2018 (Annexure-Z to the original writ petition) appointing Dr.Manjunatha Krishnappa Naik, Director of Research, University of Agricultural and Horticultural Sciences, as Vice Chancellor of the University of Agricultural and Horticultural Sciences, Shivamogga, for a period of four years with effect from the date of assumption of office or until he attains the age of 65 years, whichever is earlier categorically specifies that the Hon'ble Chancellor of the University keeping in view merit, equity and social justice and with the concurrence of the State Government has
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appointed the Vice Chancellor. Similarly, as per the notification dated 12.6.2018 (Annexure-AA to the original writ petition) whereby the Hon'ble Chancellor of the Karnataka State Law University, Hubballi, has appointed Dr.P.Ishwar Bhat, former Vice Chancellor, Karnataka State Law University, Hubballi, for a period of four years with effect from the date of assumption of office or until he attains the age of 67 years whichever is earlier, the same has been done considering merit, equity and social justice and with the concurrence of the State Government, whereas the impugned notification dated 12.6.2018 discloses that keeping in view merit, equity and social justice and keeping in mind the immediate need and interest of the University, Professor Venugopal K.R, former Principal, University of Visvesvaraya college of Engineering, Bengaluru, has been appointed as Vice Chancellor, Bangalore University, for a period of four years with effect from the
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date of assumption of office or until he attains the age of 67 years whichever is earlier.
37. Any ratification said to have been made on 28.6.2018 to the appointment order dated 12.06.2018 cannot cure the defects and validate the invalid action. It is well settled legal principle that when the statute prescribes a power to do a certain thing in a certain way, that thing has to be done in that way or not at all. This legal principle is succinctly followed in catena of decisions. In the case of Babu Verghese and others v. Bar Council of Kerala and others, reported in (1999) 3 SCC 422, wherein at paragraph 31, the Apex Court has held thus:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the
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decision in Taylor v. Talylor [ (1875) 1 Ch D 426] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [ (1936) 63 IA 372] who stated as under:
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
38. Having regard to these aspects, the view expressed by the learned Single Judge in dismissing the writ petition cannot be held to be vitiated. We find no reasons to interfere with the well considered order of the learned Single Judge.
For the reasons aforesaid, writ appeals stand dismissed. All the pending IA's and Memo's are disposed of accordingly.
Sd/-
JUDGE Sd/-
JUDGE nd