Karnataka High Court
Dr. A. Rangaswamy vs The State Of Karnataka on 7 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 1866
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.8728 OF 2020(S-RES)
BETWEEN:
DR. A. RANGASWAMY
S/O ANNE GOWDA
AGED ABOUT 60 YEARS
CHAIRMAN AND PROFESSOR
DEPARTMENT OF STUDIES AND
RESEARCH IN KANNADA
KARNATAKA STATE OPEN UNIVERSITY
MUKTHAGANGOTRI
MYSORE-570006.
...PETITIONER
(BY SRI: SHIVARUDRA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF HIGHER EDUCATION
(UNIVERSITIES)
M S BUILDING
BANGALORE-560001.
REP BY ITS ADDITIONAL CHIEF SECRETARY
2. SEARCH COMMITTEE FOR SELECTION OF
VICE-CHANCELLOR
KARNATAKA RAJYA DR GANGUBAI HANAGAL
2
SANGEETHA MATTU
PRADARSHAKA KALEGALA
VISHVAVIDYALAYA, MYSORE
DEPARTMENT OF HIGHER EDUCATION
M S BUILDING
BANGALORE-560001
REP BY ITS CHAIRMAN
DR T S SATYVAVATHI
3. SEARCH COMMITTEE FOR
SELECTION OF VICE-CHANCELLOR
GULBARGA UNIVERSITY
GULBARGA
DEPARTMENT OF HIGHER EDUCATION
M S BUILDING
BANGALORE-560001
REP BY ITS CHAIRMAN
PROF SANTOSH PANDA
4. DR LINGARAJA GANDHI
S/O KALEGOWDA
AGED ABOUT 60 YEARS
REGISTRAR,
KARNATAKA STATE OPEN UNIVERSITY
MUKTHAGANGOTHRI
MYSORE-570006
5. KARNATAKA STATE OPEN UNIVERSITY
MUKTHAGANGOTHRI
MYSORE-570006
REP BY VICE-CHANCELLOR
...RESPONDENTS
(BY SRI: PRABHULING K. NAVADGI, A.G. A/W
SMT: PRAMODHINI KISHAN, AGA FOR R1 TO R3;
SRI: M.P. SRIKANTH, ADVOCATE FOR R4 AND R5)
---
3
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RELEVANT RECORDS FROM R-4 AND 5 AND ISSUE A WRIT OF
MANDAMUS DECLARING THE ACT OF R-4 MAKING FALSE /
MISLEADING REMARKS AGAINST THE PETITIONER IN THE
LETTER DATED 9.3.2020 VIDE ANNEXURE-L WHILE
FORWARDING THE APPLICATION OF THE PETITIONER FOR THE
POST OF VICE-CHANCELLOR TO KARNATAKA RAJYA
DR.GANGUBAI HANAGAL SANGEETHA MATTU PRADARSHAK
KALEGAL VISHVAVIDYALAYA, MYSORE TO THE EFFECT THAT A
COMMITTEE TO HOLD A DEPARTMENTAL ENQUIRY HAS BEEN
CONSTITUTED AND THE SAID ENQUIRY IS PENDING AS ILLEGAL
ARBITRARY AND MISLEADING AND ALSO ISSUE A WRIT OF
MANDAMUS DIRECTING R-1 AND 2 TO RECONSIDER THE
CANDIDATURE OF THE PETITIONER DATED 4.3.2020 VIDE
ANNEXURE-D INDEPENDENTLY ON ITS MERITS WITHOUT BEING
INFLUENCED BY THE REMARKS MADE BY R-4 FOR THE POST OF
VICE-CHANCELLOR OF KARNATAKA RAJYA DR. GANGUBAI
HANAGAL SANGEETHA MATTU PRADARSHAN KALEGAL
VISHVAVIDYALAYA, MYSORE (IF NOT ALREADY CONSIDERED ON
8.7.2020) AND ETC.
THIS WRIT PETITION COMING ON FOR DICTATING
ORDERS, THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT MADE THE FOLLOWING:
4
ORDER
Heard learned counsel for petitioner, learned Advocate General for respondent Nos.1 to 3 and learned counsel for respondent Nos.4 and 5.
2. Petitioner is an aspirant for the post of Vice Chancellor to Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore and Gulbarga University, Kalaburgi. These posts were notified to be filled by selection vide notifications dated 19.02.2020 and 27.02.2020 (Annexures-'B' and 'C') respectively.
3. Petitioner claims to be eligible and suitable for the above posts as he has vast administrative as well as academic expertise in the field of education and also has successfully guided eight Ph.D. candidates and three M.Phil. candidates, apart from having involved in Kannada literature and has been a renowned educationist in the field of Music and performing Arts and is fully qualified and eligible to hold the post of Vice Chancellor in any Universities in the State of Karnataka. 5 According to the petitioner, he is the senior most Professor and Chairman of Department of Studies and Research in Kannada at the 5th respondent University, having put in more than 11 years of service with unblemished records and has held several administrative/academic/literary posts in the University and other organizations such as the Registrar of Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore, Registrar (Evaluation) of Karnataka State Open University, Mysore and has been the Chairman of Board of Studies of P.G. Research Board from 2018 till date as per the details furnished in the petition.
4. The grievance of the petitioner is that, pursuant to the notifications vide Annexures-B and C, he submitted his applications in the prescribed forms through proper channel within the last date specified in the said notifications, by enclosing all the relevant documents required for the same as per applications dated 04.03.2020 and 10.03.2020 (Annexures- 'D' and 'E'). The fourth respondent who was then the Registrar of Karnataka State Open University, Mysore was required to 6 forward these applications to the respective Universities. However, during the second week of May 2020, it came to the notice of the petitioner that the fourth respondent while forwarding the applications of the petitioner, in his covering letter dated 09.03.2020, wrongly mentioned that a committee was constituted for departmental enquiry against the petitioner and the said enquiry is pending, though no committee was constituted and no departmental enquiry was pending against the petitioner as on the said date. According to the petitioner, the 4th respondent who was then working the Registrar of Karnataka State Open University, Mysore in which petitioner was working as senior Professor was also one of the aspirants for the said post and he had also made applications for the same and hence, the 4th respondent deliberately and with mala fide intention to keep away the candidature of the petitioner made the above false and misleading remarks.
5. It is further averred that the action of the 4th respondent clearly establishes his mala fide intention and apprehension that if the petitioner is in the fray, he may not get 7 the chance, considering the status of the petitioner, his expertise in the field of administration, academic and performing arts and other activities and hence on coming to know about the above remarks, the petitioner made a representation dated 23.06.2020 addressed to the Vice Chancellor and also the members of the Board of Management of the Karnataka State Open University, Mysore about the misleading remarks made by the 4th respondent while forwarding his applications. The 5th respondent refused to accept the said representation submitted by hand and hence petitioner had to send copies of the same through registered post vide Annexures-'J' and 'J1'.
6. That being the case, petitioner was surprised to receive a show-cause notice dated 23.06.2020, served on him on 24.06.2020, in which 4th respondent sought explanation within a period of 15 days alleging certain illegalities by framing charges on him, by referring to a decision of the Board of Management which was taken as back as on 18.11.2018. According to the petitioner, the said show-cause notice was issued by the 4th respondent in collusion with the 5th respondent 8 alleging false and frivolous charges without even furnishing necessary documents in support of the same. The said show- cause notice is being challenged by the petitioner before the appropriate court of law. According to the petitioner, when the said show-cause notice Annexure-K was served on him, no committee was constituted in respect of the alleged enquiry and no disciplinary proceedings were pending against him. In the meanwhile, the 1st respondent constituted a search committee for selection and recommendation for the post of Vice Chancellor in respect of Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore. The second respondent was appointed as a Chairman and in respect of Gulbarga University, Kalaburgi, a search committee was constituted under the chairmanship of Prof. Santosh Panda under two separate notifications.
7. On coming to know about the fixing of the meetings by the second respondent, petitioner addressed a letter dated 02.07.2020 and informed the second respondent about the false and misleading remarks made by the 4th respondent and 9 requested to consider his candidature on par with the other applicants vide his representation dated 02.07.2020 Annexure- 'N'. It is contended in the petition that the action of the 4th respondent in making false and misleading remarks as per Annexure-'L' dated 09.03.2020 about the alleged constitution of the committee and pendency of disciplinary enquiry against the petitioner as on 09.03.2020 is totally false, misleading and has been made with a mala fide intention to deprive the petitioner from consideration of his candidature by respondent Nos.1 to 3. According to the petitioner, he is entitled for consideration of his representations Annexure-H dated 12.06.2020 and Annexure-N dated 02.07.2020 by respondent Nos.1 to 3 on merits on par with other applicants for the post of Vice Chancellors to Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore and Gulbarga University, Kalaburgi. Thus the petitioner sought for following reliefs namely:-
i) Issue a writ in the nature of mandamus declaring the act of respondent No.4 making false / misleading remarks against the petitioner in the 10 letter dated 09.03.2020 vide Annexure-L, while forwarding the application of the petitioner for the post of Vice Chancellor to Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore, to the effect that "a committed to hold a departmental enquiry has been constituted and the said enquiry is pending" as illegal, arbitrary and misleading and also;
ii) Issue a writ in the nature of mandamus directing
the respondents 1 and 2 to reconsider the
candidature of the petitioner dated 04.03.2020
(vide Annexure-D) independently on its merits without being influenced by the remarks made by 4th respondent for the post of Vice Chancellor of Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore (if not already considered on 08.07.2020) and also;
iii) Issue a writ in the nature of mandamus directing respondents 1 & 3 to reconsider the candidature of the petitioner dated 10.03.2020 (vide Annexure-E) independently on its merits without being influenced by the remarks made by 4th respondent for the post of Vice Chancellor of Gulbarga 11 University, Kalaburagi (if it is not considered on 13.07.2020) and;
iv) Declare the action of respondents 1 to 3 in not considering the candidature of the petitioner for the post of Vice Chancellors of Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore and Gulbarga University, Kalaburgi (if not already considered) as illegal, arbitrary and not sustainable in the eye of law and further declare that the recommendations made by respondents 2 and 3 or and further proceedings pursuant thereto by the 1st respondent as arbitrary, illegal and unsustainable in law and;
v) Direct the 1st respondent to hold an enquiry against the 4th respondent for having made false and misleading remarks against the petitioner while forwarding the applications of the petitioner for the posts of Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore and Gulbarga University, Kalaburgi, vide Annexure-L and;
vi) Grant such other relief/s as this Hon'ble Court deems fit to grant, in the facts and circumstances of the case, in the interest of justice and equity. 12
8. Respondent Nos.4 and 5 do not dispute the fact that while forwarding the applications of the petitioner, the 4th respondent has made a remark in the covering letter - Annexure-'L' that a committee has been constituted to hold departmental enquiry and enquiry is pending against the petitioner. However, in their joint statement of objections, respondent Nos.4 and 5 have sought to justify the remark on the ground that the Board of Management at its meeting held on 16.11.2018 has resolved to take suitable action as per Rules against the petitioner and subsequently on 14.08.2018, the Sub- Inspector of Police, CCB, Mysore City in connection with case No.178/2017 requested the Vice Chancellor, Karnataka State Open University, Mysore to furnish some documents pertaining to the marks card scandal and in response to the said memo, petitioner furnished his reply on 28.10.2019 disowning inaction on his part. In the meanwhile, by a University Order dated 29.02.2020, a disciplinary enquiry committee was constituted and Sri. H.S. Ramanna, a retired District & Sessions Judge was 13 appointed as Enquiry Officer to conduct enquiry against the petitioner.
9. Further, it is narrated in the objection statement that the Addl. Chief Secretary, Higher Education Department, Government of Karnataka had directed the 4th respondent to furnish the information about the pendency of proposed or completed departmental enquiry or criminal cases in respect of the petitioner and had warned respondent Nos.4 and 5 that the information with regard to any enquiry or criminal case is suppressed by the officials, criminal cases would be filed against them, hence, in compliance with the above instructions, the Additional Chief Secretary was informed that while working as Registrar (Evaluation), petitioner had carried away some of the files pertaining to the examination section in a private vehicle and that he did not give proper information with regard to the issue of provisional pass certificates and degree certificates to the students. Further, he did not furnish information sought for by the police with regard to marks card scandal and hence, the 14 Board of Management in its meeting held on 16.11.2018 resolved to take disciplinary action as per Rules.
10. It is further averred that the 4th respondent as Registrar of the University, in his bounden duty, forwarded the application of the petitioner furnishing the above remarks as per the resolution of the Board of Management and as required by Addl. Chief Secretary. The 4th respondent does not have any specific interest with regard to the case of the petitioner. He has acted only as an officer who is assigned to perform his duties. Therefore, he has not committed any illegality by incorporating the remarks in the covering letter Annexure-L. Further, it is contended that the 4th respondent has been arrayed as respondent in his individual capacity though he has performed the above acts in his official capacity and though the University is represented by the Registrar as per section 3(8) (f) of the Karnataka State Open University Act, the petitioner has arrayed the Vice Chancellor as representing the University. It is further averred that the Disciplinary proceeding having been initiated against the petitioner as on the date of filling the Writ Petition, 15 the petitioner is guilty of suppression of the material facts and for all these reasons, the petition is liable to be rejected.
11. Respondent No.1 in his statement of objections has conceded the position that the fourth respondent while forwarding the application submitted by the petitioner has incorporated a remark to the effect that an Enquiry Committee has been appointed and an enquiry has been pending against the petitioner. However, respondent No.1 has taken up a plea that notwithstanding such a statement by the fourth respondent, the application submitted by the petitioner for the post of Vice Chancellor of Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore was placed before the Search Committee along with other applications. The Search Committee has submitted to the State Government a panel of three names as required under clause (4) of section 12 of the Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya Act, 2009. It is further stated that there were 11 applications received to the said post and a list was prepared and name of the petitioner finds place at 16 Sl.No.9. Likewise, the application submitted by the petitioner for the post of Vice Chancellor of Gulbarga University, Kalaburagi was also placed before the Search Committee and therefore, the apprehension of the petitioner that his applications were not considered by the Search Committee is not a fact.
12. Respondent No.1 has further pleaded that the Search Committee constituted to find out the eligible names has finalized three names and forwarded the same to the office of the first respondent in a sealed cover and as such, the process of selection by the Search Committee is over and the process of appointing the Vice Chancellor is pending with the Chancellor of the University i.e., Hon'ble Governor of Karnataka, in consultation with the State. The selection of the Vice Chancellor is based on the outcome of the Search Committee results and none of the authorities have a say in the proceedings of the Search Committee but for the provisions of the concerned enactments and therefore, the anxiety or the apprehension of the petitioner does not invalidate his candidature if his application is valid in all other factors. Thus respondent No.1 17 has sought to dismiss the petition contending that the prayers sought for by the petitioner cannot be considered at this juncture as the same would hamper the process of selection which is almost at the final stage.
13. In the course of argument, learned counsel for petitioner has emphasised that with a view to keep the petitioner out of the fray, respondent Nos.4 and 5 in collusion with each other have deliberately made a false communication to the concerned authorities. The said remark or communication is false and baseless as no enquiry was either initiated or pending against the petitioner as on the date of submission of the application or on the date of forwarding his application to the respective Universities. Referring to the documents produced by respondent Nos.4 and 5, learned counsel pointed out that in order to cover up the above misleading statement, respondent No.4 has issued an order backdating the same as 29.02.2020 purporting to appear that an Enquiry Committee headed by the retired District Judge Sri.H.S.Ramanna was appointed to hold the disciplinary enquiry against the petitioner. It is the submission 18 of the learned counsel that the said document has come into existence only after filing of the above writ petition and the copy thereof has not been served on the petitioner till date. To this effect, a rejoinder has been filed by the petitioner. It is pointed out that even the show-cause notice / article of charges was served on the petitioner only on 24.06.2020 vide Annexure-'K' indicating that the enquiry was initiated against the petitioner only on 23.06.2020. In the said circumstances, the alleged appointment of the Enquiry Officer vide letter 29.02.2020 is contrary to Rule 9(5) of the Mysore University Employees (CCA) Statutes 1983, which on the face of it, establish bias on the part of the respondent Nos.4 and 5 against the petitioner. In other words, it is the submission of the learned counsel for petitioner that eventhough there was no enquiry officer was appointed, and no inquiry had commenced until the applications submitted by the petitioner, yet, solely with a view to keep away the candidature of the petitioner, false and misleading records have been created only to justify the illegal conduct of respondent No.4 in communicating the above remarks which is manifestly illegal and mala fide and since the said communication has a 19 tendency to prejudice the mind of the Selection Committee, it is necessary to direct respondent Nos.1 to 3 to consider the candidature of the petitioner on its own merits without being influenced by the remarks made by the fourth respondent. In support of his submission, learned counsel for petitioner has placed reliance on the decision of the Hon'ble Supreme Court of India in the case of STATE OF PUNJAB vs. V.K.KHANNA & Others, AIR 2001 SC 343.
14. Learned Advocate General appearing for respondent Nos.1 to 3 in the course of his submissions emphasized that the candidature of the petitioner having been duly considered by the Search Committee, there is no cause of action for the petitioner to pursue the reliefs claimed in the petition. Referring to section 14 of the Karnataka State Universities Act, 2000, learned Advocate General pointed out that as required under the said provisions, the names of three persons have been short-listed and forwarded to the State Government, as such, the reliefs claimed by the petitioner have become infructuous. Alternatively, he submitted that if for any reason the remarks 20 forwarded by respondent No.4 has affected the decision of the Selection Committee, adequate remedy is available to the petitioner to challenge the decision making process after declaration of the result and therefore the petition, as brought before the court, is premature and is liable to be dismissed on that score. He emphatically submitted that the entire process of selection having reached fag end and no mala fide or bias having been attributed to the members of the Search Committee and there being no reason to doubt the integrity or impartiality of the members of the Search Committee, the Court may refrain from interfering with the selection process which has reached its final stage. In support of his submission, learned Advocate General has referred to the decision in TATA CELLULAR vs. UNION OF INDIA, (1994) 6 SCC 651.
15. Learned counsel for respondent Nos.4 and 5, in line with the stand taken in the statement of objections, has referred to the sequence of events, starting from the resolution passed by the Board of Management on 16.11.2018 and submitted that, pursuant to the said resolution, a enquiry committee was 21 constituted headed by Sri H.S.Ramanna, retired District and Sessions Judge vide order dated 29.02.2020 and as such, there is no illegality or mala fide whatsoever on the part of the respondent No.4 in communicating the said fact to the concerned. Further learned counsel pointed out that as on the date of approaching this court, petitioner was served with the articles of charge and he had submitted his explanation thereto and in the said circumstances, there being prima facie material to show that he was facing a disciplinary enquiry, petitioner is not entitled for any of the reliefs claimed in the petition and thus, he sought for dismissal of the petition. In support of his submission, learned counsel has placed reliance on the decision in N.K.SINGH vs. UNION OF INDIA & Others, (1994) 6 SCC 98.
16. I have bestowed my anxious thought to the submissions made by learned counsel appearing for the parties and have carefully scrutinized the pleadings and the documents produced along with the writ petition.
17. The sum and substance of the grievance of the petitioner is that, with a mala fide intention of keeping away the 22 candidature of the petitioner, respondent No.4 in collusion with respondent No.5 communicated a false and baseless remark in the covering letter at Annexure-'L' to the effect that the petitioner was facing a disciplinary enquiry and an Enquiry Officer has been appointed to enquire into the misconduct alleged against the petitioner. The contention of the petitioner is that the said remarks, apart from being false and baseless, are tainted with mala fides inasmuch as an attempt has been made to keep him out of the fray and also to prejudice the mind of the Selection Committee in the matter of selection as he is one of the most deserving candidate to the post of Vice Chancellor in either of the Universities.
18. There is no dispute that the applications submitted by the petitioner were in order in all respects and it did not suffer from any defect for want of necessary particulars or documents as envisaged in the notifications dated 19.02.2020 and 27.02.2020. As a matter of fact, respondent Nos.4 and 5 themselves have admitted that the applications of the petitioner along with the documents produced by him were forwarded to 23 the concerned and respondent No.1 has also conceded that the candidature of the petitioner was duly considered and his name finds place in the list forwarded for consideration of the Search Committee.
19. The fact that the offending communication has been acted upon and taken note by the respective Universities is clear from the fact the documents produced before the Court namely Annexure-'R5', 'Details of the bio-datas' of applicants received for selection to the post of Vice Chancellor, Gulbarga University, Kalaburagi discloses the name of the petitioner at Sl.No.43 and in the last column, it is mentioned that departmental enquiry is pending. Thus on fact it stands established that respondent No.4 had inserted the above remarks in the covering letter- Annexure 'L' while forwarding the applications of the petitioner and this communication has been duly taken note by the respective Universities and the same were placed before the Search Committee. The question therefore that arises for consideration is, 24 Whether the aforesaid remarks are justifiable and whether Respondent No.4 was authorized to communicate these remarks?
20. Respondent Nos.4 and 5 have sought to justify the said remark by taking shelter under the resolution of the Board of Management dated 16.11.2018 which is produced at Annexure-'R1'. I have gone through the said resolution. There is nothing in the said resolution to suggest that a disciplinary enquiry was either initiated or directed to be initiated against the petitioner as sought to be made out by respondent Nos.4 and 5. On the other hand, a reading of the said resolution would indicate that on account of the various complaints received against the petitioner in connection with the conduct of the examination, the Vice Chancellor was directed to take appropriate action against the petitioner and those involved in the said activities. This resolution, by no stretch of imagination, can be construed as a direction to the Vice Chancellor to initiate Departmental Enquiry against the petitioner. On the contrary, in view of said resolution, the Vice Chancellor was required to take 25 an independent conscious decision after making necessary enquiry and by calling for explanation from the concerned, whether it was expedient to initiate disciplinary proceedings or any other course of action against the petitioner. One cannot presume that all the allegations leveled against an employee should end up in a disciplinary enquiry.
21. It is also not necessary that every inquiry should result in issuing the charge memo. The disciplinary authority is required to reach an independent decision as to whether a charge memo deserves to be issued or any other course of action would serve the purpose. In the instant case, there is nothing on record to show that the Vice Chancellor has taken any conscious decision to initiate disciplinary enquiry against the petitioner pursuant to the resolution of the Board of Management dated 16.11.2018 (Annexure-R1). Therefore the argument of the learned counsel for Respondent Nos. 4 and 5 that the above remarks were based on the order passed by the Vice Chancellor pursuant to the Resolution of the Board of Management falls to the ground.
26
22. The second aspect to be noted is that, the very documents produced by respondent Nos.4 and 5 disclose that the show-cause notice was issued to the petitioner on 24.06.2020 along with Articles of charge much after the submission of application by the petitioner.
23. In this regard, it is also relevant to note that in the objection statement, respondent Nos.4 and 5 have contended that the order in this regard was passed by the University on 29.02.2020, but no such order has been produced before the Court. On the other hand, in the show-cause notice issued along with the charge memo as per Annexure-R10, there is a specific reference that the show cause notice has been issued as per the recommendation made by the Vice Chancellor on 20.06.2020. If this document is believed, it goes to show that no order was passed by the Vice Chancellor prior to 20.06.2020 directing initiation of disciplinary proceedings against the petitioner or approving the articles of charges. In the light of this document, doubt arises as to how the inquiry officer could have been appointed on 29.2.2020 as contended by Respondent Nos. 4 27 and 5. It also leads to doubt the genuineness of the letter of appointment of the inquiry officer Annexure-R5 produced by respondent Nos. 4 and 5. Even otherwise it is unheard of in service jurisprudence that an Enquiry Officer would be appointed before serving show-cause notice on the delinquent. In this regard, it may be apposite to refer to the observations made by the Hon'ble Supreme Court in STATE OF PUNJAB vs. V.K.KHANNA, AIR 2001 SC 343, wherein it is observed:
"It is well settled in Service Jurisprudence that the authority has to apply its mind upon receipt of reply to the charge-sheet or show cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative -
the inquiry follows but not otherwise. Thus where even before reply was filed by the delinquent chief secretary to the charge-sheet issued against him, the Chief Minister made an announcement appointing an enquiry officer to go into the charges, thus indicating its mindset that the inquiry shall proceed irrespective of the reply it cannot be said that the attitude of the authorities towards the delinquent was free and fair."28
24. The very fact that show cause notice was issued to the petitioner only on 24.06.2020 more than three months after the submission of the application filed by the petitioner itself is sufficient to hold that as on date of forwarding Annexure-'L1', no inquiry was initiated against the petitioner. The other circumstances discussed above fortify the contention of the petitioner that the order appointing Enquiry Officer was antedated only with a view to justify and cover-up the illegality committed by respondent No.4 in making the above endorsement. There is nothing on record to show that the Enquiry Officer has acted upon the said order and had commenced the enquiry until charge memo was issued. All these circumstances, therefore, go to show that a deliberate attempt has been made by respondent No.4 to mislead the Selection Committee, by concocting false documents to show that the petitioner was facing an enquiry as on the date of the notifications and submission of his candidature for the post even though no such inquiry was initiated or pending against the petitioner as on that date.
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25. The question whether the remarks inserted by respondent No.4 in Annexure 'L' and the documents brought about in support of the said remark have caused prejudice and bias to the search panel may not be of any significance as the said remark is found to be false and baseless. Moreover when respondent No.4 himself is a contender to the above posts, there is something more than that meets the eye. The circumstances discussed above manifestly establish that with the malafide intention, respondent No.4 has inserted a false and baseless remark in Annexure 'L'. It is well settled that, to sustain the plea of mala fide, there has to be an element of personal bias or oblique motive. In the judgment titled STATE OF BIHAR vs. P.P.SHARMA, AIR 1991 SC 1260, the Hon'ble Supreme Court has held as under:-
"50. Mala fide means want to good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in 30 a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely
(i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the objects, requirements and condition of a valid exercise of administrative power."
26. Further in STATE OF ANDHRA PRADESH vs. GOVERDHANLAL PITTI, AIR 2003 SC 1941, it is held
12. The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means 'something done without lawful excuse'. In other words, 'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others'.
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27. The facts noted above manifest that without any basis and without any lawful order, respondent No.4 has inserted a false remark in the covering letter while forwarding the applications of the petitioner. This remark has been duly taken note of by the Selection Committee. The circumstances discussed above clearly establish that these remarks have been forwarded by Respondent No.4 so as to reach the Search committee with a malafide intention and oblique motive to gain unfair advantage over the petitioner. He has even gone to the extent of fabricating false records and documents to cover up his illegalities and to justify the unauthorized and false remarks inserted in Annexure 'L' knowing fully well that they would adversely affect the prospects of the selection of the petitioner. He has acted illegally and beyond his powers and jurisdiction rendering himself liable for legal action as per the rules governing the appointment of respondent No.4. 32
As a result, the petition is allowed.
It is held that the remarks made by respondent No.4 in his letter dated 9.3.2020 vide Annexure-'L' while forwarding the applications of the petitioner for the post of Vice Chancellor to Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore and Gulbarga University, Kalaburgi to the effect that the Committee to hold disciplinary enquiry has been constituted and the said enquiry pending is unauthorized, mala fide and obliquely motivated.
The appointing authority/Disciplinary authority of Respondent No.4 is directed to hold an enquiry against the 4th respondent for having made false and misleading remarks against the petitioner while forwarding the applications of the petitioner for the posts of Vice Chancellor to Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore and Gulbarga University, Kalaburgi, 33 vide Annexure-'L' and take appropriate action as per the rules governing the appointment of respondent No.4.
Respondent Nos.1 to 3 are directed to reconsider the candidature of the petitioner independently on its merit without being influenced by the remarks made by the 4th respondent, for the posts of Vice Chancellor of Karnataka Rajya Dr. Gangubai Hanagal Sangeetha Mattu Pradarshaka Kalegala Vishwavidyalaya, Mysore and Gulbarga University, Kalaburgi.
Sd/-
JUDGE Bss.
mn.