Karnataka High Court
Dr Shankaranaranappa vs The State Of Karnataka on 12 September, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
BEFORE
®
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 52225 OF 2019
C/W
WRIT PETITION NO. 52302 OF 2019,
WRIT PETITION NO. 52325 OF 2019,
WRIT PETITION NO. 52328 OF 2019 (S-RES)
IN W.P.No.52225/2019
BETWEEN:
DR.THEJASVI NAVILOOR,
S/O K.MAYIGOWDA,
AGED ABOUT 50 YEARS,
ASSOCIATE PROFESSOR,
DEPARTMENT OF JOURNALISM &
MASS COMMUNICATION,
Digitally KARNATAKA STATE OPEN UNIVERSITY,
signed by
PANKAJA S MUKTHAGANGOTHRI, MYSURU-570 006.
Location: ...PETITIONER
HIGH
COURT OF
KARNATAKA (DR. THEJASVI NAVILOOR, PETITIONER - PARTY IN PERSON)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT,
M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE REGISTRAR,
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KARNATAKA STATE OPEN UNIVERSITY,
MUKTHAGANGOTHRI,
MYSURU-570 006.
3. THE ACCOUNTANT GENERAL
IN KARNATAKA ( G & SSA),
POST BOX No.5329, AUDIT BHAVAN,
PARK HOUSE ROAD,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI.VIKRAM HUILGOL, ADDITIONAL ADVOCATE GENERAL
ALONG WITH SMT.PRATHIBHA.R.K., AGA FOR R-1 & R-3;
SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE R-1 DATED:17.10.2019,
VIDE ANNEXURE-A, ETC.
IN W.P.No.52302/2019:
BETWEEN:
DR.SHANKARANARANAPPA,
S/O RANGASWAMY,
AGED ABOUT 53 YEARS,
ASSOCIATE PROFESSOR,
DEPARTMENT OF POLITICAL STUDIES,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
...PETITIONER
(BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI.VINAYAKA.B., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT,
M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
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BANGALORE-560 001.
2. THE REGISTRAR,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
3. THE ACCOUNTANT GENERAL
IN KARNATAKA (G & SSA),
POST BOX No.5329, AUDIT BHAVAN,
PARK HOUSE ROAD,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI. VIKRAM HUILGOL, ADDITIONAL ADVOCATE GENERAL,
ALONG WITH SMT.PRATHIBHA.R.K, AGA FOR R-1 & R-3;
SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE R-1 DATED 17.10.2019
VIDE ANNEXURE-A, ETC.
IN W.P.No.52325/2019:
BETWEEN:
DR.M.S. RAMANANDA,
S/O MR.N.K.SUBBAIAH GOWDA,
AGED ABOUT 53 YEARS,
ASSOCIATE PROFESSOR,
DEPARTMENT OF STUDIES IN ECONOMICS,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
...PETITIONER
(BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI.B.VINAYAKA, ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT,
M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE REGISTRAR,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
3. THE ACCOUNTANT GENERAL
IN KARNATAKA (G &SSA),
POST BOX No.5329,
AUDIT BHAVAN, PARK HOUSE ROAD,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI.VIKRAM HUILGOL, ADDITIONAL ADVOCATE GENERAL
ALONG WITH SMT.PRATHIBHA.R.K, AGA FOR R-1 & R-2;
SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE R-1 DATED 17.10.2019
VIDE ANNEXURE-A, ETC.
IN W.P.No.52328/2019:
BETWEEN:
DR.K.PRAKASH, S/O SRI.K.BASAVANYAPPA,
AGE:51 YEARS, LIBRARIAN,
DEPARTMENT OF LIBRARY,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
...PETITIONER
(BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI.VINAYAKA.B., ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT,
M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE REGISTRAR,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
3. THE ACCOUNTANT GENERAL
IN KARNATAKA (G & SSA),
POST BOX No.5329,
AUDIT BHAVAN,
PARK HOUSE ROAD, BANGALORE-560 001.
...RESPONDENTS
(BY SRI. VIKRAM HUILGOL, ADDITIONAL ADVOCATE GENERAL
ALONG WITH SMT.PRATHIBHA.R.K, AGA FOR R-1 & R-3;
SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE R-1 DATED 17.10.2019
VIDE ANNEXURE-A, ETC.
THESE PETITIONS, HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 22.06.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
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ORDER
1. A direction issued by the Principal Secretary, Government of Karnataka, Department of Higher Education, to the Karnataka State Open University (for brevity, referred to as "the University") to annul the appointments made, and the consequential Show-cause Notices issued by the University, are called in question in the present writ petitions.
2. On 19.03.2012, the University issued a Notification inviting applications for the posts of Associate Professor for various subjects, which also prescribed the requisite qualifications.
3. The petitioners in W.P.Nos.52325/2014, 522225/2019 and 52302/2019 had applied for the posts of Associate Professors in the subjects of Economics, Mass Communication and Political Science, respectively, while the petitioner in W.P.No.52328/2019 had applied for the post of a Librarian.
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4. On 03.11.2012, there was a re-advertisement of said Notification in respect of the very same posts.
5. The authorities, after conducting an interview, proceeded to select eligible candidates and issued Orders of Appointment on 10.12.2012.
6. After 2 years of service, the University declared successful completion of the probationary period of the petitioners, who had been appointed in 2012, under the relevant statutes and the petitioners have been working ever since.
7. In the year 2017, a one-man Committee was constituted by the Chancellor and Dr. Justice Bhakthavatsala was appointed to inquire into the allegations against the University in respect of selection/appointment of Teachers and Librarians. One of the subjects that Dr. Justice Bhakthavatsala inquired into was the appointment of Associate Professors/Assistant Professors and Librarians.
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8. Dr. Justice Bhakthavatsala, in his Report (insofar as it related to the above-mentioned posts), concluded that there was no merit in the allegations that the University had not followed the reservation policy, statutes and relevant rules. The relevant extract in Page 555 of said Report is as reproduced hereunder:
"In so far as selection of the 5 Associate Professors, 41 Assistant Professors and 1 Librarian is concerned, I see no merit in the allegations and the University has followed the Reservation Policy and the Statute/Rules."
9. It appears that audit was initiated by the Comptroller and Auditor General (for brevity, referred to as "the CAG") for the year ending on 31.03.2017, for submission of a report to the Governor under Article 151(2) of the Constitution of India for its tabling.
10. In the process of this audit, on 23.05.2017, the Senior Audit Officer addressed a communication to the University which contained certain observations made in its audit report regarding appointment and extension of -9- NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 pay scales to the teaching staffs. In response to the said communication, the University submitted a compliance report along with the relevant records.
11. In relation to the appointment of Associate Professors and Librarians, the observations and the remarks made were as follows:
Sl. Audit Observation Details given No. Para No. *** *** *** *** 5 46 Subject Appointment of Associate professor (5) • Experts recorded the API points in the The minimum qualifications applications itself. (Copies enclosed as required for the post of Annexure:10 to 14) Assistant professors, Associate Professors, Professors, Sl. Selected Minimum API No. Candidates API Score Scored principals, Assistant Directors of prescribed Physical Education and Sports. as per the 1 Dr.Mahadeva Murthy 300 579 Deputy Directors of Physical 2. Dr. Kavitha Rai 300 314
3. Dr.M.S.Ramananda 300 217.5 Education and Sports, Directors 4. Dr.TejasviNaviloor 300 0 of Physical Education and 5. Dr.Shankara 300 0 Narayanappa Sports, Assistant Librarians, Deputy librarians, Librarians will • No other details/remarks are available be those as prescribed by the in the application as well as in the BOA UGC in these Regulations. proceedings • No remarks made by the BOA regarding weightage/exemption in As per APPENDIX-III TABLE-II© their respective proceedings during the Interview.
Minimum Scores for APIS for direct recruitment of teachers in • Guest Lecture service cannot be equated on par with regular Associate university departments/ Professor Colleges Libertarian/Physical Education cadres in • The Expert committee (BOA) relating to selection of candidate for Associate Universities/ Colleges, and Professor for management not weightages in Selection recorded anything relating to the
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 Committees to be considered equivalence of Commerce & along with other specified management in its meeting held on 01.11.2012. Copy enclosed as eligibility qualifications Annexure-15 stipulated in the Regulation, is detailed below. • Whereas, UGC clarified regarding the query about-"What does relevant subject mean by provision in para 4.4
1. Audit noticed that out of five when recruiting a candidate for candidates who were commerce subject, does a candidate selected for Associate having done MBA (Management Subject) Become relevant subject for professor post, only two Commerce? For the said query UGC persons go more API marks clarified through its clarification than minimum prescribed No.F.17-6/2013(PS/Misc)September 300 API score and two got 2015 is as follows-"The relevance of subject of inter disciplinary nature of zero and one got 217.5 subject is required to be decided by the concerned University/Appointing
2. It may be clarified as to Authority with the help of subject whether the candidate could experts in the concerned/related field as per its requirement UGC regulations be interviewed if he gets less 2010 defines the same" (Copy API marks than prescribed enclosed as Annexure-16) minimum score limit of 300 marks. In case any exemption is provided, it may be stated to what extent minimum marks could be revised as per UGC regulations to enable the candidate to attend the interviews.
3. It is also observed that these candidates were worked as only either as Guest lecturers or part time lecturers and in that scenario, teaching experience of 8 years Assistant professors was not fulfilled. In this connection, it may state whether services of Guest Lecturers could be equated with regular Assistant professors teaching on regular basis appointed through. All India Advertisement.
4. Further, in respect of Dr.C.Mahadeva Murthy who
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 is working as Associate Professor in Management subject had done M.com (PG) and Ph.D in Commerce subject. Though he possessed MBA (2010).
PGDHRM (May 2006) and PGDMM (October 2006), he did not possess Ph.D in Management.
5. In this connection it may be clarified whether Ph.D in Commerce was enough to considered as equivalent for Ph.D in Management when fulfilling criteria of Ph.D in relevant subject for the post of associate professor and in case both are same, documentary evidence for proof indicating Ph.D in Commerce is equivalent of Ph.D in Management may be furnished (preferably UGC/AICTE clarification for further necessary action) 6 50. Subject: Direct recruitment of • The audit observation & noting will Librarian be placed before Board of Management (BOM). Based on the UGC regulations for direct decision of the BOM, appropriate recruitment of Librarian were action will be initiated.
not followed. Total salary drawn
by the employee was Rs.65.38
lakh (Approximately from
December 2012 to June 2017.).
Besides application for
appointment was also not
routed through proper channel
as per clause mentioned in
Notification
*** *** *** ***
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12. It appears that the University received one more communication dated 04.09.2017 and once again, in response to this communication, the University submitted, on 29.01.2018, in relation to the observation made in paragraph 82 of the audit report (which was in respect of appointment and extension of pay scales to the teaching staffs), as follows:
"No:KSOU/AB/Est-1/578/2017-18/C.No.1964 Date:29.01.2018 To, The Accountant General in Karnataka (G & SSA) Bengaluru-560 001 Respected Sir, Sub: Submission of compliance report to the observations made in the Audit Report regarding "Appointment & Extension of pay scales to teaching staff-reg. Reg: (1) Assistant Audit Officer/Review Party's - Audit Paras:79, 80, 81 & 82 dated 04.09.2017. (2)This of letter of even number dated:18.08.2017 **** With reference to the above subject and reference cited above, the University is submitting herewith a compliance report as to the observations made in the audit report. The compliance report is enclosed to this letter as Annexure-1. The details are as under:
1) Audit Para -79 : Factual position is furnished
2) Audit Para -80 : Factual position is furnished.
3) Audit Para -81 : The information sought is furnished in Annexure 'A' & 'B'
4) Audit Para -82 : Available information is furnished in Annexure 'C'.
Your attention is invited to this officer letter No.KSOU/AB/Est-1/578/2017-18, dated 18.08.2017, wherein, the University has furnished its compliance. The audit team which
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 visited the University had an interaction with five Associate Professors relating to their recruitment. The candidates have furnished their defenses which have been enclosed along with the compliance report in the form of Annexures. The audit has observed that, as per UGC Regulations-2010, the minimum API score required for selection of Associate Professor is 300. The audit further observed that, a few candidates were given zero API score have also been selected. It is hereby clarified that, there were two advertisements, one in the month of March and another one in the month of November 2012. The candidates who were applied in response to the March notification need not apply. However, they may update their academic achievements. The API score is required to be awarded as per UGC Regulations-2010. There are API scores for teaching experience, research projects, research guidance, NSS, NCC,Co-curricular activities and other various headings. In case, the API assessment is made objectively, there cannot be a zero API score. Before taking any decision in the matter, an objective assessment of API score is absolutely necessary.
In the background explained above, a pragmatic view may be taken before proceeding further in the manner."
13. The University also submitted an explanation along with the requisite documents to the Chief Secretary for his consideration in the meeting which was to be held on 28.08.2018. The said communication contained tabular columns in respect of observations of the auditors, response of the department and the endorsements, which reads as follows:
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 "¸ÁªÀðd¤PÀ ¯ÉPÀÌ ¥ÀvÀæUÀ¼À ¸À«ÄwAiÀÄ DªÀÄvÀjPÀ PÁAiÀÄð¤ªÀðºÀuÁ ¤AiÀĪÀiÁªÀ½AiÀÄ 5 (©) ¤AiÀĪÀÄ ªÉÄÃgÉUÉ ¤AiÀīĸÀ¯ÁzÀ ªÀiÁzÀj ¥Àæ¥ÀvÀæ:
E¯ÁSÉAiÀÄ ºÉ¸ÀgÀÄ : ²ÃPÀët E¯ÁSÉ (PÀ£ÁðlPÀgÁdå ªÀÄÄPÀÛ «±Àé«zÁ央AiÀÄ, ªÀÄÄPÀÛUÀAUÉÆÃwæ, ªÉÄʸÀÆgÀÄ-570 006.
PÀæ.¸À ¢£ÁAPÀ:31.0 ¯ÉPÀÌ ¥Àj±ÉÆÃzsÀ£Á nÃPÉ. E¯ÁSÉ n¥Ààt µÀgÁ 3.2017PÉÌ CAvÀåUÉÆAqÀ ¹.J.f ªÀgÀ¢AiÀÄ (¸ÁªÀiÁ£Àå ªÀÄvÀÄÛ ¸ÁªÀiÁfPÀ ªÀ®AiÀÄ) PÀArPÉ *** *** *** *** *** 1 44 The Karnataka State • University administration took The issue is pending open University, a decision to regularize the before the Hon'ble (4.1.3.1) Mysuru regularized services of temporary guest Governor's office and (May 2013)22 faculties based on the sub it is also placed in the temporary lecturers Committee which was 151st BOM (appointing and appointed then as constituted by the Vice authority). Meeting Assistant Professors Chancellor to consider the will be held' shortly directly without issue of regularization of and suitable action will following the due Temporary Teachers working be initiated based on procedures of calling in the university the decision of the for all India • The sub-committee met on BOM.
advertisement and 26.12.2012 for framing the constitution of Draft Statute.
selection committee. • Draft Statute was considered We also observed that & approved by the BOM at its 18 of these 22 meeting held 28.01.2013. temporary lecturers • This statute was duly did not even possess assented by His Excellency, the minimum required the Chancellor on 06.05.2013.
qualifications for the • Based on this approved
post statute, the appointment
orders were issued on
10.05.2013 by putting
condition that-should pass
NET/SLET or Ph.D with course
work within a outer limit of 5
years, in case they have not
passed the said examination.
If failed to pass the said
examination within 5 years,
the university shall reserve
the right to review this
regularization order.
The audit observation & noting
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will be placed before Board of
Management (BOM). Based on
the decision of the BOM,
appropriate action will be
initiated.
2 46 Appointment of • The university has
(4.1.3.2 a) underqualifed and • Experts recorded the API points notified for
ineligible candidates. in the applications itself. recruitment of
teaching posts on
Selected Minimum API
(a)Appointment SL. Candidates API Score Scored 19.03.2012.
without obtaining No. prescribe • Due to legal issues,
minimum Academic d as per the recruitment was
the
Performance 1 Dr.Mahadeva 300 579
delayed for more
Indicator (API) score: Murthy than six months.
2. Dr. Kavitha Rai 300 314
• As per the clause
3. Dr.M.S.Ramananda 300 217.5
UGC prescribes the 4. Dr.TejasviNaviloor 300 0 S.3 of statue
minimum score of 5. Dr.Shankara 300 0 No:XXXVIII of the
Narayanappa
300 points as API for university,
direct recruitment of interviews are to be
• No other details/remarks are
Associate Professor in available in the application as held within six
Universities and well as in the BOA proceedings months.
Colleges. However, • Hence there was a
during appointment • No remarks made by the BOA Re-Advertisement
(December 2012) of regarding weightage/exemption on 03.11.2012.
five Associate in their respective proceedings • Meanwhile, those
Professors in during the Interview. who applied for first
Karnataka State notification their API
• Guest Lecture service cannot be
Open University, equated on par with regular scores were
three candidates Associate Professor evaluated in the
were shortlisted for month of September
interviews and • The Expert committee (BOA) 2012 (i.e., before
eventually selected relating re-advertisement)
despite not having to selection of candidate for and candidates have
the minimum score of Associate Professor for claimed that their
Management not recorded
300 points. API scores exceeds
anything relating to the
equivalence of Commerce & 300 and submitted
(d) The KSOU called Management in its meeting held their documents for
(March/November on 01.11.2012. audit purpose. 2012) applications for • It is requested the five posts of • Whereas, UGC clarified regarding documents can be Associate Professor, the query about-"What does re visited for which were filled relevant subject mean by confirmation.
provision in para 4.4 when
during November-
recruiting a candidate for
December 2012. commerce subject, does a
However, two out of candidate having done MBA
five candidates (Management Subject) Become
selected did not relevant subject for
possess the required Commerce?For the said query
minimum eight years UGC clarified through its
of teaching clarification No.F.17-
6/2013(PS/Misc)September 2015
experience for
is as follows-"The revelance of
appointment as subject of inter disciplinary
Associate Professor. nature of subject is required to
UGC Regulations, be decided by the concerned
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2009, specified that University/Appointing Authority
only previous regular with the help of subject experts
service, which was in in the concerned/related field as
per its requirement UGC
an equivalent grade
regulations 2010 defines the
could be counted for same"
past service and its
clarification (January
2003 and June 2010)
in this regard stated
that experience as
part-time/guest
lecturer and
temporary lectures
were nit to be
counted for teaching
experience. However,
the university
disregarded the
above stipulation and
counted the period of
part-time/guest
lecturer and
temporary lecturer
for teaching
experience.
3 50 The KSOU also called • The audit observation & • Issue has been
applications for one noting will be placed before Board placed before 147th
(4.1.3.2 d) post of University of Management (BOM). Based on BOM meeting for
the decision of the BOM,
Librarian and stated discussion &
appropriate action will be initiated, requirement of decision Board has minimum 10 years resolved that to take experience in a suitable action asper University, in UGC guidelines.
contravention to UGC • Based on the board norms of 13 years as decision clarification Deputy Librarian in has sought from the University or 18 years Librarian on as college Librarian. 14.12.2017.
However, the
applicant who was • He has submitted
finally appointed to the details with
the post had only five documents on
years & eight months 30.12.2017.
of experience, which
was even lesser than • The candidate so
the 10 years appointed to the
stipulated by post of Librarian
University. Thus, the (Dr.K.Prakash),
appointment was in claimed that he has
violation of UGC required experience,
norms and was and submitted
irregular. documents can be
further revisited.
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14. Pursuant to the same, the Additional Chief Secretary, Department of Education (Higher Education) appears to have addressed a communication seeking answers for the observations made by the CAG for the audit conducted by them for the year ending March, 2017, with relevance to clauses 4.1.3.1, 4.1.3.2A and 4.1.3.2D. The University responded to the said communication vide communication dated 04.05.2019 and a preparatory meeting was conducted on 16.10.2019 to the Public Accounts Committee meeting which was to be held on 22.10.2019. In this preparatory meeting held on 16.10.2019, which was chaired by the Chief Secretary to the Government, taking note of the observations made by the CAG, proceeded to issue directions by the letter dated 17.10.2019 which are impugned in these writ petitions. On the basis of this letter dated 17.10.2019, Show-cause Notices were issued to the petitioners, which are also the subject matter of these writ petitions.
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15. It is, therefore, clear that only on the basis of the observations of the auditors in the preparatory meeting preceding the Public Accounts Meeting, was it suggested to the University by the Government to annul the appointments, and accordingly, the impugned Show-cause Notices have been issued.
16. The principal question, which, therefore, emerges in these writ petitions is:
Whether the appointments of the petitioners could be annulled on the basis of the observations made by the CAG?
17. In order to answer this question, it is necessary to examine the provisions of the Karnataka State Open University Act, 1992(for brevity, referred to as "the Act").
18. Section 8 of the Act states that the Governor shall be the Chancellor of the University and that he would have the right to cause an inspection to be made in respect of University along with examination and other work
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 conducted or done by the University, and he would also have the right to cause an inquiry to be made in respect of any matters connected with the administration and finance of the University. The Chancellor is also empowered to issue any order, in writing, to annul any proceedings of the University which is not in conformity with the Act, the relevant statutes or the Ordinances.
19. Section 26 of the Act mandates that the annual report of the University should be prepared under the directions of the Board of Management and this annual report is required to be submitted to the Chancellor with a copy of the same also being forwarded to the State Government, which was required to place the said report before both Houses of the Legislature.
20. Section 27 of the Act stipulates that the annual accounts and balance sheets of the University should be prepared under the directions of the Board of Management and should, once at least every year and at the intervals
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 of not more than fifteen months, be audited by the Controller of State Accounts or such person as may be authorized in this behalf. The copy of the accounts together with the audit report should, thereafter, be submitted to the Chancellor along with observations.
21. Sub-section (3) of Section 27 of the Act states that any observations made by the Chancellor on the annual accounts should be brought to the notice of the Board of Management, and the views of the Board of Management along with any observations made by them, should be submitted to the Chancellor.
22. Sub-section (4) of Section 27 of the Act stipulates that a copy of the accounts together with the audit report as submitted to the Chancellor should also be submitted to the State Government, which should cause the same to be laid before both Houses of the Legislature and ultimately, it is stated that the audited annual accounts, after having been laid before both Houses of the Legislature, should be
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 published in the Official Gazette. Thus, the statute prescribes a specific method by which the annual accounts of the University should be prepared and submitted for auditing by the Controller of State Accounts.
23. The Parliament has enacted the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 (for brevity, referred to as "the 1971 Act") for determining the conditions of service of the CAG and also to prescribe his duties and powers and for matters connected therewith.
24. Chapter - III of the 1971 Act specifies the duties and powers of the CAG.
25. Section 10 of the 1971 Act mandates that the CAG is required to compile the accounts of the Union and the States, and Section 11 of the said Act envisages that the CAG should prepare and submit accounts to the President or the Governor of a State or Administrator of the Union Territory having a Legislative Assembly.
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26. Section 12 of the 1971 Act requires the CAG to give information and render assistance to the Union and also to the States.
27. Section 13 of the 1971 Act states the general provisions relating to audit and the same reads as follows:
"13. It shall be the duty of the Comptroller and Auditor-
General-
(a) to audit all expenditure from the Consolidated Fund of India and of each State and of each Union Territory having a Legislative Assembly and to ascertain whether the moneys shown in the accounts as having been disbursed were legally available for and applicable to service or purpose to which they have been applied or changed and whether the expenditure conforms to the authority which governs it;
(b) to audit all transactions of the Union and of the States relating to the Contingency Funds and Public Accounts;
(c) to audit all trading, manufacturing, profit and loss accounts and balance-sheets and other subsidiary accounts kept in any department of the Union or of a State; and in each case to report on the expenditure, transactions or accounts so audited by him."
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28. As could be seen from the above provision, it is the duty of the CAG to audit all expenditure from the Consolidated Fund of India and of each State, and to ascertain whether the moneys shown in the accounts as having been disbursed were legally available for and applicable to the services for the purposes to which they had been applied or charged. The CAG is also required to ascertain whether the expenditure conforms to the authority which governs it.
29. A statutory duty is cast on the CAG to audit all transactions of the Union and of the States relating to Contingency Funds and Public Accounts. The CAG is also required to audit all trading, manufacturing, profit and loss accounts and balance sheets along with other subsidiary accounts kept in any department of the Union or States and submit a report on the expenditure, transactions or accounts so audited by him.
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30. Section 19 of the 1971 Act also enables the CAG to audit Government Companies and Corporations. Sub- section (2) of Section 19 states that the duties and powers of the CAG in relation to the audit of the accounts of Corporations established by or under law made by the Parliament should be performed and exercised by him in accordance with the provisions of the respective legislations. Sub-section (3) of Section 19 enables the Governor of a State, if he is of the opinion that it is necessary in the public interest to request the CAG, to audit the accounts of the Corporation established by law made by the Legislature of the State and if such request had been made, the CAG should audit the accounts of such Corporation, and for this purpose, he will have the right of access to the books and accounts of such Corporation.
31. It is, therefore, clear that the essential duty of the CAG is to audit all expenditure and to ascertain whether the moneys which have been disbursed were legally
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 available for such disbursal and for its application to the services and ensure that the expenditure conformed to the authority which governed it. In other words, the first requirement is to ascertain whether the moneys which were disbursed were legally available for such disbursal and whether it was applied to the purposes for which it was disbursed and to ensure that the expenditure conformed to the authority which governed it.
32. The CAG has been conferred with the power to delegate any Officer of his department to exercise the powers conferred on him and in exercise of this power, the Accountant General (General and Social Sector Audit), Karnataka is empowered to conduct the audit of expenditure under the General and Social Services Sectors incurred by the 66 Departments in the State and 11 Autonomous Bodies.
33. The primary purpose of the audit report is to essentially bring to the notice of the State Legislature the
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 manner in which monies have been spent by the Departments and whether the expenditure made by them are for the purposes for which they were earmarked.
34. In relation to this case, it would also be relevant to notice the Regulations framed by the University Grants Commission (for brevity, referred to as "the UGC") which is titled as "the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010" (for brevity, referred to as "the UGC Regulations").
35. The UGC, in exercise of powers conferred on it, has framed the UGC Regulations which are applicable to every University established or incorporated by a Central Act, Provincial Act or a State Act. The UGC Regulations prescribes the minimum qualifications for appointment and other service conditions of University and College
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 Lecturers, Librarians, Directors of Physical Education and Sports as a measure for maintenance of standards in higher education. The consequences of not following the said UGC Regulations is contemplated under Section 14 of the UGC Act, 1956 would be withholding of funds. The UGC Regulations are essentially framed for ensuring minimum standards in higher education and also for revision of pay scales and other service conditions including age of superannuation in Central Universities and other Institutions maintained and/or funded by the UGC.
36. The UGC Regulations also stipulated the manner of recruitment and the qualifications prescribed for each post. In respect of an Associate Professor for the purpose of direct recruitment, the qualifications are as follows:
"4.3.0 ASSOCIATE PROFESSOR i. Good academic record with a Ph.D. Degree in the concerned/allied/relevant disciplines.
ii. A Master's Degree with at least 55% marks (or an equivalent grade in appoint
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scale wherever grading system is
followed).
iii. A minimum of eight years of experience of teaching and /or research in any academic/research position equivalent to that of assistant Professor in a University, College or Accredited Research Institution/industry excluding the period of Ph.D. research with evidence of published work and a minimum of 5 publications as books and/or research/policy papers.
iv. Contribution to educational innovation, design of new curricula and courses, and technology-mediated teaching learning process with evidence of having guided doctoral candidates and research students.
v. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Appendix III."
37. It is not in dispute that the petitioners herein did possess the requisite educational qualifications. However,
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 the observations of the CAG was that the Academic Performance Indicator Score ("the API Score", for short) and the Performance Based Appraisal System ("the PBA System", for short) set out in the UGC Regulations were not complied with.
38. Annexure-V which is enclosed to the rejoinder to the statement of objections filed in W.P.No.52325/2019 by the University, contains the proceedings of Board of Appointment which had been constituted under Statute
12. In the said Annexure, the following statement is made:
"On the basis of the Academic
Performance Indicator (API) and
Performance based appraisal system
(PBAS) as set out in the UGC Regulations of 2010, the marks are awarded as shown in the enclosed statement, based on which the following candidate is unanimously selected:
Statement enclosed for Pool reservation (Annexure-1)"
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39. This indicates that the Board of Appointment did take into consideration the API score and also the PBA System, as provided in the UGC Regulations and it did award marks as per the statement enclosed to those proceedings.
40. The Board of Appointment has, therefore, obviously complied with the requirements of the Regulation No.6.0.1 of the UGC Regulations which required them to give weightage to the performance of the candidate in different relevant domains and by assessing his performance on a scoring system which is based on the API as provided in Table Nos.1 to 9 of Appendix - 3.
41. When the Board of Appointment comprising of the Vice Chancellor (the Chairman), the Registrar (the Secretary) along with four persons comprising of a Professor in Economics and other eminent academicians, have stated that they had awarded marks on the basis of the API Score and the PBA System, it would not be open
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 for any authority, much less an auditor such as CAG, to say that the requisite procedure was not followed.
42. It has to be borne in mind that the domain expertise of the CAG is essentially to audit the expenditure incurred and it does not possess the expertise to determine as to whether the recruitment procedure followed by a group of experts, is or is not in conformity with the procedure set forth in the recruitment.
43. The manner in which the Board comprising eminent academicians decide on the suitability of a candidate will have to be left to their discretion, and it is for this purpose that a Board of Appointment is constituted. The fact that such Board consisting of eminent academicians have categorically stated that they have awarded marks on the basis of the API Score and the PBA System, as provided in the UGC Regulations, clearly indicates that the CAG did not obviously possess the jurisdiction to sit in appeal over
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 this observation or to question this statement given by the Board of Appointment.
44. It has to be noticed here that the educational qualifications of each of the persons appointed was not in doubt. The fact that they were appointed on merit is also not in doubt. The fact that the recruitments were made by following the procedure prescribed under the UGC Regulations by issuing advertisement, calling for applications, etc. is also not in doubt. In such a given situation, if the CAG were to embark upon a microscopic examination of the appointments and rely upon the replies given by the University to come to the conclusion that the appointments were not in accordance with the UGC Regulations, it is apparently obvious that such observations cannot be sustained.
45. If the task of selecting Associate Professor is conferred on a Board which comprises of Professors of different Universities, such as the University of Mysore,
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 Mangalore University, the Sri Venkateshwara University and the Bangalore University, as in the instant case, who are incidentallynot related to the respondent-University, the integrity and wisdom of such a Board cannot be questioned by the CAG.
46. The CAG can, no doubt, make observations, say, if appointments were made in respect of the posts, which were not sanctioned or if they were over-paid or under- paid contrary to the pay-scales fixed by the requisite regulations. In the guise of auditing the expenditure, the CAG, in my view, the CAG cannot sit in judgment over the selection of candidates made by a Board of Appointment comprising of domain experts.
47. The State Government, without noticing these aspects of the matter and merely placing reliance on the observations, has fundamentally overreacted, and rather disproportionately so, in assuming that the observations made by the CAG were final and binding on it. It may be
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 noticed here that the observations by the CAG are basically to ensure that any systemic errors are rectified, and that appropriate action be taken to ensure that any wrong doing is remedied.
48. In my view, the CAG, in the instant case, has over- stepped its jurisdiction and has gone on to question the wisdom and manner in which the appointments were made by the Board of Appointment. The acceptance of these observations by the State and the consequential direction issued to cancel the appointments cannot, therefore, be sustained.
49. An argument was advanced that the impugned Order itself was only a Show-Cause Notice and therefore, the writ petitions were premature.
50. Having regard to the fact that the Government has issued a direction to the University to annul the appointments, in view of the observations made by the CAG, it is obvious that a decision has already been taken
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 to terminate the services of the petitioners and therefore, it cannot be argued that it was only the issuance of a Show-Cause Notice and that the writ petitions are premature.
51. It may also be borne in mind that the petitioners have been working since 2012 and their probationary period had also been declared as having been successfully completed. An audit conducted nearly five years after their appointment cannot, in any manner, affect the appointments which have already been made and in respect of which probationary period also declared to have been successfully completed.
52. The Chancellor, under the provisions of the Act, has been conferred with the power to cause an inspection to be made in respect of any matter connected with the administration and finance of the University. Admittedly, the Chancellor has not exercised his statutory power and ordered an inspection.
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53. It is also to be stated here that in respect of the accounts of the University, the accounts have to be prepared under the direction of the Board of Management and are required to be audited by the CAG and a copy of Accounts together with the Audit Report is required to be submitted to the Chancellor along with any observations of the Board of Management.
54. If the Chancellor, on receipt of the copy of the Accounts and the Audit Report, chooses to make any observation, the same is required to be brought to the notice of the Board of Management and thereafter, the views of the Board of Management are required to be submitted to the Chancellor. Thus, the power to make an observation or to consider the Audit Report, essentially vests with the Chancellor.
55. Admittedly, there is no observation made by the Chancellor regarding any irregularity in the appointment of the petitioners. It is also to be stated here that the copies
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NC: 2023:KHC:33020 WP No. 52225 of 2019 C/W WP No. 52302 of 2019 WP No. 52325 of 2019 WP No. 52328 of 2019 of the accounts are to be audited and the same are to be placed before the Houses of Legislature and it is not in dispute that no objections have been raised by the Houses of Legislature regarding the appointment.
56. It is, therefore, clear that merely on the basis of an observation made by the CAG regarding the manner of appointment, which was essentially beyond its competence, that such directions have been issued by the Government to terminate the services of the petitioners.
57. I am, therefore, of the view that the impugned Orders and the subsequent Show-cause Notices cannot be sustained and the same are, therefore, set aside.
The writ petitions are accordingly allowed.
Sd/-
JUDGE PKS List No.: 2 Sl No.: 0