Karnataka High Court
Dr.Prema Kumara K vs State Of Karnataka on 18 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2025:KHC-D:12647
WP No. 116519 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
AT DHARWAD
DATED THIS THE 18TH DAY OF SEPTEMBER 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO.116519 OF 2019 (S-RES)
BETWEEN:
DR. PREMA KUMARA K
S/O. H.B.KRISHNAMURTHY,
AGED ABOUT 50 YEARS,
PRESENTLY R/AT: B-002,
"AKSHAYA RESIDENCY",
AKSHAYA COLONY,
OPP-CHETANA COLLEGE,
VIDYANAGAR,
HUBLI-580030.
...PETITIONER
Digitally signed
(BY SRI. P.D.VISHWANANTH AND
by SAMREEN SRI. RAVI HEGDE, ADVOCATES)
AYUB
DESHNUR
Location: HIGH
COURT OF AND:
KARNATAKA
DHARWAD
BENCH 1. STATE OF KARNATAKA
DEPARTMENT OF HIGHER EDUCATION
(UNIVERSITIES), M.S. BUILDING,
BENGALURU-560001,
BY THE PRINCIPAL SECRETARY/
ADDITIONAL CHIEF SECRETARY.
2. THE KARNATAKA JANAPADA
VISHWA VIDYALAYA GOTTAGODI,
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WP No. 116519 of 2019
HC-KAR
NH-4, SHIGGAON,
DIST: HAVERI-581110,
REPRESENTED BY ITS REGISTRAR.
3. KANNADA VISHWA VIDYALAYA,
HAMPI, VIDYARANYA, HOSPET,
DIST: BALLARI-583276,
REPRESENTED BY ITS REGISTRAR.
...RESPONDENTS
(BY SRI. ASHOK T.KATTIMANI, AGA FOR R1;
SRI. J.S.SHETTY, ADVOCATE FOR R2;
SRI. RAJASHEKHAR GUNJALLI, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE THE
WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT,
ORDER OR DIRECTION QUASHING THE GOVERNMENT ORDER
NO.ED 590 UNE 2014 BENGALURU DATED 22.03.2019
(ANNEXURE-'L') PASSED BY THE ADDITIONAL CHIEF
SECRETARY, DEPARTMENT OF HIGHER EDUCATION
(UNIVERSITIES) OF STATE OF KARNATAKA (FIRST
RESPONDENT) THE ORDER NO.KA JA V V/A V/ NO.1202/ 2018-
19 DATED 23.03.2019 (ANNEXURE-'M') OF THE REGISTRAR OF
THE KARNTAKA JANAPADA VISHWA VIDYALAYA (SECOND
RESPONDENT) AND THE ENDORSEMENT NO.KA V HAM:HU SA:NI
SE B:2018-19/81 DATED 26.03.2019 (ANNEXURE-'P') OF THE
REGISTRAR OF KANNADA VISHWA VIDYALAYA, HAMPI (THIRD
RESPONDENT) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN
AS UNDER:
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WP No. 116519 of 2019
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ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) In this petition, the petitioner seeks the following reliefs:
(i) Issue the writ in the nature of certiorari or any other writ, order or direction quashing the Government Order No ED 590 UNE 2014 Bengaluru dated 22-03-2019 (Annexure - 'L') passed by the Additional Chief Secretary, Department of Higher Education (Universities) of State of Karnataka (first respondent), the order No KA JA V V/AV/No 1202/2018-19 dated 23-03-2019 (Annexure - 'M') of the Registrar of the Karnataka Janapada Vishwa Vidyalaya (Second respondent) and the endorsement No KA V HAM: KU SA: NI SE B: 2018-19/81 dated 26-03-2019 (Annexure 'P') of the Registrar of Kannada Vishwa Vidyalaya, Hampi (third respondent).
(ii) Declare that the notification Nos KA JA V V No 531/2018-19 dated 22-09-2018 and KA JA V V No 189/2019-20 dated 31-05-2019 (Annexures "X" & "Y" respectively) issued by the Karnataka Janapada Vishwa Vidyalaya (second respondent) inviting application for the post of "Senior Research Officer" is concerned is unsustainable.
(iii) Direct the first and second respondent to reinstate the petitioner to the post of "Senior Research Officer" in the Karnataka Janapada Vishwa Vidyalaya (second respondent) with continuity of service, arrears of salary and all consequential benefits;-4-
NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR Or in the alternative Direct the first and third respondents to reinstate the petitioner to the post of "Deputy Registrar" in the Kannada Vishwa Vidyalaya, Hampi (third respondent) with continuity of service, arrears of salary and all consequential benefits;
(iv) Pass such other and further orders in favour of the petitioner in the facts and circumstances, in the interest of justice and equity.
2. A perusal of the material on record will indicate that the petitioner was initially working in the 3rd respondent, Kannada University, Hampi from May, 2003 was deputed as a 'Senior Research Officer' to the 2nd respondent, Kannada Janapada University, Shiggaon vide order dated 04.07.2012.
Subsequently, on 11.04.2014, the 2nd respondent, University recommended/proposed the petitioner to be appointed to the post of 'Director Cum Professor' to the Centre for Folklore Translations and resolution in this regard was passed by the 2nd respondent/University approving the recommendation/proposal of the Registrar. Subsequently, vide order dated 12.06.2014, the petitioner was appointed as a 'Director Cum Professor' to the Center for Folklore Translations. However on 07.05.2015, the 1st -5- NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR respondent/State passed an order canceling/rescinding the Syndicate Resolution dated 11.04.2014 thereby withdrawing the order of deputation of the petitioner from the 3rd respondent/University to the 2nd respondent/University and consequently repatriating the petitioner from the 2nd respondent/University to the 3rd respondent/University.
3. Aggrieved by the said order dated 07.05.2015, the petitioner approached this Court in W.P.No.21841/2015, which was dismissed vide final order dated 19.01.2018 by the learned Single Judge. Aggrieved by the said order passed by the learned Single Judge, the petitioner preferred an appeal in W.A.No.100013/2018, which was partly allowed by the Division Bench of this Court on 30.10.2018 by setting aside the order of repatriation and withdrawal of the order of deputation passed by the 1st respondent/State on 07.05.2015 by issuing certain directions in this regard.
4. It is a matter of record and an undisputed fact that the aforesaid order dated 30.10.2018 passed by the Division Bench of this Court in W.A.No.100013/2018 has attained finality and become conclusive and binding upon respondent Nos.1 to 3.
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5. Despite the aforesaid facts and circumstances, the 1st respondent proceeded to issue the impugned Government Order (GO) dated 22.03.2019 once again repatriating the petitioner to his parent University/respondent No.3, aggrieved by which, the petitioner is before this Court by way of the present petition putting forth various contentions including subsequent events that have transpired after the impugned order.
6. Heard learned counsel for the petitioner, learned Additional Government Advocate for respondent No.1, learned counsel for respondent No.2 and learned counsel for respondent No.3 and perused the material on record including the impugned order.
7. A perusal of the impugned order will indicate that it is an undisputed fact that by an order dated 07.05.2015, the order of deputation of the petitioner from the 3rd respondent/University to the 2nd respondent/University was withdrawn by the 1st respondent/State and the same was challenged before this Court in W.P.No.21841/2015, which was dismissed by the learned Single Judge by upholding the impugned order dated 07.05.2015 canceling the deputation and repatriating the petitioner back to -7- NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR his parent University. The operative portion of the said order dated 19.01.2018 passed by the learned single judge in W.PNo.21841/2015 reads as follows.
"(i) Writ petition No.21841/ 2015 is rejected with costs of Rs.15 ,000/- payable within four weeks.
(ii) The impugned order canceling the deputation and repatriating the petitioner back to his parent organisation is upheld.
(iii) The order annulling the Syndicate resolution is not interfered with for otherwise as explained above it would result in revival of the illegal order of appointment vide Annexure- U dated 12 .
06 .2014 .
(iv) It is held that the post (of) Director- cum-
Professor is non- est in law for want of the Chancellor' s assent as mandated under Section 39( 2).
(v) It is held that the provisions of Section 73 do not provide for nor authorise the appointment by way of absorption.
(vi) It is held that the approval as mandated under Section 73 is pre decisional. Hence, the order of appointment ( Annexure- U) dated 12 . 06 .2014 is contrary to the Act in the absence of the approval as mandated under Section 73 .
(vii) It is held that the petitioner is not eligible to be appointed to the post of Professor under the Rules -8- NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR for Cadre and Recruitment of the 2n d respondent- University and hence, the re- designation and equating the post of Director with that of the sanctioned post of Professor is illegal as being contrary to the Universities Cadre Rules.
(viii) It is held that the occupation of the post of Director- cum- Professor by the petitioner from the date of appointment i.e., 06 . 12 .2014 is illegal being contrary to the scheme of the Act.
(ix) Hence, consequently the sum paid in excess to the salary that he was entitled to draw as a Senior Research Officer is liable to be recovered.
(x) Writ Petition No. 104414/ 2015 is disposed of with a direction to the 3r d respondent to consider the same as a representation and dispose of the same within a period of four weeks from the date of the receipt of the copy of this order.
Writ petitions are ordered accordingly.
In view of the above, IA Nos.3/ 2015, 1/ 2016 and 2/ 2016 filed in WP No.21841/ 2015 do not survive for consideration and are accordingly disposed of. The interim order stands dissolved."
8. Aggrieved by the said order passed by the learned Single Judge, the petitioner approached this Court in W.A.No.100013/2018, which was partly allowed on 30.10.2018 -9- NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR by the Division Bench of this Court and disposed of, as hereunder.
Though this appeal is listed to hear interim applications, with consent of learned counsel for the parties, it is heard finally.
2. We have heard learned counsel for the appellant and learned Additional Government Advocate for respondent No.1 and learned counsel for respondent No.2 at length and perused the material on record.
3. Appellant herein was the petitioner in WP No.21841 of 2015. Being aggrieved by order dated 19.01 .2018 passed by the learned Single Judge in the said writ petition, which was connected with WP No.104414 of 2015, the petitioner has presented this writ appeal.
4. The operative portion of the impugned order reads as under:
i) Writ petition No.21841/ 2015 is rejected with costs of Rs.15 ,000/-
payable within four weeks.
ii) The impugned order canceling the
deputation and repatriating the
petitioner back to his parent
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WP No. 116519 of 2019
HC-KAR
organisation is upheld.
iii) The order annulling the Syndicate
resolution is not interfered with for
otherwise as explained above it
would result in revival of the illegal order of appointment vide Annexure- U dated 12 . 06 .2014 .
iv) It is held that the post (of) Director-
cum- Professor is non- est in law for want of the Chancellor' s assent as mandated under Section 39( 2).
v) It is held that the provisions of Section 73 do not provide for nor authorise the appointment by way of absorption.
vi) It is held that the approval as
mandated under Section 73 is pre
decisional. Hence, the order of
appointment ( Annexure- U) dated 12 . 06 .2014 is contrary to the Act in the absence of the approval as mandated under Section 73 .
vii) It is held that the petitioner is not eligible to be appointed to the post of Professor under the Rules for Cadre n d and Recruitment of the 2 respondent- University and hence, the re- designation and equating the post of Director with that of the sanctioned post of
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR Professor is illegal as being contrary to the Universities Cadre Rules.
viii) It is held that the occupation of the post of Director- cum- Professor by the petitioner from the date of appointment i.e., 06 . 12 .2014 is illegal being contrary to the scheme of the Act.
ix) Hence, consequently the sum paid in
excess to the salary that he was
entitled to draw as a Senior Research Officer is liable to be recovered.
x) Writ Petition No. 104414/ 2015 is r d disposed of with a direction to the 3 respondent to consider the same as a representation and dispose of the same within a period of four weeks from the date of the receipt of the copy of this order.
Writ petitions are ordered
accordingly.
In view of the above, IA
Nos.3/ 2015, 1/ 2016 and 2/ 2016 filed in WP No.21841/ 2015 do not survive for consideration and are accordingly disposed of. The interim order stands dissolved."
5. Briefly stated the facts are that the
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR petitioner-appellant herein, assailed order dated 07.05.2015 passed by 1st respondent (Annexure- K to the writ petition) in the writ petition. The petitioner also sought for a further direction to the 2 n d respondent- University to direct the said University to forward the resolution of the Syndicate dated 11.04.2014 (Annexure-D to the writ petition) so as to obtain assent and approval of the Chancellor in terms of Section 73 of the Karnataka Janapada Vishwavidyala Act, 2011 (hereinafter referred to as 'the Act ' for the sake of brevity).
6. Petitioner was working as Deputy Registrar of Kannada University at Hampi. His nd services were deputed to the 2 respondent- Karnataka Janapada Vishwavidyala, also known as Karnataka Folklore University, in the post of Senior Research Officer. The said proposal to depute the petitioner was approved by order dated 04.07.2012 and the services of the petitioner were made available to the 2 nd respondent- University for a period of three years or until further orders, whichever was earlier. Pursuant to the said order, petitioner joined the services of the 2 nd respondent- University as a Senior Research Officer, which is admittedly a non- teaching post. Petitioner was engaged in several research projects. According to the petitioner, taking note of the nd contributions made by him to the 2 respondent-
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR University, a second proposal was submitted to the Syndicate of the 2nd respondent University for absorption of the services of the petitioner as a Director-cum- Professor in the Department of Translation (Folklore Translation Centre) and one of the three posts of Professor was converted as Director, Folklore Translation Centre and the said proposal was approved by the Syndicate of the 2 nd respondent- University (Annexure- D to the writ petition) as per its resolution dated 11.04 .2014. Consequently, petitioner was appointed as a Director-cum- Professor of Centre of Folklore Translation. Apparently, the said resolution was passed in exercise of powers under Section 73 of the Act.
7. When the matters stood thus and while petitioner was discharging his duties as a Director- cum- Professor in Folklore Translation Centre, the State Government issued order bearing No. ED 590 UNE 2014, Bengaluru, dated 07.05.2015 (Annexure- K to the writ petition). By the aforesaid order, the resolution of the Syndicate of the 2 n d respondent- University dated 11 .04.2014 (Annexure-D) was rescinded. Consequently, absorption of the services of the petitioner in the respondent- University in the post of Director- cum- Professor was revoked. Further, it was ordered that the petitioner was repatriated to his parent University namely Hampi University.
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR Being aggrieved by the order at Annexur e-K, petitioner preferred writ petition as noted above. The said writ petition has been dismissed by learned Single Judge with certain directions and observations extracted above and with costs of Rs.15 ,000/- payable within four weeks. Further, a direction has also been issued for recovery of the differential salary paid to the petitioner in the post of Director-cum- Professor. In other words, the learned Single Judge has sustained the impugned Government Order dated 07.05.2015. Being aggrieved by the order of the learned Single Judge, the petitioner has presented this writ appeal.
8. Learned counsel for the appellant / petitioner submitted that the impugned order of the State Government at Annexure 'K' dated 07.05.2015 in effect annuls the resolution of the Syndicate dated 11.04.2014, a copy of which is produced at Annexure 'D', apart from directing the repatriation of the petitioner to his parent University ( Hampi University). That, such a Government Order which has the effect of annulling an earlier resolution passed by the Syndicate of the University ought to have been published. The same is a mandatory requirement under Section 8 of the Act. In the absence of publication, the impugned Government Order dated 07 .05 .2015 has no enforceability and cannot
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR have any force of law.
9. In support of the said submission, learned counsel for the appellant / petitioner placed reliance on decisions of the Hon'ble Supreme Court in the case of ITC BHADRACHALAM PAPER BOARDS & ANOTHER Vs. MANDAL REVENUE OFFICER, ANDHRA PRADESH & OTHERS, (1996) 6 SCC 634 , (ITC BHADRACHALAM PAPER BOARDS) as well as RAJENDRA AGRICULTURAL UNIVERSITY Vs. ASHOK KUMAR PRASAD & OTHERS, (2010) 1 SCC 730 (RAJENDRA AGRICULTURAL UNIVERSITY).
10. Learned counsel for the appellant next contended that before annulling the resolution of the Syndicate dated 11.04.2014 (under which petitioner was appointed as a Director-cum- Professor on being absorbed in the respondent- University), petitioner ought to have been heard in the matter. The same could not have been annulled by the State Government without following principles of natural justice. She submitted that there was no notice issued to the petitioner before the impugned order dated 07.05.2015 was passed nor the petitioner was heard in the matter before passing an order of repatriation of the petitioner to Hampi University. She further submitted that by violating the principles of natural justice, the
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR impugned order has sought for recovery of differential salary paid to the petitioner on account of annulment of order dated 11 .04.2014 and hence, the impugned order dated 07 .05.2015 ought to have been quashed by the learned Single Judge. The same not having been done and on the other hand, rejecting the petitioner' s petition with cost of Rs.15 ,000/- has caused great injustice to the petitioner. Learned counsel further submitted that in fact, show-cause notices have been issued by the State Government to the Registrar as well as to the Vice Chancellor with regard to the Syndicate resolution dated 11.04.2014. In the circumstances, appellant' s counsel sought for setting aside the order passed by the learned Single Judge and for granting the reliefs sought by the appellant in the Writ Petition.
11. Per contra , learned Additional Government Advocate as well as learned advocate for the 2nd respondent University submitted that the order of the learned Single Judge would not call for any interference and the petitioner without having any right to occupy the post of Director- cum- Professor was offered such a post. He is not entitled to continue in the said position in the University pursuant to an illegal Resolution passed by the Syndicate on 12 .06.2014 . That the said resolution has not been approved by the State Government. When the
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR matter was brought to the notice of the State Government for approval, on noting that the petitioner was not entitled to the said post--on being absorbed in the 2 n d respondent University-- has taken steps to annul the Syndicate resolution dated 11.04.2014 , by the impugned order dated 07.05.2015. Therefore, the same may not call for any interference in this appeal.
12. Learned Additional Government Advocate further submitted that the period of deputation of the petitioner in the University was three years or until further orders, whichever was earlier and that the period of three years had nd lapsed as appellant was deputed to the 2 respondent University by order dated 04.07 .2012 as a Senior Research Officer. On coming to an end of the said period of three years, the appellant was repatriated to his parent University. Therefore, the order of the learned Single Judge would not call for any interference in this Writ Appeal.
13. Learned counsel appearing for the 2 n d respondent - University reiterates the submissions made by learned Additional Government Advocate appearing for the State.
14. In reply, learned counsel for the appellant submitted that the directions issued
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR by the learned Single Judge while sustaining the impugned order of the State government dated 07.05.2015 are incorrect and that the said order may be quashed by setting aside the judgment of the learned Single Judge.
15. The detailed narration of facts and contentions would not call for reiteration except highlighting that the appellant herein was deputed to the respondent - University by order dated 04.07.2012. Till that date, appellant herein was functioning in Kannada University (Hampi University). Pursuant to his deputation, appellant was working as a Senior Research Officer in the respondent University.On 11.04.2014, the Syndicate of the respondent-University passed a resolution in subject No.9 , a copy of which is at Annexure ' D'. As per the said resolution, it was proposed that the appellant herein could be absorbed in the post of Director- cum- Professor in Folklore Translation Centre and UGC pay-scales could be extended to him. The said resolution of the Syndicate had to be approved by the State Government and when the matter was brought to the notice of the State Government/respondent No.1 herein, at that stage, respondent No. 1 passed the impugned order dated 07 .05.2015 . As a result, the resolution dated 11 .04.2014 passed by the Syndicate of the respondent University has been annulled or rescinded and consequently, appellant
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR has been repatriated to his parent U niversity, on the premise that he has completed three years' deputation period in the respondent University.
16. The first contention of learned counsel for the appellant vis-à- vis the legality and validity of the Government Order dated 07.05.2015 is in the context of Section 8 of the Act. According to appellant' s counsel, if the State Government has to annul any order, notification, resolution or any proceedings of the University which, in its opinion, is not in conformity with the provisions of the Act or the statutes, regulations or ordinances, or otherwise is inconsistent with the policy of the Government, then the same could be by passing an order which has to be published in the official gazette. It is appellant's contention that in the absence of any publication in the official gazette, any annulment of an order or resolution of the syndicate would not have any force in law or take effect.
17. At this stage, it may be mentioned that the resolution of the Syndicate dated 11.04 .2014 culminated in order dated 12.06.2014 Annexure 'F'. The said order was passed by the University. However, the State Government while considering approval of the said order considered the legality and validity of the resolution passed by
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR the Syndicate of the respondent University which was the basis for passing of the said order and has concluded that the said order is not in accordance with law and therefore has annulled the same.
18. The question to be considered is, whether, while annulling the resolution of the Syndicate, it was necessary to publish the same in the official gazette.
19. Learned counsel for the appellant has submitted that such a publication was a mandatory requirement and in the absence of publication, the impugned order at Annexure ' K' dated 07.05 .2015, under which the said Resolution of the Syndicate has been annulled, does not have the force of law.
20. Per contra, learned Additional Government Advocate and learned counsel for the respondent University have submitted that the expression used in Section 8 of the Act is ' may' and not ' shall' and therefore, it is only directory and not mandatory.
21. In order to answer the aforesaid rival contentions, it would be useful to first extract the said Section, which reads as under:
"8. Power to Annul the orders of the University: The Government may by order
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR published in the Official Gazette annul any order, notification, resolution or any proceedings of the University which in its opinion is not in conformity with the provisions of this Act, or the Statutes, Regulations, or Ordinances or is otherwise inconsistent with the policy of the Government."
22. At the outset, it is observed that unless the resolution of the Syndicate is approved by the State Government, it would not have any force or effect. In the instant case, it was at the stage of approval of the resolution of the Syndicate dated 11.04.2014 which was followed by the order of the University dated 12.06.2014-- the impugned order of the State Government was passed. Therefore, the order of the respondent University was still nascent and not yet in force when the State Government passed the impugned order dated 07.05.2015.
23. Be that as it may, on a bare reading of the said Section, it becomes clear that the Legislature has used the expression ' may' and not 'shall' . On a first blush, it gives an impression that publication in the official gazette is not a mandatory requirement. Of course, it may be contended that mere use of the expression ' may' or 'shall' would not be conclusive as to whether it is directory or mandatory in nature and that there must be a contextual interpretation in that regard. However, the
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR golden rule of interpretation states that the plain meaning of the Section must first be discerned and in discerning the same, the provision must be read as a whole to give it the plain and natural meaning. Applying the same, it is noted that the Legislature has used the expression " may " and not " shall " in Section 8 of the Act. The same would imply that it is only directory and not mandatory. The Government may, by order published in the Official Gazette, annul any order, notification, resolution or any proceeding of the University which, in its opinion, is not in conformity with the provisions of this Act, or the Statutes, Regulations, or Ordinances or is otherwise inconsistent with the policy of the Government. The reasons for the same are not far to see. It is not the intention of the Legislature that every order, notification, resolution or any proceeding of the University which requires annulment at the hands of the State Government needs publication. It is left to the wisdom of the State Government whether to publish any order of annulment of any earlier order, notification, resolution or proceeding of the University. The object of giving a discretion to the State Government is to enable the State Government to take a decision as to whether the annulment of any order, notification, resolution or proceeding of the University would call for publication or not. In
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR other words, it is not that every order of annulment would have to be published, but it is left to the wisdom of the State Government to publish in the official gazette any annulment of any order, notification, resolution or proceedings of the University which, in its opinion, is not in conformity with the provisions of the Act or the statute, regulations, or ordinances or is otherwise inconsistent with the policy of the Government.
24. In this context, it may be relevant to distinguish between legislative functions on the one hand and administrative functions on the other, particularly in the context of prior publication. Usually an order which is legislative in character requires to be published in the official gazette but not an administrative order. The reason being that the former is of a general nature and having a general application and hence, it should be widely known. But, the latter applies to specified individual or individuals and therefore, it is enough if it is served on the affected person or persons. In the same vein, when an order is of a general nature affecting a 'class of persons', it has to be notified in the official gazette. But, if an order is directed vis- à- vis a ' specified' individual, it needs to be served on the concerned person and it would not require
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR publication in the official gazette.
25. Discussing further, even though there is a three-fold classification of actions by an administrative authority, namely legislative, administrative and quasi- judicial or adjudicative, with the passage of time and complexities in administration, the said classification may not strictly hold good. Under the legislative power, the administration may seek to lay down a general rule of conduct or policy to be followed in generality of cases. Delegated legislation is an instance of exercise of power of a legislative nature of the administration. Further, an administrative function is called quasi-judicial when there is an obligation to adopt a judicial approach and to comply with the basic requirements of justice, such as principles of natural justice or fairness. But, when there is no such obligation, the exercise of power is only purely administrative.
26. Further, in broad terms, administrative powers of the Administration fall into two broad categories: (a) Non- statutory powers, eg. evolving and implementing of policies and (b) Statutory powers, e.g. execution of laws; or making delegated legislation. In the case of non- statutory
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR powers, the administration can exercise the said power in a manner which would not infringe the constitutional or a legal provision or does not infringe any legal right of any person. The exercise of such power is not structured or defined. Many a times, the administration would act without any statutory sanction, so long it has the power or jurisdiction vested in it to act. The executive function comprises both determination of policy as well as carrying it out or implementing it. The executive power being residuary i.e., the functions which do not fall within the field of legislative or judicial, but fall in the residuary class and regarded as executive, the Government or an authority vested with the executive power has to act with the responsibility in carrying on the general administration. Examples of exercise of non-statutory powers by an authority, such as University in the instant case, are creation of posts; making appointments thereto; promotion from lower to higher administrative posts; fixation of seniority, grades, emoluments; creation of a cadre or merger of one cadre with another; or laying down service conditions for the employees.
[ Source: M.P. Jain & S.N.Jain - " Principles of Administrative Law" ( Enlarged Edition)]
27. However, a large extent of the
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR powers exercised by administrative bodies emanates from statutory powers. If any statutory power is exercised which is not in conformity with the provisions of the Act or the statutes, regulations, or ordinances or is otherwise is inconsistent with the policy of the Government, which would affect a large number of persons or class of persons and the same has to be annulled, then any order, notification, resolution or proceeding of the University would have to be made by the Government by publication in the official gazette and thereafter, it would be enforced.
28. But, while in exercise of a non- statutory or statutory power, which does not affect a large body of persons or class of persons in general, annulling any order, notification, resolution or any proceeding of the University on the ground that it is not in conformity with the provisions of the Act or statute, regulations or ordinances or is otherwise inconsistent with the policy of the Government, need not be published in the official gazette. Therefore, Section 8 of the Act has purposely used the expression " may" and not " shall".
29. In the instant case, what is urged by appellant' s counsel is that impugned order dated
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR 07.05.2015 ought to have been published in the official gazette as it is an annulment of an order as well as a resolution of the Syndicate of the University by the State Government.
30. A statute, regulation or ordinances of the University would require prior publication before their enforcement having regard to Sections 23 & 30 of the Karnataka General Clauses Act, 1899. Therefore, any annulment of such a statute, regulation or ordinance of the University would require prior publication having regard to Sections 23 and 30 of the Karnataka General Clauses Act. But, if any order, notification, resolution or proceeding of the University which is not in the form of a statute, regulation or ordinance has to be annulled, the same would not require prior publication. Hence, the expression 'may' is used in Section 8 of the Act.
31. There would be further clarity on the point of discussion by considering the facts of the case at hand. In the instant case, what is sought to be annulled is resolution of the Syndicate and order of the respondent University pertaining to absorption and appointment of the appellant to the post of Director-cum- Professor. The same concerns the appellant per se. It is not an annulment of a resolution of the Syndicate
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR or an order of the University which has a force in rem or to a class or body of persons. What has been annulled by the State Government is a resolution of the Syndicate followed by an order of the University pertaining only to the appellant. In the circumstances, the annulment need not be published in the official gazette as it does not have a wider application but affects the appellant specifically. This is annulment of an administrative order of the University. On the other hand, annulment of a statute, regulation or an ordinance has an expansive and wider effect and the Government would, in its discretion, inevitably publish the same as the initial enforcement of such a statute, regulation or ordinance of the University may have been by prior publication. Further, the annulment would be of a legislative function of the University which would have made and enforced a regulation or any delegated legislation.
32. Therefore, the State Legislature has on a careful consideration and in its wisdom used the expression " may" and not " shall" in Section 8 of the Act which implies that publication of an annulment of any order, etc. of the respondent University is only directory. There may be circumstances when any annulment of a resolution of the Syndicate or an order of the University would require publication. But, that is
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR left to the wisdom of the State Government to do so, particularly having regard to the nature of annulment and its impact on the respondent University or public at large. In other cases, where administrative orders of the University are annulled, prior publication is not necessary as in the instant case.
33. It could also be argued that there are circumstances, where the use of the expression 'may' has been interpreted by the Courts to mean 'shall' and therefore, a mandatory requirement. But, such an interpretation is not warranted in the instant case having regard to the contextual interpretation given above. Possibly, if there is any order, notification, resolution or any proceeding of the University which has a wider ramification and is having an impact on a large number of persons or public at large, possibly body of students or of the employees of the University as a whole, or touching upon a policy of the University or the State Government and such an order, notification or resolution or proceedings of the University was, in the opinion of the State Government, not in conformity with the Act or statute, regulations or ordinances, or was otherwise inconsistent with the policy of the State Government, then in such situation, publication would be mandatory. Therefore, it is left to the wisdom of the State Government to
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR take a decision as to whether annulment of any order, notification, resolution or any proceeding of the University would call for prior publication or not, having regard to the nature of the order, etc. of the University sought to be annulled and its import, impact and implication on the affected persons.
34. In the circumstances, we hold that the non- publication of the annulment of resolution of the Syndicate dated 12 .06.2014 by the impugned order dated 07. 05.2015 does not result in an infraction of Section 8 of the Act. Therefore, we hold that it was left to the wisdom and discretion of the State Government to publish the said order in the official gazette, but not having done so till date would not vitiate the said order.
35. In this context, it would also be necessary to refer to the decisions cited by the learned counsel for the appellant. In ITC BHADRACHALAM PAPER BOARDS, the question that arose for consideration before the Hon' ble Supreme Court was whether under Section 11 of the Andhra Pradesh Non- Agricultural Lands Assessment Act, 1963 publication of an exemption (either permanently or for a specified period) of any class of non- agricultural lands from the levy of assessment
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR under the said Act subject to such restrictions and conditions as the Government may deem necessary to impose, was a mandatory requirement or not. The Hon'ble Supreme Court considered various earlier judgments on the point and held that where the parent statute prescribes a mode of publication or promulgation, that mode has to be followed and that such a requirement is imperative and cannot be dispensed with. Further, it was held that the case required a mandatory publication since the exemption from payment of tax being a serious matter, the provision required strict compliance and such a subordinate legislation had to be by prior publication particularly where the parent Act prescribes the mode of publication or promulgation. The said judgment is in the context of the power of exemption to be granted under Section 11 of the aforesaid Act and despite the expression may being used in the said Section, the Hon' ble Supreme Court interpreted it as shall and as a mandatory requirement. It was further observed that the power under Section 11 of the said Act was in the nature of a conditional legislation. The Court further went on to discuss the distinction between a conditional legislation and delegated legislation and held that the power to exempt payment of tax being a piece of conditional legislation was essentially legislative in character and
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR therefore, the incidents applicable to an administrative order would not apply. Therefore, it was further held that the power given to the Executive to bring an Act into force as also the power conferred on the Government to exempt a provision from operation of the enactment, are both incidents of conditional legislation and cannot be described as delegated legislation. The same are distinct from an administrative order.
36. In the instant case, the impugned order dated 07 .05.2015 is not a piece of legislation but is an administrative order and therefore, discretion with the State Government has been reserved by the State Legislature to publish an order of annulment or not to by using the expression ' may' in Section 8 of the Act. In the circumstances, the non- publication of the order dated 07 .05.2015 impugned in the writ petition would not vitiate the order. Possibly, if the impugned order was legislative in nature, then publication of the same would have been made by the State Government inspite of the use of expression 'may'. Hence, the aforementioned decision is not applicable to the present case.
37. Learned counsel for the appellant also relied upon another decision of the Hon'
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR ble Supreme Court in the case of RAJENDRA AGRICULTURAL UNIVERSITY. In the said case, the question was whether the statute made under Section 36 of the Bihar Agricultural Universities Act, 1987 providing for a benefit to the teaching staff for which, assent has been given by the Chancellor could be enforced in the absence of publication in the official gazette. Under Section 36(4) of the said Act, all statues made under the said Act had to be published in the official gazette. Section 36(4 ) of the said Act reads as under:
"36. Statutes how made.--(1) x x x x x x (4) All statutes made under Act shall be published in the Official Gazette."
The expression used therein is 'shall' and not 'may' . Further, the mandatory nature of the said provision regarding publication in the official gazette of statutes was because it was nothing but delegated legislation made by the concerned University under the provisions of the Bihar Agricultural Universities Act, 1987.
38. As already noted, in Section 8 of the Act under consideration, it is only an annulment of an order, notification, resolution or any proceeding of the University which may be
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR published by the State Government. The same does not refer to any statutes, regulations or ordinances. Therefore such annulment is in respect of orders, etc., which are essentially administrative in nature. But, if statutes, regulations or ordinances of the University which are subordinate legislation have to be annulled, then they necessarily have to be by prior publication in the official gazette as the very enforcement of such legislation is on publication in the official gazette. Therefore, any annulment of the same must be in the same manner.
39. Hence, reliance placed on the aforesaid decisions by the learned counsel for the appellant is misplaced. What may be enforced by a prior publication in the official gazette is of any statute, regulation or ordinance of the University, cannot be extended to a requirement of a prior publication in the official gazette of any Government Order seeking to annul any order, notification, resolution or any proceeding of the University. The aforesaid vital distinction has been borne in mind while holding that Section 8 of the Act requiring prior publication in the official gazette to be only a directory requirement and not a mandatory one. Hence, the impugned order dated 07 .05.2015 not having been published in the official
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR gazette would not vitiate the same as it is an administrative order not having a legislative character.
40. It is next contended that prior to passing the impugned order dated 07.05 .2015 by the State Government, there was no compliance of principles of natural justice inasmuch as the said order is concerned to the appellant herein and not anybody else and before any step was taken for depriving the appellant of his position as a Director-cum- Professor or for that matter repatriating him to his parent University, at least a notice ought to have been issued to him and a reply ought to have been called from him. The said contention is noticed by us only to be rejected for the simple reason that what was sought to be annulled was the resolution of the Syndicate of the respondent University dated 11.04.2014 as well as order of the University dated 12.06 .2014 which are ex facie illegal and contrary to the provisions of the Act and therefore, in order to set at naught the said illegal resolution as well as order and set right the status of the petitioner, the resolution of the Syndicate was rescinded or annulled by the State Government instead of approving the same or giving it its imprimatur . It is at the stage of approval of the said resolution of the Syndicate that the
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR State Government noticing that the same was illegal and contrary to law, decided to annul it. In the circumstances, the State Government has not approved the said resolution. Therefore, it was not necessary on the part of the State Government to have given an opportunity to the petitioner of being heard before passing the impugned order. It is reiterated that when the State Government was requested to approve the resolution of the Syndicate dated 11.04.2014 , it found that the same was not in accordance with law and hence could not be approved and instead it annulled the same. In the circumstances, there is no substance in the contention of learned counsel for the appellant vis-à-vis there being infraction of the principles of natural justice, prior to the passing of the order dated 07.05.2015. The resolution as well as the order of University concerning the appellant would have become effective only if the State Government had approved it and not otherwise.
Since, the resolution of the Syndicate followed by the order of the University would not have effect until it is approved by the State Government, no right was created in favour of the petitioner on the passing of resolution by the Syndicate or the order by the respondent University.
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR
41. The only other contention which requires consideration is with regard to the impugned order being a composite order; while on the one hand, the State Government has annulled the resolution of the Syndicate dated 11.04.2014 and consequently, order dated 12 . 06.2014, at the same time, the petitioner has been repatriated to his parent University, thereby terminating his deputation in the respondent University. The petitioner / appellant is aggrieved by the same.
Of course, learned Additional Government Advocate and learned counsel for the 2nd respondent University sought to sustain the said order by contending that since the period of deputation was three years and it had elapsed, it was in the fitness of things to repatriate the appellant to his parent University. But what is necessary to be noted is the fact that it was not the concern of the State Government at that stage to look into the aspect of the repatriation of the petitioner. It was the duty of the State Government to only approve or disapprove/ annul the appointment of the petitioner as Director- cum- Professor in the Folklore Translation Centre pursuant to his being absorbed in the respondent University. While annulling the resolution of the Syndicate dated
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR 11.04.2014, in our view, the State Government could not have also terminated the deputation of the petitioner in the respondent University without the said University considering that aspect of the matter in the first instance. Therefore, that portion of the impugned order dated 07.05 .2015 calls for interference.
42. The question as to, whether, the services of the petitioner could be absorbed in the respondent University or not was considered by the respondent University in the first instance and along with the absorption of the petitioner, he was simultaneously appointed as Director- cum- Professor of the Folklore Translation Centre. That, in fact, has led to the controversy in the instant case. If the respondent University had simply considered the aspect of absorption of the petitioner in the respondent University and passed an order in that regard, possibly this litigation would not have arisen at all. It is while considering the aspect of absorption of the petitioner in the respondent University, the Syndicate passed a resolution simultaneously appointing him as Director- cum- Professor of the Folklore Translation Centre of the respondent University which has not been approved by the State Government. But, while not doing so, by the impugned Government Order, petitioner has
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR been repatriated to the parent University. In the circumstances, the order of the State Government dated 07 .05.2015 terminating the deputation of the petitioner in the respondent University and repatriating his services to his parent University calls for interference and is quashed to that extent only.
43. Further, the respondent University as well as the State Government shall reconsider the question of absorption of the petitioner in the 2 n d respondent University in accordance with law having regard to the communications at Annexures 'G', 'H' & 'ZA'. The said consideration shall be made within a period of two months from the date of receipt of a certified copy of this order.
44. This leaves us with only one another aspect of the matter which is with regard to whether the direction issued by the learned Single Judge to the effect that excess salary had been paid to the petitioner over and above what he was entitled to draw as a Senior Research Officer and the same is liable to be recovered. We have heard the learned counsel for the appellant and learned Additional Government Advocate as well as learned counsel for the 2 nd respondent University on that aspect at length.
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR
45. Since, the order of recovery has been made by the learned Single Judge by the impugned order dated 19.01.2018 and prior to that, there was an interim stay granted in the writ petition and subsequently, there has been an interim order of the said direction in this appeal also, we deem it proper to modify the said direction. The respondents shall not seek recovery of the excess salary paid to the petitioner from him till 31 .01.2018. But, with effect from 01 . 02.2018, the petitioner shall be entitled to the salary as Senior Research Officer and not as Director-cum- Professor.
46. Petitioner's counsel submits that even that salary has not been paid to the petitioner. Respondent No. 2 University shall pay the said salary to the petitioner with effect from 01.02.2018 till the respondents take a decision with regard to his absorption / repatriation as directed above.
Further, the arrears of salary of appellant as Senior Research Officer for nine months for the period from 01 . 02.2018 till 30 . 10.2018 shall be paid within a period of one month from the date of receipt of copy of this order.
Pending consideration of absorption / repatriation by the respondents, petitioner is
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR permitted to work as Senior Research Officer in the 2nd respondent University for which salary shall be paid as and when it falls due.
The direction to pay cost of Rs.15 ,000/- imposed on the petitioner is also set aside.
The other directions issued by the learned Single Judge are not interfered with in this writ appeal.
The writ appeal is allowed in apart in the aforesaid terms.
In view of the disposal of the appeal, the applications stand disposed off."
9. A perusal of the aforesaid facts and circumstances and the material on record as well as the order passed to the Division Bench of this Court will clearly indicate that two questions cropped up for consideration before the Division Bench of this court, viz., firstly whether the order of withdrawing / cancelling the deputation of the petitioner from the 3rd respondent / University to the 2nd respondent / University was legal and valid and repatriating him to the 3rd respondent / University was legal and valid? Secondly, whether the petitioner was entitled to be appointed to the post of 'Director cum
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR Professor of the Centre for Folklore Translations'. In this context, the order passed by the Division Bench in W.A.No.100013/2018 will clearly indicate that insofar as the Government order dated 07.05.2015 terminating the deputation of the petitioner from the 3rd respondent to the 2nd respondent and repatriating the services to the 3rd respondent was concerned, the same was clearly quashed by the Division Bench of this Court, as can be seen from paragraph No.42 of the said order. In this context, learned counsel for the petitioner on instruction submits that the petitioner is aggrieved by the impugned order only to the extent of him being repatriated to the 3rd respondent/University and the petitioner would be satisfied, if the impugned order vide Annexure-L and consequential orders Annexures-M and P as well as the consequent notifications at Annexures-X and Y are set aside and the petitioner who is presently continuing to work as a 'Senior Research Officer' in the 2nd respondent/University is permitted to continue there without being repatriated to the 3rd respondent/university and the petitioner would not insist on being appointed as 'Director cum Research Officer' in the Center for Folklore Translations. Submission made on behalf of the petitioner is hereby placed on record.
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR
10. The material on record also discloses though several events have taken place in the interregnum period between 2015 and till this day, the petitioner continues to work as a 'Senior Research Officer' in the 2nd respondent/University as on today.
As stated supra, a perusal of the impugned order dated 22.03.2019 passed by the 1st respondent and consequential orders and endorsements issued by the 2nd respondent and the 3rd respondent are clearly and diametrically opposite and contrary to the order passed by the Division Bench of this Court in W.ANo.100013/2018, wherein it was specifically held that the withdrawal of the deputation of the petitioner from the 3rd respondent/University to the 2nd respondent/University and his repatriation from the 2nd respondent/University to the 3rd respondent/University was illegal and was expressly quashed by this Court.
11. Under these circumstances, I am of the considered opinion that the impugned order at Annexure-L, dated 22.03.2019 deserves to be quashed and all consequential orders/endorsements by respondent Nos.2 and 3 deserve to be quashed especially with the post of 'Senior Research Officer' in
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NC: 2025:KHC-D:12647 WP No. 116519 of 2019 HC-KAR the 2nd respondent/University, still remains vacant and as on today the petitioner is working in the said post even till today.
12. In the result, I pass the following:
ORDER
(i) The writ petition is hereby allowed.
(ii) The impugned order dated 22.03.2019 passed by the 1st respondent produed at Annexure-L, the order dated 23.03.2019 passed by the 2nd respondent produced at Annexure-M, the endorsement dated 26.03.2019 issued by the 3rd respondent produced at Annexure-P, the notifications dated 22.09.2018 and 31.05.2019 issued by the 2nd respondent produced at Annexures-X and Y respectively are hereby quashed.
(iii) The concerned respondents are directed to disburse salary, all consequential benefits etc., payable to the petitioner in accordance with law within a period of 4 weeks from the date of receipt of a copy of this order.
Sd/-
(S.R. KRISHNA KUMAR) JUDGE EM CT:VH List No.: 1 Sl No.: 37