Karnataka High Court
Shankar Rao vs Chancellor, Karnataka University on 12 March, 1986
Equivalent citations: ILR1986KAR1432
ORDER Venkatesh, J.
1. Shankar Rao Maharudrappa Kappikeri of Dharwad has filed this Petition under Article 226 of the Constitution of India for a Writ of Mandamus and/or other appropriate orders or directions. It is directed against the Chancellor, Vice-Chancellor and the Registrar of the Karnataka University, Dharwad who are respondents 1 to 3 respectively herein.
2. When this Petition came up for hearing before the Learned Single Judge, Chandrakantharaj Urs, J., he referred the same for decision to a Division Bench, since in his view certain important questions of law arise for consideration.
3. The petitioner was appointed as a Lecturer in Hindi in the Post-graduate Department at the Karnataka University, Dharwad, on 25-8-1971. A few posts of Readers and Lecturers in the University fell vacant during the years 1977 and 1979, On 25 4-1977 a notification was issued notifying the vacancy of one post of Professor in Hindi in the Post-graduate Department at Dharwad and one post of Reader also in Hindi in the Post-graduate Department at Gulbarga Centre. No further steps were taken on this notification. A second notification was issued on 9-3-1979 /4-4-1979 notifying vacancies of two posts of Readers in the Post-gradate Department of Hindi at Dharwad. By this time the petitioners had been transferred by the University as a Lecturer in the Post-graduate Department of Hindi at its Gulbarga Centre. He had applied not merely to the post of Professor in Hindi but also to one of the posts of Readers. A Board of Appointment was constituted to make selections for the posts notified in the aforesaid two notifications. It selected the petitioner to the post of Reader in Hindi at the Post-graduate Centre at Gulbarga. However, the Chancellor did not appoint him as Reader on the ground that the petitioner did not have the requisite qualifications for the post.
4. The petitioner's request in this Petition is for an appropriate direction to the respondents to appoint him as Reader in the Post-graduate Department of Hindi at the Gulbarga University which has since come into being.
5. The Learned Counsel for the petitioner submitted that his client had all the requisite qualifications for being appointed as Reader in Hindi in the Post-graduate Department at Dharwad and that since he had been selected by the Board, the Chancellor could not but have approved his selection. The Chancellor, he submitted, in the circumstances, had committed an error in not approving the list and therefore an appropriate direction by the Court was required to be issued.
6. On the other hand, Sri Chandrasekhariah. Learned Government Advocate, who is appearing for the first respondent, contended that the petitioner did not have the requisite qualifications for the post and further submitted that in a given case the Chancellor can exercise his discretion and decline to approve the list or a part of the list sent by the Board.
7. Since similar questions have arisen in two other Writ Appeals (W.A. 337/85 and 1919/85), Chancellor, University of Mysore v. G. R. Rangaswamaiah Dr. K. Savanna v. Mysore University -- DD 19-3-1986, the Counsel appearing in those appeals were also asked by the Court to make their submissions in the matter. Accordingly, we have heard Sriyuths : M. R. Janardhana, P. Vishwanatha Shetty and H. S. Jois. Sri Janardhana and Sri Vishwanatha Shetty took the stand that the Chancellor in the matter bad no discretion but to go by the select list submitted to him by the Board, if in making the selection the Board had complied with the relevant provisions of the Act or Statutes, if any. Sri H. S. Jois, on the other hand, argued that even in such a case the Chancellor has powers to reject the select list, either fully or in part.
8. Three Universites, the University of Bangalore, the University of Karnataka and the University of Mysore were established under a common Universities Act known as the Karnataka State Universities Act, 1976 (the Act). Subsequent to the filing of this Petition, by Karnataka Act No. 25/80, the Act came to be suitably amended providing for the establishment of two more Universites, one at Gulbarga known as the Gulbarga University and the other at Mangalore. known as the Mangalore University. The Gulbarga University has its jurisdiction over the areas comprising of the Districts of Bellary, Bidar, Gulbarga and Raichur. It may be noted that these four districts originally fell within the jurisdiction of the Karnataka University.
9. Broadly speaking, the administration of these Universities, in different measures and at different levels, vests with the categories of Statutory Authorities known as The Officers and The Authorities of the University.
10. Chapter III of the Act containing Sections 9 to 10 deals with the Officers of the University. Section 9 names 8 such Officers and confers an enabling power on the Chancellor to name and designate any other officer, if so recommended by the Vice-Chancellor. It may also be noted that the Chancellor is himself one such Officer named in Section 9.
11. Chapter IV containing as it does Sections 20 to 34A deals with the Authorities of the University. The Authorities are The Senate, The Syndicate, The Academic Council, The Finance Committee, The Board of Studies, the Faculties, and such other bodies as by Statutes may be declared to be the Authorities of the University.
12. Since we are concerned in this proceeding with the question of appointment of the petitioner to one of the teaching posts in the University, let us examine the relevant provisions of the Act which deal with the modalities and procedure in the matter of selection and appointment to teaching posts. It is Chapter VIII of the Act that deals with the appointment of teachers and other servants of the University. In this Chapter fall Sections 49 to 52. It is Section 49 that deals with the appointment of Professors, Readers, Lecturers and the Librarian of the University. Section 49 is relevant for our purpose. That reads as under :
"49 Appointment of Teachers, etc--(1) There shall be a Board of Appointment for selecting persons for appointment as Professors, Librarian, Readers and Lecturers in the University.
2) Every such Board shall consist of--
a) for selections to the posts of Professors and to the post of Librarian--
i) the Vice-Chancellor Ex-Officio Chairman ;
ii) the Head of the Department concerned, if he is a Professor and if he is not a Professor, a Professor from any other University in the State, nominated by the Chancellor ; and where no such Professor is available in any University within the State, such Professor in the concerned Department from a Central Institute within the State or from a University in any other State, nominated by the Chancellor.
iii) three experts nominated by the Chancellor, two of whom from a panel furnished by the University Grants Commission and the ether from amongst persons serving in any University established by law in India or any other institution recognised by the State Government.
b) for selections to the posts of Readers and Lecturers--
i) the Vice-Chancellor Ex-Officio Chairman ;
ii) two experts nominated by the Chancellor ;
iii) the Head of the Department concerned if he is a Professor, and if he is not a Professor, a Professor in the concerned Department of any other University in the State nominated by the Chancellor and where no such Professor is available in any University within the State, such Professor in the concerned department from a Central Institute within the State or from a University in any other State nominated by the Chancellor.
iv) one Professor from any other University in the State nominated by the Chancellor where the Head of Department concerned is not a Professor.
3) The Registrar shall Act as the Secretary of the Board of Appointment.
4) Every post of Professor, Librarian, Reader or Lecturer to be filed by selection shall be duly and widely advertised together with the minimum and other qualifications, if any, required, the emoluments and the number of posts to be filled, and reasonable time shall be allowed within which the applicants may apply.
5) The quorum for a meeting of the Board of Appointment shall be four of whom in the case of selections to the posts of Professors and the Librarian at least two shall be the experts and in the case of selections to the other posts, at least one shall be the expert.
6) The Board shall interview, adjudge the merit of each candidate in accordance with the qualifications advertised and prepare ft list of persons selected arranged in the order of merit. It shall forward the list to the Chancellor who shall make appointments in accordance with the same.
Explanation--Nothing in this sub-section shall be construed as requiring the Chancellor to make appointments in accordance with the list where he is of the opinion that it does not satisfy the provisions of this Act or the statutes relating to such appointments.
7) In preparing the list under Sub-section (6) the Board shall follow the orders issued by the State Government from time to time in the matter of reservation of posts for the Scheduled Castes, the Scheduled Tribes and other backward classes of citizens.
8) Notwithstanding anything in Sub-section (7), preference shall be given to persons belonging to the Scheduled Castes and the Scheduled Tribes in any selection if in the opinion of Board such persons possess merit a little above the minimum qualification prescribed and are suitable.
9) Notwithstanding anything in the preceding Sub sections appointments to the posts of Professors and Readers in under-graduate colleges maintained by the University shall be made by such authority as may be prescribed in the Statutes by promotion on the basis of seniority-cum-merit from Readers and Lecturers respectively ;
Provided that whenever any new subject is introduced, appointment of Professors, Readers and Lecturers in such new subject shall be made in such manner as may be prescribed by Statutes,"
13. Section 49 contemplates the constitution of a Board of Appointment to make selection to the posts of Professors, Readers, Lecturers and Librarian of the University. To make selections to the posts of Readers and Lecturers, the Board constituted should consist of the Vice-Chancellor, two experts nominated by the Chancellor, the Head of the department concerned, if he is a Professor, and, if not, a Professor in the concerned department of any other University nominated by the Chancellor and if no such Professor is available such Professor in the concerned Department from a Central Institute within the State or from a University in any other State to be nominated by the Chancellor, one Professor from any other University in the" State nominated by the Chancellor where the head of the Department concerned is not a Professor. The Vice-Chancel for is the Ex-Officio Chairman of the Board and the Registrar of the University, its Secretary. The vacancies will have to be duly and widely advertised indicating therein the minimum and other qualifications and other requisite information re-emoluments etc., (Sub-section-4). Sub-section (5) provides for the quorum of the meeting. Sub section (6) mandates that the Board should interview the candidates, adjudge the merit of each candidate and should prepare a list of persons selected arranging the same in the order of merit and "shall forward the list to the Chancellor." As further provided in that very provision, the Chancellor "shall make appointments in accordance with the same."
14. Let us now see the qualifications prescribed for the post of Reader in Hindi of the University. The qualifications were :
"(i) A Doctor's degree or research work of an equally high standard ; and
(ii) Consistently good academic record with 1st or high 2nd Class (B in the seven point scale) Master's degree in relevant subject or an equivalent degree of a foreign University.
Having regard to the need for developing inter-disciplinary programme, the degree in (i) and (ii) above may be in relevant subjects.
Provided that if the selection committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of very high standard it may relax any of the qualifications prescribed in (ii) above.
Provided further that if a candidate possessing a Doctor's degree or equivalent research work is not available or is not considered suitable, a person possessing a consistently good academic record (weightage being given to M. Phill. or equivalent degree or research work of quality) may be appointed provided he has done research work for atleast two years or has practical experience in a research laboratory organisation on the condition that he/she will have to obtain a Doctor's degree or give evidence of research work of equivalent high standard within five years of his/her appointment, failing which he/she will not be able to earn future increments until he/she fulfils these requirements.
(iii) Five years teaching experience to Post-graduate classes/ Research and evidence of having done independent research."
15. The Board of Appointment constituted to make selections for the posts notified in the aforesaid notifications met, interviewed and after adjudging the merit of each candidate, prepared a select list and forwarded the same to the Chancellor as provided under Sub-section (6) of Section 49. In that list it recommended the case of the petitioner for the appointment as Reader in Hindi at the Post-graduate Centre of Dharwad University at Gulbarga. The recommendation of the Board in so far as it concerned the petitioner reads thus :
KARNATAKA UNIVERSITY, DHARWAD For the post of Readers in Hindi, we interviewed in all 19 persons who appeared for the interview and after carefully going through their qualifications, Teaching experience, Research work and the performance at the interview, we are of the view that the following are suitable for the post and unanimously recommend that they be appointed on the salary mentioned against their names :
READERS (THREE POSTS) Karnataka University Postgraduate Department, Dharwad.
Post-graduate Centre, Gulbarga.
1.
Dr. C.G. Dubey, M.A., Ph.D.D. Litt, 19 years of P.G. Teaching experience and produced 7 Ph.Ds. and published research work of High quality (next stage in the scale of Reader as per rules)
1. Sri. S. M. Kappikeri M.A. with 16 years of Postgraduate teaching experience and published research work of high standard, (next stage in the scale of Reader as per rules)
2.
xx xx xx 3. xx xx xx
16. The Chancellor, as stated above, declined to appoint the petitioner as Reader as recommended by the Board for the reason that the petitioner did not have the necessary qualifications prescribed for the post. Elaborating this fact, it has been stated in the statement of objections of the first respondent as under :
"The Petitioner is a B.A. with an ordinary pass class and M.A. in II Class. He does not possess a Doctorate and his research output is reported to be not of very high standard, Therefore, he does not fulfil the first two of the qualifications mentioned above. Besides, there were several better qualified candidates than the petitioner and it was therefore that the Chancellor could not, persuade himself to approve of the petitioner's appointment."
17. Now, the questions that arise for consideration are :
(i) Did not the petitioner have the requisite qualifications for being appointed to the post of Reader in Hindi ?
(ii) Even if he had such qualifications and had been selected by the Board of Appointment, could the Chancellor, exercising his discretion in the matter have declined to appoint him for the post ?
18. For being selected to the post of Reader, the concerned candidate should have taught Post-graduate students at least for 5 years and should have had evidence of having done independent research work (qualification-iii). The Board had found him having had 16 years Post-graduate teaching experience and had further found him having published research work of high standard.
He should have had a Doctor's degree or in the alternative Research work of equally high standard to his credit (qualification-i). The Board found him having published Research work of high standard, as already stated.
The only remaining qualification was that he should have had consistently pood academic record with first Class or high Second Class Master's degree (qualification-ii). But the proviso to the second qualification says that if the selection committee is of the view that the Research work of a candidate as evident either from his thesis or from his published work is of very high standard, it may relax any of the qualifications prescribed in (ii) above. The very fact that the Board had recommended the name of the petitioner taking into consideration his teaching experience and his Research out-put clearly shows that it had relaxed the second qualification.
19. It is thus clear that the petitioner did have the necessary qualifications for the post and the Board had also found him having had the qualifications prescribed in the notification.
20. While rejecting the recommendations of the Board of Appointment, the first respondent appears to have made his own assessment as to the merits of the candidate (the petitioner). According to the first respondent, the Research out-put of the petitioner as reported to him was not of a high standard. He is further of the view that there were several better qualified candidates than the petitioner for the said post. As already stated, the Learned Government Advocate submits that the Chancellor, exercising his powers, can reject the recommendations of the Board even if the Board had found the candidate qualified for the post.
21. In order to appreciate this contention, we should know the source and ambit of the power of the Chancellor in dealing with University matters. This necessarily leads us for a consideration of the relevant provisions of the Statute. Section 10 of the Act which deals with the appointment of the Chancellor and his powers reads thus :
"10. The Chancellor -- (1) The Governor of Karnataka shall by virtue of his office, be the Chancellor of the University.
(2) He shall be the Head of the University and shall when present, preside at the meetings of the Senate and at any Convocation of the University.
(3) He shall have such other powers as may be conferred on him by or under this Act or the Statutes."
(underlining supplied) He is the Head of the University and indeed a very high functionary. And when present at the meetings of the Senate and at the Convocations of the University, he will have right to preside over those Bodies. In so far as his other powers touching the internal administration of the University are concerned what Sub-section (3) of Section 10 says is that "he shall have such other powers as may be conferred on him by or under this Act or the Statutes."
22. The Chancellor being the creation of a Statute, his powers are circumscribed by the Statute that has created his office. Whatever power that office is invested with has necessarily to be found only within the four corners of that Statute. The Act has not conferred upon him any inherent powers much less any discretionary powers. Sub-section (6) of Section 49 of the Act says that when the list is forwarded to him by the Board of Appointment he, the Chancellor, "shall make appointments in accordance with the same." It is thus obligatory for the Chancellor to accept the recommendation and make appointments accordingly. He is not an appellate authority over the decision of the Board. Nor is he a revising authority to take decision of his own, He can, however, refuse to act on the recommendation, if he finds that in making the recommendations, the Board had violated the provisions of the Act or Statutes, or the candidate recommended expressly lacked the prescribed qualifications.
This view of ours also finds support from the explanation added to Sub-section (6) of Section 49 of the Act by Karnataka Act No. 25/1980. As observed by the Supreme Court in Bihta Co-operative Development And Cane Marketing Union Ltd. & anr. v. Bank of Bihar & ors., an explanation to a provision "must be read so as to harmonise with and clear up any ambiguity in the main section and it should not be so construed as to widen the ambit of the section.
In Venkataratnam A.V. v. Chancellor, University of Mysore & anr., 1981(1) K.L.J. 423 a similar question came up for consideration. There Rama Jois, J., observed that "in the absence of any illegality which vitiates the selection, the Chancellor cannot sit in judgment over the merits of the selection made by the Board and take a contrary view regarding the suitability of a candidate selected by the Board of appointment." The Learned Judge further observed that "in the absence of any procedural irregularity or want of qualification or existence of disqualification in the selected candidate, Section 49(6) of the Act creates a right in favour of a candidate selected by the Board to be appointed and a corresponding duty on the part of the Chancellor to appoint a candidate selected for the post for which the appointment was intended". We are in entire agreement with this view. The Board has to consist of experts or specialists (Professors) in that particular branch or subject. In academic matters the opinion of such experts who are more familiar with the subjects and persons has to take precedence. Secondly, it would be proper and safe for the Chancellor to act on the advice of the Committee of Experts. The Governor, who by virtue of his office has been appointed as the Chancellor, is also the highest dignitary and constitutional authority in the State. The Legislature perhaps intended that he should not be dragged into any controversy in the matter of appointments to Universities.
23. For reasons stated above, we are of the view that the petitioner is entitled to the relief sought for by him.
24. Subsequent to the filing of this Petition a separate University at Gulbarga came to be constituted under the Act and the Post-graduate Centre in Hindi at Gulbarga which was under the Karnataka University now stands transferred to the Gulbarga University. Therefore, that University has been subsequently arrayed as the 5th Respondent. It appears that in the month of March, 1982, the 6th Respondent has been appointed as Reader in Hindi in the post in question. Earlier to that on 7-7-1980. the Learned Single Judge had made an interim order in the Writ Petition that any selection or appointment made to the post during the pendency of the Writ Petition would be subject to the decision in the Petition. That fact has been again reiterated on 4-11-1981 (by a separate order). The petitioner had been selected by the Board of Appointment to the Post of Reader in Hindi at the Post-graduate Centre at Gulbarga. In view of the subsequent development, we have to suitably mould the relief to be granted in the petition.
25. Accordingly we make the following Order :
(i) Writ Petition is allowed ;
(ii) Rule made absolute ;
(iii) A Writ in the nature of mandamus shall issue to the 1st Respondent to appoint the petitioner as Reader in Hindi in the Post-Graduate Department of Hindi at the Gulbarga University, Gulbarga ;
(iv) Parties are directed to bear their own costs.