Karnataka High Court
B. Gangadhar vs State Of Karnataka And Others on 16 April, 1999
Equivalent citations: ILR2000KAR622
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER
1. The order of the State Government dated 23-8-1997 is the bone of contention of the petitioner, who was working as Administrative Officer, till he voluntarily resigned from the services of the University of Agricultural Sciences, Bangalore (hereinafter referred to as 'University').
2. Brief facts are:
Petitioner had joined the services of the University on 23-7-1971 as Assistant Superintendent (Administration). He was promoted to the cadre of Assistant Administrative Officer by the University by its official memorandum dated 27-1-1986. Petitioner was one of the aspirants to the post of Administrative Officer in the University. The selection committee had recommended his name also along with one another candidate by name Sri Kotresh. The appointing authority appointed Sri Kotresh as Administrative Officer of the University and further decided to keep the name of the petitioner in the panel of Administrative Officer in reserve to be appointed after the retirement of Sri Kotresh as Administrative Officer. Subsequently, petitioner was appointed as an Administrative Officer by the appointing authority in its meeting held on 9-8-1996 and 20-8-1996. The State Government taking exception to the aforesaid action of University has passed the impugned order dated 23-8-1997 annulling the minutes of the meeting dated 9-8-1996 and 20-8-1996 insofar as the appointment of the petitioner to the post of Administrative Officer of the University. It is the correctness or otherwise of the aforesaid order is called in question by the petitioner, being aggrieved by the same.
3. Broadly, the first and main contention of the learned Counsel for the petitioner was that, the State Government could not have annulled the minutes of the meeting of Board of Regents, resolving to appoint petitioner to the post of Administrative Officer without affording a reasonable opportunity of hearing to the petitioner. I will elaborate this submission a little later. First the essential facts are:
Petitioner was working as Assistant Administrative Officer in the University. The respondent University by notification dated 28-2-1996 invited application from the eligible and qualified candidates for the post of Administrative Officer. The internal and external candidates were eligible to apply for the post advertised. Petitioner as well as one Sri Kotresh had applied for the post. The selection committee constituted for the purpose of selection to consider the relative merits of the candidates, who had applied for the posts, after completion of selection process, drew a panel of the following persons for appointment to the post of Administrative Officer in order of preference as indicated below:
1. Sri Kotresh
2. Sri Gangadhar
4. The Board of Regents in its 247th meeting held on 5th of January, 1996, accepted the recommendation of the selection committee and appointed Sri Kotresh to the post advertised. Curiously, they further resolved in the same meeting to keep the name of petitioner in the panel of Administrative Officer to be appointed in the said post after retirement of the present incumbent on the ostensible reason to avoid cost of advertisement and to avoid administrative inconvenience. The resolution looks pretty strange but it is true. It reads as under:
"Minutes of the 247th meeting of the Board of Regents, University of Agricultural Sciences, Bangalore, held at 9.30 A.M. on January
5. 1996 in the Board Meeting Hall, Naik Bhavan, Bangalore.
Members present:
1.
Dr. G.K. Veeresh, Vice-Chancellor Chairman
2. Mr. C. Umesh, Additional Secretary (Edn.), Government of Karnataka Member
3. Dr. P. Rathinam, Director, National Research Centre of Oil Palm, Eluru Member
4. Dr. M.C. Devaiah, Dean Member
5. Mr. T.V. Parthasarathy Member
6. Dr. M.S. Mahalingappa Member
7. Mr. H.T. Mohan Kumar Member
8. Mr. R. Dhuruvanarayana Member
9. Mr. S.D. Sampathsamajya Member
10. Smt. Yamuna Bai Lakshman Rao Kalyan Member
11. Dr. A. Bomme Gowda, Registrar Secretary Member who expressed inability to attend:
Mr. T.H. Nayak Joint Secretary to Government Finance Department.
At the outset, the Vice-Chancellor welcomed all the Board members including Mr. C. Umesh, Additional Secretary (Edn.) and Dr. H.C. Devaiah, Dean, who were attending the meeting for the first time.
Item 1 Minutes and action taken on the minutes of the 245th meeting of the Board of Regents held on 27-10-1995.
Item 2 Minutes and action on the minutes of the 246th meeting of the Board of Regents, UAS, Bangalore, held on 24-11-1995.
(1) Under Item 6: Thirtieth Convocation of the University of Agricultural Sciences, Bangalore. (2) Under Item 7: Voluntary Retirement of Mr. Syed Mohamood, Senior Assistant (Stores), MRS, Hebbal. (3) Under Item 9: Appointment of Administrative Officer.
While continuing the appointment of Mr. A. Kotresh as Administrative Officer, the Board discussed at length the pros and cons of advertising again in a month or two as the present incumbent is retiring in June 1996. To avoid cost of advertisement and in charge arrangement, decided to keep the second name Mr. B. Gangadhar in the panel of Administrative Officer in reserve to be appointed as Administrative Officer after the present Administrative Officer retires in June 1996".
5. Pursuant to the aforesaid resolution, Sri Kotresh was appointed as Administrative Officer and after a very brief stint in the office, he retired from service after attaining the age of superannuation in the month of June 1996. Subsequently, by an order dated 29-6-1996, petitioner was placed in the independent charge of the post of Administrative Officer w.e.f. 30-6-1996.
6. The Board of Regents in its 251st meeting held on 9-8-1996 and 20-8-1996, "upheld" its earlier decision to appoint petitioner as an Administrative Officer after the retirement of Sri Kotresh. The minutes of the meeting is as under:
"After reviewing the legal opinions given by Mr. K.M. Puttegowda and Mr. B. Rudregowda, the University legal Counsels, with regard to the decision taken in the 247th meeting held on 5-1-1996, the Board upheld the decision of the 247th meeting of the Board of Regents to appoint Mr. B. Gangadhar as Administrative Officer after the retirement of Mr. A. Kotresh, Administrative Officer.
However, Dr. M.S. Mahalingappa has given a dissent note with reference to the case of Ashok Kumar and Others v Chairman, Banking Service Recruitment Board and Others, Civil Appeal Nos. 484 to 486 of 1989 decided on November 9, 1995 in the context of recruitment of candidates in excess of notified vacancies".
7. The Vice-Chancellor of the University pursuant to the aforesaid minutes of the meeting of Board of Regents, has appointed petitioner as an Administrative Officer of the University for a period of three years from the date of his reporting for duty or till he attains the age of superannuation in the services of the University, whichever is earlier by his letter of appointment dated 22-8-1996. The Vice-Chancellor has also indicated in the appointment letter that the appointee will be on probation for a period of one year from the date of reporting for duty. By virtue of this intimation, petitioner not only reported for duty on 22-8-1996 and successfully has completed the period of probation on 22-8-1997.
8. May be anticipating an adverse order from the State Government, with regard to his appointment as an Administrative Officer, petitioner had requested the University to retire him voluntarily from the services of the University by his representation dated 5-5-1997, which request has been accepted by the University in its order dated 8-7-1997 and petitioner was permitted to retire voluntarily from the University services w.e.f. 30-9-1997, though in the normal course he would have retired from University service on 31-10-1997, after attaining the age of superannuation.
9. Though petitioner was appointed as an Administrative Officer on 22-8-1996 by the University, State Government woke up a few months earlier to the petitioner's retirement from University service and issued a show-cause notice dated 11-7-1997, directing the University to show cause why the resolutions of the Board of Regents in appointing petitioner as an Administrative Officer of the University should not be annulled, The show-cause notice had been replied by the University by its reply letter dated 5-8-1997 and justified its action by reiterating the reasons which weighed in their mind, while passing the resolution dated 5-1-1996. The State Government taking into consideration the objections so filed and being of the view that the appointment of the petitioner as an Administrative Officer is not in conformity with the provisions of the University Act and Statutes, has framed the impugned order dated 23-8-1997 in exercise of its extraordinary powers under sub-section (8) of Section 8 of the Universities Act, and has invalidated the minutes of the meeting of the Board of Regents in appointing petitioner as an Administrative Officer of the University.
10. It is in this backdrop, the points canvassed by learned Counsel for the petitioner needs to be considered. The primary contention urged by learned Counsel was that, the State Government could not have passed the impugned order without affording an opportunity of hearing to the petitioner. Therefore, it is stated that the action of the State Government is in violation of principles of natural justice and is arbitrary, unjust and unfair. It is further submitted that though the provisions of the University Act is silent in that regard, the requirement of natural justice should be read into proviso to sub-section (8) of Section 8 of the Act and the non-existence of a requirement of show cause or hearing before action is taken in the Statute under which the powers are exercised cannot be a ground for non-compliance of principles of natural justice, since the impugned action visits civil consequences. In support of this contention, the learned Counsel relies upon the observations made by the Supreme Court in the case of Baldev Singh and Others v State of Himachal Pradesh and Others, State of Haryana v Ram Kishan and Others and the observations made by this Court in the case of Syed Tanveer Hussain v State of Karnataha and Others.
11. The other incidental issues canvassed in support of the prayer in the petition are that since the Act and the Statutes does not prohibit to keep the name of a person in reserve for appointment as Administrative Officer from among the panel names recommended by the selection committee, therefore, the State Government could not have passed the impugned order on the sole ground that the resolution of the Board of Regents dated 5-1-1996 and subsequent resolutions insofar as appointment of the petitioner is concerned is not in conformity with the provisions of the Act and the Statutes. Lastly, it is submitted that Board of Regents while passing the resolutions have not violated any of the provisions of the Universities Act and the Statutes and therefore the impugned order is bad, invalid and illegal.
12. The State Government has filed its detailed statement of objections and in that they have reiterated the reasons, which persuaded them to pass the order dated 23-8-1997. Sri Veerappa, learned Government Pleader ably justifies the action of the State Government and submits that since the appointment of the petitioner was not in conformity with the provisions of the Statutes, the State Government had to take extreme step of annulling the resolutions made by experts of the University.
13. The University has also filed its statement of objections and they justify the action of the State Government in passing the impugned order under sub-section (8) of Section 8 of the Act. While supporting the thinking of the State Government, they categorically state in their objections at paragraph 8 as under:
"It is submitted that since the petitioner's appointment to the post of Administrative Officer by this respondent-University is not in conformity with the Act and the Statutes the order at Annexure-H passed by the Government of Karnataka is just and proper".
14. The above paragraph is extracted by me from the statement of objections filed by the University only to avoid a detailed discussion of the issue whether the initial appointment of the petitioner as an Administrative Officer of the University was in accordance with law and in conformity with the University Statutes or not, since the University which is the appointing authority, on oath, owns its mistake and states that the appointment of the petitioner to the aforesaid post was not in conformity with the provisions of the Act and the Statutes. Therefore, the minor issues canvassed by the learned Counsel for the petitioner, in my opinion, does not require a detailed consideration.
15. The other primary issue that requires to be considered and decided is whether the rules of natural justice is attracted in the present case though the statutory provisions are silent in that regard.
16. In order to appreciate this legal issue, it will be convenient to have a look at sub-section (8) of Section 8 of the Act. It provides that:
"Section 8(8).--Notwithstanding anything in the preceding subsections, the State Government may, by order publish in the Official Gazette, annul any proceedings of the University which, in its opinion is not in conformity with this Act and the Statutes:
Provided that before making such order, the State Government shall call upon the University to show cause why such an order should not be made and if any cause is shown within a reasonable time, shall consider the same".
17. Section 8 of the Act empowers the State Government the power to inspect and control over the matters connected with the University. Sub-section (8) of Section 8 authorises the State Government to nullify any proceedings of the University which in its judgment not in conformity with the University Act and the Statutes. Proviso appended to the sub-section provides for the procedure while passing the order under sub-section (8). The language employed in the proviso is explicit and unambiguous. The proviso simply states "before making any such order, the State Government shall call upon the University to show cause". It is an accepted principle of interpretation that proviso is to be construed harmoniously with the principal section to which it stands as a proviso and also with the main intention of the legislation and the object of the Act. Proviso is not an addendum or a qualifying clause but it is, by itself a substantive provision. But its very nature qualifies the generality of the enactment, if it substantially alters the main section, even that has to be given effect to, but normally it is said that there must be harmonious interpretation of the proviso with the main section.
18. The proviso to sub-section (8) clearly mandates that before passing an order under sub-section to annul the proceedings of the University, the State Government shall issue a show-cause notice before conclusion is arrived at by the authority exercising those powers. The positive words in the Statute are that a body which has passed the order and whose decision is taken exception to by the State Government requires to be heard oral or in writing. Statute is silent insofar as hearing of the parties, who had derived benefit of the proceedings of the University. In a situation like this, grant of an opportunity of hearing oral or in writing to the employee/officers, who have secured benefit of the proceedings of the University should be "read" into the Statute is the primary question, which requires to be answered.
19. Principles of natural justice are basically a requirement of fair play in action. That is why it is not possible to define them precisely. The requirements of fair play may change with the change in circumstances and, therefore, natural justice has to be adjusted to a given situation. It is capable of being moulded according to the exigencies of the situation. At this stage, it is worth recalling the observation of Justice Krishna Iyer (as he then was) in the case of Chairman, Board of Mining Examination and Chief Inspector of Mines and Another v Ramjee. The Court was pleased to observe:
"Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances' of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the matter".
20. The Apex Court in the case of Union of India v J.N. Sinha and Another , while considering the case of respondent before them, who was Class I Officer in the Survey Department of India and whose services had been compulsorily retired under Rule 56(j) of the Fundamental Rules was pleased to observe:
"Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak v Union of India, the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it'. It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But, if, on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules of principles of natural justice then the Court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power".
21. Keeping these principles in view, let me now advert to the fact situation in the instant case. It is the respondent-University which had passed an order appointing petitioner as an Administrative Officer of the University. The State Government takes exception to the action of the University on the belief that their action is not in conformity with the provisions of the Act and the Statutes. The State Government grants an opportunity of hearing to the University by issuing a show-cause notice and further by directing them to show why their 'action' should not be nullified. In fact, the University has replied to the show-cause notice. It is only thereafter the State Government has arrived at a conclusion. The decision is taken by the State Government only after granting hearing to the person, whose order they intended to cancel. In matters like this, what the Courts have observed is only this. Reference may be made to the observations made by Madras Court in Government of India and Another v Maxim A. Lobo and Another, 'The observance of the principles of natural justice is the pragmatic requirement of fair play in action. The purpose of following the rules of natural justice operate as an implied mandatory proc-essual requirement, non-observance whereof invalidates the exercise of power. Indeed, the content of natural justice is a dependent variable, conditioned by the facts and circumstances of each situation. The application of the rules of natural justice in quasi-judicial actions has always been accepted by Courts in this country. One of the essential postulates of a quasi-judicial enquiry is the grant of an opportunity of hearing, oral or in writing, before the conclusion is arrived at by the authority exercising those powers. In this country, the Courts have applied the rules even to "administration enquiries". As a result of the law laid down by the Apex Court in the State of Orissa v Dr. Binapani Dei, , A.K. Kraipak's case, supra, Maneka Gandhi v Union of India, and National Textile Workers' Union v P.R. Ramakrishnan, (1983)53 Comp. Cas. 184 (SC), it is now well-settled that no order involving adverse consequences can be passed against any person without giving him an opportunity to be heard against the passing of such an order. In Meneka Gandhi's case, supra, the passport of the petitioner therein was impounded by the Government of India under Section 10(3)(c) of the Passports Act, 1967. The petitioner, under Article 32 of the Constitution, challenged the action of the Government as being null and void for denial of an opportunity of hearing. The Apex Court ruled that although there were no positive words in the statute requiring that the party shall be heard, yet, the justice of common law would supply the omission of the Legislature. Their Lordships held that if the statute was silent with regard to the observance of the rules of natural justice, those principles shall be "read" into the statute. Bhagwati, J. emphasised that audi alteram partem is a rule devised by Courts to ensure a just decision by the statutory authority and is calculated to act as a healthy check on the abuse or misuse of power and its reach and applicability cannot be allowed to be circumscribed".
22. In my opinion, the principles of natural justice is fully complied by the State Government while framing the impugned order dated 23-8-1997 as required under the statutory provisions. The State Government had provided an opportunity to the respondent-University, whose order it has cancelled. While framing such an order, no doubt it has affected the rights of the petitioner, but the authority, who had given him that right was heard in writing in the matter before coming to impugned conclusion. Therefore, by no stretch of imagination, it can be said that the orders framed by State Government dated 23-8-1997 is in violation of rules of natural justice, therefore, they are arbitrary, unfair or unjust.
23. There is yet another reason to hold that the impugned order is not in violation of principles of natural justice. In the instant case, the University concedes in its objections statement that the appointment of the petitioner as Administrative Officer in the services of the University is not in conformity with the provisions of Act and University Statutes. Therefore, since the initial appointment is invalid, it creates no right in the employee and it can be regarded as invalid (Municipal Board, Pratapgarh and Another v Mahendra Singh Chawla and Others ) and further the recent thinking of the Supreme Court in such circumstances is well explained in Mesharam's case, (1996(1) SCC 749 (sic). In the said decision, petitioner before the Supreme Court was a qualified candidate with Diploma in Engineering and Secondary Education. He had applied for the post of Overseer/Junior Engineer pursuant to an advertisement issued by Chief Executive Officer, Zilla Parishad, Gadchiroli. He was selected and appointed as Junior Engineer by letter of appointment dated 31-3-1994 with probation for one year. After completion of nine months service, he was served with a letter informing that his services are terminated with immediate effect. The correctness of this order of termination was questioned before the Bombay High Court claiming that he had been regularly appointed to the post which was advertised, therefore his services could not be terminated during probation period without affording opportunity of hearing in the enquiry. The High Court dismissed the petition. On a Special Leave Petition filed before the Supreme Court, the Court was pleased to observe:
"3. Shri A.K. Sanghi, the learned Counsel for the petitioners, has contended that when the posts were advertised and the candidates were found eligible, it does not mandate that there should be an interview and selection. Obviously, the Service Selection Board having found the petitioner to be eligible and qualified, recommended him and was accordingly appointed as Junior Engineer, when it was sought to be cancelled on a letter written by the Member-Secretary of the Service Selection Board, they are entitled to be heard. No such opportunity has ever been given before cancellation of their appointments. It was, therefore, violative of principles of natural justice. We find no force in the contention. It is seen that on their own admission they have merely applied for the post pursuant to an advertisement made for the selection. It is the case of the Selection Board that a regular selection has to be made and selecting the eligible candidates recommendation for appointment would be made. Therefore, the letter can be said to have conveyed that the recommendations were not authorised and according to the rules; such being the admitted position, we do not find any fault to cancel the appointments. Under those circumstances, we do not find any illegality in the action taken by the respondents. However, such things will not be permitted to be kept under the carpet. The State Government is directed to refer the matter to the appropriate" State CBI enquiry and the Inspector concerned would make an independent investigation into the matter to find out as to who were responsible for such malpractice committed and it will be open to take appropriate criminal prosecution launched against the culprits".
24. Similarly in State of Madhya Pradesh and Others v Shyama Pardhi and Others, which related to appointment of Auxiliary Nurse-cum-Midwife in Madhya Pradesh Public Health and Family Welfare Department, the Supreme Court was pleased to observe:
"It is now an admitted fact across the bar that the respondent had not possessed the prerequisite qualification namely 10+2 with Physics, Chemistry and Biology as subjects. The rules specifically provide thai qualification as a condition for appointment of ANM. Since prescribed qualification had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of respondents. The question of violation of the principles of natural justice does not arise".
25. The same view was reiterated in Krishati Yadav and Another v State of Haryana and Others, Ashwani Kumar and Others v State of Bihar and Others.
26. In view of the foregoing discussion, I am of the view that proviso to sub-section (8) of Section 8 is fully complied by the State Government. If for any reason, the State Government had any grievance on any account it could have approached this Court. There is nothing to indicate so either in their statement of objections nor was argued at the time of hearing of this petition. In fact respondent-University is arrayed as respondent. It has not taken the position that it was not afforded an opportunity of hearing. This is an additional reason why I am not persuaded to interfere with the decision of the State Government.
27. Lastly, the reliance on certain observations made by the Supreme Court in the case of Ram Kishan and Baldev Singh's case, supra, by learned Counsel for petitioner would .not assist him in any manner whatsoever since the facts and circumstances in those cases was totally different from the present facts.
28. In the result, petition fails and it is dismissed. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.