Full Judgment Text
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
WRIT PETITION NO.24223/2012 (S-RES)
R
BETWEEN :
DR M S TALAWAR
S/O LATE SHESHAPPA,
AGE: 55 YEARS,
OCC: PROFESSOR,
R/A. # 777, "JENUGUDU"
BANASHANKARI, 6TH PHASE,
5TH BLOCK, BANGALORE. ...PETITIONER
( By Sri. KRISHNA S DIXIT, ADV. )
AND :
1 BANGALORE UNIVERSITY
JNANA BHARATHI,
BANGALORE- 560 056
REP BY ITS REGISTRAR.
2 THE VICE-CHANCELLOR
BANGALORE UNIVERSITY,
JNANA BHARATHI,
BANGALORE- 560 056. ...RESPONDENTS
( By Sri. H KANTHARAJA, ADV. )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS
TO DESIGNATE THE PETITIONER AS THE DEAN, FACULTY OF
EDUCATION, BANGALORE UNIVERSITY, BANGALORE AND FURTHER
TO ENABLE THE PETITIONER TO ACT AS DEAN FOR A STATUTORY
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PERIOD OF TWO YEARS FORTHWITH.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Petitioner has sought for a writ of mandamus directing the respondent
– University to designate the petitioner as the Dean, Faculty of Education,
Bangalore University, to enable him to act as Dean for a statutory period of
two years forthwith.
2. Petitioner's case is that, in June 1978, he jointed as a Lecturer in
SES College of Education at Karwar. On 22.11.1992, he joined to services
of Bangalore University as a Reader in the Department of Education. He
earned the promotion to the post of Professor in the Department of Education
in November 2000. However, some of the faculty members of the
Department of Education made 59 allegations against the petitioner. In this
regard, an enquiry was held by the retired District Judge and the District
Judge submitted a report holding that, charge Nos.1 and 2 are proved and
charge No.3 is not proved. The University issued a show cause notice on the
basis of the findings given by the Enquiry Officer as to why the said finding
should not be accepted and punishment be imposed. To the said show cause
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notice, petitioner submitted his reply dated 8.2.2008. The Syndicate on
consideration of the explanation offered by the petitioner unanimously
resolved that the petitioner be warned interalia directing him not to repeat
the same. However, the Syndicate also observed that, a circular be issued,
informing the University Staff not to indulge in giving false complaint and in
case of such false complaints, they will be penalized. In this regard, the
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University also issued a Circular dated 30 May 2008.
3. On 31.1.2009, the University appointed the petitioner as a Director
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of UGC Academic Staff College on regular basis and w.e.f. 13 November
2009, thereafter, the petitioner was appointed as Registrar (Evaluation) of the
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1 respondent – University. However, on 24.5.2010, the petitioner demitted
the office of Registrar (Evaluation). One N.V.Kirtinarayana Swamy was the
Dean, Faculty of Education and he was to complete his tenure of two years
of Deanship by the end of 15.1.2012. On 4.1.2012 in order to fill up the
vacancy of Dead of Faculty of Education, the Syndicate prepared the file of
the petitioner, who was senior most Professor in the Department of Faculty
of Education. The Registrar (Administration) also recommended the
candidature of the petitioner by his recommendation letter dated 7.1.2012,
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however, on 30 January 2012, the second respondent – Vice Chancellor
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sought for legal opinion in this regard. Accordingly, second respondent
returned the file to the Registrar on 6.2.2012 instructing him to suggest the
names from amongst the Readers for the purpose of appointing one of them
as Dean. The said matter was referred to the Syndicate. However, the
Syndicate though held several meetings, but did not take any decision and
kept the matter pending.
4. It is stated that, the second respondent – Vice-Chancellor was
determined not to confer Deanship on the petitioner. Further stated that,
keeping the file pending is nothing but denial of Deanship to petitioner, and
same is contrary to the provisions of Karnataka Universities Act 2000 (for
brevity 'the Act').
5. Sri.Krishna Dixit, learned Counsel appearing for the petitioner
submitted that, the petitioner is a senior most Professor in the Faculty of
Department of Education, is not in dispute. Section 20 of the Act does not
require that the Vice-Chancellor or the Syndicate to make an appointment of
the petitioner as a Dean. The senior most Professor in the Department would
act as a Dean on rotation for a period of two years. It is a tenure status, it is
not a permanent post or it is not by appointment, however, to deny the said
facility to the petitioner, second respondent without any justification sought
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for legal opinion, further referred to the Syndicate and further has sought for
recommendation of the names only from the category of readers, for the post
of Dean, this itself shows that the second respondent wanted to bypass the
petitioner and appoint some other person as a Dean, ignoring his seniority in
the Department.
6. As regard to the enquiry, he also submitted that, though 59
allegations were made against the petitioner, only two allegations were held
proved, they were also minor allegations. The Syndicate itself did not
choose to punish the petitioner, it only observed that, warning be given to the
petitioner and warning does not amount to punishment. Even then nearly
after two years, though the petitioner was senior, his case was not
considered. When the file was put up for giving status of Deanship to the
petitioner, the said file unnecessarily was placed before the Vice-Chancellor,
then before the Syndicate and it was kept pending without any decision being
taken thereon. Hence, he submits that, the post for which the petitioner is
automatically becomes entitled to function as Dean, is unnecessarily denied
by the intervention of the Syndicate as well as by the Vice-Chancellor.
Hence, he submits that, a direction may be issued to the respondent –
University to confer the status of Deanship forthwith.
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7. On the other hand, Sri.Kantharaja, learned Counsel appearing for
the respondent – University submitted that, though the petitioner was a
senior most Professor in the Faculty of Education, however, it is not in
dispute that there was an enquiry against him and enquiry resulted in passing
of a resolution by the Syndicate warning the petitioner not to repeat the
same. As such, the file was put up before the Vice-Chancellor and the Vice-
Chancellor thought it fit to place the same before the Syndicate for its
decision and when the matter was pending before the Syndicate, this Writ
Petition has been filed. However, he submits that, the interpretation of the
provisions of Section 20 of the Act is necessary.
8. In the light of the above submissions, the points that arise for
consideration are:
1. Whether the post of Dean requires an appointment by the
Syndicate or Vice-Chancellor?
2. Whether the Deanship is the recognition on the basis of
seniority of a Professor, in the absence of Professor, Reader in
the said Department and not a post for which an appointment is
necessary?
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9. To understand the nature of post, it is relevant to refer to the
provisions of the Act. Section 11 of the Act defines as to who are the
Officers of the University. The Dean is also one of the Officers of the
University.
10. Amongst several offices, some of the offices require
appointment in terms of the provisions of the Act. For example, Vice-
Chancellor is appointed in consonance with the provisions of Section 14, i.e.,
the State Governments would constitute a Search Committee, and based on
the Search Committee recommendation, the State Government would
forward a panel of three names in alphabetical order to the Chancellor and
the Chancellor keeping in view of the merit, equity, social justice and with
the concurrence of the State Government, appoints one person from amongst
the panel of three names as Vice-Chancellor. Similarly, in the case of
Registrar under Section 17, is appointed by the State Government from
amongst the person belonging to All India Services. Similarly, the Registrar
(Evaluation), Finance Officer. However, insofar as the Dean is concerned,
Section 21 reads as under:
“21. Dean.- (1) A Professor in each Faculty according to
seniority shall by rotation, act as Dean of faculty for a period
of two years:
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Provided that if there is no Professor the seniormost
Reader shall act as Dean:
Provided further that if in any Faculty there is no
Professor or Reader, then the Vice-Chancellor may in his
discretion designate any other suitable Teacher to act as
Dean:
Provided also that where no person is available in a
Faculty to act as Dean of the Faculty or where the University
does not have such a Department of Studies for any Faculty,
then such teacher in a Department of Studies in any affiliated
College may be nominated by the Vice-Chancellor on the basis
of seniority to act as the Dean of Faculty.
(2) The Dean of each Faculty shall be the Executive
Officer of the Faculty and shall preside over the meetings of
the Faculty.
(3) The Dean shall exercise such other powers and
discharge such other functions as may be prescribed by the
Statutes or Ordinance.”
Under Section 21 of the Act, the Deanship is not treated as post, nor it has
conferred any right on any other authority to appoint a person as a Dean of
the Faculty of the Department. It is a recognition of a person, who is senior
most person (Professor, in his absence the Reader). This recognition is for a
limited period and would confer on the next senior in the faculty by rotation.
11. It is not in dispute that, the petitioner is the senior most Professor
in the Faculty, Department of Education, the Deanship is only for a period of
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two years, the honour of Deanship is conferred on the senior most Professor
in recognition of his service rendered in the said Department and it will fall
back on the next senior most person by rotation, it is a status symbol.
Having regard to the service rendered by the Professors or the Readers, as
the case may be, the legislation has thought it fit, not to entrust the
confirmation of Deanship to any other authority, has left it to the Professors
or Readers, as the case may be, to act as Dean based on the seniority. Hence,
there is no procedure of appointment to the office of Deanship is concerned.
Neither the Vice-Chancellor nor the Syndicate has been conferred with any
right in the matter of conferring the status of Deanship on a Professor, in his
absence on a Reader, who is senior most person in the Faculty. It is an
arrangement within the Department from amongst the Professors or the
Readers in the said Department to recognize one of them as a Dean. Further,
to confer the same status, the office is tenure office only for a period of two
years, by rotation, goes to the next senior person in the faculty.
12. However, without any justification, the Vice-Chancellor by
treating the Deanship as a post, directs the Registrar to select amongst the
Readers to be appointed as a Dean. Even the Syndicate also treats the
Deanship as a permanent post for which the appointment is required to be
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made, which is otherwise not even contemplated by the Legislation itself.
13. It is also clear from the provisions of the Act that, wherever, the
appointment is necessary, the procedure is contemplated, however, no such
procedure is contemplated.
14. From the reading of Section 21 of the Act, it only shows that, the
Professors, Readers, who are academicians, whose services were to be
recognized in the Department and to confer the status of Dean as one of the
Officers of the University, senior most amongst them is treated as Dean and
it is he, who acts as a Dean and does not require any authorization as such
from any of the authority to act as a Dean. As such, to act as a Dean, neither
the Vice-Chancellor nor the Syndicate has been conferred with any power
under the provisions of the Act to appoint or otherwise.
15. As far as powers of the Syndicate is concerned, Section 29 of the
Act deals with the power of the Syndicate. The Syndicate is only conferred
with right of appointment insofar as it relates to the post for which it has
been conferred with such power to appoint, but not in respect of the office of
the Deanship for which separate provision has been made. The Syndicate
cannot assume its power to treat the Deanship as post, and interfere with the
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same. Section 29 of the Act does not override the provisions of Section 21
nor it controls the said provisions.
16. However, for the purity of the post, a clarification is required to be
made that in case a person though he is senior most, however, suffer from the
charge of allegation of moral turpitude, such person may not function as a
Dean, though may be senior, but if the person is otherwise senior and
eligible, he can act as a Dean for a period of two years and Deanship is only
on the basis of rotation, there is no other way of choosing the Deanship from
amongst the Professors or the Readers in the respective Faculty. It is
respective Faculties have been given such right to have the Deanship one
amongst themselves.
17. Insofar as the enquiry held against the petitioner is concerned,
the petitioner though was alleged with 59 charges, two charges were held as
proved against him, but in respect of two charges also, Syndicate felt that he
should not be punished except warning and warning is concerned, it is not a
punishment. Hence, the petitioner does not suffer from any ineligibility or
seniority, he is admittedly senior most amongst the Professors and such being
the case, for his experience, recognition for Deanship, the Deanship should
have been followed as and when he became entitled to act as a Dean.
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18. Hence, a direction is necessary to be issued. However, learned
Counsel for the respondent – University submitted that, the petitioner has
been appointed as Dean during the pendency of this writ petition. Hence,
further direction may not be necessary, but as regard to position of law
insofar as the Deanship is concerned, I pass the following;
O R D ER
The Syndicate or the Vice Chancellor does not get any right to appoint
the Dean of any Faculty, the senior most Professor, in his absence, the
Reader, if he is not suffering from any allegation of moral turpitude,
automatically becomes entitled to act as a Dean of that Faculty for a period
of two years, and it will go to the next senior Professor or Reader, as the case
may be, by rotation.
With this observation, the writ petition stands disposed of.
Sd/-
JUDGE
KNM/-