Full Judgment Text
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
TH
DATED THIS THE 13 DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 1231 OF 2020 (S-RES)
BETWEEN:
DR. K JANARDHANAM
S/O K KUPPAIAH,
AGED ABOUT 60 YEARS,
WORKING AS THE REGISTRAR (EVALUATION)
BANGALORE NORTH UNIVERSITY,
TH
R/AT NO.80, 6 CROSS,
ND
2 MAIN, WIDIA LAYOUT,
VIJAYANAGAR,
BENGALURU-560040.
… PETITIONER
(BY SRI. SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
DEPARTMENT OF HIGHER EDUCATION,
VIDHANA SOUDHA,
BANGALORE-560001
2. BENGALURU NORTH UNIVERSITY,
TAMAKA, KOLAR-563103.
REPRESENTED BY ITS REGISTRAR.
3. BENGALURU UNIVERSITY,
CENTRAL COLLEGE CAMPUS,
DR AMBEDKAR VEEDHI,
BENGALURU-560001.
REPRESENTED BY ITS REGISTRAR.
… RESPONDENTS
(BY SRI. P B ACHAPPA, AGA FOR R1;
SRI. T P RAJENDRA KUMAR SUNGAY, ADV., FOR R2 & R3)
R
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE
RECORDS LEADING TO NOTIFICATION DATED 08.01.2020
AND QUASH TRANSFER ORDER DATED 08.02.2020 PASSED
BY THE R-1 VIDE ANNEXURE-D AND GRANT ALL
CONSEQUENTIAL BENEFITS.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Petitioner, a member of Scheduled Caste (as argued)
and a professor with attractive qualifications has put in 32
years of spotless service; he claims to have officially guided
several researchers of doctoral degrees; he is knocking at
the doors of Writ Court for laying a challenge to the order
dated 8.1.2020 (wrongly printed as 8.2.2020) issued by the
respondent- Government at Annexure-D whereby, he has
been removed from the office of Registrar (Evaluation) of
the second respondent University, within less than a year
of appointment; after service of notice, the Respondent
State having entered appearance through the learned AGA
has filed the Statement of Objections resisting the Writ
Petition; the answering respondent University is
represented by it's Senior Panel Counsel, who assisted the
court, maintaining equi-distance from the battling parties.
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2. Learned counsel for the petitioner finds fault
with the impugned order because: (i) the same is made
unreasonably, arbitrarily & unjustly; (ii) Government is
whimsical in it’s action apart from being vindictive; (iii)
even otherwise, there is no reason for petitioner’s
abrupt removal; learned AGA justifies the impugned
order contending that (i) section 18 of the Karnataka
State Universities Act, 2000 (hereafter "Act") vests
unbridled power of appointment in the Govt; (ii) the said
section does not prescribe any tenure; (iii) the very
appointment order itself says " until further orders" ; and (iv)
the Registrars (Evaluation) in all the universities in the
State hold their office during the " pleasure of the
Government " and therefore, can be removed at any time.
3. Having heard the learned counsel for the
parties and having perused the Petition Papers, and also
having adverted only to the relevant Rulings cited at the
Bar, this Court grants indulgence in the matter for the
following discussion:
(a) The Registrar (Eva) is appointed primarily by
the Government u/s 18(1) of the Act; the incumbent of
this office ordinarily can be either Group-A KAS
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officer or a Senior member of Faculty of any university
in the State; if no such person is available, the Vice-
Chancellor can appoint one from out of a panel of not
less than three persons recommended by him and
approved by the Syndicate; if this too does not
happen, the Chancellor can himself appoint such
other person in consultation with the Vice-Chancellor;
the Registrar (Eva) is a whole time officer of the
university who shall be in charge of the ' conduct of
all examinations' and matters relating thereto, such as
valuation of answer scripts, announcement of results,
issuance of marks card, etc; he is also an ex-officio
member of the Syndicate, Academic Council, Finance
Committee and other Faculties u/s 30(xvii) of the Act; his
functions are not merely of administrative nature but at
times quasi judicial too; the nature & scope of powers &
duties attached to this pivotal office justify its incumbent
being described as the “ Academic Conscience Keeper of
the University ".
(b) The petitioner was appointed to this office vide
Notification dated 16.02.2019 at Annexure-A; true it is,
that neither section 18 nor the appointment Notification
mentions about the tenure of the incumbent; this apart,
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the Notification specifically states ' until further orders ';
however, all this does not imply absolute discretion since
our constitutional scheme ordains "a limited government";
in other words, the Government cannot act like the East
India Company of the Colonial era regardless of discretion
granted by law; all its actions and more particularly the
executive ones need to be prima facie ' just & reasonable', or
else they run the risk of invalidation on the ground of
arbitrariness, vide E.P.Royappa Vs. State of Tamil Nadu,
AIR 1974 SC 555 and Shreya Singhal Vs. Union of
India, AIR 2015 SC 1523 ; thus, the contention of the
learned AGA that in the absence of statutorily fixed tenure,
the incumbent can be removed from the office at ' any time
Wednesbury
and sans reason ' militates against the
Principles, (1948) 1 KB 223 which our System has
adopted, and also the rudiments of good governance; it
hardly needs to be reiterated that all public power is held
in trust and its holders are expected to act as trustees in
good faith; this public law ethics is not adhered to in the
making of impugned order.
(c) Power to appoint includes power to remove,
vide section 21 of the Karnataka General Clauses Act,
1899; the text of section 18(1) of the Act, vests
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discretionary power in the Government for making
appointment to or removing the appointee from the office,
is true; but it cannot be likened to the discretion of a
moghul emperor; more than a century ago, Lord Halsbury
of England had settled the legal position that the discretion
means ' according to rules of reason & justice ', arbitrary
action being anathema to the rule of law conceived in
Article 14 of the Constitution of India vide E.P. Royappa
supra; nothing is placed on record by the government nor
the File is produced, for dispelling the allegations of
arbitrariness & unreasonableness that taint the impugned
order; merely repeating the contention that government
has power to do what it has done, does not much help; it
hardly needs to be stated that the existence of power is one
thing and its exercise, another; existence per se does not
justify the exercise to the prejudice of a high functionary of
the university who has a right to be treated with due
fairness & dignity which the office he holds commends; an
unceremonious & abrupt removal of the petitioner sans
any reason or rhyme falls short of compliance with fair
standard norms on the anvil of which public law actions
are tested.
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(d) The submission of the petitioner that there is
no reasonableness in the impugned order, merits due
consideration; when the government exercises its power
reasonably, it operates within its authority and the courts
will not intervene even if, in the circumstances, it would
have come to a different conclusion had the said power
been vested in it; in other words, there is no room for
judicial intervention if the exercise of power lies within the
zone of reasonableness , regardless of what the preferences
of the court; the test of reasonableness at times allows
several possibilities which together constitute a " zone of
reasonableness" and the authority has freedom of choice
within this zone; the bounds of zone of reasonableness
depend on characteristics of the power being exercised; the
language & purpose of the authorizing provision of law; the
identity of the administrative agency concerned; the issue
being regulated by the agency and whether the power is
exercised primarily based on factual findings, policy
considerations or the like;
(e) it is not the case of the government that the
circumstances of the case allowed only one possibility i.e.,
making of the order in challenge as it stands; what
prompted the government to remove the petitioner within
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less than a year of his appointment, is not forthcoming
either in the Statement of Objections or in the submission
of the learned AGA; it’s inscrutability scope for the
argument of unreasonableness/arbitrariness, when law
requires that every action of the government should be
informed with reason vide E P Royappa, supra.
(f) Section 18 does not indicate any fixed tenure
for the incumbent of the office of Registrar (Evaluation); its
text is silent in this regard; in such circumstances what
the learned Judge Aharon Barak of Israel's Supreme Court
suggests in his " Purposive Interpretation in Law " first
Indian Reprint-2007, Universal Law Publishing Company
Pvt. Ltd is worth considering; he states at Pages 67, 68 &
69 as under:
" A normative text's silence may mean many things,
and may speak in different voices. Only one of these
voices is the voice of a gap...In principle a text's
silence on a particular issue can be interpreted in one
of four ways: First, the text does not expressly
provide a solution for a particular issue, but
interpreting the text implicitly resolves the
issue...Second, the text is silent about a particular
issue because it concerns a type of situation that text
does not address at all...Third, the text's provisions
for the issues it explicitly address do not apply to
issues that it does not address. This is a "speaking
silence" or a "conscious silence". The silence implies,
and the implication is that the text's provisions do not
apply to issues it does not address...Fourth, the
provision in the normative text is incomplete. The text
implicitly or explicitly settles certain issues, but fails
to regulate other issues that it is supposed to
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address, and that it does not exclude by conscious
silence. There is a gap in the text regarding these
issues. A gap in the text, then, exists when the text
aspires to a comprehensive provision, but the
provision is incomplete. One can imagine the text as a
wall with a missing brick...The text is supposed to
settle the issue, but it is incomplete, disabled ...An
uncertain provision is not a missing provision,
because the process of interpretation will
eventually resolve the uncertainty...a text
granting discretion to someone does not
necessarily contain a gap...if a controversy
cannot be decided by a precise provision,
consideration is given to provisions that
regulate similar cases or analogous matters; if
the case still remains in doubt, it is decided
according to the general principles of the legal
order of the State... "
This suggestion throws some light on way the question
being considered, travels.
(g) A kindred provision namely section 14 of the
Act by norm fixes a tenure of four years for the Vice-
Chancellors subject to some conditions, whereas already
mentioned above, section 18 does not; added to this, both
the opposing sides having produced some records stated
on oath that the predecessors of the petitioner in the
University and his counterparts in other universities were
allowed tenures approximately ranging from one year to
four years; the above suggestion of jurist-Judge Barak and
the tenure normed in the kindred provision, coupled with
past practice/precedents relating to section 18
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appointments, provide some yardstick/standard for
adjudging the reasonableness of the impugned action;
when so examined on this yardstick, one year appears to
be a short tenure and four years appear to be too long; one
can assume two years as a “pragmatic golden mean”; the
impugned order when measured on this yardstick falls
short of standard; a prudent person can state: " thou art
weighed on the balance and found wanting "; however, this
court is not prescribing any specific tenure for the
incumbent of the office in question since such power
belongs to the domain of law maker; this standardization is
only for the limited purpose of normative examination of
the complaint of unreasonableness & arbitrariness that
have infected the impugned action.
(h) The strenuous contention of the learned AGA
that section 18(1) of the Act implicitly enacts the ' doctrine
of pleasure ' and therefore, the appointee holds the office
during the pleasure of the Government is difficult to agree
with; the text of the provision does not support this
contention, and its context repels its invocation; sub-
section (6) of section 14 relating to appointment of Vice-
Chancellor employs the expression " pleasure of the
Chancellor "; here again, it is subject to the limitations
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enacted in sub-sections (7) & (8) thereof; such an
expression or the like is conspicuously absent in section
18; therefore, this court cannot invent one when the text of
the provision does not give room for that; even otherwise,
the said doctrine too does not immune the public law
action from judicial scrutiny , vide S.R. Bommai Vs. Union
of India , (1994) 2 SCR 644 .
(i) The employment of the term ' until further orders ' in
the impugned order which the learned AGA heavily banked
upon to negate the challenge cannot be construed as
giving a blanca carta to the Government to do what the
reason & justice do not approve; the Apex Court in UOI Vs.
S.N. Maity, (2015) 4 SCC 164 observed: " merely because
the words 'until further orders' are used, it would not confer
allowance on the employer to act with caprice' ; this dicta
applies to the case of the petitioner with more force since
government is not his employer, the power to appoint
having been vested in it, notwithstanding.
(j) There is a lot of force in the submission of the
learned counsel for the petitioner that, regardless of its
power of appointment & removal, the government cannot
treat the university as it's department and its statutory
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authorities, as its own civil servants; a contention to the
contrary undermines the essential autonomy enacted in
favour of the universities; the decisions relied upon by the
learned AGA namely Ratilal B Sony Vs. State of Gujarat,
1990 Supl. SCC 243 and Kunal Nanda Vs. UOI, (2005) 5
SCC 362 , do not come to the rescue of respondents;
apparently, they did not involve displacement of high
statutory functionaries like the petitioner; what norms
ordinarily apply to the transfer & posting of civil servants
does not ipso facto apply to the appointment & removal of
university functionaries; case of the petitioner is not one of
transfer & posting of ordinary civil servants in the routine
administration; it involves a matter far serious, by its very
nature; these Rulings were rendered in a fact matrix that
was miles away from the one in this petition.
(k) Here is, a case of abrupt & unceremonious
removal of a prominent university functionary in less than
a year of appointment, allegedly ' in the public and
administrative interest' ; to substantiate this assertion, as
already mentioned above, neither the File is produced nor
the circumstances are pointed out which vouch the
employment of these high sounding words; it is not the
requirement of petitioner's services for teaching or that his
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continuation was not conducive to the administration of
university affairs; nor his removal is founded on any
allegations; thus, the expression ' in the public and
administrative interest' which is mechanically pasted
almost invariably in the Government Orders of the kind
now a days, cannot be chanted like a vedic mantra for pre-
empting their challenge; what a Co-ordinate Bench of this
court had observed in its judgment dated 19.06.2017 in
W.P.No.24645/2017 between Dr.R. Rajanna Vs. State of
Karnataka , which the AGA pressed into service does not
save the impugned action from invalidation, these
observations having been made in different circumstances
of the case and no law having been laid down, after
examining the provisions of the Act.
4. There is one more aspect which cannot be left
untreated; petitioner filed the writ petition on 13.01.2020,
the impugned order having been made on of 8.1.2020
(wrongly printed as 8.2.2020), a Co-ordinate Bench of this
court vide ad interim order dated 22.01.2020 had granted
and continued stay of the same; despite this, petitioner
was not reinstated in the office of Registrar (Evaluation) on
the ground that by that time, he had already relieved; this
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is not a happy thing to happen; orders of the court need to
be understood with common sense; admittedly, no other
person was appointed to the office and therefore, petitioner
ought to have been reinstated in view of the stay order;
however, that did not happen in this case; be that as it
may; this apart, he was not even paid salary for about six
months despite stay order strangely contending that he
had not reported for duty as a Professor elsewhere; this
can be likened to salting the injury; however, the arrears of
salary dues came to be released after this court had placed
its anguish on record vide order dated 18.06.2020; but the
agony of the petitioner who had to hold his body & soul
together during the unpaid period needs to be understood
by all concerned.
In the above circumstances, this writ petition
succeeds; a Writ of Certiorari issues quashing the
impugned order; a Writ of Mandamus issues to the
respondent No.2 to reinstate the petitioner to the office of
Registrar (Evaluation), forthwith without waiting for any
formal orders from respondent No.1; respondent No.1 shall
ensure immediate reinstatement of the petitioner,
accordingly; the respondent No.2 shall pay to the petitioner
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the salary & emoluments that have fallen due hereto and
accruing due hereafter, without brooking any delay.
In view of disposal of main matter, all IAs pale into
insignificance.
Now, costs made easy.
Sd/-
JUDGE
Snb/