K. NARASAIAH v. CHANCELLOR, BANGALORE UNIVERSITY — 1970 DIGILAW 193 (KAR)

NARAYANA PAI, C. J. ( 1 ) THE petitioner Dr. K. Narasaiah and respondent 3 Dr. K. Venkatagiri gowda have been for some time Heads of Department in the Faculty of Arts of the University of Bangalore. The petitioner became the Head of the Department of History on February 7, 1967; he was appointed the Professor of History on August 29 1968. Respondent 3 was appointed as the professor as well as the Head of the Department of Economics on July 10, 1967. ( 2 ) ON February 12, 1970, the Registrar of the University issued a notification purporting to be by order, (not indicating by whose order), stating that the petitioner has been appointed as the Dean of the Faculty of arts. The notification mentions other appointments also with which we are not concerned. Respondent 3 thereupon moved the Chancellor under s. 46 of the Bangalore University Act, 1964 complaining that according to the true meaning of S. 16 dealing with Deans, he should have been made the Dean and not the petitioner. The Chancellor heard the parties through counsel and made an order on May 19, 1970 setting aside the appointment of the petitioner and appointing respondent 3 as the Dean of the Faculty of Arts. ( 3 ) THE petitioner challenges the said order of the Chancellor both on merits as well as on the ground that the Chancellor had no jurisdiction to make the impugned order. ( 4 ) SO far as jurisdiction is concerned, the contention of the petitioner is that the matter in dispute in this case was one within the jurisdiction of the Syndicate under sub-sec. (3) of S. 58 of the Act and not within the jurisdiction of the Chancellor under S. 46. Respondent 3, as well as the university impleaded as respondent 2, contend that the matter was well wi'hin the scope of S. 46 and that therefore the Chancellor did have jurisdiction to decide the matter. The University further contends that the petitioner having failed to raise the question of jurisdiction before the chancellor, he is disentitled from invoking the jurisdiction of this Court under Art. 226 of the Constitution. On the merits, the question turns exclusively upon the interpretation of sub-sec. (1) of S. 16 of the Act. The University further contends that the petitioner having failed to raise the question of jurisdiction before the chancellor, he is disentitled from invoking the jurisdiction of this Court under Art. 226 of the Constitution. On the merits, the question turns exclusively upon the interpretation of sub-sec. (1) of S. 16 of the Act. The petitioner's contention is that seniority for purpose of becoming the Dean is length of service as Head of the Department, whereas respondent 3's contention is that length of service material for the said purpose is as professor. ( 5 ) IT will thus be seen that the questions raised in this writ petition involve the interpretation of three sections of the Bangalore University Act, viz. , Secs. 16 (1), 46 and 58. We shall therefore first copy those sections before proceeding to discuss the arguments addressed before us. They read:"16. Deans.- (1) Every Head of a Department of Studies who is a Professor shall, by rotation according to seniority, for a period of two years, act as the Dean of the Faculty: Provided that if in any faculty there is no Professor, the senior-most Reader shall act as the dean and if there is no Reader, such teacher as the Vice-Chancellor may designate, shall act as the Dean. 46. Disputes regarding membership.- (1) If any question arises whether any person has been duly elected or appointed as or is entitled to be, a member of any authority or other body of the University, the matter shall be referred to the Chancellor. (2) The decision of the Chancellor on that question shall be final and shall not be called in question in any Court of law. 58. Seniority.- (1) Whenever, in accordance with this Act or the Statutes any person is to hold an office or be a member of any authority or body of the University by rotation according to seniority, such seniority shall be determined according to the length of continuous service of such person in his grade or post, as the case may be, and in accordance with such other principles as the Syndicate may, from time to time, specify. (2) The Registrar shall prepare and maintain, in respect of each class of persons to whom this section applies, a complete and up-to-date seniority list in accordance with the provisions of sub-sec. (1 ). (2) The Registrar shall prepare and maintain, in respect of each class of persons to whom this section applies, a complete and up-to-date seniority list in accordance with the provisions of sub-sec. (1 ). (3) If two or more persons have equal length of continuous service in a particular grade or post, or the relative seniority of any person or persons is otherwise in doubt, the Registrar may suo motu and shall at the request of any such person, submit the matter to the Syndicate and the decision of the Syndicate thereon shall be final. " ( 6 ) THE objection raised on behalf of the University that the petitioner should not be permitted to raise the question of jurisdiction for the the first time in a writ petition, has considerable force, especially when the petitioner having had the opportunity of being heard through counsel, has not raised the question of jurisdiction before the Chancellor, which supports the suggestion made by the University that if the Chancellor had decided in his favour the petitioner would not have raised the question of jurisdiction and that therefore he should not be permitted to raise it now having taken a chance of such a favourable decision for the reason that the decision now happens to be against him. Nevertheless, it is not possible totally to refrain from going into the question of jurisdiction, because the said question is closely related to the interpretation of S. 16 also which is the only section relevant to the decision on merits. ( 7 ) S. 16 (1) indicates that the right to act as the Dean of the Faculty is one that is acquired by rotation according to seniority. The office of a dean, therefore, is one which a person can hold by the principle of rotation according to seniority. S. 58 deals with such cases, and provides that such seniority (i. e. seniority for the purpose of determining the rotation for holding any office) should be determined according to the length of continuous service in a grade or post. Sub-sec. (2) directs that the Regis trar should prepare and maintain an up-to-date seniority list for the said purpose. Sub-sec. (3) provides for settlement of disputes in regard thereto by the Syndicate. The argument on behalf of the petitioner in this case has been that there is such a close relationship between the provisions of sub-sec. Sub-sec. (2) directs that the Regis trar should prepare and maintain an up-to-date seniority list for the said purpose. Sub-sec. (3) provides for settlement of disputes in regard thereto by the Syndicate. The argument on behalf of the petitioner in this case has been that there is such a close relationship between the provisions of sub-sec. (1) of S. 16 and those of S. 58 that there is no escape from the inference that the question whether seniority for the purpose of becoming a Dean should be length of service as Head of Department or length of service as professor, is a question of relative seniority which is within the scope of sub-sec. (3) of S. 58. On the other side, Counsel for respondent 3 contends that the relative seniority dealt with in S. 58 is seniority of two or more persons in the same grade or post or class, whereas the question raised by the petitioner with reference to sub-sec. (1) of S. 16 is not one of relative seniority in the same grade, post or class but quite a different question, namely, whether the seniority for the said purpose should be as Head of department or as a Professor. The answer thereto by the petitioner's counsel is that the doubt regarding relative seniority referred to in sub sec. (3) is a doubt which may arise not only on account of equal length of continuous service of two or more persons but also otherwise. According to him, the word 'otherwise' in the context is wide enough to comprehend any question of seniority which is relevant for purposes of appointment to an office on the basis of rotation according to seniority, and would therefore include also the question raised by him with reference to sub-sec. (1) of Section 16. ( 8 ) THE two sides of the controversy so formulated by the two Counsel make out that the controversy itself is not capable of an easy solution, which is ground enough to hold that the petitioner has failed to make out a clear case of total lack of jurisdiction. If, however, an attempt should be made to resolve the controversy or it is necessary that a clear opinion thereon should be expressed for the disposal of this writ petition, it appears to us that the doubt or dispute as to seniority dealt with in sub-sec. If, however, an attempt should be made to resolve the controversy or it is necessary that a clear opinion thereon should be expressed for the disposal of this writ petition, it appears to us that the doubt or dispute as to seniority dealt with in sub-sec. (3) is not a doubt which can be clearly referred to as one arising under with reference to sub-sec. (1) of S. 16, but is directly rejated to the preparation of the list by the Registrar under sub-sec. (2) of S. 58. Although the reason for the preparation and maintenance of a list of seniority is to have material for reference whenever a question arises which person is to hold office which, according to the provisions of the Act, is to be held by rotation according to seniority, the seniority list required to be prepared by the Section is a list with reference to or in relation to a particular grade or post or a class separately. Ordinarily, there should be no difficulty in preparing such a list because the persons dealt with in each list being those belonging to the same grade or class, the normal rule of length of service is the rule to apply. Doubts may arise only when the said normal rule cannot be applied as, for example, when two persons have equal length of continuous service. Another occasion for doubt might be break in service or the question whether service of any person upon deputation to other universities or institutions can or may be taken into account. Even these doubts are in normal circumstances expected to be capable of solution upon principles which the Syndicate may from to time specify. If the Syndicate has not specified any such principles or the principles specified by it are of no help in resolving any doubt that may arise in a particular case, the question has to be referred to the Syndicate. There is no doubt in our mind that the only questions which are placed within the exclusive jurisdiction of the Syndicate are those of relative seniority within the framework of s. 58, that is to say, questions of relative seniority between two persons in the same grade or holding the same post or holding posts of the same class. There is no doubt in our mind that the only questions which are placed within the exclusive jurisdiction of the Syndicate are those of relative seniority within the framework of s. 58, that is to say, questions of relative seniority between two persons in the same grade or holding the same post or holding posts of the same class. ( 9 ) THERE is another reason why S. 46 appears to be more appropriate to the settlement of the dispute in this case than S. 58. A Dean of any faculty becomes ex-officio member of the Senate under S. 18 and the academic Council under S. 23 and certain other bodies of the University, under S. 21 two of the Deans become members of the Syndicate by rotation according to seniority. Hence the holding of the position of a Dean entitles a person to membership of Authority or Body of the University and the questions which are placed within the competence of the Chancellor to decide under S. 46 include any question whether any person is entitled to be a member of any Authority. This is also another reason for holding that the petitioner has not made out any clear case of lack of jurisdiction on the part of the Chancellor to decide the question. ( 10 ) ON the merits, as already stated, the question is simply one of interpreting Section 16. ( 11 ) THE question posed is whether the seniority should be counted by length of service as a Head of Department or as a Professor. On one matter, there can be no doubt, namely, that the class of persons out of whom one gets entitled to act as a Dean is that of Head of a Department. If that is so, no person who is not the Head of a Department can become a Dean. Another matter on which also there could be no doubt whatever (so far as the main part of the sub-section is concerned) is that no person who is not a Professor can become a Dean. If the person who has put in the longest service as a Head of Department does not happen to be a Professor, he cannot become a Dean. There being a clear possibility of such a situation arising, the only proper inference to draw is that what is of materiality is that Professorship is a condition precedent. If the person who has put in the longest service as a Head of Department does not happen to be a Professor, he cannot become a Dean. There being a clear possibility of such a situation arising, the only proper inference to draw is that what is of materiality is that Professorship is a condition precedent. If in the illustration given the senior-most person as Plead of Department is not a Professor and there are more Heads of Department than one who are Professors, the obvious choice must be of the Professor who has put in longest service as Professor. The inference, therefore, is inevitable that length of service which is material for the purpose of the operation of sub-sec. (1) of S. 16 is length of service as Professor, That such is the clear intention of the statute is also indicated by what is found stated in the proviso which deals with cases where there is no Professor at all in any Faculty; according to the Proviso, the senior-most Reader shall act as the Dean, the Proviso does not say senior-most Head of the Department who is a Reader but senior-most reader. ( 12 ) THE interpretation adopted by the Chancellor, therefore, in deciding the case in favour of respondent 3 is in our opinion, not open to any serious question. The writ petition fails and is dismissed. --- *** --- .