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1997 DIGILAW 736 (KAR)

DEVA RAMACHANDRAYYA v. KUVEMPU UNIVERSITY, B. R. PROJECT, SHIMOGA DISTRICT

1997-12-19

H.L.DATTU

body1997
H. L. DATTU, J. ( 1 ) THE sole question that requires to be considered and decided by this Court in this petition is whether the Chancellor of the university while exercising his powers under Section 49 (6) of the karnataka State Universities Act, 1976 (the 'act' for short) could direct the Vice-Chancellor of the University to appoint a particular candidate to the post for which advertisement was issued by the University. ( 2 ) THE relevant facts are, respondent-University had is suedan advertisement some time in the month of March, 1989, inviting applications for the post of Readers in English along with several other posts. On receipt of the application from the aspirants for the post, the University had constituted a Selection committee/board of Appointments in compliance with relevant provisions of the Act. There were only two aspirants for the post including petitioner. The Board of Appointments after considering the comparative merits of the candidates, on 8-11-1994 recommended the petitioner's name to the said post and placed respondent 3 as alternative candidate. The Syndicate in its meeting held on 13-12-1989, rejected the recommendation of the Board of Appointment for appointment of the petitioner to the post of Reader in English. Since there was difference of opinion between the Board of Appointments and the Syndicate, the matter was referred to the Chancellor of the University for consideration and decision in accordance with Section 49 (6) of the University Act. The Secretary to the Chancellor after securing the necessary clarification from the Vice-Chancellor of the University and after discussing with the Chancellor has observed in his note sheet as under:. "discussed with the Chancellor on 2-5-1990 when D. S. was present, Chancellor felt that there are no sufficient reasons: (a) to quash the entire proceedings of B. O. A. ; (b) to readvertise the post in view of the fact that the candidates were already informed through advertisement that the open merit candidates also would apply for the post in the event of Group-A (Backward Tribe) candidates were not available. The Chancellor felt that in view of Shri Ramachandra deva not fulfilling the requirements of academic standard, the other candidate namely Shri Rajendrachenni should be considered for appointment. Chancellor has agreed for sending communication from this Office to the vice-Chancellor with regard to exercising the statutory functions without getting himself prejudicial by extraneous considerations etc. ". The Chancellor felt that in view of Shri Ramachandra deva not fulfilling the requirements of academic standard, the other candidate namely Shri Rajendrachenni should be considered for appointment. Chancellor has agreed for sending communication from this Office to the vice-Chancellor with regard to exercising the statutory functions without getting himself prejudicial by extraneous considerations etc. ". ( 3 ) THE above note was approved by the Chancellor on8-5-1990 and pursuant to such approval, the Under-Secretary to the Governor by his letter dated 2-6-1990 has informed the vice-Chancellor of the University to appoint Sri rajendrachenni-3rd respondent herein as Reader in English. The said intimation is as under: "i am desired to state that the Chancellor has ordered for the appointment of Sri Rajendrachenni as Reader in english in Kuvempu University with immediate effect. University may take necessary action accordingly". ( 4 ) PURSUANT to this letter of the Chancellor, the Vice-Chancellor has issued letter of appointment to the 3rd respondent, appointing him as Reader in English in the respondent-University. Aggrieved by the action of the Chancellor in directing Vice-Chancellor to appoint 3rd respondent as Reader in English and further disturbed by the letter of appointment issued by Vice-Chancellor in appointing 3rd respondent to the said post, petitioner who is unsuccessful aspirant to the post, is before this Court for a writ to quash the appointment of 3rd respondent to the post of Reader in English and further to direct the University to appoint him to the said post taking into consideration the recommendation made by Board of appointments of the University. ( 5 ) TO decide the one and the only issue raised in this petition, it is relevant to notice some of the provisions of the Act. Section 10 of the Act speaks of Chancellor and says, the Governor of karnataka by virtue of his office will be the Chancellor of the university and he is the Head of the University and he shall have all powers conferred on him by the Act and the University statute. Section 24 of the Act speaks of Constitution of the syndicate. It consists of 19 members belonging to three categories namely, ex officio holders of certain offices, nominated members and elected ones. These members consist of Vice- chancellor, Director of Collegiate Education, Director of technical Education, a Dean nominated by the Chancellor, principals of three colleges etc. Section 24 of the Act speaks of Constitution of the syndicate. It consists of 19 members belonging to three categories namely, ex officio holders of certain offices, nominated members and elected ones. These members consist of Vice- chancellor, Director of Collegiate Education, Director of technical Education, a Dean nominated by the Chancellor, principals of three colleges etc. The Syndicate shall have the power of management and administration of the revenues and properties of the University and control of all the administrative affairs of the University. Then we have Section 49 of the Act. It speaks of Board of Appointment for selecting persons for appointment of Professors, Librarian, Readers and Lecturers in the University. It consists of Vice-Chancellor, the Chairman of departmental Council, four experts, two of whom from the panel furnished by the University Grants Commission and the others from amongst persons serving in any University established by law in India or any other institution recognized by the State government. Sub-section (6) of Section 49 of the Act is relevant for our purpose. An analysis of the above sub-section indicates that it is the Board of Appointment, who interviews and adjudges the merit of each candidate. Such comparison of merits of the candidates is made keeping in view the qualification notified in the advertisement inviting applications for the respective posts. After such comparative study of the merit of each candidate, to prepare the list of persons selected in the order of merit and then place its recommendation before the syndicate for appointment. The provision makes it clear that after the amendment of this sub-section by Amendment Act 23 of 1986, it is the Syndicate and the Syndicate alone under the act to make appointments. Prior to this amendment, power to appoint for certain categories of posts including the post of reader had vested with the Chancellor of the University. The sub-section also provides for certain contingencies, that is, if there is any difference of opinion between the Board of appointments and the Syndicate, the matter requires to be placed before the Chancellor and the decision of the Chancellor shall be final. ( 6 ) THE main thrust of the arguments advanced by learned Counsel Sri N. B. Bhat for petitioner is with regard to powers of chancellor in such contingencies and the nature of decision that he is expected to make. ( 6 ) THE main thrust of the arguments advanced by learned Counsel Sri N. B. Bhat for petitioner is with regard to powers of chancellor in such contingencies and the nature of decision that he is expected to make. According to him, the powers of the chancellor is limited. He further suggests that there are only two alternatives for the Chancellor in a situation of this nature. One is to approve the recommendations made by the Board of appointments and then direct the University to appoint the candidate recommended or in the alternative concur with the opinion of the Syndicate and then direct the University to readvertise the post by cancelling the recommendation made by board of Appointments and at any rate, not to substitute his conclusion and direct the Vice-Chancellor to appoint a particular candidate to the post advertised after comparing the relative merits of the candidates who are aspirants for the post. Therefore, he submits that the action of the Chancellor directing the Vice-Chancellor to appoint 3rd respondent to the post of reader in English is wholly contrary to the statutory provisions and therefore, the same is invalid, illegal and without authority of law. ( 7 ) THIS assertion of the learned Counsel for the petitioner is strongly opposed by learned Counsel for the University and also the appointed candidate. They submit that since the Chancellor is the Head of the University and in the absence of specific enumeration of powers in the provision itself, the Chancellor can either concur with the proposal of Board of Appointment or disagree with the same or agree or disagree with the view of the syndicate and lastly, he can take his independent decision, depending on the fact situation in each case and according to them, the decision of the Chancellor is final and this Court exercising its writ jurisdiction cannot sit in appeal over the decision of the Chancellor, unless it is without jurisdiction, wholly arbitrary and illegal. ( 8 ) LEARNED HCGP Sri B. Veerappa, has made available there cords maintained by the Chancellor for the Court's perusal. ( 9 ) HAVING noticed the rival contentions of the learned Counsel for the parties to the Us, let me now consider their legal submissions. ( 8 ) LEARNED HCGP Sri B. Veerappa, has made available there cords maintained by the Chancellor for the Court's perusal. ( 9 ) HAVING noticed the rival contentions of the learned Counsel for the parties to the Us, let me now consider their legal submissions. ( 10 ) PRIOR to the amendment of sub-section (6) of Section 49 of the Act, it was the Chancellor who was the Appointing Authority on the recommendation of the Board of Appointments. The earlier provision reads as under: "49 (6) The Board shall interview, adjudge the merit of each candidate in accordance with the qualifications advertised and prepare a 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". The aforesaid provision has now been amended by Act 23 of 1986. The amended provision reads as under: "49 (6) The Board shall interview, adjudge the merit of each candidate in accordance with the qualifications advertised and prepare a list of persons selected arranged in the order of merit. It shall forward the list to the syndicate who shall make appointments in accordance with the same. In the case of difference between the Board and the syndicate, the matter shall be referred to the Chancellor whose decision shall be final. Explanation. Nothing in this sub-section shall be construed as requiring the Syndicate to make appointments in accordance with the list where it is of the opinion that it does not satisfy the provisions of this Act or the statutes relating to such appointments". ( 11 ) UNDER the amended provision, the power of appointment to the posts of Professors, Readers, Librarians etc. , solely vested with the Syndicate of the University. In view of the amendment made to the provisions by rule making authority can it be said, that the power of appointment still rests with the Chancellor. I am afraid whether Chancellor of the University could make appointments to the aforesaid posts. On a reference made to him when there is difference of opinion between Board of appointment and the Syndicate. I am afraid whether Chancellor of the University could make appointments to the aforesaid posts. On a reference made to him when there is difference of opinion between Board of appointment and the Syndicate. * ( 12 ) THE Board of Appointments is authorised to make comparative assessment of candidates who have applied for the posts and prepare a select list arranged in the order of merit. After such preparation of the list, place it before the Syndicate for appointment of the selected candidate. Under the amended provision, it is the Syndicate which is Appointing Authority. It is obligatory for the Syndicate to accept the Board's recommendation. The decision of the Board of Appointments can be interfered with, only on limited grounds such as, illegality or patent irregularity in the constitution of the Cohmmittee or its procedure vitiating the selection or proved mala fides affecting the selection etc. It is for the Board of Appointments to scrutinize the relative merits of the candidates and to decide whether a particular candidate is suitable for a particular post or not, since it has the expertise on the subject. The Syndicate may reject the proposal made by the Board of Appointments, if selections are made for the reasons stated earlier and also if the board overlooks the prescriptions of qualification in the advertisement. If for any reason, there is difference of opinion between the Board of Appointments and the Syndicate, the matter requires to be placed before the Chancellor of the university for his decision. The provisions indicate that the 'decision' of the Chancellor is final. The word 'decision' in the present context in my view means a pronouncement of an authority by way of authoritative answers to the questions raised in a particular case for the decision (by the authority hearing the case) and not on the whole issue comprising on all the points in dispute between the parties. The Chancellor has not been invested with the powers to act on his own motion. Only when the matter is referred to him, when there is difference of opinion between the Board of Appointments and the syndicate, the Chancellor is expected to adjudicate on the specific issue which is before him. The Chancellor has not been invested with the powers to act on his own motion. Only when the matter is referred to him, when there is difference of opinion between the Board of Appointments and the syndicate, the Chancellor is expected to adjudicate on the specific issue which is before him. In the instant case, the issue that was before him is the selection made by the Board of appointment, which selection had not been endorsed by the syndicate and there was the difference of opinion between two university authorities. The matter was referred to the chancellor for adjudication. The Chancellor in my view, had only limited alternatives viz. , to agree with the recommendation made by Board of Appointment in selecting a particular candidate for the post, since the recommendation was already rejected by the Syndicate or in the alternative concur with the thinking of the Syndicate and direct the University to readvertise the post. The third alternative, namely, to direct vice-Chancellor to appoint a particular candidate for the post after assessing the comparative merit of the candidates and substitute his own conclusion is not provided in the provision. In that view of the matter, the order made by the Chancellor is improper and cannot be sustained, since the order is contrary to the provisions under the Act. In my view, the language of the provision is absolutely plain and clear. It is well-settled that where the words of the statute are precise and unambiguous, nothing more is required than to expound those words in their natural and ordinary sense. The words themselves in such case declare the intention of the legislature. It is also well-settled that the Courts cannot add words unless the section as it stands is meaningless or of doubtful meaning. Therefore, in my opinion, sub-section (6) of Section 49 of the Act is capable of only one meaning and capable of one interpretation that the Chancellor can only determine the controversy between the parties and at any rate, cannot direct Vice-Chancellor to appoint a particular candidate for the post for which advertisement is issued. ( 13 ) I have taken the view that the order made by the Chancellor is improper and invalid. ( 13 ) I have taken the view that the order made by the Chancellor is improper and invalid. Therefore, 3rd respondent could not have been appointed as Reader in English in the respondent-University but this order was made in 1990 and pursuant to such order, the Vice-Chancellor had issued a letter of appointment and the 3rd respondent is working as Reader in english from last seven years. Now, it is well-settled that the decision of the authority even though without jurisdiction, may not be quashed in a proceedings under Article 226 of the constitution, if by the decision, substantial justice is done between the parties. In my view, this is a fit case where this practice requires to be followed and enforced. Even otherwise, no useful purpose would be served in quashing the orders made by the Vice-Chancellor appointing 3rd respondent as Reader in english pursuant to the directions issued by the Chancellor at this distance of time. Though technically petitioner succeeds, in the end he fails. ( 14 ) ACCORDINGLY, petition is disposed off. No order as to costs. --- *** --- .