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Karnataka High Court · body

2012 DIGILAW 592 (KAR)

P Deepa Shenoy v. State of Karnataka

2012-07-26

SUBHASH B.ADI

body2012
Judgment :- 1. In these two writ petitions, the petitioners claim that, in pursuance of a notification dated 21.06.2005 issued by the respondent-University inviting applications from the eligible candidates to fill up the post of Professor, Reader and Lecturer in Computer Science, petitioners applied for the post of Professor in Computer Science. Since no recruitment took place in pursuance of the same, another notification was issued on 08.08.2007. Both the petitioners were directed to attend the interview on 10.03.2008 and 08.08.2007 respectively. 2. Though the interview process completed, however, insofar as the petitioners are concerned, their results were not announced and similarly interviewed candidates’ results were announced and they were issued appointment orders also, hence, the petitioners approached this court in W.P.Nos.18708/2009 and 18709/2009. This Court by order dated 23rd February 2010 in both the writ petitions issued a direction interalia directing the respondent-University to announce the result of the interview held on 10.03.2008, for the posts in Computer Science within a time frame of four weeks from the date of said order. This order was called in question by the University in Writ Appeal Nos.1187/2010 c/w 1188/2010. The Division Bench of this Court by order dated 28.06.2010 modified the order of the learned Single Judge, and directed the University that the result of the interview conducted by the Board of appointment be kept in a sealed cover and place before the Syndicate of the University to take further action in consonance with the provisions of Section 53 sub-section (7) of the said Act. Thereafter, the Syndicate met on 30.07.2010, however, no resolution was passed as there was a difference of opinion amongst the members of the syndicate and again on 21.07.2011 when the Syndicate met, Syndicate resolved to defer the issue of appointment orders, as the list of candidates selected by the Board of appointment was not in consonance with the judgment of the Apex Court in the matter of Ashok Kumar Yadav –vs-State of Haryana. Since no progress was made as to the appointment of the petitioners, petitioners had filed the contempt of court case, as the direction issued by the Division Bench was not complied. In C.C.C.No.427/2011 (Civil), the Division Bench of this Court by order dated 02.08.2011 directed the petitioner to challenge the action of the Syndicate in appropriate proceedings. 3. Since no progress was made as to the appointment of the petitioners, petitioners had filed the contempt of court case, as the direction issued by the Division Bench was not complied. In C.C.C.No.427/2011 (Civil), the Division Bench of this Court by order dated 02.08.2011 directed the petitioner to challenge the action of the Syndicate in appropriate proceedings. 3. In the meanwhile, the State Government, suomotu considered the case and by its order dated 02.09.2011 annulled the Syndicate resolution dated 21.07.2011, and by its communication dated 02.09.2011, in view of annulling of the Syndicate resolution since the appointment orders were not issued, the Government directed the University to take immediate action to issue the appointment orders to both the petitioners as well as five others to the post of Professor in the University Visveswaraya College of Engineering, Bangalore University, Bangalore, within seven days. When despite the Government direction, no action was taken, the petitioners have filed these writ petitions for necessary direction. 4. Sri. Subba Rao, learned Senior Counsel contended that, under the provisions of the Karnataka Universities Act, if there is any difference between the recommendation made by the Board of Appointment and the Syndicate, under Section 53(7) of Act, the Syndicate has a power to refer the matter back to the Board of Appointment, however, the Syndicate had not referred the matter back to the Board of Appointment, however, the Government suomotu took cognizance of the difference of opinion between the Board and the Syndicate and decided the matter, such decision under Section 53(7) proviso of the Act becomes final. Hence, in view of the Government having taken suomotu action and its decision has become final, the University is bound to act accordingly. However, the University without any justification has not issued the order of appointment. There is no reason for the University to deny the appointment to the petitioners. 5. On the other hand, the learned counsel appearing for the University submitted that, the Chancellor of the University has pointed out that the decision of the Apex Court, has not been considered in the matter of appointment of Professor particularly, in reference to the policy of reservations. It is in this regard, the Syndicate had not approved the recommendation made by the Board of Appointment for appointment of Professors. It is in this regard, the Syndicate had not approved the recommendation made by the Board of Appointment for appointment of Professors. He also submitted that, the Government has only annulled the Syndicate resolution, no consequential order has been passed and submitted that, the University has acted in consonance with the provisions of the Karnataka Universities Act. 6. The facts, which are not in dispute, are that, the names of both the petitioners were separately recommended by the Board of Appointment. It is also not in dispute that the said recommendation was not accepted by the Syndicate. Proviso to Section 53 subsection (7) of the Karnataka Universities Act reads as under: “Provided that in case of difference of opinion between the Syndicate and the Board of Appointment and, where it is of the opinion that the list does not satisfy the provisions of the Act or the statutes or the guidelines issued from time to time by the University Grants Commission or the All India Council for Technical Education or National Council for Teacher Education or similar statutory authorities, it shall refer the matter back to the Board for fresh interview and selection. Provided further that the State Government may suo motu take cognizance of the difference between the Board and the Syndicate and shall decide, the matter which shall be final.” In such event, if there was difference of opinion between the Syndicate and the Board of Appointment, the Syndicate may refer the matter back to the Board of Appointment for redoing the process of selection. However, the Syndicate resolution does not show, that it has decided to send the matter to the Board of Appointment for fresh interview and selection. However, it is also not in dispute that the Government suomotu took cognizance of difference of opinion between the Board of Appointment and the Syndicate and in terms of its order dated 02.09.2011 produced at Annexure-N, it is annulled the syndicate resolution in not accepting the recommendation made by the Board of Appointment. It is also not in dispute that the said order has not been questioned by any other candidates. If that is so, the Government could suomotu decide the matter. 7. It is also not in dispute that the said order has not been questioned by any other candidates. If that is so, the Government could suomotu decide the matter. 7. Apart from this, in pursuance of the Government order when no action was taken, the Principal Secretary to the Government, Education Department (Higher Education) by his communication dated 02.09.2011 has directed the University as under: “Therefore, I am directed to request you to take immediate necessary action to issue of appointment orders to Dr. U.N. Kempaiah, Prof. Deepa Shenoy, and 5 others to the post of Professors in University Visveswaiha College of Engineering, Bangalore within 7 days positively.” 8. It is also not in dispute that, this communication has reached the University. 9. When the Government has invoked suomotu power and has annulled the Syndicate resolution, thereby it has taken a decision to appoint the petitioners and others in terms of Section 53(7) of the Karnataka State Universities Act, has become final, and it is binding of the University. 10. Insofar as the contention that the chancellor had informed the Syndicate as regard to the decision of the Apex Court, however, from the provisions of Section 53 of the Act, it does not contemplate any supervisory exercise of power conferred on the Chancellor in the matter of appointment of teachers. Even if any communication is issued by the Chancellor, it is only for guidance and it does not have any binding effect. However, the order passed by the Government in terms of proviso (2) to Section 53(7) of Act, it becomes final and binding on the University, as such, the University is bound to take steps to implement the order of the Government in its letter and spirit. Hence, the petitioners are entitled for the necessary direction. Accordingly, both the petitions are allowed. A direction is issued to the second respondent to issue order of appointment orders to the petitioners in consonance with the order of the Government and communicate as early as possible within four weeks from the date of receipt of copy of this order.