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2014 DIGILAW 535 (KAR)

C. Basavaraju v. State of Karnataka

2014-06-02

A.N.VENUGOPALA GOWDA

body2014
ORDER The petitioner was appointed on 12.07.2007 as Professor of Law by the University of Mysore. He was granted annual increments. In exercise of the power under S.17 of the Karnataka State Universities Act, 2000 (for short ‘the Act’), he was appointed on 24.06.2013 vide order as at AnnexureE, as Registrar, University of Mysore. W.P.No.8063/2014 filed to declare that he is deemed to have been confirmed with effect from 11.07.2009 in the post of Professor of Law was allowed in part and the impugned communication therein was quashed and the respondents were directed to consider the grievance stated in a representation dated 25.01.2014. By an order dated 29.03.2014, as at AnnexureA, the order as at AnnexureE was withdrawn. The petitioner having been restored to the post of Professor of Law, assailing the legality of the order as at AnnexureA, this writ petition was filed. 2. Sri M.S. Bhagwat, learned advocate, submitted that the qualification prescribed for appointment to the post of Registrar by the State Government is that the person should be an Officer not below the rank of GroupA Officer of the supertime scale or a member of faculty of any University working as a Professor at least for five years and since the petitioner had completed, as on 11.07.2012, more than five years service as Professor and had the required experience as Professor of an University, was appointed on 24.06.2013, as Registrar. According to Sri M.S. Bhagwat, respondent No.1 having considered all the relevant facts passed the order as at AnnexureE. He submitted that there is no allegation on the petitioner as having concealed any fact or the commission of any fraudulent act in the matter of his appointment as Registrar. He contended that the impugned order is vitiated as the respondent No.1 has failed to afford any opportunity to the petitioner to represent against the order proposed to be made. He further contended that even if the order in question is considered as administrative one, as the same involves civil consequences and the proceeding having not been conducted consistent with the rules of natural justice, the same is liable to be quashed on the basis of the ratio of law laid down by the Apex Court in STATE OF ORISSA Vs. DR. (Ms.) BINAPANI DEI, (1967) 2 SCR 625 . DR. (Ms.) BINAPANI DEI, (1967) 2 SCR 625 . Learned counsel submitted that, since the impugned order suffers from the vice of arbitrariness and legal mala fides, interference is called for. 3. Sri H. Kantharaja, learned Additional Advocate General, assisted by Smt. M.S. Prathima, learned HCGP, on the other hand contended that the petitioner was not eligible to be appointed as Registrar, because his probationary period has not been declared as satisfactory by the Appointing Authority and the One Man Commission report submitted by Hon’ble Mr. Justice H. Rangavittalachar, appointed for looking into the irregularities and the violations in the matter of direct recruitment to the posts of Professors and other teaching staff in Mysore University, under the provisions of the Act is pending consideration by the Government. He submitted that the Government is examining the issues relating to gross violation of UGC norms and State directives on Roster policy and eligibility criteria for annulling the decision of the Syndicate approving the appointments under S.10 of the Act. He submitted that the University of Mysore, by a communication dated 24.06.2013, reported to the Government that the probationary period of the petitioner has not been declared in view of the irregularity in the recruitment and that W.P.No.4114/2014 (PIL) was filed questioning the Notification appointing the petitioner as Registrar. He submitted that the Government on reexamination of the issue in detail, felt that the order appointing the petitioner as Registrar, was improper and the Under Secretary to Government, Department of Higher Education, having submitted a note for withdrawal of the said order (AnnexureE) for correction of the mistake, the issue was explained over telephone, by the Principal Secretary to Government, to the Hon’ble Minister for Higher Education, as the Minister was out of station and instructions having been taken for withdrawal of the order dated 24.06.2013 and the said note having been approved by the Principal Secretary, the order dated 29.03.2014, as at AnnexureA was issued. He submitted that the probationary period of the petitioner having not been declared as satisfactory, the appointment of the petitioner as Registrar being improper and the appointment also being not for any particular period, decision taken to withdraw the order as at AnnexureE, by issuance of the impugned Government Order as at AnnexureA, cannot be said to be either arbitrary, unlawful or illegal. 4. 4. Sri T.P. Rajendra Kumar Sungay, learned advocate appearing for the 2nd respondent University of Mysore, submitted that the order passed on 17.03.2014 in W.P.No.8063/2014 was forwarded to respondent No.1 for appropriate action and that the University has no role in the matter of either the appointment of petitioner to the post of Registrar or in the matter of passing of the impugned order. 5. Sri K. Subba Rao, learned Senior Advocate, appearing for Dr. Vishwanatha – applicant in I.A.2/2014, contended that the appointment of the petitioner pursuant to Notification dated 19.04.2007 having been questioned in W.P.No.9584/2007 and also the pendency of W.P.No.27493/2011, appointment of the petitioner to the post of Registrar on 24.06.2013 being improper, respondent No.1 is justified in withdrawing the same, by issue of the order, as at AnnexureA. He submitted that in the facts and circumstances of the case, the petition being devoid of merit is liable to be dismissed. 6. Considered the rival contentions and perused the files of respondent No.1, relating to passing of the orders as at Annexures-E and A. It is not the case of respondents that the petitioner had obtained the order as at Annexure-E by concealing facts or by playing fraud much less the appointment to the post of Registrar as having been made without proper consideration. Annexure-A, reads as follows: 7. On the contentions urged by both sides, the point for consideration is whether the order as at AnnexureA is arbitrary and illegal? 8. It is obvious that the order as at AnnexureA, was passed abruptly and the same has come as a bolt from the blue to the petitioner. Undisputedly, the petitioner was appointed as the Registrar, after the proposal put up was approved on 23.06.2013 by the Minister for Higher Education. Sriyuths Dr. R. Rajanna and Dr. G. Venkatesh Kumar, Professors working in the University of Mysore, have submitted representations enclosing the recommendation letters of the Hon’ble Chief Minister and Minister for Excise, Government of Karnataka, seeking to appoint them to the post of Registrar in the University of Mysore. One K.S. Shivaram had submitted a complaint dated 02.07.2013 to the Hon’ble Chief Minister and the Minister for Higher Education, in the matter of appointment of the petitioner to the post of Registrar and the same were forwarded for suitable action to the University. One K.S. Shivaram had submitted a complaint dated 02.07.2013 to the Hon’ble Chief Minister and the Minister for Higher Education, in the matter of appointment of the petitioner to the post of Registrar and the same were forwarded for suitable action to the University. When the file was put up on 26.08.2013 to the Principal Secretary to Government, Higher Education Department, he has made a note, which reads as follows: “As per the report from Registrar, University of Mysore, the incumbent Registrar does not fulfil the eligibility conditions for being Registrar and hence, he can not be continued as Registrar. Further, Hon’ble Chief Minister has issued note for considering the name of Professor R. Rajanna, Professor of History, Mysore University to be appointed as Registrar, Mysore University. submitted for orders. Sd/26/8” The file having been put up on 27.08.2013, the Minister for Higher Education, directed to ‘discuss the matter’. On 21.12.2013, the Minister ordered that the ‘proposal be brought up during AprilMay 2014’. The contents of the note sheet of the file, after 21.12.2013 being relevant, the same reads as follows: 9. It is clear from the above that the decision to withdraw the appointment of the petitioner as Registrar, has not been taken by the Minister for Higher Education. Without an order by the Minister, the order at AnnexureA has been issued as per the instructions of the Principal Secretary to Government. When this aspect came to light during the course of hearing, after the file was perused by me and the same was pointed out to the learned Additional Advocate General, after obtaining an adjournment, an affidavit of Dr. Rajneesh Goel, Principal Secretary to Government, was filed. Relevant portion of the said affidavit reads as follows: “The said PIL was listed before the Hon’ble High Court of Karnataka for hearing on 02.04.2014. The Government reexamined this issue in detail and it is felt that posting orders of Dr. C. Basavaraju as Registrar, University of Mysore dated 24.06.2013 is improper and therefore, it is liable to be withdrawn. Accordingly, as suggested by me the Under Secretary has submitted detailed note for withdrawal of the aforesaid order 29.03.2014, this issue has been orally explained to Hon’ble Minster for Higher Education on telephone as he was out of station and instructions have been taken for withdrawal of the above said order. Accordingly, I have approved for issue of order dated 29.03.2014. Accordingly, I have approved for issue of order dated 29.03.2014. Hence, the order has been issued withdrawing the posting of Dr. C. Basavaraju as Registrar, University of Mysore vide order No.ED 94 UMV 2013 dated 24.06.2013 by keeping Registrar (Evaluation) in additional charge of the said post.” (Italicised by me for emphasis) 10. It is obvious that the Minister for Higher Education – Competent Authority has not passed any order to withdraw the order as at AnnexureE. Proposal dated 29.03.2014 of the Under Secretary (Paras 19 and 20 of the notes, reproduced in para 8, supra) was submitted to the Principal Secretary to Government. No decision as such was taken, even by the Principal Secretary to Government. Without the order of the Statutory Authority, Under Secretary to Government, Education Department (Universities), has passed the impugned order, which, at best, can be termed as one of the Principal Secretary to Government and not that of the Government. 11. The power under S.17 of the Act, exercisable by the Government, is a statutory power. The appointment of the petitioner to the post of Registrar, vide AnnexureE, was made pursuant to the order passed on 24.06.2013 by the Minister for Higher Education, which is evident from the notings appearing in the file bearing No.ED 94 UMV 2013. The Minister alone, for valid reasons, could have exercised the power to withdraw/annul the said order. The Minister cannot abdicate his responsibility in favour of anyone else. From the affidavit of Dr. Rajneesh Goel, it becomes clear that the power of the Minister for Higher Education was exercised by him, which is illegal. 12. It is very well settled position of law that public order, publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the decisionmaking authority. In COMMISSIONER OF POLICE Vs. GORDHANDAS BHANJI, AIR 1952 SC 16 , Apex Court struck down an order purported to have been passed by the Commissioner of Police in the exercise of his powers under the Bombay Police Act and the Rules made thereunder as the order in question was in fact that of the Government. In the said decision, it has been held as follows: “17. In the said decision, it has been held as follows: “17. It is clear to us from the perusal of these Rules that the only person vested with authority to grant or refuse a licence for the erection of a building to be used for purposes of public amusement is the Commissioner of Police. It is also clear that under Rule 250 he has been vested with the absolute discretion at any time to cancel or suspend any licence which he has been granted under the Rules. But the power to do so is vested in him and not in the State Government and can only be exercised by him at his discretion. No other person or authority can do it.” (emphasis supplied) The ratio of law laid down by the Apex Court, reproduced supra, squarely applies to the instant case. 13. In T.S.R. SUBRAMANIAN AND OTHERS Vs. UNION OF INDIA AND OTHERS, 2013 AIR SCW 6277, with regard to the serious predicate on which the civil servants are placed on oral directions, suggestion, instruction etc., Apex Court has held as follows: “33. We are of the view that the civil servants cannot function on the basis of verbal or oral instructions, orders, suggestions, proposals, etc. and they must also be protected against wrongful and arbitrary pressure exerted by the administrative superiors, political executive, business and other vested interests. Further, civil servants shall also not have any vested interests. Resultantly, there must be some records to demonstrate how the civil servant has acted, if the decision is not his, but if he is acting on the oral directions, instructions, he should record such directions in the file. If the civil servant is acting on oral directions or dictation of anybody, he will be taking a risk, because he cannot later take up the stand, the decision was in fact not his own. Recording of instructions, directions is, therefore, necessary for fixing responsibility and ensure accountability in the functioning of civil servants and to uphold institutional integrity.” (emphasis supplied) 14. The file which has led to the passing of the impugned order, when perused, does not show Dr.Rajneesh Goel, Principal Secretary to Government, having acted in terms of the law laid down by the Apex Court, in the decision noticed supra. The material portion of the affidavit of Dr. The file which has led to the passing of the impugned order, when perused, does not show Dr.Rajneesh Goel, Principal Secretary to Government, having acted in terms of the law laid down by the Apex Court, in the decision noticed supra. The material portion of the affidavit of Dr. Rajneesh Goel, reproduced in para 9, supra, is an afterthought, to cover up the illegality, which came to light during the course of hearing of this case. The statement of objections filed to the writ petition is silent on the said aspect. The file does not show the Principal Secretary to the Government having sought order of the Minister and having acted in terms of the instructions. Hence, the said affidavit is unacceptable and is rejected. 15. The impugned order has not been passed pursuant to any order of the Minister for Higher Education, who is Competent Authority. The Principal Secretary to Government, has no competency to order the withdrawal of the order dated 24.06.2013, passed by the Government, appointing the petitioner to the post of Registrar. If the order as at AnnexureE is to be withdrawn/annulled, for valid reasons, the decision can only be by the Government and none else. Thus, the decision having not been taken by the Competent Authority, the order issued vide AnnexureA, in the name of the Government, is null and void. 16. Furthermore, the decision in question has been taken with haste. The Minister though ordered on 21.12.2013, to bring up the proposal during AprilMay 2014, the impugned order was passed on 29.03.2014. No reasons can be found in the file for passing of the order, earlier than the period indicated, as above, by the Minister. It is beyond my comprehension as to why the order was passed with such undue haste. Learned Additional Advocate General, conceded that as on 29.03.2014, even notice was not ordered to be issued to the respondents in W.P.No.4114/2014(PIL). It is beyond my comprehension as to why the order was passed with such undue haste. Learned Additional Advocate General, conceded that as on 29.03.2014, even notice was not ordered to be issued to the respondents in W.P.No.4114/2014(PIL). From the note put up by the Principal Secretary, on 26.08.2013, reproduced in para 8, supra, it is clear that in view of the note issued by the Hon’ble Chief Minister for considering the name of Professor R. Rajanna, to be appointed as Registrar, University of Mysore, action has been taken hastily, which suggests that on account of interestedness of the higherups, the impugned order was passed, that too, without the file being actually put up to the Minister, but merely on the alleged instructions obtained over the telephone. Anything done hastily being arbitrary cannot be upheld. 17. Before the decision was taken and the petitioner was deprived of the post of Registrar, which he was holding in pursuance of the order as at AnnexureE, he ought to have been given an opportunity to showcause why the proposed action should not be taken, in as much as the petitioner may be able to satisfy the Government that there was no mistake in his appointment made on 24.06.2013. Principles of natural justice and fair play require giving of such opportunity. Requirement to comply with the principles of natural justice has been emphasised by the Apex Court in SHRAWAN KUMAR JHA AND OTHERS Vs. STATE OF BIHAR AND OTHERS,1991 Supp (1) SCC 330 and JASWANT SINGH AND OTHERS Vs. STATE OF M.P. AND OTHERS, (2002) 9 SCC 700 . Undeniably, the petitioner was not served with a show cause notice nor was granted any kind of opportunity of hearing, prior to passing of the order, as at AnnexureA. On account of violation of principles of natural justice, the impugned order has to be held as arbitrary. 18. In view of the above, it is unnecessary to consider the other contentions urged by the learned advocates appearing for the parties. In the result, the writ petition is allowed and the Government Order bearing No.ED 94 UMV 2013 (PartII), Bangalore, dated 29.03.2014, as at AnnexureA is quashed. Consequently, petitioner shall be restored to the post of Registrar, University of Mysore. Time for compliance is one week from the date a copy of this order becomes available to the respondent No.1. In the result, the writ petition is allowed and the Government Order bearing No.ED 94 UMV 2013 (PartII), Bangalore, dated 29.03.2014, as at AnnexureA is quashed. Consequently, petitioner shall be restored to the post of Registrar, University of Mysore. Time for compliance is one week from the date a copy of this order becomes available to the respondent No.1. However, it is clarified that it would be open to the Government to take decision, which may be permissible under law and this order would not come in its way. No costs.