JUDGMENT Krishna S Dixit, J. - 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. 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.
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 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, 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, (1974) AIR SC 555 and Shreya Singhal Vs.
State of Tamil Nadu, (1974) AIR SC 555 and Shreya Singhal Vs. Union of India, (2015) AIR 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 and sans reason' militates against the Wednesbury 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 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.
(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 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 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 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; subsection (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 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 .
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 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) Supp1 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 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 preempting 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 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 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.