Karnataka Veterinary Animal vs Dr S M Byregowda
2022 Latest Caselaw 2406 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                           AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                W.A.No.1118/2021 (S - RES)

BETWEEN :
KARNATAKA VETERINARY ANIMAL
& FISHERIES SCIENCES UNIVERSITY,
ESTABLISHED UNDER KARNATAKA
VETERINARY, ANIMAL & FISHERIES
SCIENCES UNIVERSITY ACT, 2004
REP BY ITS REGISTRAR
P.O.NO.6, NANDINAGAR
BIDAR -585401                                 ...APPELLANT

           (BY SRI K.N.PHANINDRA, SENIOR ADV. A/W
                  SMT.VAISHALI HEGDE, ADV.)

AND :
1.      Dr. S.M.BYREGOWDA
        S/O LATE MUNIVENKATAPPA
        AGED ABOUT 60 YEARS
        WORKING AS DIRECTOR
        INSTITUTE OF ANIMAL HEATH AND
        VETERINARY BIOLOGICALS,
        HEBBAL, BANGALORE - 560024

2.      THE STATE OF KARNATAKA
        BY ITS SECRETARY TO THE GOVERNMENT,
        DEPARTMENT OF ANIMAL HUSBANDRY
        & FISHERIES, VIKASA SOUDHA
        BENGALURU - 560001
                        -2-

3.   THE INSTITUTE OF ANIMAL HEALTH
     AND VETERINARY BIOLOGICALS
     A CONSTITUENT INSTITUTION OF
     KARNATAKA VETERINARY, ANIMAL
     & FISHERIES SCIENCES UNIVERSITY
     REP BY ITS DIRECTOR
     HEBBAL, BENGALURU - 560024          ...RESPONDENTS

         (BY SRI P.S.RAJAGOPAL, SENIOR ADV. A/W
         SMT.ASHWINI RAJAGOPALA, ADV. FOR R-1;
           SRI SHASHIKUMAR G.V., AGA FOR R-2.)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 25.08.2021 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P.NO.5591/2021 AND CONSEQUENTLY DISMISS
THE SAID WRIT PETITION.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                   JUDGMENT

This Intra-Court appeal is filed by the

appellant/respondent No.2 challenging the order dated

25.08.2021 passed by the learned Single Judge in

W.P.No.5591/2021 whereby the Writ Petition filed by

the respondent No.1 herein has been allowed quashing

item No.1 of the resolution [Annexure-T] of the appellant

- University dated 16.01.2021 and the consequent

relieving order dated 11.02.2021 [Annexure-V].

2. The appellant-University established in the

year 1958 was under the control of the Mysuru

University. In the year 1964, the Agricultural College at

Hebbal and Dharward and the Veterinary College at

Hebbal were associated along with other Research

Institutions of Karnataka State. On 17.01.2005,

University of Agriculture and Veterinary Science was

bifurcated and a separate University was established for

the Veterinary Sciences as Karnataka Veterinary

Animals and Fisheries Science University ['KVAFSU' for

short] which came into effect as notified by the State

Government on 17.01.2005. The Karnataka Veterinary,

Animal and Fisheries Science Universities Act, 2004

['Act' for short] was enacted by the State Legislature.

3. The respondent No.3 - Institute of Animal

Health and Veterinary Biologicals ['Institute' for short]

which was an Autonomous Institution, registered under

the Karnataka Societies Registration Act, 1960, came to

be transferred to the appellant - University.

4. The respondent No.1, a Ph.D and Masters

Degree holder in Veterinary Science was appointed as

Director in the Institute through selection by promotion

from the cadre of Scientist-IV by an order dated

27.10.2014 [Annexure-N]. The respondent No.1 has

challenged the resolution of the Board of Management of

University at item No.1 of its 95th meeting held on

16.01.2021 [Annexure-T] by which the Board of

Management of the University has placed the respondent

No.1 on independent charge of Director and the order

dated 11.02.2021 [Annexure-V] passed by the University,

the consequential communication, relieving the

respondent No.1 from the post of Director and placing on

independent charge in the Writ Petition. Writ petition

being allowed by the learned Single Judge vide order

dated 25.08.2021, the University has preferred this Writ

Appeal.

5. Learned Senior Counsel for the appellant -

University submitted that KVAFSU came into force from

17.01.2005. The Institute was transferred to KVAFSU

under Notification dated 13.01.2006 by the State

Government with effect from 01.04.2006. The

respondent No.1 had submitted his consent dated

01.04.2006 under Section 8 of KVAFSU, to be an

employee of the University. The statutes of KVAFSU

received the assent of the Chancellor on 13.06.2009 and

was published in the Official Gazette on 22.10.2009.

The respondent No.1 was appointed on 27.10.2014 as

Director through selection by promotion in terms of the

C & R Rules of the University applicable at the relevant

point of time. The respondent No.1 has been holding the

post of Director, Institute for a period of more than

seven years i.e., from 27.10.2014 though under the

Statutes of the University, the term of Director is only

for a maximum period of four years. The respondent

No.1 having consented to become an employee of the

University from 01.04.2006 and the statutes having

been made applicable to the Institute from

09.11.2018, cannot now contend that his condition

of service cannot be modified and should be as per

C & R Rules of the Institute when he was appointed.

The respondent No.1 is continued in service even

after attaining 60 years on 31.07.2020 and is

enjoying the benefits of extension of retirement age

to 62 years and UGC Pay-scale applicable under

the Statutes. In such an event, no claim could be

made under the C & R Rules of the Institute for

continuing to function as the Director. The order of

the learned Single Judge, upholding the claim of the

first respondent in allowing him to carry on the

functions as Director till superannuation runs contrary

to the Statutes which are made applicable to the

Institute.

6. Despite the tenure of the post of Director for

a period of four years, the respondent No.1 having

already completed seven years in the said post is not

only protracting his appointment as Director but also

denying the other Scientists-IV from being considered

for appointment to the said post. Thus, on these

grounds learned Senior Counsel sought for interference

with the order of the learned Single Judge.

7. Learned Senior Counsel appearing for the

respondent No.1 submitted that the respondent No.1

was appointed to the Institute in the cadre of Scientist-I

on 16.08.1988. C & R Rules of the Institute provides for

appointment of Director of the Institute through

selection by promotion for appointment of Director from

the Cadre of Scientist-IV who has put in minimum

period 3 years. The Director is appointed by promotion

till his superannuation and it is not a tenure post under

the C & R Rules. Post of Director is of a higher rank and

borne in a higher pay-scale and is a separate cadre -

Order of ranking in pay-scale of Rs.13820-17220;

Scientist-IV is in pay-scale of Rs.10020-14960.

Referring to Section 8 of the Act submitted that "from a

specified date" means a date specified for the purpose of

any provision of the Act. Section 8[4] of the Act protects

the tenure of the respondent No.1 until altered with his

consent. Consent under Section 8[5] cannot be

construed as consent under Section 8[4] of the Act. The

petitioner having been appointed under the C & R Rules

of the Institute, he is entitled to be governed by the

conditions governing it at the time of appointment.

Reference was made to Sections 10, 25, 52 and 53 of

the Act as well.

8. Learned Senior Counsel further submitted

that the appellant - University had issued an internal

notification inviting applications from eligible candidates

to the post of Director through direct recruitment with a

Note - selection by promotion from the cadre of

Scientist-IV who have put in minimum of 3 years of

service in the cadre to the post of Director of the

Institute. A corrigendum dated 19.10.2013 came to be

issued by the University to read "Direct Recruitment for

Director Post" as appointment of Director through

selection by promotion from the cadre of Scientist-IV

who have put in minimum of 3 years of service in the

cadre. The appointment would be through selection by

promotion. The said internal notification was challenged

in W.P.Nos.47138-47140/2013 and the same came to

be dismissed by this Hon'ble Court, holding that the

internal notification is in accordance with the C & R

Rules governing the Institute. Further, the University

wrote to the State Government seeking clarification

regarding the applicability of Cadre and Recruitment

Rules to the post of Director. In the special meeting of

the Board of Management of the University held on

15.03.2014, it was resolved to grant sixth CPC, UGC

- 10 -

Pay-scale to the scientists in the Institute with

immediate effect. State Government on 22.05.2014

clarified that the process must be as prescribed under

the C & R Rules as notified in the internal notification.

Accordingly, respondent No.1 was appointed through

selection as per the terms of C & R Rules of the

Institute. As per the clarification given by the

Government of Karnataka vide letter dated 07.12.2020,

the respondent No.1 is entitled for UGC pay-scale and

his retirement age shall be in accordance with UGC

norms from that date.

9. It was further argued by the learned Senior

Counsel that the W.P.No.51166/2014 was filed by

Dr.M.D.Venkatesha and Others calling in question

appointment of the respondent No.1 as Director of the

Institute. The said Writ Petition came to be dismissed

on 22.10.2020. Even in the said Writ Petition

proceedings, no assertion was made that the post of the

- 11 -

Director is a tenure post and no stance was taken that

the tenure of the respondent No.1 was over. Referring to

State Government clarification dated 07.12.2020, it was

vehemently argued that service conditions of the

Scientists in the Institute including age of retirement

would be governed by UGC norms. That being the

position, the Board of Management in its 95th meeting

resolved to place the respondent No.1 on an independent

charge of Director of the Institute relying on an

undisclosed KVAFSU guidelines. Any such order passed

against the respondent No.1 without notifying him is

against the principles of natural justice. In service

jurisprudence, promotion can be to a higher post, grade

or rank. An authority in independent charge cannot

perform statutory duties, in placing the respondent No.1

in in-charge position amounts to reduction in rank

which is arbitrary and is untenable. Learned Single

Judge having extensively examined the issue, allowed

the Writ Petition filed by the respondent No.1 quashing

- 12 -

the impugned resolution and the consequential order.

Even considering the tenure of the respondent No.1 now

being very short as he is due for retirement on

31.07.2022, no interference could be made with the

order of the learned Single Judge. Learned Senior

Counsel has placed reliance on the following judgments

in support of his contentions:

1. S.S.Bola and Others V/s. B.D.Sardana and Others [(1997) 8 SCC 522]

2. State of Rajasthan V/s. Fateh Chand Soni [(1996) 1 SCC 562]

3. Vice-Chancellor, L.N. Mithila University V/s.

Dayanand Jha [(1986) 3 SCC 7]

4. J.S.Yadav V/s. State of Uttar Pradesh and Another [(2011) 6 SCC 570]

10. We have given our anxious consideration to

the arguments advanced by the learned counsel

appearing for the parties and perused the material on

record.

- 13 -

11. Adverting to the arguments advanced by the

learned counsel for the parties, the points that arise for

our consideration are:

1. Whether the respondent No.1 is entitled to continue in the post of Director of the University till his superannuation in terms of the C & R Rules governing the Institute or Whether the tenure prescribed by the statutes for the post of Director is applicable to the case on hand?

2. Whether the resolution of the Board of Management of the University insofar as its decision to place the respondent No.1 on independent charge of Director, Institute of Animal Health and Veterinary Biologicals in its meeting held on 16.01.2021 and the consequential order passed by the University are justifiable?

Since both the points are interlinked, the same are

considered together and analyzed as under:

12. The main controversy now revolves around

the issue inasmuch as the applicability of the statutes

to the post of Director held by the respondent No.1. The

undisputed facts are that on 16.08.1998 the respondent

No1 was appointed as Scientist-I in the Institute which

was an autonomous Institute registered under the

provisions of Karnataka Societies Registration Act, 1960

- 14 -

and was under the Control of State Government. As per

the C & R rules governing the Institute, the date of

retirement/superannuation was sixty years. KVAFSU

was came into force from 17.01.2005. The Institute was

transferred to KVAFSU under notification dated

13.01.2006 by the State Government with effect from

01.04.2006. The respondent No.1 has given the consent

letter dated 01.04.2006 which reads thus:

"I Dr/Sri/Smt.S.M.BYRE GOWDA Working as Scientist-3 at IAHVUB, Hebbal, Bangalore hereby accord my consent to be an employee of the newly established Karnataka Veterinary, Animal and Fisheries Sciences University, Bidar w.e.f. 1st April 2006 as per the provisions made under Section-8[5] of the KVAFSU Act-2004."

13. The 1st statutes of the KVAFSU received the

assent of the Chancellor on 13.06.2009 and was

published in the Official Gazette on 22.10.2009. The

statutes have been made applicable to the Institute from

09.11.2018 as per Annexure-R2. It was specifically

- 15 -

mentioned in the said order, that the Director shall

exercise the powers and functions set out in Section 22 of

the Statute, 2009. Hence, no ground taken to this effect,

in the earlier writ proceedings is not fatal to the case.

14. [22][1] of the Statutes stipulates that the term of

office of Director of Institute shall be for a period of four

years. Under the C & R Rules governing the Institute,

appointment of the Director is through selection by

promotion from the cadre of Scientist-IV. The State

Government vide Government order dated 16.12.2016 has

extended the pay-scale and other benefits to the Scientists of

the Institute with effect from 15.03.2014 as per Annexure-

R1. In Annexure-1 appended to the said Government order,

respondent No.1's designation is shown as Scientist-IV. The

respondent No.1 was appointed on 27.10.2014 [Annexure-N]

through selection by promotion as Director of the Institute as

per the Recommendation and the Selection Committee and

approval of the Board of Management. The said order

stipulates that all other terms and conditions prescribed

- 16 -

under C & R Rules of the Institute will govern his

appointment. In terms of the said C & R Rules, no tenure

is fixed for post of Director appointed under selection by

promotion. Sub-Section[1] of Section 8 of the Act provides

for transfer of the Colleges and Institutions specified in

the Schedule, all the properties and assets both movable

and immovable owned and managed by the University.

Sub-Section[4] of Section 8 provides for transfer of

employees of the University. Sub-Section [5] makes it

mandatory for obtaining consent for such transfer of the

teaching staff or other employee working in the college or

institutions specified in the Schedule. Sub-Section[1] and

Sub-Section[4] refers to "the specified date". This

expression "specified date" plays some significant role in

the context of the present case. As per Annexure-R1 -

Government Order dated 16.12.2016, the University has

equalized the faculty posts of 24 Scientists and extended

UGC pay scales and other relaxed benefits with effect

from 15.03.2014, the respondent No.1 is one among

- 17 -

them. The consent letter dated 01.04.2006 referred to

hereinabove, would indicate that the consent was given

by the respondent No.1 to be an employee of the newly

established KVAFSU with effect from 01.04.2006 as per

the provisions made under Section 8[5] of the Act.

15. In the case of S.S.Bola and Others supra,

the Hon'ble Apex Court while adjudicating upon the

constitutional validity of Haryana Act, 20 of 1995, the Act

giving retrospective effect with effect from 01.11.1966 vis-

à-vis the inter se seniority of direct recruits and

promotees in each of the services held that Section 25 of

the said Act repeals the previous rules framed under

proviso to Article 309 of the Constitution as well as

repealed the Ordinance of 1995. It also saves the action

taken in respect of matter enumerated in Clauses[a] to [d],

the earlier rules would apply to the persons who were

members of the service before 01.11.1966. The legislature

having given retrospective effect to the said Act with effect

from 01.11.1966, it has been observed that there is no

- 18 -

rationale to apply the pre-existing rules to those

employees who were members of the service before that

date even after the pre-existing rule is being repealed by

the Act. In that view of the matter, the expression "to the

extent that these rules shall continue to apply to the

persons who were members of the service before first day

of 1966" is held to be invalid and accordingly has been

struck down. Remaining part of the said provision has

been held to be intra vires.

16. In the case of State of Rajasthan supra, the

Hon'ble Apex Court has observed that promotion can

only be to a higher post in the service and appointment

through higher scale of an officer holding the same post

does not constitute promotion. There is no dispute on

the legal proposition that promotion can be either to a

higher pay scale or to a higher post. In the background

of the present case, age of superannuation plays a

significant role. Admittedly, UGC pay-scale was extended

to the respondent No.1 by virtue of the order of KVAFSU

- 19 -

dated 14.01.2019 implementing Sixth UGC Pay-scale to

Scientists of the Institute with effect from March, 2014

[Annexure-R1A]. In terms of the clarification issued by

the State Government, the retirement age of the

Scientists also got extended to 62 years to whom UGC

pay-scale has been extended. The respondent No.1

drawing the UGC pay-scale with the extended period of

retirement age to 62 years cannot claim that the C & R

Rules governing the Institute would apply where the age

of superannuation was 60 years. If the C & R Rules of

the Institute are applicable, the date of superannuation

of the respondent No.1 would have been 31.07.2020 and

the same will be 31.07.2022, if it is 62 years in terms of

the statutes. Benefits cannot be claimed by the

respondent No.1 both under the C & R Rules as well as

the statutes. Statutes having been made applicable to

the Institute from 09.11.2018, Annexure-R2, it cannot be

held that the condition of service of the respondent No.1

cannot be modified and should be as per the C & R Rules

- 20 -

of the Institute when he got appointed. Hence, the

aforesaid judgments would not be applicable to the facts

of the present case.

17. In the case of Vice-Chancellor, L.N.Mithila

University supra, the scope of equivalent posts -

equivalence of posts has been dealt with. The post of

Principal is not held to be equivalent to that of a Reader

for the purposes of Section 10[14] of the Bihar State

Universities Act, 1976 as amended. In this regard, the

criterion for equivalence has been laid down. There is no

cavil on this legal proposition that the status and the

nature and responsibility of the duties attached to the

two posts would be the main criteria. But, in the factual

matrix of the case, the said judgment would not come to

the aid of the respondent No.1, for the reasons

discussed in the preceding paragraph.

18. It is true that placing the respondent No.1 in

independent charge for the post of Director would

- 21 -

reduce the status and rank of the respondent No.1 as

observed by the learned Single Judge placing reliance

on B.N.Dhotrad V/s. The Board of Directors,

Appellate Authority and Others [ILR 2006 KAR

3163]. However, if the period of tenure is applied to the

case on hand as per the statutes, in our considered

view, keeping the respondent No.1 in an independent

charge cannot be faulted with.

19. In J.S.Yadav supra, the Hon'ble Apex Court

in the context of the appellant therein joining as a

member of the Commission under the 1993 Act wherein

Section 26 of the said Act specifically provided that

neither the salary and allowances nor other terms and

conditions of the service of a member shall vary to his

disadvantage after his appointment, held that the said

amendment would apply prospectively. In that scenario,

a reference has been made to the judgment of the

Hon'ble Apex Court in the case of L.P.Agarwal [Dr.]

V/s. Union of India [(1992) 3 SCC 526] and State of

- 22 -

U.P. V/s. Dr.S.K.Sinha [AIR 1995 SC 768]. It has been

observed that an employee appointed for a fixed period

under the statute is entitled to continue till expiry of the

tenure and in such a case there can be no occasion to

pass the order of superannuation for the reason that his

tenure comes to an end automatically by efflux of time.

20. These judgments relied upon by the learned

Senior Counsel for the respondent would be of little

assistance to the respondent in the background of the

factual aspects narrated above, more particularly, when

the appellant has been continued in service determining

the age of superannuation as 62 which is applicable as

per the statutes. There cannot be two yardsticks, one

for determining the age of superannuation and the other

for the tenure of the post of Director. If the age of

superannuation is considered as 62, the tenure to the

post of Director fixed under the statutes would apply.

On the other hand if no tenure as per the C & R Rules

of the Institute applies, the age of superannuation

- 23 -

would be 60 years. The respondent No.1 cannot cherry

pick the factors which are advantageous to him

regarding the applicability of C & R Rules. It has to be

accepted in totality. Hence, in our considered view, the

matter requires interference with the order of the

learned Single Judge. Though the appellant has short

tenure of five months, continuing the post of Director

would certainly deny the entitlement of other Scientists

who are entitled for the said post. Hence, on

sympathetic view, continuing the respondent No.1 as a

Director may not be appropriate. In the circumstances,

we are of the considered opinion that no exception can

be found with item No.1 of Annexure-T. But, the

consequential order will be given effect from the date of

the receipt of the certified copy of this judgment.

21. For the reasons aforesaid, we pass the

following:

ORDER

i] Writ appeal is allowed.

- 24 -

      ii]    The order of the Learned Single Judge

             passed        in     W.P.No.5591/2021          dated

25.08.2021 is set aside. Consequently, Writ

Petition No.5591/2021 is dismissed.

However, the action taken by the respondent

No.1 till date as the Director of the

appellant-University is saved.

iii] No order as to costs.

iv] All the pending I.As stand disposed of

accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

NC.