Karnataka High Court

Dr Govindaraju vs The State Of Karnataka on 20 July, 2022

Bench: S.G.Pandit

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 20TH DAY OF JULY, 2022

                        BEFORE

         THE HON'BLE MR.JUSTICE S.G.PANDIT

         WRIT PETITION No.7912/2022 (GM-RES)

BETWEEN:

1.   DR. GOVINDARAJU S/O TIMMIAH
     AGED 50 YEARS,
     R/AT NO.56, 8TH MAIN ROAD,
     8TH CROSS, JNANAJYOTHINAGAR,
     SAMYUKTHA KARNATAKA
     EXTENSION,
     BENGALURU- 560056.

2.   SRI. PREM SOHANLAL
     S.O SOHANLAL G,
     AGED 31 YEARS,
     R/AT GOLECHA, 1ST FLOOR,
     NO.17, 1ST CROSS,
     SRIRAMAPURAM EXTENSION,
     SHESHADRIPURAM,
     BENGALURU- 560020.
                                           ...PETITIONERS

(BY SRI VIKARAM HUILGOL, SR.COUNSEL, A/W
 SRI RAHAMATHULLA KOTHWAL, ADV.)

AND:

1.     THE STATE OF KARNATAKA
       REPT. BY ITS PRINCIPAL SECRETARY,
       DEPARTMENT OF HIGHER EDUCATION
       (UNIVERSITIES),
                            2

     M.S. BUILDING, 6TH FLOOR,
     BENGALURU -560001.

2.   THE REGISTRAR
     BENGALURU UNIVERSITY,
     GNANA BHARATHI,
     BENGALURU- 560056.

3.   DR. C.R MAHESH
     AGED ABOUT MAJOR,
     ASSISTANT PROFESSOR,
     INDUSTRIAL ENGINEERING AND MANAGEMENT,
     DR. AMBEDKAR INSTITUTE OF TECHNOLOGY,
     BENGLAURU -560056.

4.   DR. ANILKUMAR EESO
     AGED ABOUT MAJOR,
     NO.119 WEST, TRINITY ACRES AND WOODS,
     SARJAPURA MAIN ROAD,
     HSR SECTOR 1,
     BENGALURU -560 102.
                                      ...RESPONDENTS

(BY SRI R SUBRAMANYA, AAG A/W
 SRI M VINOD KUMAR, AGA FOR R1
 SRI T.P. RAJENDRA KUMAR SUNGAY, ADV. FOR R2
 SRI. SUNIL S RAO, ADV. FOR R3 & R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED NOTIFICATION DATED 07.04.2022
PASSED BY THE R-2 VIDE ANNX-C AND QUASH THE
IMPUGNED NOTIFICATION DATED 07.04.2022 PASSED BY
THE R-1 VIDE ANNX-D.

    THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED   ON     29/06/2022 COMING  ON  FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
                                   3

                        ORDER

The petitioners nominated members to the Syndicate

of the second respondent-University are before this Court

under Article 226 of the Constitution of India questioning

the correctness and legality of the impugned notification

bearing No.E-.PÀæ.¸ÀA:Er 254 AiÀÄÄ©« 2021 dated 07.04.2022

[Annexure-D] of the first respondent-Government

withdrawing the petitioners' nomination and nominating

respondent Nos.3 and 4 to the Syndicate of the second

respondent-University and also notification bearing

No.J¸ïªÉÊJ£ï/J¸ï1/¥ÀÄ£Àgï gÀZÀ£É/1/2021-22 dated 07.04.2022

of the second respondent-University relieving the

petitioners from Syndicate membership.

2. Brief facts of the case are that, the first

respondent-State Government nominated the petitioners

as members of the Syndicate of the second respondent-

University in exercise of its power under Section 28 [1][g]

read with Section 39[1] of the Karnataka State Universities

Act, 2000 [for short "2000 Act"] by notification dated

10.12.2019 [Annexure-A]. The petitioner No.1 was

nominated under Schedule Caste category in terms of

Section 28[1][g][i] and second petitioner is nominated

under Religious Minority category in terms of Section

28[1][g][iv] of 2000 Act. It is stated that from the date of

nomination, petitioners are discharging their duties as

members of Syndicate. The term of office of nomination of

the Syndicate members is three years or until further

orders whichever is earlier. Even before expiry of three

years period, the first respondent-State Government

issued Annexure-D notification dated 07.04.2022

withdrawing the nomination of the petitioners in exercise

of its power under Section 39[1] of 2000 Act and

nominated the respondent Nos.3 and 4 in the place of

petitioners. Consequent to withdrawal of the nomination

of petitioners by the first respondent, second respondent

issued notification dated 07.04.2022 relieving the

petitioners as Syndicate members. Challenging both the

notifications of the first and second respondents, the

petitioners are before this Court.

3. Heard the learned senior counsel Sri.Vikram

Huilgol for Sri.Rahamathulla Kothwal, learned counsel for

the petitioners, learned Additional Advocate General

Sri.R.Subramanya along with learned Additional

Government Advocate Sri.M.Vinod Kumar for respondent

No.1, Sri.T.P.Rajendra Kumar Sungay, learned counsel for

respondent No.2 and Sri.Sunil Rao, learned counsel for

respondent Nos.3 and 4. Perused the writ petition papers.

4. Learned senior counsel Sri.Vikram Huilgol

would submit that the impugned notification dated

07.04.2022 by the first respondent-State Government is

contrary to Section 39[1] and [3] of 2000 Act. The

impugned notification is issued withdrawing the

nomination of petitioners as Syndicate members before

completion of their term of three years without assigning

any reason. It is submitted that removal of petitioners or

withdrawal of petitioners' nomination is not for any reason

made known to the petitioners, much less for a valid

reason. Hence the impugned notification stands vitiated

and requires interference by this Court. Further it is

submitted that when the petitioners are nominated for a

fixed tenure of three years, the first respondent-State

Government could not have curtailed the said period

except in accordance with law. Learned senior counsel

would contend that Section 39[1] of 2000 Act is invoked to

withdraw the nomination of the petitioners i.e., doctrine of

pleasure is exercised to withdraw the petitioners'

nomination. Learned senior counsel would submit that

power under Section 39[1] of 2000 Act is to be exercised

along with Section 39[3] of 2000 Act. It is the case of the

petitioners that no reasons whatsoever is assigned in the

impugned order and if at all, respondent No.1 intends to

remove the petitioners, the petitioners could have been

removed after holding enquiry in terms of sub-Section [3]

of Section 39 of 2000 Act. It is the case of the petitioners

that no enquiry is held under sub-Section [3] and even

while exercising power under Section 39[1] of 2000 Act, at

least disclosure of reason would be necessary. Power to

withdraw pleasure under Section 39[1] is not blanket

power and it cannot be invoked at the sweet will of the

authorities.

5. In support of the petitioners contention,

learned senior counsel for petitioners places reliance on

the decision of the Hon'ble Apex Court in the case of

B.P.Singhal V/s. Union of India and Another [(2010) 6

SCC 331] and also the decision of Division Bench of this

Court in the case of Shri.B.K.Uday Kumar V/S. The

State of Kar-nataka and Others, [W.A.No.3843/2019,

D.D., on 04.01.2020] and submits that as the impugned

notifications would not disclose any reasons much less

valid reason, which is required even when doctrine of

pleasure is exercised, the impugned notifications are liable

to be quashed.

6. Per contra, learned Additional Advocate

General Sri.R.Subramanya would submit that since the

petitioners are nominated members of the Syndicate, they

have no right to continue nor they have fixed tenure. The

Government could withdraw the nomination in exercise of

its power under Section 39[1] of 2000 Act which clearly

states that member nominated in any of the authorities

shall hold the office during the pleasure of the nominating

authority concerned. It is the submission of the learned

Additional Advocate General that no reason need be

assigned when the first respondent exercises power under

sub-Section [1] of Section 39 of 2002 Act. It is submitted

that Sub-section [3] of Section 39 would have no

application to the facts of the present case since, the

petitioners are nominated by the first respondent-State

Government and sub-Section [3] would be applicable to

the members nominated by the Chancellor. It is submitted

that the petitioners are not removed either on the ground

of misbehavior, misconduct or otherwise to hold enquiry.

Further, learned Additional Advocate General would

submit that it is not a case of appointment, but it is a case

of nomination. Therefore, he submits that placing reliance

on the decision of B.P.Singhal (supra) and Sri.B.K.Uday

Kumar (supra), would not assist the petitioners since

those are the cases of appointment and not nomination.

Learned Additional Advocate General would refer to the

impugned notification dated 07.04.2022 and notification

dated 10.12.2019 nominating the petitioners and submits

that it was within their knowledge that the nomination is

also under Section 39[1] of 2000 Act. Hence, it cannot be

contended that they cannot be removed before completion

of three years. Learned Additional Advocate General would

submit that no reasons are necessary to be assigned when

doctrine of pleasure is exercised under Section 39[1] of

2000 Act.

7. Learned Additional Advocate General places

reliance on the Division Bench decision of this Court in

the case of The State of Karnataka V/s. Dr.Deepthi

Bhava and Others [W.A.No.617/2021 and Connected

Appeals, disposed of on 25.09.2021] to contend that

nominated members do not have any substantive right to

hold the post. Further, he also places reliance on

Sri.A.M.Bhaskar and Others V/s. The State of

Karnataka, Department of Education [Universities],

rep., by the Chief Secretary and Others [ILR 2013 KAR

4182] and submits that Co-ordinate Bench of this Court

considering Section 39 of 2000 Act has held that no

reasons be assigned while exercising power under Section

39[1] to withdraw the nomination. Thus, he prays for

dismissal of the writ petition.

8. Learned counsel Sri.T.P.Rajendra Kumar

Sungay appearing for respondent No.2 would submit that

the case of the petitioners is fully covered by

Sri.A.M.Bhaskar case supra and he invites attention of

this Court to paragraphs 31, 41, 46 and 53 of the said

decision.

9. Learned counsel Sri.Sunil Rao for respondent

Nos.3 and 4 submits that the petitioners' nomination is

pleasure nomination and they could be removed at any

time by exercising power under Section No.39 (1) 2000

Act.

10. On hearing the learned counsel for the parties

and on perusal of the writ petition papers, the only point

which falls for consideration is as to

"Whether the impugned notifications withdrawing the nominations of the petitioners requires interference?"

11. The answer to the above point would be in the

negative for the following reasons:

A perusal of the notification dated 10.12.2019

[Annexure-A] nominating the petitioners makes it clear

that the petitioners are nominated to the Syndicate of the

second respondent under Section 28[1][g] read with

Section 39[1] of 2000 Act. Section 39[1] of 2000 Act reads

as follows:

"39. Restriction of holding the membership of the authorities.- (1) Any member nominated to any of the authorities under this Act shall hold office during the pleasure of the nominating authority concerned."

12. The above provision makes it clear that any

member nominated under 2000 Act shall hold the office

during the pleasure of the nominating authority

concerned. In the case on hand, the petitioners are

nominated under Section 28[1][g][i] and 28[1][g][iv] of 2000

Act under Schedule Caste and Religious Minority Category

respectively read with Section 39[1] of 2000 Act. The

petitioners were well aware as on the date of their

nomination that their nomination would continue during

the pleasure of the nominating authority.

13. Section 27 of 2000 Act speaks of authorities of

the University. The Syndicate is one of the Authority and

Syndicate members are nominated under Section 28. The

members could be nominated by the Vice-Chancellor,

Chancellor and the State Government. The petitioners are

nominated members by the Government. Sub-section [3] of

Section 39 of 2000 Act empowers the Chancellor to remove

the Syndicate members at any time on the ground of

misbehavior, misconduct or otherwise after holding an

enquiry. In the instant case, the petitioners' nomination is

not withdrawn on the ground of misbehavior or misconduct.

But the nomination of petitioners is withdrawn under

Section 39[1] of 2000 Act in exercise of doctrine of pleasure.

When the doctrine of pleasure is exercised under sub-

Section[1], sub-Section[3] would have no application.

Moreover, sub-Section[3] speaks of Chancellor's power to

remove the Syndicate members. Whereas in the instant case,

the petitioners are nominated by the Government and their

nomination would continue during the pleasure of the

Government. Under sub-Section [1] of Section 39, doctrine

of pleasure could be exercised by all the authorities who

are empowered to nominate members to the Syndicate

under Section 28 of 2000 Act.

14. A Co-ordinate Bench of this Court in

A.M.Bhaskar case supra was considering identical fact

situation and also was considering the validity of Section

39[1] of 2000 Act. In the said case also, the petitioners had

contended that it would be necessary to assign reasons

while exercising power under Section 39[1] of 2000 Act.

The Co-ordinate Bench refuting the contention at

paragraphs 31, 41, 46 and 53 has held as follows:

"31. The learned Advocate General submits that the petitioners are not justified in trying to draw the support from the Apex Court's judgment in the case of B.P.Singhal (supra). In Singhal's case what fell for consideration was the removal of the Governors. He submits that Article 155 of the Constitution of India states that the Governor shall be appointed by

the President. In the instant case, the petitioners are not appointed, but they are only nominated. He submits that the greater degree of protection to the tenure of the Governor given by the Constitution is because the Governor has to discharge his constitutional functions.

41. While constructing the general provision contained in Section 38(1) of the said Act, Section 39(1) of the said Act cannot be disregarded. In interpreting the statutory provision contained in Sections 38 and 39, it can be safely said that the term of the office of the nominated members of the Syndicate is for three years. But they can be removed before the expiry of their term, if the nominating authority withdraws its leasure. If Section 38 is given all pervasive primacy to such an extent that it totally excludes Section 39, then the Syndicate members cannot be removed even on the ground of mis-behavior, mis- conduct, etc.

46. The Apex Court's judgment in the case of B.P.Singhal (supra) does not come to the rescue of the petitioners in any way. The said

judgment was rendered in the context of the removal of the Governor of a State. The Apex Court has held that the reasons have to exist for the removal of the Governor, because he acts as the connecting link between the Union Government and a State Government.

There may be occasions when he may have to be impartial or a neutral umpire where the views of the Union Government and the State Government are in conflict. His peculiar position arises from the fact that the Indian Constitution is quasi-federal in character.

53. The petitioners have no legally vested right to demand that they be continued as the members of the Syndicate for fixed period of three years. The petitioners are neither elected nor appointed. They are nominated and they would hold the office so long as the Government does not withdraw its pleasure. The Apex Court in the case of Om Narain Agarwal (supra) has held that the nominated members of a municipal board fall in a different class and that therefore they cannot claim equality with the elected members. The Apex Court has negatived the

submission that there would be a constant fear of removal at the will of the State Government and that it would demoralize the nominated members in the discharge of their duties."

15. The above decision has also taken note of the

B.P.Singhal case supra. In B.P.Singhal case supra, the

Hon'ble Apex Court was concerned with appointment of

Governor and in the said circumstances, the Hon'ble Apex

Court held that for removal of Governor, reasons must

exist. In the case on hand, it is not a case of appointment

and it is a case of nomination. In case of appointment,

appointment process would be followed before appointing

a person. But in case of nomination, there is no such

process and nomination would be at the pleasure of the

Nominating Authority.

16. The decision relied on by the learned senior