Karnataka High Court
Bangalore University vs Dr.Sangamesh Patil A on 16 March, 2022
Bench: S.Sujatha, Shivashankar Amarannavar
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
W.A.No.3779/2019 c/w
W.A.No.3780/2019, W.A.No.3839/2019 &
W.A.No.3909/2019 (GM - RES)
IN W.A.No.3779/2019:
BETWEEN :
BANGALORE UNIVERSITY
REP BY THIS REGISTRAR
JNANA BHARATHI CAMPUS
BENGALURU-560 056 ...APPELLANT
(BY SRI RAJENDRA KUMAR SUNGAY T.P., ADV.)
AND :
1. Dr. SANGAMESH PATIL A.,
S/O SRI AMARAPPA
AGED ABOUT 62 YEARS
R/AT PALLAVI, PLOT NO.23
1ST MAIN ROAD, 1ST CROSS
ULAVI CHANNABASAVESHWARA NAGAR
DHARWAD-580 007
2. THE CHANCELLOR OF
BANGALORE UNIVESITY
RAJ BHAVAN, BENGALURU-560 001
3. GOVERNMENT OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
-2-
TO HIGHER EDUCATION DEPARTMENT
UNIVERSITIES, M.S.BUILDINGS
BENGALURU-560 001 ...RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W
SRI R.KOTHWAL, ADV. FOR R-1;
SRI ADITYA SONDHI, SENIOR COUNSEL A/W
SRI K.KRISHNA, ADV. FOR R-2;
SRI R.SUBRAMANYA, AAG A/W
SRI B.RAJENDRA PRASAD, HCGP FOR R-3.)
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 24.09.2019 PASSED IN
W.P.NO.55552/2018 BY THE LEARNED SINGLE JUDGE OF THIS
HON'BLE COURT AND DISMISS THE SAID PETITION WITH
COSTS.
IN W.A.No.3780/2019:
BETWEEN :
PROF. VENUGOPAL K.R.,
VICE-CHANCELLOR
BANGALORE UNIVERSITY
JNANA BHARATHI CAMPUS
BENGALURU-560 056 ...APPELLANT
(BY SRI P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SRI OMKAR KAMBI, ADV.)
AND :
1. Dr. SANGAMESH PATIL A.,
S/O SRI AMARAPPA
AGED ABOUT 62 YEARS
R/AT PALLAVI, PLOT NO.23
1ST MAIN ROAD, 1ST CROSS
ULAVI CHANNABASAVESHWARA NAGAR
DHARWAD-580 007
2. THE CHANCELLOR OF
BANGALORE UNIVESITY
-3-
RAJ BHAVAN, BENGALURU-560 001
3. GOVERNMENT OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
TO HIGHER EDUCATION DEPARTMENT
UNIVERSITIES, M.S.BUILDINGS
BENGALURU-560 001
4. BANGALORE UNIVERSITY
REP BY THIS REGISTRAR
JNANA BHARATHI CAMPUS
BENGALURU-560 001 ...RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W
SRI R.KOTHWAL, ADV. FOR R-1;
SRI ADITYA SONDHI, SENIOR COUNSEL A/W
SRI K.KRISHNA, ADV. FOR R-2;
SRI R.SUBRAMANYA, AAG A/W
SRI B.RAJENDRA PRASAD, HCGP FOR R-3;
SRI T.P.RAJENDRA KUMAR SUNGAY, ADV. FOR R-4.)
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 24.09.2019 PASSED IN
W.P.NO.55552/2018 BY THE LEARNED SINGLE JUDGE OF THIS
HON'BLE COURT AND DISMISS THE SAID PETITION WITH
COSTS.
IN W.A.No.3839/2019:
BETWEEN :
OFFICE OF THE CHANCELLOR
BANGALORE UNIVERSITY
RAJBHAVAN, BANGALORE-560001
REP BY THE UNDER SECRETARY (HH) ...APPELLANT
(BY SRI ADITYA SONDHI, SENIOR COUNSEL A/W
SRI K.KRISHNA, ADV.)
AND :
1. Dr. SANGAMESH PATIL A.,
-4-
S/O SRI AMARAPPA,
AGED ABOUT 63 YEARS,
R/AT PALLAVI, PLOT NO.23,
1ST MAIN ROAD, 1ST CROSS,
ULAVI CHANNABASAVESHWARA NAGAR,
DHARWAD-580007
2. GOVERNMENT OF KARNATAKA
REP BY ITS PRINICPAL SECRETARY TO
HIGHER EDUCATION DEPARTMENT
UNIVERSITIES, M.S.BUILDING,
BANGALORE-560001
3. VENUGOPAL K.R.,
VICE CHANCELLOR
BANGALORE UNIVERSITY
BANGALORE-560056
4. BANGALORE UNIVERSITY
REP BY ITS REGISTRAR,
JNANA BHARATHI CAMPUS,
BANGALORE-560056. ...RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W
SRI R.KOTHWAL, ADV. FOR R-1;
SRI R.SUBRAMANYA, AAG A/W
SRI B.RAJENDRA PRASAD, HCGP FOR R-2;
SRI P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SRI OMKAR KAMBI, ADV. FOR R-3;
SRI T.P.RAJENDRA KUMAR SUNGAY, ADV. FOR R-4.)
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE DATED 24.09.2019
PASSED IN W.P.NO.55552/2018 AND DISMISS THE ABOVE
WRIT PETITION.
IN W.A.No.3909/2019:
BETWEEN :
GOVERNMENT OF KARNATAKA
REP BY ITS PRINICPAL SECRETARY TO
-5-
HIGHER EDUCATION DEPARTMENT
UNIVERSITIES, M.S.BUILDING,
BENGALURU-560001 ...APPELLANT
(BY SRI R.SUBRAMANYA, AAG A/W
SRI B.RAJENDRA PRASAD, HCGP.)
AND :
1. Dr. SANGAMESH PATIL A.,
S/O SRI AMARAPPA,
AGED ABOUT 62 YEARS,
R/AT PALLAVI, PLOT NO.23,
1ST MAIN ROAD, 1ST CROSS,
ULAVI CHANNABASAVESHWARA NAGAR,
DHARWAD-580007
2. THE CHANCELLOR OF
BANGALORE UNIVERSITY
RAJBHAVAN, BENGALURU-560001
3. PROF. VENUGOPAL K.R.,
VICE CHANCELLOR
BANGALORE UNIVERSITY
BENGALURU-560056
4. BANGALORE UNIVERSITY
REP BY ITS REGISTRAR,
JNANA BHARATHI CAMPUS,
BENGALURU-560056. ...RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W
SRI R.KOTHWAL, ADV. FOR R-1;
SRI ADITYA SONDHI, SENIOR COUNSEL A/W
SRI K.KRISHNA, ADV. FOR R-2;
SRI P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SRI OMKAR KAMBI, ADV. FOR R-3;
SRI T.P.RAJENDRA KUMAR SUNGAY, ADV. FOR R-4.)
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE WRIT
APPEAL AND SET ASIDE THE ORDER DATED 24.09.2019
PASSED IN W.P.NO.55552/2018 (GM-RES).
-6-
THESE APPEALS HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
Since common and akin issues are involved, the
matters are heard together and disposed of, by this
common judgment.
2. These intra Court appeals are filed against
the order dated 24.9.2019 passed by the learned Single
Judge in W.P.No.55552/2018, whereby the learned
Single Judge has allowed the writ petition filed by
Dr.Sangamesh Patil A, setting aside the notification
dated 12.6.2018, by which Professor Venugopal K.R,
was appointed as the Vice Chancellor of Bangalore
University.
3. The petitioner - Dr.Sangamesh Patil A.,
claiming to be the Professor in the discipline of
Industrial Chemistry, Gulbarga University, Gulbarga,
has filed the writ petition challenging the appointment
of Dr.K.R.Venugopal as the Vice Chancellor of
Bengaluru University.
4. It transpires that the Search Committee had
recommended a panel of three names including the
petitioner for selection to the post of Vice Chancellor,
Bengaluru University, as per the decision taken on
11.5.2017. The Hon'ble Chancellor appointed Professor
Venugopal K.R, as Vice Chancellor of Bengaluru
University. This appointment of Professor Venugopal
K.R, was challenged in the writ petition on the ground
that the same is in blatant violation of the provisions of
Section 14(4) of the Karnataka State Universities Act,
2000 ('Act' for short) for want of concurrence of the
State Government placing reliance on the Co-ordinate
Bench decision of this Court in the case of the State of
Karnataka, rep., by its Principal Secretary, Higher
Education Department v. Dr. Shivayogeppa
B.Hinchigeri and others, reported in ILR 2015 KAR
81. It was contended that the Deputy Secretary to
Government had forwarded a communication to the
Registrar, Bengaluru University, to rescind the order of
appointment of Professor Venugopal K.R, to the post of
Professor/Vice Chancellor since the Director, Backward
Tribe Department has sent a communication to the
Principal Secretary, Social Welfare Department, alleging
false caste certificate obtained by said Professor
Venugopal K.R, on the basis of which he was appointed
to the post of Professor.
5. Respondent Nos.1 and 2 had filed the
statement of objections. Considering the same, the writ
petition came to be disposed of placing reliance on the
Division Bench ruling of this Court in
Dr. Shivayogeppa B.Hinchigeri, supra, observing that
the Court is conscious of the fact that the writ petition
has been heard without the objections of the respondent
Nos.3 and 4. Accordingly, quashed the notification
dated 12.6.2018 - the appointment order of Professor
Venugopal K.R, as Vice Chancellor. Being aggrieved,
WA.No.3779/2019 is filed by the Bengaluru University;
WA.No.3839/2019 is filed by the Hon'ble Chancellor of
Bengaluru University; WA.No.3780/2019 is filed by
Professor Venugopal K.R; and WA.No.3909/2019 is filed
by the State.
6. Learned Senior Counsel Sri Aditya Sondhi
appearing for the Hon'ble Chancellor of Bengaluru
University (appellant in WA.No.3839/2019) argued that
the Search Committee was constituted as per Section
14(2) of the Act to select a panel of three names of
eminent academicians for selection of a Vice Chancellor.
The Search Committee has submitted the names to the
State Government which was submitted to the Hon'ble
Chancellor, who was required to appoint one person
from the panel as a Vice Chancellor keeping in view
merit, equity and social justice and with the
- 10 -
concurrence of the State Government. As the State
Government has not concurred with the appointment of
Professor Venugopal K.R, who was selected by the
Hon'ble Chancellor, proviso to Section 14(4) of the Act
was attracted. In terms of the said proviso, Hon'ble
Chancellor with the concurrence of the State
Government had called for a second panel. The name of
Professor Venugopal K.R was selected. Hon'ble
Chancellor had issued a notification dated 12.6.2018
appointing Professor Venugopal K.R, as the Vice
Chancellor of the Bengaluru University for a period of
four years or till he attains the age of 67 years,
whichever is earlier.
7. Learned Senior Counsel argued that no
concurrence of the State Government is required when
the power is exercised under proviso to Section 14(4)
calling for a second panel. The State Government after
concurring with the Hon'ble Chancellor appointed the
- 11 -
second Search Committee who inturn has submitted
the names of eminent academicians. As such, the panel
submitted by the second Search Committee is final, the
concurrence of the State Government as required to
constitute the second search committee is complied
with.
8. Learned Senior Counsel referring to Section
64 of the Act submitted that the Legislature has
employed the phrase "prior concurrence", whereas the
phrase "prior" is consciously omitted by the Legislature
in Section 14(4) of the Act. Thus, post facto
concurrence is valid. The appointment made on
12.6.2018 was concurred with, by the State
Government on 28.6.2018, hence ratified. Learned
Senior Counsel also submitted that Dr. Shivayogeppa
B.Hinchigeri supra, is not applicable to the case on
hand since the present case deals with proviso to
Section 14(4) of the Act, wherein the Search Committee
- 12 -
has submitted a second panel which shall be final. In
support of his contention, learned Senior Counsel
placed reliance on the decision of the Hon'ble Apex
Court in the case of All Bihar Christian Schools' Assn.
v. State of Bihar, reported in (1988) 1 SCC 206.
9. Learned Additional Advocate General
appearing for the State (appellant in WA.No.3909/2019)
submitted that the Search Committee, constituted by
the State Government under the provisions of Section
14 of the Act, had recommended the names of three
candidates for the post of the Vice Chancellor of
Bengaluru University, Professor K.R.Venugopal's name
proposed by the Hon'ble Chancellor was not concurred
by the State Government at the first instance and as
such, a second panel was called for, by invoking proviso
to Section 14(4), whereby fresh list of three names was
suggested. The second panel was sent to the Hon'ble
Chancellor. Learned Additional Advocate General
- 13 -
submitted that the appointment order dated 12.6.2018,
whereby Professor Venugopal K.R, was appointed, was
subsequently concurred by the State Government on
28.6.2018. As such, the said appointment is not vitiated
since the Search Committee was constituted by the
State Government under the proviso to Section 14(4) of
the Act, the question of once again concurring with the
Hon'ble Chancellor, is not mandatory. However, as a
caution, concurrence has been given on 28.6.2018.
10. Learned Additional Advocate General placed
reliance on the following decision;
1) Ashok Kumar Das v. University of Burdwan,
reported in (2010) 3 SCC 616; and
2) High Court of Judicature for Rajasthan v.
P.P.Singh, reported in (2003) 4 SCC 239.
11. Learned Senior Counsel Sri P.S.Rajagopal
appearing for Professor Venugopal K.R (appellant in
WA.No.3780/2019) submitted that the Courts can only
interpret the provisions, but cannot legislate.
- 14 -
Comparing the provisions of Section 14 with Section 64,
it was submitted that the word "prior" being omitted by
the Legislature, Court cannot add the said word to
Section 14(4). Concurrence with the State Government
may be prior or post appointment. Even assuming the
appointment order dated 12.6.2018 was not in
conformity with Section 14(4) of the Act, the same has
been ratified on 28.6.2018. As such, the tenure of the
Vice Chancellor being for a period of four years,
Professor Venugopal K.R, having a minimum period at
this stage i.e., three months, disturbing him from the
said post at the fag end of his service, would not be
appropriate. Learned Senior Counsel submitted that
the decision of the Division Bench referred to, by the
learned Single Judge has no precedential value since
the respondent No.3 therein, having held office for four
years had completed the term. However, the Court
proceeded to adjudicate upon the issue, which is
academic in nature. Thus, the reliance placed by the
- 15 -
learned Single Judge on Dr. Shivayogeppa
B.Hinchigeri, supra, is misconstrued.
12. Learned Senior Counsel has placed reliance
on the following judgments in support of his case;
1) Maharashtra State Mining Corporation v.
Sunil, reported in (2006) 5 SCC 96;
2) Bajaj Hindustan Limited v. State of U.P,
reported in (2016) 12 SCC 613;
3) Saraswati Industrial Syndicate Ltd., v.
Union of India, reported in (1974) 2 SCC 630;
4) R.s.Nayak v. A.R.Antulay, reported in (1984)
2 SCC 183; and
13. Learned Counsel appearing for the
University (appellant in WA.No.3779/2019) adopting the
arguments advanced by the learned Senior Counsel Sri
P.S.Rajagopal submitted that certain documents were
placed by the learned counsel for Dr. Sangamesh Patil -
the original petitioner along with a memo in the present
writ appeal proceedings. No such documents could be
taken on record in the absence of necessary application
- 16 -
filed along with an affidavit. The memo filed by the
learned counsel for the original petitioner cannot
substitute the requirement of law for taking the
documents on record, that too at the belated stage. It
was submitted that document No.(1) i.e.,
acknowledgement receipt of letter bearing No.GS 1 BUM
2007, dated 25.11.2008 relates to the period 2008,
whereas the other documents are all subsequent events,
which do not have any relevancy for adjudicating the
appointment of Vice Chancellor as per the order dated
12.6.2008. Thus, learned counsel sought for allowing
the writ appeal confirming the appointment of Professor
Venugoapl K.R as Vice Chancellor of the Bengaluru
University rejecting the memo as not maintainable.
14. Learned Senior Counsel Sri Jayakumar
S.Patil appearing for Dr Sangamesh Patil A - the
original petitioner referring to the statement of
objections filed by the Hon'ble Chancellor in the writ
- 17 -
petition proceedings argued that indisputably, no
concurrence was given by the State Government at the
time of appointment of Professor Venugopal K.R, albeit
the Hon'ble Chancellor keeping in mind merit, equity
and social justice, had found Professor Venugopal K.R,
as the suitable candidate. Learned Senior Counsel
submitted that it is a predetermined case of not seeking
concurrence, the mandatory requirement under Section
14(4) of the Act. No appointment of the Vice Chancellor
could be made by the Hon'ble Chancellor without the
concurrence of the State Government.
15. Inviting the attention of the Court to proviso
of Section 14(4) of the Act, the learned Senior Counsel
submitted that proviso is an exception carved out to the
main provision hence, proviso cannot dispense with the
concurrence of the State Government. In this regard,
the judgment of the Hon'ble Apex Court in the case of
Union of India v. Dileep Kumar Singh, reported in
- 18 -
(2015) 4 SCC 421 was referred to. Section 3(2)(a) and
(b) of the Karnataka Lokayukta Act, 1984 and the
judgment of the Hon'ble Apex Court in the case of
Justice Chandrashekaraiah (Retired) v. Janekere
C.Krishna and ors., reported in (2013) 3 SCC 117
was cited to take support to explain the phrase
'concurrence' with reference to the interpretation given
to the phrase 'in consultation' employed in Section 3 of
the Karnataka Lokayukta Act, 1984. Thus, it was
argued that no post facto concurrence would be valid;
no latitude could be taken in following the formal
procedure required under Section 14(4) of the Act and
proviso thereof.
16. Referring to the dictionary meaning of
'concurrence', it was submitted that the phrase
"approval" cannot be equated with "concurrence".
Concurrence would be more stringent than
consultation. Concurrence is contemporaneous which
- 19 -
indeed has to be strictly adhered to, prior to
appointment. Article 368(2), proviso (c) with reference
to Part IX B of the Constitution of India and the
judgment of the Hon'ble Apex Court in the case of
Union of India v. Rajendra N Shah and Anr., Civil
Appeal No.2826/2021 & allied matters, DD July 20,
2021, was relied upon to contend that any ratification
would not validate the void order of appointment.
Drawing support from the judgment of
Dr Shivayogeppa B Hinchigeri, supra, it was
submitted that the Division Bench having declared a
law whether it is academic or legal, eschewing the same
would not arise. The law laid down by the Co-ordinate
Bench is binding in nature. Despite the settled law, the
Hon'ble Chancellor has issued the appointment order
without the consultation of the State Government.
17. Learned Senior Counsel further submitted
that the University ought to have been neutral in the
- 20 -
given facts and circumstances. The University acting
through Vice Chancellor, filing the writ appeal is in
defiant to its stature. Importing the words of Section 64
"prior" in Section 14(4) would not be permissible. The
provisions of Section 64 and 14(4) act in different fields.
When the legislature has consciously omitted the word
"prior", the same cannot be read into the provision.
Thus, the learned Senior Counsel argued that the
learned Single Judge having considered these aspects
has rightly allowed the writ petition setting aside the
order of appointment of Professor Venugopal K.R, as the
Vice Chancellor of Bengaluru University and the same
requires to be confirmed by this Court.
18. We have given our anxious consideration to
the arguments advanced by the learned counsel
appearing for the parties and perused the material on
record.
- 21 -
19. Section 14(4) of the Act and the proviso
thereof read as under;
" 4. The Vice-Chancellor.-
(1) xxxx
(2) xxxx
(3) xxx
(4) The Search Committee shall submit to the
State Government a panel of three persons
who are eminent academicians, in the
alphabetical order. The State Government
shall forward the panel to the Chancellor
who shall keeping in view merit, equity and
social justice and with the concurrence of the
State Government, appoint one person from the
panel as the Vice-Chancellor:
Provided that the Chancellor may with
the concurrence of the State Government call
for a second panel if he considers it
necessary and the Search Committee shall
submit a second panel which shall be final."
20. In terms of the said proviso, the Search
Committee has to submit to the State Government a
panel of three persons who are eminent academicians in
- 22 -
the alphabetical order, subsequent to which the State
Government shall forward the panel to the Hon'ble
Chancellor. One person from the panel shall be
appointed by the Hon'ble Chancellor keeping in view
merit, equity and social justice with the concurrence of
the State Government. "Concurrence" of the State
Government is sine qua non under Section 14(4) of the
Act. The proviso carves out an exception to the main
provision. In terms of the proviso, the Hon'ble
Chancellor may with the concurrence of the State
Government call for a second panel, if he considers it
necessary. The crucial point is, whether for a second
panel, concurrence of the State Government is
mandatory.
21. In the case of Dileep Kumar Singh, supra,
Section 73(3) and (4) of the Persons With Disabilities
(Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 and the proviso to sub-section
- 23 -
(2) of Section 47 was considered. In that context, it has
been held that the provisions of the statute must be
read harmoniously together. However, if this is not
possible and a conflict between two sections cannot be
reconciled then, it has to be determined which is the
leading provision and which is the subordinate
provision and which must give way to the other. In
paragraph 20 it has been held thus;
20. Equally, it is settled law that a proviso does
not travel beyond the provision to which it is a
proviso. Therefore, the golden rule is to read the
whole Section, inclusive of the proviso, in such
manner that they mutually throw light on each
other and result in a harmonious construction.
This is laid down in Dwarka Prasad v. Dwarka
Das Saraf, (1976) 1 SCC 128, as follows:-
"18. We may mention in fairness to Counsel
that the following, among other decisions,
were cited at the Bar bearing on the uses of
provisos in statutes: CIT v.Indo-Mercantile
Bank Ltd, [AIR 1959 SC 713 : 1959 Supp
(2) SCR 256, 266 : (1959) 36 ITR 1] ; Ram
Narain Sons Ltd. v. Asstt. CST [AIR 1955
- 24 -
SC 765 : (1955) 2 SCR 483, 493 : (1955) 6
STC 627] ; Thompson v. Dibdin [(1912) AC
533, 541 : 81 LJKB 918 : 28 TLR 490] ; Rex
v. Dibdin [1910 Pro Div 57, 119, 125] and
Tahsildar Singh v. State of U.P. [AIR 1959
SC 1012 : 1959 Supp (2) SCR 875, 893 :
1959 Cri LJ 1231] . The law is trite. A
proviso must be limited to the subject-
matter of the enacting clause. It is a settled
rule of construction that a proviso must
prima facie be read and considered in
relation to the principal matter to which it is
a proviso. It is not a separate or
independent enactment. "Words are
dependent on the principal enacting words
to which they are tacked as a proviso. They
cannot be read as divorced from their
context" (Thompson v. Dibdin, 1912 AC
533). If the rule of construction is that
prima facie a proviso should be limited in
its operation to the subject- matter of the
enacting clause, the stand we have taken
is sound. To expand the enacting clause,
inflated by the proviso, sins against the
fundamental rule of construction that a
proviso must be considered in relation to
the principal matter to which it stands as a
- 25 -
proviso. A proviso ordinarily is but a
proviso, although the golden rule is to read
the whole section, inclusive of the proviso,
in such manner that they mutually throw
light on each other and result in a
harmonious construction."
22. In the case of S. Sundaram Pillai v. V.R.
Pattabiraman, reported in 1985 AIR 582, the
Hon'ble Apex Court has explained the scope of the
proviso, which reads thus;
"A proviso may have three separate
functions. Normally, a proviso is meant to be an
exception to something within the main enactment
or to qualify something enacted therein which but
for the proviso would be within the purview of the
enactment. In other words, a proviso cannot be
torn apart from the main enactment nor can it be
used to nullify or set at naught the real object of
the main enactment. While interpreting a proviso
care must be taken that it is used to remove
special cases from the general enactment and
provide for them separately. In short, generally
speaking, a proviso is intended to limit the
enacted provision so as to except something
- 26 -
which would have otherwise been within it or in
some measure to modify the enacting clause.
Sometimes a proviso may be embedded in the
main provision and becomes an integral part of it
so as to amount to a substantive provision itself.
To sum up, a proviso may serve four
different purpose:
1] qualifying or excepting certain
provisions from he main enactment;
2] it may entirely change the very
concept or the intendment of the enactment by
insisting on certain mandatory conditions to be
fulfilled in order to make the enactment
worktable;
3] it may be so embedded in the Act
itself as to become an integral part of the
enactment and thus acquire the tenor and colour
of the substantive enactment itself; and
4] it may be used merely to act as an
optional addenda to the enactment with the sole
object of explaining the real intendment of the
statutory provision. [Case law discussed.]"
Thus, a proviso cannot be used to nullify the main
provision.
- 27 -
23. The argument of the respective learned
Senior Counsel appearing for the appellants that no
concurrence of the State Government is required to
appoint one person from the second panel as the Vice
Chancellor, under Section 14(4) read with the proviso
cannot be countenanced since the Hon'ble Chancellor
cannot dispense with the requirements of merit, equity
and social justice as well even exercising the power
under the proviso, certainly the same applies to
'concurrence' as well. The construction of proviso must
be considered in relation to the principal provision to
which it stands as a proviso. The cardinal principle is
that both should be read together harmoniously.
24. In the case of Dr Shivayogeppa
B.Hinchigeri, supra, the Division Bench has considered
the dictionary meaning of the word 'concurrence'. It is
beneficial to quote the same. Paragraphs 16 and 17
read as under;
- 28 -
"16. The meaning of the word 'concurrence' in
Black's Law Dictionary, IX edition is,
'1. Agreement; assent 2. A vote cast by a
Judge in favor of the Judgment reached,
often on grounds differing from those
expressed in the opinion or opinions
explaining the Judgment. 3. A separate
written opinion explaining such a Vote -
Also termed (in sense 3) concurring opinion
[cases; courts - 108]. 4. Acceptance by one
house in a bicameral legislature of an
amendment passed by the other house.'
17. (i) The meaning of the word 'concurrent' in
Concise Oxford English Dictionary, 12th Edition,
'concurrent' means,
'1. existing or happening at the same time.
2. agreeing or consistent. 3.Mathematics(of
three or more lines) meeting at or tending
towards one point.'
(ii) K.J. Aiyar's Judicial Dictionary, 16th
Edition is:-
'Acting in conjunction; agreeing in the same
act; contributing to the same event;
contemporaneous.'
- 29 -
(iii) P. Ramanatha Aiyer's The Law Lexicon,
II Edition is:-
'Having the same authority; acting in
conjunction; existing together agreeing in
the same act; contributing to the same
event; contemporaneous; running together;
co-operating; contributing to the same
effect; accompanying; conjoined; associate;
concomitant; joint and equal [as] concurrent
sentences; running together in time or
space; covering the same ground."
25. Having regard to the use of the word
'concurrence', it has been held that the parties are
required to make their points of view known to each
other and discuss and examine the relative merits of
their views, making it incumbent upon the Hon'ble
Chancellor to have made his proposal to the State
Government, who may or may not have had a counter
proposal, since that stage had yet to set in.
- 30 -
26. The endeavor made by the learned Senior
Counsel appearing for the Hon'ble Chancellor that this
judgment is not rendered in the context of the proviso
and the same is not applicable herein, is wholly
fallacious. Merely for the action if, initiated under the
proviso, where the search committee has submitted a
second panel, the requirement of concurrence, cannot
be waived off which indeed is an essence of the main
provision. Proviso cannot be torn out from the main
enactment to give a different colour altogether.
27. In the case of Justice Chandrashekaraiah,
supra, the Hon'ble Apex Court having regard to the
phrase 'consultation' under Section 3 of the Karnataka
Lokayuktha Act, 1984, has observed thus;
"77. The Chief Minister is legally obliged to
consult the Chief Justice of the High Court and
other four consultees, which is a mandatory
requirement. The consultation must be meaningful
and effective and mere eliciting the views or
calling for recommendations would not suffice.
- 31 -
The consultees can suggest various names from
the source stipulated in the statute and those
names have to be discussed either in a meeting to
be convened by the Chief Minister of the State for
that purpose or by way of circulation. The Chief
Minister, if proposes to suggest or advise any
name from the source earmarked in the statute
that must also be made available to the
consultees so that they can also express their
views on the name or names suggested by the
Chief Minister. The consultees can express their
honest and free opinion about the names
suggested by the other consultees including the
Chief Justice or the Chief Minister. After due
deliberations and making meaningful
consultation, the Chief Minister of the State is free
to advise a name which has come up for
consideration among the consultees to the
Governor of the State. The advice tendered by the
Chief Minister will have primacy and not that of
the consultees including the Chief Justice of the
High Court."
28. It is significant to note that in Section 3(2)(a)
of the Karnataka Lokayukta Act, 1984, the Legislature
has provided for consultation, wherein no prior or post
- 32 -
consultation is specifically mentioned. In such
circumstances, 'consultation' for the post of
Lokayuktha/Upa Lokayuktha is held to be a mandatory
requirement at the time of appointment.
29. It is true that Section 64 of the Act deals
with Autonomous College, sub-section (1) of Section 64
specifies that the University may with the 'prior
concurrence' of the State Government designate for
such period as may be specified, an affiliated college,
department or units as an Autonomous College for any
course of study, after following the procedure and
subject to such conditions as may be specified in the
Statutes made in this behalf. Sub-section (3) of Section
64 deals with continuing designation of the
Autonomous College for a further period as may be
specified or to cancel such designation. Thus, the said
provision contemplates for 'prior concurrence' of the
State Government.
- 33 -
30. Merely for the reason that Section 64
contemplates 'prior concurrence' of the State
Government, it cannot be held that Section 14(4)
provides for post facto concurrence. Any phrase
consciously not used in Section 14(4) cannot be read in,
importing the words provided in Section 64(1) and (3) of
the Act. It is well settled that the Courts cannot add or
subtract words to a statute or read something into it
which is not there. Courts cannot rewrite or recast
legislation. The Courts cannot fill up the gap by
stretching the word used. It is trite that Courts can only
interpret the provision but not to legislate by adding
words.
31. In the case of All Bihar Christian Schools
Association and another, supra, the Hon'ble Supreme
Court while interpreting the phrase 'concurrence' in the
context of recognition of minority secondary schools
under the provisions of the Bihar Secondary Education
- 34 -
Board Act, 1976 and the Bihar Secondary Board
(Second Amendment) Ordinance, 1980, has held that
under clause (b) to the proviso which lays down that the
School Service Board while considering the question of
granting approval to the appointment of a teacher, shall
ascertain if the appointment is in accordance with the
rules laying down qualifications, and manner of making
appointment framed by the State Government mandates
the Managing Committee to make appointment of a
teacher with the concurrence of the School Service
Board. In that scenario, it has been held that the
expression 'concurrence' means approval, such approval
need not be prior approval as the clause does not
provide for any prior approval. Object or purpose
underlying clause (b) is to ensure that the teachers
appointed in a minority school should possess requisite
qualifications and they are appointed in accordance
with the procedure prescribed and the appointments are
made for the sanctioned strength.
- 35 -
32. At this juncture, it would be beneficial to
quote the words of Justice Holmes that "A word is not a
crystal, transparent and unchanged; it is the skin of a
living thought and may vary greatly in colour and
content according to the circumstances and the time in
which it is used". Hence, in our considered view, with
great respect, interpretation of the expression
'concurrence' in the context of recognition of Minority
Secondary Schools under the provisions of the Bihar
Secondary Education Board Act, 1976, cannot be
treated on par with the "concurrence" of the State
Government required under Section 14(4) of the Act.
33. In the case of P.P.Singh, supra, effect of the
recommendations of a committee of two judges as
regards criteria for grant of selection scale appointed by
the Acting Chief Justice which has been subsequently
approved by the Full Court was considered. In that
context it has been held thus;
- 36 -
"40. When an approval is required, an action
holds good. Only if it disapproved it losses its
force. Only when a permission is required, the
decision does not become effective till permission
is obtained. (See U.P. Avas Evam Vikas Parishad
and Another v. Friends Coop. Housing Society Ltd
and Another [(1995) Supp (3) SCC 456]. In the
instant case both the aforementioned
requirements have been fulfilled.
41. There is another aspect of the matter. In
terms of Rule 2(2) of the Rules, the decision of the
Full Court would have a retrospective effect and
retroactive operation.
42. In any view of the matter, even in a case
where the initial action is illegal, the same can be
ratified by a body competent therefor. This aspect
of the matter has not been considered by the High
Court at all. In Sri Parmeshwari Prasad Gupta v.
the Union of India [(1973) 2 SCC 543] this Court
held :
"Even if it be assumed that the telegram
and the letter terminating the services of
the appellant by the Chairman was in
pursuance to the invalid resolution of the
Board of Directors passed on December 16,
- 37 -
1953 to terminate his services, it would not
follow that the action of the Chairman could
not be ratified in a regularly convened
meeting of the Board of Directors. The point
is that even assuming that the Chairman
was not legally authorised to terminate the
services of the appellant, he was acting on
behalf of the Company in doing so,
because, he purported to act in pursuance
of the invalid resolution. Therefore, it was
open to a regularly constituted meeting of
the Board of Directors to ratify that action
which, though unauthorized, was done on
behalf of the Company. Ratification would
always relate back to the date of the act
ratified and so it must be held that the
services of the appellant were validly
terminated on December 17, 1953"
(See also Marathwada University v.
Seshrao Balwant Rao Chavan (1989)
3 SCC 132 para 28], Babu Verghese
and Others v. Bar Council of Kerala
and Others [(1999) 3 SCC 422 para
35] and Barnard v. National Dock
Labour Board [(1953) 1 All ER
1113])."
- 38 -
34. With great respect, in our considered view,
this judgment would be of little assistance to the
appellants herein.
35. With regard to the judgments relied upon by
learned Senior Counsel Sri.P.S.Rajagopal appearing for
Professor Venugopal K.R, in the case of Maharashtra
State Mining Corporation, supra, the Hon'ble Apex
Court was dealing with the order of dismissal of an
employee by a legally incompetent authority. In that
context, it was held that the High Court rightly held that
an act by a legally incompetent authority is invalid, but
it was entirely wrong in holding that such an invalid act
could not be rectified by ratification of the competent
authority. This ratio would not come to the assistance
of the appellants while 'concurrence' is
contemporaneous in terms of Section 14(4) read with
proviso of the Act; in the case of Bajaj Hindustan
Limited, supra, the Hon'ble Apex Court has considered
- 39 -
the effect of ex post facto approval amounts to sufficient
compliance with the proviso to sub-section (1) of Section
3-A of the U.P. Sugarcane (Purchase Tax) Act, 1961.
The Hon'ble Apex Court has held that the word
'approval' includes ratifying of the action, ratification
obviously can be given ex post facto approval. But in
our considered view, 'approval' differs from
'concurrence'; and in the case of R.S.Nayak, supra, the
question that, regarding the competent authority to
sanction prosecution as envisaged in Section 6 of the
P.C.Act, 1947, would not arise since the vital question
has become one of academic interest. But the said
finding would not nullify the decision taken in Dr.
Shivayogeppa B.Hinchigeri, supra, it is trite that in
order to lay down the correct position of law, if the
matter is decided by a Division Bench against the order
of the learned Single Judge, the same cannot be held to
be not a binding precedent as argued by the learned
Senior Counsel for the appellant in WA.No.3780/2019.
- 40 -
Thus, we are of the considered view that the judgments
referred to by the learned Senior Counsel appearing for
the appellant have no applicability to the facts and
circumstances of the case.
36. The appointment order dated 12.6.2018
impugned in the writ petition does not speak about the
concurrence with the State Government, whereas the
notification dated 28.3.2018 (Annexure-Z to the original
writ petition) appointing Dr.Manjunatha Krishnappa
Naik, Director of Research, University of Agricultural
and Horticultural Sciences, as Vice Chancellor of the
University of Agricultural and Horticultural Sciences,
Shivamogga, for a period of four years with effect from
the date of assumption of office or until he attains the
age of 65 years, whichever is earlier categorically
specifies that the Hon'ble Chancellor of the University
keeping in view merit, equity and social justice and with
the concurrence of the State Government has
- 41 -
appointed the Vice Chancellor. Similarly, as per the
notification dated 12.6.2018 (Annexure-AA to the
original writ petition) whereby the Hon'ble Chancellor of
the Karnataka State Law University, Hubballi, has
appointed Dr.P.Ishwar Bhat, former Vice Chancellor,
Karnataka State Law University, Hubballi, for a period
of four years with effect from the date of assumption of
office or until he attains the age of 67 years whichever is
earlier, the same has been done considering merit,
equity and social justice and with the concurrence of
the State Government, whereas the impugned
notification dated 12.6.2018 discloses that keeping in
view merit, equity and social justice and keeping in
mind the immediate need and interest of the University,
Professor Venugopal K.R, former Principal, University of
Visvesvaraya college of Engineering, Bengaluru, has
been appointed as Vice Chancellor, Bangalore
University, for a period of four years with effect from the
- 42 -
date of assumption of office or until he attains the age of
67 years whichever is earlier.
37. Any ratification said to have been made
on 28.6.2018 to the appointment order dated
12.06.2018 cannot cure the defects and validate
the invalid action. It is well settled legal principle
that when the statute prescribes a power to do a
certain thing in a certain way, that thing has to
be done in that way or not at all. This legal
principle is succinctly followed in catena of decisions.
In the case of Babu Verghese and others v. Bar
Council of Kerala and others, reported in (1999) 3
SCC 422, wherein at paragraph 31, the Apex Court has
held thus:
"31. It is the basic principle of law long
settled that if the manner of doing a particular
act is prescribed under any statute, the act
must be done in that manner or not at all.
The origin of this rule is traceable to the
- 43 -
decision in Taylor v. Talylor [ (1875) 1 Ch D
426] which was followed by Lord Roche in
Nazir Ahmad v. King Emperor [ (1936) 63 IA
372] who stated as under:
"Where a power is given to do a certain
thing in a certain way, the thing must
be done in that way or not at all."
38. Having regard to these aspects, the view
expressed by the learned Single Judge in dismissing the
writ petition cannot be held to be vitiated. We find no
reasons to interfere with the well considered order of the
learned Single Judge.
For the reasons aforesaid, writ appeals stand
dismissed. All the pending IA's and Memo's are
disposed of accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
nd
