Karnataka High Court
Prof Sharath Ananthamurthy vs The Chancellor Of Universities on 12 September, 2023
Bench: N S Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 9068 OF 2023 (S-RES)
C/W
WRIT PETITION NO. 11875 OF 2023 (S-RES)
IN W.P.No.9068/2023:
BETWEEN:
PROF. SHARATH ANANTHAMURTHY
AGED ABOUT 60 YEARS,
S/O U R ANANTHMURTHY,
PROFESSOR SCHOOL OF PHYSICS,
UNIVERSITY OF HYDERABAD,
R/AT 498, "SURAGI", 6TH A MAIN,
RMV 2ND STAGE, BANGALORE-560 094.
... PETITIONER
Digitally
signed by
PANKAJA S (BY PROF. RAVI VARMA KUMAR, SENIOR COUNSEL FOR
Location: SRI.VIJAYA RAGHAVA SARATH.H.M, ADVOCATE)
HIGH
COURT OF
KARNATAKA AND:
1. THE CHANCELLOR OF UNIVERSITIES,
REP., BY ITS UNDER SECRETARY,
RAJ BHAVAN, BENGALURU-560 001.
2. THE STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF HIGHER EDUCATION,
6TH FLOOR, GATE No.2,
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M.S.BUILDING, BENGALURU-560 001.
3. THE UNIVERSITY OF MYSORE,
REP. BY ITS REGISTRAR,
VISHWAVIDYANILAY KARYA SOUDHA,
CRAWFORD HALL,
MYSURU-570 006.
4. THE SEARCH COMMITTEE FOR
SELECTION OF VICE CHANCELLOR,
REP. BY ITS CHAIRMAN,
UNIVERSITY OF MYSORE,
MANASAGANGOTRI,
MYSURU-570 006.
5. PROF. LOKANATH.N.K,
AGED ABOUT 56 YEARS,
PRESENTLY POST AS VICE CHANCELLOR,
UNIVERSITY OF MYSORE,
VISWAVIDYANILAYA KARYA SOUDHA,
CRAWFORD HALL, POST BOX No.405
MYSORE-570 005.
... RESPONDENTS
(BY SRI.UDAYA HOLLA, SENIOR COUNSEL FOR
SRI.SANTHOSH S.NAGARALE, ADVOCATE FOR R-1;
SRI.SHASHI KIRAN SHETTY, ADVOCATE GENERAL
ALONGWITH SRI. M.S.NAGARAJA, AGA FOR R-2 TO R-4;
SRI.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-3;
SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI.ABHISHEK KUMAR, ADVOCATE FOR R-5)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, CALL FOR ENTIRE RECORDS
PERTAINING TO THE PROCEEDINGS OF THE SEARCH
COMMITTEE FOR SELECTION OF VICE CHANCELLOR OF THE
RESPONDENT UNIVERSITY OF MYSORE AND THE PANEL OF
NAMES RECOMMENDED BY THE SEARCH COMMITTEE AS WELL
AS PERTAINS TO SELECTION AND APPOINTMENT OF R5 AS
VICE-CHANCELLOR OF THE RESPONDENT MYSORE
UNIVERSITY.
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IN W.P.No.11875/2023
BETWEEN:
DR.G.VENKATESH KUMAR,
SON OF LATE ERANNA,
AGED ABOUT 62 YEARS,
R/AT No.SONIDHI,
10TH MAIN, 19TH CROSS,
C BLOCK, 3RD STAGE,
VIJAYANAGAR,
MYSURU-570 030.
... PETITIONER
(BY SRI.SRIDHAR PRABHU, ADVOCATE)
AND:
1. THE CHANCELLOR OF UNIVERSITIES
RAJ BHAVAN,
BENGALURU-560 001.
(REPRESENTED BY ITS UNDER SECRETARY)
2. STATE OF KARNATAKA,
DEPARTMENT OF HIGHER EDUCATION,
6TH FLOOR, GATE No.2, M.S.BUILDING,
BENGALURU-560 001.
(REPRESENTED BY ITS PRINCIPAL SECRETARY)
3. THE REGISTRAR
MYSORE UNIVERSITY
VISHWAVIDYANIALYA KARYA,
SOUDHA CRAWFORD HALL,
MYSURU-570 006.
4. THE CHAIRMAN,
SEARCH COMMITTEE FOR
SELECTION OF VICE-CHANCELLOR
UNIVERSITY OF MYSORE,
MANASAGANGOTRI,
MYSURU-570 006.
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5. LOKANATH N.K.
SON OF KRISHNAPPA GOWDA,
AGED ABOUT 56 YEARS,
PRESENTLY WORKING
AS VICE CHANCELLOR
UNIVERSITY OF MYSORE,
MYSORE UNIVERSITY
VISHWAVIDYANIALYA KARYA,
SOUDHA CRAWFORD HALL,
MYSRURU-570 0062.
... RESPONDENTS
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI.SANTOSH S.NAGARALE,ADVOCATE FOR R-1;
SRI.SHASHI KIRAN SHETTY, ADVOCATE GENERAL
ALAONGWITH SRI.M.S.NAGARAJ, AGA FOR R-2 & R-4;
SRI.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-3;
SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI.ABHISHEK KUMAR, ADVOCATE FOR R-5)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED GOVERNMENT NOTIFICATION BEARING No.GS 9
MUM 2022 DATED:23.03.2023 PRODUCED AT ANNEXURE-A
ISSUED BY THE R-1 ALONG WITH TO QUASH THE ENTIRE
RECRUITMENT PROCESS INITIATED FOR APPOINTMENT TO THE
POST OF VICE-CHANCELLOR CONSEQUENTLY, IN SO FAR AS
APPOINTMENT OF R-5 IS CONCERNED, ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 03.08.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
1. These two writ petitions are filed challenging the
appointment of Prof. Lokanath M.K. as the Vice Chancellor
of the University of Mysuru, made by the Chancellor.
2. The petitioners were aspirants to said post of the
Vice Chancellor. It is averred that Prof. Sharath
Ananthmurthy, the petitioner in W.P.No.9068/2023, was
one among the three names recommended by the Search
Committee on both occasions, and that Dr. G. Venkatesh
Kumar, the petitioner in W.P.No.11875/2023, was
considered in the first list of three names recommended by
said Search Committee.
3. For ease of reference, this order has been indexed
as follows:
Sl. Particulars Page Nos.
No.
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D. Application of the law to the present 38
facts
A. ANALYSIS OF RELEVANT PROVISIONS:
4. Before embarking upon the issues raised in these
writ petitions, it would be necessary to examine the
statutory framework relating to the appointment of a Vice
Chancellor in the State of Karnataka.
5. The Karnataka State Universities Act, 2000 (for
short, referred to as "the State Act") received the assent
of the Governor on 12.09.2001.
6. Chapter-III of the State Act provides for 'the
Officers of the Universities' and Section 14 of the State
Act, which deals with the 'Office of the Vice Chancellor',
reads as under:
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"14. The Vice-Chancellor.- (1) The Vice-Chancellor
shall be a whole time officer of the University .
(2) The State Government shall constitute a
Search Committee consisting of four persons of
whom, one shall be nominated by the Chancellor,
one by the University Grants Commission, one by
the State Government and one by the Syndicate.
The State Government shall appoint one of the
members as the Chairman of the Committee. The
Secretary to Government incharge of higher
education or his nominee not below the rank of the
Deputy Secretary to Government shall be the
convenor of the Search Committee.
(3) No person connected with the affairs of
the State Government, the University or any college
or institution affiliated to the University shall be
nominated as the member of the Search
Committee.
(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.
Provided further that the Vice Chancellor of
the [Akkamahadevi Women University] at Bijapur
shall, as far as practicable be a women:
[Provided also that notwithstanding anything
contrary contained in this section the First Vice
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Chancellor of the [Akkamahadevi Women
University] shall be appointed by the State
Government subject to such terms and conditions
as may be specified.]
[Provided also that notwithstanding anything
contrary contained in this section, the first Vice
Chancellor of the Tumkur University shall be
appointed by the State Government subject to such
terms and conditions as may be specified by it]
[Provided also that notwithstanding anything
contrary contained in this section, the first Vice-
Chancellor of the Davanagere University shall be
appointed by the State Government subject to such
terms and conditions as may be specified by it.]
[Provided also that notwithstanding anything
contrary contained in this section, the first Vice-
Chancellors of the Vijayanagara Sri
Krishnadevaraya University and Ranichannamma
University shall be appointed by the State
Government subject to such terms and conditions
as may be specified by it.]
[Provided also that notwithstanding anything
contrary contained in this section, first Vice-
Chancellors of the Bengaluru Central University and
Bengaluru North University shall be appointed by
the State Government subject to such terms and
conditions as may be specified by it]
(5)No person shall be appointed or hold office
of the Vice- Chancellor if he has attained the age of
sixty seven years.]
(6) The Vice-Chancellor shall, subject to the
pleasure of the Chancellor and the provisions of
sub-section (5) hold the office for a period of four
years. He shall not be eligible for reappointment,
for a second term.
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(7) The Vice-Chancellor shall not be removed
from his office except by an order of the Chancellor
passed on the ground of willful omission or refusal
to carry out the provisions of this Act or for abuse
of the powers vested in him and on the advice
tendered by the State Government on consideration
of the report of an inquiry ordered by it under sub-
section.
(8) For the purposes of holding an inquiry
under this section the State Government shall
appoint a person who is or has been a Judge of the
High Court or the Supreme Court. The inquiry
authority shall hold the inquiry after giving an
opportunity to make representation by the Vice-
Chancellor and shall submit a report to the State
Government on the action to be taken including
penalty, if any, to be imposed, and the State
Government shall on consideration of the report
advise the Chancellor. The Chancellor shall act in
accordance with such advice, as far as may be,
within six months.
(9) The emoluments and other conditions of
service of the Vice- Chancellor shall be such as may
be determined by the Chancellor and shall not be
varied to his dis-advantage after his appointment as
Vice-Chancellor. In the event of a Vice-Chancellor
retiring on superannuation during his tenureship as
Vice-Chancellor, his conditions of service already
determined shall continue to be in vogue. All his
pensionary benefits shall be kept in abeyance which
shall be released after his demitting the office of the
Vice-Chancellor.
(10) If a retired person is appointed as Vice-
Chancellor, the terms and conditions of service
upon his appointment as Vice-Chancellor including
emoluments shall be determined by the Chancellor.
The emoluments shall be reduced by the amount of
pension and allowances drawn by him.
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(11) If a Professor in the service of a
University in the State is appointed as Vice-
Chancellor, his terms and conditions of service as
Professor shall not be revised to his dis-advantage
during his tenure as Vice-Chancellor and he shall
retain his lien in his post."
7. As could be seen from Section 14(1), there is a
declaration that the Vice Chancellor should be a whole-
time officer of the University and for the purpose of
appointing a Vice Chancellor, the State Government is
mandated to constitute a Search Committee consisting of
four persons. One is required to be nominated by the
Chancellor, one by the University Grants Commission (for
short, referred to as "the UGC"), one by the State
Government and one by the Syndicate. It is also specified
that the State Government is required to appoint one of
the members as the Chairman of the Committee, and the
Secretary to the Government in charge of higher education
or his nominee would be the Convenor of the Search
Committee.
8. Sub-section (3) of Section 14 of the State Act bars
any person who is connected with the affairs of the State
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Government, the University or any college or institution
affiliated to the University, to be nominated as a member
of the Search Committee.
9. The fact that any person connected with the affairs
of any of the above-mentioned four apex bodies are
barred from being nominated as a member of the Search
Committee indicates that it is the intent of the law that the
Search Committee should be comprised of independent
people who can recommend the most appropriate
candidates to be considered for appointment as the Vice
Chancellor.
10. Sub-section (4) of Section 14 of the State Act
mandates that the Selection Committee should submit to
the State Government a panel of three persons who are
eminent academicians, in the alphabetical order. On the
submission of such panel, the State Government is
mandated to forward the panel to the Chancellor, and the
Chancellor, shall, keeping in view the merit, equity and
social justice as well as the concurrence of the State
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Government, appoint one person from among the panel of
three as the Vice Chancellor.
11. Thus, under the statutory framework, the Search
Committee is given the responsibility of undertaking the
search of three eminent academicians and submitting the
same to the Government for being forwarded to the
Chancellor. The Chancellor is then entrusted with the task
of appointing one among the three names recommended
to him by considering merit, equity and social justice.
However, the Chancellor can only appoint one among the
panel of three names submitted to him, as the Vice
Chancellor, with the concurrence of the State Government.
Thus, essentially, from a panel of three names submitted
by the Search Committee, the Chancellor is required to
choose one among the three names, and thereafter, seek
concurrence of the State Government for appointing his
pick of the candidate as the Vice Chancellor.
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12. A proviso, with which we would be concerned, is also
appended to sub-section (4) of Section 14 and the same
reads as follows:
"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."
13. As could be seen from this proviso to sub-section (4)
of Section 14 of the State Act, it is open for the Chancellor
to call for a second panel of three names, if he considers it
necessary. However, before he chooses this course of
action, he is required to seek concurrence of the State
Government. On a second panel being called by the
Chancellor after obtaining concurrence of the Government,
the Search Committee is obliged to submit the second
panel of names which shall be considered as the final
panel.
14. Thus, if the Chancellor does not agree with the first
panel of three names, he has been conferred with the
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option of seeking a second panel of three names, but this
would have to be done after obtaining concurrence of the
State Government. The second panel, which is thereafter
submitted by the Selection Committee, cannot be returned
or disregarded and is to be construed to be the final panel
of three names. The Chancellor would, thereby, have to
choose one candidate among the three for the post of the
Vice Chancellor.
15. The Parliament has also enacted the University
Grants Commissions Act, 1956 (for short, referred to as
the "the UGC Act" or "the Parliamentary Act") which is
an Act that makes provisions for co-ordination and
determination of standards in Universities. The UGC Act
contemplates the establishment of a Commission and
confers on the Commission certain powers and functions.
16. Section 14 of the UGC Act stipulates that if any
University contravenes any regulation made under clause
(e) or (f) or (g) of Section 26 of the UGC Act, the UGC is
empowered to withhold from the University the grants that
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are proposed to be made out of the funds of the UGC.
Thus, if any University which is in receipt of the grant from
the UGC contravenes any of the regulations made under
the UGC Act, it will be exposed to the risk of losing such
grant from the UGC.
17. Section 26 of the UGC Act provides for the UGC to
make regulations by way of a notification in the Official
Gazette. Section 26(e) of the UGC Act provides for framing
of regulations which enumerates the qualifications that
should ordinarily be required of any person to be
appointed as a teaching staff of the University, and sub-
section (g) provides for framing of regulations to regulate
the maintenance of standards and the co-ordination of
work or facilities in the Universities. In exercise of the
powers conferred under Section 26 (e) and (g) read with
Section 14 of the UGC Act, the UGC has framed the
regulations titled "the UGC Regulations on Minimum
Qualifications for Appointment of Teachers and Other
Academic Staff in Universities and Colleges and Measures
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for the Maintenance of Standards in Higher Education,
2018", (for short, referred to as "the UGC
Regulations").
18. Regulation 1.2 of the UGC Regulations states that the
UGC regulations shall apply to every University established
or incorporated by or under the Central Government, a
Provincial Act or a State Act. Thus, the above-mentioned
UGC Regulations would also apply to the present
University established under the Karnataka State
Universities Act.
19. Regulation 7 of the UGC Regulations specifies the
manner in which the Vice Chancellor is required to be
appointed and the same reads as under:
"7.3. VICE CHANCELLOR:
i. A person possessing the highest level of
competence, integrity, morals and institutional
commitment is to be appointed as Vice-
Chancellor. The person to be appointed as a Vice-
Chancellor should be a distinguished
academician, with a minimum of ten years' of
experience as Professor in a University or ten
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years' of experience in a reputed research and /
or academic administrative organisation with
proof of having demonstrated academic
leadership.
ii. The selection for the post of Vice-Chancellor
should be through proper identification by a
Panel of 3-5 persons by a Search-cum-Selection-
Committee, through a public notification or
nomination or a talent search process or a
combination thereof. The members of such
Search-cum-Selection Committee shall be
persons' of eminence in the sphere of higher
education and shall not be connected in any
manner with the University concerned or its
colleges. While preparing the panel, the Search
cum-Selection Committee shall give proper
weightage to the academic excellence, exposure
to the higher education system in the country
and abroad, and adequate experience in
academic and administrative governance, to be
given in writing along with the panel to be
submitted to the Visitor/Chancellor. One member
of the Search cum- Selection Committee shall be
nominated by the Chairman, University Grants
Commission, for selection of Vice Chancellors of
State, Private and Deemed to be Universities.
iii. The Visitor/Chancellor shall appoint the Vice
Chancellor out of the Panel of names
recommended by the Search-cum-Selection
Committee.
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iv. The term of office of the Vice-Chancellor shall
form part of the service period of the incumbent
making him/her eligible for all service related
benefits"
20. As could be seen from the above regulation, it is the
requirement of the Regulation that a person possessing
the highest level of competence, integrity, morals and
institutional commitment should be appointed as the Vice
Chancellor, and the person so appointed should be a
distinguished academician with a minimum of ten years'
experience as a Professor in a University or ten years'
experience in a reputed research and/or academic
administrative organization with proof of having
demonstrated academic leadership.
21. Regulation 7.3 (ii) of the Regulations states that the
selection for the post of the Vice Chancellor should be
through proper identification by a panel of three to five
persons by a Search-cum-Selection Committee. This
Committee is to be a panel of 3 or 5 persons and they are
required to make a proper identification of probable
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candidates either through a public notification, by
nomination, a talent search process or a combination
thereof. The members of Search-cum-Selection Committee
are required to be persons of eminence in the sphere of
higher education and shall not be connected, in any
manner, with the University concerned or its affiliated
colleges.
22. The Search-cum-Selection Committee, while
preparing the panel, is required to give proper weightage
to the academic excellence, exposure to higher education
system in the country and abroad, in addition to adequate
experience in the academic and administrative
governance. This weightage is to be given in writing along
with panel to be submitted to the Chancellor. The
Chancellor is, thereafter, required to appoint the Vice
Chancellor out of the panel of names recommended by the
Search-cum-Selection Committee.
23. Thus, the process of appointing the Vice Chancellor
both under the State Act as well as the Regulations framed
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under the UGC Act are almost similar, in the sense that
the appointment is to be made by the Chancellor on the
basis of a panel of names submitted to him by the Search-
cum-Selection Committee, which is required to be
comprised of persons of eminence in the sphere of higher
education.
24. The State Act requires that the Selection Committee
should be comprised of four persons, whereas the UGC
Regulations contemplate that the Search-cum-Selection
Committee should be comprised of three to five persons.
The State Act stipulates that the panel of three names
should be submitted by the Search Committee to the State
Government, while the UGC Regulations do not stipulate
the number of candidates to be recommended. There is,
under the State Act, however, no requirement of
furnishing weightage in writing with regard to the
academic excellence, exposure to higher education system
in the country and abroad and the experience in the
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academic and administrative governance as contemplated
under the UGC Regulations.
25. The State Act provides for the State Government to
forward the panel of three names to the Chancellor and
the Chancellor is required to choose one among them,
obtain the concurrence of the Government, and thereafter,
appoint that person as the Vice Chancellor.
26. However, the UGC Regulations merely state that a
panel of names is to be furnished to the Chancellor along
with proper weightage to be given, in writing, in respect of
the parameters stated therein, and the Chancellor is
required to appoint one person among the panel of names
recommended by the Search-cum-Selection Committee.
27. The State Act provides for the Chancellor to disagree
with the first panel of three names and seek a second
panel of three names, with the concurrence of the State
Government and on being furnishing with the second panel
of three names by the Selection Committee, the
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Chancellor is required to choose one among them.
However, under the UGC Regulations, there is no provision
made which enables the Chancellor to call for a fresh panel
of names.
28. A comparative study of the State Act and the UGC
Regulations indicates that there is no conflict per se
between the two processes, though there is a slight
difference in the manner in which the process of
appointing a Vice Chancellor is enumerated. Both
provisions contemplate the Search-cum-Selection
Committee to search for suitable candidates and from
amongst the eligible candidates, prepare a panel and
submit the same to the Chancellor for consideration.
29. The only major difference between the two is that
under the State Act, the Search Committee is required to
furnish a panel of three names to the Government and the
Government is required to forward the same to the
Chancellor, whereas under the UGC Regulations, the
Search-cum-Selection Committee is required to furnish a
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panel of names to the Chancellor directly by giving proper
weightage to the three prescribed parameters, in writing.
30. Another difference is that the Chancellor is entitled to
seek a second panel of names, whereas under the
Regulations, there is no provision for such an option. To
put it differently, the Chancellor, under the State Act, is
given an extra option of asking for a second panel of
names, whereas under the UGC Regulations, the
Chancellor has not been given such privilege.
31. It is, therefore, to be concluded that under the State
Act as well as under the UGC Regulations, the State
Government is required to essentially constitute a Search
Committee, which is then required to submit a panel of
names to the Chancellor, and the Chancellor is required to
pick one among them as the Vice Chancellor. The
additional requirement under the UGC Regulations is that
the Search Committee is required to give proper
weightage to the three parameters prescribed, in writing.
Whereas the additional requirement under the State Act is
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that the Chancellor is required to obtain the concurrence
of the State Government before appointing the Vice
Chancellor or for seeking a second panel of names.
B. ARGUMENTS ADVANCED BY COUNSEL:
32. An elaborate argument was advanced by the counsel
for the petitioners regarding the ineligibility of Prof.
Lokanath to be considered. Arguments were also advanced
on the suppression of the fact that the appointment of
Prof. Lokanath was itself under a cloud and that he had
also filed a writ petition challenging the annulment of his
selection and this basically disentitled his name from being
considered by the Search Committee. It was also
submitted that a criminal case had been registered against
Prof. Lokanath and that he had filed a petition under
Section 482 of the Criminal Procedure Code and got the
same quashed, which also disentitled him from being
considered for appointment as the Vice Chancellor. In this
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regard, reliance was placed on Anil Kanwariya1, Bhim
Singh Meena2 and Mukesh Kumar Raigar3.
33. In addition to the above, the petitioners also
advanced arguments on the issue of conflict between the
provisions of the State Act and the UGC Regulations
(framed under the UGC Act, a Parliamentary Legislation).
It was also argued that the UGC Regulations did not
provide for the additional power to the Chancellor to call
for a second panel with the concurrence of the State
Government to elaborate that the 1st proviso to Section 14
of the State Act was repugnant, and therefore, it was only
the UGC Regulations which were required to be followed.
Reliance, in this regard was placed on Prof. Sreejith
P.S.4 and Gambhirdan K. Gadhvi5.
34. It was also argued by the counsel for the petitioners
that direct contravention need not exist between the
Rajasthan Rajya Vidyut Parasaran Nigam Ltd. v. Anil Kanwariya (2021) 10
SCC 136.
Govt. of NCT Delhi v. Bhim Singh Meena, 2022 (5) SLR 115 (SC).
Mukesh Kumar Raigar v. Union of India, AIR 2023 SC 482.
Professor (Dr.) Sreejith P.S. v. Dr. Rajashree M.S., 2022 SCC OnLine SC
1437.
Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179.
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conflicting provisions and that a similarity in the subject
matter is sufficient to fulfil the test of repugnancy.
35. Per contra, the respondents averred that the writ
petition was not maintainable since the arguments were
on the desirability of Prof. Lokanath being appointed and
that this was beyond the power of judicial review. It was
contended that the Search Committee comprising of
experts had recommended the name of Prof. Lokanath and
this recommendation could not be reviewed by this Court.
Reliance, in support of this contention, was placed on
W.B. Central School Service Commission6, Mahavir
Singh7, Mohd. Mynuddin8, Harish Bansh Lal9 and
B.S.N Joshi10.
36. It was also argued that the non-disclosure of the
litigation regarding the appointment was not material since
the petition filed by Prof. Lokanath was allowed and his
W.B. Central School Service Commission v. Abdul Halim, (2019) 18 SCC
39.
Mahavir Singh v. Khiali Ram, (2009) 3 SCC 249.
State Bank of India v. Mohd. Mynuddin, (1987) 4 SCC 486.
Harish Bansh Lal v. Sahodar Prasad Mahto, (2010) 9 SCC 655.
B.S.N. Joshi & Sons v. Nair Coal Services Ltd, (2006) 11 SCC 548.
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appointment had been upheld. It was argued that it was
only if there was a litigation relating to his moral turpitude
that had a bearing on his candidature would that be
relevant. It was stated that the appointment of Prof.
Lokanath, along with several others, had been annulled by
a decision of the Syndicate, and the said decision taken
vide Government Order dated 18.06.2014 was, thereafter,
set aside by this Court in W.P. Nos.29220/2014 and
29402-29471/2014. This clearly indicates that there was
no cloud, as such, over his appointment per se. It was
argued that the omission, if any, in mentioning about the
litigation was a minor digression and given the fact that an
academician was filling up the application form, the same
would have to be ignored.
37. As regards the criminal proceedings, it was
argued that an FIR had been registered against
several persons including Prof. Lokanath, in relation to an
alleged encroachment of his site and it was his
complaint that a neighbour of his had encroached
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upon his site, as a consequence of which, all the
other site owners, including Prof. Lokanath who owned
sites in the street were said to be guilty. It was
averred that having regard to the nature of the
complaint and the fact that Prof. Lokanath would have
no idea of an FIR being registered and the further fact
that registration of such FIR cannot be said to be pending
litigation, the question of suppression of the criminal
case does not arise at all. Reliance was placed on
Avtar Singh11, Pawan Kumar12 and Mahendra
Solanki13
C. ANALYSIS OF THE LEGAL PROVISIONS:
38. At the outset, the issue on repugnancy between the
UGC Regulations and the State Act in the matter of
appointment of the Vice Chancellor will have to be
examined.
Avtar Singh v. Union of India, (2016) 8 SCC 471.
Pawan Kumar v. Union of India, 2022 SCC OnLine 532.
Mahendra Solanki v. Commissioner of Police, 2023 SCC OnLine 1423.
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39. A Constitutional Bench of the Apex Court in the case
of K.T. Plantation14 has opined on 'the tests of
repugnancy' as follows:
"107. The plea of repugnancy can be urged only
if both the legislations fall under the Concurrent Lidt.
Under Article 254 of the Constitution, a State law
passed in respect of a subject-matter comprised in List
III would be invalied if its provisions are repugnant to a
law passed on the same subject by Parliament and that
too only if both the laws cannot exist together.
108. The question of repugnancy under Article
254 of the Constitution arises when the provisions of
both laws are fully inconsistent or are absolutely
irreconcilable and it is impossible without disturbing the
other, or conflicting results are produced, when both
the suatutes covering the same field are applied to a
given set of facts. Repugnancy between the two
statutes would arise if there is a direct conflict between
the two provisions and the law made by Parliament and
the law made by the State Legislature occupy the same
field. Reference may be made to the decisions of the
Court in Deep Chand v. State of U.P. Prem Nath Kaul v.
State of J & K, Ukha Kolhe v. State of Maharashtra, Bar
Council of U.P. v. State of U.P."
K.T. Plantation Pvt. Ltd v. State of Karnataka, (2011) 9 SCC 1.
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40. Thus, the first test to be applied is as to whether the
two legislations are relatable to a subject matter in List III.
Since Entry 25 of List III relates to 'Education, including
Technical education, medical education and Universities',
the question of repugnancy may arise between the
provisions of the State Act relating to the appointment of a
Vice Chancellor vis-à-vis the Regulations made under the
Parliamentary Legislation i.e., the UGC Act.
41. The second test to be applied is as to whether the
provisions of both laws are fully inconsistent or are
absolutely irreconcilable and if both statutes are applied,
conflicting results would be produced. Obviously, in such
case, as held by the Constituional Bench of the Apex Court
in K.T. Plantation (supra), the Parliamentary Law would
prevail.
42. Thus, in the present case of appointment of the Vice
Chancellor, in order to establish repugnancy between the
two provisions of law and in order to make a
determination as to whether the UGC Regulations would
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prevail or if the provisions of the State Act would prevail,
there should necessarily exist a conflict between the two
provisions. If there is a conflict, then the UGC Regulations
framed by the Parliament would normally prevail over the
conflicting provision under the State Act.
43. As stated above, under both laws, a Search
Committee is to be constituted and the Committee is
required to recommend a panel of names to the Chancellor
and the Chancellor is then required to appoint one among
them as the Vice Chancellor. Thus, in essence, there are
no contradictory provisions and the application of both
these provisions does not result in a situation where
different results would be obtained.
44. At the risk of repetition, it is to be observed that the
only difference between the two provisions is that under
the State Act, the panel of names are first sent to the
Government and the Government would have to forward
the names to the Chancellor, who is required to pick one
among the three names, obtain the concurrence of the
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Government and then appoint the Vice Chancellor,
whereas under the UGC Regulations, the panel of names
are required to be submitted to the Chancellor and the
Chancellor could appoint the Vice Chancellor without
seeking concurrence of the State Government. In my view,
there is no conflict as such between these provisions, since
the authority to appoint the Vice Chancellor vests with the
Chancellor and the mere requirement of obtaining
concurrence of the State Government is an extra degree of
safeguard which has been incorporated, since the State
Government would have the requisite knowledge or means
to secure the details of the candidate in a far more
comprehensive manner than the Search Committee. The
concurrence of the State Government, being an aid to the
Chancellor in achieving the ultimate objective of
appointing an eminent person as the Vice Chancellor,
cannot result in any conflict which would make the
provision relating to the concurrence, repugnant.
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45. The statutory provision under the State Act which
provides the Chancellor the privilege of seeking a second
panel cannot be held to be a provision which is in conflict
with the UGC Regulations framed under the Parliamentary
Act. It is to be stated here that the responsibility of
appointing the Vice Chancellor ultimately rests on the
Chancellor under both laws and the Chancellor, being the
appointing authority, cannot be made subservient to the
recommendatory body. If a Chancellor has some
misgivings about the panel of names furnished (as
provided under the State Act), he can, with the
concurrence of the State Government, seek a fresh panel
of names. The State law provides for a check, in as much
as, the State Government is required to give its
concurrence to this wish of the Chancellor and this
provision, which grants an extra degree of flexibility in the
matter of appointment to the highest position in a
University, cannot be termed as being in conflict with the
UGC Regulations. Any provision in the State Act which
improves upon the Parliamentary Act or makes the
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process of recruitment more robust and secure, cannot be
considered as being in conflict with the Parliamentary Act.
46. In order to establish conflict between the State Act
and the UGC Regulations framed by the Parliamentary Act,
the provisions under the State Act would have to be
diametrically opposite to each other or in direct
contravention to the law made by the Parliament. If an
extra degree of flexibility or latitude is provided under the
State Act, it cannot be construed as being in conflict with
the Parliamentary Act.
47. It is to be kept in mind that the State Act, in fact,
provides for a nomination to be made by the UGC and the
UGC, in this regard, has exercised that right in the present
case and has made a nomination to the Selection
Committee. The University has also followed the
Regulations inasmuch as it has issued the Notification
calling for applications from eligible candidates. Thus, as a
matter of fact, the State and the University adopted and
followed both the provisions of the State Act as well as the
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UGC Regulations, wherever it was necessary, and it is,
therefore, clear that the procedure adopted by them has
not resulted in any conflict between the two provisions. In
a way, the requirement of both the provisions being
adhered to would result in the best of both the provisions
being given effect to.
48. With regard to the submission that two provisions
can be said to be in conflict merely because they pertain
to the same subject matter, reference may be made to the
Apex Court's decision in the case of Forum for People's
Collective Efforts15, wherein the tests to determine
repugnancy are thoroughly enumerated. As per said
judgment, it may be observed that the first step to deduce
repugnancy is to determine whether there is a "conflict"
between the provisions or an "overlap" thereof. If a
conflict actually exists, an attempt is to first be made to
read such provisions harmoniously and only if such
inconsistency cannot be cured or if the conflicting
Forum for People's Collective Efforts and Ors. v. the State of West Bengal
and Ors., (2021) 8 SCC 599.
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provisions are irreconcilable and cannot stand/operate
together, will the question of repugnancy arise, even if it
pertains to the same subject matter. In this case, the
State, by applying the provisions of the State Act as well
as the UGC Regulations, has, in fact, ensured that the
entire process of appointing a Vice Chancellor has resulted
in a harmonious and homogenous outcome by applying
both the provisions. Hence, this argument of the
petitioners on the issue of repugnancy cannot be accepted.
D. APPLICATION OF THE LAW TO THE PRESENT
FACTS:
49. Now, coming to the facts of the present case, the
undisputed facts are that on 02.08.2022, the Chancellor
requested the Government to initiate the process to
constitute a Selection Committee as contemplated under
Section 14(2) of the State Act. The Chancellor also
nominated Prof. Prakash Mani Tripathi as his nominee on
27.09.2022 and on 02.11.2022, the Selection Committee
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comprising of four persons was constituted by the State
Government by issuance of a Notification.
50. On 08.11.2022, a Notification was issued inviting
applications from eligible candidates, for the post of the
Vice Chancellor, and the last date fixed for submission of
applications was 28.11.2022. A total of sixty eight
applications were received in time and two were received
beyond the stipulated time. One application was
withdrawn by a candidate.
51. On 20.12.2022, the details of the scrutinized
applications that had been received were uploaded with
certain remarks made in the column relating to
Departmental Enquiry Certificate. Pertaining to
Dr.G.Venkatesh Kumar, it is indicated that no enquiry was
pending. The remarks relating to the Departmental
Enquiry Certificate in relation to Prof. Lokanath reads as
follows:
"An appointment dispute against him. Hence he is not eligible
as per UGC Regulations"
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52. On the same day, i.e., on 20.12.2022, the Selection
Committee prepared a panel of three names i.e., Sharath
Ananthmurthy, the petitioner in W.P. No. 9068/2023; Dr.
G. Venkatesh Kumar, the petitioner in W.P.No.
11875/2023 and one Mr. Guru D.S.
53. On 21.12.2022, Prof. Lokanath submitted a
representation to the Chancellor contending that improper
and incorrect remarks were made in respect of his
application and that he had been wrongly excluded from
the zone of consideration by virtue of the remarks.
54. On the same day, i.e., on 21.12.2022, one Prof H.
Rajashekar also submitted a representation to the
Chancellor. He also preferred a writ petition before this
Court in W.P.No.25759/2022 seeking quashing of the
remarks made against him in the details of scrutiny of the
application that were uploaded to the website.
55. On 22.12.2022, an interim order was granted in the
above-mentioned writ petition staying all further
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proceedings pursuant to the details of the scrutiny of the
application that were uploaded.
56. As stated above, before this interim order was
granted, the Selection Committee had already prepared a
panel of three names. A noting in the original file
submitted by the learned Advocate General at paragraphs
81 and 82 state as follows:
"81] ಾನ ಾ ಾಲಯದ ಅ ಸಂ. 25759/2022ರ ಪ ಕರಣದ
ಾ£Àå ಾ ಾಲಯವ ಾಂಕ: 22.12.2022 ರಂದು ೕ ದ ತ ೆ ಾ!ೆ,
" ೆ#$ೆಯ , %ೖಸೂರು ((ಯ ನೂತನ ಕುಲಪ)ಗಳ ಆ-. ಸಂಬಂಧದ
ಪ121-ಯನು# ಸಂಪ3ಣ 4ಾ5 ತ ೆ" ದು, ಯ6ಾ78)ಯನು# 9ಾ:ಾಡ$ಾ5,
ಾಂಕ: 20.12.2022ರಂದು <ೆ=ೕಧ ಾ ಸ>)ಯು ೕ ರುವ ಮೂರು
ವ 2@ಗಳ :ಾ ೆAನ ಲ9ೋBೆಯನು# CೆDೆಯEೇ ಯCಾ¹Ü)ಯ
ಕಡತದ ಸ$ಾ5Eೆ.
82) ಪ1ಸು@ತ ಸದ ಪ1ಕರಣದ ಾನ ಾ ಾಲಯವ ಾಂಕ:
06.03.2023 ರಂದು ೕ ರುವ ಆEೇಶದನGಯ ಮುಂ ನ ಕ1ಮದ ಕು ತು
ಆEೇಶ 9ೋ ಕಡತ ಮಂ 7zÉ."
57. Thus, according to this noting, status-quo was
required to be maintained in respect of the panel of three
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names which was submitted by the Selection Committee
and the same was to be retained in a sealed cover.
58. On the same day i.e., on 22.12.2022, the Special
Secretary to the Chancellor opined that it would be
appropriate to forward the complaint of Prof. Lokanath to
the Personal Secretary to the Minister of Higher Education,
observing that the complaint was of a serious nature and
that a report along with the specific opinion of the Minister
is be obtained. This opinion of the Special Secretary of the
Chancellor was approved by the Chancellor and
accordingly, a letter was addressed to the Personal
Secretary of the Minister of Higher Education seeking a
report along with the specific opinion of the Minister.
59. A noting has been made on 23.01.2023 in the
original file to the following effect:
"1. %ೖಸೂರು (ಶG(Eಾ ಲಯದ ಕುಲಪ)ಗಳ ಹುEೆIJೆ ಅ Eಾರರ
ಒಬLDಾ5ರುವ M1|| ಎO. PÉ. $ೋಕ ಾP ಅವರು 2006-07 ೇ Qಾ ನ
%ೖಸೂರು (ಶG(Eಾ ಲಯದ ೇಮಕJೊಂ ದುI, ಈ ತಂಡದ
- 41 -
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ೇಮಕJೊಂಡ ಅಭ T ಗಳ ೇಮ9ಾ)ಗಳನು# ತ UೆJೆ ಒಳಪ ಸ$ಾ5ದುI,
ಸದ ಪ1ಕರಣದ ಈವDೆಗೂ ಅಂ)ಮ ಆEೇಶ4ಾ5ಲ ರುವ ದು ಈ ಕಡತದ
"ಂ ನ VಪWXಗಳ ಸWಷZ4ಾಗುತ@Eೆ. ಆದI ಂದ M1|| $ೋಕ ಾP ಅವರ
ೇಮ9ಾ)ಯು ಅಕ1ಮ4ೆಂದು ಈ ಹಂತದ ಣ [ಸ$ಾಗದ
(\ಾರ4ಾ5Eೆ.
2. M1|| $ೋಕ ಾP, ಇವರ ^ೊCೆಯ -ೕ ೇಮಕJೊಂಡ M1|| f.
_ೇಮಂತಕು ಾgï ಅವರನು# EzÉÃ (ಶG(Eಾ ಲಯದ ಕುಲಪ)ಗ`ಾ5
ೇ>ಸ$ಾ5ತು@. (ಈಗ ಅವರು ಈ ಹುEೆI[ಂದ ವೃತ@Dಾ5EಾIDೆ. ) CªÀgÀ
ೇಮ9ಾ)ಯ ಈ ಪ1<ೆ#ಗಳನು# ಎತ@Eೇ, M1|| $ೋಕ ಾP ಅವರ ಬJೆb
ಾತ1 ಈ (ಷಯವನು# ಪ1Qಾ@c7ರುವ ದು ಸೂಕ@4ಾಗುವ ಲ.
3. VಪWXಯ "ಂ ನ ಕಂ 9ೆಗಳ ಪ1Qಾ@c7ರುವಂCೆ, <ೆ=ೕಧ ಾ
ಸ>)ಯ ಸದಸ DೊಬLರ ಾ#5 ಾ|| d1ೕ 4ಾಸಕು ಾgï ಅವರನು# ಆ-.
ಾ ರುವ 7ಂ 9ೇ ಸeೆಯ M1|| . 4ೆಂಕBೇfಕು ಾg ಅವರು
_ಾಜ ದುI ಅವರು ¸ÀºÀ ಕುಲಪ)ಗಳ ಹುEೆIJೆ ಒಬLರು. ಅ EಾರDಾ5ರುವ ದು
ಾ ಯಬದi4ಾ5ರುವ ಲ.
4. ಈ ಎ$ಾ ಅಂಶಗಳನೂ# ಪ ಗX7 %ೖಸೂರು (ಶG(Eಾ ಲಯದ
ಕುಲಪ)ಗಳ ಆ-.ಯ <ೆ=ೕಧ ಾ ಸ>)ಯನು# ಪ ನg ರjಸುವ ಅವಶ ಕCೆ
ಇEೆ.
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5. ಈ ಎಲ ಅಂಶಗಳನೂ# ಾನ Dಾಜ :ಾಲರ ಅವJಾಹ ೆJೆ ತಂದು ಸೂಕ@
ಆEೇಶ ಪ ೆಯಲು ಒಂದು ಸk>ಷO ೋ ಅನು ತ ಾ 7
ಮಂ ಸುವ ದು.
6. ಇನು# ಮುಂEೆ 7ಂ 9ೇ ಂದ ಸl ಕ>VJೆ ಾಮ Eೇ ಶನ
ಾಡಲು ನ ೆಯುವ 7ಂ 9ೇ ಸeೆಯ ನ ಸದ ಕುಲಪ)ಗಳ ಹುEೆIJೆ
ಅ ಸ ಸಲು ಉEೆIೕd7ರುವವರು eಾಗವ"ಸvÀPÀÌzÀÝಲ4ೆಂದು ಸWಷZಪ 7,
ಎ$ಾ (ಶG(Eಾ ಲಯಗಳ ಕುಲಪ)ಗnJೆ ಒಂದು ಸುCೊ@ೕ$ೆಯನು#
_ೊರ ಸುವ ದು."
60. As could be seen from the said noting, the Minister
opined that the consideration of the case of Prof. Lokanath
as the Vice Chancellor could be construed as improper in
view of the fact that the report of his appointment,
pursuant to the order of this Court a final decision was still
pending consideration of the Government. The Minister
also noted that one Mr. Hemantha K., who had been
appointed along with Prof. Lokanath and whose
appointment was also subject to the same cloud that the
appointment of Prof. Lokanath faced, but he had already
been appointed as the Vice Chancellor and therefore, the
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exclusion of Prof. Lokanath for consideration of
appointment as the Vice Chancellor was improper.
61. The Minister also opined that the Selection
Committee was required to be reconstituted since one of
the aspirants to the post of Vice Chancellor was a part of
the Committee from the Syndicate which nominated a
person to the Selection Committee. The Minister,
accordingly, sought appropriate orders to be obtained from
the Chancellor.
62. On 06.03.2023, the writ petition filed by Prof. H.
Rajashekar was disposed of in the following terms:
"12. Taking into consideration the aforementioned
aspects on record, I am of the view that the post of
Vice-Chancellor to the University of Mysore is vacant, on
account of retirement of the previous Vice-Chancellor as
per Annexure-R-1 to the writ petition and in that view of
the matter, taking into consideration that the
Notification dated 08.11.2022 as per Annexure-C has to
be given effect to by the respondent-authorities as well
as grievance addressed by the petitioner herein, I am of
the view that the respondent-authorities shall act in
accordance with Section 14 of the act for the purpose of
appointment of vice-Chancellor to the University of
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Mysore, Mysuru. The said exercise shall be completed
within six weeks from the date of receipt of a copy of
this Order.
13. It is made clear that the respondent-authorities
shall appoint Vice-Chancellor to the University of
Mysore, Mysuru, strictly in adherence to the provisions
contemplated under the Karnataka State Universities
Act, 2000, and take further steps in the matter as
mentioned above."
63. As could be seen from this order, this Court did not
grant relief in terms of the prayer of Prof H. Rajashekar for
quashing the remarks in dispute. This Court stated that
the Government is required to act strictly in accordance
with the provisions of Section 14 of the State Act and
while doing so, made an observation that the grievance of
the petitioner was also required to be addressed. This
Court was not ostensibly informed of the fact that a panel
of three names had already been submitted by the
Selection Committee on 20.12.2022, to the State
Government.
64. There are 2 notings in the file prepared on
14.03.2023, which read as follows:
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Noting in Para 81 and 82.
81] ಾನ ಾ ಾಲಯದ ಅ ಸಂ. 25759/2022ರ ಪ ಕರಣದ
ಾ£Àå ಾ ಾಲಯವ ಾಂಕ: 22.12.2022 ರಂದು ೕ ದ ತ ೆ ಾ!ೆ,
" ೆ#$ೆಯ , %ೖಸೂರು ((ಯ ನೂತನ ಕುಲಪ)ಗಳ ಆ-. ಸಂಬಂಧದ
ಪ121-ಯನು# ಸಂಪ3ಣ 4ಾ5 ತ ೆ" ದು, ಯ6ಾ78)ಯನು# 9ಾ:ಾಡ$ಾ5,
ಾಂಕ: 20.12.2022ರಂದು <ೆ=ೕಧ ಾ ಸ>)ಯು ೕ ರುವ ಮೂರು
ವ 2@ಗಳ :ಾ ೆAನ ಲ9ೋBೆಯನು# CೆDೆಯEೇ ಯCಾ¹Ü)ಯ
ಕಡತದ ಸ$ಾ5Eೆ.
82] ಪ1ಸು@ತ ಸದ ಪ1ಕರಣದ ಾನ ಾ ಾಲಯವ ಾಂಕ:
06.03.2023 ರಂದು ೕ ರುವ ಆEೇಶದನGಯ ಮುಂ ನ ಕ1ಮದ ಕು ತು
ಆEೇಶ 9ೋ ಕಡತ ಮಂ 7Eೆ.
Noting in Para 84.
"As per note #79 to 81, following points are observed:
"HHC in its W.P.No.25759/2022 has been disposed
of by instructing that the respondent shall act in
accordance with Section (14) of the Act for the
purpose of appointment of VC to the University
within Six weeks of receipt of copy of said order.
Accordingly the Court has already constituted
Search Committee as per Section (14) of KSU Act.
The Search Committee has already conducted a
meeting and submitted a panel of 3 persons who
are eminent academicians in the alphabetical order.
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Now, as per the SG shall forward the panel to the
Chancellor who shall keeping in view merit, equity
and social justice and with the concurrence of SG,
appoint one person from the panel as the Vice-
Chancellor.
Hence, the panel of names is submitted by the
Search Committee to the Government. The
Government may submit the panel of names to the
Chancellor as per Section (14) of KSU Act.
Submitted for kind consideration and further
orders."
65. As could be seen from this noting, it has been
observed that since the Selection Committee had already
submitted a panel of three names, the same were required
to be forwarded to the Chancellor. However, there is a
noting in this very file by the Minister in the following
terms:
"EzÉà «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¨ÉÃgÉÆAzÀÄ PÀqÀvÀzÀ°è ªÀiÁ£Àå
gÁdå¥Á®gÀÄ FUÁUÀ¯Éà ¤tðAiÀÄ PÉÊUÉÆArgÀĪÀÅzÀjAzÀ CzÀgÀAvÉ PÀæªÄÀ
PÉÊUÉƼÀî®Ä ¸ÀÆa¹ F PÀqÀgÀªÀ£ÄÀ ß »AwgÀÄV¸À¯ÁVzÉ."
66. However, on the following day i.e., on 15.03.2023,
there was another noting of the Minister stating that in
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view of the order passed in W.P.No.25759/2022, the
Selection Committee was required to consider all the
eligible names once again and submit a fresh panel of
three names, at the earliest. The Minister also directed
that the orders of the Chancellor be secured in this regard.
The said noting reads as follows:
"ಕರಡು 4ೇದ ಾ VಪWXಯನು# ಪ dೕ 7Eೆ. ಅದರ
ನಮೂ 7ರುವ W.P.No.25759/2022 ರ ಾ£Àå _ೈ9ೋ ೕ ರುವ
ಸ(ವರ ಆEೇಶವನು# ಪ dೕ 7, 4ೇದ ಾ, VಪWXಯ ಸೂಕ@4ಾ5
Eಾಖ ಸುವ ದು.
%ೕಲIಂಡ ಅ ಯ %ೕ$ೆ ಾನ _ೈ9ೋ ೕ ರುವ )ೕc ನ
ಉ$ೇq7ರುವ ಅಂಶಗಳನು# ಗಮ 7, ಈಗ ರjಸ$ಾ5ರುವ ಸl ಕ>Vಯು,
ಎ$ಾ ಅಹ ಅಭ T ಗಳ ಅ ಗಳನು# ಪ ಗX7 _ೊಸCಾ5 3 ಜನ ಅಭ T ಗಳ
:ಾ ನA ಅನು# 7ದiJೊn7, ಅದನು# dೕಘ14ಾ5 ಸ9ಾ ರ9ೆ. ಸ ಸಲು ಸl
ಕ>VJೆ ಸೂjಸಬಹುEಾ5 ಸ ಾtನ Dಾಜ :ಾಲರ ಅವJಾಹ ೆJೆ ತಂದು ಅವರ
ಆEೇಶ ಪ ೆಯುವ ದು.
%ೕ ನ ಅಂಶಗಳನು# 4ೇದ ಾ VಪWXಯ Qೇ 7 Jೌರ4ಾ Gತ Dಾಜ :ಾಲ Jೆ
ಈ ನ ¸À°è¸À¯ÁVzÉ."
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67. Thus, the Minister, on the basis of his understanding
of the order passed by this Court in W.P.No.25759/2022,
took a view that all the eligible names were required to be
considered afresh and a fresh panel of three names was
required to be submitted to the Chancellor.
68. As noticed above, this Court did not order, expressly
or impliedly, that the Selection Committee was required to
reconsider all the eligible names afresh and a fresh panel
of three names was required to be submitted to the
Chancellor.
69. On 15.03.2023, the Additional Chief Secretary
submitted a note to the Chancellor and in the submission
note, he narrated the opinion of the Minister, and the
Chancellor, on consideration of the opinion of the Minister,
proceeded to agree with the same and directed the State
Government to expressly call for a fresh meeting of the
Selection Committee to recommend a panel of three
names considering all the eligible candidates.
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70. Thus, though a panel of three names had already
submitted to the Government, based on the opinion of the
Minister, the Chancellor directed the State Government to
call for a fresh meeting of the Selection Committee to
recommend a panel of three names by considering all the
eligible candidates.
71. As already narrated above, the legal position under
the State Act was that on the Selection Committee
submitting a panel of three names, the State Government
was bound to forward the same to the Chancellor. Even
under the UGC Regulations, the Search-cum-Selection
Committee was required to furnish a panel of names to the
Chancellor. The Chancellor, both under the State Act as
well as UGC Regulations, was required to appoint one
among the panel of three names as his choice for the post
of Vice Chancellor. As also noticed above, the only
difference between the two was that under the State Act,
he was required to seek concurrence of the Government,
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while under the UGC Regulations, there was no such
requirement.
72. In the instant case, though the Selection Committee
had submitted a panel of three names to the State
Government, the State Government did not forward the
panel of three names to the Chancellor. It was contended
by the State Government that this was because of the
interim order that had been granted in
W.P.No.25759/2022 on 22.12.2022.
73. The State Government, acting upon the letter of the
Chancellor, which was, in turn, an outcome of the
representation submitted by Prof. Lokanath, deviated from
the procedure prescribed under the statute and proceeded
to recommend the calling for a fresh panel of three names,
thereby fundamentally ignoring the first panel of three
names submitted by the Selection Committee.
74. It is to be noticed here that neither under the
provisions of the State Act nor under the UGC Regulations
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is there an express provision which enables the Chancellor
to entertain the representations from the applicants to the
effect that the process adopted by the Selection
Committee was flawed. The Chancellor, by virtue of being
the appointing authority, no doubt, could forward such
representations received to the Selection Committee so as
to ensure that there was no irregularity or illegality in the
process adopted by the Selection Committee. However,
this process could have been adopted before the
submission of the panel of three names.
75. The Chancellor, in my view, deviated from the
statutory procedure prescribed under Section 14 and
sought a report from the Minister since he entertained the
view that the complaint of Prof. Lokanath was of a serious
nature and warranted consideration. He referred the
representation to the Minister of Higher Education on the
assumption that he represented the State Government.
76. The Minister, without noticing the requirement of law
that the panel of three names already submitted to the
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State Government was required to be forwarded to the
Chancellor, also deviated from the statutory process. The
Minister, in fact, gave an opinion that by virtue of the
order passed in W.P.No.25759/2022, the Search
Committee was required to consider all the eligible names
once again and submit a fresh panel of three names. He
also submitted an opinion to the Chancellor stating that
exclusion of Prof. Lokanath from the zone of consideration
was improper and that the very constitution of the
Selection Committee was also improper. In my view, this
opinion of the Minister was totally without jurisdiction.
77. It is to be noticed here that under the statutory
scheme, the role of the Government is rather limited. It is
only required to forward the panel of names submitted by
the Selection Committee to the Chancellor and after the
Chancellor picks one of the names in the panel submitted
to him, it is required to give its concurrence for the choice
of the Chancellor. Apart from these two functions, the
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Government really has no role to play in the manner of
selection of the Vice Chancellor.
78. The entire process essentially got deviated because
of the representation submitted by Prof. Lokanath and by
misunderstanding the order passed by this Court in W.P.
No.25759/2022, the Selection Committee was called upon
to submit a fresh panel of three names. The Selection
Committee, has thereafter, proceeded to furnish afresh
panel, in which, it included the name of Prof. Lokanath
apart from reiterating the other two names i.e., Guru D.S.
and Sharath Ananthmurthy. The Chancellor has,
thereafter, proceeded to appoint Prof. Lokanath as the
Vice Chancellor and a notification to this effect has also
been published. Thus, the process prescribed under the
State Act and the UGC Regulations have not been adhered
to and have vitiated the fresh pnael of three names
submitted by the Search Committee.
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79. It is to be stated here that there is yet another
anomaly in the manner in which the names were
submitted by the Search Committee on both occasions.
80. As already stated above, the UGC Regulations
contemplate that the Search-cum-Selection Committee is
required to give proper weightage to three factors, in
writing, along with the panel of names:
a. the academic excellence;
b. exposure to higher education system in the country
and abroad; and
c. adequate expertise in academic and administrative
governance.
81. However, the Selection Committee, in the instant
case, has not given the weightage of these three factors in
writing as required under the UGC Regulations and it has
merely followed the provisions of the State Act while
furnishing the panel of three names.
82. As already stated above, on a conjoint reading of the
State Act and the UGC Regulations, there was no conflict
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between the procedures prescribed under both statutes,
and admittedly, the Chancellor, the State and the
University were adhering to the requirement under both
statutes. Thus, the Search committee, which was
admittedly following the UGC Regulations, by issuing a
notification and calling for applications, was also required
to give due weightage to the three factors mentioned
above, in writing, to the Chancellor.
83. Obviously, the requirement of giving weightage to
the three factors in writing was to ensure that the
Chancellor would be able to make a relative comparison of
the weightage and make his decision to choose the best of
the three names submitted to him. The Search Committee,
however, has committed a statutory infraction by not
giving proper weightage, in writing, to the three factors
mentioned above, as required under the UGC Regulations.
84. As stated above, the requirement of the statutory
regulation to give weightage to the three factors, in
writing, to the Chancellor, is to enable the Chancellor to
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appoint the most competent person on the basis of the
weightage of the three factors, and therefore, it cannot be
said to be a minor omission or a mere irregularity. Since
the Selection Committee has, admittedly, not given proper
weightage to the factors specified in UGC Regulations in
writing on both the occasions, there is a clear
contravention of the Regulations.
85. Yet another anomaly noticed is that the Chancellor
had not sought the concurrence of the State Government,
as required under Section 14 (4) of the State Act, before
making the appointment. In the instant case, the
Chancellor has appointed Prof. Lokanath with this noting,
which reads as follows:
"Perused the recommendations of the Search Committee.
As per Section 14(4) of Karnataka State Universities Act,
2000, keeping in view merit, equity and social justice and
with the concurrence of the State Government, I appoint
Prof. Loknath N.K., Director, Planning and Monitoring and
Evaluation Board, University of Mysore as vice Chancellor
of University of Mysore, Mysuru. Issue notification
immediately."
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86. On a perusal of the file noting, it is clear that the
Chancellor has not even sought concurrence of the State
Government though the noting states that there was
concurrence of the State Government. The noting in the
file indicates that the Submission Note was submitted by
the Additional Chief Secretary on 15.03.2023 and on
16.03.2023; the Chancellor called for a fresh panel of
three names and on 18.03.2023; and the fresh panel of
three names was submitted by the Search Committee
which was also forwarded by the Additional Chief
Secretary on 18.03.2023.
87. The Chancellor has, thereafter, passed an order on
23.03.2023 appointing Prof. Lokanath and ordered the
issuance of the impugned Notification. There is nothing in
the file which indicates that the Chancellor had obtained
the concurrence of the Government after he took a
decision to appoint Prof. Lokanath on 23.03.2023. Since
the Chancellor has not sought concurrence, which is a
mandatory statutory requirement, the decision of his in
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appointing Prof. Lokanath as the Vice Chancellor would
also be in contravention of the statutory provisions.
88. It is no doubt true that the State Government has
not opposed the choice of the Chancellor and it has
proceeded to accept the same. However, since the
statutory provision requires the obtaining of concurrence
before appointing the Vice Chancellor, the procedure
adopted by the Chancellor would be a clear transgression
of the statutory provision.
89. As far as the argument advanced by the Learned
Senior Counsel regarding the ineligibility and the
undesirability of the candidature of Prof. Lokanath is
concerned, the same is untenable for the following
reasons.
90. The first argument was that Prof. Lokanath had
suppressed the fact that his appointment in the University
was tainted since the same was subject to litigation, and
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that on this ground, he would be disentitled from his
candidature being considered.
91. It is not in dispute that the appointment of Prof.
Lokanath and several other candidates who had been
selected were annulled by the Syndicate and it was not
that it was the appointment of Prof. Lokanath alone had
been questioned. It is also not in dispute that Prof.
Lokanath had challenged the annulment of his selection
along with several other candidates, and this Court had set
aside the said annulment. Thus, this Court, basically had
taken the view that the annulment of the selection by the
Syndicate was illegal and could not be sustained. If the
decision of the Syndicate was held to be illegal, it cannot
be argued that the selection of Prof. Lokanath was tainted.
The argument that Prof. Lokanath would be an undesirable
candidate since his selection was tainted, would be
available to the petitioners if there was a specific charge
that he did not possess the necessary qualifications or that
he had secured the appointment by unfair means. If the
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selection of the entire batch of selected candidates was
held to be illegal, it cannot be contended that the
appointment of Prof. Lokanath was tainted.
92. It is also to be noticed here that Prof. Lokanath was
appointed in 2007 and on the basis of certain allegations
in respect of the selections made during the period 2006-
07, an enquiry had been ordered by the Chancellor and on
the basis of a report received in that regard, the
Chancellor had ordered action to be taken, and as a
consequence, the Government had passed an order
annulling the Syndicate proceedings, resulting in all the
appointments being annulled. Prof. Lokanath along with 70
other persons whose appointments were also annulled had
approached this Court in W.P. Nos. 29220/2014 and
29402-29471/2014, and this Court had allowed the said
writ petitions, as a result of which the appointments were
restored. While allowing the writ petitions, this Court
reserved liberty to the State to proceed afresh against all
the appointees after hearing them. Admittedly, despite
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this liberty bring reserved, the Government has chosen to
take no action though more 5 years have elapsed since
the order was passed by this Court. In fact, learned Senior
Counsel pointed out that even as per the Committee
report on the basis of which the selections were annulled,
the selection of Prof. Lokanath was held to be proper.
93. It is no doubt true that there was an omission on the
part of Prof. Lokanath when he stated, in his application,
that there was no litigation in which he was involved in the
past 10 years, though he had filed the writ petition
challenging the annulment of his selection. In my view,
this omission on his part, though an omission, cannot be
treated as suppression of a material fact since the
University, to which he had applied for being appointed as
the Vice Chancellor, was aware of the litigation and there
was, therefore, no question of really hiding this fact.
94. In this regard, the decision of the Apex Court in
Avtar Singh (supra), in which it is stated as follows,
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would be aptly applicable to conclude that the omission on
the part of Prof. Lokanath was not very relevant:
"36. What yardstick is to be applied has to depend
upon the nature of post, higher post would involve
more rigorous criteria for all services, not only to
uniformed service. For lower posts which are not
sensitive, nature of duties, impact of suppression on
suitability has to be considered by authorities
concerned considering post/nature of duties/services
and power has to be exercised on due consideration
of various aspects.
37. The "McCarthyism" is antithesis to constitutional
goal, chance of reformation has to be afforded to
young offenders in suitable cases, interplay of
reformative theory cannot be ruled out in to nor can
be generally applied but is one of the factors to be
taken into consideration while exercising the power
for cancelling candidature or discharging an
employee from service.
38. We have noticed various decisions and tried to
explain and reconcile them as far as possible. In view
of the aforesaid discussion, we summarise our
conclusion thus:
38.1. Information given to the employer by a
candidate as to conviction, acquittal or arrest, or
pendency of a criminal case, whether before or after
entering into service must be true and there should
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be no suppression or false mention of required
information.
38.2. While passing order of termination of services
or cancellation of candidature for giving false
information, the employer may take notice of special
circumstances of the case, if any, while giving such
information.
38.3. The employer shall take into consideration the
government orders/instructions/rules, applicable to
the employee, at the time of taking the decision.
38.4. In case there is suppression or false
information of involvement in a criminal case where
conviction or acquittal had already been recorded
before filling of the application/verification form and
such fact later comes to knowledge of employer, any
of the following recourses appropriate to the case
may be adopted:
38.4.1. In a case trivial in nature in which conviction
had been recorded, such as shouting slogans at
young age or for a petty offence which if disclosed
would not have rendered an incumbent unfit for post
in question, the employer may, in its discretion,
ignore such suppression of fact or false information
by condoning the lapse.
38.4.2. Where conviction has been recorded in case
which is not trivial in nature, employer may cancel
candidature or terminate services of the employee.
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38.4.3. If acquittal had already been recorded in a
case involving moral turpitude or offence of
heinous/serious nature, on technical ground and it is
not a case of clean acquittal, or benefit of reasonable
doubt has been given, the employer may consider all
relevant facts available as to antecedents, and may
take appropriate decision as to the continuance of
the employee.
36. What yardstick is to be applied has to depend
upon the nature of post, higher post would involve
more rigorous criteria for all services, not only to
uniformed service. For lower posts which are not
sensitive, nature of duties, impact of suppression on
suitability has to be considered by authorities
concerned considering post/nature of duties/services
and power has to be exercised on due consideration
of various aspects.
37. The "McCarthyism" is antithesis to constitutional
goal, chance of reformation has to be afforded to
young offenders in suitable cases, interplay of
reformative theory cannot be ruled out in to nor can
be generally applied but is one of the factors to be
taken into consideration while exercising the power
for cancelling candidature or discharging an
employee from service.
38. We have noticed various decisions and tried to
explain and reconcile them as far as possible. In view
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of the aforesaid discussion, we summarise our
conclusion thus:
38.1. Information given to the employer by a
candidate as to conviction, acquittal or arrest, or
pendency of a criminal case, whether before or after
entering into service must be true and there should
be no suppression or false mention of required
information.
38.2. While passing order of termination of services
or cancellation of candidature for giving false
information, the employer may take notice of special
circumstances of the case, if any, while giving such
information.
38.3. The employer shall take into consideration the
government orders/instructions/rules, applicable to
the employee, at the time of taking the decision.
38.4. In case there is suppression or false
information of involvement in a criminal case where
conviction or acquittal had already been recorded
before filling of the application/verification form and
such fact later comes to knowledge of employer, any
of the following recourses appropriate to the case
may be adopted:
38.4.1. In a case trivial in nature in which conviction
had been recorded, such as shouting slogans at
young age or for a petty offence which if disclosed
would not have rendered an incumbent unfit for post
in question, the employer may, in its discretion,
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ignore such suppression of fact or false information
by condoning the lapse.
38.4.2. Where conviction has been recorded in case
which is not trivial in nature, employer may cancel
candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a
case involving moral turpitude or offence of
heinous/serious nature, on technical ground and it is
not a case of clean acquittal, or benefit of reasonable
doubt has been given, the employer may consider all
relevant facts available as to antecedents, and may
take appropriate decision as to the continuance of
the employee."
95. The second argument advanced was that there was a
criminal case registered against Prof. Lokanath and that he
had suppressed the same, is also untenable for the
following reason.
96. On 01.02.2020, a complaint was lodged by one M.
Shashidhar D.V. contending that he was the owner of a
site and in the row of sites where his site was situated, the
adjoining site holders had all collectively encroached on
each other's site, as a result of which the complainant's
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site in the middle of the row of sites had been diminished.
The complaint was against more than 20 people and Prof.
Lokanath was arrayed as Accused No. 5. It is to be stated
here that the knowledge of the registration of an FIR
cannot be assumed or attributed to Prof. Lokanath when,
admittedly, he had not been summoned by the Police or
by the Court. Thus, the question of Prof. Lokanath
suppressing the registration of the FIR would clearly be
untenable.
97. It may also be pertinent to state here that
immediately after becoming aware of the FIR, Prof.
Lokanath had challenged the registration of the FIR by
filing a Criminal petition bearing Crl.P. No.11327/2022 and
this Court not only granted him an interim order on
29.11.2022, but it also proceeded to ultimately quash the
FIR registered against him and this has also attained
finality. Thus, in respect of a complaint of an alleged
encroachment by the adjoining site holder, not only
against Prof. Lokanath but also against 20 others, it
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cannot be contended that he had criminal antecedents
which made his candidature unfit for consideration.
98. The fact that he disclosed these developments in his
representation to the Chancellor and the further fact that
the Search Committee, along with the Chancellor,
proceeded to accept his grievance on his exclusion from
the zone of consideration on these grounds, which had no
bearing to his academic eligibility or expertise, is clear
proof of the fact that the allegations attributed by the
petitioners on Prof. Lokanath cannot be accepted and his
candidature was required to be considered.
E. CONCLUSION:
99. In view of the discussion above, it will have to be
held that the appointment of Prof. Lokanath as the Vice
Chancellor is in contravention of the UGC Regulations as
well as the State Act and the same cannot, therefore, be
sustained and is, accordingly, quashed.
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100. The matter, however, would not rest with the
quashing of the above appointment and having regard to
the anomalies noticed, it is imperative that further orders
in the manner of appointing the Vice Chancellor afresh
would have to be passed.
101. In view of the finding that the first panel of three
names submitted by the Search Committee on
20.12.2022, so also the second panel of three names
submitted by the Search Committee on 18.03.2023 did not
comply with the requirement of giving weightage of the
three factors in writing, both panels of three names cannot
be held to be valid. Consequently, the recommendation of
the Search Committee of both panels of names would
have to be quashed.
102. It is no doubt true that the first panel of three names
prepared by the Search Committee on 20.12.2022 is not
the subject matter of challenge in these petitions but
having noticed the glaring illegality in not giving due
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weightage to the three factors in writing, this Court is
compelled to pass this order to set right the illegality.
103. It would also be necessary to make it clear that for
the reasons stated above, the allegations made against
the suitability of Prof. Lokanath to be considered for
appointment as Vice Chancellor are untenable and deserve
to be rejected. Consequently, his candidature would have
to be considered afresh by the Search Committee on
merits without reference to the litigation relating to his
recruitment and the FIR that had been registered against
him.
104. As a result of the above,
a. The State Government shall now proceed to direct
the Search Committee to undertake the exercise of
furnishing a fresh panel of three names. It would
be open for the State Government to reconstitute
the Search Committee if the earlier members of the
Search Committee are unavailable.
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b. The Search Committee shall consider the
applications of all the eligible candidates afresh,
including that of Prof. Lokanath and give due
weightage of the three factors stipulated in Clause
7.3 of the UGC Regulations, in writing, and forward
the same to the Government.
c. The State Government shall, thereafter, forward
the panel of three names that would be submitted
by the Search Committee to the Chancellor.
d. The Chancellor, on receipt of the same, shall
proceed to pick one of the three candidates from
the fresh panel of names forwarded to him, obtain
the concurrence of the State Government, and
thereafter, appoint his nominee as the Vice
Chancellor.
e. If the Chancellor is of the view that a second panel
of names is required to be called for, it would be
open for him to seek concurrence of the State
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Government and call for a second panel of three
names as provided under the State Act. In such an
event, the Search Committee shall follow the same
procedure as indicated above.
f. It will be open for the Chancellor to pass
appropriate orders regarding making in-charge
arrangements for this existing vacancy of the
Vice-Chancellor.
105. The Writ Petitions are, accordingly, allowed subject
to the above directions.
Sd/-
JUDGE
PKS,
