Karnataka High Court
Dr Shankaranaranappa vs The State Of Karnataka on 12 September, 2023
Bench: N S Gowda
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WP No. 52225 of 2019
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WP No. 52328 of 2019
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. 52225 OF 2019
C/W
WRIT PETITION NO. 52302 OF 2019,
WRIT PETITION NO. 52325 OF 2019,
WRIT PETITION NO. 52328 OF 2019 (S-RES)
IN W.P.No.52225/2019
BETWEEN:
DR.THEJASVI NAVILOOR,
S/O K.MAYIGOWDA,
AGED ABOUT 50 YEARS,
ASSOCIATE PROFESSOR,
DEPARTMENT OF JOURNALISM &
MASS COMMUNICATION,
Digitally KARNATAKA STATE OPEN UNIVERSITY,
signed by
PANKAJA S MUKTHAGANGOTHRI, MYSURU-570 006.
Location: ...PETITIONER
HIGH
COURT OF
KARNATAKA (DR. THEJASVI NAVILOOR, PETITIONER - PARTY IN PERSON)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT,
M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE REGISTRAR,
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KARNATAKA STATE OPEN UNIVERSITY,
MUKTHAGANGOTHRI,
MYSURU-570 006.
3. THE ACCOUNTANT GENERAL
IN KARNATAKA ( G & SSA),
POST BOX No.5329, AUDIT BHAVAN,
PARK HOUSE ROAD,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI.VIKRAM HUILGOL, ADDITIONAL ADVOCATE GENERAL
ALONG WITH SMT.PRATHIBHA.R.K., AGA FOR R-1 & R-3;
SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE R-1 DATED:17.10.2019,
VIDE ANNEXURE-A, ETC.
IN W.P.No.52302/2019:
BETWEEN:
DR.SHANKARANARANAPPA,
S/O RANGASWAMY,
AGED ABOUT 53 YEARS,
ASSOCIATE PROFESSOR,
DEPARTMENT OF POLITICAL STUDIES,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
...PETITIONER
(BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI.VINAYAKA.B., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT,
M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
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BANGALORE-560 001.
2. THE REGISTRAR,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
3. THE ACCOUNTANT GENERAL
IN KARNATAKA (G & SSA),
POST BOX No.5329, AUDIT BHAVAN,
PARK HOUSE ROAD,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI. VIKRAM HUILGOL, ADDITIONAL ADVOCATE GENERAL,
ALONG WITH SMT.PRATHIBHA.R.K, AGA FOR R-1 & R-3;
SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE R-1 DATED 17.10.2019
VIDE ANNEXURE-A, ETC.
IN W.P.No.52325/2019:
BETWEEN:
DR.M.S. RAMANANDA,
S/O MR.N.K.SUBBAIAH GOWDA,
AGED ABOUT 53 YEARS,
ASSOCIATE PROFESSOR,
DEPARTMENT OF STUDIES IN ECONOMICS,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
...PETITIONER
(BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI.B.VINAYAKA, ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT,
M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE REGISTRAR,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
3. THE ACCOUNTANT GENERAL
IN KARNATAKA (G &SSA),
POST BOX No.5329,
AUDIT BHAVAN, PARK HOUSE ROAD,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI.VIKRAM HUILGOL, ADDITIONAL ADVOCATE GENERAL
ALONG WITH SMT.PRATHIBHA.R.K, AGA FOR R-1 & R-2;
SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE R-1 DATED 17.10.2019
VIDE ANNEXURE-A, ETC.
IN W.P.No.52328/2019:
BETWEEN:
DR.K.PRAKASH, S/O SRI.K.BASAVANYAPPA,
AGE:51 YEARS, LIBRARIAN,
DEPARTMENT OF LIBRARY,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
...PETITIONER
(BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI.VINAYAKA.B., ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT,
M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001.
2. THE REGISTRAR,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHA GANGOTHRI,
MYSURU-570 006.
3. THE ACCOUNTANT GENERAL
IN KARNATAKA (G & SSA),
POST BOX No.5329,
AUDIT BHAVAN,
PARK HOUSE ROAD, BANGALORE-560 001.
...RESPONDENTS
(BY SRI. VIKRAM HUILGOL, ADDITIONAL ADVOCATE GENERAL
ALONG WITH SMT.PRATHIBHA.R.K, AGA FOR R-1 & R-3;
SRI.T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER PASSED BY THE R-1 DATED 17.10.2019
VIDE ANNEXURE-A, ETC.
THESE PETITIONS, HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 22.06.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
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ORDER
1. A direction issued by the Principal Secretary,
Government of Karnataka, Department of Higher
Education, to the Karnataka State Open University (for
brevity, referred to as "the University") to annul the
appointments made, and the consequential Show-cause
Notices issued by the University, are called in question in
the present writ petitions.
2. On 19.03.2012, the University issued a Notification
inviting applications for the posts of Associate Professor for
various subjects, which also prescribed the requisite
qualifications.
3. The petitioners in W.P.Nos.52325/2014,
522225/2019 and 52302/2019 had applied for the posts of
Associate Professors in the subjects of Economics, Mass
Communication and Political Science, respectively, while
the petitioner in W.P.No.52328/2019 had applied for the
post of a Librarian.
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4. On 03.11.2012, there was a re-advertisement of said
Notification in respect of the very same posts.
5. The authorities, after conducting an interview,
proceeded to select eligible candidates and issued Orders
of Appointment on 10.12.2012.
6. After 2 years of service, the University declared
successful completion of the probationary period of the
petitioners, who had been appointed in 2012, under the
relevant statutes and the petitioners have been working
ever since.
7. In the year 2017, a one-man Committee was
constituted by the Chancellor and Dr. Justice
Bhakthavatsala was appointed to inquire into the
allegations against the University in respect of
selection/appointment of Teachers and Librarians. One of
the subjects that Dr. Justice Bhakthavatsala inquired into
was the appointment of Associate Professors/Assistant
Professors and Librarians.
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8. Dr. Justice Bhakthavatsala, in his Report (insofar as
it related to the above-mentioned posts), concluded that
there was no merit in the allegations that the University
had not followed the reservation policy, statutes and
relevant rules. The relevant extract in Page 555 of said
Report is as reproduced hereunder:
"In so far as selection of the 5 Associate
Professors, 41 Assistant Professors and 1 Librarian is
concerned, I see no merit in the allegations and the
University has followed the Reservation Policy and
the Statute/Rules."
9. It appears that audit was initiated by the Comptroller
and Auditor General (for brevity, referred to as "the
CAG") for the year ending on 31.03.2017, for submission
of a report to the Governor under Article 151(2) of the
Constitution of India for its tabling.
10. In the process of this audit, on 23.05.2017, the
Senior Audit Officer addressed a communication to the
University which contained certain observations made in
its audit report regarding appointment and extension of
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pay scales to the teaching staffs. In response to the said
communication, the University submitted a compliance
report along with the relevant records.
11. In relation to the appointment of Associate
Professors and Librarians, the observations and the
remarks made were as follows:
Sl. Audit Observation Details given
No. Para
No.
*** *** *** ***
5 46 Subject Appointment of
Associate professor (5)
• Experts recorded the API points in the
The minimum qualifications
applications itself. (Copies enclosed as
required for the post of Annexure:10 to 14)
Assistant professors, Associate
Professors, Professors, Sl. Selected Minimum API
No. Candidates API Score Scored
principals, Assistant Directors of prescribed
Physical Education and Sports. as per the
1 Dr.Mahadeva Murthy 300 579
Deputy Directors of Physical 2. Dr. Kavitha Rai 300 314
3. Dr.M.S.Ramananda 300 217.5
Education and Sports, Directors 4. Dr.TejasviNaviloor 300 0
of Physical Education and 5. Dr.Shankara 300 0
Narayanappa
Sports, Assistant Librarians,
Deputy librarians, Librarians will • No other details/remarks are available
be those as prescribed by the in the application as well as in the BOA
UGC in these Regulations. proceedings
• No remarks made by the BOA
regarding weightage/exemption in
As per APPENDIX-III TABLE-II© their respective proceedings during the
Interview.
Minimum Scores for APIS for
direct recruitment of teachers in • Guest Lecture service cannot be
equated on par with regular Associate
university departments/ Professor
Colleges Libertarian/Physical
Education cadres in • The Expert committee (BOA) relating
to selection of candidate for Associate
Universities/ Colleges, and
Professor for management not
weightages in Selection recorded anything relating to the
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Committees to be considered equivalence of Commerce &
along with other specified management in its meeting held on
01.11.2012. Copy enclosed as
eligibility qualifications Annexure-15
stipulated in the Regulation, is
detailed below. • Whereas, UGC clarified regarding the
query about-"What does relevant
subject mean by provision in para 4.4
1. Audit noticed that out of five when recruiting a candidate for
candidates who were commerce subject, does a candidate
selected for Associate having done MBA (Management
Subject) Become relevant subject for
professor post, only two
Commerce? For the said query UGC
persons go more API marks clarified through its clarification
than minimum prescribed No.F.17-6/2013(PS/Misc)September
300 API score and two got 2015 is as follows-"The relevance of
subject of inter disciplinary nature of
zero and one got 217.5 subject is required to be decided by
the concerned University/Appointing
2. It may be clarified as to Authority with the help of subject
whether the candidate could experts in the concerned/related field
as per its requirement UGC regulations
be interviewed if he gets less 2010 defines the same" (Copy
API marks than prescribed enclosed as Annexure-16)
minimum score limit of 300
marks. In case any
exemption is provided, it
may be stated to what
extent minimum marks could
be revised as per UGC
regulations to enable the
candidate to attend the
interviews.
3. It is also observed that these
candidates were worked as
only either as Guest
lecturers or part time
lecturers and in that
scenario, teaching
experience of 8 years
Assistant professors was not
fulfilled. In this connection, it
may state whether services
of Guest Lecturers could be
equated with regular
Assistant professors teaching
on regular basis appointed
through. All India
Advertisement.
4. Further, in respect of
Dr.C.Mahadeva Murthy who
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is working as Associate
Professor in Management
subject had done M.com
(PG) and Ph.D in Commerce
subject. Though he
possessed MBA (2010).
PGDHRM (May 2006) and
PGDMM (October 2006), he
did not possess Ph.D in
Management.
5. In this connection it may be
clarified whether Ph.D in
Commerce was enough to
considered as equivalent for
Ph.D in Management when
fulfilling criteria of Ph.D in
relevant subject for the post
of associate professor and in
case both are same,
documentary evidence for
proof indicating Ph.D in
Commerce is equivalent of
Ph.D in Management may be
furnished (preferably
UGC/AICTE clarification for
further necessary action)
6 50. Subject: Direct recruitment of • The audit observation & noting will
Librarian be placed before Board of
Management (BOM). Based on the
UGC regulations for direct decision of the BOM, appropriate
recruitment of Librarian were action will be initiated.
not followed. Total salary drawn
by the employee was Rs.65.38
lakh (Approximately from
December 2012 to June 2017.).
Besides application for
appointment was also not
routed through proper channel
as per clause mentioned in
Notification
*** *** *** ***
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12. It appears that the University received one more
communication dated 04.09.2017 and once again, in
response to this communication, the University submitted,
on 29.01.2018, in relation to the observation made in
paragraph 82 of the audit report (which was in respect of
appointment and extension of pay scales to the teaching
staffs), as follows:
"No:KSOU/AB/Est-1/578/2017-18/C.No.1964 Date:29.01.2018
To,
The Accountant General in Karnataka (G & SSA)
Bengaluru-560 001
Respected Sir,
Sub: Submission of
compliance report to the observations
made in the Audit Report regarding "Appointment &
Extension of pay scales to teaching staff-reg.
Reg: (1) Assistant Audit Officer/Review Party's - Audit
Paras:79, 80, 81 & 82 dated 04.09.2017.
(2)This of letter of even number dated:18.08.2017
****
With reference to the above subject and reference
cited above, the University is submitting herewith a compliance report
as to the observations made in the audit report. The compliance report
is enclosed to this letter as Annexure-1. The details are as under:
1) Audit Para -79 : Factual position is furnished
2) Audit Para -80 : Factual position is furnished.
3) Audit Para -81 : The information sought is furnished in
Annexure 'A' & 'B'
4) Audit Para -82 : Available information is furnished in
Annexure 'C'.
Your attention is invited to this officer letter
No.KSOU/AB/Est-1/578/2017-18, dated 18.08.2017, wherein, the
University has furnished its compliance. The audit team which
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visited the University had an interaction with five Associate
Professors relating to their recruitment. The candidates have
furnished their defenses which have been enclosed along with the
compliance report in the form of Annexures. The audit has observed
that, as per UGC Regulations-2010, the minimum API score
required for selection of Associate Professor is 300. The audit
further observed that, a few candidates were given zero API score
have also been selected. It is hereby clarified that, there were two
advertisements, one in the month of March and another one in the
month of November 2012. The candidates who were applied in
response to the March notification need not apply. However, they
may update their academic achievements.
The API score is required to be awarded as per UGC
Regulations-2010. There are API scores for teaching experience,
research projects, research guidance, NSS, NCC,Co-curricular
activities and other various headings. In case, the API assessment
is made objectively, there cannot be a zero API score. Before taking
any decision in the matter, an objective assessment of API score is
absolutely necessary.
In the background explained above, a pragmatic view may be
taken before proceeding further in the manner."
13. The University also submitted an explanation along
with the requisite documents to the Chief Secretary for his
consideration in the meeting which was to be held on
28.08.2018. The said communication contained tabular
columns in respect of observations of the auditors,
response of the department and the endorsements, which
reads as follows:
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"¸ÁªÀðd¤PÀ ¯ÉPÀÌ ¥ÀvÀæUÀ¼À ¸À«ÄwAiÀÄ DªÀÄvÀjPÀ PÁAiÀÄð¤ªÀðºÀuÁ ¤AiÀĪÀiÁªÀ½AiÀÄ 5 (©)
¤AiÀĪÀÄ ªÉÄÃgÉUÉ ¤AiÀīĸÀ¯ÁzÀ ªÀiÁzÀj ¥Àæ¥ÀvÀæ:
E¯ÁSÉAiÀÄ ºÉ¸ÀgÀÄ : ²ÃPÀët E¯ÁSÉ (PÀ£ÁðlPÀgÁdå ªÀÄÄPÀÛ «±Àé«zÁ央AiÀÄ, ªÀÄÄPÀÛUÀAUÉÆÃwæ,
ªÉÄʸÀÆgÀÄ-570 006.
PÀæ.¸À ¢£ÁAPÀ:31.0 ¯ÉPÀÌ ¥Àj±ÉÆÃzsÀ£Á nÃPÉ. E¯ÁSÉ n¥Ààt µÀgÁ
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*** *** *** *** ***
1 44 The Karnataka State • University administration took The issue is pending
open University, a decision to regularize the before the Hon'ble
(4.1.3.1) Mysuru regularized services of temporary guest Governor's office and
(May 2013)22 faculties based on the sub it is also placed in the
temporary lecturers Committee which was 151st BOM (appointing
and appointed then as constituted by the Vice authority). Meeting
Assistant Professors Chancellor to consider the will be held' shortly
directly without issue of regularization of and suitable action will
following the due Temporary Teachers working be initiated based on
procedures of calling in the university the decision of the
for all India • The sub-committee met on BOM.
advertisement and 26.12.2012 for framing the
constitution of Draft Statute.
selection committee. • Draft Statute was considered
We also observed that & approved by the BOM at its
18 of these 22 meeting held 28.01.2013.
temporary lecturers • This statute was duly
did not even possess assented by His Excellency,
the minimum required the Chancellor on 06.05.2013.
qualifications for the • Based on this approved
post statute, the appointment
orders were issued on
10.05.2013 by putting
condition that-should pass
NET/SLET or Ph.D with course
work within a outer limit of 5
years, in case they have not
passed the said examination.
If failed to pass the said
examination within 5 years,
the university shall reserve
the right to review this
regularization order.
The audit observation & noting
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will be placed before Board of
Management (BOM). Based on
the decision of the BOM,
appropriate action will be
initiated.
2 46 Appointment of • The university has
(4.1.3.2 a) underqualifed and • Experts recorded the API points notified for
ineligible candidates. in the applications itself. recruitment of
teaching posts on
Selected Minimum API
(a)Appointment SL. Candidates API Score Scored 19.03.2012.
without obtaining No. prescribe • Due to legal issues,
minimum Academic d as per the recruitment was
the
Performance 1 Dr.Mahadeva 300 579
delayed for more
Indicator (API) score: Murthy than six months.
2. Dr. Kavitha Rai 300 314
• As per the clause
3. Dr.M.S.Ramananda 300 217.5
UGC prescribes the 4. Dr.TejasviNaviloor 300 0 S.3 of statue
minimum score of 5. Dr.Shankara 300 0 No:XXXVIII of the
Narayanappa
300 points as API for university,
direct recruitment of interviews are to be
• No other details/remarks are
Associate Professor in available in the application as held within six
Universities and well as in the BOA proceedings months.
Colleges. However, • Hence there was a
during appointment • No remarks made by the BOA Re-Advertisement
(December 2012) of regarding weightage/exemption on 03.11.2012.
five Associate in their respective proceedings • Meanwhile, those
Professors in during the Interview. who applied for first
Karnataka State notification their API
• Guest Lecture service cannot be
Open University, equated on par with regular scores were
three candidates Associate Professor evaluated in the
were shortlisted for month of September
interviews and • The Expert committee (BOA) 2012 (i.e., before
eventually selected relating re-advertisement)
despite not having to selection of candidate for and candidates have
the minimum score of Associate Professor for claimed that their
Management not recorded
300 points. API scores exceeds
anything relating to the
equivalence of Commerce & 300 and submitted
(d) The KSOU called Management in its meeting held their documents for
(March/November on 01.11.2012. audit purpose.
2012) applications for • It is requested the
five posts of • Whereas, UGC clarified regarding documents can be
Associate Professor, the query about-"What does re visited for
which were filled relevant subject mean by confirmation.
provision in para 4.4 when
during November-
recruiting a candidate for
December 2012. commerce subject, does a
However, two out of candidate having done MBA
five candidates (Management Subject) Become
selected did not relevant subject for
possess the required Commerce?For the said query
minimum eight years UGC clarified through its
of teaching clarification No.F.17-
6/2013(PS/Misc)September 2015
experience for
is as follows-"The revelance of
appointment as subject of inter disciplinary
Associate Professor. nature of subject is required to
UGC Regulations, be decided by the concerned
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2009, specified that University/Appointing Authority
only previous regular with the help of subject experts
service, which was in in the concerned/related field as
per its requirement UGC
an equivalent grade
regulations 2010 defines the
could be counted for same"
past service and its
clarification (January
2003 and June 2010)
in this regard stated
that experience as
part-time/guest
lecturer and
temporary lectures
were nit to be
counted for teaching
experience. However,
the university
disregarded the
above stipulation and
counted the period of
part-time/guest
lecturer and
temporary lecturer
for teaching
experience.
3 50 The KSOU also called • The audit observation & • Issue has been
applications for one noting will be placed before Board placed before 147th
(4.1.3.2 d) post of University of Management (BOM). Based on BOM meeting for
the decision of the BOM,
Librarian and stated discussion &
appropriate action will be initiated,
requirement of decision Board has
minimum 10 years resolved that to take
experience in a suitable action asper
University, in UGC guidelines.
contravention to UGC • Based on the board
norms of 13 years as decision clarification
Deputy Librarian in has sought from the
University or 18 years Librarian on
as college Librarian. 14.12.2017.
However, the
applicant who was • He has submitted
finally appointed to the details with
the post had only five documents on
years & eight months 30.12.2017.
of experience, which
was even lesser than • The candidate so
the 10 years appointed to the
stipulated by post of Librarian
University. Thus, the (Dr.K.Prakash),
appointment was in claimed that he has
violation of UGC required experience,
norms and was and submitted
irregular. documents can be
further revisited.
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14. Pursuant to the same, the Additional Chief Secretary,
Department of Education (Higher Education) appears to
have addressed a communication seeking answers for the
observations made by the CAG for the audit conducted by
them for the year ending March, 2017, with relevance to
clauses 4.1.3.1, 4.1.3.2A and 4.1.3.2D. The University
responded to the said communication vide communication
dated 04.05.2019 and a preparatory meeting was
conducted on 16.10.2019 to the Public Accounts
Committee meeting which was to be held on 22.10.2019.
In this preparatory meeting held on 16.10.2019, which
was chaired by the Chief Secretary to the Government,
taking note of the observations made by the CAG,
proceeded to issue directions by the letter dated
17.10.2019 which are impugned in these writ petitions. On
the basis of this letter dated 17.10.2019, Show-cause
Notices were issued to the petitioners, which are also the
subject matter of these writ petitions.
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15. It is, therefore, clear that only on the basis of the
observations of the auditors in the preparatory meeting
preceding the Public Accounts Meeting, was it suggested to
the University by the Government to annul the
appointments, and accordingly, the impugned Show-cause
Notices have been issued.
16. The principal question, which, therefore, emerges in
these writ petitions is:
Whether the appointments of the petitioners
could be annulled on the basis of the
observations made by the CAG?
17. In order to answer this question, it is necessary to
examine the provisions of the Karnataka State Open
University Act, 1992(for brevity, referred to as "the Act").
18. Section 8 of the Act states that the Governor shall be
the Chancellor of the University and that he would have
the right to cause an inspection to be made in respect of
University along with examination and other work
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conducted or done by the University, and he would also
have the right to cause an inquiry to be made in respect of
any matters connected with the administration and finance
of the University. The Chancellor is also empowered to
issue any order, in writing, to annul any proceedings of the
University which is not in conformity with the Act, the
relevant statutes or the Ordinances.
19. Section 26 of the Act mandates that the annual
report of the University should be prepared under the
directions of the Board of Management and this annual
report is required to be submitted to the Chancellor with a
copy of the same also being forwarded to the State
Government, which was required to place the said report
before both Houses of the Legislature.
20. Section 27 of the Act stipulates that the annual
accounts and balance sheets of the University should be
prepared under the directions of the Board of Management
and should, once at least every year and at the intervals
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of not more than fifteen months, be audited by the
Controller of State Accounts or such person as may be
authorized in this behalf. The copy of the accounts
together with the audit report should, thereafter, be
submitted to the Chancellor along with observations.
21. Sub-section (3) of Section 27 of the Act states that
any observations made by the Chancellor on the annual
accounts should be brought to the notice of the Board of
Management, and the views of the Board of Management
along with any observations made by them, should be
submitted to the Chancellor.
22. Sub-section (4) of Section 27 of the Act stipulates
that a copy of the accounts together with the audit report
as submitted to the Chancellor should also be submitted to
the State Government, which should cause the same to be
laid before both Houses of the Legislature and ultimately,
it is stated that the audited annual accounts, after having
been laid before both Houses of the Legislature, should be
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published in the Official Gazette. Thus, the statute
prescribes a specific method by which the annual accounts
of the University should be prepared and submitted for
auditing by the Controller of State Accounts.
23. The Parliament has enacted the Comptroller and
Auditor General's (Duties, Powers and Conditions of
Service) Act, 1971 (for brevity, referred to as "the 1971
Act") for determining the conditions of service of the CAG
and also to prescribe his duties and powers and for
matters connected therewith.
24. Chapter - III of the 1971 Act specifies the duties and
powers of the CAG.
25. Section 10 of the 1971 Act mandates that the CAG is
required to compile the accounts of the Union and the
States, and Section 11 of the said Act envisages that the
CAG should prepare and submit accounts to the President
or the Governor of a State or Administrator of the Union
Territory having a Legislative Assembly.
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26. Section 12 of the 1971 Act requires the CAG to give
information and render assistance to the Union and also to
the States.
27. Section 13 of the 1971 Act states the general
provisions relating to audit and the same reads as follows:
"13. It shall be the duty of the Comptroller and Auditor-
General-
(a) to audit all expenditure from the Consolidated Fund of
India and of each State and of each Union Territory
having a Legislative Assembly and to ascertain
whether the moneys shown in the accounts as having
been disbursed were legally available for and
applicable to service or purpose to which they have
been applied or changed and whether the expenditure
conforms to the authority which governs it;
(b) to audit all transactions of the Union and of the States
relating to the Contingency Funds and Public
Accounts;
(c) to audit all trading, manufacturing, profit and loss
accounts and balance-sheets and other subsidiary
accounts kept in any department of the Union or of a
State; and in each case to report on the expenditure,
transactions or accounts so audited by him."
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28. As could be seen from the above provision, it is the
duty of the CAG to audit all expenditure from the
Consolidated Fund of India and of each State, and to
ascertain whether the moneys shown in the accounts as
having been disbursed were legally available for and
applicable to the services for the purposes to which they
had been applied or charged. The CAG is also required to
ascertain whether the expenditure conforms to the
authority which governs it.
29. A statutory duty is cast on the CAG to audit all
transactions of the Union and of the States relating to
Contingency Funds and Public Accounts. The CAG is also
required to audit all trading, manufacturing, profit and loss
accounts and balance sheets along with other subsidiary
accounts kept in any department of the Union or States
and submit a report on the expenditure, transactions or
accounts so audited by him.
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30. Section 19 of the 1971 Act also enables the CAG to
audit Government Companies and Corporations. Sub-
section (2) of Section 19 states that the duties and powers
of the CAG in relation to the audit of the accounts of
Corporations established by or under law made by the
Parliament should be performed and exercised by him in
accordance with the provisions of the respective
legislations. Sub-section (3) of Section 19 enables the
Governor of a State, if he is of the opinion that it is
necessary in the public interest to request the CAG, to
audit the accounts of the Corporation established by law
made by the Legislature of the State and if such request
had been made, the CAG should audit the accounts of
such Corporation, and for this purpose, he will have the
right of access to the books and accounts of such
Corporation.
31. It is, therefore, clear that the essential duty of the
CAG is to audit all expenditure and to ascertain whether
the moneys which have been disbursed were legally
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available for such disbursal and for its application to the
services and ensure that the expenditure conformed to the
authority which governed it. In other words, the first
requirement is to ascertain whether the moneys which
were disbursed were legally available for such disbursal
and whether it was applied to the purposes for which it
was disbursed and to ensure that the expenditure
conformed to the authority which governed it.
32. The CAG has been conferred with the power to
delegate any Officer of his department to exercise the
powers conferred on him and in exercise of this power, the
Accountant General (General and Social Sector Audit),
Karnataka is empowered to conduct the audit of
expenditure under the General and Social Services Sectors
incurred by the 66 Departments in the State and 11
Autonomous Bodies.
33. The primary purpose of the audit report is to
essentially bring to the notice of the State Legislature the
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manner in which monies have been spent by the
Departments and whether the expenditure made by them
are for the purposes for which they were earmarked.
34. In relation to this case, it would also be relevant to
notice the Regulations framed by the University Grants
Commission (for brevity, referred to as "the UGC") which
is titled as "the UGC Regulations on Minimum
Qualifications for Appointment of Teachers and Other
Academic Staff in Universities and Colleges and Measures
for the Maintenance of Standards in Higher Education,
2010" (for brevity, referred to as "the UGC
Regulations").
35. The UGC, in exercise of powers conferred on it, has
framed the UGC Regulations which are applicable to every
University established or incorporated by a Central Act,
Provincial Act or a State Act. The UGC Regulations
prescribes the minimum qualifications for appointment and
other service conditions of University and College
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Lecturers, Librarians, Directors of Physical Education and
Sports as a measure for maintenance of standards in
higher education. The consequences of not following the
said UGC Regulations is contemplated under Section 14 of
the UGC Act, 1956 would be withholding of funds. The
UGC Regulations are essentially framed for ensuring
minimum standards in higher education and also for
revision of pay scales and other service conditions
including age of superannuation in Central Universities and
other Institutions maintained and/or funded by the UGC.
36. The UGC Regulations also stipulated the manner of
recruitment and the qualifications prescribed for each post.
In respect of an Associate Professor for the purpose of
direct recruitment, the qualifications are as follows:
"4.3.0 ASSOCIATE PROFESSOR
i. Good academic record with a Ph.D.
Degree in the concerned/allied/relevant
disciplines.
ii. A Master's Degree with at least 55%
marks (or an equivalent grade in appoint
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scale wherever grading system is
followed).
iii. A minimum of eight years of experience of
teaching and /or research in any
academic/research position equivalent to
that of assistant Professor in a University,
College or Accredited Research
Institution/industry excluding the period
of Ph.D. research with evidence of
published work and a minimum of 5
publications as books and/or
research/policy papers.
iv. Contribution to educational innovation,
design of new curricula and courses, and
technology-mediated teaching learning
process with evidence of having guided
doctoral candidates and research
students.
v. A minimum score as stipulated in the
Academic Performance Indicator (API)
based Performance Based Appraisal
System (PBAS), set out in this Regulation
in Appendix III."
37. It is not in dispute that the petitioners herein did
possess the requisite educational qualifications. However,
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the observations of the CAG was that the Academic
Performance Indicator Score ("the API Score", for short)
and the Performance Based Appraisal System ("the PBA
System", for short) set out in the UGC Regulations were
not complied with.
38. Annexure-V which is enclosed to the rejoinder to the
statement of objections filed in W.P.No.52325/2019 by the
University, contains the proceedings of Board of
Appointment which had been constituted under Statute
12. In the said Annexure, the following statement is
made:
"On the basis of the Academic
Performance Indicator (API) and
Performance based appraisal system
(PBAS) as set out in the UGC Regulations
of 2010, the marks are awarded as
shown in the enclosed statement, based
on which the following candidate is
unanimously selected:
Statement enclosed for Pool reservation
(Annexure-1)"
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39. This indicates that the Board of Appointment did take
into consideration the API score and also the PBA System,
as provided in the UGC Regulations and it did award marks
as per the statement enclosed to those proceedings.
40. The Board of Appointment has, therefore, obviously
complied with the requirements of the Regulation No.6.0.1
of the UGC Regulations which required them to give
weightage to the performance of the candidate in different
relevant domains and by assessing his performance on a
scoring system which is based on the API as provided in
Table Nos.1 to 9 of Appendix - 3.
41. When the Board of Appointment comprising of the
Vice Chancellor (the Chairman), the Registrar (the
Secretary) along with four persons comprising of a
Professor in Economics and other eminent academicians,
have stated that they had awarded marks on the basis of
the API Score and the PBA System, it would not be open
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for any authority, much less an auditor such as CAG, to
say that the requisite procedure was not followed.
42. It has to be borne in mind that the domain expertise
of the CAG is essentially to audit the expenditure incurred
and it does not possess the expertise to determine as to
whether the recruitment procedure followed by a group of
experts, is or is not in conformity with the procedure set
forth in the recruitment.
43. The manner in which the Board comprising eminent
academicians decide on the suitability of a candidate will
have to be left to their discretion, and it is for this purpose
that a Board of Appointment is constituted. The fact that
such Board consisting of eminent academicians have
categorically stated that they have awarded marks on the
basis of the API Score and the PBA System, as provided in
the UGC Regulations, clearly indicates that the CAG did
not obviously possess the jurisdiction to sit in appeal over
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this observation or to question this statement given by the
Board of Appointment.
44. It has to be noticed here that the educational
qualifications of each of the persons appointed was not in
doubt. The fact that they were appointed on merit is also
not in doubt. The fact that the recruitments were made by
following the procedure prescribed under the UGC
Regulations by issuing advertisement, calling for
applications, etc. is also not in doubt. In such a given
situation, if the CAG were to embark upon a microscopic
examination of the appointments and rely upon the replies
given by the University to come to the conclusion that the
appointments were not in accordance with the UGC
Regulations, it is apparently obvious that such
observations cannot be sustained.
45. If the task of selecting Associate Professor is
conferred on a Board which comprises of Professors of
different Universities, such as the University of Mysore,
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Mangalore University, the Sri Venkateshwara University
and the Bangalore University, as in the instant case, who
are incidentallynot related to the respondent-University,
the integrity and wisdom of such a Board cannot be
questioned by the CAG.
46. The CAG can, no doubt, make observations, say, if
appointments were made in respect of the posts, which
were not sanctioned or if they were over-paid or under-
paid contrary to the pay-scales fixed by the requisite
regulations. In the guise of auditing the expenditure, the
CAG, in my view, the CAG cannot sit in judgment over the
selection of candidates made by a Board of Appointment
comprising of domain experts.
47. The State Government, without noticing these
aspects of the matter and merely placing reliance on the
observations, has fundamentally overreacted, and rather
disproportionately so, in assuming that the observations
made by the CAG were final and binding on it. It may be
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noticed here that the observations by the CAG are
basically to ensure that any systemic errors are rectified,
and that appropriate action be taken to ensure that any
wrong doing is remedied.
48. In my view, the CAG, in the instant case, has over-
stepped its jurisdiction and has gone on to question the
wisdom and manner in which the appointments were made
by the Board of Appointment. The acceptance of these
observations by the State and the consequential direction
issued to cancel the appointments cannot, therefore, be
sustained.
49. An argument was advanced that the impugned Order
itself was only a Show-Cause Notice and therefore, the
writ petitions were premature.
50. Having regard to the fact that the Government has
issued a direction to the University to annul the
appointments, in view of the observations made by the
CAG, it is obvious that a decision has already been taken
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to terminate the services of the petitioners and therefore,
it cannot be argued that it was only the issuance of a
Show-Cause Notice and that the writ petitions are
premature.
51. It may also be borne in mind that the petitioners
have been working since 2012 and their probationary
period had also been declared as having been successfully
completed. An audit conducted nearly five years after their
appointment cannot, in any manner, affect the
appointments which have already been made and in
respect of which probationary period also declared to have
been successfully completed.
52. The Chancellor, under the provisions of the Act, has
been conferred with the power to cause an inspection to
be made in respect of any matter connected with the
administration and finance of the University. Admittedly,
the Chancellor has not exercised his statutory power and
ordered an inspection.
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53. It is also to be stated here that in respect of the
accounts of the University, the accounts have to be
prepared under the direction of the Board of Management
and are required to be audited by the CAG and a copy of
Accounts together with the Audit Report is required to be
submitted to the Chancellor along with any observations of
the Board of Management.
54. If the Chancellor, on receipt of the copy of the
Accounts and the Audit Report, chooses to make any
observation, the same is required to be brought to the
notice of the Board of Management and thereafter, the
views of the Board of Management are required to be
submitted to the Chancellor. Thus, the power to make an
observation or to consider the Audit Report, essentially
vests with the Chancellor.
55. Admittedly, there is no observation made by the
Chancellor regarding any irregularity in the appointment of
the petitioners. It is also to be stated here that the copies
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of the accounts are to be audited and the same are to be
placed before the Houses of Legislature and it is not in
dispute that no objections have been raised by the Houses
of Legislature regarding the appointment.
56. It is, therefore, clear that merely on the basis of an
observation made by the CAG regarding the manner of
appointment, which was essentially beyond its
competence, that such directions have been issued by the
Government to terminate the services of the petitioners.
57. I am, therefore, of the view that the impugned
Orders and the subsequent Show-cause Notices cannot be
sustained and the same are, therefore, set aside.
The writ petitions are accordingly allowed.
Sd/-
JUDGE
PKS
