Allowed

Dr O S Siddappa v. State of Karnataka

Karnataka HC21 Oct 2013WP/23090/2013

Case brief

AI extract

What is this about?

The Court held that an appointment to a fixed tenure post is not subject to superannuation rules. Since the petitioner was appointed for a three-year tenure expiring on May 22, 2014, the Government order placing another person in charge and the subsequent communication were quashed, directing the petitioner to resume his post until the tenure expires.

What did the court decide?

The impugned orders and notifications are quashed. The petitioner is directed to continue in the post of Dean cum Director up to 22.05.2014 and is directed to hand over the charge forthwith.

Dr O S Siddappa Vs State of Karnataka — Contract and Commercial Disputes | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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ON THE 21^ST DAY OF OCTOBER, 2013

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BEFORE

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THE HON’BLE MR. JUSTICE RAVI MALIMATH

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WRIT PETITION NOS.23090-91 OF 2013 (S-R)

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BETWEEN:

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Dr.O.S.Siddappa, S/o Sri.Gurusiddapa, Aged 60 years, No.46, 4^th Cross, Bapuji Extension, Vijayanagar, Bangalore – 560 040.

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... Petitioner

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(By Sri.Vijay Shankar, Senior Counsel for Sri.N.K.Ramesh, Advocate)

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AND:

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State of Karnataka, Rep by its Secretary, Health & Family Welfare (Medical Education), Vidhana Soudha, Bangalore.

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Director of Medical Education, Ananda Rao Circle, Bangalore – 560 009, Rep by its Director.

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Bangalore Medical College & Research Institute, K.R.Road, Fort, Bangalore – 560 002, Rep by its Chief Administrative Officer.

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Dr.Raviprakash, Major, In-charge Dean-cum-Director, Bangalore Medical College and Research Institute.

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... Respondents

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(By Sri.H.Kantharaja, Addl. Advocate General and Sri.Raghavendra G.Gayatri, AGA for R1 & R2, Sri.P.S.Rajgopal, Senior Counsel for Sri.Prathap Madhyasta, Advocate for R3 Sri.B.M.Irshad Ahmed, Advocate for R4)

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These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the notification dated 31.5.2013 issued by the first respondent vide Annexure-J and the Official Memorandum dated 31.5.2013 issued by the third respondent vide Annexure-K and etc.

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These Writ Petitions having been heard and reserved for Judgment, on 11.10.2013 at the Principal Bench, Bangalore coming on for pronouncement at Dharwad Bench this day, the Court made the following:-

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ORDER

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The petitioner was the Dean-cum-Director of the 3^rd respondent since 23.05.2011 and earlier to that as the incharge Dean-cum-Director. The 3^rd respondent is an autonomous institute engaged in imparting medical education in Bangalore. It is registered with the Registrar of Societies and governed by its own Memorandum of Association, Rules, Regulations and Bye-laws.

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The Institute called for applications for the post of Dean/Director for the Government Medical Colleges mentioned in terms of the notification dated 30.11.2010. The petitioner applied for the Bangalore Medical College and Research Institute, Bangalore at Sl. No.1, namely the 3^rd respondent. By the resolution of

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the Governing Council of the 3^rd respondent on 20.05.2011, the petitioner was selected as a Dean cum

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Director for the institute. The resolution was forwarded to the State Government. The State Government by the order dated 23.05.2011, vide Annexure-D to the Writ Petition, appointed the petitioner as Dean cum Director

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of the 3^rd respondent-institution for a period of three years. The petitioner continued to function as such. Thereafter the Governing Council convened a special meeting on 11.02.2013, wherein it was decided that, since the petitioner attained the age of superannuation on 31.05.2013, he would not be entitled to continue to hold the said post. However, in view of the provision in the bye-law, he could be appointed on contract basis even after superannuation. It was therefore resolved to extend his period on contract from 01.06.2013 to 22.05.2014. A letter was also communicated by the Chief Administrative Officer of the Institution to the petitioner, informing him of the same. The resolution was sent to the Government for approval. No reply was forthcoming. Hence, the petitioner wrote a letter to the

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Government dated 21.05.2013, vide Annexure – H to the Writ Petition, appraising the Government of the said position. Thereafter, the Government by the impugned order dated 31.05.2013, vide Annexure-J, issued a notification to the effect that since the petitioner has attained the age of superannuation, Dr.D.Raviprakash, namely respondent no.4, is appointed as the incharge Dean cum Director of the Institution with immediate effect. Consequently, the Governing Council of the institute communicated the said order to the petitioner vide Annexure-K. Aggrieved by these two orders, these petitions are filed.

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Sri.S.Vijay Shankar, the learned Senior

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Counsel appearing on behalf of the petitioner’s counsel, contends that the impugned orders are bad in law and liable to be set aside. That the petitioner was appointed

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for a tenure of three years by the order of the Government dated 23.05.2011. The period ends on

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22.05.2014. Therefore, until the said period expires,

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the respondents have no authority to terminate his services. The impugned order which states that in view

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of the petitioner having attained the age of superannuation, an incharge Dean cum Director has been appointed, is therefore erroneous. He is entitled to hold the post till 22.05.2014 in terms of the appointment order itself. That the action of the respondents in terminating the services of the petitioner is unjust.

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Sri.Kantharaj, the learned Additional Advocate General, appearing on behalf of the

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respondents 1 and 2 defends the impugned action. He contends that the age of the superannuation of the Dean cum Director is 60 years. The petitioner has completed 60 years. Due to his superannuation, he cannot hold the post beyond that date. That the plea of the petitioner is based on the old Rules, Regulations

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and bye-law. Subsequently, new bye-laws have come into effect. In terms of the new bye-laws, there is no provision for appointing any person after attaining the age of superannuation, even on contract basis. That in terms of the old bye-laws, a person could be appointed on contract basis even after he attains the age of superannuation. However, that is not the case in the new bye-laws. It is only after the new bye-laws came into effect, that the impugned orders have been issued. In terms of the new bye-laws, no person can be appointed even on contract basis after superannuation.

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Even otherwise, the petitioner has no legal right to continue till 22.05.2014. In terms of the new Bye-law 22, superannuation would be at 60 years and that there is no provision for appointment on contract basis. Therefore, the order of the Government is just and proper. He specifically contends that the Government is the appointing authority and not the Governing Council. Hence, the action of the Government is in accordance

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with Law. He further pleads that there are inconsistent pleas by the petitioner. That even though the appointment order is issued by the Government, the plea of the petitioner is that it is not the Government but the Governing Council which has the power to issue appointment orders. If that were to be the case, the very appointment of the petitioner vide Annexure-D is opposed to his very contention. That the petitioner is trying to take advantage and seek remedy at the hands of this Court. That if the petitioner himself is not aware of his case, no relief could be granted to him.

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Sri.Rajgopal, the learned Senior Counsel

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appears on behalf of the counsel for respondent No.3. He contends that in terms of the Rules, Regulations and the bye-laws, the Governing Council alone is the appointing authority. The plea of the petitioner as well as the State Government that the Government is the appointing authority is ill-founded. It is opposed to law.

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In terms whereof, he contends that it is for the Governing Council to select the person after considering the recommendations of the Screening Committee. On such selection, the same has to be approved by the Government and on such approval, an appointment could be made. Therefore, the contention of the petitioner cannot be accepted. That even as per the new bye-laws, that came into effect prior to 31.05.2013, the term of a Dean cum Director shall be upto 60 years or at the end of the tenure. Since he has attained the age of superannuation, i.e., 60 years, the period came to an end. It is under these circumstances, he was allowed to function till 31.05.2013. Hence, an incharge appointment has been made. That since he has attained the age of superannuation, he has no right to continue in the said post. His term has come to an end. He further contends that no relief could be granted

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to the petitioner in view of the inconsistent pleas taken by him. He contends that even though the selection is by the Governing Council, the approval has to be made by the Government in terms of the old Rule 10. He further places reliance on Annexure-H viz., the letter written by the petitioner himself, contending that since he attained the age of superannuation, as per the resolution of the Governing Council dated 11.02.2013, the same may be given effect to. However, it is impermissible under the new bye-laws. There is no provision for appointment on contract basis. Hence the petition should fail. By placing reliance on the material on record, he submits that even when the first resolution was passed on 20.05.2011, the petitioner was part of the Governing Council. Even though in law, he was a member of the Governing Council, he should not have participated in the proceedings intended to select the Dean for which he was an aspirant. That he being interested in the

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appointment and when he has participated in the decision making process, such a decision is vitiated. So far as the resolution dated 11.02.2013 is concerned, the petitioner has also participated in the proceedings. He was very well aware that he has attained the age of superannuation and therefore, would retire on 31.05.2013. It is the petitioner who has moved the file and the resolution has been passed at his behest. Since he is the beneficiary of the resolution that has been passed in his favour, the same is vitiated and hence, liable to be set aside. Hence, he pleads that the petitions be dismissed.

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Sri.Irshad Ahmed, the learned Counsel for

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the respondent No.4 adopts the contentions of the other respondents. His further contention is that until and unless the Governing Council is made a party to the proceedings, these writ petitions are not maintainable. I’am unable to accept such a contention. The Governing

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Council is appropriately represented by the 3^rd respondent. The 3^rd respondent is represented by the Chief Administrative Officer in whose name all the proceedings can be initiated or defended. Hence, this contention is unacceptable. Even otherwise the learned counsel for the Institute as well as the learned counsel for the respondent-State does not support such a contention.

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Heard learned counsels and examined the

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material on record.

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8.(a) In terms of Annexure-D dated 23.05.2011,

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the petitioner was appointed by the Government as a Dean of the Bangalore Medical College and Research Institute for a period of three years. In terms whereof, the period would expire on 22.05.2014. The appointment order does not narrate anything more than the fact that he has been appointed as a Dean for a period of three years. There is no reference to the age of

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superannuation. The appointment order clearly states that he is appointed for a period of three years. In support whereof, the learned Counsel for the petitioner relies on the judgment of the Hon’ble Supreme Court in the case of DR.L.P.AGARWAL VS. UNION OF INDIA AND OTHERS reported in AIR 1992 SC 1872, wherein an identical issue came up for consideration. Thereto, the petitioner was appointed as a Director and Professor for a period of five years or till he attains the age of 62 years, whichever is earlier. By a subsequent resolution, the institute resolved that since he would retire from service, in public interest, with immediate effect, by giving him three months pay and allowances, in lieu of notice, he was terminated. The same was challenged in a petition under Article 226 before the High Court of Delhi. The Division Bench of the High Court dismissed the petition. Aggrieved by the same, the instant SLP was filed. Therein, the Hon’ble Supreme Court held at Paras 11 and 16 as follows:-

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“11. Regulation 30 of the All India Institute of Medical Sciences Regulations, 1958 (Regulations) which deals with superannuation and pre-mature retirement reads as under :-

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"30 (1) The age of superannuation of the employees of the Institute other than members of the teaching faculty and class IV employees shall be 58 years. Provided that the nonfaculty employees may be granted extension of service or reemployment up to the age of 60 years under very special circumstances for reasons to be recorded in writing on the merits of each such case and subject to physical fitness and continued efficiency of the employee concerned.

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(2) The age of superannuation of the members of the teaching faculty and

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class IV employees shall be 60 years. Provided that the services of the members of the teaching faculty may be retained up to the age of 62 years in cases of persons who are exceptionally talented for reasons to be recorded in writing on the merits of each such case and subject to physical fitness and continued efficiency of the person concerned.

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(3) Notwithstanding anything in sub-regulations (1) and (2), the appointing authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any employee of the Institute by giving him notice of not less than three months in writing or three month's pay and allowance in lieu of such notice:

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(i) if he is in Group A or Group B service or post and had entered the service of the Institute before

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attaining the age of thirty five years; after he has attained the age of fifty years; and

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(ii) in any other case, after he has attained the age of fifty-five years : Provided that nothing in this sub-regulation shall apply to an employee in Group D service or post who entered service on or before the 1.12.62.

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(4) xxx

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EXPLANATION:

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In this regulation the expression member of the teaching faculty, means "Professors, Associate Professors, Assistant Professors and Lecturers" and such other employees of the Institution as may be declared to be member of teaching faculty by the Central Government."

We have given our thoughtful consideration to the reasoning and the conclusions reached the High Court. We are not inclined to agree with the same. Under the Recruitment Rules the post of Director of the AIIMS is a tenure post. The said rules further provide the method of direct recruitment for filling the post. These service-conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise. The age of 62 years provided under

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Proviso to Regulation 30(2) of the Regulations only shows that no employee of the AIIMS can be given extension beyond that age. This has obviously been done for maintaining efficiency in the Institute-Services. We do not agree that simply because the appointment order of the appellant mentions that "he is appointed for a period of five years or till he attains the age of 62 years", the appointment ceases to be to a tenure-post. Even an outsider (not an existing employee of the AIIMS) can be selected and appointed to the post of Director. Can such person be retired prematurely curtailing his tenure of five years? Obviously not. The appointment of the appellant was on a Five Years Tenure but it could be curtailed in the event of his attaining the age of 62 years before completing the said tenure. The High Court failed to appreciate the simple

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alphabet of the service jurisprudence. The High Court's reasoning is against the clear and unambiguous language of the Recruitment Rules. The said rules provide "Tenure for five years inclusive of one year probation" and the post is to be filled "by direct recruitment". Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. The question of prematurely retiring him does not arise. The appointment order gave a clear tenure to the appellant. The High Court fell into error in reading "the concept of superannuation" in the

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said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span. The appellant could not therefore have been prematurely retired and that too without being put on any notice whatsoever. Under what circumstances can an appointment for a tenure be cut short is not a matter which requires our immediate consideration in this case because the order impugned before the High Court concerned itself only with premature retirement and the High Court also dealt with that aspect of the matter only. This Court's judgment in Dr. Bool, Chand, v. The Chancellor, Kurukshetra University, (1968) 1 SCR 434: (AIR 1968 SC 292) relied upon by the High Court is not on the point involved in this case. In that case the tenure of Dr. Bool Chand was

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curtailed as he was found unfit to continue as Vice-Chancellor having regard to his antecedents which were not disclosed by him at the time of his appointment as ViceChancellor. Similarly the judgment in Dr. D.C.Saxena v. State of Haryana, (1987) 3 SCR 346 : (AIR 1987 SC 1463) has no relevance to the facts of this case.”

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(b) Therein, the age of 62 years was provided under the proviso to Regulation 30(2) and it was also stated that no employee can be given an extension beyond that age. That such a condition has been imposed in order to maintain the efficiency in the institute. However, the said view was disagreed by the Hon’ble Supreme Court. The appointment order of the petitioner mentions that “he is appointed for a period of five years or till he attains the age of 62 years”. That even an outsider can be selected and appointed to the

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post of Director. They were of the view that curtailing the period for less than five years is impermissible. The appointment of the petitioner was for a five year tenure. Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure, unless curtailed on justifiable grounds. That there is no superannuation or retirement of such a person. That the concept of superannuation is alien to tenure appointments. That the tenure appointment has a fixed life time. That the appellant could not therefore have been prematurely retired and that too without being put on any notice whatsoever. The Hon’ble Supreme Court allowed the appeal by quashing the resolution of the institute.

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the case of P.VENUGOPAL VS. UNION OF INDIA reported in 2008 (5) SCC 1 by reiterating the position in para 32 of the judgment, wherein it was held that the question of superannuating or prematurely retiring the incumbent of the said post, does not arise at all. The appointment is for a tenure, to which the principle of superannuation does not apply. That tenure means a term during which the office is held. That the completion of tenure cannot be curtailed. That a person does not superannuate. He goes out of office, only on the completion of his tenure. In para 36 also, it was held that the curtailment of the term can only be made for justifiable reasons and compliance with principles of natural justice. In fact, the relevant portion of the judgment of L.P.Agarwal’s case, was extracted in order to support the view that has been taken.

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The Hon'ble Supreme Court went a step further where it held at Para 40 as follows:

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“40. Xxxxx The writ petition under Article 32 of the Constitution is allowed. In view of our order passed in the writ petition, the writ petitioner shall serve the nation for some more period i.e. up to 2-7-2008. We direct the AIIMS Authorities to restore the writ petitioner in his office as Director of AIIMS till his period comes to an end on 2-7-2008. The writ petitioner is also entitled to his pay and other emoluments as he was getting before premature termination of his office from the date of the order of termination. Considering the facts and circumstances of the present case, there will be no order as to costs.”

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(d) The aforesaid decisions in the case of Dr.L.P.Agarwal and P.Venugopal were relied upon and followed in the recent judgment of the Hon'ble Supreme Court in the case of J.S.YADAV vs. STATE OF UTTAR PRADESH reported in 2011 (6) SCC 570.

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(e) In fact, in the present case, age has not been

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mentioned as was in L.P.Agarwal’s case. Even though

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the age was mentioned in L.P.Agarwal’s case, the Hon'ble Supreme Court held that the appointment is for a tenure. Herein, that too is absent. Therefore, reading superannuation into the order of appointment would be incorrect. The plain reading of the order of appointment is that it is an appointment for a period of 3 years. Therefore, the contention of the respondents that age has to be read in, cannot be accepted.

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(f) Annexure-D would only narrate that he has been appointed for a period of three years. Therefore to read any superannuation or retirement with reference to Annexure-D would be opposed to law. The contention of the respondents that the petitioner has attained the age of superannuation on 31.05.2013 is alien to Annexure-D. Annexure-D plainly narrates that the tenure would be for a period of three years.

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(g) In view of the judgments of the Hon’ble Supreme Court referred to hereinabove, the

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appointment has to be considered as a tenure, for a period of three years. It cannot be held otherwise. Therefore, I have no hesitation to hold that based on Annexure-D and the law as laid down by the Hon'ble Supreme Court in the aforesaid judgments, the petitioner is entitled to hold the post of a Dean/Director of the institute for a period of three years upto 22.05.2014.

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(h) Under these circumstances, having held that the period of appointment in terms of Annexure-D is for a period of 3 years which would expire on 22.05.2014, no other issue requires to be considered in these petitions. The petitioner would have to succeed in view of the aforesaid reasoning. However, since various other contentions have been addressed, they are considered as hereinafter.

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9.(a) Respondents’ counsel contends that the

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pleas of the petitioner, run contrary to one another.

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That the case sought to be made out by the petitioner is that it is the Governing Council which is the appointing authority and that the Government is not the appointing authority and hence, the appointment of the 4^th respondent is opposed to law. The respondents therefore plead that if such a contention is to be accepted, then the very appointment of the petitioner is a nullity. Therefore, the necessary consequences would have to follow. Since the petitioner himself has raised these grounds, no relief could be granted to him. Even if the case of the petitioner is to be accepted, the very appointment of the petitioner himself, vide Annexure-D, would have to be read as being without authority of law.

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(b) Reliance is also placed on the judgment of the Hon'ble Supreme Court in the case of CAUVERY COFFEE TRADERS, MANGALORE VS. HORNOR RESOURCES (INTERNATIONAL) COMPANY LIMITED reported in 2011 (10) SCC 420 with specific reference to

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para 34 to contend that a party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him, of such contract or conveyance or order. Therefore, when the resolution of 11^th February 2013 would show that he is a party to the resolution, he cannot now contend that it is the Government that has the jurisdiction to appoint and not the Governing Council.

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(c) Reliance is also placed on the judgment of the Hon'ble Supreme Court in the case of MANISH KUMAR SHAHI VS. STATE OF BIHAR AND OTHERS reported in 2010 (12) SCC 576 to contend that having participated in the selection process, the selection process cannot be questioned subsequently.

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(d) Reliance is also placed on the judgment of the Hon'ble Supreme Court in the case of A.K.KRAIPAK

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AND OTHERS VS. UNION OF INDIA AND OTHERS

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reported in 1969 (2) SCC 262 with reference to paras 9 and 23. In para-9 the facts of the said case have been narrated to the effect that the petitioner participated in

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the deliberations of the Board while preparing the selected list in the order of preference. In para-23 it was held that since the petitioner was a Judge in his own case it is abhorrent to the concept of justice. Therefore based on this Judgment the learned counsel contends that since the petitioner was one of the members of the Governing Council he cannot turn around and contend that it is not the Governing Council but it is the Government which is the appointing authority. Therefore the plea of the petitioner being inconsistent, no relief could be granted to him.

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10.(a) I have examined the statement of

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objections filed by respondent No.3. In para 6, it is stated that the Government is the appointing authority

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in respect of the Director cum Dean of the Institution. The same is repeated subsequently also viz., at para 10 and in various other paragraphs. However, what is contended by the learned Senior Counsel is the opposite. He therefore submits that he does not support the statement of objections but his present submissions may be considered. He contends that in terms of the regulation, it is not the Government but the Governing Council, which has the authority to appoint, subject to earlier ratification under Rule-10 by the State. Therefore, the contentions of the respondent No.3 are inconsistent. In the statement of objections, they state that the Government is the appointing authority whereas at the time of the arguments, it is submitted that it is not the Government but the Governing Council which is the appointing authority.

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(b) In the statement of objections filed by the State on 09.07.2013, at para 9, they contend that the

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Government is the appointing authority. It is further contended that the 3^rd respondent – institution gained autonomous status only for the smooth administrative work of the institution. However, all the financial and other main streams like appointment of the Director will be done by the Government itself.

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by the State on 01.10.2013, the contention is reversed. In para 3, they state that the appointing authority in respect of the Dean cum Director is the Governing Council. This is a total turn about, compared to the earlier statement of objections. Therefore, so far as the first statement of objections of the Government is concerned, they state that the Government is the appointing authority, but in the second statement of objections, it is stated that the Governing Council is the appointing authority. Further more in the third statement of objections, yet another contention is taken

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by the State. Therefore, there are three versions of the State.

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11.(a) I have examined the Rules, Regulations

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and bye-laws pertaining to an appointment of a Dean cum Director.

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Rules 15 and 17 of 2006 read as follows:

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“Rule 15: Appointment of Dean cum Director: a) The Government shall appoint the first Dean cum Director after getting satisfied as to his/her qualifications and eligibility. b) Consequent on superannuation, resignation, removal, death or cessation of the term of a Dean cum Director, appointment can be made temporarily to the said post by the Chairman till a Dean cum Director is

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regularly appointed by the Governing Council.”

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“Rule 17: Appointment of Medical and Administrative Staff:

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a) The appointment of the Dean cum Director shall be done by the Governing Council on the recommendation of a screening committee so constituted for this purpose.

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b) The appointment of Chief Administrative Officer and Accounts Officer will be done by the Government. ”

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Rule 10 reads as follows:

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“ 10. PROCEEDINGS OF THE MEETING

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All resolutions passed during the course of a meeting shall be got

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approved by Government and then circulated amongst members.”

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Bye-law 18 reads as follows:

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“18. SUPERANNUATION

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The age of superannuation in respect of Dean cum Director is 60 years. A Dean cum Director appointed for a term shall retire at the end of the term or on the attainment of 60 years, whichever is earlier. The Dean cum Director may be appointed on contract basis after retirement and may be continued until he or she attains the age of 62 years, as specified in the appointment order.”

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(b) Therefore, as on the date the bye-laws existed, it was the Governing Council that could make

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the appointment on the recommendations of the Screening Committee so constituted for this purpose and after the approval of the Government.

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(c) In the first statement of objections filed by the Government they contend that it is the Government which is the appointing authority and not the Governing Council. In their second statement of objections they contend that it is not the Governing Council but the Government which is the appointing authority. In the third statement of objections they contend that under new Bye-laws the Governing Council is the authority. That however, the Government which is superior than the Governing Council can pass the impugned orders. These are the different stands taken by the State Government.

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(d) On the other hand, the 3^rd respondent has stated in the 1^st statement of objections that it is the Government alone that is the appointing authority and

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not the Governing Council. In the second Statement of Objections, this is what they have stated at Para 4, which reads as follows:

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“4. It is the case pleaded by the petitioner that the appointing authority for the post of Dean cum Director is the Governing Council. Under the Rules and Regulations, 2006 of the Institute under which the Government appointed the petitioner by notification dated 23.05.2011 the appointing authority in respect of Dean cum Director except the first dean cum director is the governing council in terms of rule 17. Contention of the petitioner on 2006 rules & regulations is correct. Admittedly the petitioner is not the first dean cum director who alone the government could appoint under rule 15 (a). Therefore, the very notification by which the petitioner was appointed is without authority of law, void and incompetent. Thus, the petitioner was never appointed in the eye of law and therefore, the question of seeking a writ to enforce the so called term of 3 years

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stipulated by the notification dated 23.05.2011 would not arise. xxxx”

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(e) In this para, the 3^rd respondent states that

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the contention of the petitioner that he is appointed under the rules and regulations of 2006 is correct. In the very next sentence, it is stated that the notification

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by which the petitioner was appointed is without authority of law, void and incompetent. That the petitioner was never appointed in the eyes of law and therefore, the question of seeking a writ to enforce the so called term of three years stipulated by the notification dated 23.05.2011 would not arise. Even after re-reading the above, it is difficult to understand

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what the respondents meant by this. In the first sentence, it is stated that the contention of the petitioner that he is rightly appointed under the 2006 Rules is accepted to be correct. In the very next sentence, the same is disputed. There is no clarity or a

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firm stand. This would clearly show the misconception of law so far as this respondent is concerned. Not only inconsistent, but contrary stands have been taken by this respondent.

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(f) However, at the stage of arguments the contention was given up. A contrary submission is made to the effect that it is not the Government but the Governing Council which is the appointing authority. The 3^rd respondent Institute therefore does not support the view of the State.

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12(a). On similar terms are the Rules,

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Regulations and Bye-laws of 2013.

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Rule 18 of 2013, reads as follows:

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“18. Appointment of Dean and Director:- (1) The Government shall appoint the First Dean cum Director, after getting satisfied as to his/her qualifications and eligibility specified in clause (3) below for a maximum period of four years or

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superannuation which earlier.

ever is

(2) Consequent

superannuation, resignation, removal, death or cessation of the term of Dean cum Director, appointment can be made temporarily for a period not exceeding six months to the said post by the Governing Council till regular appointment is made by the Governing Council.

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(3) The Governing Council shall appoint the Dean cum Director through a selection process. Such appointments shall be on the recommendations of the Selection Committee in accordance with the provisions of the byelaws. The term of the Dean cum Director so appointed shall be for a period of 4 years. There shall be no extension of the term.

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(4) xxxx

¶182

(5) xxxx

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(6) xxxx ”

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Regulation 2(1)(c) reads as follows:

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Definitions:-

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1.(a) xxx

¶187

(b) xxx

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(1) Karnataka Government in respect of the first Dean/Director, Chief Administrative Officer, Chief Accounts Officer cum Financial Advisor/Accounts officer and other Gazetted officers.

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¶191

(2) Governing Council in respect of the subsequent Dean/Director, Principal, Medical Superintendents, Group A & B posts and other equivalent posts.

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(3) Dean and Director of the Institute for all Group ‘C’ and ‘D’ posts.”

¶193

Bye-law 2(b) reads as follows:

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Definitions:-

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(a) xxx

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(b) “Appointing Authority” means (1) Karnataka Government in respect of the first Dean/Director, Chief Administrative Officer, Chief Accounts Officer cum Financial Advisor/Accounts officer and other Gazetted officers.

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(2) Vice-Chairman of the Governing Council in respect of the subsequent

¶198

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Dean/Director, Vice-Dean, Medical Superintendents, Group A & B posts and other equivalent posts.

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(3) Dean and Director of the Institute for all Group ‘C’ and ‘D’ posts.”

¶201

Bye-law 22 reads as follows:

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“22. Superannuation.- The age of superannuation in respect of all the permanent employees of the Institute is 60 years. A Dean and Director appointed for a term shall retire/be relieved at the end of the term or on the attainment of 60 years, whichever is earlier. The age of superannuation shall be as per the order issued by the Government of Karnataka from time to time.”

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Regulation 6(3) reads as follows:

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“6. Meeting of the Governing Council: 1. xxxx

¶205

¶206

2. xxxx

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Proceedings of all the meetings of the Governing Council shall be recorded in the minutes book. The Member Secretary shall arrange to record the discussions and decisions and the Chairman shall approve the same after due scrutiny. No decision of the Governing Council which is against the policy of the State Government shall be implemented without the prior approval of the State Government. Any matter with financial implication shall be implemented only after obtaining the approval of the Government.”

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(b) The reading of these provisions would clearly

¶209

indicate that it is not the Government, but it is the Governing Council, which is the appointing authority. However, on a resolution being passed by the Governing Council, the same would have to be forwarded to the State Government. On approval by the State

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¶211

Government, the Governing Council would appoint the Dean cum Director.

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¶213

was passed by the Governing Council and sent to the

¶214

Government in terms of the old Regulation 10, it is the Government themselves that have issued the

¶215

appointment order in terms of Annexure-D. The Government should have sent its approval to the Governing Council. Thereafter, the Governing Council should have made the appointment. Furthermore, when the second resolution of February 2013 was passed, the same was sent to the Government for approval. No communication was received by the institute with regard to the approval or refusal of the resolution. In fact, on the receipt of the resolution of

¶216

the Governing Council, the Government issued the impugned order vide Annexure-J stating that since the petitioner has attained the age of superannuation, the

¶217

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4^th respondent is appointed as incharge Dean cum

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Director. Therefore, on both the occasions, when the resolutions were received from the Governing Council, the Government has proceeded to make the appointment.

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13.(a) There are inconsistent pleas not only by the petitioner but also by the 3rd respondent – institute as well as the State Government. The petitioner has urged contrary contentions in support of his case with regard to the power of the Government in the matter of the appointment. However, at the stage of arguments, it is contended that his case is based purely on AnnexureD. He therefore pleads that his contention on his tenure being three years in terms of notification dated 23.05.2011 be alone considered. In support whereof, he contends that even the prayer sought for by him is firstly to quash the impugned order vide Annexures-J and K and secondly, to direct the respondents to

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¶222

continue him in the post of Dean cum Director up to 22.05.2014.

¶223

(b) So also the State Government have filed the statement of objections on the first occasion stating that it is the Government that has the power of appointment. But in the additional statement of objections, it is stated that it is the Governing Council that has the power of appointment. In the 3rd Statement of Objections, they contend yet another proposition that the appointing authority is the Governing Council but the Government which is superior, can pass orders of appointment.

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(c) In the objections of the 3^rd respondent they contend that it is the Government and not the Governing Council which is the appointing authority. The argument advanced is opposite to their Statement of Objections. They argue that it the Governing Council

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¶226

and not the Government which is the appointing authority.

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(d) As held hereinabove, in the frame work of the Rules, Regulations and Bye-laws, it is the Governing Council alone that is the appointing authority and not the Government. The Regulations and Bye-laws of 2006 and 2013, are similar in most respects. The retirement age at 60 is unchanged. The regulations of 2006 provided for appointment on contract basis after the age of 60, but in the Regulations of 2013, the same is absent. Therefore, no contract of appointment can be made after the age of 60 years in terms of bye-law 22 of 2013. However, this is the first time that the Dean for the institute is appointed. On the creation of the institute, the first Dean cum Director was appointed by the Government. It was only for a temporary period until a regular appointment was made by the Governing Council. The appointment of the first Dean was

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¶229

resolved by the Governing Council which fructified in the appointment order vide Annexure-D, appointing the petitioner as a Dean cum Director. Therefore, the petitioner, the institute and the State are grappling with the Rules, Regulations and bye-laws for the first occasion.

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(e) It is therefore evident that inconsistent stands are being advanced by the State Government themselves. Three statements of objections have been filed by adopting different stands. The State themselves are not sure about the legal position. They are not sure as to who is the appointing authority under the rules or bye-laws. However they are not sure of the legal position and are taking inconsistent stands.

¶231

(f) On the other hand, the Institute does not

¶232

support the contentions of the State. Even though in the statement of objections, it is stated that it is the

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¶234

Government which is the appointing authority, in the course of the arguments, the learned Senior Counsel has stated that it is incorrect. That the statement of objections filed stating that the Government is the appointing authority is not supported by him. The oral contentions urged by the respondent No.3 – Institute is to the effect that it is the Governing Council alone which is the appointing authority.

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(g) Even though various grounds are pleaded in

¶236

the writ petition, at the stage of arguments the petitioner contends that his entire case is based only on Annexure-D. Therefore, he pleads that his submissions based on Annexure-D may be considered. The petitioner’s request to consider the said ground is similar to the plea of the 3^rd respondent. The 3^rd respondent even though has taken a stand in his written statement that the Government is the appointing authority, the said ground is given up and it

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¶238

is contended that it is the Governing Council alone that is the appointing authority. The petitioner pleads that his case be considered on the ground based on Annexure-D. The 3^rd respondent, argues contrary to the statement of objections. The State relies on three different objections. Therefore, all the parties are similarly placed with reference to their pleadings and the grounds urged.

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(h) The contentions put forth by the 3^rd

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respondent is that the Government is not the appointing authority but it is the Governing Council alone. Therefore, only after the Governing Council passes a resolution, it is to be sent to the Government for ratification and the Government may ratify the said resolution. That the Governing Council can thereafter issue an order of appointment. In the instant case, the order of appointment of the petitioner in terms of Annexure-D is by the Government themselves and

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¶242

hence, it is opposed to law. If such a contention is to be accepted, the respondents would have to explain the validity of the impugned order in the Writ Petitions viz., Annexure-J issued by the Government appointing respondent No.4 as incharge Dean. In the impugned notification, the Government states that the petitioner has attained the age of superannuation and hence, respondent No.4 is appointed as incharge Director until further orders. The order is dated 31.05.2013.

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(i) Therefore, if this were to be the contention of the 3^rd respondent, in that event the appointment of the respondent No.4 becomes invalid. The consequences of the inconsistent pleas of the petitioner, the State Government as well as the Institute have since been considered herein above. This is yet another example of such a flaw.

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(j) On considering these facts, a purposive interpretation of the power of appointment would have

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¶246

to be made keeping in mind the contentions of the petitioner, the institute as well as the Government. In view of the reasoning assigned hereinabove on the said issue, the same could be considered as an irregularity and not as an illegality and the same does not affect the legal rights of any of the parties. In the fitness of things, therefore, I ‘am of the considered view that in view of the inconsistent stands and in view of the acquiescence by the State as well as by the Governing Council, even if it is to be held that the appointing authority is the Governing Council, the appointment made by the State Government is to be considered as a mere irregularity only so far as the facts of this case is concerned.

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(k) In view of all the events that have occurred, it would only be appropriate to hold that even though the Government had no authority to pass the impugned order, it would be inappropriate to hold that it is an

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¶249

illegality at such a belated stage. It cannot be said that any of the parties are prejudiced by the appointment order issued by the Government. It cannot be said that the Government has bypassed the Governing Council. On both the occasions, resolutions have been passed by the Governing Council and sent to the Government for approval. On both occasions, the Government has made the appointment. The Government and the institute have acquiesced the proceedings.

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(l) Infact, what is of greater importance is that the validity of Annexure-D is not the subject matter of these writ petitions. The notification appointing the petitioner vide Annexure-D dated 23.05.2011 is not challenged by the respondents. It is only as a matter of defence and in support of their case, the contentions are sought to be seriously advanced to the effect that the order of appointment is invalid. Therefore, it cannot be said that either of the respondents were aggrieved by the order of

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¶252

appointment vide Annexure-D. If that would be so, necessary action would have been taken by them. They have chosen not to do so. It would therefore imply that till now they had no grievance so far as Annexure-D is concerned. It is only as an objection that the same is being raised. Therefore, the plea of the respondents cannot be accepted.

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(m) The counsel for the 3^rd respondent placed reliance on the judgment of the Hon'ble Supreme Court in the case of CAUVERY COFFEE TRADERS, MANGALORE VS. HORNOR RESOURCES (INTERNATIONAL) COMPANY LIMITED reported in (2011) 10 SCC 420 with particular reference to Para 34, which reads as follows:

¶254

“34. A party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract

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¶256

or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. (Vide Nagubai Ammal v. B. Shama Rao, CIT v. V.MR.P. Firm Muar, Maharashtra SRTC v. Balwant Regular Motor Service, P.R. Deshpande v. Maruti Balaram Haibatti, Babu Ram v. Indra Pal Singh, NTPC Ltd. V. Reshmi Constructions, Builders & Contractors, Ramesh Chandra Sankla v Vikram Cement and Pradeep Oil Corpn. v MCD.)”

¶257

(n) He, therefore, submits that the petitioner

¶258

cannot be permitted to urge this contention. However,

¶259

in view of the contentions advanced, not only by the 3^rd respondent but also by the State, they too have

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¶261

indulged in “blow hot and cold”, “fast and loose” or “approbate and reprobate”. The reference is to “a party”. Therefore party means, all those in litigation. Therefore it is applicable to the respondents also. Para 35 of the very Judgment reads as follows:-

¶262

“35. Thus, it is evident that the doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from assetring a right which he otherwise would have had.”

¶263

Therefore the respondents could have asserted their right against the appointment order. They have

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¶265

not done so. By their conduct and silence they have abandoned such a right. They have acquisced in the selection process. Therefore the Hon’ble Supreme Court held that the Doctrine of Estoppel which is a rule in equity would be applicable. The judgment therefore is amply applicable not only to the petitioner, but also to each one of the parties to the petitions. Each one of them have taken different stands at different stages. There is a total misconception of law. Each one of the respondents claim to have the power of appointment. Therefore, the judgment in Cauvery Coffee Traders’s would be applicable to each one of the parties.

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(o) Under these circumstances, I ‘am inclined to

¶267

hold that the appointment orders issued by the Government requires to be considered as a mere irregularity and not an illegality so far as these petitions are concerned especially in view of the inconsistent stands, pleas, arguments of all the parties to these

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¶269

petitions. Therefore, the contention with regard to the power of the Government or the Governing Council to issue the appointment orders stand accordingly answered.

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(p) In view of the aforesaid discussions, the

¶271

procedure for appointment of Dean/Director is as follows:

¶272

When applications are called for the post of a Dean the same requires to be processed by the Screening/Selection Committee. Thereafter, it has to be placed before the Governing Council. The Governing Council would have to resolve with regard to such an appointment and place it before the Government for approval. The Government is at liberty either to accept or reject the proposal. On such acceptance of the resolution of the Governing Council, the same would have to be sent back to the Governing Council and thereafter, the appointment orders would have to be

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¶274

issued by the Vice-Chairman of the Governing Council. In case the Dean is an aspirant, he shall not participate when such a Resolution is being considered. This is the interpretation of the rules and bye-laws of 2013 pertaining to the appointment of a Dean.

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14.(a) The State Government contends that

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the Regulations and Bye-laws have been amended with effect from 30.04.2013. Therefore, ever since then, the new bye-laws, rules and regulations are in force. Their contention is that the petitioner cannot rely on the old bye-laws or regulations since the new bye-laws and regulations have come into effect. It is their case that the new bye-laws are applicable to the impugned order. That bye-law 22 provides for superannuation.

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(b) It narrates that the age of superannuation in

¶278

respect of all the permanent employees of the institute is 60 years. That a Dean/Director appointed for a term

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¶280

shall retire/be relieved at the end of the term or on attainment of 60 years, whichever is earlier. The age of superannuation shall be as per the order issued by the Government of Karnataka from time to time. That the power to appoint on contract, after the age of superannuation, which existed in the old bye-laws are not found in the new bye-law 22. The respondent therefore contend that since the petitioner has attained the age of 60 years, the question of extension on contract does not arise. That the bye-laws have come into force on 30.04.2013 and since the petitioner has attained the age of superannuation on 31.05.2013, in terms of the new bye-laws, he shall retire. It is therefore contended that assuming that the petitioner is aggrieved by the new bye-laws, he would have to question it. He has not done so. Therefore, until and unless, the new bye-laws are set aside, the same stands applicable to the petitioner. In support of this contention, he relies on the judgment of the Hon'ble Supreme Court in the

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case of UNION OF INDIA AND ANOTHER VS.

¶283

DR.S.BALIAR SING reported in 1998(2) SCC 208 with reference to Para 12, to contend that a person will be governed by the rules in force at the time when he retires. That he acquires no vested rights by reason of the rules which were in force at the time when he joined the government service.

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(c) On hearing learned Counsel, I ‘am of the considered view that there is no dispute with regard to the position of law. It is the new bye-laws and rules that are applicable. No doubt, the petitioner has not challenged the validity of the new bye-law 22. In my considered view, it is not necessary. The plea of the petitioner is based on his appointment order vide Annexure-D. In terms whereof, he has been appointed for a period of three years. The issue with regard to the period of appointment for three years, has since been discussed in the aforesaid paragraphs. Therefore,

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whether the old bye-law which prescribes the extension of appointment on the basis of contract or whether the new bye-law does not prescribe the appointment on contract, would not arise for consideration. The plea of the petitioner is not based on the extension of his contract in terms of the resolution dated 11.02.2013 or on the new bye-law. It is primarily based on the order of appointment vide Annexure-D. The plea of the State is based on the fact that there is no power to appoint on contract basis under the new bye-laws. However, the right claimed by the petitioner is not based on the resolution dated 11.02.2013 but it is based on the appointment order dated 23.05.2011 vide Annexure-D. In fact, his prayer is to quash Annexures-J and K and the second prayer is to continue him in the post of Dean cum Director up to 22.05.2014. It is not based on the resolution dated 11.02.2013, but in view of the arguments advanced by the petitioner’s counsel, it is based on Annexure-D.

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(d) Therefore, the validity or otherwise and as to whether his appointment is for a period of three years or not, has since been exhaustively discussed herein above. Therefore, the contention that no relief can be granted since the new bye-laws are not challenged therefore, cannot be accepted.

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15(a). The learned Counsel for the 3rd respondent contends that the petitioner has

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participated in all the proceedings wherein he was interested. In the resolution dated 23.05.2011, it was resolved that he be appointed as a Dean cum Director of the institute, vide Annexure-C to the petition, which would show that there were seven members. That the 7^th member is the petitioner. He has participated in the resolution as a Member Secretary. That all the members have agreed and passed the resolution

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appointing the petitioner as a Dean of the institute. The learned Counsel for the respondent No.3 relies on the judgment of the Hon'ble Supreme Court in the case of MANISH KUMAR SHAH VS. STATE OF BIHAR AND OTHERS reported in 2010 (12) SCC 576 with reference to Paras 5 and 16. Therein, their Lordships’ held that the conduct of the petitioner in having taken part in the process of selection would disentitle him for any relief. That he took a chance while moving the Court since he was not selected.

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(b) He further places reliance on the judgment of the Hon'ble Supreme Court in the case of STATE OF RAJASTHAN VS. R.DAYAL AND OTHERS reported in 1997 (10) SCC 419 with reference to Para 8 to contend that the vacancies that arose subsequent to the amendment of the Rules are required to be filled in, in accordance with the law existing as on the date when the vacancies arose. That after the amended Rules

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came into force, necessarily the amended Rules would be required to be applied and given effect to. It is therefore contended that having participated in the selection process, the same would vitiate the entire selection itself.

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the petitioner contends that this is not a case where the validity or otherwise of the appointment order dated 23.05.2011 is under challenge. The validity or otherwise or the appointment order is not questioned by the respondents. That on a resolution being passed by the Governing Council, the same having been sent to the Government for approval, the Government accepted the resolution and hence, issued the appointment order. Therefore, at such a belated stage, neither the State nor the institute can raise any dispute with regard to the same. That they have acquiesced by their act. That they were aware of what they were doing. It is only

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because the present petitions are filed, that such a legal contention is being advanced. In law, such a contention cannot be raised. In support whereof, the petitioner’s counsel relies on the unreported judgment of the Hon'ble Supreme Court dated 30.09.2013 passed in Writ Petition (Criminal) Nos.154/2013 with 166/2013 in the case of SELVI J.JAYALALITHAA & ORS. VS. STATE OF KARNATAKA & ORS. with reference to Paras 15 and 17, which reads as follows:-

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“15. The reason put forth by the Government of Karnataka for removing Shri G.Bhavani Singh as SPP appears to be rather unusual. It may be true that the name of Shri G.Bhavani Singh was not in the list of four names submitted by the Government of Karnataka to the then Acting Chief Justice of the High Court and the name originated from the Acting Chief Justice, prior to making of appointment of SPP by the Government of Karnataka; but it is

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equally true that the appointment was made by the Government without questioning the ability or suitability of the incumbent nor the government raised any issue in respect of the manner/issue of consultation. On the contrary, upon receiving the recommendation, the Government proceeded to appoint Shri G.Bhavani Singh by issuing a Notification without any demur. Apart from this the appointment continued un-objected for almost seven months.”

¶303

16. xxxx

¶304

“17.xxxx. This is exactly what has happened in the present case. If the Government found the name of Shri G.Bhavani Singh, which was sent by the Acting Chief Justice, not acceptable on any ground, it was duty bound to refer the name back to the Acting Chief Justice along with their views and suggestions,

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which was not done by them. On the contrary, they proceeded to appoint Shri G.Bhavani Singh as SPP without demur, who had already been a Public Prosecutor for several years. There is nothing on record to indicate that the Government of Karnataka had been forced by anyone to make the said appointment. The Government thus voluntarily acquiesced in the process and is now not entitled to raise this grievance. The grievance is thus baseless and does not carry any conviction.”

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(d) Under these circumstances, I ‘am of the

¶308

considered view that firstly, it cannot be said that the participation of the petitioner has affected the decision making process of the Governing Council. In fact, the learned Counsel for the petitioner vehemently contends that, when the resolution pertaining to the selection of the Dean was taken up for consideration by the

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Governing Council, the petitioner did not participate. He had excused himself and went out of the room when the resolution came up for discussion. He, however, pleads his inability to substantiate his contention by any material. Therefore, he pleads that the record of the institute be looked into, to test his contention. However, the records are not placed before the Court. It has not been controverted by the institute by producing the records. Even otherwise, in view of the aforesaid pronouncement of the Hon'ble Supreme Court, such an issue cannot be raised at such a belated stage. They have acquiesced in the selection process. They have issued the appointment order. The appointment order is not under challenge in these petitions. It is only as a rebuttal that the respondents seek to contend that the resolution of the Governing Council is vitiated due to the presence of the petitioner. As held by the Hon’ble Supreme Court in CAUVERY COFFEE TRADER’s case hereinabove at para-35, hereto the respondents by their

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conduct and silence have abandoned such a right. They have acquisced in the selection process. Assuming that they were aware of the legal position they have accepted the Notification as well as the subsequent proceedings. They have not asserted their right against the appointment order. It has not been questioned in an appropriate Forum. Therefore as held by the Supreme Court in para-35 of the said Judgment the Doctrine of estoppel would be applicable. Further by the conduct and acquiscence they have acquisced in the selection process. Under these circumstances, the contention urged by the respondents with regard to the vitiation of the proceedings in view of the presence of the petitioner, therefore, cannot be accepted. Therefore, I ‘am of the considered view that the contention of the respondents to this effect cannot be accepted.

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16.(a ) It is vehemently contended by the 3^rd respondent that the pleas of the petitioner cannot be

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accepted based on his letter of appointment vide Annexure-D. That subsequent to the letter of appointment, the second resolution dated 11.02.2013 came into effect. Reliance is placed on the communication of the petitioner dated 21.05.2013 vide Annexure-H to the Writ Petition. By placing reliance on the said letter, the learned Counsel contends that the factum of superannuation of his term was well within the knowledge of the petitioner. He having known of the same, cannot now plead against it.

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(b) On the contrary, the petitioner’s counsel

¶317

disputes the same. He contends that by placing reliance on the letter of the petitioner, the interpretation sought to be made by the respondent’s counsel is illfounded. That the letter was addressed in view of the fact that, inspite of the resolution being communicated to the State Government, no steps were taken by the State to issue any orders. Therefore, Annexure-H was

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only a reminder which has been sent by the petitioner. That such a reminder was warranted as he was a Dean at that point of time.

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Annexure-H. It would narrate that the Governing

¶322

Council held its 15^th meeting on 11.02.2013. That in the said meeting, a resolution was passed that even though the tenure of the petitioner expires on 22.05.2014, since the petitioner attains the age of superannuation on 31.05.2013, even though he was appointed for a tenure of three years, he may be granted an extension of contract from 01.06.2013 to 22.05.2014. The resolution has also been extracted in the said letter. Ultimately, it is stated in the letter that the resolution of the Governing Council extending the period of the Dean from 01.06.2013 to 22.05.2014 be considered and appropriate orders be issued.

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(d) Reading of the said letter would show that it

¶325

is a reminder that has been sent to the Government extracting the resolution of the Governing Council. The letter was sent, since there was no response from the state. No where is it stated that he has accepted the fact of superannuation. Even if the resolution has been passed by the Governing Council, there is nothing to show that he accepts the superannuation. It only narrates that a resolution has been passed that the petitioner has attained the superannuation and therefore, extension is warranted. His letter does not accept the issue of superannuation. There is no reference to acceptance. It is merely a forwarding letter or a reminder letter. Under these circumstances, the contention of the respondents that the petitioner has accepted his superannuation runs contrary to the letter itself. Therefore, it cannot be said that the petitioner accepted his superannuation and sought for extension.

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Therefore the contention of the respondent, is

¶328

unacceptable.

¶329

(e) It is further to be noted that the extension

¶330

has been granted from 01.06.2013 to 22.05.2014. It is

¶331

not for a period of one year. It is for a lesser period. It is with effect from 01.06.2013. What is significant is the date on which it expires. The order of appointment vide Annexure-D is dated 23.05.2011. Three years expires on 22.05.2014. Therefore, keeping in mind that the three years period, in terms of the order of appointment, expires on 22.05.2014, the Governing Council thought it appropriate to extend the contract up to 22.05.2014. The date 22.05.2014 is relevant because it is on that date that the petitioner completes three years. Even though as per Bye Law 18 of 2006, the contract could be granted upto the age op 62 years, namely upto 2015, they have not done so. The extension was granted only upto the expiry of the 3 year period pursuant to

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Annexure-D. Therefore, I ‘am of the considered view that even the Governing Council were aware of the 3 year period of appointment and not otherwise as contended by the respondents.

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17.(a) It is further contended by the learned Counsel for respondent No.3 that subsequent to the impugned order appointing respondent No.4 as incharge Dean, the Governing Council have withdrawn the notification dated 11.02.2013. This resolution is produced by the respondents along with the subsequent statement of objections. It is therefore pleaded that if the resolution dated 11.02.2013 is not questioned in these petitions and the relief sought for by the petitioner is being based on the resolution dated 11.02.2013, no relief could be granted to the petitioner.

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(b) As held hereinabove, the plea of the petitioner is primarily based on his appointment order

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¶337

dated 23.05.2011 vide Annexure-D. It is not based on the second resolution dated 11.02.2013. as aforesaid. Under these circumstances, the plea of the respondent No.3, based on the withdrawal of the resolution dated 11.02.2013 is of no consequence. It is immaterial whether the resolution dated 11.02.2013 is in force or has been withdrawn. Hence, the contention is unsustainable.

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The learned Counsel for the petitioner contends that the action of the State is to cause hardship to the petitioner. That such an action of the State is not fair. He contends that only because he was appointed for a period of three years by the earlier Government which was in power and due to the change of the Government, he is being victimized. In support whereof, he relies on Annexure-K viz., the communication issued by the Administrator of the institute who brings to his notice the order passed by

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the State Government at Annexure-J. Annexure-J merely states that the petitioner has attained the superannuation on 31.05.2013 and therefore, respondent No.4 is appointed as additional incharge. However, what has been communicated by the Chief Administrative Officer is totally different. In AnnexureK, it is stated that in terms of the Government Order under reference and as per Rule 95(1) of the Karnataka Civil Service Rules, he would retire on the afternoon of 31.05.2013 and therefore, he is relieved from the charge of Director and Dean. This point is a creation of the institute when they were merely expected to communicate only the order passed by the State Government. Their over anxiety is displayed in Annexure-K. They attempted to justify the Government order. The reference to law which is not even a part and parcel of the original order of the Government, speaks for itself. Hence, he pleads that he has been victimized. In support whereof, reliance is placed on the judgment

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of the Hon'ble Supreme Court in the case of SELVI J.JAYALALITHAA & ORS VS. STATE OF KARNATAKA & ORS IN W.P.(CRL.) NO.154/2013 wherein at para 20, it was held as follows:-

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“20. In the instant case, as disclosed during the course of arguments, there has been a change of the political party in power in May 2013 and thus, the order of the State Government is alleged to be politically motivated. In our opinion, though there is an undoubted power with the Government to withdraw or revoke the appointment within Section 21 of the General Clauses Act, but that exercise of power appears to be vitiated in the present case by malafides in law inasmuch as it is apparent on record that the switch-over of government in between has resulted in a sudden change of

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opinion that is abrupt for no discernable legally sustainable reason. The sharp transitional decision was an act of clear unwarranted indiscretion actuated by an intention that does not appear to be founded on good faith.”

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It is also pleaded that after the impugned order was issued by the State Government, the matter was placed before the Governing Council and in its meeting convened on 13.06.2013, at subject no.14, wherein it was resolved with regard to the confirmation of the order of the Government placing the respondent No.4 as additional incharge with effect from 31.05.2013. Further, the resolution of the Institute dated 11.02.2013, to continue the petitioner after superannuation on contract basis for a period of one year, was withdrawn. He therefore pleads that the action of withdrawing the resolution would not arise for

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consideration. It is done on the dictates of the Government to injure the petitioner. Therefore it amounts to malafides.

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(b) On the other hand, learned Counsel for the respondents contends that the same cannot be read as any malafides against the State or against the Institute. It can only be considered as an exaggeration and nothing more. That even though the reference to Rule 95(1) cannot be said to be misplaced, yet it did not find a part and parcel of the order of the Government.

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(c) On hearing learned Counsels, I ‘am of the considered view that, it would appear that the respondents were merely over enthusiastic. Malafides cannot be alleged against them. As held herein above, it is mere a case of a misconception of law than malafides. It cannot be stated that only because of the change of the Government, that such an order has been passed. There is no acceptable material to accept such a plea. It

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would not lead to a conclusion of malafides as sought to be pleaded by the petitioner.

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19.(a) At the fag end of the arguments, the learned Counsel for the petitioner placed on record an affidavit along with the copy of the paper publication, calling for applications for the post of Dean. In the affidavit, he has stated that pursuant to the notification dated 30.11.2010, he had applied for the post of Director cum Dean and since the said notification had not been produced along with the Writ Petitions, the same is produced herein. It is also stated that in view of his specific stand, it is necessary to produce the above notification. That various other candidates had also applied. He has further stated that since the document is germane for the effective adjudication of the Writ Petitions, he seeks permission to produce the same.

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(b) The learned Counsel for respondent No.3

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seriously disputes the same. He submits that the affidavit as well as the copy of the notification, cannot be accepted. That the notification has been issued by the State Government. That the State Government has no authority to issue the same. He contends that all appointments should only be done only by the institute. It cannot be done by the Government. Therefore, neither the affidavit nor the explanation can be accepted. He goes on to contend that since the notification is issued by the Government and the appointment is made in terms of the said notification, it is bad in law and that it is void. That since the notification itself is void, the appointment order issued is therefore unsustainable.

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Susheel Kumar Mehta vs. Govind Ram Bohra reported in (1990) (1) SCC 193; Ashok Kumar Sahu vs. Union of India reported in (2006) (6) SCC 704; J.Shashidhara Prasad V. Governor of Karnataka reported in (1999) 1 SCC 422 and Kendriya Vidyalaya Sanghathan vs. Ajay Kumar Das reported in (2002) 4 SCC 503.

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(d) Sri.Kantharaj, the learned Additional Advocate General supports the contention. He pleads that when the notification calling for the said post itself is erroneous, no appointment could be made on the basis of such a notification. Hence, it is bad in law and liable to be quashed.

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(e) In support of his case, he relies on the judgment in the case of THE STATE OF PUNJAB VS. JAGDIP SINGH AND OTHERS reported in AIR 1964 SC 521 with particular reference to Paras 8. Therein the

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Hon'ble Supreme Court held that when an appointment order is void on the ground that the authority which made it had no power to make it, cannot give rise to any legal rights. Therefore, when the Government itself realizes that an order made by an authority under the Government is void, is the Government powerless to do anything in the matter. The Hon'ble Supreme Court was of the view that the confirmation of the appointment was invalid and therefore, the Government was well within their authority to invalidate such an appointment.

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(f) On hearing the contentions and considering

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the judgments relied upon, I ‘am of the considered view

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that the same would not assist the case of the respondents. What is sought to be contended by the respondents is that the appointment of the petitioner is invalid. Since the notification being bad in law, the petitioner could not be appointed. That

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the appointment based on the notification is against the rules and the bye-laws. Therefore, it is a void order. Since the appointment order itself is a void order, the question of seeking any extension on contract basis therefore does not arise for consideration. That when an appointment order is opposed to the rules and bye-laws, the same is void.

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(g) However what is significant is that the

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present petitions do not relate to the validity of the appointment order dated 23.5.2011. That is not the issue involved herein. It is not even a case where the Government withdrew the order of appointment or that the said order of appointment was cancelled. In fact, in the subsequent resolution dated 11.02.2013 as well as the Government order dated 31.05.2013, there is not even a reference to the order of 23.5.2011. In the subsequent order dated 31.05.2013, the Government states that the petitioner has attained the age of

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superannuation on 31.05.2013. This is the

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understanding of the Government. If the contention of the State Government is to be accepted, the same runs contrary, not only to the earlier order of appointment dated 23.05.2011 which speaks of a tenure post, but also that the order dated 31.05.2013 does not speak of the same. The subsequent order does not refer as to whether the initial order of appointment is bad or that the initial order of appointment is withdrawn or it is not sustainable in law. These cannot even be inferred from the subsequent impugned order vide Annexure-J. It is only due to the fact that the affidavit is produced, that such a contention is being advanced. Therefore, I ‘am of the considered view that the judgment relied upon by the State in the case of STATE OF PUNJAB would not be applicable to the case on hand. That was the judgment where the Government had withdrawn the order of appointment. The case on hand is different. The order of appointment vide Annexure-D has not been

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withdrawn. It has not been recalled. It has not been questioned before any Forum. Therefore, the facts are alien to the present petitions.

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(h) The learned Government Advocate has also

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filed an additional statement of objections to the affidavit filed by the petitioner. In the said additional objections to the affidavit, the State Government have taken a stand that under the old bye-laws, the Government is the appointing authority and the Governing Council is the Selecting Committee and therefore, the appointment order was issued by the Government. However under the new bye-laws, the appointing authority is the Governing Council. However, the Government which is superior than the Governing Council can pass the impugned orders.

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Further, neither the 3^rd respondent – institute nor the petitioner have raised objections regarding the issuance

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of the appointment orders by the 1^st respondent-

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Government. That the contention raised by the petitioner stating that the Government has no power to issue the appointment order is not acceptable and estopped from raising those grounds in these Writ Petitions.

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(i) The additional statement of objections filed

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by respondent No.4 to the affidavit of the petitioner, pertains to the merits of the writ petitions. The merits of the petitions have been covered in the earlier objections filed by them. With regard to the affidavit it is stated that it lacks bonafide and requires to be rejected.

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(j) On hearing learned Counsels, I ‘am of the considered view that the contentions advanced by the respondents, cannot be accepted. No undue advantage accrues to the petitioner by producing the copy of the notification. The copy of the notification is produced

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along with the affidavit in order to appraise the Court of the existence of such a notification. The fact that the notification has been issued by the State Government and the State Government has appointed the petitioner as a Dean in terms of Annexure-D is undisputable. Therefore, merely because the notification has been produced for perusal, the respondents cannot be allowed to plead that the notification itself is bad in law and consequently that the order of appointment is void. They have acquiesced in the advertisement as well as in the appointment process. They are part and parcel of the selection process as well as all further proceedings. It has never been their case at all, that the notification and the initial order of appointment, is erroneous and opposed to law. Such an objection has been raised by the respondents only because a copy of the paper publication is being produced. In my considered view, the objections are unsustainable. It is only an affidavit along with the copy of the notification that has been

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produced and nothing else. Even otherwise, para 35 of the Judgment of the Hon’ble Supreme Court in CAUVERY COFFEE TRADER’s case as discussed above, is applicable to the respondents. Under these circumstances, the contention of the respondents opposing the affidavit as well as the xerox copy of the notification stands rejected.

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(k) Yet another aspect of the matter is that, even

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for the sake of the arguments, if it is to be held that the affidavit of the petitioner is not accepted but rejected then what would be the effect. In my considered view, it would have no effect. The gigantic arguments being advanced by the respondents with regard to issue of the notification for the post of Dean cum Director dated 30.11.2010 being bad in law or it has been wrongly issued by the wrong respondent, etc are contentions only in opposition to the affidavit. The affidavit is only to appraise the Court of its existence. No additional

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advantage accrues to the petitioner by producing the Notification. Therefore, even for the sake of arguments, if the affidavit is rejected, the same would have no bearing on this case.

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Under these circumstances, it is therefore clear and established that the appointment of the petitioner in terms of Annexure-D dated 23.05.2011 is for a fixed tenure. It is for a period of three years. It would consequently expire on 22.05.2014. In view of the judgment of the Hon'ble Supreme Court in L.P.Agarwarl and P.Venugopal’s cases, I have no hesitation to hold that the post involved is a tenure post. It cannot be curtailed by importing theories of superannuation. The petitioner is therefore entitled to hold the post as a Dean cum Director up to 22.05.2014.

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For the aforesaid reasons, the Writ Petitions are allowed.

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(i) Annexure-J dated 31.05.2013 issued by the

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1^st respondent and the consequential Annexure-K

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dated 31.05.2013 issued by the 3^rd respondent are quashed.

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(ii) It is held that in terms of the notification dated 23.05.2011, vide Annexure-D ,appointing the petitioner as a Dean cum Director for a period of three years, the petitioner shall continue to hold the said post up to 22.05.2014.

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(iii) The respondent No.4 is directed to hand over

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charge of the said post to the petitioner forthwith.

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(iv) The respondents 1 to 3 to ensure immediate compliance.

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Rule issued and made absolute.

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Sd/JUDGE

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Prs*

Dr O S Siddappa v. State of Karnataka

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Dr O S Siddappa v. State of Karnataka

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