Allowed

Sri Dr. Digambarappa S/O Pandapap Biradar v. the State of Karnataka

Karnataka HC3 Jun 2022WP/100928/2022

Case brief

AI extract

What is this about?

The High Court quashed orders placing the Petitioner and 3rd Respondent in-charge of the same post despite the Petitioner's admitted seniority. The Court held that in-charge arrangements are not appointments under the Act, so the University was bound by a Government Order to strictly follow seniority rules.

What did the court decide?

Impugned orders Annexure-C and Annexure-D were quashed; University directed to place the Petitioner in-charge of Director of Education post per Government Order.

Sri Dr. Digambarappa S/O Pandapap Biradar Vs the… — Service and Employment | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF JUNE, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE N.S. SANJAY GOWDA

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W.P.No.100928/2022(S-RES)

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BETWEEN:

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SRI.DR. DIGAMBARAPPA, S/O PANDAPPA BIRADAR, R/O MADHUBAN, HOUSE No.6, MALAPRABHA NAGAR, DHARWAD AGED ABOUT 61 YEARS, OCC:PROFESSOR AND HEAD, DEPT. OF AGRONOMY, UNIVERSITY OF AGRICULTURAL SCEINCES (UAS), DHARWAD.

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… PETITIONER

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(BY SRI. P.N.HATTI, ADV.)

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AND:

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THE STATE OF KARNATAKA, REPT. BY ITS PRINCIPAL SECRETARY, DEPT. OF AGRICULTURE, 4^TH FLOOR, M.S.BUILDING, BANGALORE – 560 001.

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THE REGISTRAR, UNIVERSITY OF AGRICULTURAL SCIENCES(UAS) DHARWAD – 580 005.

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DR. R.BASAVARAJAPPA, R/O 4^TH CROSS, SBI COLONY, DHARWAD, OCC:PROFESSOR OF AGRONOMY,

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UNIVERSITY OF AGRICULTURAL SCIENCES(UAS) DHARWAD – 580 005.

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… RESPONDENTS

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(BY SRI. V.S. KALASURMATH, HCGP FOR R-1; SRI. RAMACHANDRA A. MALI, ADV., FOR R-2; SRI. HARSH DESAI, ADV., FOR R-3)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER PASSED BY RESPONDENT No.2 BEARING No.AHAKA / SHISHA-5 / PS / IN / 2021-22 /2348-B DATED 27.01.2022 VIDE ANNEXURE-C, ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 19.04.2022, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING

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ORDER

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In this writ petition, the petitioner is challenging order dated 27.01.2022, Annexure-C, by which the University of Agricultural Sciences, Dharwad (‘the University’ for short) has placed the 3^rd respondent incharge of the post of Director of Education of the University and also order dated 28.02.2022, AnnexureD, by which the petitioner has been posted as the incharge Dean (Forestry), for the Forest University, Sirsi.

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The petitioner also seeks for a mandamus to be issued to the 2^nd respondent to consider his representation dated 28.02.2022, by which he was requesting to be placed as the in-charge Director of Education in the place of the 3^rd respondent.

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It is the case of the petitioner that there is a Government Order issued on 14.11.2019, which has been produced as Annexure-B, in which the Government has issued a specific direction to all the Vice-Chancellors of all the Agricultural Universities and also the Horticultural Universities that whenever a vacancy arises in any post in the cadre of Officers, and any in-charge arrangement is to be made for those posts, they would have to be made only in accordance with seniority with the condition that the Officer so appointed shall not hold any other post.

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The petitioner contends that he is the senior-most Professor [HAG], which is not in dispute, as the 3^rd respondent is admittedly junior to the petitioner, as

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could be seen from the provisional seniority list, which has been produced as Annexure-A.

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It is the case of the University that they have undertaken a policy of rotation in the sense that they would appoint the senior-most Professors for six months whenever a vacancy arose in the post of Officers and in the case of the petitioner, they had already appointed him to the post of Director of Education earlier and therefore, it had been decided to afford an opportunity to the 3^rd respondent.

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It is also contended that the Government Order

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that has been relied upon is only directory and not mandatory and would not bind the Vice-Chancellor of the University. It is also to be contended that in a meeting chaired by the Principal Secretary to the Government, it had been clarified that the issue of temporary appointment to the post of Officers was left to the discretion of the Vice-Chancellor and therefore, the

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Order that had been now passed by the Vice-Chancellor could not be questioned by the petitioner.

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The 3^rd respondent, who is the beneficiary of the impugned order, also contends that the petitioner had earlier served as the Director of Education and he cannot insist that he alone should be continued or appointed as the Director of Education based on seniority. It is contended that the petitioner is a tainted officer and he was guilty of misconduct during his earlier tenure which had been deprecated by the Board of Management. It is also stated that the post of Director and Dean both carry the same Rank and also carry the same pay-scale and it is therefore submitted that since the petitioner had been appointed as a Dean, which was equal in the cadre and pay, he cannot have any grievance about the appointment of the 3^rd respondent as the Director of Education.

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Lastly, it is argued by both the learned counsel for

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the University as well as by the learned counsel for 3^rd

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respondent that the proviso to Section 30 of the Universities of Agriculture Sciences Act, 2009 (for short ‘the Act’) states that the Vice-Chancellor has been empowered to make appointments of officers as a temporary measure for six months under intimation to the concerned authority of the University and since the Vice-Chancellor had exercised that power and appointed the 3^rd respondent, the same could not be questioned by the petitioner.

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Having heard the learned counsel for the parties, the question that arises for consideration is:

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(i) Whether the Vice-Chancellor can place a Professor an in-charge Director, a post which is classified as an Officer under Section 24 (iv) of the Act, ignoring the seniority and disregarding the direction issued by the Government, vide its Order dated 14.11.2019?

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It is not in dispute that the post of a Director is classified as an Officer of the University under Section

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24(iv) of the Act. Section 30 of the Act states that the Officers of the University specified in Clauses (iv) to (ix) of Section 24 of the Act shall be appointed by the ViceChancellor with the approval of the Board on such terms and conditions as may be prescribed. The proviso to Section 30 of the Act states that the Vice-Chancellor may also make appointments of such Officers as a temporary measure for six months under intimation to the concerned Authority of the University.

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It is to be noticed here that Section 30 deals with the power of the Vice-Chancellor to appoint an Officer. An appointment is when a person is named as the incumbent of an office and vested with the powers to discharge the functions of an office by a person or persons who have the authority to appoint. The person so appointed has the right to hold the post till he is removed from the office in a manner prescribed.

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The Placement of an employee on an in-charge basis can never be considered to be an appointment

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since no right vests in that person to hold the said post or to retain the said post and he is merely placed in charge over the said post. Thus, in respect of the placement of an employee of the University as an Officer, as an in-charge arrangement, the provisions of Section 30 of the Act cannot come into play at all.

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Section 30 of the Act is a provision which enables the Vice-Chancellor to appoint Officers of the University as specified in Clauses (iv) to (ix) of Section 24 of the Act. This power to appoint fundamentally enables the Vice-Chancellor to appoint a person and thereby create a right in favour of the appointee to hold that post on such terms and conditions as may be prescribed. The power to appoint would also necessarily include the power to appoint temporarily. The proviso to Section 30 of the Act recognises this right but circumscribes it with a condition that the tenure of the appointment cannot exceed six months. It is to be noticed here that even this temporary

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appointment confers a right on the appointee to hold the post only for six months.

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However, in respect of an in-charge arrangement, no right is created in favour of the person who is placed in-charge to hold the post and discharge the duties associated with that post until a regular appointment is made. It is purely an ad hoc arrangement to meet the exigencies of service.

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It is therefore clear that the power to appoint officers temporarily for six months by the ViceChancellor as provided under the proviso to Section 30 of the Act cannot and should not be equated with the power to place an employee in-charge of a vacant post. The power to appoint temporarily does not mean that the Vice-Chancellor can place any person on an incharge basis as if he is appointing the employee temporarily. This understanding of the University in equating the power to appoint temporarily under Section

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30 of the Act to the power to make an in-charge arrangements is misconceived.

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The learned Counsel on both sides candidly admit that neither the Act nor the Statutes contain any provision enabling the Vice-Chancellor to place a Professor on an in-charge basis to the post of Director. In other words, the Act and the Statute are silent about the power of the Vice-Chancellor to make in-charge arrangements for vacant posts pending the filling up of those posts by regular appointments under Section 30 of the Act.

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Given this position, the Government Order dated 14.11.2019 issued by the State Government assumes importance and relevance. The said Order, which relates to the making of in-charge arrangements for the posts of Officers, reads as follows:

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“PÀ£ÁðlPÀ ¸ÀPÁðgÀ

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¸ÀASÉå/PÀÈE 24 PÀÈ«« 2019 PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀaªÁ®AiÀÄ, §ºÀÄªÀÄºÀrUÀ¼À PÀlÖqÀ,

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¨ÉAUÀ¼ÀÆgÀÄ. ¢£ÁAPÀ:14.11.2019

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“dgÀÆgÀÄ”

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EªÀjAzÀ,

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EªÀjUÉ,

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DzÀÝjAzÀ ¥Àæ¸ÀÄÛvÀ gÁdåzÀ J¯Áè PÀÈ¶ «±Àé«zÁå®AiÀÄ, PÀÈ¶ ªÀÄvÀÄÛ vÉÆÃlUÁjPÉ «±Àé«zÁå®AiÀÄ ºÁUÀÆ vÉÆÃlUÁjPÁ «±Àé«zÁå®AiÀÄUÀ¼À°è

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vÀªÀÄä £ÀA§ÄUÉAiÀÄ

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(ºÉZï.J¸ï.®PÀëöätUËqÀ) ¸ÀPÁðgÀzÀ C¢üÃ£À PÁAiÀÄðzÀ²ð, PÀÈ¶ E¯ÁSÉ (¸ÉÃªÉUÀ¼ÀÄ ªÀÄvÀÄ ¸ÀªÀÄ£ÀéAiÀÄ)

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¥ÀæwAiÀÄ£ÀÄß: ¸ÀPÁðgÀzÀ PÁAiÀÄðzÀ²ð, vÉÆÃlUÁjPÉ E¯ÁSÉ,

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ºÉÆgÀr¹zÉ

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¢£ÁAPÀ:16.11.2019.”

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18. As could be seen from the aforesaid Order, the

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Government has issued a categorical direction to all the Vice-Chancellors of all the Agricultural Universities and Horticultural Universities in the State that whenever a vacancy arose in the post of Officers and it had been decided to fill them up by way of an in-charge arrangement, the said posts would have to be filled up by the Vice-Chancellor only on the basis of seniority from

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amongst the senior officers. In other words, in the case

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of in-charge arrangements, a specific Government Order has been issued and in the absence of any statutory provisions governing the issue, the Government Order is necessarily binding on the University.

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The argument that this direction would not bind the University and the Order is only directory and not mandatory cannot be accepted.

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Section 10 of the Act stipulates that the Chancellor may either suo moto or on the recommendation of the State Government issue such directions as may be necessary or expedient in the interest of both administration and academic functioning of the University and in particular to ensure peace and tranquillity and to protect the property and finances.

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It is also noticed here that Section 8 of the Act which deals with the power of inspection and control also contemplates that whenever it is requested by the Government, the Chancellor should cause an inspection

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or an inquiry to be made by such person or persons and on submission of a report in that regard and on receipt of findings recorded by the Chancellor submitted to the State Government for necessary action, the State Government has been empowered to direct the ViceChancellor to initiate action. It is also to be noticed here that the State Government under Section 8(10) has the power under the Act to annul any order, notification, resolution or any Proceedings of the University, which, in its opinion, is not in conformity with the provisions of the Act, or the Statutes, regulations or ordinances or, is otherwise inconsistent with the policy of the State Government.

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A conjoint reading of Sections 10 and 8 of the Act would indicate that there is inherent power in the Government to issue appropriate directions for the proper functioning of the University. Therefore, the argument of the counsel for the University and the 3^rd

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respondent that the direction dated 14.11.2019 is only directory and not mandatory, cannot be accepted.

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The reliance placed upon the resolution passed in a meeting held on 08.02.2022 under the Chairmanship of the Principal Secretary to the Government, Agriculture Department can also be of no avail. These proceedings had been convened to review the demand of the Teachers’ Association, University of Agriculture Sciences, Dharwad, and one of the subjects that the Principal Secretary was reviewing was with regard to the demand relating to the recruitment of Statutory Officers of University of Agricultural Sciences, on a permanent basis at the earliest and till that time, rotation of the officers on every six months was required to be implemented. In that regard, the Principal Secretary had opined that the Rules had not been prescribed in that regard and there were no terms of reference also made in that regard and therefore, it was resolved to leave the issue at the

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discretion of the Vice-Chancellor, University of

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Agricultural Sciences, Dharwad.

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It has to be stated here that the directions issued by the Government was obviously not considered by the Principal Secretary and in the light of the fact that the Government Order has been in subsistence right from 2019, a Resolution passed in a meeting convened to discuss the demands of the Teachers’ Association, cannot over-ride the Government Order.

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I am, therefore, of the view that the University is bound by the directions issued by the Government as per Annexure-A.

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The argument that the petitioner had already held the post of Director of Education and therefore he should not be permitted to be placed as an in-charge once again cannot also be accepted.

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It is to be noticed here that the placing of an employee on an in-charge arrangement is not a

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substantive appointment and it is only an interim or stopgap arrangement. In the instant case, when the Government has issued a direction specifying the manner in which even an in-charge arrangement is to be made, the fact that the petitioner had occupied that post earlier, is of no consequence. The Government Order does not debar a person who has already held the post on an in-charge basis to be appointed for the second time or the third time and therefore, I am of the view that this argument is also of no consequence.

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As already stated above, it is not in dispute that the petitioner is admittedly senior to the 3^rd respondent. If that is the admitted position, in the matter of making an in-charge arrangement to the post of Director of Education, obviously the University was required to appoint the senior-most person i.e., the petitioner. That having not been done, both Annexure-C and Annexure-D cannot be sustained and the same would have to be quashed and they are accordingly quashed.

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Consequently, a direction will also have to be issued to the University to act in accordance with the Government Order dated 14.11.2019, Annexure-B, and place the petitioner in the post of Director of Education on an in-charge basis till regular recruitment is done as

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per Section 30 of the Act. Ordered accordingly.

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30. The writ petition is accordingly allowed .

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SD JUDGE

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RK CT:SN

Sri Dr. Digambarappa S/O Pandapap Biradar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Dr. Digambarappa S/O Pandapap Biradar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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