SRI.A.M.BHASKAR vs. THE STATE OF KARNATAKA

The State of Karnataka,

The Deputy Secretary to Government,

University of Mysore,

C.K.Jagadish,

T.H.Srinivasaiah,

Dr.K.V.Acharya,

State of Karnataka,

Bangalore University,

Sri K.M.Nataraj, the learned Senior Counsel appearing for M/s.Haranahalli and Patil Associates for the petitioners in W.P.Nos.25964-25967/2013 submits that in all the 17 Universities in the State, the nominations to the

When a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of the President is not circumscribed by any conditions or restrictions, it follows that the power is exercisable at any time, without assigning any cause. However, there is a distinction between the need for a cause for the removal, and the need to disclose the cause for removal. While the President need not disclose or inform the cause for his removal to the Governor, it is imperative that a cause must exist. If we do not proceed on that premise, it would mean that the President on the advice of the Council of Ministers, may make any order which may be manifestly arbitrary or whimsical or mala fide. Therefore, while no cause or reason be disclosed or assigned for removal by exercise of such prerogative power, some valid cause should exist for the removal. Therefore, while we do not accept the contention that an order under Article 156 is not justiciable, we accept the contention that no reason need be assigned and no cause need be shown and no notice need be issued to the Governor before removing a Governor.

The President in exercising power under Article 156(1) should act in a manner which is not arbitrary,

We summarise our conclusions as under:

Based on the above-extracted decision, Sri Nataraj would contend that the withdrawal of the nominations should be for good and compelling reasons. The learned Senior Counsel has also drawn support from the Apex Court’s judgment in the case of KUMARI SHRILEKHA VIDYARTHI ETC., v. STATE OF U.P. AND OTHERS reported in AIR 1991 SC 537 wherein, the removal en mass of all District Government Counsel in U.P fell for consideration. The Apex Court has taken the considered view that the presence of public element attached to the office or post of the District Government Counsel is sufficient to attract Article 14 of the Constitution of India and bring the question of validity of the impugned circular terminating the appointment of all District Government Counsel in Uttar Pradesh within the scope of judicial review. It has vividly explained the provisions enabling the Government to terminate the appointment ‘at

He has also relied on this Court’s decision, dated 22.11.2010 passed in W.P.No.26273/2010 (GM-RES) in the case of KHUSRO QURAISHI v. STATE OF KARNATAKA AND OTHERS, wherein it is held that while removing a person from the office, who is holding it during the pleasure of the Government, the conclusions in B.P.Singhal’s case

The learned Senior Counsel submits that only because of the change in the Government, the petitioners, who are nominated in the category of eminent educationists under Section 28(1)(g) of the said Act, are being removed. The Government has not even reviewed the matter on case to case basis. It has removed them en mass. It has removed all the nominated members of the Syndicates of all the 17 Universities in the State.

He submits that the provisions contained in Sections 38(1) and 39(1) of the said Act are to be construed harmoniously. The provisions contained in the said Sections are as follows:- “38.The term of Office of the Members of the Academic Council and syndicate: (1) Save as otherwise provided the term of the office of the Members

Restriction of holding the membership of the authorities: (1) Any member nominated of any of the authorities under this Act shall hold office during the pleasure of the nominating authority concerned.”

To ensure that one provision does not render the other provision nugatory, the only construction that can be put is that normally the nominated members of the Syndicate hold office for a fixed period of three years. Unless the good and compelling reasons exist, they cannot be removed on the ground of the loss of confidence of the Government.

The learned Senior Counsel, relying on the Apex Court’s judgment in the case of SULTANA BEGUM v. PREM CHAND JAIN reported in AIR 1997 SC 1006 submits that when there are two conflicting provisions in the same Act, which cannot be reconciled with each other, they should be so interpreted as to give effect to both of them. The relevant portions of paragraph No.12 of the said judgment are extracted hereinbelow:

The learned Senior Counsel submits that the file does not disclose any reason for the withdrawal of the petitioners’ nominations to the Syndicate. The decision- maker, while withdrawing the nominations, has not even called for the original file containing the nomination-papers. The learned counsel sought to draw support from the Apex Court’s judgment in the case of BRIJ MOHAN LAL v. UNION OF INDIA AND OTHERS reported in 2012(6) SCC 502 for advancing the submission that where the rule of law prevails, there can be nothing like unfettered discretion or unaccountable action. Based on the said decision, he would contend that the exercise of pleasure doctrine is subject to the fundamentals of the constitutionalism.

He also relies on the Hon'ble Supreme Court’s judgment in the case of MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS reported in AIR 1978 SC 851 for

The learned Senior Counsel read out paragraph No.14 of the Division Bench’s judgment of this Court in the case of KHUSRO QURAISHI v. STATE OF KARNATAKA AND OTHERS reported in 2012 (3) AIR Kar R 136. “14. We may now turn to the ground of challenge based on mala fide exercise of power. It is true that no reason need to be assigned for discontinuance of the pleasure resulting in removal, but such power cannot be exercised in an arbitrary, capricious or unreasonable manner. In other words, such power needs to be exercised for valid and compelling reasons. What would be compelling reason, would depend upon the facts and circumstances of each case. If a person such as the petitioner is able to demonstrate prima facie that his removal was either arbitrary, or capricious, or unreasonable, or whimsical, the Government cannot disclose any reason or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical or mala fide, the Court has enough power to interfere.”

Sri Ravishankar D.R, the learned counsel for the petitioners in W.P.No.25612/2013 and W.P.Nos.26170- 171/2013 submits that the impugned order withdrawing the nominations of the petitioners to the Syndicate of the respondent Bangalore University is passed on account of the change of Government in the State. He submits that for the first time in the history of the State, such a sweeping withdrawal of the nomination has taken place. He submits that there is no nexus between the exercise of powers of the State Government to withdraw the nomination and the object which is sought to be achieved by the State Government nominating the petitioners in the category of eminent educationists under Section 28(1)(g) of the said Act. He submits that the petitioners are not nominated for political consideration; they are nominated, as they are the eminent educationists. When their nomination is for non-political reasons, they cannot be removed for political reasons.

Sri Ravishankar submits that the nomination of the members to the Syndicate of the University under Section 28(1) (e) and (g) of the said Act is for a period of three years.

By Act 24 of 2007, which has come into force from 28.08.2007, the words “or till reconstitution, whichever is earlier” are omitted. What follows from this omission is that in the pre-amendment era, it was permissible to prematurely end the term of the office of the nominated members of the Syndicate by reconstituting the Syndicate. But in the post- amendment era, the term of the office of the nominated members of the Syndicate cannot be cut short at all.

The learned counsel brings to my notice the provisions contained in Section 39(2) of the said Act, which read as follows: “39. Restriction of holding the membership of the authorities.-

The person is made ineligible for being nominated for a second term, as he would have completed the first term. There cannot be multiple nominations in a given term.

The learned counsel relies on the Rajasthan High Court’s decision in the case of DR.S.D.KAPOOR v. THE CHANCELLOR, JAI NARAIN VYAS UNIVERSITY AND OTHERS reported in AIR 1997 RAJASTHAN 217. He read out paragraphs 31 to 35 of the said decision, which are extracted hereinbelow: “31. In my considered opinion the pleasure doctrine cannot be imported to Sections 18 and 23 of Act No. 8 of 1955 unless State Legislature makes specific provision

For deeper understanding of the controversy involved, I would like to recapitulate the distinctive features of pleasure doctrine and theory based on subjective satisfaction in following paragraphs.

The expression ‘discretionary power in administrative law’ is in process of evolution. At one hand constitutional functionaries, statutory functionaries and other executive officers are asserting unfettered discretion in the garb of either pleasure doctrine or under theory based on subjective satisfaction while on the other hand the Courts of law are making constant efforts to curb and control such unfettered discretion by evolving principles of fairness akin to principles of natural justice to ensure that such wide discretions may not be abused but properly exercised.

In fact discretionary power can be divided into two main categories i.e. based on objective satisfaction and based on subjective satisfaction. The question of objective satisfaction is not involved in the present case, therefore, it is left open to be considered in an appropriate case. I would like to confine the discussion only with respect to doctrine of pleasure and theory based on subjective satisfaction. 35. In my opinion 'pleasure doctrine' is genus while theory based on subjective satisfaction is its specy. Thus it is obvious that theory of subjective satisfaction

He would contend that the principles of natural justice are not observed while passing the impugned order, as the petitioners are not put on any notice. The premature removal of the petitioners from the Syndicate visits them with serious consequences. When they are nominated as Syndicate members in their capacity as eminent educationists, the society cannot be made to believe that the petitioners are not the eminent educationists.

The learned counsel submits that just because there is no requirement to assign the reasons for exercising the pleasure doctrine, it does not mean that it can be exercised without or in the absence of the reasons. The arbitrary exercise of discretion would defy the rule of law.

He has also raised the challenge to the validity of the provisions contained in Section 39(1) of the said Act. He submits that the provisions contained in Section 39(1) are running contrary to the provisions contained in the statement of objects and reasons of the Act. He submits that the provisions contained in Section 39(1) are inconsistent with the provisions contained in Section 38(1) of the said Act.

He submits that Section 39(1) of the said Act is liable to be declared as unconstitutional, as the executive is exercising the unguided and unfettered discretion.

Sri Ravivarma Kumar, the learned Advocate General appearing for the State Government submits that the notification, dated 23.04.2012 (Annexure-B1 in W.P.Nos.25964-967/2013) nominating the petitioners as the members of the Syndicate itself states that their nomination is for a period of three years or until further orders, whichever is earlier. He submits that they have not challenged the said notification. Having accepted the condition in the said notification that their term is for a period of three years or

The petitioners cannot be considered as the holders of civil posts, as there was no equity of opportunity for all the citizens by calling for the applications for the nominations in question. The nominated membership cannot be treated as a public employment. Therefore, the petitioners cannot fall back on Article 16(2) of the Constitution of India. Further, as they are not the holders of any civil posts, the protection under Article 311 of Constitution of India is also not available to them.

The learned Advocate General relying on the Apex Court’s judgment in the case of STATE OF U.P. AND

He submits that there is no parallel between the cases on hand and Shrilekha Vidhyarthi’s case (supra), because the appointments in the said reported case were made following the prescribed and elaborate procedure.

The learned Advocate General has also relied on this Court’s decision in the case of PREMALATHA v. THE STATE OF KARNATAKA AND ANOTHER reported in 2002(1) KCCR 424 wherein it is held that the pleasure appointment can always be cancelled without notice to the nominees. There is no question of observing the principles of natural justice in the case of the pleasure appointments. He submits that the Premalatha’s case (supra) was in the context of Section 29(3) of the Karnataka Co-operative Societies Act, 1959 (‘KCS Act’ for short). He submits that the provision contained in Section 39(1) of the Karnataka State Universities Act, 2000 are similar to the provisions contained in Section 29(3) of the KCS Act. He submits that pleasure and displeasure are the two faces of the same coin. The petitioners cannot accept one face and refuse to accept the other face. The petitioners’ nominations by their very nature are vulnerable to the exercise of pleasure doctrine.

The learned Advocate General has also relied on this Court’s decisions in VISHNU v. STATE OF KARNATAKA AND

He also relies on the Division Bench’s judgment in the case of RAMANAGOUDA v. STATE OF KARNATAKA AND OTHERS reported in (2002) 2 Kar.L.J. 327, wherein it is held that the State Government is competent to revoke the nomination of a member of the Committee of the assisted Co- operative Society without assigning any reason before the expiry of the period for which he was nominated.

He has also relied upon the Division Bench’s judgment in the case of Khusro Quraishi (supra). The relevant portions of the said judgment are as follows:

……… The petitioner, therefore, cannot contend that in view of section 4 of the Act, he cannot be discontinued/removed by the Government till he completes the period of 3 years. If the petitioner claims that his appointment ought to have been made for a

Thus, in our view the provisions containing section 4 neither offend any article of Constitution nor the same is against public policy or democratic schemes enshrined in the Constitution. There is no question of any violation of principles of natural justice in not affording any opportunity to the nominated members including the chairman before their removal nor their removal under the pleasure doctrine contained in section 4 of the Act puts any stigma on their performance or character. At this stage, we cannot overlook that such appointments are purely on political considerations. In the circumstances, the first submission of Mr. Jayaram, learned counsel for the petitioner must be rejected.”

He submits that there is no whisper of the petitioners being the eminent educationists in the memorandum of the writ petition. Be it as it may, the

The learned Advocate General submits that the petitioners are not justified in trying to draw the support from the Apex Court’s judgment in the case of B.P.Singhal (supra). In Singhal’s case what fell for consideration was the removal of the Governors. He submits that Article 155 of the Constitution of India states that the Governor shall be appointed by the President. In the instant case, the petitioners are not appointed, but they are only nominated. He submits that the greater degree of protection to the tenure of the Governor given by the Constitution is because the Governor has to discharge his constitutional functions.

He submits that Section 38 of the said Act virtually prescribes the outer limit of three years. There is no conflict between Section 38(1) and 39(1). Section 39(1) limits the period by stating that the nominated members shall hold the

The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with other parts of the law and the setting in which the clause to be interpreted occurs. (See R.S.Raghunath v. State of Karnataka.) Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute. It is the duty of the court to avoid a head-on clash between two sections of the same Act. (See Sultana Begum v. Prem Chand Jain.)

Whenever it is possible to do so, it must be done to construe the provisions which appear to conflict so that they harmonise. It should not be lightly assumed that Parliament had given with one hand what it took away with the other.

The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. Thus a

Relying of the Apex Court’s judgment in the case of OM NARAIN AGARWAL AND OTHERS v. NAGAR PALIKA, SHAHJAHANPUR AND OTHERS reported in AIR 1993 SC 1440, the learned Advocate General would contend that the right of equality enshrined in Article 14 of the Constitution applies to equals and not to unequals. The nominated members of a municipal board fall in a different class and cannot claim equality with the elected members. The relevant portions of the said judgment relied upon by the learned Advocate General are extracted hereinbelow: “10. ………… The initial nomination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the Legislature authorized the State Government to terminate such appointment as its pleasure and to nominate new members in their place. The nominated members do not have the will or authority of any residents of the

In our view, such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations. In Dr.Rama Mishra’s case (1992 All LJ 199), the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 15(3) of the Constitution…........

……………….We are not impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived the fundamental right of equality as enshrined in Article 14 of the Constitution. It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and not to unequals. The nominated members of the Board fall in a different class and cannot claim equality with the elected members. We are also not impressed with the argument that there would be a constant fear of removal at the will of the State Government and is bound to demoralize the nominated members in the discharge of their duties as a member in the Board. We do not find any justification for drawing such an inference, inasmuch as, such contingency usually arises only with the change of ruling party in the Government. Even in the case of highest functionary in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to demoralize or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office.”

He submits that a law made by the legislature can be struck down by courts on two grounds and two grounds alone, viz., (i) lack of legislative competence and (ii) violation of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. In support of this submission, he read out paragraph No.82 of the Apex Court’s judgment in the case of GREATER BOMBAY CO-OP. BANK LTD. v. UNITED YARN TEX (P) LTD. AND OTHERS reported in 2007(6) SCC 236. “82. The constitutional validity of an Act can be challenged only on two grounds viz. (i) lack of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. In State of A.P. v. Mc.dowell & Co. this Court has opined that except the above two grounds, there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds.

The submissions of the learned counsel have received my thoughtful consideration. The following two questions arise for my consideration:

In Re.Q.No.(i): As held by the Honb’le Supreme Court in the case of STATE OF ANDHRA PRADESH AND OTHERS v. MC.DOWELL & CO. AND OTHERS reported in

In its decision in the case of CHIRANJIT LAL CHOWDHURY v. THE UNION OF INDIA AND OTHERS reported in AIR 1951 SC 41, the Apex Court has held that the presumption is always in favour of the constitutionality of an enactment. It must be presumed that a legislature understands and correctly appreciates the need of its own people. It is also helpful to refer to the Hon’ble Supreme Court’s decision in the case of PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER v. UNION OF INDIA AND OTHERS reported in (2004) 2 SCC 476, wherein it is held that a statute carries with it a presumption of constitutionality. Such a presumption extends also in relation

Just because Section 39(1) of the said Act is said to be inconsistent with Section 38(1) of the said Act, the striking down of the former is not permissible. The catena of decisions, to which the references are made hereinabove, clearly restrict the scope for invalidation of the statutory provisions only to the two above grounds.

That apart, while interpreting the statute, judicial care has to be taken to ensure that a statute does not become unworkable. The construction of the various provisions of a statute has to be such that the inconsistency or repugnancy or conflict between the two Sections of the same Act does not render one Section nugatory. The statutes must be read as a whole and its provisions must be construed with reference to the other provisions of the same Act. It is the bounden duty of the courts to avoid the head-on clash between the two Sections of the same Act. The foremost duty of the Court is to give effect

In the case of CHIEF JUSTICE OF ANDHRA PRADESH AND ANOTHER ETC. v. L.V.A. DIXITULU AND OTHERS, ETC. reported in AIR 1979 SC 193, the Apex Court has observed as follows in paragraph No.64: “64. Where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working and eschew the other which leads to absurdity, confusion or friction, contradiction and conflict between its various provisions or undermines or tends to defeat or destroy the basic scheme and the purpose of the enactment.”

While constructing the general provision contained in Section 38(1) of the said Act, Section 39(1) of the said Act cannot be disregarded. In interpreting the statutory provision contained in Sections 38 and 39, it can be safely said that the term of the office of the nominated members of the Syndicate is for three years. But they can be removed before the expiry of their term, if the nominating authority withdraws its

Not finding any of the only two permissible grounds for invalidating Section 39(1) of the said Act, I answer question No.(i) in the negative.

In Re.Q.No.(ii): In the case of Premalatha (supra) falling for consideration under the KCS Act, it is held that the pleasure appointments can always be cancelled without notice to the nominees. There is no question of observing the principles of natural justice while cancelling the pleasure appointments. In the case of Vishnu (supra) also, this Court has held that the State Government has the power to cancel the nominations of all the members, who are appointed under Section 29(1) of the KCS Act.

The provisions contained in Section 29(3) of the Karnataka Co-operative Societies Act, 1959 and the

Restriction of holding the membership of the authorities: (1) Any member nominated of any of the authorities under this Act shall hold office during the pleasure of the nominating authority concerned.”

Nominees of Government on the committee of an assisted co- operative society.-

The Division Bench’s judgment in the case of Ramanagouda (supra) is also in agreement with the views of the two learned Single Judges.

The Apex Court’s judgment in the case of B.P.Singhal (supra) does not come to the rescue of the petitioners in any way. The said judgment was rendered in the context of the removal of the Governor of a State. The Apex Court has held that the reasons have to exist for the removal of the Governor, because he acts as the connecting

Similarly, Kumari Shrilekah Vidyarthi’s case (supra) has also no application for the facts of this case. In the said reported case, the District Government Counsel were appointed following the issuance of the notification, prescription of the qualifications and experience, preparation of the panel, etc. The procedure prescribed by Legal Remembrancer’s Manual was scrupulously followed while making appointments to the offices of the District Government Counsel. In the instant case, it is not even the case of the petitions that the applications were called for from the desirous educationists for being nominated to the Syndicates. Nor any Search Committee consisting of experts

The four petitioners in W.P.Nos.25964-25967/2013 and two others were nominated to the Syndicate of Mysore University based on the letter, dated 2.2.2012 issued by the Vice President of the Bharatiya Janatha Party – Karnataka. On the said letter, the then Hon'ble Chief Minister has directed that they be nominated. The said letter and the endorsement thereon read as follows:

Consequent to the direction of the State Government, the Mysore University has issued the notification, dated 23.4.2012 nominating the petitioners in W.P.Nos.25964-25967/2013 and two others as the members of the Syndicate, Mysore University. The obviousness of the

The situation cannot be described with more candid objectivity than what the Apex Court has said in the case of State of U.P (supra) that those who come by the back door have to go by the same door. The Apex Court has held that the persons appointed by arbitrary procedure cannot challenge the termination of their services on the ground of the same being arbitrary. Their induction itself being the product of the operation of the spoils system, no public interest is involved in saving their appointments.

Similarly, the Division Bench’s judgment in the case of Khusro Quraishi (supra) can also be of no assistance for the petitioners. In paragraph No.14 of its judgment, the need for the existence of reasons is made a pre-requirement for the removal of the nominated person, only if the challenge to the removal is based on the mala fide exercise of power. No foundation is laid in the memorandums of two petitions to

The impugned orders do not state any reasons for withdrawing their nominations. Therefore, the arguments of the petitioners that on the withdrawal of their nominations, they are being depicted in bad light cannot be accepted.

The petitioners have no legally vested right to demand that they be continued as the members of the Syndicate for fixed period of three years. The petitioners are neither elected nor appointed. They are nominated and they would hold the office so long as the Government does not withdraw its pleasure. The Apex Court in the case of Om Narain Agarwal (supra) has held that the nominated members of a municipal board fall in a different class and that therefore they cannot claim equality with the elected members. The Apex Court has negatived the submission that there would be a constant fear of removal at the will of the State Government and that it would demoralize the nominated members in the discharge of their duties.

For all the aforesaid reasons, I answer question No.(ii) in the negative. The impugned orders cannot be assailed with any rate of success on the ground that no reasons exist for the removal of the petitioners.

W.P.Nos.25964-25967/2013 are liable to be dismissed for an additional reason too. The said petitioners have accepted the Mysore University’s notification, dated 23.4.2012 (Annexure-B1), which states that they are nominated for a period of three years or until further orders, whichever is earlier. Having accepted such an order or notification with their eyes wide open, they cannot turn around and say that they have a fixed term of office for three years.

In the result, both the petitions are dismissed. No order as to costs.