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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER 2015 BEFORE THE HON’BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION Nos.49623-49624/2015 (EDN-RES) C/w W.P.Nos.50024-50025/2015, 50528-50529/2015 And 47796/2015
W.P.Nos.49623-49624/2015:
BETWEEN:
Dr. Gangadhar,
Aged about 65 years, S/o late Javare Gowda, R/at No.59, I Cross, III Main Road, Income Tax Layout, Vijayanagara, Bengaluru – 560 040.
Sri N.Appaji Gowda,
Aged about 50 years,
S/o late Nanje Gowda,
R/at No.162, “Nydile”, 6th Cross, Bapuji Extension, Chandra Layout, Vijayanagara, Bengaluru – 560 040.
…Petitioners
(By Sri H.C.Shivaramu, Advocate)
2 AND:
State of Karnataka,
Rep. by its Principal
Secretary to Government,
Department of Higher Education,
M.S. Buildings,
Dr. B.R.Ambedkar Veedhi,
Bengaluru – 560 001.
The Secretary to Governor,
Karnataka Governor’s Secretariat,
Raj Bhavan, Bengaluru – 560 001.
The Registrar,
Bengaluru University,
Jnanabharathi,
Bengaluru – 560 062.
Sri N.Sanjeeva Reddy,
Age: Major,
Father’s name not known
to the petitioners,
R/at No.205,
“Sree Lalitha Krupa”,
A Block, 14th Main,
Subramanayanagara,
Srirampura, Bengaluru – 560 021.
Sri Jayachandra Reddy,
Age: Major,
S/o M.P.Krishnappa,
R/at No.22/4-1, JCR AEGIS,
Thippasandra Main Road,
Opp: Post Office,
Bengaluru – 560 076.
… Respondents
3 (By Sri E.S. Indiresh, HCGP for R-1, Sri K.Krishna, Advocate for R-2, Sri M.Keshava Reddy, Advocate for R-3)
These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the communication dated 21.10.2015 issued by the Under Secretary to Government (University) issued from the office of the Secretary to Governor, Raj Bhavan, Bengaluru i.e., R-2 vide Annexure-B and C.
W.P.Nos.50024-50025/2015:
BETWEEN:
Sri S.B. Devaraju,
Aged about 56 years, S/o late Basave Gowda, R/at P.B.No.206, Gokulam III Stage, Mysuru – 570 002.
Sri N. Chowda Reddy,
Aged about 52 years,
S/o Nanji Reddy,
R/at Acheppalli Village,
Neeragantipalli Post,
Bagepalli Taluk,
Chikkaballapura District – 561 207. …Petitioners
(By Sri Mahesh R. Uppin, Advocate)
AND:
State of Karnataka,
Rep. by its Principal
Secretary to Government,
Department of Higher Education,
M.S. Buildings,
Dr. B.R.Ambedkar Veedhi,
Bengaluru – 560 001.
The Secretary to Governor,
Karnataka Governor’s Secretariat,
Raj Bhavan, Bengaluru – 560 001.
The Registrar,
Mangaluru University,
Mangala Gangothri,
Mangaluru – 574 199.
Sri E.Shivaprasad,
Age: Major,
S/o Subramanya Bhat,
“Sankalpa”, Bolwar Bail,
Urlandi Road, Putturu,
Dakshinakannada – 574 201.
Sri Keshava Bangara,
Age: Major,
Viveka, Behind SDM College, Kodialbail, Mangaluru – 575 003.
… Respondents
(By Sri E.S. Indiresh, HCGP for R-1, Sri K.Krishna, Advocate for R-2)
These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the communication dated 21.10.2015 issued by the Under Secretary to Government (University) in No.GS 2 MLM 2014 issued from the office of the Secretary to Governor, Raj Bhavan, Bengaluru i.e., R-2 vide Annexure-B and C and etc.
5 W.P.Nos.50528-50529/2015:
BETWEEN:
Dr. T.N.Balakrishne Gowda,
Aged about 44 years, S/o T.C.Ninge Gowda, R/at No.1617, I Floor, ‘K’ Block, Ramakrishna Nagar, Mysore – 570 022.
J.M. Ayanna,
Aged about 45 years,
S/o late Mandappa,
R/at No.5, Bannimantap Layout,
Mysore – 570 015.
…Petitioners
(By Sri Mahesh R. Uppin, Advocate)
AND:
State of Karnataka,
Rep. by its Principal
Secretary to Government,
Department of Higher Education,
M.S. Buildings,
Dr. B.R.Ambedkar Veedhi,
Bengaluru – 560 001.
The Secretary to Governor,
Karnataka Governor’s Secretariat,
Raj Bhavan, Bengaluru – 560 001.
The Registrar,
University of Mysore,
Grawford Hall, P.B.No.46,
Mysore – 570 005.
6 4. B.V.Arun Kumar,
Major, Father’s name not known to
the petitioners,
R/at No.12, 4th Block,
S.B.M. Layout,
Srirampura II Stage,
Mysore – 23.
G. Narayan Prasad,
Major,
Father’s name not know to
the petitioners,
No.26/49, “Anupama”,
B.R.Hills Road,
Chamarajnagar – 571 313.
… Respondents
(By Sri E.S. Indiresh, HCGP for R-1, Sri K.Krishna, Advocate for R-2, Sri T.P.Rajendra Kumar Sungay, Advocate for R-3)
These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the notification dated 28.10.2015 issued by the R-2 signed on 31.10.2015 vide Annexure-B and C and etc.
W.P.No.47796/2015:
BETWEEN:
N.Krishne Gowda, Aged about 49 years, S/o late B. Narayan Gowda, R/at 1028/D, CH 20/D, Jayalakshmi Road, Chamarajapuram, Mysuru – 570 005.
…Petitioner
(By Sri H.C. Shivaramu, Advocate)
7 AND:
State of Karnataka,
Rep. by its Principal
Secretary to Government,
Department of Higher Education,
M.S. Buildings,
Dr. B.R.Ambedkar Veedhi,
Bengaluru – 560 001.
The Chancellor,
Karnataka State University,
Raj Bhavan, Bangalore – 560 001.
The Registrar,
Kuvempu University,
Jnana Sahyadri, Shimoga District, Shimoga – 577 204.
M.J.Dinesh,
Age: Major,
Father’s name not known
to the petitioner,
Sri Rameshwara Estate,
Devavrunda Village & Post,
Mudigere Taluk,
Chikkamagaluru District – 577 132.
K.C. Nataraj Bhagawath,
Age: Major,
Father’s name not known
to the petitioner,
“Swasthi” III Cross,
Jayadeva Extension,
Holkola, Shimoga – 577 204. … Respondents
8 (By Sri E.S. Indiresh, HCGP for R-1, Sri K.Krishna, Advocate for R-2, Sri T.P.Rajendra Kumar Sungay, Advocate for R-3)
This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the communication dated 21.10.2015 issued by the Under Secretary to Government (University) issued from the office of the Secretary to Governor, Raj Bhavan, Bengaluru i.e., R-2 vide Annexure-B and C.
These writ petitions coming on for preliminary hearing this day, the Court made the following:
O R D E R
As the question of facts and law involved in these case are the same, they are clubbed, heard together and are being disposed of by this common order.
In these batches of petitions, the challenge is raised to the orders withdrawing the nominations of the petitioners to the Syndicates of Bangalore, Mangalore, Mysore and Kuvempu Universities.
Sri H.C.Shivaramu, the learned counsel for the petitioners in W.P.Nos.47796/2015 and 49623-49624/2015 submits that the petitioner in W.P.No.47796/2015 is nominated to the Syndicate of Kuvempu University on 16.4.2014 for a fixed period of three years.
9 He submits that the petitioners in W.P.Nos.49623-49624/2015 are nominated to the Syndicate of Bangalore University on 16.11.2013 for a fixed period of three years. Their terms cannot be brought to end prematurely with a view to nominate some others. He submits that earlier Section 38 of the Karnataka Universities Act, 2000 (‘the said Act’ for short) provided for reconstitution of Syndicate even before the expiry of three years, but the Karnataka Act No.24/2007 deleted the last words of Section 38. He brings to my notice how the earlier provision stood, which is 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 other than the ex officio Members of the Academic Council and the Syndicate shall be three years, or till reconstitution whichever is earlier.”
Now the amended provision reads 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 other than the ex officio Members of the Academic Council and the Syndicate shall be three years.”
He submits that if the nominated member is to be removed from the membership of the Syndicate, it has to be strictly for the grounds enumerated in Section 39(3) of the said Act and following the procedure therein. According to him, a person who is nominated to the Syndicate for a fixed period of three years can be removed only on the grounds of misbehaviour, misconduct or otherwise and after holding an enquiry. In view of the prescription of law as specified in Section 39(3) of the said Act and the fixed tenure of the nominated members, the Chancellor cannot withdraw his pleasure. He also takes serious exception to the invoking of Section 52 of the said Act, as none of the contingencies of death, resignation or removal are present in the instant case. When the vacancies have not arisen, there is no question of nominating somebody else to the Syndicate. He submits that on the same day the petitioners are removed and others are appointed. No reasons whatsoever are forthcoming for removing the petitioners. He submits that the Chancellor is a constitutional authority and that he has to act impartially. The change of Governor cannot entail in the
11 removal of the Syndicate members. He submits that the petitioners are the eminent educationalists and that the Chancellor ought not to have removed them indiscretionally, only because he wants to bring in his own members. The removal of the petitioners, whose nominations was made by the previous Chancellor smacks of malafide exercise.
Sri Mahesh R. Uppin, the learned counsel for the petitioners in W.P.Nos.50024-50025/2015 and 50528-50529/2015 submits that the petitioners are nominated for a fixed period of three years. He submits that the decision of this Court in the case of A.M. BHASKAR AND OTHERS v. STATE OF KARNATAKA AND OTHERS reported in 2013 (5) K.L.J 519 has no application for the facts of the cases on hand because in the case of A.M. Bhaskar (supra) the nominations were only until further orders. In the instant case, the nominations are for a fixed period of three years. The right accrued to them under the nomination orders cannot be taken away.
Sri K.M.Nataraj, the learned Senior Counsel appearing for the respondent Chancellor submits that the petitioners are not appointed to any post; they are nominated to the Syndicate. They would continue to be the Syndicators so long as they enjoy the pleasure of the Chancellor. Just because their nomination orders specify that they are nominated for a period of three years, it does not mean that the Chancellor cannot withdraw his pleasure and consequently withdraw their nomination. He submits that Section 39(1) of the said Act makes the position clear as follows: “39. 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.”
He submits that various contentions now being urged on behalf of the petitioners are already negatived by this Court in its decision in the case of A.M. Bhaskar (supra).
Sri M.Keshava Reddy, the learned counsel for the respondent Bangalore University makes the submissions akin to the ones made by Sri K.M.Nataraj.
Sri E.S.Indiresh, the learned High Court Government Pleader appearing for the Government submits that the Single Judge’s order in the case of A.M. Bhaskar (supra) is also upheld by the Division Bench, by its judgment, dated 15.7.2013 passed in W.A.No.5445/2013.
The submissions of the learned counsel have received my thoughtful consideration. The only question that falls for my consideration is whether the Chancellor can withdraw his pleasure even before the expiry of the three years’ period mentioned in the nomination order. Section 38(1) of the said Act states that the term of the office of the members of the Academic Council and Syndicate shall be three years, the only exception made is in respect of ex officio members. It means that the nominated members can not over-stay, that is beyond the period of three years. But the same does not mean that their nominations cannot be withdrawn before the expiry of three years in the wake of what is stated in the next Section, that is Section 39(1). Section 39(1) of the said Act imposes
14 the restriction on the membership of the various bodies including the Syndicate. It enables and empowers the nominating authority to withdraw its pleasure, as a result of which the nominated member ceases to hold the office.
Section 39(1) of the said Act is virtually in the nature of the proviso to Section 38. If it were to be the intentment of the legislature that under no circumstances, the period of office can be curtailed, then Section 39(1) would not have been enacted at all. The legislature consists of the representatives of the people and that is why there is a presumption that the legislature knows what is good and what is bad for the people. The Court cannot sit in judgment over the wisdom of legislators.
As held by this Court in the case of A.M. Bhaskar (supra), the petitioners have no legally vested right to demand that they be continued as members of the Syndicate for a fixed period of three years. The petitioners are neither elected nor appointed.
15 13. It is also 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 to the whole expression of legislative intention. No provision of a statute can be reduced to a lumber or superfluity. If Section 38 is given all pervasive primacy to such an extent that it totally excludes Section 39, then the Syndicate members cannot be removed even on the grounds of misbehaviour, misconduct or any residuary ground.
Yet another dimension on which the issue can be examined is by assuming, for the sake of argument of the last resort, that Section 38(1) and 39(1) are irreconcilable. The latter Section has to be preferred to the earlier Section. Section 39(1) prevails over Section 38(1); the last intention of the law-makers has to prevail over the earlier intention, if it is impossible to give effect to the whole expression of the legislative intention. In taking this view, I am fortified by the Privy Council’s decision in the case of THE KING v. DOMINION ENGINEERING CO., LTD.
16 reported in AIR 1947 PC 94. The relevant portion of the said decision reads as follows: “…… If proviso 2 is repugnant in any way to proviso 1 it must prevail for it stands last in the enactment and so to quote Lord Tenterden C.J., “speaks the last intention of the makers.”
For the aforesaid reasons, I dismiss these petitions notwithstanding the persuasive arguments of Sri H.C.Shivaramu and Sri Mahesh R. Uppin.
Sd/- JUDGE