D.V. Ramanna vs State of Karnataka and Another

In these seven writ petitions, the petitioners have moved this Court for a writ in the nature of mandamus restraining the 2nd respondent-University of Bangalore, from making any appointments or selections to the posts of Readers and Professors to the Bangalore University as per notification dated 30-6-1976. The petitioners have further prayed that this Court may issue appropriate direction to the respondents namely, the University and the State of Karnataka to consider the cases of the petitioners for promotion to the next higher cadres without reference to the Karnataka State Universities Act, 1976, (hereinafter referred to as the State Universities Act) and further to direct the respondents to promote the petitioners to the said higher cadres with all consequential benefits.

At the outset, it should be made clear that the latter half of the second prayer cannot be granted in these proceedings i.e., to issue a direction to the respondents to promote the petitioners with all consequential benefits. Prayer in all these petitions is common as also their grievance. Hence, these petitions are disposed of by this common order.

Briefly the facts concerning these petitioners and their grievances leading to the writ petitions are as follows: The petitioners were, all holding posts in different cadres in the Government of Karnataka as Lecturers, Readers or Professors in the Government Colleges originally affiliated either to the University of Mysore or to the Karnataka University. All the petitioners, at the relevant point of time, were serving in the Central College, Bangalore. The said College was taken over by the Bangalore University on 29-4-1965 consequent upon the passing of the Bangalore University Act, 1964. The promotion of the petitioners to the higher cadres of the Department namely, Collegiate Education, Department of the Government of Karnataka, was governed before they entered the services of the University by the Karnataka Education Department Services (Collegiate Education Department) Cadre and Recruitment Rules, 1964, (hereinafter referred to as the Rules) After their allocation to the Bangalore University, when they apprehended that their right to claim promotion under the aforementioned Rules was threatened, they filed the writ petitions in this Court, i.e., W.Ps. Nos. 556, 557, 825 and 1237 1974. In those petitions, the then Bangalore University was the respondent

In the said writ petitions the petitioners therein pressed for the application of the aforementioned Departmental Rules in the matter of promotion to higher cadres the benefit of which had been denied to them by the respondent-University. The said batch of writ petitions came to be disposed of by Venkataramiah, J., resulting in a direction being issued to consider the cases of the petitioners, therein for promotion to the higher cadres in accordance with the Rules. While issuing the direction, the, learned Judge observed as follows:

"Since it is not disputed that the conditions of service in so far as the method of recruitment is concerned are not varied to the disadvantage of the petitioners either with their consent or with the previous approval of the State Government it has to be held that the Karnataka Education Department Services (Collegiate Education Department) Cadre and Recruitment Rules, 1964, continue to apply to the petitioners and the University is bound to make promotions to the higher cadre in accordance with the said Rules until they are modified in accordance with law. In view of the above conclusion, the next contention urged on behalf of the University based on the Ordinance made by the University requiring the filling of all the posts in the teaching cadres by direct recruitment only has got to be rejected because the Ordinance, cannot prevail over S. 70 of the Act."

It is necessary to State that the above order was not questioned in appeal by the University of Bangalore as it was then and has become conclusive. It is binding on the second respondent who is a mere successor on account of the re-incorporation brought about by operation of Sec. 3 of the State Universities Act.

After passing of the State Universities Act, the second respondent-Bangalore University has published the impugned notification on 30th June. 1976 and the same has been published, among other papers, in Prajavani dated 5th of July, 1976 which is at Exhibit-F to the petition The notification purports to invite applications from qualified candidates for posts in the several departments maintained by the second respondent-University of Bangalore. The apprehension and the chief grievance of the petitioners, in all these writ petitions is that if the notification at Exhibit-F is given effect to and recruitments effected, their chance for promotion would totally disappear and thus there would be violation of the Rules and also disobedience to the direction given by this Court in the earlier batch of writ petitions.

Shri H.B. Datar, learned Senior Counsel appearing for the petitioners has laid stress on the directions given in the earlier batch of writ petitions and has pointed out that there is no escape for the University from implementing and obeying the directions issued by this Court and to consider the cases of the petitioners for promotion in accordance with the Rules. The respondent-University has not framed any Rules nor Statutes governing Recruitment and conditions of service in the University for various categories of posts to which the petitioners belong and the same has not been disputed by the learned Counsel appearing for the respondent-Bangalore University.

However, Shri S. Vijaya Shanker has advanced two arguments strenuously, making out that the petitioners have no right to seek any redress in this Court having regard to the fact that in the, earlier order this Court was considering the Bangalore University Act and the said Act having been repeated by the State Universities Act, the rights of the petitioners have come to be extinguished by virtue of the repeal of the former Act, He has further argued, that in any event, as there is no provision corresponding to Sec. 70 of the Bangalore University Act in the Slate Universities Act, the petitioners service conditions cannot be considered to be protected under the State Universities Act.

I am unable to see much force in either of the arguments advanced. Undoubtedly, Sec. 70 of the Bangalore University Act conferred specified protection to those Government servants who were asked to serve the University at the relevant time which became necessary by virtue of the other provisions in the Bangalore University Act by operation, of which petitioners and the like of them serving in Government Colleges, automatically became the Officers of the University. I have given the, reason earlier that this stand is not available to the 2nd respondent by virtue of it being successor to the Bangalore University under the 1964 Act and therefore bound by the decision rendered by this Court in the earlier batch of writ petitions.

Even otherwise, it is significant to notice that the State Universities Act has provided in See. 63 thereof for seniority. Sec. 63 reads as follows:

"63. Seniority.-Whenever in accordance with this Act or the Statutes any person is to hold, an office or be a member of any Authority or body of the University according to seniority, such seniority shall be determined by the order in which the names are arranged in the seniority list pertaining to that cadre or class of posts.

Sec. 63 occurring in Chapter XII of the State Universities Act contains provisions which are Miscellaneous and Transitory in nature.

It is conceded by the learned Counsel for the respondent University that at the moment no statutes have been made controlling the seniority referred to in Sec. 63 of the Act, and as such, no list also has been prepared in relation to the respective cadres or class of posts.

On the date of filing of these petitions Sec. 72 of the State Universities Act provides for continuance of statutes, ordinances and Rules which were in force in the different Universities governed by the different Acts prior to the coming into force of the Karnataka Universities Ordinance, 1975. Sec. 72 of the State Universities Act is as follows:

"72. Continuance of Statutes, Ordinances, etc. (1) Until Statutes, Ordinances, Regulations and Rules are made under the appropriate provisions of this Act, the Statutes, Ordinances, Regulations and Rules which were in force under the Bangalore University Act, 1964, (Kar. Act 26 of 1964), the Karnataka University Act. 1949 (Bombay Act 20 of 1949) and the Mysore University Act, 1956 (Mys. Act 23 of 1956), immediately before the commencement of this Act, shall, subject to such adaptations or modifications as may be made therein by the Vice-Chancellor with the approval of the Chancellor obtained through the State Government, in so far as they are not inconsistent with the provisions of this Act, be deemed to be Statutes, Ordinances, Regulations and Rules made under the appropriate provisions of this Act.

(2) The person holding the office of the Vice-Chancellor of the Bangalore University, the Karnataka University or the Mysore University on the date of commencement of this Act shall continue to hold office till the date he would have held that office if this Act had not been passed.

It is obvious from the reading of the section that it is an enabling provision to continue the rights and liabilities of the University as well as its employees till they are replaced by suitable Statutes, Ordinances, Regulations and Rules which are to be framed in accordance with the provisions of the State Universities Act. The question really is whether the Department ofCollegiate Education Cadre and Recruitment Rules applicable to the petitioners, should be construed as being among the Rules, referred to in S. 72 of the State Universities Act. Having regard to the Ruling of this Court in the earlier batch of writ petitions, which has been extracted above, it is clear by operation of that order, Department of Collegiate Education Cadre and Recruitment Rules were actually engrafted on to the Rules of Recruitment in so far as the petitioners and the like were concerned in the erstwhile University of Bangalore. If by operation of an order of this Court, those cadre and Recruitment Rules were part of the Rules which the erstwhile University of Bangalore had to follow, then there is no reason why they ought not to be considered to be one among the Rules referred to in S. 72 of the State Universities Act.

The learned Counsel for the University has strenuously contended that the absence of specific protection as was available in S. 70 of the Old Act not being there in the State Universities Act, by implication it should be inferred that the intention of the State Universities Act was not to provide such protection. This, according to him, is well settled principle of law relating to repeals. It may be so in given cases but cannot be the general rule of repeal. Law laid down by the various High Courts and the Supreme Court on this question of repeal and the operation of S. 6 of the General Clauses Act corresponding to S. 6 of the Mysore General Clauses Act, is that unless a contrary intention appears clearly from the Subsequent enactment which replaces the repealed enactment, such inference is impermissible. In the instant case, it cannot be said that S. 72 of the State Universities Act should be read with such rigidity that the petitioners alone, were singled out to remain unprotected by the passing of the State Universities Act. If such a contention were to be accepted, then all officers of the respondent-University must be held to be unprotected. Such a conclusion apart from being unwarranted in the circumstances of the case will lead to absurdity and confusion and therefore it should be rejected.

For the reasons stated above, in this batch of writ petitions, rule shall issue and a writ in the nature of mandamus will also issue to respondent-Bangalore University not to give effect to the notification of 30th June, 1976, in a manner which would affect the rights off the petitioners herein to be considered, for promotion to their respective higher cadres. A direction also will issueto respondent-Bangalore University to consider the cases of the petitioners in accordance with the Cadre and Recruitment Rules of Collegiate Education Department which still governs them for purposes of promotion and consider their cases expeditiously.

In the circumstances of the case, there will be no order as to costs.