JUDGMENT
1. Writ Appeal Nos. 2782 and 2783 of 2002 are filed by the Bangalore University, the 1st respondent in W.P. Nos. 28860 and 28861 of 1995 and Writ Appeal Nos. 2575 and 2576 of 2002 are filed by K.R. Venugopal, the 3rd respondent in the said writ petitions. The appeals are filed against the common order dated 27-2-2002 passed by the learned Single Judge allowed the writ petitions in part.
2. As the cases and facts involved are common in these cross-appeals, for convenience necessary facts in W.A. Nos. 2782 and 2783 of 2002 filed by Bangalore University are:
The University Vishweshwaraiah College of Engineering, Bangalore (hereinafter referred to as ‘UVCE’) is the college maintained and run by the appellant-University. The said college has various branches of engineering courses. The 1 st petitioner-K.S. Gurumurthy in W.P. Nos. 28860 and 28861 of 1995, was appointed as a Lecturer in the UVCE on 23-2-1983. The 1st petitioner has a Doctorate in Electronics. The 2nd petitioner-G.A. Nayak joined the service as Lecturer in UVCE on 4-10-1967 and on 1-7-1985 he was promoted to cadre of Reader, and Was further promoted, under Merit Promotion Scheme in the scale of Professor on 18-3-1994. Respondent 2-G. Narendra Kumar and respondent 3-Dr. Venugopal were also working as lecturers in the UVCE. The appellant-University by notification dated 8-1-1993 in exercise of powers conferred under Section 36(4) of the Karnataka State Universities Act, 1976 (for short, the ‘Act’), created a separate department of Computer Science and Engineering in the said college. Notification dated 12-10-1993 was published inviting applications for appointment to teaching posts in the said department. The Board of appointment after considering the qualification, eligibility, merits of the applicants, appointed respondents 3 and 4 herein as Readers by its order dated 11-12-1997. Respondents 1 and 2 herein who were working as Lecturer and Reader respectively in the Department of Electronics filed W.P. Nos. 28860 and 28861 of 1995 seeking for a direction to consider their case for the posts of Reader and Professor respectively under Section 49(9) of the Act. The said writ petition was allowed and the appointments made were quashed. Aggrieved, the appellant-University as well as appellant-respondent 4-K.R. Venugopal have filed these writ appeals as stated above.
3. Sri T.P. Rajendra Kumar Sungay, learned Counsel for the appellant-University submits that the order of learned Single Judge is not sustainable as the same is passed on the basis that the selection and appointment of respondents 3 and 4 was made under Section 49(9) of the Act, whereas the University has done the selection under Section 49(1) to (8) of the Act and Section 49(9) is only applicable to seniority-cum-merit promotion in the undergraduate colleges of the UVCE. The learned Counsel also submits that the learned Single Judge has also erred in allowing the petitions as the petitioners have no locus standi to challenge as they do not belong to the newly created Department of Computer Science and Engineering and their cases should be considered only in their respective departments. It is also submitted that the learned Single Judge has erred in allowing the amendment application, which was filed on 2-7-2001 after a lapse of six years and the said application was opposed on the ground that appointment of appellant-respondent was made on 17-11-1995 after the interim order was vacated and even otherwise the notification calling for the applications was for the post of Reader in the Department of University and not the undergraduate college and so also no additional prayer can be granted in the writ petition. As a matter of fact the writ petition has become infructuous and that apart the petitioners were regularly promoted as Readers on 27-2-1998. It is also submitted that the seniority of the petitioners would not be affected as the appointment of the third respondent would have been to the Department of Computer Science and Engineering in the University and not in the undergraduate college. Hence it is prayed that the order dated 27-2-2002 passed by the learned Single Judge be set aside in the facts and circumstances of the case as it is opposed to the law. The learned Counsel for the appellant has relied upon the decisions of this Court in Bangalore University and Anr. v. Y.R. Satyanarayana Rao and Ors. 1984(2) Kar. L.J. 305 (DB) and Bangalore University v. V. Ramachandran and Ors. 1985(2) Kar. L.J. 520 (DB)
Sri D.N. Nanjunda Reddy with Sri Sachindra Karant, learned Counsels for the appellant-Dr. K.R. Venugopal in W.A. Nos. 2575 and 2576 of 2002, reiterated the argument that learned Single Judge has erred in holding that Section 49(9) made by the University was not attracted. He also submits that the learned Single Judge has erred in interfering with the writ when the petitioner had no locus standi and was not having requisite qualification. Therefore, the order is liable to be set aside.
4. A detailed statement of objections is filed on behalf of respondents 1 and 3 denying the averments made in the appeal memo. Sri D.L.N. Rao with Smt. Vaishali Hegde, learned Counsels for the respondent I, submits that the appeals are liable to be dismissed in limine for making incorrect averments and misrepresenting the facts. It is slated that respondents 3 and 4 in their impleading application adopted as statement of objections before the learned Single Judge, have admitted that the selection has been made in accordance with Section 49(9) and its proviso and the statutes and it is stated that the said section is applicable for appointments made to the posts in the new subject of Computer Science and Engineering. But in the present appeal as well as the appeal filed by respondents 3 and 4, altogether a new stand is taken that appointments were made under Section 49(1) to (8) of the Act. It is also stated that Department of Electrical Engineering is bifurcated into Department of Electrical Engineering and Department of Electronics and Computer Science Engineering as per notification dated 19-9-1994, hence the contention that the respondents-petitioners have no locus standi is totally misconceived. It is further submitted that pending writ, respondent 2-G.A. Nayak has already retired from service on 30-9-2000. It is further stated that 2nd respondent-G. Narcndra Kumar (in W.A. Nos. 2575 and 2576 of 2002) was not qualified to hold the post of Reader as held in W.A. Nos. 4845 and 4846 of 1995 and as no appeal was filed by him.
5. We have heard the learned Counsel appearing for the appellant-University in W.A. Nos. 2782 and 2783 of 2002 and the learned Counsel appearing for the appellant in W.A. Nos. 2575 and 2576 of 2002 and the learned Counsels appearing for the respondents, perused the respective counter and the material on record and the case-laws.
6. Before considering the respective arguments and the point in issue as to whether the notification published calling for applications was for the post of Reader in the Department of the University or for the undergraduate college, it is relevant to extract the various definitions under Section 2 of the Act, which read as follows:
(2) “College” means an institution maintained by the University as such and includes an institution admitted to the privileges of the University as an affiliated college of the University in accordance with the provisions of this Act;
(2-A) ‘Department’, ‘Department of Studies’, ‘Post-graduate Department’ and ‘Post-graduate Department of Studies’ mean the Department, Department of Studies, Post-graduate Department and Post-graduate Department of Studies in the University run and maintained by the University:
Provided that where the University is not running and maintaining any Department, Department of Studies, Post-graduate Department and Post-graduate Department of Studies, such teachers in an affiliated college or colleges or institutions as the Chancellor may, in consultation with the State Government, nominate shall be deemed to be the Department, Department of Studies, Post-graduate Department and Post-graduate Department of Studies.
(7) ‘Teachers’ includes Professors, Readers, Lecturers and other persons imparting instruction in any affiliated college.
(8) ‘Teachers of the University’ means persons appointed for the purpose of imparting instructions in the University or in any college maintained by the University”.
Statute 9.1 in Chapter IX of the Bangalore University Statutes gives a list of 37 various Department of Studies in the University and at Sl. No. 26 the Department of Studies in Electrical Engineering, at Sl. No. 29 the Department of Studies in Electronics and at Sl. No. 36 the Department of Studies in Computer Science and Engineering are shown.
Chapter V of the Act deals with the Statutes, Ordinances, Regulations and Rules. Section 35(f) states that subject to the provisions of the Act, the statutes may provide for the establishment, maintenance and abolition of faculties, departments, hostels, colleges and institutions; and Section 35(1) provides for the method of recruitment of teachers.
As per Section 36(4) of the Act, every statute, which is passed by the Senate, has to be sent to the Government for submitting it to the Chancellor for assent. The Government should submit the statutes, within 3 months from date of its receipt, along with its comments to the Chancellor. The Chancellor within one month of receipt of such statutes has to give or withhold his assent thereto or refer it to the Senate for further consideration.
7. In view of the above extracts and provisions of law, it is well-settled that in view of the decisions relied upon by the learned Counsels for the parties the appointment of persons as Professors, Readers and Lecturers in the University is to be done by direct recruitment after selection by a Board of Appointment constituted under Section 49(1) to (8) of the Act, but the appointment of persons as Professors and Readers in the undergraduate college in the University is by promotion on the basis of seniority-cum-merit from Readers and Lecturers respectively as provided by Section 49(9) of the Act. It is also settled that mere introduction of post-graduate courses and other departments of the University in the University College of Engineering, would not wipe-out the mode of recruitment under Section 49(9) of the Act in respect of appointment in the college and it is also well-settled that there is difference between ‘Department’, ‘Department of Studies’, ‘Post-graduate Department’ and ‘Post-graduation Department of Studies’ as defined under the Act.
8. The only question that would arise for consideration in these writ appeals is as to whether the learned Single Judge was justified in quashing the letter of appointment issued by the University in favour of respondent 3 dated 17-11-1995.
Considering the facts and the provisions discussed above, we are of the opinion that the appellant cannot get any direction for the reason that he himself has been promoted as Reader in the College and thereafter as Professor under Section 49(9) of the Act and that issue is pending in a separate writ petition. That apart, the appellant cannot agitate that Section 49(1) to (8) are attracted when the point was not raised and in review also the argument was repelled by the learned Single Judge. It is also seen that the advertisement was for post of Department in the College and Section 49(9) is attracted. Since the learned Counsel for the appellant has argued at length, we discuss.
9. So far as the argument that writ became infructuous and no amendment could have been granted on 16-11-1995, is concerned, suffice to say that notification was issued on 12-10-1993 and initially the only prayer to restrain the University from making any appointment contrary to Section 49(9) and subsequently respondents 2 and 3 making applications for impleading and seeking additional prayer to be included in the writ by filing application on 2-7-2001, is not sustainable. As per the facts culled out, the learned Single Judge on consideration of the objection of the University found that though there is statute with regard to creation of Department of Computer Science and Engineering and further creation of posts of Lecturers, Readers and Professors to conduct new courses, there is no statute with regard to manner of appointment of Professors, Readers and Lecturers to the new post as required under proviso to Section 49(9) of the Act and therefore in absence of such statute, has held that the provisions of Section 49 for appointment by promotion to the post of Reader from the posts of Lecturers ought to have been considered as per the Act and therefore the appointment of third respondent is contrary to Section 49(9) of the Act.
10. So far as the other argument that the appointment of third respondent is as per the provisions of Section 49(1) to (8) of the Act is concerned, admittedly the point was not raised before the learned Single Judge. However, a review petition R.P. Nos. 265 and 266 of 2002 filed by the third respondent was dismissed on account of the fact that re-hearing was not permissible as the same was not urged at the time of final hearing of the writ and therefore the fact remains that in the writ petition the contention that the appointment was made under Section 49(1) to (8) of the Act was not at all urged and learned Counsel for University has not been able to show any statute for appointment made under proviso to Section 49(9) of the Act. The appellants are not entitled for any relief as even otherwise the advertisement was for the post in the Department of the College as stated. Therefore, Section 49(9) is not applicable. It is also seen that Dr. K.S. Venugopal is promoted later under proviso to Section 49(9) of the Act. It is further clear from the material on record that the University has in fact issued a notification on 21-5-1986 in exercise of the power under Section 36 of the Act, and the Statute under Section 49(9) of the Act has been approved by the Senate of the Bangalore University governing the promotions of teachers of undergraduate colleges maintained by the University and it has received assent of the Chancellor on 17-4-1986 and under the said statute appointment by promotion to the posts of Professors and Readers in undergraduate colleges maintained by the University shall be made by the Vice-Chancellor on the recommendations of the Committee and on the basis of seniority-cum-merit from Readers and Lecturers respectively with the approval of the Chancellor and the Committee which consists of Vice-Chancellor as Chairman, concerned Head of the Department as Member and the Registrar as Member Secretary.
11. Further, the material on record would also clearly show that a new course in Engineering in ‘Computer Science Engineering’ with an intake of 30 was started in UVCE and was placed under the Department of Electrical Engineering. The first batch of students were admitted during the academic year 1993-94. However, the question of creation of posts for imparting teaching in such course was placed before the Academic Council which in its meeting held on 31-2-1986 and 2-9-1986 recommended creation of certain posts and the matter was placed before the Syndicate which in its meeting held on 27-9-1987 resolved to place the matter before the Finance Committee for its opinion and the Finance Committee considered the proposal for creation of posts in its meeting held on 27-2-1989 and approved the creation of certain posts for the new course in the University College and since then the matter was under correspondence between University authorities and Government of Karnataka and the Government by letter dated 6-11-1992 accorded approval for the posts in the Computer Science Engineering course and posts of one Professor and two Readers and four Lecturers were approved and in view of the said facts in exercise of the power vested in it under Section 35(i) of the Karnataka State Universities Act, 1976, the Senate, Bangalore University, Bangalore, made the statutes to be effective from the academic year 1993-94 and created two posts of Readers in the new course of Computer Science and Engineering in the Department of Electrical Engineering, UVCE, Bangalore and the said approval was made effective from the academic year 1993-94 and when the notification is taken in the light of the above said material on record, it is clear that the posts that were advertised in the notification dated 12-10-1993 were posts in the University College of Engineering and not the Department as contended by the learned Counsel appearing for the third respondent and it is clear from the notification itself that the applications for appointment to the teaching post in the University Department/Colleges were called for and Item No. 30 pertains to Department of Electrical Engineering and in the same item posts of two Readers in Computer Science and Engineering (Electrical Engineering) were also notified and therefore, having regard to the above said material on record, it is clear that the notification calling for applications to the posts of Readers was in respect of the Department of newly started Computer Science and Engineering Department in the University College of Engineering and not in respect of the Department of the University. Therefore, it is clear that in absence of any statute providing for appointment under proviso to Section 49(9) of the Act, except the statute referred to above regarding promotion to the posts of Readers on the basis of seniority-cum-merit as per the statute dated 21-5-1996, and appointment could not have been made under Section 49(1) to (8) of the Act and hence it is clear that the learned Single Judge was justified in holding that the appointment of the third respondent-Dr. K.R. Venugopal was contrary to the provisions of Section 49 of the Act.
12. The learned Single Judge has held that the petitions cannot be thrown out on the ground of delay and laches as the writ petitions had been filed in the year 1995 itself and the appointment of third respondent was made on 17-11-1995 and the amendment and inclusion of the additional prayer was sought for in the said writ petitions which had already been filed challenging the notification calling for applications for the post of Reader in the College. Therefore, the discretion so exercised by the learned Single Judge cannot be said to be arbitrary or perverse on the facts of given case.
13. The learned Counsel appearing for the writ petitioners-respondents had produced the order under which the third respondent has been promoted as per the provisions under Section 49(9) of the Act as stated and which was obviously shown that he was appointed as Reader in the College and the said order promoting the third respondent as a Professor under Section 49(9) of the Act has been challenged in a separate writ petition and it is pending consideration before this Court.
14. Under the circumstances and as discussed above, we find no error or illegality in the order of the learned Single Judge so as to call for any interference. The writ appeals are dismissed with no order as to costs.