University of Mysore and Anr v. C.D. Govinda Rao and Anr

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeals Nos. 417 and 418 of 1963

Decision Date: 26 August 1963

Coram: P.B. Gajendragadkar, K.N. Wanchoo, N. Rajagopala Ayyangar, J.R. Mudholkar

The case titled University of Mysore and another versus C. D. Govinda Rao and another was decided on 26 August 1963 by the Supreme Court of India. The judgment was authored by Justice P. B. Gajendragadkar, who sat with Justices K. N. Wanchoo, N. Rajagopala Ayyangar and J. R. Mudholkar. The parties were identified as the University of Mysore, the appellant, and C. D. Govinda Rao, the respondent. The decision is reported in 1965 AIR 491 and 1964 SCR (4) 576, and is cited in later cases as F 1980 SC 2141 (17) and F 1990 SC 1402 (32). The matter concerned the jurisdiction of a High Court under Article 226 of the Constitution to issue a writ of quo warranto in relation to the appointment of a Reader by the University’s Board of Appointments.

The University had advertised six professorial posts and six reader posts, including a Professor of English and a Reader in English. The qualifications prescribed for a Reader required a first‑class or high second‑class Master’s degree from an Indian university, a research degree of doctorate standard or published work of high quality, and five years of postgraduate teaching experience. Anniah Gowda, the second appellant, was selected by the University’s Board of Appointments to fill the position of Reader in English at the Central College in Bangalore. The respondent, C. D. Govinda Rao, filed an application in the Mysore High Court under Article 226, seeking a writ of quo warranto to compel the second appellant to show under what authority he held the post, and also praying for a writ of mandamus directing the University to appoint him as Reader. He argued that the appointment of Anniah Gowda was illegal because the prescribed qualifications had not been satisfied.

The High Court set aside the appointment, holding that Anniah Gowda failed the first qualification because, although he had obtained a Master’s degree, his marks were 50.2 percent, which was below the required 50 percent for a high second‑class degree from an Indian university. The court did not make a finding on the second and third qualifications. The appellants obtained special leave to appeal to this Court. The Supreme Court held that the High Court’s decision was incorrect because it had failed to consider the Master of Arts degree that Anniah Gowda held from Durham University, a foreign university. While it was true that he did not possess a high second‑class degree from an Indian university, the alternative qualification of a foreign Master’s degree had not been taken into account, rendering the High Court’s writ of quo warranto erroneous.

The Court observed that although the appellant did not possess a high‑second‑class degree from an Indian university, he did hold the alternative qualification of a Master of Arts degree from a foreign university. Consequently, the High Court was found to have erred in issuing a writ of quo waranto that annulled the appointment of appellant No. 2. The Court explained that boards of appointments are constituted by universities, and when their recommendations and the resulting appointments are contested before a court, the judiciary should ordinarily be reluctant to interfere with the expert opinions expressed by those boards unless there is a clear allegation of mal‑feasance. It is prudent for courts to defer academic decisions to specialists who possess a deeper understanding of the issues than the courts typically have. In the present case, the High Court should have examined whether the Chancellor’s appointment breached any statutory provision, rule, or ordinance, and, in doing so, should have accorded due respect to the board’s expert opinion and its recommendations, which guided the Chancellor’s action. The High Court was cautioned not to treat the board as a quasi‑judicial body tasked with adjudicating disputes, nor should it have applied tests that are appropriate in matters of certain writs. The Court further noted that a writ of quo warranto serves as a judicial tool to restrain the executive from making unlawful appointments to public offices and to safeguard individuals from being unjustly deprived of a public office to which they are lawfully entitled. Such proceedings also protect the public from impostors who might otherwise remain in office with the executive’s acquiescence or due to its indifference. For a successful claim of quo warranto, the petitioner must persuade the Court that the office in question is indeed a public office and that it is being occupied by a usurper lacking legal authority.

The judgment was delivered in the Civil Appellate Jurisdiction concerning Civil Appeals Nos. 417 and 418 of 1963, arising by special leave from the Mysore High Court’s order dated 7 March 1962 in Writ Petition No. 1197 of 1960. The Attorney‑General for India, along with counsel for the appellant in GA No. 417/63, and counsel for the appellant in CA No. 418/63, represented the respondents, who were represented by a team of learned counsel. The judgment, dated 26 August 1963, was pronounced by Justice Gajendragadkar. The underlying petition, filed by the respondent C.D. Govinda Rao in the Mysore High Court under Article 226 of the Constitution, sought a writ of quo warranto directing Anniah Gowda to show cause for holding the post of Research Reader in English at Central College, Bangalore. The petition also pleaded for an additional writ, the nature of which was set out in the subsequent portion of the proceedings.

The petitioner asked the court to issue a writ of mandamus or any other appropriate order compelling the University of Mysore to appoint him as Research Reader with a salary scale of Rs 500‑25‑800. He argued that the appointment of Anniah Gowda to the Research Reader position was unlawful because Gowda did not meet the prescribed qualifications, whereas the petitioner himself possessed the required qualifications and therefore should be appointed to that post. Consequently, he sought to have Gowda’s appointment set aside and to obtain a directive ordering the university to fill the vacancy with him. In his petition, the petitioner named the University of Mysore, represented by its Registrar, and Anniah Gowda as respondents. The university and Gowda contested the petitioner’s claim, maintaining that Gowda had been validly appointed as Research Reader and that the petitioner’s allegation of invalidity was without merit. Both sides submitted affidavits in support of their respective positions. The High Court examined the matter and concluded that Gowda’s appointment was indeed invalid; it therefore annulled the resolution of the Board of Appointment that had recommended his selection and directed that the subsequent appointment made by the Chancellor be set aside. However, the High Court declined to grant the petitioner a mandamus directing his own appointment, reasoning that even if Gowda’s appointment were voided, the petitioner would not automatically be entitled to the vacancy, and that the university and its Board should reconsider the matter afresh. After the High Court’s decision, the university and Gowda applied for a certificate seeking permission to appeal to this Court, but their application was refused. Undeterred, they each filed separate petitions for special leave to appeal, which were granted, giving rise to the present Civil Appeals 417 and 418 of 1963. The university’s advertisement, dated 31 July 1959, invited applications for several professorial and reader posts, including Professor of English and Reader in English, and set out detailed qualifications such as a first‑class or high‑second‑class master’s degree, a research doctorate or equivalent publication, a minimum of ten years of postgraduate teaching experience (with at least five years required), and, where applicable, knowledge of the regional language Kannada as a desirable attribute.

The qualifications required for the advertised positions stated that a Professor needed a first or high‑second‑class master’s degree from an Indian university or an equivalent foreign qualification, a research degree of doctorate standard or published work of high standard, and ordinarily ten years of post‑graduate teaching experience, with a minimum of five years. For a Reader, the requirements included at least five years of teaching degree‑level classes and independent research. Knowledge of the regional language Kannada was mentioned as a desirable qualification, and preference would be given to candidates who possessed teaching experience, experience in organizing research, and who had also conducted advanced research.

In accordance with section 26(2) of the Mysore University Act, 1956, a Board of Appointments was constituted. The board consisted of the Vice‑Chancellor and two specialists in English, namely Professor P. E. Dastoor of Delhi University and Professor L. D. Murphy of Madras. The university had advertised the posts of Professor and Reader in English after receiving a grant from the University Grants Commission. Four applications were received for the positions, and the board interviewed the candidates on 8 June 1960. The board also consulted Professor C. D. Narasimhiah, Principal of Maharaja’s College, Mysore, and considered his opinion together with the academic qualifications and interview performance of the applicants.

After deliberation, the board concluded that none of the four applicants possessed the qualifications required to be appointed as a Professor under the UGC scheme in the grade of 800 to 1,250. Consequently, the board resolved to keep the Professor posts vacant and to re‑advertise them. Regarding the Reader position, which fell under the UGC scheme in the grade of 500 to 800, the board determined that appellant No. 2 was the most suitably qualified candidate. The board unanimously resolved to appoint appellant No. 2 as Reader in that grade.

The board’s recommendation was approved by the Chancellor on 3 October 1960. Appellant No. 2 was appointed to the Reader post and assumed charge on 31 October 1960. However, before taking charge, the respondent filed a petition on 15 October 1960 seeking an injunction to prevent the university from filling the post. When the appointment was already made, the respondent altered the relief sought and requested a writ of quo warranto against appellant No. 2. The principal dispute therefore concerned the validity of appellant No. 2’s appointment as Reader in English. The High Court upheld the respondent’s arguments and set aside the appointment. The High Court’s judgment did not address the technical requirements for a writ of quo warranto nor the conditions that must be satisfied before such a writ could be issued in these proceedings.

In describing the nature of a writ of quo warranto, the Court referred to the observation recorded in Halsbury's Laws of England. The observation states that an information in the nature of a quo warranto replaced the obsolete writ that was directed against a person who claimed or usurped an office, franchise, or liberty, in order to inquire by what authority the claim was supported, so that the right to the office or franchise might be determined. Broadly, a quo warranto proceeding provides a judicial remedy by which any person who holds an independent substantive public office, franchise, or liberty is required to demonstrate the legal basis of that holding, enabling the court to determine the title. If the court finds that the holder possesses no legal title, the court may issue an order removing that person from the office. In other words, the quo warranto procedure equips the judiciary with a tool to restrain the Executive from making illegal appointments to public office and to protect a citizen from being deprived of a public office to which he is entitled. These proceedings also protect the public from usurpers of public office who might otherwise continue in office with the connivance of the Executive or because of executive inaction. Consequently, before a person can successfully obtain a writ of quo warranto, he must satisfy the court that the office in question is a public office and that it is being held by a usurper without legal authority; this satisfaction inevitably triggers an inquiry as to whether the alleged usurper's appointment complied with the law. In the present case, it does not appear that the High Court's attention was drawn to this essential aspect. The judgment does not show that any statutory provision or rule was placed before the High Court, nor does it indicate that the appointment of appellant No. 2 contravened any such provision. The arguments before the High Court were based on the assumption that if the appointment of appellant No. 2 was inconsistent with the qualifications advertised by appellant No. 1, that inconsistency alone would justify the issuance of a writ of quo warranto. The present Court does not intend to decide whether that assumption was correct. Instead, the Court will consider the appeals on the basis that the High Court could have quashed the appointment of appellant No. 2 even if it was shown that he did not satisfy one or more of the qualifications prescribed in the advertisement issued by appellant No. 1. Recognising the difficulty the respondent faced, counsel for the respondent attempted to raise the contention that the appointment of appellant No. 2

In the proceedings, the respondent asserted that the appointment of appellant No. 2 had been made in violation of the statutory rules and ordinances that appellant No. 1 had framed. He claimed to have referred to those rules and ordinances before the High Court, but the judgment of that Court made no mention of them. After examining the affidavits filed by both parties, the Court found that the respondent had never, at any stage before the High Court, argued that the defect in the appointment arose because appellant No. 1 had contravened its own statutory rules and ordinances. The respondent’s affidavit merely described the appointment as illegal and added that both the appointment of appellant No. 2 and the University’s failure to appoint the respondent were illegal in view of the qualifications prescribed in the notification that advertised the post. In an affidavit filed on behalf of appellant No. 1, reference was made to the rules framed under the Mysore University Act (No. 23 of 1956) and it was contended that the appointment to the Reader position had to comply with the regulations made by the University Grants Commission under section 26(1)(e) of the University Grants Commission Act, 1956. The respondent disputed this reference and alleged, in a vague manner, that every appointment made by appellant No. 1 was governed by the ordinances and rules under the Mysore University Act. He further alleged that the Senate had passed ordinances on 19 August 1959, which were approved by the Chancellor in a letter dated 22 January 1960.

The Court noted that, although these allegations were raised, no effort was made in the High Court to produce the alleged ordinances or to demonstrate the date on which they became effective. It appeared that the statutory rules framed under section 26(1) received the Chancellor’s approval on 22 January 1960, but the date of their publication in the Mysore Gazette remained unknown. Likewise, the ordinances were approved on the same day, yet the commencement date was not established. Under the Mysore University Act, statutory rules take effect upon publication in the Gazette, while ordinances come into force on a date specified by the Chancellor in accordance with section 42(5) of the Act. Consequently, although the parties referred to the ordinances, they failed to show when those ordinances became operative, and no arguments were advanced on that ground. The judgment of the High Court, therefore, did not address the statutory rules or ordinances because neither party had relied on them, and the Court found no basis to consider them in its decision.

In the present proceedings the Court observed that the judgment rendered by the High Court was extensive and, on the basis of the record, it could be reasonably inferred that the judgment did not address the statutory rules and the ordinances. The inference was drawn because neither party had relied upon those rules or ordinances and consequently the High Court had no occasion to examine them. The Court further held that the respondent could not, for the first time on appeal, introduce a ground concerning the effect of the statutory rules or ordinances. The petition originally filed by the respondent, when read together with the affidavit he had submitted, supported this view and made clear that his challenge to the validity of the appointment of appellant No. 2 was confined solely to the allegation that appellant No. 2 failed to satisfy the qualification prescribed by the notifications that had invited applications. That limitation formed the basis on which the High Court had dealt with the matter, and the Court indicated that it would adopt the same basis in its own consideration. The Court then set out a brief summary of the findings recorded by the High Court before turning to the merits of the contentions raised by the appellants in the appeals. It was necessary to recall the four qualifications stipulated in the notification. The fourth qualification, which required knowledge of the Kannada language, was not in dispute and therefore could be omitted from further discussion. The first qualification required that the applicant possess either a First Class or a high Second Class Master’s degree from an Indian university or an equivalent qualification from a foreign university in the relevant subject. The record showed that appellant No. 2 had obtained 50.2 percent marks in his Master’s degree examination. The respondent argued before the High Court that the minimum mark for a Second Class degree was 50 percent, and that a candidate who scored only 50.2 percent could not be said to have secured a high Second Class degree. Accordingly, the respondent pleaded that appellant No. 2 did not satisfy the first qualification. The High Court accepted this argument and upheld the respondent’s plea. With respect to the second qualification, appellant No. 2 possessed a Master of Arts degree from the University of Durham. The High Court held that if the Board had decided that appellant No. 2 met this qualification, it would not be appropriate for the Court to override that assessment. Consequently, the High Court made no finding in favour of the respondent on the second qualification. Regarding the third qualification, which required five years of teaching experience at the degree level, the Court noted that the issue had been extensively debated before the High Court. Both parties had presented evidence, and the respondent vigorously contested the claim made by the appellants that appellant No. 2 satisfied the five‑year teaching experience requirement.

The High Court carefully examined the evidence that had been presented and ultimately concluded that, although the material put forward by the appellants on this particular issue was unsatisfactory, the Court was nevertheless unable to make a finding in favour of the respondent. In connection with this finding, the High Court also issued a severe criticism of the conduct of appellant No. 1, a matter that will be addressed later in this judgment. Consequently, the High Court effectively decided to set aside the appointment of appellant No. 2 on the basis that it was evident that he did not satisfy the first qualification required for the position. In reaching that conclusion, the High Court further criticised the report prepared by the Board, observing that the members of the Board appeared not to have given proper thought to the specific question that they were tasked with deciding.

In our view, the High Court’s conclusion that appellant No. 2 failed to satisfy the first qualification was plainly erroneous. The judgment of the High Court shows that the learned judges concentrated their analysis on whether a candidate who obtained fifty percent marks could be said to have secured a high Second Class degree. If the issue were limited solely to that aspect, the High Court’s conclusion might have been acceptable. However, the High Court overlooked the fact that the first qualification is composed of two distinct parts: the first part requires a high Second Class Master’s degree from an Indian university, and the second part allows for an equivalent qualification obtained from a foreign university. The High Court did not appear to consider whether it would be appropriate to depart from the Board’s opinion, especially when it was quite possible that the Board had regarded the Master of Arts degree from Durham University, which appellant No. 2 possessed, as equivalent to a high Second Class Master’s degree from an Indian university. This question is purely academic, and courts ordinarily hesitate to give a definitive opinion on such matters when the Board of experts had already been satisfied that appellant No. 2 fulfilled the first qualification. Had the High Court’s attention been drawn to the equivalence provision contained in clause (a) of the first qualification, we are confident that it would not have found the Board to have acted capriciously in concluding that appellant No. 2 satisfied all the required qualifications, including the first. Moreover, although the High Court expressed some difficulty regarding the remaining two qualifications, it did not rest its decision on any definite finding that those qualifications were also unsatisfied. On a plain reading of the first qualification, the issue appears straightforward; however, because the equivalence aspect specified in clause (a) was apparently not brought to the High Court’s notice, the Court failed to take that crucial element into account.

The Court observed that the High Court had neglected to consider a crucial aspect of the matter. In particular, the Master’s degree obtained by appellant No. 2 from Durham University could be held to satisfy not only the first qualification but also the second qualification required for the position. Moreover, appellant No. 2 had published scholarly works that, by themselves, would fulfil the requirements of the second qualification. Consequently, it was clear that the High Court erred when it concluded that appellant No. 2 did not meet the first qualification merely because he did not possess a high Second Class Master’s degree from an Indian university. The degree from Durham University was, in the view of the Board, equivalent to a high Second Class Master’s degree of an Indian university, and therefore the first qualification was satisfied. Accordingly, the Court held that the High Court was mistaken in issuing a writ of quo warranto that set aside appellant No. 2’s appointment.

Before disposing of the appeals, the Court felt it necessary to address two further points raised by the High Court. First, the High Court had criticised the report of the Board of Appointments, noting that the circumstances disclosed in the report made it difficult for the High Court to accord the Board’s recommendations the respect it usually commands. The Court could not discern a valid basis for such criticism in a purely academic context. Boards of appointment are constituted by universities, and when their recommendations and the resulting appointments are challenged before a court, the usual practice is for courts to be cautious in interfering with expert opinions. No allegation of mala fides was made against the members of the Board, and the Court therefore considered it prudent to leave academic determinations to those experts who possess a greater familiarity with the specialised issues involved than the courts do.

Second, the Court noted that the High Court’s criticism seemed to treat the Board as if it were an executive authority issuing a fiat or as a quasi‑judicial tribunal resolving disputes referred to it. In the context of complaints by members of the public regarding appointments made by academic institutions, such a characterization was deemed unreasonable and inappropriate. The Court further observed that, in granting the writ, the High Court applied tests that are ordinarily appropriate for a writ of certiorari. The judgment of the High Court expressly stated that an error existed in the present case, an error that the Court characterised as manifest. The Court concluded that the High Court had applied a standard suited to certiorari rather than to the present quo warranto proceeding, thereby misdirecting its analysis.

In the Court’s view, the High Court committed a manifest error, an error that is especially pertinent in a proceeding for a writ of certiorari. The High Court ought to have examined whether the Chancellor’s appointment violated any statutory provision, rule or ordinance, and in doing so it should have given proper weight to the opinions and recommendations of the academic Board on which the Chancellor relied. The Court observed that the High Court failed to notice an important fact: when the Board reviewed the claims of the various applicants, it conducted a careful examination and concluded that none of the applicants merited appointment as Professor. Instead, the Board’s recommendations showed that it had thoughtfully considered all relevant factors and decided that appellant No 2 should be appointed to the post of Reader. Consequently, the Court was satisfied that the High Court’s criticism of the Board’s deliberations was unfounded.

The Court also noted that the High Court appeared displeased with the conduct of appellant No 1 and its officers. While addressing the issue of appellant No 2’s teaching experience, the High Court remarked that “the material placed on record is of a doubtful nature characterised by a clear tendency to mislead the Court, if not an actual attempt to do so.” The learned Attorney‑General objected to this criticism, arguing that it was not justified. After the judgment, an application was filed before the same judges requesting that the criticism of appellant No 1 be removed. In support of that application, the then Advocate‑General, Mr Ethirajulu Naidu, submitted an affidavit stating that appellant No 1 could not be accused of attempting to mislead the Court.

Despite this affidavit, the High Court was not entirely convinced. In a subsequent judgment on the application to set aside the observations, the judges said they were prepared to accept the Advocate‑General’s assurance that no deliberate attempt to mislead had been made, and they did accept that assurance. Nonetheless, the judges held that the material presented to the Court could or did have a tendency to mislead, and they considered this view, even after hearing the Advocate‑General, to be well‑founded and not unwarranted.

The criticism originated because, on June 1 1961, Mr Thimmaraju, the Gazetted Assistant of appellant No 1, filed an affidavit before the High Court. In that affidavit he produced a statement from appellant No 2’s Service Register, allegedly showing that appellant No 2 possessed more than five years of teaching experience as required by the third qualification. The High Court ordered that the Register be sent for examination and scrutinised.

The Court observed that when the High Court examined the Service Register, it found that the first four entries recorded in the statement filed by the deponent were verified by the Register, but the subsequent eight entries did not appear in that Register. After the judgment was pronounced, the High Court was approached for the removal of its remarks, and at that time another document was produced. This new document was claimed to be the gazetted Officers’ Register, and the statements contained in the extract filed by Mr Thimmaraju were found to be present in that Register. The explanation offered by Appellant No 1 and the learned Advocate‑General was that while Appellant No 2 was a non‑gazetted servant his service record was kept separately, whereas for Government gazetted servants a general service Register was maintained. Accordingly, the statements submitted by Mr Thimmaraju were said to be drawn partly from the separate service Register of Appellant No 2 during his non‑gazetted service and partly from the general Gazette Register after he became a gazetted officer. The Court noted that the wording of Mr Thimmaraju’s statement gave the impression that all the facts were taken from Appellant No 2’s individual service Register, which was not strictly correct. Consequently, the High Court was justified in making an adverse comment on the inaccuracy of the statement. However, the Court emphasized that, in deciding whether Mr Thimmaraju or Appellant No 1 intended to mislead the Court, other relevant circumstances must also be considered.

Regarding the length of Appellant No 2’s teaching career, the Court referred to a detailed affidavit filed by him on 22 July 1961, in which he listed the various teaching assignments he had held and the periods of each assignment. Those particulars demonstrated that his teaching experience of the required character exceeded the minimum of five years. The Court found it noteworthy that, although the respondent attempted to reply to Appellant No 2’s affidavit, it did not specifically or categorically challenge the details concerning his teaching experience. Moreover, the Government gazetted officers’ Register, which was later produced before the High Court, fully corroborated the facts presented in Mr Thimmaraju’s statement. The Court therefore concluded that the factual issue concerning the duration of Appellant No 2’s teaching experience was conclusively established by both the affidavit and the Gazette Register. Accordingly, the Court deemed that the High Court should not have been so harsh in observing that the material produced by Appellant No 1 tended to mislead, absent any actual attempt to do so. While acknowledging that Mr Thimmaraju ought to have examined the records more carefully and clarified the dual sources of his information, the Court held that the essential fact was correctly established and that the severe criticism was not fully warranted.

The Court observed that the statement filed by the officer should have expressly disclosed that the factual material contained therein was derived partly from the individual service register of appellant No. 2 and partly from the general register maintained for gazetted servants in the State. By not making this source‑of‑information clarification, the statement fell short of the clarity required. The Court then considered the submission advanced by the learned Attorney‑General, noting that there was appreciable merit in the argument that the severe criticism directed by the High Court against appellant No. 1 was not entirely warranted. Accordingly, the Court set aside the order pronounced by the High Court, allowed the appeals filed by the two appellants, dismissed the writ petition instituted by the respondent, and ordered that the respondent bear costs throughout the proceedings. In addition, the Court directed that a single set of hearing fees would be payable for both of the appeals, thereby ensuring uniformity in the fee assessment. The appeals were consequently allowed.