H.S. KATHYAYINI Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner who is now working as a Professor of Physics in the Department of Collegiate Education of the State of Karnataka, has filed this writ petition challenging the validity of the order of reversion dated 17-8-1970 passed by the State of Karnataka reverting her to the post of Header in Physics.

(2.) The petitioner was appointed as Lecturer in Physics in the year 1944 and was later on promoted as an Assistant Professor of Physics on 21-3-52. The post of Assistant Professor which she was holding on the date of re-organisation of States came to be designated as the post of a Reader. She was promoted as Professor of Physics pending concurrence of the Public Service Commission' (hereinafter referred to as the Commission) on 17-1-1968. Subsequently the State Government sought the opinion of the Commission regarding the promotion of the petitioner. It would appear that the Commission was of the opinion that the work of the petitioner should have been watched for another two years before true question of her promotion was taken up for consideration. On receipt of the opinion of the Commission, the Government again wrote to the Commission requesting it to agree to the promotion of the petitioner as Professor of Physics as the Government was of the opinion that the post of a Professor of Physics did not carry with it any extraordinary administrative responsibility. The Commission declined to concur with the opinion expressed by the Government and reiterated its earlier decision, in its reply dated 18-4-1970. As can be gathered from the counter-affidavit filed on 'behalf of the State Government, the deponent of which is an Under Secretary to the Government of Karnataka, that on receipt of the letter from the Commission "the matter was placed before the Government and the Government accepted the advice given by the Public Service Commission". As a result of the acceptance of the advice tendered by the Commission, the Government issued the impugned order of reversion.

(3.) Sri Rama Jois, learned Counsel for the petitioner, contended that the procedure followed by the Government which was the appointing authority in the instant case was highly irregular. It is not disputed that the State Government is the appointing authority and ultimately its decision alone would govern the question whether the petitioner should be promoted to the post of a Professor or not. It is no doubt true that under Cl. (b) of Art. 320(3) of the Constitution the State Government is required to consult the Commission in the matter of promotion of officials to higher posts unless such consultation has been excluded by any regulation framed under Art.320(3) of the Constitution. It is well settled that the opinion of the Commission is not binding on the State Government and absence of consultation in such matters would not vitiate a promotion ordered by the State Government vide State of U.P. Vs. Manbodhan Lal, AIR 1957 SC 912 and Ramagopal Chaturvedi Vs. M.P., AIR 1970 SC 158 . In the case of State of U.P. Vs. Manbodhan Lal the Supreme Court observed that it was clear from the provisions of Art.320(3) that the requirement of the consultation of the Commission did not extend to making the advice of the Commission on matters regarding which the consultation of the Commission was required under the Constitution binding on the Government. In the absence of such a binding character, it was held that non-compliance with the provisions of Art. 320 (3) could not have the effect of nullifying the final order passed by the Government. It is no doubt true that in the said case the Supreme Court was concerned with disciplinary proceedings held against an official of a State Government. But the legal position enunciated by the Supreme Court in the said case would also apply to all cases falling under Clause (b) of Art.320 (3) of the Constitution which requires the State Government to consult the Commission in the matter of promotion of officials to higher posts.