Karnataka High Court
Dr K V Om Prakash vs State Of Karnataka on 31 January, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31st DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.57692/2014 (S-RES)
C/W
WRIT PETITION No.57693/2014 (S-RES)
W.P.NO.57692/2014
BETWEEN:
DR. K.V.OM PRAKASH
AGED ABOUT 47 YEARS
S/O K VENKATAKRISHNAIAH
WORKING AS ASSOCIATE PROFESSOR IN
ANATOMY, HASSAN INSTITUTE OF
MEDICAL SCIENCES
HASSAN-573201.
...PETITIONER
(BY SRI. SHIVAPRASAD SHANTANAGOUDAR, ADV.)
AND:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY TO
GOVERNMENT DEPARTMENT OF
HEALTH AND FAMILY WELFARE
(MEDICAL EDUCATION)
VIKAS SOUDHA
DR. AMBEDKAR VEEDHI
BANGALORE-560001.
2. HASSAN INSTITUTE OF MEDICAL
2
SCIENCES, A SOCIETY REGISTERED
UNDER THE PROVISIONS OF THE
KARNATAKA SOCIETIES
REGISTRATION ACT, 1960
REPD. BY ITS DIRECTOR AND
MEMBER-SECRETARY
HASSAN-573201
HASSAN DISTRICT.
3. DR. B.S. PRAKASH
MAJOR
WORKING AS PROFESSOR
DEPARTMENT OF ANATOMY
HASSAN INSTITUTE OF
MEDICAL SCIENCES
HASSAN-573201.
....RESPONDENTS
(BY SMT. M.C.NAGASHREE, AGA FOR R1
SMT. SUMANA S BALIGA, ADV. FOR R2
SRI LAKSHMANA M., ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS LEADING TO THE NOTIFICATION DATED
28.11.2014 AND QUASH NOTIFICATION DATED 28.11.2014
VIDE ANN-Q ISSUED BY THE R2 IN SO FAR AS IT PERTAINS
TO ANATOMY, AND DIRECT THE RESPONDENTS TO
CONSIDER THE CASE OF THE PETITIONER TO THE POST OF
PROFESSOR IN ANATOMY AND GRANT ALL CONSEQUENTIAL
BENEFITS.
W.P.NO.57693/2014
BETWEEN:
DR. KANTHAIAH
AGED ABOUT 44 YEARS
S/O CHIKKANNA
WORKING AS ASSOCIATE PROFESSOR
IN BIO-CHEMISTRY
3
HASSAN INSTITUTE OF
MEDICAL SCIENCES
HASSAN-573201.
...PETITIONER
(BY SRI SHIVAPRASAD SHANTANAGOUDAR, ADV.)
AND:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY TO
GOVERNMENT DEPARTMENT OF
HEALTH AND FAMILY WELFARE
(MEDICAL EDUCATION)
VIKAS SOUDHA
DR. AMBEDKAR VEEDHI
BANGALORE-560001.
2. HASSAN INSTITUTE OF MEDICAL
SCIENCES, A SOCIETY REGISTERED
UNDER THE PROVISIONS OF THE
KARNATAKA SOCIETIES
REGISTRATION ACT, 1960
REPD. BY ITS DIRECTOR AND
MEMBER-SECRETARY
HASSAN-573201
HASSAN DISTRICT.
3. DR. B.G.VITTAL
MAJOR
WORKING AS PROFESSOR
DEPARTMENT OF BIOCHEMISTRY
HASSAN INSTITUTE OF
MEDICAL SCIENCES
HASSAN-573201.
....RESPONDENTS
(BY SMT. M.C.NAGASHREE, AGA FOR R1
SMT. SUMANA S BALIGA, ADV. FOR R2
SRI M.S.DHANARAJ, ADV. FOR R3)
4
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS LEADING TO THE NOTIFICATION DATED
28.11.2014 AND QUASH NOTIFICATION DATED 28.11.2014
(VIDE ANN-Q TO THE W.P.) ISSUED BY THE R2 IN SO FAR AS
THE DISCIPLINE OF BIO-CHEMISTRY BY ISSUE OF A WRIT IN
THE NATURE OF CERTIORARI AND DIRECT THE
RESPONDENTS TO CONSIDER THE CASE OF THE
PETITIONER TO THE POST OF PROFESSOR IN BIO-
CHEMISTRY AND GRANT ALL CONSEQUENTIAL BENEFITS.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 23/12/2021 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT (THROUGH VIDEO
CONFERENCING AT DHARWAD BENCH) MADE THE
FOLLOWING:
COMMON ORDER
Since both the writ petitions arise out of similar facts and common grounds are urged, both the writ petitions are heard together and disposed off by this common order.
2. The petitioner in W.P.No.57692/2014 is working as Associate Professor in the Department of Anatomy in 2nd respondent-Hassan Institute of Medical Sciences (for short 'the Institute') and has prayed for the following relief :-
"(a) Quash Notification bearing No.HIMS/EST(01)/07/2014-15 dated 5 28.11.2014 (under Annexure-Q to the writ petition) issued by the 2nd respondent in so far as it pertains to Anatomy, by issue of a writ in the nature of certiorari and direct the respondents by issue of a writ in the nature of mandamus to consider the case of the petitioner to the post of Professor in Anatomy and grant all consequential benefits.
(aa) Quash Official Memorandum bearing No.HIMS/Est.(1)/07/2014-15 dated 1.04.2015 (under Annexure-R to the writ petition) issued by the 2nd respondent by issue of a writ in the nature of certiorari and grant all consequential benefits."
3. The petitioner in W.P.No.57693/2014 is working as Associate Professor in the Department of Bio- Chemistry in the 2nd respondent-Hassan Institute of Medical Sciences (for short 'the Institute') and has prayed for the following relief :-
"a. Quash Notification bearing No. HIMS/EST(0!)/07/2014-15 dated 28.11.2014 6 (under Annexure-M to the writ petition) issued by the 2nd respondent in so far as the discipline of Bio-Chemistry by issue of a writ in the nature of certiorari and direct the respondents by issue of a writ in the nature of mandamus to consider the case of the petitioner to the post of Professor in Bio- Chemistry and grant all consequential benefits."
4. Brief facts of the case in W.P.No.57692/2014 are that the petitioner possesses qualification of M.Sc. (Medical Anatomy) with Ph.D. in (Medical Anatomy). Petitioner initially joined as Tutor in the Department of Anatomy in Vijayanagar Institute of Medical Sciences on 01.01.1997 and was permanently transferred from Vijayanagar Institute of Medical Sciences to the 2nd respondent-Institute as Assistant Professor in Anatomy on 28.06.2007. The 2nd respondent-Institute promoted the petitioner as Associate Professor in Anatomy pursuant to Annexure-B dated 31.01.2009. According to the Cadre and Recruitment Rules (for short the 'C & R Rules') of the 7 Institute, the petitioner became eligible for promotion to the Cadre of Professor. Ignoring the claim of the petitioner, the 2nd respondent-Institute issued notification to fill up the post of Professor by direct recruitment and fixed date for walk-in interview on 22.08.2013. Petitioner challenged the said notification in W.P.Nos.40274- 40275/2013. Thereafter, the 2nd respondent-Institute withdrew the notification dated 07.08.2013 issued for walk-in interview. The petitioner made representation dated 12.11.2013 requesting to consider his case for promotion. The petitioner's request was rejected and one Dr. B.S. Prakash was appointed temporarily as Professor, to comply with the conditions of Medical Council of India (for short 'the MCI'). The said appointment was challenged in W.P.No.22048/2014. On appearance the 2nd respondent-Institute made a submission before the Court that it is only a temporary appointment. This Court directed constitution of Departmental Promotion Committee (for short 'the DPC') to consider all eligible 8 candidates including the petitioner. On 24.06.2014 the DPC met and resolved to recommend the case of the petitioner to MCI for approval. Without forwarding the said recommendation to the MCI, impugned notification dated 28.11.2014 was issued inviting candidates for walk in interview to fill up the post of Professor in Anatomy. This Court by order dated 16.12.2014 passed interim order to the effect that interview to the post of Professor in the Department of Anatomy to be held on 20.12.2014 is subject to the result of the petition. Interview was conducted on 20.12.2014 and respondent No.3 was appointed as Professor of Anatomy in the 2nd respondent- Institute.
5. Brief facts of the case in W.P.No.57693/2014 are that the petitioner possesses qualification of M.Sc. (Medical Bio-Chemistry) and Ph.D. (Medical Bio- Chemistry). Petitioner was initially appointed as Lecturer in Bio-Chemistry in SSMC Institute, Tumkur on 11.12.1996. The petitioner was promoted as Assistant 9 Professor on 01.01.2005. The petitioner was appointed in the 2nd respondent-Institute as Assistant Professor on 06.05.2006 and as Associate Professor on 01.06.2006. Ignoring the claim of the petitioner for promotion, the 2nd respondent-Institute issued notification to fill up the post of Professor in Bio-Chemistry by direct recruitment and called eligible candidates for walk in interview. The said Notification was subject matter of WP Nos.40274-75/2013 before this Court. On appearance, the Institute submitted that the notification dated 7.8.2013 called for walk-in interview would be withdrawn. Accordingly, writ petition was disposed of. Thereafter, the petitioners submitted representation to the Institute to consider their case for promotion to the post of Professor. Again on 28.11.2014, notification was issued calling for walk-in interview to fill- up the post of Professor in the Department of Bio- chemistry and the same is challenged in the present writ petitions. Subsequently, in pursuance to the walk-in interview, 3rd respondent was appointed as Professor in 10 the Department of Bio-chemistry in the 2nd respondent/Institute. The 3rd respondent was impleaded and the petitioner has also prayed for quashing of the appointment of 3rd respondent by way of amendment which is allowed.
6. Learned counsel for the petitioners contend that the post of Professor in both the Department of Anatomy as well as Bio-Chemistry are to be filled up by promotion from the cadre of Associate Professor in terms of C & R Rules of the 2nd respondent-Institute. In terms of the Hassan Institute of Medical Sciences Rules and Regulations of 2013 (for short 'the 2013 Regulations'), the posts to be filled by promotion shall be by seniority-cum- merit, only after complying with Medical Council of India Norms. The C & R Rules of both the Department of Anatomy and Bio-Chemistry permits filling up of post of Professor by promotion from the cadre of Associate Professors, who have worked for four years in recognized Medical College, having minimum four research 11 publications and one research publication in International Journal. If no eligible candidates are available in a time frame of one year for promotion, then by direct recruitment. The minimum qualification prescribed for the post of Professor in both the Department of Anatomy and Bio-chemistry is MS/MD in the concerned subject/MBBS with M.Sc. in the concerned subject/M.Sc. and Ph.D. in the concerned subject/M.Sc. with D.Sc. in concerned subject. Learned counsel also refers to the qualification prescribed for the post of Professor under Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 (for short 'the 1998 Regulation') and submits that the qualification prescribed by the 2nd respondent-Institute is based on the 1998 Regulations. When the post of Professor is to be filled up by promotion and if a candidate is not available within a time frame of one year, then only the respondents could resort to direct recruitment. In the case on hand, the petitioners are eligible according to their seniority and 12 they possess qualification prescribed for the post of Professor.
7. Learned counsel would refer to Schedule I Clause 2 of 1998 Regulations and submits that in the Department of Anatomy and Bio-Chemistry, Non-Medical Teachers could be appointed to the extent of 50% of the total number of posts in the Department. Further it is submitted that it also provides that in case of paucity of Teachers in Non-Medical Departments, relaxation upto the Head of the Department may be given by the appointing authority to the Non-Medical persons, if suitable medical Teacher in the particular non-medical speciality is not available for the said appointment, with prior approval of MCI. Learned counsel submits that no suitable Medical Teacher is available in both the Departments of Anatomy and Bio-chemistry, hence the petitioners ought to have been appointed as Professor on obtaining prior approval of MCI.
13
8. Learned counsel further submits that the Departmental Promotion Committee in its proceedings held on 24.06.2014 observed that as there is only one post of Professor in the Department of Anatomy as well as Bio- chemistry, if the petitioners are promoted as Professors, it will not be possible for them to serve as the Head of the Department, except with prior concurrence or approval of MCI. Learned counsel would submit that in sum and substance as the petitioners cannot be appointed as HOD, since they do not possess basic qualification of Medical degree, the petitioners' case for promotion as Professors is rejected. It is submitted that when with the approval of MCI, non-medical teacher could be promoted as Professor, the respondents 1 and 2 committed grave error in not forwarding the cases of the petitioners to MCI for its approval for promotion. Further it is submitted that the petitioners are eligible for consideration of their case for appointment as HOD and in support of his contention, the learned counsel places reliance on the decision of the 14 Division Bench of Punjab and Haryana High Court in CWP No.19265/2016 (Prof. C.S. Gautam and another Vs. Union Territory of Chandigarh and others) dated 22.2.2019.
9. Per contra, Smt. Sumana Baliga, learned counsel appearing on behalf of 2nd respondent-Institute submits that there is only one post of Professor in the Departments of Anatomy and Bio-chemistry, which are non-clinical Departments. Both the petitioners admittedly would not possess the basic qualification of MBBS Degree. Both the petitioners possess qualification of M.Sc. Anatomy with Ph.D. in Medical Anatomy and M.Sc. in Bio- chemistry with Ph.D. in Bio-chemistry respectively. With the said qualification even though the petitioners are entitled for promotion upto the cadre of Professor with prior approval of MCI, the petitioners are not entitled to head the Department. The Professors in the Department would be the Head of the Department and if the petitioners are promoted as Professors, since they cannot 15 head the Department, there would be no HOD. It is also submitted that since the 2nd respondent-Institute has two MD seats in the Department of Anatomy, a Professor without the basic Medical Degree cannot be a guide, in that the 2nd respondent-Institute would lose MD seats. Therefore, the learned counsel justifies the action of the respondents in not promoting the petitioners as Professors.
10. The C & R Rules in respect of Professor of Department of Anatomy reads as follows :-
Sl. Categor Total Scale of Method of Minimum No y of numb Pay Recruitment Qualification . Posts er of posts
1. Profess Rs, 1.By Promotion M.S.(Anatom or 37400- from the cadre of y)/ 67000 Associate M.D.(Anatom with Professors who y) MBBS with AGP of have worked as M.Sc Rs.100 Associate (Anatomy) 00 Professor in with Anatomy for four Ph.D.(Med.
years in a Anatomy)/
recognized M.Sc (Med.
medical college. It Anatomy)
is desirable to with
have minimum of D.Sc.(Med.
four Research Anatomy)
publications
indexed in Index
16
Medicus/national
journal and one
research
publication in
international
journal.
2. With effect
from 24th July
2013 the following
conditions shall
apply.
i) By Promotion
from the cadre of
Associate
Professors who
have worked as
Associate
Professor in
Anatomy for three
years in a
recognized
medical college. It
is mandatory to
have minimum of
four Research
publications in
Indexed/ national
journal.
ii) Provided that
these research
publication are
published/accept
ed for publication
in the journals by
the National
Association/Socie
ties of the
respective
specialties as the
first
author/second
author.
iii) Further,
17
provided that the
requirement of
four research
publication for
promotion to the
post of Professor
should be taken
on cumulative
basis with
minimum of two
research
publication must
be published
during the tenure
of Associate
Professor.
3. By Transfer
from other
Autonomous
Institutions.
4.If no eligible
candidates are
available in a time
frame of one year
for promotion,
then by Direct
Recruitment
5.Maximum
upper age limit
for Direct
Recruitment is 50
years in case of
General Merit
candidates, 53
years in case of
OBC's and 55
years in case of
SC's and ST's.
11. The C & R Rules in respect of Professor of Department of Bio Chemistry reads as follows:-18
Sl. Catego Tot Scale of Method of Minimum No ry of al Pay Recruitment Qualification . Posts No. of post s
1. Profess Rs, 1.By Promotion M.D.(Biochemistry) or 37400- from the cadre of / 67000 Associate MBBS with M.Sc with Professors who (Med. Biochemistry) AGP of have worked as M.Sc. (Med. Rs.100 Associate Biochemistry) with 00 Professor in Ph.D (Med.
Biochemistry for Biochemishtry)/ four years in a M.Sc.
recognized (Med.Biochemistry)
medical college. with
It is desirable to D.Sc.(Med.Biochem have minimum istry) of four Research publications indexed in Index Medicus/nationa l journal and one research publication in international journal.
2. With effect from 24th July 2013 the following conditions shall apply.
i) By Promotion from the cadre of Associate Professors who have worked as Associate Professor in Biochemistry for three years in a 19 recognized medical college.
It is mandatory to have minimum of four Research publications in Indexed/ national journal.
ii) Provided that
these research
publication are
published/accep
ted for
publication in
the journals by
the National
Association/Soci
eties of the
respective
specialties as the
first
author/second
author.
iii) Further,
provided that the
requirement of
four research
publication for
promotion to the
post of Professor
should be taken
on cumulative
basis with
minimum of two
research
publication must
be published
during the
tenure of
Associate
Professor.
3. By Transfer
from other
20
Autonomous
Institutions.
4.If no eligible
candidates are
available in a
time frame of
one year for
promotion, then
by Direct
Recruitment
5.Maximum
upper age limit
for Direct
Recruitment is
50 years in case
of General Merit
candidates, 53
years in case of
OBC's and 55
years in case of
SC's and ST's.
12. A perusal of the C & R Rules in respect of the post of Professor in the Department of Anatomy as well as Bio-chemistry, it is clear that Minimum Qualification prescribed is MS/MD in the concerned subject/MBBS with M.Sc. in the concerned subject/M.SC. and Ph.D. in the concerned subject/M.Sc. with D.Sc. in the concerned subject. Admittedly, the petitioners in both the writ petitions possessed the qualification prescribed under C & R Rules i.e. M.Sc. in the concerned subject with Ph.D. 21 in the concerned subject. C & R Rules provides method of recruitment, that the post of Professor in both Departments i.e. Anatomy and Bio-chemistry is to be filled-up by promotion from the cadre of Associate Professor, who have worked as Associate Professor in Bio- chemistry in the concerned Department for four years in a recognized medical college. It also prescribes the Research publications, which the petitioners fulfilled. C & R Rules further provides that if no eligible candidates are available in a time frame of one year for promotion, then post of Professor could be filled-up by Direct Recruitment.
13. In the instant case, both the petitioners were qualified and eligible for promotion as Professors in their respective Departments i.e. Anatomy and Bio-chemistry. It is not the case of 2nd respondent/Institute nor 1st respondent that the petitioners are not qualified nor eligible for promotion as Professors in terms of C & R Rules and 1998 Regulations. In fact, cases of the 22 petitioners were taken up for consideration by the DPC, as evidenced by Annexure-P, DPC proceedings dated 28.11.2014. DPC records that both the petitioners fulfilled the minimum qualification prescribed for promotion to the post of Professor, i.e. qualification of M.Sc. and Ph.D. in their concerned subject i.e. Anatomy and Bio-chemistry respectively. The only ground on which the petitioners' case for promotion to the cadre of Professor is not recommended is that there is only one post of Professor in both the departments and if they are promoted as Professors, it will not be possible for them to serve as HOD. It is an admitted fact that both the petitioners would not possess basic University Medical Degree qualification, but that itself is not a bar to appoint them as Professor in their respective departments in terms of C & R Rules and 1998 Regulations. C & R Rules as well as 1998 Regulations provides for appointment of non- medical persons as Assistant Professor, Associate 23 Professor and as Professor, if they possess equivalent qualification of M.Sc. and Ph.D. in the concerned subject.
14. 1998 Regulations prescribes qualification to the post of Professor in the Department of Anatomy as well as Bio-chemistry. On perusal, it is clear that qualification prescribed under 1998 Regulations as well as C & R Rules of 2nd respondent/Institute are one and the same. The 2nd respondent/Institute has prescribed the qualification for the post of Professor based on the qualification prescribed by the MCI under 1998 Regulations.
15. Schedule I Clause 2 of 1998 Regulations permits appointment of non-medical teachers to the Department of Anatomy and Biochemistry to an extent of 30% and 50% respectively, with the prior approval of MCI. The said Clause-2 reads as follows:
"2. In the departments of Anatomy, Physiology, Biochemistry, Pharmacology and Microbiology, non-medical teachers may be appointed to the extent of 30% of total number of the posts in the department. A non-medical approved medical 24 M.Sc. qualification shall be a sufficient qualification for appointment as Lecturer in the subject concerned but for promotion to higher teaching post a candidate must possess the Ph.D. degree in the subject. The Heads of these departments must possess recognized basic university medical degree qualification or equivalent qualification. However, in the department of Bio-chemistry, non-medical teachers may be appointed to the extent of 50% of the total number of posts in the department. In case of paucity of teachers in non-clinical departments relaxation upto the Head of the Department may be given by the appointing authority to the non-medical persons if suitable medical teacher in the particular non-clinical speciality is not available for the said appointment. However, such relaxation will be made only with the prior approval of the Medical Council of India......."
A reading of the above provision makes it clear that non-medical teachers could be appointed to the department of Anatomy and Bio-chemistry to an extent of 25 30% and 50% respectively, in case, paucity of teachers in non-clinical department, relaxation upto to the Head of the Department may be given by the appointing authority to the non-medical persons if suitable medical teachers in the particular non-clinical speciality is not available for appointment and such relaxation could be made only with the prior approval of the MCI.
16. C & R Rules of 2nd respondent/Institute permits filling-up of post of Professor in the Department of Anatomy and Biochemistry only by way of promotion from the cadre of Associate Professor. Only if no eligible candidates are available in a time frame of one year for promotion, then 2nd respondent could resort to Direct Recruitment. As observed above, it is not the case of the 2nd respondent that the petitioners are not eligible for promotion. In fact, DPC proceedings which is placed on record states that the petitioners fulfilled the minimum qualification required for promotion in terms of C & R Rules as well as 1998 Regulations. The respondents could 26 not have ignored the case of the petitioners for promotion to the post of Professors only on the ground that they cannot head the respective departments.
17. The above extracted Clause-2 of Schedule-I of 1998 Regulations makes it clear that the non-medical teachers could be appointed upto the Head of the Department with prior approval of the MCI. It was incumbent upon the respondents when the petitioners were qualified and eligible for promotion to the posts of Professors, to recommend their cases for promotion to the post of Professors by forwarding the proceedings for approval of MCI as required under the above said provisions of 1998 Regulations. It is for the MCI to approve or not to approve the proposal taking note of the 1998 Regulations as well as overall view of the fact situation of the 2nd respondent/Institute.
18. It is settled position of law that no one has right for promotion, but has a right for consideration of his case for promotion in accordance with the applicable 27 rules and in accordance with law. When the C & R Rules of the 2nd respondent/Institute permits filling up of the post of Professor only by promotion and 1998 Regulations permits filling up of post upto Head of the Department by non-medical teachers with prior approval of MCI, the respondents were legally obliged to forward the cases of the petitioners for approval of the MCI for their promotion to the cadre of Professors.
19. Learned counsel for the petitioners further contended relying upon decision of the Division Bench of Punjab and Haryana High Court in the case of Prof. C.S. Gautam (supra) that by considering 1998 Regulations, in respect of Department of Anatomy and Pharmacology, which are non-medical departments, it held that the prescription of academic qualification for Head of Department is irrational, arbitrary and discriminatory. Clause 2 of Schedule 1 of the 1998 Regulations and the qualifications prescribed in Table I are required to be harmonized. It is the contention of the learned counsel for 28 the petitioners that the petitioners would be entitled to head the Departments of Anatomy as well as Bio- chemistry respectively. The said decision of the Division Bench of the Punjab and Haryana High Court is pending consideration before the Hon'ble Apex Court in SLP(C) No.8880/2019. But in the present case, we are not concerned with the question as to whether the petitioners could head their respective departments. In the present petitions, the only question is as to whether the petitioners would be entitled for promotion to the post of professors in their respective departments and this Court has come to the conclusion that non-medical teachers, such as petitioners would be entitled for promotion upto the cadre of Professor in their respective departments.
20. One of the prayer of the petitioners is to set- aside the appointment of 3rd respondent in both the writ petitions. At this stage, it may not be appropriate to set- aside the appointment of 3rd respondent in both the writ petitions, since they are working as Professors from 2016 29 and moreover, proposal for promotion of the petitioners is to be placed before the MCI and approval from the MCI is a precondition for the petitioners' promotion as Professors. If the MCI approves promotion of the petitioners as professors, it is for the 2nd respondent/Institute to effect the petitioners' promotion based on the availability of the posts or to create supernumerary post to accommodate the petitioners. It is to be observed that no fault could be found with respondent No.3 in both writ petitions. It is the mistake of respondents 1 and 2 in not following the 1998 Regulations and C & R Rules of the 2nd respondent/Institute. Moreover, even though there was interim order in WP No.57692/2014 to the effect that interview to the post of Professor in the Department of Anatomy is subject to the result, the 2nd respondent failed to indicate the same in appointment order dated 1.4.2015 of 3rd respondent.
21. For the reasons recorded above, both writ petitions are allowed in part.
30
22. 1st and 2nd respondents are directed to consider the case of the petitioners for promotion to the post of Professors and forward the proposal for their promotion for approval to the MCI as required under Clause-2 of Schedule-I of the 1998 Regulations within a period of three months from the date of receipt of certified copy of this order.
23. If the MCI approves the proposal for promotion of the petitioners, 2nd respondent/Institute is directed to promote the petitioners as Professors to the available post or to create additional/supernumerary post so as to accommodate the petitioners.
Sd/-
JUDGE NG/JTR CT:bms