Karnataka High Court
Dr Bhagya V vs Chikkamagaluru Institute Of Medical ... on 27 March, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.8230 OF 2022 (S-RES)
BETWEEN:
DR. BHAGYA V.
W/O DR. MAHESH DODDAMANI,
AGED ABOUT 43 YEARS
R/O FLAT NO.S-3,
SHAKUNTHALA GRAND APARTMENT,
7TH MAIN, 2ND CROSS,
M.C.C.B. BLOCK,
DAVANAGERE-577001
...PETITIONER
(BY SMT. POONAM S PATIL, ADVOCATE)
AND:
1. CHIKKAMAGALURU INSTITUTE OF MEDICAL SCIENCES
(AN AUTONOMOUS INSTITUTE OF GOVERNMENT OF
KARNATAKA)
ARALAGUPPE MALLEGOWDA DISTRICT HOSPITAL,
NEAR AZAD PARK
CHIKKAMAGALURU-577101
REPRESENTED BY ITS DIRECTOR AND DEAN
2. STATE OF KARNATAKA
BY SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF MEDICAL EDUCATION,
BANGALORE-560001
2
3. DR. KANYAKUMARI D.H.
W/O DR THIMMA REDDY,
AGE MAJOR,
PROFESSOR AND HOD,
DEPARTMENT OF PHYSIOLOGY,
BASAVESHWARA MEDICAL COLLEGE,
CHITRADURGA-577501
4. DR. SRICHARAN K.N.
AGED ABOUT 44 YEARS
R/O PROFESSOR OF MEDICINE
AJ SHETTY INSTITUTE OF MEDICAL SCIENCES
MANGALURU-574142.
5. DR. B.H. NARAYINI
AGED ABOUT 43 YEARS
R/O. PROFESSOR AND HEAD OF THE OBG
DEPARTMENT
KOPPAL INSTITUTE OF MEDICAL SCIENCES
KOPPAL-583231.
....RESPONDENTS
(BY SRI. N.K. RAMESH, ADVOCATE FOR R1
SRI. T.P. SRINIVASA, PRL. GA FOR R2
SRI. PRADEEP NAIK, ADVOCATE &
SRI. KARAN GUPTA, ADVOCATE FOR R3
SRI. M.S. RAGHAVENDRA PRASAD, ADVOCATE FOR R4
R5 SERVED & UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE NOTIFICATION DATED 20.07.2022 ISSUED BY THE
RESPONDENT NO.1 INSOFAR AS POSTS TO THE PROFESSORS
ARE CONCERNED VIDE ANNEXURE-K; DIRECT THE
RESPONDENT NO.1 BY ISSUE OF WRIT OF MANDAMUS TO
PREPARE THE SELECTION LIST OF PROFESSOR IN THE
DEPARTMENT OF PHYSIOLOGY ON THE BASIS OF MERIT LIST
3
PREPARED BY THE RESPONDENT NO.1 VIDE ANNEXURE-C
DATED 01.04.2022 AND CONSEQUENTLY APPOINT THE
PETITIONER AS PROFESSOR IN THE DEPARTMENT OF
PHYSIOLOGY AS PER THE ROSTER PROVIDED IN
NO.CHIMS/D.R/01/2021-22 VIDE ANNEXURE-A; AND ETC.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT
OF ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is assailing the Notification dated 20.07.2022 issued by the respondent No.1 insofar as the post of Professor (Annexure-K), inter-alia seeking direction to the respondent No.1 to prepare the selection list of Professor in the Department of Physiology on the basis of merit list as per order dated 01.04.2022 (Annexure-C), consequently appoint the petitioner to the post of Professor in the Department of Physiology.
2. It is the case of the petitioner that the petitioner is working as a Professor in JJM Medical College, Davanagere in the Department of Physiology. It is stated in the writ petition that, the petitioner completed MBBS degree in the year 2002 from the Bangalore Medical College and completed Masters in 4 Physiology (MD-Physiology) from Bangalore Medical College during the year 2007. Petitioner joined the JJM Medical College, Davanagere as Assistant Professor during the year 2007 and worked in the said Institution in the posts of Assistant Professor, Associate Professor and Professor for fourteen years.
3. It is further stated in the writ petition that the respondent No.1 published a Notification dated 28.05.2021 (Annexure-A), inviting applications from eligible candidates for various posts including the post of Professor in physiology. Last date for filing application was on 14.06.2021. Walk-in- interview was conducted from 21.06.2021. There are six posts of Professor, out of which, one post was reserved for local cadre (Kalyana Karnataka Region), one post each was reserved for Schedule Caste (Gen), General Merit (Gen), Schedule Tribe (Gen), General Merit (Women), Category-I (Gen). The said Notification was passed in pursuance of the Government orders with regard to allocation of classification of reservation.
5
4. The petitioner along with several eligible candidates participated in Walk-in-interview and consolidated merit list for each of the cadre of the post was published on 19.11.2021. Revised merit list was published on 01.04.2022 (Annexure-C). As per the merit list, list of sixteen candidates was finalized six posts of professors in different disciplines namely, Anatomy, Biochemistry, General Medicine, General Surgery, Obstetrics and Gynecology and Physiology. Out of these, one General Merit (Gen) post has been allotted to General Medicine Department, One Schedule caste post to OBG Department. Two posts have been filled up by transferred candidates - one under General Merit category to the Department of Biochemistry and another post under Schedule Tribe reserved quota for Anatomy Department. The post of professor in Surgery Department is vacant. Respondent No.3 has been selected under General Merit (Kalyana Karnataka Category) in the Department of Physiology. It is the grievance of the petitioner that, the petitioner secured highest marks in the Department of Physiology, however, the petitioner has been placed below 6 the respondent No.3 for the cadre of Professor in Department of Physiology. It is the categorical statement made in the writ petition that the respondent No.3 had applied for reserved category under Local Cadre and the petitioner has applied under General Merit, and therefore, it is the contention of the petitioner that the respondent No.1 ought to have selected the petitioner, based on merit list as the said post was reserved for General Merit quota before considering the reserved category. It is contended that, the petitioner has filed objection to the provisional selection list, however, the respondent No.1, without considering the said objection filed by the petitioner, notified the final selection list on 20.07.2022 (Annexure-K). Being aggrieved by the same, the petitioner has presented this writ petition.
5. Heard Smt. Poonam S. Patil for learned counsel appearing for the petitioner; Sri. N.K. Ramesh learned counsel appearing for the respondent No.1; Sri. T.P. Srinivasa, learned Principal Government Advocate for respondent No. 2; Sri. Pradeep Naik and Sri. Karan Gupta, 7 learned counsel appearing for the respondent No.3 and Sri. M.S. Raghavendra Prasad, learned counsel appearing for the respondent 4.
6. Smt. Poonam Patil, learned counsel appearing for the petitioner contended that, the procedure adopted by the respondent-Authorities is contrary to law declared by the Hon'ble Apex Court in the case of SAURAV YADAV AND OTHERS vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2021) 4 SCC 542. Placing reliance of the same, learned counsel appearing for the petitioner argued that the respondent-Authorities ought to have filled-up the General merit quota first and thereafter, consider the reserved category. She further contended that, the respondent No.1 has committed an error while publishing the final Notification by ignoring the basic roster procedure, and accordingly, she sought for interference of this court.
7. Nextly, Smt. Poonam Patil, learned counsel appearing for the petitioner argued that, the cadre of Professor(Physiology) is a single post and therefore, 8 reservation as per roster in the Government orders relied upon by the respondent No.1 is not applicable to the facts on hand. In this regard, she places reliance on the decisions made in the case of DALVOY ANGLO-SANSKRIT SCHOOL COMMITTEE vs. K.S.NARASAPPAIAH (ILR 1991 KAR 1880) and STATE OF KARNATAKA AND OTHERS K. GOVINDAPPA AND ANOTHER [(2009)1 SCC 1].
8. Nextly, the third limb of the argument of Smt. Poonam Patil is that the respondent No.1 has notified six posts of Professor, however, same was reduced to four, as a result of transfer of two Professors by the respondent- Government to the respondent No.1-Institution without adequate reasons and therefore, the rules of the game cannot be changed after the game commences. In this regard, she refers to the law declared by the Hon'ble Apex Court in the case of K. MANJUSHREE vs. STATE OF ANDHRA PRADESH reported in (2008) 3 SCC 512. It is the further submitted by learned counsel Smt. Poonam Patil that, the respondent - authorities ought to have announced the specific 9 post as against which the reservation in the Hyderabad- Karnataka category was blocked before the process of the interview and therefore, she contended that the entire process of selection stands vitiated. She further contended that, reserving one post out of four posts of Professor to Hyderabad-Karnataka region amounts to 25% and same is contrary to the Government order, whereby, the reservation is to be made up to 8% only.
9. Lastly, Smt. Poonam Patil, argued that the respondent No.3 ought to be appointed to the post of Associate Professor for the post which she applied and the petitioner is having legitimate right to be appointed for the post of Professor in Physiology, having secured highest marks and therefore, she sought for interference of this court.
10. Sri N.K. Ramesh, learned counsel appearing for the respondent No.1-Institution contended that the Teaching and Non-Teaching staff of the respondent No.1-Institution are being recruited as per the report of the National Medical Council inspection and the criteria fixed under the National 10 Medical Council/Medical Council of Inida Regulations. The respondent No.1-Institution is governed by its bye-laws. The Institution has notified for six posts and cadre wise roster was prepared as per the Government order. The State Government permanently transferred two Professors, one each in the Department of Anatomy and Biochemistry and directed the respondent No.1-Institution to withdraw two posts from the notification dated 28.05.2021 and accordingly, a corrigendum was issued on 28.10.2021. He further contended that, after completion of selection process, a common Merit List was drawn and thereafter, Merit wise and Category wise fitment was made in each of the Departments and accordingly, he sought to defend the selection process. Further, he contended that, one post in surgery was kept vacant due to non-availability of Schedule Tribe candidate and same is carried forward as backlog. He further contended that apart from petitioner, one Dr. Dinesh B.V. had also scored highest marks of 10.05 along with the petitioner under General Merit Category and taking into consideration, the age factor, the said candidate was placed above the petitioner and 11 as the said Dr. Dinesh B.V. was also not selected and therefore, he argued that the claim made by the petitioner is without any basis. Sri N.K. Ramesh, learned counsel appearing for the respondent No.1-Institution further submitted that, after receipt of report of joint meeting of the Selection Committee and the Technical Advisory Committee held on 02.06.2022, a revised provisional selection list was published on 08.06.2022, offering objections from the aggrieved parties to be placed before the selection committee and thereafter, the final selection list was published. He also denies the argument of the petitioner with regard to the Professor post is a single cadre post and as a recruitment is being held for the first time to the respondent No.1 Institution, all precautionary measures have been taken as per the norms of National Medical Council and accordingly, he sought for dismissal of the writ petition.
11. Sri. T.P. Srinivas, learned Principal Government Advocate appearing for the respondent No.2-Government argued in support of the selection process adopted by the 12 respondent No.1-Institution and contended that post of Professor of Anatomy was cancelled as per letter dated 28.10.2021 as two Professors from Gadag Institution and one Professor from Kodagu Institution were transferred to the two posts in the respondent No.1-Institution and accordingly, he sought to justify the impugned selection process.
12. Sri. Pradeep Naik and Sri. Karan Gupta, learned counsel appearing for the respondent No.3 argued that, the selection of respondent No.3 to a post reserved for Hyderabad-Karnataka region is as per Karnataka Public Employment (Reservation in Appointment for Hyderabad- Karnataka Region) Order 2013 and amendment made thereunder. He also made argument on the scope of Article 371J of the Constitution of India and submitted that, 8% of the posts in State Level Officers in all Departments shall be reserved for local candidates. He further argued that, once cadre is called out, vertical and horizontal reservation operates in the Local Cadre which is independent of its operation in the residual parent cadre. He further argued 13 that, out of sixteen candidates, two candidates are from Hyderabad Karnataka Region and as the respondent No.3 has secured highest marks in the Hyderabad-Karnataka region and accordingly, she was appointed to the said post. He further contended that reserving one post out of four posts of professor for Hyderabad Karnataka region is to be rounded off as per Clause 8 of the Notification dated 06.11.2013 - Government order, referred to above and therefore he sought to justify the action of the respondent-Institution. To support his arguments, he refers to the judgment of this Court dated 06.08.2019 made in Writ Appeal No.939-940 of 2019.
13. Sri. Pradeep Naik, learned counsel appearing for the respondent No.3 further contended that the contention of the petitioner that rules of the game were changed illegally is without any merit. In this regard, he submitted that every candidate who participated in the selection process were well aware about the available vacancies and the selection criteria and further the respondent No.1-Institution did not change the rules of the game during midway of the selection process 14 and in this regard, he refers to the judgment of the Hon'ble Supreme Court in the case of NEIL AURELIO NUNES (OBC RESERVATION) AND OTHERS vs. UNION OF INDIA AND OTHERS reported in (2022) 4 SCC 1 and invited the attention of Court to paragraph 84 of the judgment and argued that the writ petition is liable to be dismissed.
14. Sri. M.S. Raghavendra Prasad, learned counsel appearing for the respondent No.4 argued on the similar lines of learned counsel appearing for the respective respondents.
15. In the light of the submission made by the learned counsel appearing for the parties and on careful examination of the writ papers would indicate that, on 28.05.2021 (Annexure-A), respondent No.1-Institution published a Notification for recruitment for the post of professor and other cadres in the respondent No.1-institution. There are six posts of professor and classification of reservation was as follows:
"Local cadre - 01 , one post each was reserved for SC (G), GM (G), ST (G), GM (W), CAT-1 (G)."15
16. Petitioner along with the contesting respondents herein have applied for the post of Professor in the Department of Physiology and other disciplines. Walk-in- interview was conducted for the candidates. Revised merit list, after accepting the objections filed by the candidates, was published on 01.04.2022. First four candidates, pursuant to the revised merit list (as per Annexure-C) reads as under:
Sl. Name of the Subject Gender Claimed Total No. Candidate reservation Marks accepted by respondent No.1 1 Dr. Sricharan K.N. General Male IIIA/GM 13 (Respondent No.4) Medicine 2 Dr. Dinesh B.V. General Male GM 10.5 Surgery 3 Dr. Baghya V. Physiology Female GM 10.5 (Petitioner) 4 Dr. Kanyakumari Physiology Female GM (KK-local 9.5 D.H. cadre) (Respondent No.3)
17. Insofar as the post of professor is concerned, as per the Notification dated 28.05.2021 (Annexure-A), there 16 are six posts vacant and one post is reserved for local cadre and remaining five posts in residual parent cadre. Out of six posts of professor, one post was reserved for Department of Physiology and remaining one post each are reserved for Anatomy, Biochemistry, General Medicine, General Surgery and Obstetrics and Gynecology. It is the principal submission of the learned counsel appearing for the petitioner that the cadre of the professor-Physiology is a single post and the reservation as per roster followed by the respondent No.1- Institution is not applicable to the case on hand. Taking into consideration of the same, it is relevant to extract the law declared by this Court in the case of DALVOI ANGLO- SANSKRIT SCHOOL COMMITTEE (supra), wherein Paragraph 7 reads as under:
"7. In the light of the aforesaid two Decisions, I do not consider it necessary to discuss the matter afresh, inasmuch as, the aforesaid two Decisions completely cover the contentions urged on behalf of the petitioner. In Dr. Chandradhar Paswan vs State of Bihar and others, this question has been specifically considered and it has been held as follows:17
"it is quite after the decision in Devadasan's case that no reservation could be made under Article 16(4) so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Article 16(1) and 16(2) wholly meaningless and illusory. These principles unmistakably lead us to the conclusion that if there is only one post in the cadre, there can be no reservation with reference to the post either for recruitment at the initial stage or for filling up a future vacancy in respect of the post. A reservation which would come under Article 16(4) pre- supposes the availability of at least more than one post in the cadre."
This has been reiterated by a Full Bench of this court in the case of Dr. Rajkumar vs Gulbarga University as follows:
"The next question for consideration is about the method which should be adopted in providing reservation for the cadre of Professors, Readers and Lecturers for, though these posts are in different subjects they carry same designation and pay scale. Therefore the respect of such cadres, separately. This question is also no longer res integra. The Court in the case of Dr. Krishna vs State of Karnataka (ILR 1986 KAR 255) has held that in the case of teaching cadres though the designation and pay scale of the posts of Professors, Readers and Lecturers in different subjects are one and the same, still having regard to the fact that the posts of the Professors, Readers and Lecturers in each of the subject is distinct the separate, each subject has to treated as independent unit for the purpose of recruitment and reservation.18
The said view stands confirmed by the decision of the Supreme Court in the case of Chakradhar. In view of the position in law, the only reasonable method of giving effect to reservation in the cadre in which the number of posts available is smaller, is by way of providing a reasonable roster. In fact, in view of the judgment of this court in Krishna, the State Government by its order dated 28-1-1987 (Aneexure- R1) prescribed a 100 point roster. The first 10 points prescribe are; (1) Scheduled Caste, (2) Scheduled Tribe, (3) General Merit, (4) Group-A of the Backward Classes, (5) Group-B of the Backward classes, (6) Schedule Caste, (7) General Merit, (8) Group 'C' of the Backward Classes, (9) Group 'D' of the Backward Classes and (10) General Merit and the roster continues upto 100 points. As number of posts available in each of the Department in each of the cadres in generally less than ten, and once a person is appointed against a vacancy, it appears to us that 100 point roster is unwieldy because, for the completion of the roaster it might take a few centuries. The validity of that order is not challenged in this petition. We should, however observe that it would be reasonable to fix the roster for points as minimum as possible for cadre in which the posts available are only a few and therefore the roster requires to be reviewed and modified."
*** *** *** 19 "Applying the above principle, reserving of only post in any cadre under Article 16(4), which amounts to cent per cent reservation, is impermissible as Ruled by the Supreme Court in the case of Chakradhar."
The Full Bench has followed the Decision of the Supreme Court in Chakradhar's. Thus, the established position of law is that no reservation under Article 16(4) of the Constitution is permissible if a cadre consists of only one post. It is not in dispute that in the instant case the cadre of Head Master is different from the other cadres. It consists of only one post. That being so, the Rules of Reservation cannot apply to the post of Head Master which is a different and distinct consisting of only one post.''
18. In the case of GOVINDAPPA (supra), Hon'ble Apex Court at paragraphs 22 to 24 held as under:
"22. While there can be no difference of opinion that the expressions "cadre", "post" and "service" cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of interchangeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post 20 for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution.
23. The decision in Chakradhar Paswan (Dr.) case, which has been subsequently approved by the Constitution Bench in Post Graduate Institute of Medical Education & Research case makes it clear that isolated and separate posts can exist within a cadre and in case of such posts, if there was only one post, the same could not be set apart for a reserved candidate.
24. In our view, the present case falls within the category of single isolated posts within a cadre in respect whereof the rule of reservation is inapplicable and the said principle has been correctly applied by the High Court in the facts of this case. As indicated by the High Court, each discipline which consisted of a single post will have to be dealt with as a separate cadre for the said discipline and in view of the settled law that there can be no reservation in respect of a single post, the appointment of Respondent 1 cannot be faulted. This is particularly so having regard to the fact that the several disciplines are confined to one college alone. That is what distinguishes the facts of 21 this case from those of Arati Ray Choudhury case in which the rule of rotation could be applied on account of the fact that two posts of headmistress were available in two colleges run by the same management. Moreover, in Chakradhar Paswan (Dr.) case on which reliance was placed by the High Court it was noticed that while upholding the rule of rotation the Constitution Bench in Arati Ray Choudhury case did not support reservation in a single cadre post."
19. In the case of POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH, CHANDIGARH vs. FACULTY ASSOSIATION AND OTHERS reported in (1998) 4 SCC 1, paragraphs 34 to 37 reads as under:
"34. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent.22
35. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.
36. Mr Kapil Sibal has contended that in some higher echelons of service in educational and technical institutions where special expertise is necessary to hold superior posts like Professors and Readers, there should not be reservation even if there is plurality of posts in such cadre as indicated in the majority view in Indra Sawhney case. It is, however, not necessary for us to decide the said contention for the purpose of disposal of these matters, where the question of reservation in single cadre post calls for decision.23
37. We, therefore, approve the view taken in Chakradhar case that there cannot be any reservation in a single post cadre and we do not approve the reasonings in Madhav, case, Barji Lal Thakur case and Bageshwari Prasad case upholding reservation in a single post cadre either directly or by device of rotation of roster point. Accordingly, the impugned decision in the case of Post Graduate Institute of Medical Education & Research cannot also be sustained. The review petition made in Civil Appeal No. 3175 of 1997 in the case of Post Graduate Institute of Medical Education & Research, Chandigarh, is therefore allowed and the judgment dated 2-5-1997 passed in Civil Appeal No. 3175 of 1997 is set aside."
20. In the case of VIJAY PRAKASH BHARATHI vs. UNION OF INDIA AND OTHERS reported in (2019) 12 SCC 410, Hon'ble Apex Court held that, the University shall apply the reservation to the posts under advertisement treating the Department/Subject as a Unit for all levels of Teachers.
21. In the case of SANJEEV KUMAR AND OTHERS VS. STATE OF UTTAR PRADESH AND OTHERS reported in (2019) 12 SCC 385, Hon'ble Apex Court has held that the 24 reservation has to be applied subject wise. In the said case, Hon'ble Supreme Court held as under:
"In Vishwajeet Singh case, High Court correctly held that in a State University, the provisions of U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward classes) Act, 1994 have to be applied not by clubbing all the posts of Lecturers, Readers or Professors but reservation has to be applied subject-wise. Although all the post of Lecturers in a university are in a common pay scale but that cannot be basis for clubbing of posts of Lectures and applying the reservation and roster on all the posts of Lecturer together. Rather, the reservation has to be applied subject-wise. While applying the reservation in the post of Lecturers in Post-graduate colleges and degree colleges affiliated to different universities governed by the provisions of U.P. State Universities Act, 1973, the same principle of applying the reservation will apply i.e., subject-wise, college-wise. Full effect to 1994 Act shall be given but while applying the reservation, college-wise, subject Wise unit is to be followed. Different subjects in a college are in different disciplines and post in the colleges is created subject-wise. Thus, neither can all posts of one subject in different colleges be clubbed together for applying rules of reservation nor can all the posts of Lecturers in one college be grouped 25 together for applying the reservation. The reservation according to 1994 Act and roster thereunder, is to be applied college-wise and subject-wise. Thus, vacancies have to be advertised subject-wise, college- wise and the roster has to be applied subject-wise and college-wise when there are plurality of posts"
22. Recently, Hon'ble Apex Court in the case of R.R. INAMDAR VS STATE OF KARNATAKA AND OTHERS reported in (2020) 19 SCC 543, at paragraphs 8 to 12 held as under:
"8. We are unable to accept the submission for more than one reason. The Circular dated 31-5-1991 is prior to the decision of the Constitution Bench in PGIMER. As a matter of fact, the circular is prior to the decision in K. Govindappa [State of Karnataka v. K. Govindappa, (2009) 1 SCC 1 : (2009) 1 SCC (L&S) 64] as well. The principle which has been enunciated by this Court is that there can be no reservation of a solitary post and that in order to apply the rule of reservation within a cadre, there must be a plurality of posts. Where there is no interchangeability of the posts in different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. If this principle were not to be followed, reservation would be in 26 breach of the ceiling governed by the decisions of this Court. A circular, of the nature that has been issued by the State of Karnataka, cannot take away the binding effect of the decisions of this Court interpreting the policy of reservation in the context of Article 16(4).
9. For the above reasons, we are of the view that the judgment of the High Court cannot be faulted and is consistent with the law which has been laid down by this Court.
10. However, in the alternative, Mr Bhat has submitted that the appellant has continued to work as a Lecturer in English since her appointment on 28-9-2002 and during the pendency of this appeal, she has been protected by an order of status quo since 16-2-2016. He stated that the management has submitted a proposal to the State of Karnataka for the appointment of the appellant to a second post which was not acceded to by the State of Karnataka.
11. We would request the State of Karnataka to consider afresh the request of the management for the creation of an additional post if such a request falls within the parameters of the rules or regulations of the State of Karnataka. This exercise be completed expeditiously and within a period of two months from the date of receipt of a certified copy of this order. In the event that it is not possible for the State of Karnataka to create another post 27 under its rules and regulations, the State of Karnataka shall consider, in the alternative, the creation of a supernumerary post for such period until a substantive post is made available, having regard to the fact that the fifth respondent is due to attain the age of superannuation in approximately three years and seven months from today.
12. Since the appellant has continued to work as a Lecturer in English since 28-9-2002, it would be appropriate to direct that no recovery should be made from the appellant for the period during which she has worked. Insofar as the fifth respondent is concerned, her pay shall be fixed notionally for the purpose of computing the salary which will be payable to her effective from the date of her joining as Lecturer in English and in the ultimate computation of her retiral dues on the date on which she attains superannuation. We are not granting any benefits by way of payment of arrears of salary for the period during which the fifth respondent did not work as a Lecturer in English, since payment has already been made to the appellant.''
23. Taking into consideration the law declared by the Hon'ble Apex Court that the solitary post shall not be reserved and the post of the Professor in each discipline itself is a cadre, which is a solitary or single post and the said post 28 cannot be reserved in terms of the declaration of the law made by the Hon'ble Apex Court referred to above. The Hon'ble Apex Court has held that, reservation shall be subject/discipline wise, however, the clubbing of vacancies and operating the roster is contrary to law. Reservation has to be applied subject wise/discipline wise when there is plurality of posts (when the vacancy is more than one post).
24. It is pertinent to mention here that the State Government by circular dated 17.06.2004 (Annexure-R9 to Statement of Objections filed by Respondent No.3), issued operational guidelines for organization of local cadre for Hyderabad-Karnataka Region and allotment of posts while implementing the Article 371J of the Constitution of India. While referring to state level reservation at point No.21, held that "There shall not be a reservation in a case where single post exists".
25. Though the learned counsel appearing for the respondents have raised several contentions referring to several judgments to justify the impugned notification dated 29 28.05.2021, however, the understanding made by the respondent-Institution, reserving post to local cadre and applying the roster provided under the various Government orders reserving single post of Professor is contrary to the judgment of the Hon'ble Apex Court referred to above and same amounts to 100% reservation in respect of reserving single post of the Professor in each discipline and therefore, I am of the view that, entire process of selection made by the respondent No.1 is contrary to Article 14, 15 and 16 of Constitution of India and the judgments referred to above and accordingly, the selection made thereunder by the respondent No.1 is liable to be set aside.
26. It is also pertinent to mention here that the single post cadre of the Professor in a respondent-Institution cannot be reserved under Article 371J of Constitution of India in view of notification produced at Annexure-R9 of the Respondent No.3 to the statement of objections and therefore, I find force in the submission made by the learned counsel appearing for the petitioner that the selection made thereunder i.e. Revised 30 provisional selection list dated 08.06.2022 (Annexure-H) and Final Notification dated 20.07.2022 (Annexure-K) are contrary to law. Having arrived at a conclusion for the reasons that the single post of the professor in a particular discipline shall not be reserved since, it is solitary post in the respondent- Institution, the remaining contentions urged by the parties cannot be considered thereof. In the result, I proceed to pass the following:
ORDER
i) Writ Petition is allowed;
ii) Impugned Notifications dated 28.05.2021 (Annexure-A) and 20.07.2022 (Annexure-K) issued by the respondent No.1 insofar as reserving single post of the Professor in the respondent No.1-Institution stands quashed and all further proceedings taken up by the respondent No.1-Institution in terms of the impugned Notification also stands quashed;
iii) Liberty is reserved to the respondent No.1-
Institution to fill-up post of professors by issuing fresh notification in accordance with law, in the light of the observations made 31 hereinabove within a period of two months from today.
iv) Till such exercise is completed by the respondent No.1-Institution, the service of the Professors appointed in furtherance of the notification dated 20.07.2022 (Annexure-K) shall not be disturbed.
SD/-
JUDGE ARK