Karnataka High Court
Dr. Giridhar Kamalpurkar vs Dr. Venugopal Ram Rao And Others on 30 March, 2001
Equivalent citations: 2001(3)KARLJ467, 2001 AIR KANT. H. C. R. 1536
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT
1. The controversies, contentions and claims raised in these writ appeals and connected writ petitions/appeals centres around three service cadres of Sri Jayadeva Institute of Cardiology (in short the 'Institute'). These cadres are of (i) Assistant Surgeons, (ii) Lecturers, and (iii) Assistant Professors. The first two cadres are said to be carrying the same pay-scale but the first consists of non-teaching posts whereas the second consists of teaching posts. The third cadre of Assistant Professor consists of teaching posts. It is immediately higher to the cadre of Lecturers. Till the amendment of the C and R, Rules by the resolution dated 21-3-1994 passed by the Governing Council of the Institute, the post'of Assistant Professor was to be filled by "selection by promotion" from amongst the Lecturers. Such a promotional avenue was not available to Assistant Surgeons.
2. It was because of the above reasons, that various manoeuvrings were adopted by some of the Assistant Surgeons in order to have a march over others to secure promotional benefits by first entering into the cadre of Lecturers and then to manage promotions to the cadre of Assistant Professor. Every such step taken hi this direction is the subject-matter of one or the other writ petition or writ appeal placed before us for adjudication.
'The Institute'
3. The Institute is a Society registered under the provisions of the Karnataka Societies Registration Act, 1960 (in short the 'Act'). It is not in dispute that it is an instrumentality of the State Government, as such, is a 'State' within the meaning of Article 12 of the Constitution of India. Therefore, its actions are amenable to judicial review on the touchstone of fairness, reasonableness and provisions contained in the Memorandum of Association, the Rules and Regulations, Bye-laws and C and R Rules framed by it for governance of its objects, functions and administration.
4. The Institute has been established in order to achieve the avowed object of having an advanced Cardiac Center for heart diseases and research, training and ancillary activities like that of providing total and comprehensive care to Cardiothoracic patients and educating the public regarding control of various heart diseases which are found to be prevalent in our country.
5. The Institute in order to effectively manage its affairs had at the very inception framed 'Sri Jayadeva Institute of Cardiology Rules and Regulations, 1983 (hereinafter referred to as 'the Rules and Regulations') and Sri Jayadeva Institute of Cardiology Bye-laws, 1983 (hereinafter referred to as 'Bye-Jaws'). These Rules and Regulations and the Bye-laws were registered along with the Memorandum of Association as required under Section 6 of the Act.
6. Pursuant to the powers conferred on the Governing Council (in short the 'Council') under Rule 10(4)(a)(b) and (g) of the Rules and Regulations, it has framed its service rules called 'Sri Jayadeva Institute of Cardiology (Pay, Recruitment, Conditions of Services and Miscellaneous Provisions) Rules, 1987 (in short 'C and R Rules').
7. The Governing Council subsequently under its resolution dated 21-3-1994 amended the C and R Rules, inter alia, in relation to the mode of recruitment to the cadre of Assistant Professors of Cardiology, Cardiothoracic Surgery and Anaesthesiology. Under the unamended C and R Rules, the mode of recruitment to the post of Assistant Professor of Cardiology was to be made by promotion by selection from the cadre of Lecturer in Cardiology. Similar was the provision for recruitment to the post of Assistant Professor in Cardiothoracic Surgery. Anyhow, the C and R Rules provided that if no suitable person was available for appointment by promotion, then it was permissible to fill the vacancy by direct recruitment. But, so far as the post of Assistant Professor of Anaesthesiology is concerned, the unamended C and R Rules provided that 50% of the posts were to be filled by promotion by selecting from the cadre of Lecturers/Lecturer-cum-Registrar in anesthesiology and the remaining 50% by direct recruitment.
8. The 1994 Amendment to C and R, Rules made a major departure for making recruitment to the post of Assistant Professor of all the three categories referred to above by providing that the post can be filled up only by direct recruitment, The validity of 1994 Amendment to the C and R, Rules were challenged before this Court in a batch of writ petition being W.P. No. 10750 of 1996 and analogous cases by various Lecturers of the Institute, These writ petitions were disposed of by a learned Single Judge of this Court on 28-2-1997. This judgment is in- Dr. H.P. Prabhuswamy and Others v Sri Jayadeva Institute of Cardiology, Bangalore and Others. He inter alia held that these Rules having not been published in a manner known to law, cannot be said to have come into force till it is published in the Official Gazette. Subsequently, the C and R Rules were published in the Karnataka Gazette dated 8-5-1997.
Material happenings leading to multiple litigations
9. The Institute has three main Departments, namely those of Cardiology, Cardiothoracic Surgery and Anaesthesiology. In these departments, there were 14 Assistant Surgeons working as on 3-10-1991. Out of these 14 Assistant Surgeons, two namely, Dr. P.O. Girish and Dr. S. Shankar, who had entered the service as Assistant Surgeons respectively on 9-3-1990 and 22-3-1990, addressed individual applications both dated 17-8-1991 to the then Minister of Health, Government of Kar-nataka, requesting him to change their cadre from Assistant Surgeon to that of Lecturer, in the Department of Cardiology.
10. As is borne out from the original records of the Institute, produced before us by Sri M.R. Achar, learned Counsel for the Institute, that on receiving the above applications, the Minister of Heath on that very day made the following endorsement.-
"MH and FW/G/H/380/91 17-8-1991 Dir.(c)
Since they are qualified and working in the Institute on regular appointment, the cadre may be changed as Lecturer subject to ratification of Governing Council.
Sd/-
G. Puttaswamy Gowda Minister of Health and Family Welfare Government of Karnataka, Bangalore".
11. It is a matter of record that pursuant to the above said endorsement of the Minister, Dr. P.G. Girish and Dr. S. Shankar were favoured with the desired change of cadre from Assistant Surgeon to that of Lecturer by an Official Memorandum No. SJIC/EST(1) 80/91-92 dated 24-8-1991 (Annexure-A to W.P. No. 16182 of 1997) though by that time they had not even completed their probationary period. When this fact came to the knowledge of other Assistant Surgeons, who were senior to Dr. P.G. Girish and Dr. S. Shankar and according to whom they had better claim for change of cadre to the post of Lecturer, filed their applications for change of their cadre as well, from Assistant Surgeon to that of Lecturer, These applications were filed by them in between 30-8-1991 and 8-10-1991.
12. It appears that keeping in view the above developments and discontentment in the cadre of Assistant Surgeons, proposal for change of cadre of all the fourteen Assistant Surgeons was placed before the Promotion Review Committee. This Committee, in its meeting held on 3-10-1991, made the following recommendation to the Board of Appointment.
"(i) The 14 posts of Assistant Surgeon to be converted as Lecturer posts in the interest of public service.
(ii) For any subsequent promotions, they should acquire post-graduation qualification in their respective subjects and requisite teaching experience as per C and R Rules of the Institute".
13. The Promotion Review Committee, as is borne out from the preamble of the proceedings, took into account various factors. According to the Committee, the change of cadre as requested by the Assistant Surgeons would provide to them an opportunity to get exposed for teaching and research activities and participation in conference and other academic programmes. The Committee also felt that as per the C and R, Rules, qualifications, experience and pay-scale of the two cadres, namely that of Assistant Surgeons and Lecturers were one and the same.
14. The above recommendations of the Promotion Review Committee was thereafter approved by the Board of Appointments, which was presided over by the Minister of Health as its Chairman, in its meeting held on 30-11-1991. But, curiously, at the foot of this resolution, the Minister for Health made a personal endorsement to ensure that Dr. P.G. Girish and Dr. S. Shankar, who had been favoured with change of cadre with effect from 24-8-1991 under his earlier recommendations as noticed above, should be treated to be in the changed cadre of Lecturers retrospectively from 24-8-1991. The endorsement of the Minister reads as under:-
"Dr. P.G. Girish and Dr. S. Shankar, who are postgraduation and who have been recently given change of cadre from Assistant Surgeons to Lecturer on 24-8-1991, in the Department of Cardiology and here posted against the vacant post of Cardiothoracic Surgery are posted back to Department of Cardiology as Lecturers from 24-8-1991. Other Assistant Surgeons, who have postgraduation qualification are to be given Lecturer (Teaching Post) with immediate effect. The Assistant Surgeons who are on deputation to postgraduation may be considered for the post of Lecturer as and when they acquire the postgraduation qualification.
Sd/-
(G. Puttaswamy Gowda) Health and Family Welfare Minister Government of Karnataka Bangalore".
15. Consequent to the above resolution of the Board of Appointments, the Director of the Institute issued an Official Memorandum dated 7-12-1991 (Annexure-F) showing the change of cadre of all the 14 Assistant Surgeons working in the four Departments of the Institute namely (i) Cardiology (8), (ii) Cardiothoracic Surgery (4), (iii) Anaesthesiology, (1) and (iv) Pathology (l).'The substantive part of the Official Memorandum reads as under.-
"Ref. No. SJIC/EST(l)/165/91-92, dated 7th December, 1991 OFFICIAL MEMORANDUM Sub: Change of Cadre - Reg.
Ref: Approval of the Board of Appointments of Sri Jayadeva Institute of Cardiology dated 30-11-1991.
The Promotion Review Committee of Sri Jayadeva Institute of Cardiology has recommended to the Board of Appointments, for the conversion of 14 post of Assistant Surgeons as Lecturers and the same has been approved by the Board of Appointments on 30-11-1991. Consequent to the above, the following Assistant Surgeons have been designated as Lecturers in the Department noted against their names, with immediate effect.
xxx xxx xxx xxx xxx xxx".
16. Subsequent to the issue of the above Official Memorandum pertaining to change of cadre of the Assistant Surgeons to the cadre of Lecturers, the Director of the Institute issued another Official Memorandum dated 27-1-1992 publishing the provisional seniority list of Lecturers serving in the Departments of Cardiology, Cardiothoracic Surgery and Anaesthesiology inviting objections in writing on or before 1-3-1992. But, for certain untenable reasons, the final seniority list could not be published despite lapse of 4 years. Strangely, the Director instead of publishing final seniority list issued Official Memorandum dated 20-2-1996 publishing another provisional list in respect of the cadre of Lecturers once again inviting objections from members of the cadre. Ultimately, pursuant to the orders of this Court passed in W.P. No. 2782 of 1997 (DD: 21-6-1999), final seniority list of Lecturer cadre was published on 31-8-1999 (Annexure-H to W.P. No. 32340 of 1999).
17. It may be noticed here that much before publication of seniority list of the cadre of the Lecturers could be finalised and published, the Board of Appointments on the recommendations of the Promotion Review Committee as provided under Rule 2 read with Rule 15 of the Pay and Recruitment Rules (Annexure-I to the C and R, Rules) promoted Dr. S. Shankar and Dr. P.O. Girish of Cardiology Department and Dr. G. Kamalapurkar and Dr. G. Prabhuswamy, and Dr. Kusumi Sreedhar of Cardiothoracic Surgery Department to the post of Assistant Professor in the respective Departments under separate Official Memorandum issued by the Director, all being dated 8-5-1997 (Annexures-F and G to W.P. No. 16182 of 1997, Annexures-A and B to W.P. No. 16110 of 1997).
18. The above change of cadre of Assistant Surgeons to that of Lecturer created a new controversy regarding seniority between the direct recruits on the post of Lecturer and those who entered in the cadre pursuant to their change of cadre. Controversies also arose regarding the inter se seniority between the new entrants because of the favour shown by the Minister for Health in respect of Dr. P.G. Girish and Dr. S. Shankar, whose entrance in the Lecturer's cadre was made retrospective. Consequently, the controversies regarding according of promotions to the post of Assistant Professors also got flared up.
Placement in final seniority list
19. Before proceeding further, we would like to extract hereunder the placement of litigating doctors in the final seniority list of Lecturers in the Departments of Cardiology and Cardiothoracic Surgery. These lists were published by the Director of the Institute on 31-8-1999.
Final seniority list of Lecturers in Cardiology Sl. No. Name of Doctor Mode of Appointment Date of Birth Date of Joining Date of working in the present Qualifications 1 Dr. S. Shankar Change of cadre 16-05-1962 22-03-1990 24-08-1991 MBBS-84,MD-89, DM-97 2 Dr. P.G. Girish Change of Cadre 25-05-1962 19-03-1990 24-08-1991 MBBS-85,MD-89, DM-96 3 Dr. Prabhavathi Change of Cadre 06-03-1957 20-09-1990 07-12-1991 MBBS-80,MD-92, DM-96 4 Dr. N.M.Prasad Change of Cadre 30-11-1955 10-12-1984 07-12-1991 MBBS-80,MD-93, DM-98 5 Dr. N.G. Shivaswamy Change of Cadre 18-11-1953 12-12-1984 07-12-1991 MBBS-82,MD-95 6 Dr. D. Ramesh Change of Cadre 20-11-1956 13-12-1984 07-12-1991 MBBS-83,MD-95, DM-98 7 Dr. T.R. Raghu Direct Recruitment 01-06-1960 17-07-1993 17-07-1993 MBBS-83,MD-88, DM-98 8 Dr. B.C.Srinivas Direct Recruitment 20-06-1962 14-07-1993 14-07-1993 MBBS-86,MD-91, DM-94 9 Dr. Ashalatha Direct Recruitment 09-06-1990 19-07-1993 19-07-1993 MBBS-86,MD-91, DM-98 Final seniority list of Lecturers in Cardiothoracic Surgery Sl. No. Name of theDoctor Mode ofAppointment Date of Birth Date of Joining Date of working in the present cadre Qualifications 1 Dr. G. Kamalapurkar Direct Recruitment 12-04-1958 19-06-1990 19-06-1990 MBBS-82,MS-8,M.Ch.83 2 Dr. Prabhuswamy Direct Recruitment 17-03-1951 14-06-1990 14-06-1990 MBBS-73,MS-87,M.Ch.92 3 Dr. KumshiSridhar Change of cadre 20-05-1958 17-08-1988 07-12-1991 MBBS-81,MS-87,M.CH. 92 4 Dr. V.Ramarao Change of cadre 22-06-1960 01-10-1988 07-12-1991 MBBS-82,MS-86,M.Ch.93 About the litigating doctors and their claims
20. From the service details of the litigating Doctors as contained in the tables set out in the preceding paragraph, it is clear that Dr. S. Shankar, Dr. P.O. Girish, Dr. Prabhavathi, Dr. N.M. Prasad, Dr. N.G. Shivaswamy and Dr. R. Ramesh had all entered in the service of the Institute in the cadre of Assistant Surgeons in the Department of Cardiology. Similarly, Dr. Kumshi Sridhar and Dr. Venugopal Ramarao had also entered into the service of the Institute in the cadre of Assistant Surgeons in the Department of Cardiothoracic Surgery. Their date of initial entry in the service of the Institute has been duly shown in the table extracted above. All of them got the change of cadre as Lecturers pursuant to the Official Memorandum dated 7-12-1991 (Annexure-F to W.A. No. 7590 of 1991) issued by the Director of the Institute.
(i) Re: Doctors of Cardiology Department
21. Just five days earlier to publication of amended C and R, Rules in Karnataka Gazette on 8-5-1997, the Promotion Review Committee, in its meeting held on 3-5-1997, adopted five independent resolutions recommending promotions to Dr. S. Shankar, Dr. P.G. Girish, Dr. Prab-havathi, Dr. N.M. Prasad and Dr. N.G. Shivaswamy to the post of Assistant Professor against the existing vacancies. The Board of Appointment accepted the said recommendation in its resolution dated 5-5-1997 and directed for issuance of officiating promotion orders to the said doctors. The said resolutions of the Promotion Review Committee and Board of Appointment have been filed as Annexure-R3 to R8 along with the affidavit of the Administrative Officer of the Institute, filed on 2-2-2000. Admittedly, promotions were accorded purely on the basis of seniority as shown in the provisional list and the eligibility. The records of the Institute clearly show that the promotions were not accorded on the basis of 'promotion by selection' as required even under the una-mended C and R Rules by assessing the inter se merit of Lecturers who had become eligible on the date of above promotion in the Department of Cardiology.
22. Being aggrieved by the grant of above promotions, Dr. D. Ramesh and Dr. T.R. Raghu, who were not even considered for promotion in the cadre of Assistant Professors, though according to them they were eligible for participating in the promotional process, filed writ petitions in W.P. Nos. 16182 and 25333 of 1997 questioning the validity of the promotions accorded to the above named five doctors.
23. Writ Petition in W.P. No. 33223 of 1998 has been filed by Dr. S. Shankar questioning the 1994 Amendment to the C and R, Rules so far as it relates to promotion to the post of Professor of Cardiology Department (Annexure-B).
24. Writ Petition in W.P. No. 32430 of 1999 has been filed by Dr. N.M. Prasad of Cardiology Department questioning the final seniority list published on 31-8-1999 with a further prayer that after re-determination of seniority, he should be allowed to act as the Head of the Unit of Cardiology.
25. Writ Petition in W.P. No. 36652 of 1999 has been filed by Dr. D. Ramesh questioning the final seniority list as published on 31-8-1999 filed as Annexure-H with a further prayer that after determining his correct seniority he should be accorded promotion to the post of Assistant Professor with effect from 8-5-1997 when the persons junior to him namely Dr. S. Shankar and Dr. P.G. Girish were given the benefit of such promotion.
26. Writ Petition No. 4482 of 2000 has been filed by Dr. S. Shankar questioning Official Memorandum dated 7-12-1991, by which, as already noticed above, 14 posts of Assistant Surgeons were converted into that of Lecturers and the petitioner along with 13 others is one of the beneficiaries thereof. His ground of challenge is that such a change of cadre could not have been accorded to Dr. Prabhavathi, Dr. N.M. Prasad, Dr. N.G. Shivaswamy and Dr. Ramesh, since at the material time they were not holding any postgraduate qualification in Cardiology. According to him, since under the C and R, Rules of the Institute there was no provision for change of cadre, therefore that could have been done only by following the procedure of recruitment provided in the Karnataka Medical Services (Teaching and Technical Personnel in Medical and Dental Colleges) Recruitment Rules, 1964, which provides for transfer from the cadre of Assistant Surgeon to Lecturer (Teaching). But under the said Rules, for recruitment by transfer, a candidate ought to have postgraduate qualification in Cardiology, which, at the material time the above named four doctors were not possessing.
27. Writ Petition in W.P. No. 31549 of 2000 has been filed by Dr. N.M. Prasad questioning the Amendment 1994 amending the C and R Rules so far as it relates to promotion to the post of Professor in Cardiology Department.
(ii) Re: Doctors of Cardiothoracic Surgery Department
28. Writ Petition in W.P. No. 10750 of 1996 has been filed by Dr. H.P. Prabhuswamy, who at that time was working as Lecturer in Cardiothoracic Surgery Department, questioning the notification dated 13-3-1996 by which applications were invited from the eligible candidates, inter alia, for appointment on 2 vacant posts of Assistant Professor in Cardiothoracic Surgery Department. He has also prayed that his case should be considered for the said post by promoting him retrospectively from the date he became eligible and qualified for the said post.
29. Writ Petition in W.P. No. 1760 of 1997 has been filed by Dr. Venugopal Ramarao challenging the 1994 Amendment to the C and R Rules. He has also filed writ petition in W.P. No. 16110 of 1997 challenging validity of Official Memorandum dated 8-5-1997 by which promotions had been accorded to Dr. Giridhar Kamalapurkar and Dr. H.P. Prabhuswamy to the post of Assistant Professors. W.P. Nos. 2466, 3924 and 13490 of 2000 have been filed by Dr. Venugopal Ramarao, Dr. Kumsi Sridhar and Dr. Prabhuswamy questioning the final seniority list published on 31-8-1999.
30. The above writ petitions pertaining to validity of the seniority list and according of promotions to the post of Assistant Professors had been disposed of by the learned Single Judge by a common order. The learned Single Judge quashed the seniority list as well as the orders of promotion with a direction that the seniority list should be reprepared in accordance with law laid down by him and only thereafter the issue of promotion to the post of Assistant Professor should be taken up. This order of the learned Single Judge has been questioned by Dr. Kamalapurkar and Dr. Prabhuswamy in Writ Appeal Nos. 7590 to 7592 and 7637 to 7640 of 2000.
Questions for determination
31. In the background of the facts as found above and nature of reliefs claimed by the litigating doctors, in our considered opinion, the following questions need to be answered by us.
(i) Whether the change of cadre on request/conversion of posts of Assistant Surgeons into those of Lecturers as notified by the Director of the Institute in his Official Memorandum dated 7-12-1991 is ultra vires his powers and therefore void in the eye of law?
(ii) Even if the Official Memorandum dated 7-12-1991 issued by the Director placing the Assistant Surgeons in the cadre of Lecturers, is treated as valid, whether such a change has to be treated as change of cadre on request of the employees or is to be treated as a consequence of merger of the cadres of Assistant Surgeon and Lecturers.
(iii) Even if either of the above two modes of conversion are found to be valid, was there any legally acceptable justification for treating Dr. S. Shankar and Dr. P.G. Girish as having entered the Lecturer's cadre on 24-8-1991.
(iv) Whether there is any infirmity in the final seniority list of Lecturers published on 31-8-1999 in relation to the Departments of Cardiology and that of Cardiothoracic Surgery.
(v) Whether the Director of the Institute was justified in according promotion to the above five Lecturers namely Dr. S. Shankar, Dr. P.G. Girish, Dr. Prabhavathi, Dr. M.N. Prasad and Dr. N.G. Shi-vaswamy to the posts of the Assistant Professors in the Department of Cardiology under his Official Memorandum dated 8-5-1997.
(vi) Whether the promotions given to Dr. S. Giridhar Kamalapurkar, Dr. Prabhuswamy, and Dr. Kusumi Sridhar to the posts of Assistant Professors in the Department of Cardiothoracic Surgery under Official Memorandum dated 8-5-1997 (Annexures-A, B and C to W.P. No. 16110 of 1997) are austainable in law?
(vii) Whether the Amendment made by the Governing Council under its resolution dated 21-3-1994 to the C and R Rules can be said to be ultra vires its powers being arbitrary or unreasonable?
(viii) Whether the recruitments in respect of vacancies arising in the cadre of Assistant Professors prior to coming into force of the amended Rules with effect from 8-7-1997 has to be made in accordance with the amended rules or the unamended rules?
Re: Questions (i), (ii), (iii) and (iv)
32. Question No. (i) pertains to the powers of the Promotion Review Committee, Board of Appointments and the Director of the Institute in recommending and redesignating 14 Assistant Surgeons, who are all parties before us as Lecturers in their respective Departments, as has been noticed by us in paragraphs 2 to 15 of this judgment. The circumstances leading to such a decision has already been noticed by us in paragraphs 9 to 15 of this judgment. For ascertaining the competence of the Committee, the Board and the Director referred to above, we need to examine? the relevant provisions contained in the Memorandum of Association, Rules and Regulations, Bye-laws and C and R Rules of the Institute.
(a) Re: Conversion/Merger of posts of Assistant Surgeons into that of Lecturers
33. Clause 3 of the Memorandum of Association of the Institute declares its objects. Sub-clause (23) of this clause declares one of its objects to be the following.-
"3. Objects.--The objects of the Institute are.-
(1) xxx xxx xxx (23) To create administrative, technical, ministerial and other posts in the Institute and to make appointments thereto in accordance with Rules and Regulations governing the Institute".
(emphasis supplied)
34. In conformity with the above object of the Institute, relevant provisions regarding creation of posts and making of appointments thereto, were made in the Rules and Regulations. Rule 10 of the Rules and Regulations prescribes the powers and functions of the Governing Council. Clauses (b) and (g) of Rule 10(4) specifically provided that.-
"10. Powers and Functions of the Governing Council (1) xxx xxx xxx (4) Without prejudice to the generality of the foregoing, the Governing Council shall have the following powers and shall perform the following functions, namely
(a) xxx xxx xxx
(b) to make such Bye-laws as they shall think essential for the regulation of the business of the Institute;
(g) to create posts and to make appointments thereto in accordance with the provisions of Rules 18 and 19".
(emphasis supplied)
35. From reading of Clause 3 of the Memorandum and Rule 10(4)(g) of the Rules and Regulations as extracted above, it is clear that the power to create posts in the Institute lies solely and exclusively with the Governing Council. Further, the power to create posts necessarily carry with it the power to abolish the posts.
36. In service jurisprudence, the term cadre has definite legal connotation. It means the strength of the service or part of the service sanctioned as separate unit -- Dr. Chakradhar Paswan v State ofBihar and Others . Further, the merger of two cadres would necessarily result in abolition of posts in one cadre and creation of additional posts in the other cadre.
37. In the present case, M. Sanjay Kaul, the Commissioner of Health, Government of Karnataka, in the capacity of administrator of the Institute has stated in his affidavit dated 23-2-2000 that-
"Regarding para 5 of the order of this Hon'ble Court, I submit that 13 posts of Assistant Surgeons and 16 posts of Lecturers (Cardiology Department-10, C.T. Surgery Department-6) including the posts in the said cadres which were existing in the Department Thoracic Surgery Unit in Victoria Hospital, out of which Sri Jayadeva Institute of Cardiology was carved out as an autonomous body in the year 1984, were created till 7-12-1991",
38. In the affidavit filed on 8-1-2001, the Health Commissioner had stated that pursuant to the proceedings of the Promotion Review Committee held on 3-10-1991 and its approval by the Board of Appointments and issuance of consequent Official Memorandum dated 7-12-1991, the existing 14 posts of Assistant Surgeons got converted as Lecturers. In para 5 of the affidavit, he has stated that.-
"From the above it is clear that as for as the 14 posts of Assistant Surgeons are concerned, all the incumbents shifted to the cadre of Lecturers along with the posts of Assistant Surgeons which were redesignated as Lecturers. These 14 posts of Assistants Surgeons therefore, in effect, stand abolished".
39. Admittedly, as noticed above, the power to create or abolish the posts lies only with the Governing Council, which, clearly implies that the power to merge the cadres of Assistant Surgeons with that of Lecturers could have been exercised only by the Governing Council. Admittedly, the Governing Council has not passed any resolution either abolishing the posts of Assistant Surgeons or creating additional posts in the cadre of Lecturers. Further, reference to Rule 12 of the Rules and Regulations and the Schedule appended to Pay and Recruitment Rules (Annexure-I to the C and R Rules) clearly shows that the posts of Assistant Surgeons still exist. Therefore, we are of the considered opinion that the cadres of Assistant Surgeons were never merged or converted into that for the cadre of Lecturers by the Competent Authority i.e., Governing Council. The statement made in this regard by the Health Commissioner appears to have been made either without making efforts to closely go through the Rules and Regulations of the Institute or it has been completely misconstrued.
(b) Re: Change of Cadre from Assistant Surgeons to Lecturer - Permissibility of
40. Rule 18 of the Rules and Regulations has made provisions regarding appointment of members of medical, administrative and scientific staff. It provides that.-
18. Appointment of members of medical administrative and Scientific Staff:
(1) The appointment of Medical Superintendent, Chief Administrative Officer, Professors, Assistant Professors, Physicians and Assistant Surgeons, shall be done by the Governing Council on the recommendation of the Selection Committee constituted by the Governing Council.
(2) The appointment of Residents, Research Assistants, and such other staff shall be done by the Director on the recommendations of Selection Committee constituted by the Governing Council.
41. The Governing Council has also framed C and R. Rules providing for Pay, Mode of Recruitment, Conditions of Service Rules, and Miscellaneous provisions, which is a composite instrument. These Rules are supplemented with Annexures-1 and 2. Annexure-1 contains "Pay and Recruitment Rules". Annexure-2 has again two Chapters. Chapter-I incorporates conditions of service and Chapter-II contains "Conduct and Disciplinary Proceedings Rules".
42. Rule 1 of the Pay and Recruitment Rules provides for classification of posts. It reads thus.-
"1. Classification of posts:
The Institute shall have posts of Group 'A', Group 'B', Group 'C1 and Group 'D' as indicated in the Schedule-I appended to these rules. The number and pay scale of each category of posts are also indicated in the Schedule.
The method of recruitment, age limit prescribed and the qualifications prescribed for appointment, for such categories shall be as indicated in Schedule-II appended to these rules".
42-A. The Director of the Institute in his affidavit dated 26-2-2001 filed pursuant to our order dated 23-2-2001, has in paragraph 6 stated that the posts of Lecturers, Assistant Surgeons and Assistant Professors fall in Class-I and those have been referred to as Class-A in the Bye-laws of the Institute. He has further stated that while specifying the Appointing Authority and Disciplinary-Controlling Authority, posts of the Institute are referred as Classes I, II, III and IV posts. According to him, as per the note contained in Rule 5 of the Karhataka Civil Services Classification, Control and Appeal Rules, Class-I has been equated to Group-A and other class has been referred to as Groups 'B', 'C' and 'D'. According to him, for all purposes, the post classified as Class-I is to be treated as Group 'A' post wherever it has been so referred.
43. The question which immediately falls for consideration is whether under the Rules and Regulations or Bye-laws or C and R Rules, any authority had been empowered to change the cadre of staff of the Institute at his request or even otherwise. For finding an answer to this question we have to refer to the relevant provisions contained in the said instruments.
43-A. Clause (f) of the Bye-law 2 of the Bye-laws of the Institute defines 'Appointing Authority", which is to the following effect.-
Bye-law 2(f): 'Appointing Authority' in relation to any post in the Institute means that post as indicated in the schedule.
43-B. Schedule to the Bye-law provides that in relation to Class-I post, the- Governing Council is the Appointing Authority. As noticed above, the post of Lecturer is a Class-I post. Therefore, only the Governing Council could have made appointments on this post by the mode" prescribed in the Bye-laws or the C and R Rules. Bye-law 12 further provides for constitution of Selection Committee for appointment to different posts including that of Lecturers and Assistant Professors, which is to make recommendations to the Appointing Authority for appointment on the said post.
43-C. Bye-law 12(2) to (5) prescribe the procedure by which the Selection Committee has to make its recommendations. These Bye-laws read thus".
"Bye-law 12. Constitution of Selection Committee for appointments:
(1) XXX XXX XXX (2) The posts may be filled by invitation /promotion I open advertisement or deputation from State Government as may be deemed fit by the Appointing Authority.
(3) The Selection Committee shall meet at Bangalore. It shall examine the credentials of all persons who are being considered for appointment to the post.
(4) The Selection Committee shall decide its own procedure for conducting the selection. It shall prepare a penal of names in order of merit.
(5) xxx xxx xxx (6) xxx xxx xxx".
43-D. Rule 7 of the "Pay and Recruitment Rules" contained in An-nexure-I to the C and R Rules provides for mode of the filling of the posts. It provides that.-
"7. Mode of filling up of posts:
The posts in the Institute may be filled by invitation/promotion, open advertisement or by deputation from State Government as may be deemed proper by the Appointing Authority in the interest of Institute Service".
44. From Bye-law 12(2) and Rule 7 of the Pay and Recruitment Rules, it is clear that the posts in the Institution can be filled either by promotion or direct recruitment or deputation. The Bye-laws and the C and R Rules do not permit appointment to any-post by transfer from one post in one cadre to another post in another cadre of the Institute. Moreover, so far as the appointments to the posts of Lecturers are concerned, as per C and R Rules, it can be done only by one mode i.e., by direct recruitment, which necessarily implies calling of applications from all eligible candidates and then selection on determination of their competitive merits. Examined from this point of view, resolution of the Board of Appointments dated 30-11-1991 and the consequent Official Memorandum issued by the Director on 7-12-1991 permitting change of cadre//e-designating the Assistant Surgeons as Lecturers was clearly contrary to the Rules and Regulations, the Bye-laws, as also C and R Rules of the Institute.
45. Faced with the above situation, it was submitted on behalf of Assistant Surgeons availing change of cadre on request that under the Karnataka Medical Service (Teaching and Technical Personnel in Medical and Dental Colleges) Recruitment Rules, 1994, a provision has been made for recruitment on the post of Lecturer by transfer of person from the cadre of Assistant Surgeons. In our opinion, placing reliance on the said Rule is wholly misconceived because those Rules have been framed by the State Government for making appointments in the Government Medical Service Cadres and can have no application to recruitment to be made on the posts created in the Institute. It is for the simple reason that for making appointments on the posts of the Institute, comprehensive recruitment rules have been made which do not permit appointment on the posts of Lecturer by transfer of person from the cadre of Assistant Surgeons. Reliance placed on Rule 16 of the Pay and Recruitment Rules (Annexure-I to C and R Rules) is also equally misconceived because those are residuary provision, which can have application only in respect of matters which are not specifically provided in the Institute's Rules. That is not the situation here. The mode and manner of making recruitment to the post of Lecturer has been specifically provided in the C and R Rules and therefore the Rules of the State Government made with regard to its own cadre of Lecturers cannot be pressed into service in relation to the posts in the Institute.
46. Admittedly, neither the Rules and Regulations nor the Bye-laws, nor the C and R Rules permit change of cadre or merger of cadres. Therefore, the entire exercise undertaken by the Promotion Review Committee, the Board of Appointments and ultimately by the Director of the Institute were all ultra vires their powers. Therefore, the impugned Official Memorandum dated 7-12-1991 permitting change of cadre or re-designating the fourteen Assistant Surgeons as Lecturers is declared as void ab initio and non est.
47. In view of our above inference, it is not necessary to examine whether Dr, H. Shankar and Dr. P.G. Girish were rightly considered as having entered the cadre of Lecturers on 24-8-1991 but since in some of the writ petitions, this question has been specifically raised, therefore we hold that even if the Official Memorandum dated 7-12-1991 is for the sake of arguments is taken to be valid, by no stretch of imagination, the above two doctors can be deemed to have entered the cadre of Lecturers from the date prior to 7-12-1991 only because, the Health Minister had recommended for permitting their change of cadre from 24-8-1991. Admittedly, the Health Minister has not been conferred with any such power and discretion either under the Rules and Regulations or the Bye-laws or the C and R Rules. The recommendations made by him, as already noticed above, were ex facie illegal, arbitrary and mala fide. It was equally improper on the part of the above said two Doctors to have approached the Health Minister to secure undue benefit. Therefore, it has to be held that even if the Official Memorandum dated 7-12-1991 issued by the Director can at all be justified, still all the doctors entering the cadre of Lecturers at their request has to be placed below the persons who were already in the cadre on the said date and in between the Assistant Surgeons, who had been permitted change of cadre, inter se seniority could have been determined in accordance with their date of entry in the cadre of Assistant Surgeons. -- State of Maharashtra v Purushottam and Others .
48. Since we have already held that there was no merger of cadres of Assistant Surgeons and Lecturers, therefore the seniority list published on 31-8-1999 by treating 14 Assistant Surgeons as Lecturers and giving them seniority by taking into account their entry in the cadre of Assistant Surgeons was ex facie illegal. Reliance placed on the decisions in the case of Om Prakash Sharma and Others v Union of India and Others, Uday Pratap Singh and Others v State of Bihar and Others and Nirmat Kumar Choudhary v State of Bihar, can have no relevance in view of the facts of the present case since those cases relate to determination of seniority in the case of amalgamation or merger of two cadres. Accordingly, though for different reasons, we uphold the order of the learned Single Judge, who has quashed the final seniority list as being illegal. We direct that now the Chief Administrative Officer should prepare and publish the final seniority list by treating the cadres of Assistant Surgeons and Lecturers as separate and following the principles of seniority as laid down in Bye-law 20 of the Bye-laws of the Institute and in case of any dispute, the same has to be resolved by the Governing Council as provided under Clause (4) of the said Bye-law.
Re: Question Nos, (v) and (vi)
49. In the present case, admittedly, five doctors serving in the Department of Cardiology, namely Dr. S. Shankar, Dr. P.G. Girish, Dr. Prabhavathi, Dr. N.M. Prasad and Dr. N.G. Shivaswamy and three doctors serving in the Department of Cardiothoracic Surgery were granted promotion to the posts of Assistant Professor under Official Memorandum dated 8-5-1997. As noticed by the learned Single Judge and was borne out from the records produced before us as well, the said promotions had been granted by the Board of Appointments on the recommendations of the Promotion Review Committee. The records clearly show that the promotion had been granted just on the basis of provisional inter se seniority and the minimum eligibility prescribed for the post of Assistant Professor. The records do not show that any effort was made to assess the comparative merits of all eligible candidates.
50. The learned Single Judge in his impugned order passed in writ petitions in relation to Department of Cardiothoracic Surgery has taken the view that the promotion by way of appointment could have been made only by the Governing Council of the Institute and that too on the recommendations of the Selection Committee. According to him, the procedure adopted for giving promotion to the post of Assistant Professor was contrary to the Bye-laws of the Institute and accordingly quashed the same by directing the Governing Council to do it afresh in accordance with its Rules and Regulations and the Bye-laws.
51. Sri Vijay Shankar, learned Senior Advocate, appearing for the appellant Dr. Giridhar Kamalapurkar in W.A. Nos. 7590 to 7592 of 2000 has submitted that in view of resolution of the Governing Council on Agenda No. 4 passed in its meeting held on 29-5-1996, the promotion granted to the post of Assistant Professors cannot be said to be illegal since the Governing Council had specifically directed departmental Promotional Review Committee to consider the case of eligible candidates and recommend the same for approval by the Board of Appointments.
52. In order to appreciate tenability of the above argument, for the sake oLconvenience, we reproduce herewith the Agenda No. 4 in its entirety.-
"Agenda No. 4: Regarding the implementation of the Hon'ble High Court of Karnataka Judgment/Order dated 28-2-1997 Regarding the implementation of Hon'ble High Court Orders dated 28-2-1997 the Director and Member-Secretary brought to the notice of the Governing Council that some Lecturers of this Institute have filed writ petitions in the High Court of Karnataka to consider their cases for promotion to the post of Assistant Professor. The Hon'ble High Court of Karnataka has opined that the amended C and R Rules, 1994 have not become operative as these rules were not notified or circulated or published as required under law, Further, it was stated in the judgment that there has been no mention in the amended rules as to the day from which these rules were to become operative. The Hon'ble High Court of Karnataka has held that these writ petitioners are entitled for consideration for promotion as per old C and R Rules and directed the Institute to consider promotion within 3 months from the date of receipt of judgment order.
After detailed discussion, the Governing Council unanimously resolved to implement the decision of the Hon'ble High Court and advised the Director and Member-Secretary to consider the case of petitioners for promotion. The Departmental Promotion Committee should consider the case of writ petitioners and recommend the promotions of suitable candidates to be approved by the Board of Appointments of the Committee of the Institute as was being followed earlier".
53. Now, we proceed to examine as to whether the above resolution of the Governing Council is in conformity with the registered Rules and Regulations and the Bye-laws of the Institute and if not so, whether it amounts to amending the same. Rule 10(2) of the Rules and Regulations, which is already extracted in paragraph 34 (supra), clearly stipulates that appointment on the post of the Institute has to be made in accordance with Rules 18 and 19. Rule 18, which has been reproduced by us at paragraph 40 (supra), in unambiguous terms, inter alia, provides that the appointment to the posts of Assistant Professors shall be done by the Governing Council on the recommendations of the Selection Committee constituted by the Governing Council. Bye-law 12(f) read with its Schedule again provides that for all Class 'A' posts, which includes that of Assistant Professors, the Governing Council is the Appointing Authority. Bye-law 12 constitutes Selection Committee inter alia for making appointments on the post of Assistant Professor by invitation/promo-tion/open advertisement/deputation from the State Government, in accordance with the procedure laid down therein. Admittedly in the present case the impugned promotions to the post of Assistant Professors have not been made by the Governing Council on the basis of any recommendation made to that effect by the Selection Committee constituted for that purpose under Bye-law 12.
54. In order to overcome the above infirmity, going to the root of the matter, Sri Vijaya Shankar, learned Senior Advocate for the appellants, has referred to Rule 3(6) of the C and R Rules read with Rule 15 of the C and R Rules in order to emphasise that the Board of Appointments having been declared as the 'Appointing Authority' for Groups 'A' and 'B' posts, it was competent on its part to accord promotion on the basis of recommendations made by the Promotion Review Committee constituted under Rule 15. As has been noticed by the learned Single Judge, there is an apparent conflict between the provisions of the Rules and Regulations and the Bye-laws on the one hand and the C and R Rules on the other hand in relation to definition of 'Appointing Authority' and the mode and manner in which the appointments are to be made.
55. As noticed above, so far as the post of Assistant Professors are concerned, under the Rules and Regulations as well as the Bye-laws, the Governing Council has been designated as the Appointing Authority which has to make appointments even by promotion, on the basis of the recommendations of the Selection Committee. But, under the C and R Rules, the Board of Appointments has been declared to be the 'Appointing Authority' for Group 'A' posts, which includes that of the Assistant Professors, which, for the purpose of filling up the post by promotion, has to act on the recommendation of the Promotion Review Committee, which is distinct from the Selection Committee.
56. Admittedly, the Rules and Regulations of the Institute coupled with the Bye-laws have been registered under Section 8 of the Act, whereas the C and R Rules have been framed by the Governing Council pursuant to the powers conferred on it under Rule 10 of the Rules and Regulations. Thus, the C and R Rules having not been registered and subordinate to Rules and Regulations, it requires no elaborate discussion to hold that in case of conflict between the two it is the provisions of registered Rules and Regulations, which has to prevail and any inconsistency in the C and R Rules has to be held as nugatory.
57. Another reason for so holding is that if the inconsistent provisions of the C and R Rules are to be held as prevailing over the provisions of the 'Rules and Regulations' then that would amount to implied alterations of the Rules and Regulations which is impermissible as per Section 10 of the Act which reads as under.-
"10. Change of name, rules and regulations:--(1) The name and the rules and regulations of a society may be amended by a resolution passed at a special general meeting convened for the purpose of which written or printed notice shall have been delivered or sent by post to every member of the society twenty-one days previous to the date of the special general meeting and the resolution proposing the amendment is passed by the votes cast in favour of the resolution by members who being entitled so to do, vote in person or where proxies are allowed, by proxy, and such votes are not less than three times the number of the votes, if any, cast against the resolution by members so entitled and voting.
(2) Every amendment made under sub-section (1) shall, within thirty days from the making thereof be filed with the Registrar and if the Registrar is satisfied that the amendment is in accordance with the provisions of this Act and the rules made thereunder, shall register it. Such amendment shall have effect only after it is so registered.
(3) If the Registrar refuses to register the amendment under subsection (2) an appeal shall lie to the Karnataka Appellate Tribunal within sixty days from the date of communication of his refusal to register the amendment".
58. Therefore, we hold that the learned Single Judge is right in holding that the Board of Appointments constituted under the C and R Rules had no authority to make appointments on the post of Assistant Professor on the basis of the recommendations of the Promotion Review Committee, which is constituted under the C and R Rules.
59. So far as placing reliance on the resolution of the Governing Council is concerned, in our opinion, that is also hardly of any help for infusing validity to the impugned appointment made by promotion on the post of Assistant Professors. It is for the reason that sub-clause (23) of Clause 3 of the Memorandum of Association clearly declares that appointment to the post of the Institute shall be made in accordance with the "Rules and Regulations" governing the Institute. Therefore, while making appointments to the posts in the Institute, even the Governing Council could not have violated the Rules and Regulations for appointment to a given post. It is no doubt true that the Governing Council has the power of amending the Rules and Regulations as also Bye-law to provide for new mode of appointments or to re-designate posts or merge the cadres keeping in view the administrative exigencies and efficient management, but, that can be done only by making necessary amendments to the Rules and Regulations subject to seeking of approval of the State Government, as provided in Rule 10(3) of the Rules and Regulations and after registering such amendments with the Registrar of Societies as required under Section 9 of the Act. One has to always bear in mind that the Governing Council is the creator of Memorandum of Association and the Rules and Regulations and therefore it has necessarily to act within the limitations cast on its powers. The Governing Council cannot assume to itself unlimited powers so as to act even contrary to the mandates contained in the Memorandum of Association and the Rules and Regulations.
60. There is yet another infirmity in the impugned promotion to the post of Assistant Professor. Even under the unamended C and R Rules, recruitment on the post of Assistant Professors was made by Promotion by selection from the cadre of Lecturers. In the case of A.K. Subraman and Others v Union of India and Others, it has been held that when promotions are to be made by selection, it has to be based on assessment of relative merits from a field of choice consisting of the senior most persons in the lower cadre upto about 5 or 6 times the number of expected vacancies. But, curiously, in the present case, though under the unamended Rules, recruitments to the posts of Assistant Professors were to be made on the basis of promotion by selection, the Promotion Review Committee as well as the Board of Appointments took it to be a mode of promotion just by seniority. The original records placed before us clearly evidenced this fact. As a matter of fact, no efforts were made to invite all eligible Lecturers to participate in the selection process on the basis of their relative merits. As of fact, they had not even be called for interview. Therefore, on this ground as well, the entire process of promotion stood vitiated.
61. For the aforesaid reasons, we are of the considered view that the entire exercise of granting promotions under the Memorandum dated 8-5-1997 in respect of five Lecturers from the Department of Cardiology and three Lecturers from the Department of Cardiothoracic surgery was tainted with illegalities right from the inception and therefore the learned Single Judge was right in quashing the same as being void ab initio.
Re: Question No. (vii)
62. In some of the writ petitions, the petitioners have questioned the validity of amendments made to the C and R Rules under the Governing Council's resolution dated 21-3-1994 on the ground that under the amended rules, the right of the Lecturers to avail recruitment from the cadre of Lecturers to that of Assistant Professors by way of promotion by selection has been taken away, which is unreasonable and accordingly the same should be struck down. Under the unamended C and R Rules, the recruitment to the post of Assistant Professors were to be made by promotion by selection from the cadre of Lecturers in their respective departments, namely, Cardiology and Cardiothoracic Surgery. But, now under the amended rules, recruitment to the post of Assistant Professors are to be made by direct recruitment. Therefore, by amendment to the Rules, the area of selection for recruitment to the post of Assistant Professors has been widened in order to have the most merited persons to be selected on the posts. Further, under the unamended rules, the area of selection was confined only to the cadre of Lecturers in the Institute. Now, it can be availed even by the members of other cadres provided they have minimum qualification and experience as prescribed under the amended rules. In our considered opinion, since the Institute is meant for providing education and training in super-specialities concerning heart diseases, it is more apt and appropriate that the best of talents should be invited to occupy the teaching post like that of Assistant Professors in the faculties of the Institute. Viewed from this angle, no infirmity can be found in the impugned amended rules. Moreover, the decisions in the case of Raghunath Prasad Singh v Secretary, Home (Police) Department Government of Bihar, Dr. (Ms.) O.Z. Hussain v Union of India and Others and Council of Scientific and Industrial Research and Another v K.G.S. Bhatt and Another, can have no bearing in the present case for the reason that the petitioners herein, who had been serving as Lecturers in the Department of Cardiology and Cardiothoracic Surgery can still avail the opportunity of participating in the selection process for recruitment on the post of Assistant Professors provided they are found to be eligible for the same and have competitive merit for holding such post. They cannot make a grievance that their opportunities for recruitment to the higher post has been shut down. On the other hand, by providing the process of selection by direct recruitment the Institute has devised a mechanism for inspiring its faculty members to work with more involvement and devotion in order to achieve excellence in their service and to serve cardiac patients with commitment to higher performance. Keeping in view the aforesaid reasons, in our opinion, the challenge made to the amended Rules cannot be accepted as tenable and is accordingly rejected.
Re: Question No. (viii)
63. By placing reliance on the judgment of the Supreme Court in the case of Y.V. Rangaiah and Others v J. Sreenivasa Rao and Others, it has been submitted on behalf of some of the petitioners that the vacancies, which existed in the cadre of Assistant Professors prior to the date of enforcement of the amended rule, has to be filled up by adopting the mode of recruitment as provided under the unamended Rule. So far as this aspect is concerned, three Judges Bench of the Supreme Court, after considering the judgment in Y.V. Rangaiah's case, supra, in the case of P. Mahendran and Others v State of Karnataka and Others, has held that.--
"It is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject-matter".
(emphasis supplied)
64. From the law as laid down by the Supreme Court in the above judgments, the unamended rule can be applied in respect of only such candidates in respect of whom the process of selection had already been commenced in accordance with the pre-existing rules. In the present case, we have already held that no selection process for the post of Assistant Professors was initiated by the Competent Authority i.e. Selection Committee and therefore in the eye of law, it Cannot be said that any process of selection had already been initiated prior to commencement of the amended rules. In this view of the matter, recruitment to the post of Assistant Professors has to be done under and in accordance with the C and R Rules as amended by 1994 amendment.
65. For the aforesaid reasons and to sum up, it is held and directed that:
(i) The two cadres of the Institute namely those of 'Assistant Surgeons' and 'Lecturers' had never been merged or amalgamated into a single cadre and the two still exist as a separate and independent cadre.
(ii) The Official Memorandum dated 7th December, 1991, issued by the Director, permitting change of cadre and/or conversion of 14 Assistant Surgeons as Lecturers pursuant to the resolution of the Board of Appointments dated 30-11-1991 was ultra vires the powers of the said Board as also the Director and as such it was void ab initio and non est in the eye of law.
(iii) Since there was no merger of cadres of the Assistant Surgeons and the Lecturers and also for other infirmities as noticed by us in the foregoing paragraphs, the combined final seniority list published on 31-8-1999 is unsustainable in law and accordingly, it was rightly quashed by the learned Single Judge.
(iv) The promotions granted to five doctors from the Department of Cardiology and three doctors from the Department of Cardiothoracic Surgery to the post of Assistant Professor under Official Memorandum dated 8-5-1997 were void from inception and therefore the learned Single Judge had rightly quashed the same.
(v) The amendment to the C and R Rules made by the Governing Council under its resolution dated 21-3-1994 was well within its competence and do not suffer from any infirmity, arbitrariness or unreasonableness requiring any interference by this Court. The process of appointment to the post of Assistant Professors now has to be initiated only in accordance with the amended C and R Rules calling for applications from all the eligible candidates whether serving within the Institute or by the process of direct recruitment.
(vi) Anyhow keeping in view the peculiar facts and circumstances of the case, the Assistant Surgeons and Lecturers serving in the department of the Institute shall be permitted to participate in the recruitment process by granting:
(a) relaxation in age limit as an one time measure; and
(b) due credence will be given for the teaching experience acquired by the Assistant Surgeons while serving in the cadre of Lecturers pursuant to the Official Memorandum dated 7-12-1991 though the same has been held to be ultra vires by us.
(vii) The Institute will initiate the process of filling up of the posts of Assistant Professors on or before 30-4-2001 and it should be completed in accordance with law as early as possible, latest by 15-5-2001.
66. In the result, the writ appeals are disposed of in terms of our findings and directions as set out above. Anyhow no order as to costs.