Karnataka High Court
Dr.S.Srinivasulu Naidu vs The State Of Karnataka on 16 March, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.A. No.1401 OF 2021 (S-RES)
IN
W.P. No.9520 OF 2020 (S-RES)
BETWEEN:
DR. S. SRINIVASULU NAIDU
S/O L. VENKATANARAYANA NAIDU
AGED ABOUT 47 YEARS
PRESENTLY WORKING AS
PROFESSOR AND HOD
DEPARTMENT OF PHYSIOLOGY
O/O BOWRING AND LADY CURZON
MEDICAL COLLEGE, BENGALURU 560001
R/AT 37, 5TH B CROSS, SARAKKI MAIN ROAD
J P NAGAR 1ST PHASE, BENGALURU 560078.
... APPELLANT
(BY MR. V. LAKSHMINARAYANA, SR. COUNSEL FOR
MR. PRASHANTH P.N. ADV.,)
AND:
1. THE STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
DR. AMBEDKAR VEEDHI, BENGALRUU 560 001.
2. STATE OF KARNATAKA
MINISTRY OF MEDICAL EDUCATION
BY ITS PRINCIPAL SECRETARY
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VIDHANA SOUDHA, DR. AMBEDKAR VEEDHI
BENGALURU 560 001.
3. THE STATE OF KARNATAKA
REPRESENTED BY UNDER SECRETARY
MEDICAL EDUCATION
DEPARTMENT OF HEALTH AND
FAMILY WELFARE
M.S. BUILDING, BANGALORE 560001.
4. THE DIRECTORATE OF MEDICAL EDUCATION
ANAND RAO CIRCLE, NEAR RAILWAY STATION
BENGALURU 560 009.
5. THE BOWRING AND LADY CURZON
MEDICAL COLLEGE AND RESEARCH INSTITUTE
LADY CURZON ROAD
SHIVAJINAGAR, BENGALURU 560 001
REPRESENTED BY ITS DIRECTOR/DEAN.
6. BANGALORE MEDICAL COLLEGE
BY ITS DIRECTOR CUM DEAN
FORT K R ROAD, BANGLAORE 560002.
7. DR. MANOJ KUMAR
DEAN CUM DIRECTOR
MEDICAL COLLEGE AND RESEARCH
INSITUTE, LADY CURZON ROAD
SHIVAJINAGAR, BENGALURU 560 001.
... RESPONDENTS
(BY MR. DHYAN CHINNAPPA, ADDL. A.G. A/W
MRS. M.C. NAGASHREE, AGA ADV.)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO CALL FOR RECORDS IN W.P.
NO.9520/2020 (S-RES). ALLOW THIS APPEAL AND SET AIDE
THE ORDER DATED 17.11.2021 PASSED BY THE LEARNED
SINGLE JUDGE, IN W.P. NO.9520/2020 (S-RES) AND
SUBSEQUENTLY GRANT THE RELIEFS CLAIMED BY THE
APPELLANTS IN W.P. NO.9520/2020 ( S-RES). GRANT SUCH
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OTHER ORDER RELIEFS AS THIS HON'BLE COURT DEEMS FIT
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND
EQUITY INCLUDING COSTS OF THE PROCEEDINGS.
THIS W.A. COMING ON FOR ORDERS, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra court appeal arises from an order dated 17.09.2021 passed by the learned single Judge by which, the writ petition preferred by the appellant has been disposed of with a direction to the State Government to fill up the post of Dean cum Director of Bowring and Lady Curzon Medical College and Research Institute (hereinafter referred to as 'the Institute' for short). In order to appreciate the appellant's grievance, few facts need mention which are stated infra.
2. The appellant was appointed as an Assistant Professor on 23.08.2008 at Bangalore Medical College and Research Institute (hereinafter referred to as 'the BMCRI' for short). He was subsequently promoted as an Associate Professor on 17.12.2011 and thereafter as Professor on 05.02.2015. The State Government by an order dated 4 16.12.2016 resolved to set up the Institute in the premises of Bowring and Lady Curzon Hospital. Even prior to the establishment of the Institute, one Dr.KS Manjunath was appointed as Special Officer vide order dated 16.05.2016, to supervise the establishment of the medical college.
3. The State Government by notification dated 20.05.2017, notified Institute Rules and Regulations, 2017 from 28.04.2017. However, prior to coming into force of the aforesaid Rules, Dr.KS Manjunath by a notification dated 04.04.2017 was appointed as Dean-cum-Director of the Institute. He attained the age of superannuation on 30.11.2017. The State Government issued another notification dated 30.11.2017 by which one Dr.K.Ravi, Professor and Head of the Department was placed in-charge as Dean-cum-Director of the Institute. However, by another notification issued on the same date, the notification appointing Dr.K.Ravi was modified and Dr.KS Manjunath was appointed as Dean-cum-Director for a period of one year on contract basis. Thereafter, by a notification dated 16.11.2018, Dr.KS Manjunath was appointed on contract 5 basis on the post of Associate Professor in Othopeadic Department of the Institute for a period of 3 years or until further orders. He was also appointed as the Dean-cum- Director of the Institute for a period of 3 years or until further orders.
4. A Resolution was passed in the first meeting of the governing Council which was held on 12.02.2019 by which the Rules and Regulations and creation of several posts for the functioning of newly formed Institute were approved vzi., Cadre and Recruitment Rules (hereinafter referred to as 'the Rules' for short). After approval of the Rules on 10.07.2020, Dr.K.S.Manjunath proceeded on a leave of six weeks. Therefore, by a notification dated 03.08.2020 one Dr.Manoj Kumar (hereinafter referred to as 'the Respondent No.7' for short) who was a Professor in BMCRI was given additional charge as Dean-cum-Director of the Institute.
5. The aforesaid notification was challenged by the appellant in a writ petition before the learned Single Judge. The learned Single Judge by an order dated 17.11.2021, issued a direction to the State Government to notify the 6 post of Dean cum Director and to invite applications from eligible candidates and thereafter, appoint the first Dean cum Director. In addition, the State Government has also directed to consider the candidature of the appellant for appointment to the post in question in accordance with law on or before 02.02.2022 or within two months from the date of receipt of copy of the order. In the aforesaid factual background, this appeal has been filed.
6. Before proceeding further, it is apposite to take note of the scope of an intra court appeal. In NETAI BAG VS STATE OF WEST BENGAL (2000) 8 SCC 262, while dealing with the issue of new plea in an intra court appeal it has been held that the scope of an appeal cannot be greater than the original writ petition. The Supreme Court in SANJAY KUMAR VS NARINDER VERMA (2006) 7 SCC 467 has held that no interference can be made in an intra court appeal on the basis of an argument not raised before the learned Single Judge.
7. In the backdrop of aforesaid principles pertaining to scope of an intra court appeal, we may refer 7 to the grounds raised before the learned Single Judge as well as the submissions made before him:
GROUNDS
32. The petitioner humbly submits that the State Government has no power to post the respondent No.6 as Dean cum Director without passing of a separate order by the Governing Council nor transferring the services of respondent No. i.e., Dr.Manoj Kumar to the Bowring and Lady Curzon Medical College and Research Institute, without an initial order of transfer, the respondent cannot be posted. Therefore, the executive power could not have been invoked by the State Government ignoring the mandatory provisions of C & R Rules and Regulations of 2017. Therefore, the order is one without jurisdiction. The C & R rules prescribes procedure how the Dean cum Director post and subsequent the Dean cum Director post and subsequent the Dean cum Director post and subsequent the Dean cum Director posts are to be filled up. The said post has to be filled up only, from, the senior most Professors who are working as Professors with seniority cum merit of the same autonomous institute.
Mr.Manoj Kumar, respondent No.6 is not an employee of the Bowring and Lady Curzon Medical College and Research Institute, Bangalore. Therefore, the order is without jurisdiction.
33. The regulation 10 of Rules of 2017, read with the Government Order dated 31.12.2019 transfer guidelines if it is read along with condition No.4 and 5 of the petitioners 8 order posting order dated 8.3.2019 from the Bangalore Medical College to the Bowring and Lady Curzon Medical College and Research Institute, any order passed by the Government transferring an teaching or non teaching staff can only be placed below the petitioner with effect from 08.03.2019. Therefore, Dr.Manoj Kmumar, respondent No.6 may be a senior person in the Bangalore Medical College but the said respondent is an outsider to the Bowring and Lady Curzon Medical College and Research Institute, in terms of the C & R Rule and respondent No.6 is ineligible and therefore, the order dated 03.08.2020 is ultra vires the powers conferred under the C & R rules and also the Regulations of 2017, therefore, the impugned order is barred by law.
34. The petitioner humbly submit that by virtue of Clause No.4 and 5 of the transfer order dated 08.03.2019, transferring the services from Bangalore Medical College and to Bowring and Lady Curzon Medical College and Research Institute, as per the Government order dated 08.03.2019, the petitioner is a senior mot person and petitioner is an employee of the autonomous institute must be allowed to work as a senior most person in the respondent Institution, if not the eligible persons should be considered by the Governing Council. In the absence of such proceedings, the impugned order dated 03.08.2020 is a one without jurisdiction and same cannot be sustainable.
35. The petitioner humbly submits that, when once source of recruitment of promotion to the posts of a 9 subsequent Dean cum Director is prescribed by C & R Ryes, that the postings shall be:
(v) Among the teachers of the autonomous body.
(vi) Seniority cum merit.
(vii) Consideration by the Governing Council among 5 persons who are the employees of the autonomous body.
(viii) Once C & R Rules are framed, the State Government's executive powers is totally deluded and posting the respondent as Dean cum Director of Bowring and Lady Curzon Medical College and Research Institute is ultra vires and invoking the powers conferred is without jurisdiction. Once the powers under Rule 10 is not exercised by the Government and respondent No.6, Dr.Manoj Kumar has not been transferred, the question of posting him as Dean cum Director is unsustainable and is barred by restrictions and the same cannot be sustainable.
Therefore, the order is one without jurisdiction. As held by the Hon'ble Apex Court in the case Uma Devi's case reported in 2006 (4) SCC 1, the Apex Court clearly held that, the State Government once frames the rules, the action is to be within the framework of the C & R Rules. The Government cannot exercise the executive power and filling up the posts should be clearly in consonance within C & R Rules. And the action now taken is ultra vires of the powers conferred in the C & R Rules. Rule 313 (B) is not applicable, once C & R Rules are framed. The Government cannot exercise the executive powers under 313(B) of the KCS Rules.
(ix) Once the Rule making power prescribes the procedure to fill up the post of a Dean cum Director, only on 10 promotion based on the promotion and seniority cum merit and the consideration should be within the existing employees of the autonomous body. The State Government by means of an executive power cannot introduce a new source of recruitment, the contractual and appointments, deputations or outsource appointment or deputation or transfer is totally impermissible, since rules regulates for filling up the post of Dean cum Director. Therefore, the order of 3.8.2020 is one which is ultra vires the powers conferred under the C & R Rules, and power conferred under Rule 9 of the Regulations of 2017. Therefore, the impugned order is illegal and without jurisdiction and nullity.
36. The petitioner humbly submits that as held by the Hon'ble Apex Court in the case reported in 2005 (9) SCC 791, para - 33, when an order is without jurisdiction, the exercise of power is "Nothing". Therefore, the petitioner humbly submits that the order is nullity, and unenforceable and the petitioner being the senior most person, as per the terms and conditions of the transfer dated 08.03.2019 read with C & R Rules, the petitioner is eligible for the post of Dean cum Director. The respondent has not been either transferred nor absorbed in the services of Bowring and Lady Curzon Medical College and Research Institute, Bangalore. Therefore, the respondent is an outsider and cannot be posted as Dean cum Director in the Bowring and Lady Curzon Medical College and Research Institute Bangalore.
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37. The petitioner humbly submits that the petitioners have got a prima facie case, when C & R Rules prescribe filling up the posts that of subsequent specifications for the post of Dean cum Director is through seniority cum merit, a new source of recruitment cannot be introduced by the State Government, Rule 313(B) of the KCSR has no application. The action of the State Government is contrary to the decision of the Hon'ble Apex Court decision in Uma Devi's case reported in 2006 (4) SCC 1 and the order is without jurisdiction. Therefore, the petitioner may be permitted to work as subsequent Dean cum Director of the Borrowing and Lady Curzon Medical College and Research Institute, in terms of order dated 16.11.2018 and the impugned order of 03.08.2020 may kindly be stayed in the interest of justice and equity.
38. Since the appointments through outside source / contract is impermissible on the face of C & R Rule, earlier Dean cum Director Mr.Manjunath and respondent No.6, Mr.Manoj Kumar may kindly be restrained from working as of Dean cum Director of borrowing and Lady Curzon Medical College and Research Institute, Bangalore. Threfore, the impugned order of 3.8.2020 may kindly be stayed since Manjunath has already extended his leave and Dr.Manjunath has not challenged the impugned order dated 3.8.2020. Therefore, in the interest of justice and equity to meet the ends of justice, this Hon'ble Court may kindly be pleased to stay the impugned order of 3.8.2020 and issue an appropriate direction and orders as deemed 12 fit by this Hon'ble Court in the circumstances of the case to meet the ends of justice.
SUBMISSIONS BEFORE LEARNED SINGLE JUDGE
7. The learned Senior counsel Sri.V.Lakshminarayna appearing for the petitioner would submit that placing of Dr.Manoj on additional charge as Dean-cum-Director is contrary to law. Dr.KS Manjunath who was appointed as Dean-cum-Director is contrary to law. Therefore, he would become the first Dean-cum-Director of the Institute. In terms of the Rules, the next Dean-cum-Director will have to be appointed by the Governing Council from amongst the top five senior most Professors working in the Institute.
9. In reply, the learned Senior counsel for the petitioner would contend that Dr.Manoj Kumar is continued beyond months and what is permissible under the Rules and Regulations and the term of the first Dean cum Director being over, the subsequent Dean cum Director should be appointed amongst Professors of the Institute. Insofar as experience concerned, it is his contention that the petitioner does have a qualification with minimum experience of ten years. The learned Senior counsel would seek to lay emphasis on the word 'with minimum' in the words with minimum experience.
8. Learned Senior counsel for the appellant submits that power of appointment to the post of first 13 Dean-cum-Director was exercised by the State Government under Bye Law 10(5) of the Bye laws and in terms of MCI Regulations (hereinafter referred to as 'the Regulations' for short). It is further submitted that appointment of Dr.Manjunath to the post of dean-cum-Director on 16.11.2018 was ratified by the governing council on 12.02.2019 and the aforesaid approval has not been rescinded till today. It is also argued that no executive power vests in the State Government when the tenure of appointment of first Dean cum director is regulated by the bye laws and Regulations and extension beyond a period of four years is prohibited by the Regulations. It is also submitted that Regulations and Rules have to be harmoniously interpreted. It is also urged that the order of appointment of respondent No.7 is without jurisdiction and ultra vires the powers of the regulation and the bye laws. It is also urged that the finding that Rules have not been invoked by making an appointment of respondent No.7 on the post of question amounts to ignoring the appointment as first Dean-cum-Director.
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9. It is also urged that initial appointment of Dr.Manjunath has to be treated under the bye laws and the Regulations to be valid but subject to an exception provided under the Rules. It is also urged that de facto doctrine has to be invoked to protect the interest of the third parties as well as public interest. It is also urged that the finding recorded by the learned Single Judge that the appointment of Dr.Manjunath to the post of dean-cum-Director being contractual in nature and therefore, cannot be treated to be an appointment as first Dean-cum-Director requires consideration. It is also urged that the post of first Dean- cum-Director is created under the Bye laws and Regulations and even in the absence of bye-laws and Regulations, the executive power to appoint includes power to make contractual appointment. It is also urged that exercise of power of appointment in the facts and circumstances of the case amounts to playing fraud on the power and is contrary to Rules. It is also urged that tenure of appointment has to be reckoned from 04.04.2017 and subsequent Dean-cum- Director has to be appointed on the basis of seniority cum 15 merit subject to eligibility and qualification prescribed by the Rules only among the professors of the institute.
10. It is also submitted that even in in-charge arrangement has to be confined only to the persons who are the members of the staff. It is also submitted that there is no provision for transfer or deputation. Therefore, the respondent No.7 cannot be given the additional charge. It is also contended that Rule of implied repeal is not attracted because the application of rule of implied repeal may result in a vacuum which the law making authority may not have intended. It is argued that power under the Rules and Regulations or bye laws cannot be treated as reservoir of powers to make successive appointments either by changing the Rules or by changing the qualification prescribed for the post and to render the concept of first dean-cum-Director has full time. It is contended that once Statute, Rule, Regulation, Statutory Bye law occupies the field, it is not open to the State to exercise executive power as its power is impliedly repealed.
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11. It is also argued that when the legislature fixes the tenure of appointment of first dean-cum-Director by a Regulation, the time limit fixed by the legislature can neither be extended by a public functionary nor Court. It is also submitted that courts have to discover the intention of the legislature by interpretative function. It is contended that legislature is deemed not to have wasted its words or to say anything in vain and the interpretation given by learned Single Judge amounts to supplying cassus omissus. It is also urged that inconsistency between the regulation and the Rules is only with regard to tenor of appointment for the post in question. It is also argued that a direction be issued to fill up the post of subsequent dean-cum-director in accordance with Rules and Regulations and it be held that any in charge arrangements should be confined only to the employees of the institute and not others. In support of aforesaid submissions, reliance has been placed on following decisions (i) UNION OF INDIA VS. ARUN KUMAR ROY', (1986) 6 SCC 675.
(ii) STATE OF A.P. VS. LINDE (INDIA) LTD., (2020) 16 SCC 335. 17
(iii)COUNCIL OF ARCHITECTURE VS. MUKESH GOYAL ', (2020) 16 SCC 446
(iv) RBI VS. PEERLESS GENERAL FINANCE & INVESTMENT CO. LTD., (1987) 1 SCC 424.
(v) ABHIRAM SINGH VS. C.D.COMMACHEN', (2017) 2 SCC 629 (VI) FRANKLIN TEMPLETON TRUSTEE SERVICES (P) LTD. VS. AMRUTA GARG', (2021) 9 SCC 606
(vii) UTKAL CONTRACTORS & JOINERY (P) LTD. VS. STATE OF ORISSA', (1987) 3 SCC 279.
(viii) SULTANA BEGUM VS. PREM CHAND JAIN', (1997) 1 SCC 373.
(ix) RAGHBIR VS. STATE OF HARYANA', (1981) 4 SCC 210.
(x) BALRAM KUMAWAT VS. UNION OF INDIA', (2003) 7 SCC 628.
(xi) INDIAN PERFORMING RIGHTS SOCIETY LTD. VS. SANJAY DALIA', (2015) 10 SCC 161.
(xii) UNION OF INDIA VS. BRAJ NANDAN SINGH', (2005) 8 SCC 325.
(xiii) STATE OF M.P. VS. KEDIA LEATHER & LIQUOR LTD', (2003) 7 SCC
389.
(xiv) COMMR. OF CUSTOMS VS. DILIP KUMAR & CO., (2018) 9 SCC 1.
(xv) STATE OF T.N. VS K.SHOBANA', (2021) 4 SCC 686.
(xvi) BHARAT PETROLEUM CORPN. LTD. VS.
R.CHANDRAMOULEESWARAN', (2020) 11 SCC 718. (xvii) PETROLEUM AND NATURAL GAS REGULATORY BOARD VS. INDRAPRASTHA GAS LTD., (2015) 9 SCC 209.
(xviii) STATE OF PUNJAB VS. ANITA', (2015) 2 SCC 170. (xix) ABC VS. STATE (NCT OF DELHI), (2015) 10 SCC 1. 18 (xx) K.LASHMINARAYANAN VS. UNION OF INDIA', (2020) 14 SCC 664. (xxi) KARNATAKA STATE POLLUTION CONTROL BOARD VS. B.HEERA NAIK', (2020) 16 SCC 298.
(xxii) NEVADA PROPERTIES (P) Ltd. VS. STATE OF MAHARASHTRA', (2019) 20 SCC 119.
(xxiii) QUDRAT ULLAH VS. MUNICIPAL BOARD, (1974) 1 SCC 202. (xxiv) MOHD. AZEEM VS. DISTT. JUDGE', (1985) 2 SCC 550.
12. On the other hand, learned Additional Advocate General submitted that the earlier appointments which were made prior to coming into force of Rules and Regulations were contractual appointments. Attention of this court has also been invited to Bye Law 19(5) of the Bye laws to contend that till Cadre and Recruitment Rules are framed MCI guidelines of prevailing norms of State Government has to be followed for filling up the post. It is also urged that Regulation 16 is an enabling provision and the appointment of first dean cum director can only be made under the Cadre and Recruitment Rules. It is also submitted that if Regulation 16(1) is read, it is evident that a candidate has to be service on the date of appointment. It is also urged that if the power to appoint first dean cum 19 director is appointed de hors the cadre and recruitment rules, Regulations 16(4) would be rendered otiose.
13. By way of rejoinder submission, learned Senior counsel for the appellant submitted that an in-charge incumbent cannot continue under the Regulations beyond six months and Regulation 16(4) does not apply to ad hoc appointments. It is also urged that Regulations have force of law. In support of aforesaid submission, reliance has been placed on decision of Supreme Court in SUKHDEV SINGH AND OTHERS VS BHAGATRAM SARDAR SINGH RAGHUVANSHI AND ANOTHER (1975) 1 SCC 421. It is also submitted that under Regulation 3.10 of the Teachers Eligibility Qualifications in Medical Institutions Regulations 2022, the appointments to the administrative posts in government institutions including the in-charge arrangements, amongst eligible candidates shall be on inter se vertical seniority based on the date of entry into the institution/government service.
14. We have considered the submissions made on both sides and have perused the record. The core issue in 20 this appeal is whether the appointment made by the State Government vide order dated 16.11.2018 is the appointment of first Dean-cum-Director of the Institute. The Rules and Regulations 2017 of the Institute came into force with effect from 28.04.2017. Relevant extract of Rule 2(c) and relevant extract of Rule 16 read as under:
"2(c) "Appointing Authority" means (1) Government of Karnataka in respect of the first Dean / Director.
(2) xxxx (3) Selection Committee in respect of the subsequent appointments to Dean/Director, Medical Superintendents, Group 'A', 'B', 'C' and 'D' post and other equivalent posts. The Chair-Person of the respective selection committee shall be the appointing authority."
"16(1) The Government of Karnataka shall appoint the First Dean cum Director, after getting satisfied as to his/her qualifications and eligibility for a maximum period of 4 years. And upon superannuation within the said period, the decision of service extension shall be taken by the Governing Council in concurrence with Government of Karnataka. The said service extension period may be continued with the last pay drawn and the 21 proposal to be submitted 3 months prior to his / her superannuation.
(2) Consequent on superannuation, resignation, removal, death or cessation of the term of Dean cum Director, appointment can be made temporarily for a period not exceeding six months to the said post by the Chair-Person/Vice Chair-Person of the Governing Council till regular appointment is made.
(3) xxxx (4) The appointment to the post of Dean cum Director shall be as per the qualification mentioned in the Cadre & Recruitment Rules of the institute and the existing MCI guidelines."
15. Under Regulation 16(1) of the Regulations, the first dean cum Director has to be appointed for a maximum period of 4 years and upon superannuation within the said period, the decision of service extension has to be taken by the Governing Council in concurrence with the Government of Karnataka. Thus, Regulation 16 (1) pre supposes that a person who is appointed as the First Dean cum Director has to be in service as on the date of his appointment. The Cadre and Recruitment Rules (hereinafter referred to as 'the Rules' for short) which came into force on 12.02.2019 which provide for the appointment of the first Dean cum 22 Director and the subsequent Dean cum Director. The order dated 16.11.2018 cannot be said to be an order passed under Regulation 16(1) of the Act as Dr.KS Manjunath was not in service on the date of aforesaid order and was appointed as Associate Professor on contract basis. Aforesaid Dr.KS Manjunath was again appointed as Associate Professor on contract basis on 16.11.2018 for a period of 3 years and was appointed as first Dean cum Director. The aforesaid orders of appointment which were contractual in nature are not passed in exercise of powers under the Regulations. Therefore, the issue involved in this appeal is answered in the negative by stating that the appointment made by the State Government vide order dated 16.11.2018 is not the appointment of the first Dean cum Director of the Institute.
16. Thus, appointment of the first Dean cum Director has to be made under the Rules. The learned Single Judge has taken note of the practice of ad hocism resorted to by the State Government in appointing the first Dean cum Director and has directed the State Government to exercise 23 the power of appointment in a manner in consonance with Article 14 of Constitution of India and has also permitted the appellant to submit an application. At this stage, it is relevant to extract Paragraph 21 of the impugned order:
21. The learned Senior counsel would also submit that the application has already been submitted by the petitioner on 04.11.2021.
Therefore, the Government shall also consider the candidature of the petitioner for the appointment to the post of Dean cum Director, in accordance with law.
17. Thus, it is evident that case of the appellant for consideration of appointment to the post of first Dean cum Director shall be considered along with other eligible candidates in a manner which is in consonance with Article 14 of the Constitution of India. The appellant can only claim a right of consideration for appointment to the post and the State Government has been directed to consider the case of the appellant in accordance with law.
18. So far as submissions made by learned Senior counsel for the appellant with regard to interpretation of Statutes as well as other submissions, are concerned suffice 24 it to say that scope of appeal cannot be greater than the original writ petition. In any case, for the reasons assigned by us supra, it is not necessary for us to deal with the aforesaid submissions.
19. The process of selection of first Dean cum Director has already been initiated. However, the same could not be concluded on account of an interim order granted in this appeal. Accordingly, it is directed that the State Government shall conclude the process the selection and issue an order of appointment to the post of first Dean cum Director on or before 18.04.2022. To the aforesaid extent, the order passed by the learned Single Judge is modified.
In the result, the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE SS