Central Administrative Tribunal - Bangalore
Nimhans Employees Association ... vs Health And Family Welfare on 2 December, 2024
1 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00239/2022 &
170/00364/2023
ORDER RESERVED : 22.10.2024
DATE OF ORDER : 02.12.2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE DR.SANJIV KUMAR ...MEMBER(A)
OA NO.239/2022
1. NIMHANS Employees Association,
Affiliated to all India Health,
Employees and Workers Confederation,
Representation by its President,
Shri A.G.Nagaraja,
Aged about 53 years,
Working as Senior Nursing Officer,
NIMHANS, Hosur Road,
Bengaluru-560029.
2. Shri Harish B.R.,
S/o E.R.Ranganath,
Aged about 40 years,
Working as Senior Secretarial Assistant (SSA),
NIMHANS, Hosur Road,
Bengaluru-560029.
sanyasi sanyasi saraladevi
CAT, BANGALORE
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2 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
3. Deleted
4. Ms. Vishalakshi C.P.,
D/o Puttaswamy C.P.,
Aged about 38 years,
Working as Senior Secretarial Assistant (SSA),
NIMHANS, Hosur Road,
Bengaluru-560029.
5. Shri Ramesh K.,
S/o Krishnappa,
Aged about 40 years,
Working as Senior Secretarial Assistant (SSA),
NIMHANS, Hosur Road,
Bengaluru-560029.
6. Shri Rajendra Singh N.,
S/o Narayan Singh,
Aged about 40 years,
Working as Senior Secretarial Assistant (SSA),
NIMHANS Hosur Road,
Bengaluru-560029.
7. Mrs. Shiji K.,
W/o Abhed K.,
Aged about 38 years,
Working as Senior Secretarial Assistant (SSA),
NIMHANS, Hosur Road,
Bengaluru-560029.
sanyasi sanyasi saraladevi
CAT, BANGALORE
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8. Deleted. ...Applicants in OA No.239/2022
(By Advocate, Shri Vishwanath Bhat )
Vs.
1. The Union of India,
Represented by the Secretary,
Ministry of Health and Family Welfare,
Nirman Bhavan,
New Delhi-110011.
2. The National Institute of Mental Health
And Neuro Sciences (NIMHANS),
Represented by its Director,
Hosur Road,
Bengaluru-560029.
3. The Registrar,
National Institute of Mental Health
And Neuro Sciences (NIMHANS),
Hosur Road,
Bengaluru-560029. ...Respondents in OA No.239/2022
(By Advocate, Shri Vishnu Bhat for Respondent No.1 and Shri
K.Prabhakar Rao for Respondents No.2 and 3)
sanyasi sanyasi saraladevi
CAT, BANGALORE
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OA NO.364/2023
1. Shri Harish B.R.,
S/o E.R.Ranganath,
Aged about 41 years,
Working as Senior Secretarial Assistant (SSA),
Purchase Section,
NIMHANS, Hosur Road,
Bengaluru-560029.
Residing at No.57, 3rd 'A' Cross,
5th Block, 2nd Stage, BDA Layout,
Behind BWSSB Water Tank,
Nagarbhavi, Bangalore-560072.
2. Ms. Vishalakshi C.P.,
D/o Puttaswamy C.P.,
Aged about 39 years,
Working as Senior Secretarial Assistant (SSA),
College of Nursing,
NIMHANS, Hosur Road,
Bengaluru-560029.
Residing at No.34, 1st Floor,
Type 2, Block 6, NIMHANS Quarters,
Byrasandra Campus, Bangalore-560011.
3. Shri Rajendra Singh N.,
S/o Narayan Singh,
Aged about 40 years,
Working as Senior Secretarial Assistant (SSA),
Claims Section,
NIMHANS Hosur Road,
Bengaluru-560029.
sanyasi sanyasi saraladevi
CAT, BANGALORE
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Permanently Residing at No.131,
Shillengere Village and Post,,
Kolar Taluk, Kolar.
4. Shri Ramesh K.,
S/o Krishnappa V.,
Aged about 41 years,
Working as Senior Secretarial Assistant (SSA),
Personnel Section,
NIMHANS, Hosur Road,
Bengaluru-560029.
Residing at No.219,
Kumbar Street,
K.R.Puram,
Bangalore -560036.
5. Mrs. Shiji K.,
W/o Abhed K.,
Aged about 39 years,
Working as Senior Secretarial Assistant (SSA),
Academic Section,
NIMHANS, Hosur Road,
Bengaluru-560029.
Residing at No.306,
Sharavathi Apartments,
4th Cross, ANR Road, NGR Layout,
Roopena Agrahara,
Bommanahalli,
Bangalore-560068. ....Applicants in OA 364/2023
(By Advocate, Shri Prithiveesh M.K.)
sanyasi sanyasi saraladevi
CAT, BANGALORE
saraladevi2024.12.04
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6 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
Vs.
1. The Union of India,
Represented by the Secretary,
Ministry of Health and Family Welfare,
Nirman Bhavan,
New Delhi-110011.
2. The National Institute of Mental Health
And Neuro Sciences (NIMHANS),
Represented by its Director,
Hosur Road,
Bengaluru-560029.
3. The Registrar,
National Institute of Mental Health
And Neuro Sciences (NIMHANS),
Hosur Road,
Bengaluru-560029.
4. Shri Manjunath K.,
S/o late Krishnappa,
Aged Major,
Working as Manager,
Purchase Section,
NIMHANS, Hosur Road,
Bangalore-560029.
5. Smt.Nalapotula Kalpana,
W/o Gopinath B.,
Aged Major,
Working as Manager,
Department of Transfusion & Hematology,
sanyasi sanyasi saraladevi
CAT, BANGALORE
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NIMHANS,
Hosur Road,
Bangalore-560029.
6. Shri Chandrashekar R.,
S/o Late Raghavendra,
Aged Major,
Working as Manager,
Legal Cell,
NIMHANS, Hosur Road,
Bangalaore -560029.
7. Smt.Prestena Prince Tholath,
W/o Arun Roy,
Aged Major,
Working as Manager,
Accounts Section,
NIMHANS, Hosur Road,
Bangalore-560029.
8. Smt.Kalavathi R.,
W/o Naveen Hatna B.,
Aged Major,
Working as Manager,
Academic Section,
NIMHANS, Hosur Road,
Bangalore -560029.
9. Shri Praveen S.,
S/o Shankar B.K.,
Aged Major,
Working as Manager,
sanyasi sanyasi saraladevi
CAT, BANGALORE
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Purchase Section,
NIMHANS,
Hosur Road,
Bangalore-560029.
10.Shri Naveena Kumar M.I.,
S/o Ishwara Naik,
Aged Major,
Working as Manager,
Engineering Section,
NIMHANS,
Hosur Road,
Bangalore -560029.
11.Ms.Tasneem Khanum,
S/o Saleem Khan,
Aged Major,
Working as Manager,
Accounts Section,
NIMHANS,
Hosur Road,
Bangalore-560029. ...Respondents in OA No.364/2023
(By Advocates, Shri Vishnu Bhat for Respondent No.1, Shri
K.Prabhakar Rao for Respondents No.2 and 3 and Shri M.Narayana
Bhat for Respondents No.4 to 11)
sanyasi sanyasi saraladevi
CAT, BANGALORE
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9 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
ORDER
Per: Justice S.Sujatha ...........Member(J)
Since common and akin issues are involved, both the matters are clubbed, heard together and disposed of by this common order.
2. OA No.239/2022 has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) Issue a writ of certiorari or any appropriate order or direction to quash the impugned circular bearing No.NIMH/PER(5)/LDCE-2022/2022-23 dated 13.05.2022 vide Annexure A10 in so far as the same pertains to the method of recruitment/appointment to the cadre of Manager.
(ii) To direct the respondent 1 to 3 to make Recruitment/appointment in respect of the existing 16 vacancies in the cadre of Manager at NIMHANS, strictly in accordance with the eligibility criteria prescribed in the cadre and Recruitment Rules vide Annexure-A9 and thereby grant promotions to the applicants No.2, 4 to 7 in the cadre of Manager and to grant all consequential benefits.
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(iii) To issue any other appropriate order or direction as this Hon'ble Tribunal deems fit and proper to grant in the facts and circumstances of the case including the cost of this petition, in the interest of justice and equity."
3. OA No.364/2023 has been filed by the applicants seeking the following reliefs:
"(i) Call for records from the Respondents No.1 to 3.
(ii) Issue a Writ or Order quashing the impugned
memorandums all of which are bearing
No.NIMH/PER(5)/MGR-PROM/2023-24, dated 18.05.2023 and passed by the 3rd Respondent (Annexure A6 series), the interest of justice and equity and CONSEQUENTLY DIRECT the Respondent Nos.1 to 3 to consider the case of the Applicants for promotion to the cadre of Manager, strictly in accordance with law and as per the Cadre and Recruitment Rules, 2010, to meet the ends of justice;
(iii) Grant such other relief or reliefs as this Hon'ble Tribunal deems fit including the costs of this proceedings, in the interest of justice and equity."
4. The first applicant in OA No.239/2022 is a Registered Association and one of its main aim and object is to organize the sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 11 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH employees of NIMHANS, secure for them fair and adequate scales of pay and promotion, just and reasonable condition of work and security of tenure and life and promote their well being by all peaceful, legitimate and constitutional methods. The day-to-day activities of the Association is managed by the Executive Committee of the Association. The President of the Association is in over all in-charge of the Association. The said Association in its meeting held on 01.06.2022 resolved to authorize the said President to file OA 239/2022 on behalf of the Association. The applicants in OA No.364/2023 are the applicants in OA No.239/2022 along with the NIMHANS Employees Association represented by its President, Shri A.G.Nagaraja.
5. The facts narrated by the applicants in OA No.364/2023, are that they entered into service of NIMHANS as Lower Division Clerk (LDC), came to be re-designated as Junior Secretarial Assistant (JSA). The cadre of JSA is a feeder cadre to the next higher cadre Senior Secretarial Assistant (SSA). While the applicants working as JSA, they were promoted on adhoc basis as Upper Division Clerk (later re-designated as SSA). sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 12 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH Thereafter they were promoted to the cadre of SSA on regular basis by separate memorandum dated 24.12.2018 with effect 19.12.2018.. The Respondents No.4 to 11 in OA No.364/2023 were also regularly promoted as Senior Secretarial Assistant vide Memorandum dated 24.12.2018 with effect from 19.12.2018. Thus the applicants and Respondents No.4 to 11 were promoted to the cadre of SSA on the same day. The Recruitment Rules in respect of different cadres before commencement of NIMHANS Act, 2012 were formulated in the year 2010 and the same was approved by the Governing Body in the year 2011, which were further approved by the Ministry of Health and Family Welfare, Government of India vide letter dated 19.03.2012. As per the said Rule, appointment to the cadre of SSA shall be made by way of promotion from the cadre of JSA only on the basis of seniority. The post of Manager requires to be filled up from the cadre of SSA , previously called as UDC, by way of promotion only on the basis of seniority. The method of recruitment to the post of "Manager" which is a Group 'B' post is as provided under the C&R Rules, 2010. It transpires that on 22.09.2018 a letter was addressed by the 2nd Respondent to 1st sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 13 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH Respondent seeking its approval for modifications in the Cadre and Recruitment Rules for various posts in the Institute. The 1st Respondent vide communication dated 05.10.2018 appears to have conveyed the approval of the competent authority for such modification to the C&R Rules as sought for. It is for the first time the method of recruitment to the post of Manager was sought to be changed by providing that 50% of the recruitment was to be based on Limited Departmental Competitive Examination (LDCE) and 50% by way of promotion to the cadre of Upper Division Clerk vis- à-vis earlier provision of 100% recruitment by way of promotion only. Further, it also provided that persons with only three years of experience in the cadre of Upper Division Clerk were eligible to take up LDCE for promotion, vis-à-vis the earlier requirement of minimum five years of service in the cadre of Upper Division Clerk. Thereafter the 3rd Respondent issued a Circular on 13.05.2022 notifying the LDCE to be conducted for promotions to various posts in the 2nd Respondent Institute including 16 posts of Manager. In the said Circular, the names of Respondents No.4 to 11 in OA No.364/2023, who were working in the cadre of SSA sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 14 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH (Upper Division Clerk), were notified as eligible employees to take up the LDCE for promotion to the post of Manager. The Respondent Nos.4 & 6 in OA No.364/2023 along with other applicants including NIMHANS Employees Association have challenged the Circular dated 13.05.2022 in OA No.239/2022. During the pendency of the said OA No.239/2022, the 3rd Respondent has issued the impugned Memorandums dated 18.05.2023 by which 3rd Respondent has accorded promotions to the Respondent Nos.4 to 11 to the cadre of Manager with retrospective effect from 01.01.2023, solely on the basis of the LDCE conducted pursuant to the Circular dated 13.05.2022. In the final seniority list published in the year 2022, specifically on 16.12.2022 for Administrative Officers/Ministerial Staff, the names of the applicants find place at SL.Nos.5 6, 7, 9 and 12 in the list of Upper Division Clerk/Senior Secretarial Assistant, whereas the names of Respondents No.4 to 11 finds place at Sl.Nos. 4, 8, 16, 20, 30, 34, 43 and 48. Being aggrieved by the impugned Memorandums dated 18.05.2023 whereby the Respondent Nos.4 to 11 have been promoted to the post of Manager in 2nd Respondent sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 15 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH Institute on the basis of LDCE examination, the applicants have preferred OA No.364/2023.
6. Learned Counsel Shri Vishwanath Bhat representing the applicants in OA No.239/2022 and learned Counsel Shri Prithveesh representing the applicants in OA No.364/2023, submitted that the supposed amendment to the Cadre and Recruitment Rules by virtue of communication dated 05.10.2018 issued by the Respondent No.1 is without authority of law. The said communication dated 05.10.2018 which confirms the entire basis of promotion through LDCE cannot be construed as valid and legal amendment to the Cadre and Recruitment Rules. The action of the 3rd Respondent in promoting Respondent No.4 to 11 in OA No.364/2023 to the cadre of Manager on the basis of the LDCE without amending the Cadre and Recruitment Rules, 2010, is illegal and further with retrospective effect from 01.01.2023 is wholly impermissible. The applicants being senior to most of the private respondents, ought to have been promoted to the cadre of Manager in accordance with seniority and merit much before the private respondents in terms of the seniority list dated 16.12.2022. The Respondents No.4 sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 16 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH and 6 having challenged the recruitment process in OA No.239/2022, cannot take benefit of an illegal order. Provisions of Sections 30, 31 of the Act, 2012, Rule 8(4) of the NIMHANS, Bangalore Rules 2013 and Regulation 34(1) of the NIMHANS, Bangalore Regulations, 2013, are referred to contend that the amendment of C&R Rules are not in conformity with the Act for want of publication in the official Gazette. Reliance is placed on the following judgments:
1) Captain Sube Singh and others vs. Lt.Governor of Delhi and others. - (2004) 6 SCC 440
2) Charles K. Skaria and others vs. Dr.C.Mathew and others - AIR 1980 SC 1230.
3) B.K.Srinivasan and Another v. State of Karnataka and others
- (1987) 1 SC 658
4) ITC Bhadrachalam PaperBoards & Another vs. Mandal Revenue Officer, A.P. and others - (1996) 6 SCC 634
5) Collector of Central Excise vs. New Tobacco Co. and others
- (1998) 8 SCC 250
6) Union of India and others vs. Ganesh Das Bhojraj - (2000) 9 SCC 461
7) Rajendra Agricultural University vs. Ashok Kumar Prasad and others - 2010 (1) SCC 730.
sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 17 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
8) The Karnataka Power Transmission Corporation Limited vs. Javarai Gowda & Another in W.P.No.8594/2012 (DD: 18.02.2015) before the Hon'ble High Court of Karnataka.
9) Union and India and others vs. G.S.Chatha Rice Mills and another - (2021) 2 SCC 209
10) Union of India and others vs. N.C.Murali and others - (2017) 13 SCC 575
11) Sunaina Sharma and others vs. State of Jammu Kashmir and others - (2018) 11 SCC 413.
12) Bihar State Electricity Board and others vs. Dharamdeo Das - Civil Appeal No.6977/2015 (DD: 23/07/2024)
13) Dr.Sharanya Mohan and others vs. Union of India and others. - Writ Petition No.7435/2021 and connected matters (DD: 22.04.2024) before the Hon'ble High Court of Karnataka.
7. Detailed reply statement has been filed on behalf of the respondents. Learned Counsel for the respondents argued that the NIMHANS Employees Association - applicant no.1 in OA No.239/2022 has no locus standi to make the present application. The 1st Respondent has modified the C&R Rules of Ministerial Posts bearing No.18013/05/2018-PH-1 dated 05.10.2018 prescribing the eligibility criteria for promotion to the post of sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 18 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH Manager. The contesting Respondents-2&3 have implemented the modified C&R Rules approved by the 1st Respondent, wherein five years of regular service as SSA has been prescribed for promotion as Manager and the employees who completed three years of service as SSA are eligible to take up LDCE and their promotion is based on the examination. The applicants-2 and 4 to 7 are promoted to the cadre of SSA with effect from 19.12.2018 but they have not completed five years of regular service as stipulated in Circular dated 13.05.2022 which was issued based on the amendment to the C & R Rules, vide letter dated 05.10.2018. The applicants have not challenged the amended Recruitment Rules dated 05.10.2018 prescribing five years regular service of SSA for promotion to the post of Manager. Prior approval of the Governing Body was taken by the contesting respondents on 05.10.2018 and the same was followed . Hence the Circular dated 13.05.2022 is in order. The applicants cannot question neither the framing of prescribed qualification, service, seniority on the ground their rights are affected for possessing required qualification. The Institute vide its Circular dated 13.05.2022 invited the eligible sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 19 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH candidates to participate in the LDCE examination to fill up various vacant posts of Ministerial cadre including 16 posts of Manager. The applicants and Respondents no.4 to 11, who had completed three years of regular service in SSA were eligible and all of them were allowed to participate in the LDCE examination. The Respondent Institute has declared the marks secured by the candidates participated in the LDCE examination for the post of Manager and also published in the official website of the Institute on 15.05.2023. The applicants and Respondents No.4 to 11 have participated in the LDCE examination and the posts are filled on merit basis. The candidates after participating in the examination and having failed to secure merit position, have preferred OA No.364/2023 Prior to modification of C&R Rules, the employees of the Institute and their appointment to the post were governed by C& R Rules approved by the Governing Body in the year, 2010. Subsequently, the C & R Rules were modified on the approval of the Ministry and the same was ratified in the Governing Body. Hence C& R Rules, 2010 relied on by the applicants no longer applies to the case on hand. The relevant seniority of the sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 20 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH applicants and Respondents No.4 to 11 in the post of SSA is same, as such the applicants cannot claim that they are senior to the Respondents No.4 to 11 in the post of SSA. The amended Cadre and Recruitment Rules of Group 'B' and 'C' posts do not require Gazette notification. Sections 30, 31 and 32 of the Act are not applicable to the case on hand. Placing reliance on Sl.No.63 of the Schedule-I of NIMHANS Regulations, 2013, learned Counsel submitted that the Governing Body of the NIMHANS is the competent authority to prescribe Cadre and Recruitment Rules to all categories of posts at NIMHANS with prior approval of the Governing Body. As per the power conferred upon it, the Governing Body has duly ratified the modification to the C&R Rules. The promotions given to Respondents 4 to 11 are in accordance with the applicable C&R Rules. Accordingly seeks for dismissal of the OAs. Learned Counsel has placed reliance on the following judgments:
1) D.Saroja Kumari Vs. R.Helen Thilakom and others - (2017) 9 Supreme Court Cases 478 sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00'
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2) Kulwinder Pal Singh and Another Vs. State of Punjab and others - (2016) 6 Supreme Court Cases 532
3) Chikkaraju C. vs. The Union of India and NIMHANS - W.P.No.40148 of 2016 (S-Res) - Kar HC Judgment dated 24.10.2016
4) Punjab State Power Corporation Limited and another vs. Bal Krishan Sharma and others - (2022) 1 SCC 322
5) Mysore State Road Transport Corporation vs. Gopinath Gundachar Char - AIR 1968 SC 464
6) V.Balasubramaniam & Others. vs. Tamil Nadu Housing Board & others - 1987 4 SCC 738
7) Chief Manager, Punjab National Bank & Anr. vs. Anil Kumar Das - Civil Appeal No.3602/2020 (Arising out of SLP (C) No.8343/2020 dated 03.11.2020).
8) Unnikrishnan C.V. and others vs. Union of India and others
- Civil Appeal No.7188/2013 dated 28.03.2023.
9) Chandrasekar S vs. Union of India & Ors - OA No.170/00919/2019 (DD:07.07.2023) CAT, Bangalore Bench.
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8. Learned Counsel Shri Narayana Bhat representing Respondents No.4 to 11 argued that the post of Manager is superior to the post of Senior Secretarial Assistant in the hierarchy of posts and feeder cadre for the post of Manager is Senior Secretarial Assistant. 50% of the post of Manager is filled by promotion based on seniority cum merit, the remaining 50% by conducting Limited Departmental Competitive Examination (LDCE). The qualification prescribed for promotion based on seniority is five years experience in the cadre of Senior Secretarial Assistant. For the merit based promotion, the experience prescribed is three years. Depending upon the number of vacancies, a rank list of the candidates appeared in the LDCE is drawn and based on the higher merit in the LDCE, higher ranks are assigned. Depending upon the vacancies, meritorious Senior Secretarial Assistants are selected and promoted to the post of Managers. Having regard to the merit of the Respondents No.4 to 11 in the LDCE, they were promoted by an order dated 18.05.2023 (Annexure A6 series). The applicants no.1 to 4 had neither completed five years of regular service as Senior Secretarial sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 23 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH Assistant as on the date of presentation of the application nor qualified in the LDCE. Certain modifications brought to the C&R Rules of NIMHANS with effect from 05.10.2018 were approved by the competent authority. Respondents No.4 to 11 appeared for the LDCE held on 11.05.2023 and 12.05.2023 seeking promotion to the post of Manager. Having regard to the score obtained by the Respondents No.4 to 11 and others in the said LDCE and on the basis of the recommendations of the Departmental Promotion Committee, promotions were made to the Respondents No.4 to 11 to the post of Manager by order dated 18.05.2023 with effect from 01.01.2023. Learned Counsel placing reliance on Section 31(2) of the Act, submitted that the first Regulations under the Act shall be made by the Central Government and any Regulations so made may be altered or rescinded by the Institute in exercise of its powers under sub-section(1). Learned Counsel has relied on the judgment of the Hon'ble Apex Court in Abraham Jacob and others vs. Union of India reported in (1998) 4 SCC 65. sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 24 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
9. We have carefully considered the rival submissions of the learned Counsel appearing for the parties and perused the material on record.
10. NIMHANS, an Institute registered under the Karnataka Societies Registration Act, 1960, comes under the control of Ministry of Health and Family Welfare, Union of India. The Institute is governed by the provisions of the NIMHANS, Bangalore Act, 2012, which has come into force with effect from 29.11.2013. The employees and their service conditions are governed by the Central Civil Services (Conduct) Rules, 1964 under Section 41 of the NIMHANS, Bangalore Regulations, 2013.
11. Section 30 of the Act deals with the power to make Rules and the same reads thus:
"30. Power to make rules.--(1) The Central Government may in consultation with the Institute by notification in the Official Gazette, make rules to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--
sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 25 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
a) the manner of nomination of members under clauses (j) and (k) of sub-section (1) of Section 5;
b) the manner of filling vacancies of members under sub-section (8) of Section 6;
c) the powers and functions to be exercised and discharged by the President of the Institute under sub-section (2) of Section 7;
d) the allowances to be paid to the President and other members of the Institute under Section 9;
e) the control and restrictions in relation to the constitution of standing and ad hoc committees under sub-section (5) of Section 11;
f) appointment of Director and other officers and employees and salaries and allowances and other conditions of service of the Director and other officers and employees of the Institute under Section 12;
g) the form in which, and the time at which, the budgets and reports shall be prepared by the Institute under Section 18;
h) the form of annual statement of accounts including balance-sheet under sub-section (1) of Section 19;
i) the form of annual report under Section 20; sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 26 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
j) any other matter which has to be or may be prescribed by rules."
12. NIMHANS Rules ('Rules' for short) have been enacted in exercise of the power conferred under Section 30 of the Act, which have come into force with effect from 29.11.2013. Rule 8(4) of the Rules reads thus:
"8. Creation of Posts and appointments made thereto -
(4)The method of recruitment, age-limit, educational qualifications and other matters relating to appointment to various posts, and the conditions of service in the Institute shall be as specified in the National Institute of Mental Health and Neuro Sciences, Bangalore Regulations, 2013."
13. Section 31 of the Act deals with the power to make regulations and the same reads thus:
"31. Power to make regulations.--(1) The Institute with the previous approval of the Central Government, may by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder to carry out the purposes of this Act, and without prejudice to sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 27 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH the generality of this power, such regulations may provide for--
a) the summoning and holding of meetings, other than the first meeting, of the Institute, the time and place where such meetings are to be held and the conduct of business at such meetings under Section 10;
b) the manner of constituting the Governing Body and standing and ad hoc committees, the term of office of, and the manner of filling vacancies therein, the allowances to be paid to the members and the procedure to be followed by the Governing Body;
standing and ad hoc committees in the conduct of their business, exercise of their power, discharge of their function under Section 11;
c) the powers and duties of the Director of the Institute under sub-section (4), the designations and grades of other officers and employees under sub-section (5) and other conditions of service under sub-section (6) of Section 12;
d) the power of the Institute under Section 14, to specify--
i. courses and curricula for undergraduate and postgraduate studies under clause (e); sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 28 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH ii. hold examination and grant degrees, diplomas, certificates and other academic distinctions and titles under clause (h); iii. the professorships, readerships, lecturerships and other posts which may be instituted and persons who may be appointed to such posts under clause (i); iv. the management of the properties of the Institute under clauses (k) and (m);
v. the fees and other charges which may be demanded and received by the Institute under clause (l);
(e) the manner in which, and the conditions subject to which, pension and provident funds may be constituted for the benefit of officers, teachers and other employees of the Institute under sub-section (1) of Section 21;
(f) any other matter for which under this Act provisions may be made by regulations.
(2) Notwithstanding anything contained in sub-section (1), the first regulations under this Act shall be made by the Central Government; and any regulations so made may be altered or rescinded by the Institute in exercise of its powers under sub-section (1)."
sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 29 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
14. NIMHANS, Bangalore Regulations, 2013 ('Regulation' for short) are framed in exercise of the powers conferred by Section 31 of the Act and the said Regulations have come into force on the date of their publication in the official Gazette i.e., 29.11.2013.
15. Regulation 34 (1) reads thus:
"Qualifications for appointment:-(1) the method of recruitment, age-limit, educational qualifications and experience for appointment to various posts including the faculty posts and their service conditions in the Institute shall be as specified in Schedule VI:
Provided that any amendment to the said schedule shall be made by publication of notification in the Official Gazette, only with the prior approval of the Governing Body."
16. Schedule-VI provides the method of recruitment, age educational qualification, promotional schemes etc., of various posts in the National Institute of Mental Health and Neuro Sciences, Bangalore. Clause-I of Schedule-VI relates to the Director, Clause-II - Faculty posts, Clause-III - Recruitment Rules and sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 30 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH Clause-IV - Promotion Scheme (Non-Faculty). The relevant Clauses are extracted hereunder:
"I. Director:- The appointment to the post of Director shall be on tenure basis for a period of five years from the date on which he enters upon his office or till he attains the age of sixty-five years whichever is earlier. The educational qualifications, age-limit, etc., of the post are as indicated in Annexure I of this Schedule.
II. Faculty Posts:- The appointments to the cadres of Assistant Professors and Professors shall be by direct recruitment. Direct appointments can also be made at the level of Associate Professors and Additional Professors.
The qualification, experience, etc., for the posts are as indicated in Annexure II of this Schedule. The Career Advancement of the faculty in the Institute shall be as per the Assessment Promotion Scheme, as detailed in Annexure III of this Schedule.
III. Recruitment Rules:- The method of recruitment, educational qualifications, experience and other details for the appointment of Group 'A' , Group 'B' and Group 'C' posts in the Institute are as prescribed in the Cadre and Recruitment Rules of the respective posts.
IV. ......................................."
sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 31 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH In terms of Clause-III, the method of recruitment , educational qualification, experience and other details for the appointment of Group 'A', Group 'B' and Group 'C' posts in the Institute are as prescribed in the Cadre and Recruitment Rules of the respective posts.
17. As per the C&R Rules, 2010, for the post of Manager Grade-I, the method of recruitment prescribed is by promotion on seniority subject to fitness from the cadre of Office Superintendent (O.S), who have put in five years in the respective cadre and have qualified in the departmental exam prescribed for O.S. The existing provision has been amended as under:
"MANAGER S.No Description Existing Provision New Provision
1. Name of the Manager Manager Post
2. Classification Group B Group B
3. Whether Non-selection post Non-Selection selection post or post/By non selection promotion post &Limited Departmental Competitive Examination.
4. Period of 2 years Nil probation
5. Experience 5 years as UDC For Promotion:
5 years of regular service as SSA For Dept. Exami-
nation:
sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 32 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH 3 years of regular services as SSA are eligible to take up LDCE and promotion based on merit in the examination.
6. Method of By promotion on i. 50% by recruitment, seniority to fitness promotion whether by from a cadre of ii. 50% by direct O.S. who have put Limited recruitment or in five years in the Department by promotion or respective cadre Competitive by and have qualified Examination deputation/absor in the departmental from amongst ption and exam prescribed SSAs with 3 percentage of for OS. years of regular the vacancies to service in the be filled by grade in the various Institute.
methods.
7. In case of UDC Senior Secretarial recruitment by Assistant (SSA)"
promotion/deput ation/absorption grades from which promotion/deput ation/absorption to be made.
The amendment of C&R Rules of ministerial post approved by the Ministry's letter dated 05.10.2018 has been ratified by the Governing Body in its 8th Governing Body meeting.
18. In V.Balasubramaniam supra, the Hon'ble Apex Court in the context of Madras Housing Board Service Regulations and the Board's power to relax qualification prescribed for promotion sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 33 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH subject to approval of the Government, held that the Board has power under Section 16 of the Act akin to the executive power conferred on the State Government under Article 162 to take decision in respect to appointment to State Public Services is concerned, with its own resolution until Regulations framed by it and approved by the State Government and published in official Gazette. The Hon'ble Apex Court in paragraphs-10 and 11 has observed thus:
"10. We now proceed to consider whether the Division Bench was right in allowing the appeals and in dismissing the writ petitions on a very short ground namely that relief by way of mandamus could not be granted on the basis of the regulations which had not been published in the official Gazette, without examining whether the petitioners in the writ petitions were entitled to relief otherwise or not.
11. The impugned promotions of 11 Junior Engineers were made on various dates between 25.6.1971 and 7.2.1972. It is true that the regulations which had received the approval of the State Government had not been published in the official Gazette by the relevant dates as required by Section 3(19-A) of the Tamil Nadu General Clauses Act, 1891 which defined the expression sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00'
34 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH 'notification' as a notification published in the official Gazette and by section 21 of the Tamil Nadu General Clauses Act, 1891 which provided that where in any Act or in any rule passed under any Act, it was directed that any order, notification or other matter should be notified or published such notification or publication should unless the said Act otherwise provided be deemed to be duly made if it was published in the official Gazette. In the present case the Act did not in fact provide for any other mode of publication or notification. The said regulations were actually published in the official Gazette only on May 14, 1975. The Division Bench of the High Court as stated earlier proceeded to dismiss the writ petitions on the sole ground that no writ in the nature of mandamus could be issued because the regulations had not been published in the form of a notification in the official Gazette on the dates on which the Writ Petitions were filed and, therefore, they were not enforceable. It is, however, not disputed that by the time the impugned promotions took place the regulations had been made by the Board and had also received the approval of the State Government although they had not been published in the official Gazette. There were no other regulations which had been duly made and published in the official Gazette. In the above situation could it be said there was a legal vaccum as regards the conditions of service of the officers and servants sanyasi of the Board? Section 16 of the Act saraladevi sanyasi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 35 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH confers the power on the Board to appoint a Secretary, a Housing Board Engineer and such other officers and servants as it considers necessary for the efficient performance of its functions. Section 17 of the Act no doubt provides that the remuneration and other conditions of service of the Secretary Housing Board Engineer and other officers and servants of the Board shall be such as may be prescribed by regulations. The making of the regulations in the ordinary course of events occupies considerable time since they have to receive the approval and confirmation of the Government in order to be effective. The Board came into existence on April 22, 1961 and it passed the resolution adopting the regulations on March 20, 1963. The regulations were submitted by the Board to the Government for its approval after the said resolution was adopted by the Board. Until the regulations were approved and confirmed by the State Government the Board had necessarily to take decisions in accordance with certain norms laid down by it as regards the modes of appointment of officers and staff of the Board. Those decisions cannot be invalidated merely on the ground that the regulations had not yet been promulgated in accordance with law. In Trustees of the Harbour of Dundee v. D. & J. Nicol, Viscount Haldane L.C.(1915 AC 550, 556 (HL), said that 'the answer to the question whether a corporation created by asaraladevi sanyasi statute has a particular power depends sanyasi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 36 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used. The question is simply one of construction of language, and not of presumption.' The above statement of law has been quoted with approval by a Constitution Bench of this Court in Mysore State Road Transport Corporation v. Gopinath Gundachar Char, (1968) 1 SCR 767. ........................................................"
19. V.Balasubramaniam, supra makes it clear that the decision taken with respect to qualifying service which a Junior Engineer should possess for the purpose of promotion to the cadre of Assistant Engineer by the Board, which had received the approval of the Government, could not be departed from the norm prescribed by it earlier without modifying it by another Resolution of the Board and obtaining the approval of the State Government.
20. The decisions taken by the Board as regards the mode of appointment of officers and staff of the Board until adopting the Regulations cannot be invalidated merely on the ground that the Regulations havesanyasi not been promulgated in accordance with law. In saraladevi sanyasi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 37 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH V.Balasubramaniam, the Regulations were submitted by the Board to the Government for its approval, after the said Resolution was adopted by the Board and the said Regulations were actually published in the official Gazette on May, 14, 1975 and the dispute was relating to promotions of 11 Junior Engineers made on various dates between 25.06.1971 and 07.02.1972.
21. In Captain Sube Singh supra, while considering the power to enforce the binding nature of the concessional passes issued by the Delhi Transport Corporation on the private stage carriage operators, the Hon'ble Apex Court held that such power cannot be subsumed under the powers of State Government to fix fares and freights for stage carriages having regard to the desirability of preventing uneconomic competition among holders of permits. In arriving at the said decision, the Constitution Bench judgment in CIT v. Anjum M.H.Ghaswala reported in (2002) 1 SCC 633, has been referred to, where the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in a manner provided in the statute itself, has been reaffirmed. The sanyasi saraladevi sanyasi CAT, BANGALORE 2024.12.04 saraladevi 09:08:48-08'00' 38 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH statute in question therein provides for the authority to act in accordance with the rules for variation of the conditions attached to the permit. In such context, it has been held that it is not permissible to the State Government to alter the said conditions by issuing a notification.
22. In Rajendra Agricultural University supra, the decision of the Hon'ble Patna High Court declaring that even though the notification dated 04.09.1991 containing the amendment to the statute, was not published in the official Gazette, the teachers are entitled to the benefit as per the notification, was challenged before the Hon'ble Apex Court. The question that fell for consideration were:
"(i) In the absence of publication of the statute in the Official Gazette, as required by section 36 (4) of the Act, whether a statute made under section 36(1) and assented under section 36(2), came into effect and became enforceable?
(ii) Whether the respondents are entitled to the benefit of Time-
Bound Promotion Scheme under the notification dated 4.9.1991."
sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 39 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
23. While adjudicating on the aforesaid points, B.K.Srinivasan vs. State of Karnataka reported in 1987 (1) SCC 658, has been relied on, wherein the Hon'ble Apex Court explained why publication in the Gazette was mandatory and necessary in regard to subordinate legislations. The relevant paragraphs are quoted hereunder for ready reference:
"There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'Unconscientious bad man' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parliamentary Legislation which is publicly made, delegated or subordinate legislation is often made, unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, sanyasi in order to take effect, must be published saraladevi sanyasi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 40 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed."
However, if the parent law had been silent about the manner of publishing or notifying the statute, and had not prescribed publication in the official Gazette as the mode of publication, the contentions of respondents might have merited some consideration. But when the Act clearly provided that the statute required publication in the Gazette, the requirement became mandatory. In fact, in B.K. Srinivasan, this Court explained the position, if the parent Act was silent about publication in the Gazette :
"Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 41 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH publication or promulgation by other means may be sufficient."
24. Finally it has been held thus:
"16. In view of the above, it is not possible to accept the contention that the statute contained in the notification dated 4.9.1991 came into effect or became enforceable even in the absence of publication in the official Gazette. The High Court committed an error in holding that the teachers became entitled to the benefit of the statute relating to time- bound promotion scheme, when the said statute made by the Board of Management was assented to by the Chancellor even though it was not published in the Gazette. The High Court also committed an error in observing that the non- publication was unreasonable and arbitrary, as it ignored the valid reasons assigned by the Chancellor for withdrawing his assent to the incomplete statute, in his order dated 19.3.1996."
25. The Division Bench of the Hon'ble High Court in the Karnataka Power Transmission Corporation Limited supra, while adjudicating upon the issue, whether the Upalokayuktha can disagree with the findings of the Inquiry Officer and give an opinion sitting as a disciplinary authority, held that the decision of sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 42 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH Upalokayukta disagreeing with the Inquiry Officer's finding and to hold that charges are proved against the employee is without authority of law. In such circumstances, it has been held that the punishment imposed by the Disciplinary Authority on the employee solely relying on the recommendations made by the Upalokayuktha, is unsustainable in law.
26. In Chandrashekar S supra, this Tribunal while considering MA degree in Mass Communication & Journalism obtained from Karnataka State Open University should be considered as equivalent qualification to the Post Graduate Diploma in Public Relations, observed thus:
"7. The Respondents, being the Recruiting agency as well as the Appointing Authority is well within its right to consider whether the qualifications held by the applicant should be considered as equivalent to the qualifications prescribed for the post. It is not a legal imperative on their part to consult any other body to ascertain the equivalence of the prescribed qualifications required for any post, to the qualifications possessed by the candidate. It would also be inappropriate for this Tribunal to issue a mandamus declaring that the two qualifications should be considered sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 43 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH as equivalent for the purpose of determining eligibility of the applicant to be considered for appointment."
27. In Dr.Sharanya Mohan and others supra, the Hon'ble High Court of Karnataka while examining the issue of the MBBS graduates executing a bond to undergo compulsory service with the Government in the allotted hospitals, held that the bonds that were executed by the candidates, at the time when they joined medical courses were all bonds executed at the time when they were not even 18 years old, the bond that was sought under the Rules were never notified, therefore, the bond under the amended Rule 11 of the Karnataka selection of candidates for admission to Government seats in professional Educational Institutions Rules, 2006, is unenforceable being illegal. Further the Hon'ble Court has reserved liberty to the State Government to bring in any Circular/Corrigendum or even a law in tune with the rule gazetted subsequently.
28. In Gopinath Gundachar Char supra, the question whether the Road Transport Corporation had the power to appoint officers and lay down their conditions of service in the absence of sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 44 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH regulations framed under Section 45(2) of the Road Transport Corporation Act, 1950, observed thus:
"3. In Dundee Harbour Trustees v. D. & J. Nicol1915 AC 550 at P.556 Viscount Haldane L. C. said: "The answer to the question whether a corporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used. The question is simply one of construction of language, and not of presumption." Bearing in mind this statement of law, let us consider whether the appellant had the power to appoint officers and servants and to lay down their conditions of service in the absence of regulations framed under S. 45(2)(c) of the Road Transport Corporation Act, 1950. The appellant is an autonomous Corporation incorporated under the Act for the purpose of operating road transport services in the State and extended areas. For the proper discharge of its functions, it is necessary for the Corporation to appoint officers and servants. Section 14(2) expressly coners upon the Corporation the incidental power to appoint such officers and servants as it considers necessary for the efficient performance of its functions. Section 19(1)(c) empowers it to provide for its employees suitable conditions of service. Section 14(3) provides that the conditions of appointment and sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00'
45 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH service and the scales of pay of its officers and servants shall be such as may subject to the provisions of S. 34 be determined by regulations made under the Act. Section 45(2)(c) 'empowers the Corporation to frame regulations with the previous sanction of the State Government prescribing the conditions of appointment, service and scales of pay of the officers and servants. If the State Government issues any directions under S. 34 relating to the recruitment and conditions of service of the employees, the Corporation must obey those directions. The conjoint effect of SS.14(3)(b),34 and 45(2)(c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the State Government under S.34 and the regulations, if any, framed under S.45(2)(c). But until such regulations are framed or directions are given. the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and conditions as it thinks fit. There is necessarily a time- lag between the formation of the Corporation and the framing of regulations under S.45(2)(c). During the intervening period, the Corporation must carry on the administration of its affairs with the help of officers and servants. In the absence of clear words, it is difficult to impute to the legislature the intention that the Corporation would have no power to sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 46 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH appoint officers and servants and fix the conditions of service unless the regulations under S.45(2)(c) are framed.
4. There is no merit in the further contention that the General Manager had no power to issue the notice dated July 21, 1964 in the absence of any resolution by the Corporation under S.12(c) expressly authorising him to issue it. In the exercise of his general powers of management the General Manager had clearly the power to issue a notice inviting applications from intending candidates, It is not alleged that he made any appointment pursuant to the notice. The respondent also contended that he had the right to be promoted to a class II junior post. But there is nothing on the record to show that he has any vested right of promotion to the post. Civil Miscellaneous Petition No. 3032 of 1967 filed by the respondent asking for liberty to adduce additional evidence and to raise new contentions is dismissed.:
29. In ITC Bhadrachalam supra, the Hon'ble Apex Court has observed thus:
"13. The first question we have to answer is whether the publication of the exemption notification in the Andhra Pradesh Gazette, as required by Section 11(1) of the Act, is mandatory or merely directory? Section 11(1) requires that an order made thereunder should be (i) published in the Andhra Pradesh Gazette and (ii) must set out the grounds sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 47 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH for granting the exemption. The exemption may be on a permanent basis or for a specified period and shall be subject to such restrictions or conditions as the Government may deem necessary. Shri Sorabjee's contention is that while the requirements that the power under Section 11 should be expressed through an order, that it must contain the grounds for granting exemption and that the order should specify whether the exemption is on a permanent basis or for a specified period are mandatory, the requirement of publication in the Gazette is not. According to the learned counsel, the said requirement is merely directory. It is enough, says the counsel, if due publicity is given to the order. He relies upon certain decisions to which we shall presently refer. We find it difficult to agree. The power under Section 11 is in the nature of conditional legislation, as would be explained later. The object of publication in the Gazette is not merely to give information to public. Official Gazette, as the very name indicates, is an official document. It is published under the authority of the Government. Publication of an order or rule in the Gazette is the official confirmation of making of such an order or rule.
................................................
14. ...................................
15. The above decisions of this Court make it clear that where thesanyasi parent saraladevi statute prescribes the mode of publication sanyasi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 48 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH or promulgation that mode has to be followed and that such a requirement is imperative and cannot be dispensed with."
30 . In Chief Manager, Punjab National Bank and another supra, the Hon'ble Apex Court considering catena of judgments declared that as held by the Hon'ble Apex Court in various decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Court to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it.
31. In Unnikrishnan C.V. and others supra, the Hon'ble Apex Court has held that the Courts would not prescribe the qualifications and/or declare the equivalency of a course. Until and unless rule itself prescribes the equivalency namely, different courses being treated alike, the courts would not supplement its views or substitute its views to that of expert bodies. Ruling of the Hon'ble Apex Court in Zahoor Ahmad Rather and others vs. Sheikh Imtiyaz Ahmad and others reported in (2019) 2 SCC 404, has been relied upon wherein, it is held that judicial review can sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 49 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority to determine. There is no cavil on the preposition that the ambit of the prescribed qualifications or the equivalence of the prescribed qualifications is vested with the recruiting authority considering the nature of the job, the aptitude required for efficient discharge of duties, but the question here is whether the modification/amendment could be made by prescribing 50% promotion through LDCE and 50% through seniority-cum- merit qua 100% by seniority-cum-merit to the C&R Rules for promotion to the post of Manager from SSA in the absence of amended/fresh C&R Rules notified in the official Gazette as per Section 30 and Regulation 31.
32. In the communication dated 05.10.2018, the basis of promotion through LDCE conveys the approval of the competent authority for modification of the Cadre and Recruitment Rules. The same cannot be construed to be in consonance with the NIMHANS Act, 2012 and the Regulation, 2013 framed there under. sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 50 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH Regulation 34 of 2013 which provides for the method of recruitment, age limit, educational qualification and experience for appointment to various posts including the faculty posts and their service conditions as specified in Schedule VI to the Regulations read with the proviso to the said Regulation-34, categorically makes it clear that any amendment to the said Schedule shall be made by publication of notification in the official Gazette, only with the prior approval of the Governing Body. It is well settled that when a Statute prescribes a procedure for exercising the power, such power has to be exercised only as provided in the Statute. The Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Singhara Singh and others reported in AIR 1964 SC 358 has held thus:
"8. The rule adopted in Taylor v. Taylor [1875] 1 Ch. D. 426, 43,1 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00'
51 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH not so, the statutory provision might as well not have been enacted."
33. This view has been reiterated consistently by the Hon'ble Apex Court in catena of judgments referred to above. Hence the amendment carried out to the C&R Rules by the communication dated 05.10.2018 sans publication in the official Gazette runs contrary to the procedure prescribed under the proviso to the Regulation-34 of the NIMHANS Regulations, 2013. The applicants are all in-service candidates and issue relates to their promotion to the higher post i.e., Managerial post, in the absence of the procedure duly followed by the Institute as prescribed under Regulation-34 read with proviso therein, the amendment Rules providing for promotion to the cadre of Manager on the basis of LDCE is not enforceable. Secondly, promotion with retrospective effect is not absolute. Promotion to the post of Manager to the Respondents No.4 to 11 vide Memorandum dated 18.05.2023 with effect from 01.01.2023 appears to be an arbitrary decision taken by the respondents not supported with any reasons. No such provision conferring power on the respondents to give promotion sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 52 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH retrospectively to the Respondents No.4 to 11, has been pointed out by the respondents to substantiate the action of the official respondents.
34. In N.C.Murali and others supra, the Hon'ble Apex Court has held that unless there is specific rule entitling candidates to receive promotion from the date of occurrence of vacancy, right of promotion does not crystallize on the date of occurrence of vacancy and promotion is to be extended on the date when it is actually effected.
35. In Bihar State Electricity Board and others, supra, the Hon'ble Apex Court has categorically held that it is no longer res-integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created.
36. The applicants in OA No.239/2022 have challenged the Circular dated 13.05.2022 prescribing the method of recruitment for promotion to the cadre of Manager through LDCE. In Sarojakumari supra, the Hon'ble Apex Court in the context of the sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 53 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH candidate not raising any objection and never contending that she was entitled for promotion when applications were invited, took part in selection process, observed that after taking part in selection process, the candidate cannot be permitted to turn around and claim that the post cannot be filled by direct recruitment. The applicants herein, had challenged the Circular dated 13.05.2022 in OA No.239/2022. The challenge herein is to the amendment to the C&R Rules/issuance of fresh C&R Rules and the consequential orders. In our considered view, the principle of estoppel is not applicable to the facts of the present case. Hence Sarojakumari supra, is of little assistance to the respondents. Hon'ble Apex Court in the case of Dr.(Major) Meeta Sahai vs. State of Bihar and others reported in (2019) 20 SCC 17 held that illegality in a selection process can be found by a candidate only on its participation and not otherwise.
37. In Krishna Rai supra, the Hon'ble Apex Court referring to catena of judgments holding the field held that there could be no estoppel against law. If the law requires something to be done in a particular manner, then it must be done in that manner and if it is sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 54 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH not done in that manner, then it would have no existence in the eye of the law. It has been observed that the Division Bench fell in error in applying the principle of estoppel that the candidates therein, having appeared in the interview and being unsuccessful proceeded to challenge the same and on that ground alone, allowed the appeals, setting aside the judgment of learned Single Judge. Hence the amendment brought to the C & R Rules of 2010 by communication dated 05.10.2018 based on which the Circular dated 13.05.2022 was issued for conducting the LDCE and promotion order dated 18.05.2023 giving promotions to the private respondents No.4 to 11 with retrospective effect, cannot be held to be justifiable.
38. As observed by the Hon'ble Apex Court in B.K.Srinivasan supra, it is necessary that subordinate legislation in order to take effect must be published or promulgated in some suitable manner as prescribed. Unlike parliamentary resolution which is publically made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary, the object of sanyasi saraladevi sanyasi CAT, BANGALORE 2024.12.04 saraladevi 09:08:48-08'00' 55 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH publishing the C&R Rules/amendment to C&R Rules in official Gazette is to make recruitment process more transparent whereby it reaches the aspiring candidates to know about the qualification, experience and other eligibility criteria required for a particular post. Hence, publication in the official gazette is mandatory, more particularly when the Statute prescribes so. The recruitment notification shall be in conformity with the C&R Rules. Recruiting authority cannot substitute the qualification and experience prescribed under the existing Rules.
39. Section 31(2) of the Act reads thus:
"31. Power to make regulations:-
(2) Notwithstanding anything contained in sub-section (1), the first regulations under this Act shall be made by the Central Government; and any regulations so made may be altered or rescinded by the Institute in exercise of its powers under sub-
section(1)."
In terms of the said provision, even if the first regulation under the Act is made by the Central Government and any regulations so made are altered or rescinded by the Institute in exercise of its sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 56 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH powers under sub-section (1), publication of the amended C&R Rules is not waived off in view of proviso to Regulation 34(1) read with Rule 8(4) of the Rules. The said proviso categorically makes it clear that any amendment to Schedule-VI relating to method of recruitment, age limit, educational qualification, promotional schemes to various posts including faculty post and their service condition of the Institute, shall be made by publication of notification in the official gazette, only with the prior approval of the Governing Body. Hence the argument of the learned Counsel appearing for the private respondents no.4 to 11, inasmuch as Section 31(2) of the Act fails. The judgment relied on by the learned Counsel for the private respondents in Abraham Jacob and others has no relevancy to the case on hand, since no draft recruitment rules have been followed pending its finalisation in issuing the impugned circular and the promotion order. Clause 58 of Schedule-I to the Act, though provides full powers to the Director for faculty posts, Group 'A', 'B' and 'C' posts, the same is subject to Rule-8 of the Rules.
sanyasi sanyasi saraladevi CAT, BANGALORE saraladevi2024.12.04 09:08:48-08'00' 57 OA 239/2022 & OA 364/2023/CAT/BANGALORE BENCH
40. For the reasons aforesaid, the impugned Circular dated 13.05.2022 (Annexure A10) in OA No.239/2022 issued by Respondent No.3 for conducting LDCE and the memorandums impugned dated 18.05.2023 (Annexure A6 series) in OA No.364/2023 issued by Respondent No.3 granting promotion to private respondents with retrospective effect are quashed. The respondents are directed to re-consider the promotion of the eligible candidates to the cadre of Manager in accordance with law as per the existing provision quoted in the communication dated 05.10.2018 (Annexure A3 in OA No.364/2023) issued by Respondent No.1.
41. OA stands allowed to the extent indicated above.
No order as to costs.
(DR.SANJIV KUMAR) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
sanyasi sanyasi saraladevi
CAT, BANGALORE
saraladevi2024.12.04
09:08:48-08'00'