Karnataka High Court
Dr Manoj Kumar H V vs Bangalore Medical College on 24 March, 2022
Author: R Devdas
Bench: R Devdas
-1-
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2022
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.8306 OF 2020 (S-RES)
C/W
WRIT PETITION NO.14144 OF 2018 (S-RES)
IN W.P. NO.8306 OF 2020
BETWEEN
DR. DEEPAK SHIVANNA
AGED ABOUT 51 YEARS
S/O SRI A C SHIVANNA
PROFESSOR ORTHOPAEDICS
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
BENGALURU
R/O "SAMPADA" NO.82
36TH MAIN, 4TH A CROSS
B.T.M. LAYOUT I STAGE
I PHASE, BANGALORE -560068
... PETITIONER
(BY SRI. A.S.PONNANNA, SR. COUNSEL FOR
Ms. POONAM S PATIL, ADVOCATE)
AND
1. BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R.ROAD FORT
BANGALORE-560002.
REPRESENTED BY ITS
DIRECTOR AND DEAN
-2-
2. STATE OF KARNATAKA
BY SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF MEDICAL EDUCATION
BANGALORE-560001.
3. DR.VISHWANATH
S/O LATE SRI. LAKSHMANACHAR
AGED ABOUT 51 YEARS
PROFESSOR AND HOD
DEPARTMENT OF BIOCHEMISTRY
BANGALORE MEDICAL COLLEGE
RESEARCH INSTITUTION
K.R.ROAD FORT
BANGALORE-02.
...RESPONDENTS
(BY SRI. SUDHAKAR B, ADVOCATE FOR R1
SRI. PARAMESHWARAIAH D.C., HCGP FOR R2
SRI. M. SUBRAMANYA BHAT, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE FINAL COMBINED SENIORITY LIST OF
PROFESSORS DTD.28.08.2019 ISSUED BY THE R-1 UNDER
ANNEXURE-A TO THE W.P. AND FINAL COMBINED
SENIORITY LIST OF PROFESSORS DTD.22.02.2018 UNDER
ANNEXURE-M TO THE W.P. AND ETC.
IN W. P. NO. 14144 OF 2018
BETWEEN
1. DR. MANOJ KUMAR H V
AGED ABOUT 45 YEARS,
S/O. SRI. VENKATAIAH,
R/AT NO.31A/1, 5TH MAIN,
-3-
MLA LAYOUT, R.T.NAGAR,
BANGALORE-560032
....PETITIONER
[[[[[[[ (BY SRI. A SAMPATH, ADVOCATE (NOC))
AND
1. BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
REP BY ITS DIRECTOR AND DEAN
K.R.ROAD, FORT
BANGALORE-560002.
2. DR. P.K. DEVADAS
DEPT OF FORENSIC MEDICINE
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R.ROAD, FORT
BANGALORE-560002.
3. DR.H.S. SATISH
DEPT OF ENT
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R.ROAD, FORT
BANGALORE-560002.
4. DR. T.K. RAMESH
DEPT OF OPTHALMOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R.ROAD, FORT
BANGALORE-560002.
5. DR. C. NAGARAJ
DEPT OF PULMONARY MEDICINE
BANGLORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
-4-
K.R. ROAD, FORT
BANGALORE-560002.
6. DR. R.S. RAGHAVENDRA RAO
DEPT OF ANAESTHESIA
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
7. DR. A. SACHIDANANDA
DEPT OF DERMATOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
8. DR. C.R. JAYANTHI
DEPT OF PHARMACOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
9. DR. K.S. MANJUNATH
DEPT OF ORTHOPAEDICS
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
10. DR. K. RAMESH KRISHNA
DEPT OF ORTHOPAEDICS
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
-5-
11. DR. MALINI K.V.
DEPT OF OBSTERIC
AND GYNAECOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
12. DR. ASHA D. BENAKAPPA
DEPT OF PAEDICTRIC
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
13. DR. M. MAHESH BABU
DEPT OF ENT
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
14. DR. IQBAL AHMED
DEPT OF RADIOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
15. DR. B.L. SUJATHA
DEPT OF OPTHALMOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
-6-
16. DR. H. CHANDRASHEKAR
DEPT OF PSYCHIATRY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
17. DR. K. SESHAGIRI RAO
DEPT OF SURGERY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
18. DR. H.L. VISHWANATH
DEPT OF PHYSIOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
19. DR. T.S. RANGANATH
DEPT OF PREVENTIVE
& SOCIAL MEDICINE
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
20. DR. SELVI THANGARAJ
DEPT OF PREVENTIVE
& SOCIAL MEDICINE
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
-7-
21. DR. C. SAVITHA
DEPT OF OBSTETRICS
AND GYNAECOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
22. DR. GEETHA SHIVAMURTHY
DEPT OF OBSTETRICS
AND GYNAECOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
23. DR. A. RAMALINGAIAH
DEPT OF ORTHOPAEDICS
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
24. DR. K. RAVI
DEPT OF MEDICINE
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
25. DR. N.R. PRASHANTH
DEPT OF PSYCHIATRY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
-8-
26. DR. B. VISHWANATH
DEPT OF ENT
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
27. DR. M.K RAMESH
DEPT OF SURGERY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
28. DR. HUDED SRIDEVI SANGANNA
DEPT OF OBSTETRICS
AND GYNAECOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
29. DR. B.S DAYANANDA
DEPT OF PATHOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
30. DR. SIDDIQUE MUKMIL AHMED
DEPT OF PATHOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
31. DR. M. NATRAJAN
DEPT OF PATHOLOGY
BANGALORE MEDICAL COLLEGE
-9-
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
32. DR. A. GEETA
DEPT OF PHARMACOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
33. DR. K.R. MAMATHA
DEPT OF PHARMACOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
34. DR. R. SRILATHA
DEPT OF BLOOD BANK
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
35. DR. KARUNA HARASUR
DEPT OF ANAESTHESIA
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
36. DR. S. NARAYANA REDDY
DEPT OF PHARMACOLOGY
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
-10-
37. DR. R. RAMACHANDRAIAH
DEPT OF ANAESTHESIA
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002.
38. DR. S.S. NETHRA
DEPT OF ANAESTHESIA
BANGALORE MEDICAL COLLEGE
AND RESEARCH INSTITUTE
K.R. ROAD, FORT
BANGALORE-560002. ...RESPONDENTS
(BY SRI. SUDHAKAR B., ADVOCATE FOR R1
SRI. V.R. SARATHY, ADVOCATE FOR R10
SMT. L.ANUSHA, ADVOCATE FOR R18 & R19
SMT. PRAJWALA K.H. LAGALI, ADVOCATE FOR R21
SRI. PARAMESHWARAIAH D.C., HCGP FOR R31 TO R32
NOTICE SERVED TO R2 TO R9, R11 TO R17, R20, R23
TO R30, R33, R36 TO R38
NOTICE HELD SUFFICIENT TO R22 & R34 V/O
DATED 13.06.2019
NOTICE IS DISPENSED WITH TO R35 V/O 26.09.2019)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE COMBINED SENIORITY LIST NOTIFIED BY THE
R-1 BY THE NOTIFICATION DTD 22.02.2018 VIDE ANNX-G
AS BEING ARBITRARY AND VIOLATES ARTICLE 16 OF THE
CONSTITUTION OF INDIA AND ETC.,
THESE WRIT PETITIONS COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
-11-
COMMON ORDER
R.DEVDAS J., (ORAL):
Since the issues raised in both these writ petitions are common, these matters were clubbed, heard together and disposed of by this common order.
2. The petitioners, who are serving as Professors in the Department of Orthopaedics in the first respondent-Bangalore Medical College and Research Institute, Bengaluru, are before this Court seeking to set aside the Final Combined Seniority List of Professors dated 28.08.2019; Final Combined Seniority List of Professors dated 22.02.2018 and seeking a writ of mandamus to prepare the Combined Seniority List of Professors working in the Institute on the basis of total length of service in the teaching cadres commencing from the date of entry into service as Lecturers/Assistant Professors and thereafter to undertake the exercise of selection for appointment to the post of Medical Superintendent and all other -12- administrative posts falling vacant during the pendency of these writ petitions on the basis of the Combined Seniority List, which could be directed to be prepared.
3. Some of the undisputed facts are that the petitioners and the contesting respondents in both these matters, along with other successful candidates were selected by the Karnataka Public Services Commission and appointed by the Government of Karnataka in the Health and Family Welfare Services, Department of Medical Education, by order dated 29.05.2000. The petitioners contend that in terms of the Combined Merit List published by the Karnataka Public Services Commission, the petitioner in W.P.No.8306/2020 was at serial No.18, the petitioner in W.P.No.14144/2018 was at serial No.7, while the contesting respondents were below the rank of the petitioners. However, the Bangalore Medical College was converted into an autonomous Institute and -13- services of all the teachers who were teaching at Bangalore Medical College were given an option either to be absorbed into autonomous Institute or to continue their services in the Department of Medical Education. The Government of Karnataka issued a Government Order dated 26.08.2008 according sanction for permission to absorb the teaching staff of Medical Education Department, who were then working in the Bangalore Medical College and converted into an autonomous Institute with retrospective effect from the date on which Bangalore Medical College was converted into a autonomous Institute subject to the conditions stated therein. It is also an admitted fact that both the petitioners as well as the contesting respondents opted to be absorbed into autonomous Institute.
4. The immediate reason for the petitioners to file these writ petitions is that in terms of the Cadre and Recruitment Rules of the teaching cadre of the -14- respondent-Institute, the administrative post of the Dean-cum-Director has opened up for being filled up and in terms of the impugned Final Combined Seniority List of Professors dated 28.08.2019, which was in fact revised from the earlier Combined Seniority List dated 22.02.2018, the contesting respondents are placed over and above the petitioners, although the petitioners were seniors in terms of the merit list prepared during the time of their appointment.
5. Learned Senior Counsel Sri.A.S.Ponnanna, appearing for the petitioner in W.P.No.8306/2020 submits that as per the Cadre and Recruitment Rules of the teaching cadre of the respondent-Institute as found at Annexure-G, candidates are required to be selected based on Seniority-cum-Merit List from amongst the teachers in the autonomous Institute. For that purpose, it is provided in the Rules itself that, 5 senior most willing Professors as per the cadre wise -15- seniority list of Professors shall be considered by the Governing Council for appointment. The learned Senior Counsel submits that on a plain reading of the said provision, it is clear that there is no provision for preparing a Combined Seniority List. In this regard, the learned Senior Counsel would further draw the attention of this Court to the bye-laws of the respondent-Institute as found at Annexure-F. In fact, Annexure-F is the Memorandum of Association of the respondent-Institute and bye-laws form the part of Annexure-II of the Memorandum of Association.
6. Clause 21 of the bye-laws reads as follows:
"21. Seniority.- The director cum Dean of the institute shall prepare and maintain a gradation list in respect of each of the categories of employees and publish the same on the 1st of January every year.
2) The seniority of the employees in each category shall be determined by order of merit in which they were selected for appointment to the cadre in question. It shall be subject wise in respect of teaching cadres. -16-
In respect of non-teaching staff, cadre wise seniority list shall be prepared and published.
3) Where two persons are appointed on the same date, the seniority between them shall be determined as follows, namely:-
i) A member appointed by promotion shall be senior to a member appointed by direct recruitment.
ii) In case of members appointed by promotion, seniority shall be determined according to the seniority of such members in the cadres from which they were promoted.
iii) In case of Members appointed by promotion from different cadres, then the member who is on a higher scale of pay shall be senior to those in lower scales.
iv) In case of any dispute regarding the seniority, the decision of the appellate authority in respect of concerned cadre shall be final."
7. Learned Senior Counsel would therefore submit that the bye-laws would require the Dean- cum-Director of the Institute to prepare and maintain -17- a gradation list in respect of each of the categories of the employees and publish the same on the 1st of January every year. There is no requirement of preparing a Combined Seniority List.
8. Learned Senior Counsel places reliance on a decision of the Hon'ble Supreme Court in the case of State of Andhra Pradesh Vs. Dr.N.Ramachandra Rao and Others, (1990) 3 SCC 590 to buttress his argument that under similar circumstances in the case of medical profession, the Hon'ble Supreme Court has held that there are various specialities in medical profession and it is generally accepted that they are not of equal importance or utility. However, the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities. The Hon'ble Supreme Court has noticed that a junior, in relatively less important speciality may be fortunate enough to get quick promotion than his senior in a different -18- speciality. It was therefore opined that the juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for appointment to administrative posts. It was further held that any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to posts where speciality or teaching experience is not called for. The seniority determined in order of speciality should not therefore, be the basis for promotion to administrative posts. It was finally held that any rule providing for the contrary may be vulnerable to attack on the ground of arbitrariness.
9. Per contra, Sri.M.Subramanya Bhat, learned Counsel for the third respondent in W.P.No.8306/2020 would submit that the petitioners, like the other -19- respondents voluntarily accepted the absorption rules contained in the Government Order dated 26.08.2008, which also provides that on their absorption into the autonomous Institute, the absorbed teaching faculty shall be allowed to carry their existing Designation & Grade, as found in clause (1) in the Government Order. Learned Counsel submits that the petitioners would not dispute the fact that as on the date of absorption into the Institute, the petitioners were in the cadre of Assistant Professors, while the respondents were in the cadre of Professor. That being the position, it is contended that the third respondent has been functioning as Professor in the Institute, not only from 26.08.2008, but also even prior to the absorption, as the third respondent/respondents was promoted as Professor on 20.08.2007. The learned Counsel would therefore submit that even as per the rule of Seniority-cum- Merit, the third respondent is definitely senior to the -20- petitioners in the cadre of the Professor and the Combined Seniority List impugned has been prepared taking into consideration the length of service as Professors from the date of their appointment into the cadre.
10. Learned Counsel for the third respondent in W.P.No.8306/2020 seeks to place reliance on the following decisions:
(i) Indu Shekhar Singh and Others Vs. State of U.P. And Others (2006) 8 SCC 129;
(ii) M. Ramachandran Vs. Govind Ballabh and Others, (1999) 8 SCC 592; and
(iii) Dr.C.Renukaprasad Vs. State of Karnataka and Others, ILR 2000 KAR 2256.
11. The learned Counsel for the third respondent would submit that it has been held in the above cited decisions that the continuous service rendered by the employees concerned 'on similar posts' should mean posts which are available having been legally created or borne in the cadre on the basis for determination of -21- seniority. Further, having regard to the decision in the case of Dr.C.Renukaprasad (supra), learned Counsel submits that it is by now well settled that the employees having accepted the terms of absorption, are bound by terms of the absorption rules. Learned Counsel submits that when it is clear from the Government Order dated 26.08.2008 that the petitioners and the respondents were absorbed as per the cadre in which they were working as on the date of absorption, namely, the petitioners having been absorbed in the cadre of Assistant Professor and the third respondent having been absorbed in the cadre of Professor, the length of their service in the cadre is required to be taken into consideration. The third respondent having been absorbed into the Institute from the year 2008 in the cadre of Professor, is definitely senior to the petitioners, who were promoted to the cadre of Professors on 02.04.2016 and 13.02.2009 respectively. It is therefore -22- submitted that no fault can be found in the Combined Seniority List or gradation list prepared by the respondent-Institute.
12. At this juncture, learned Senior Counsel for the petitioner would point to clause 7 of the Government Order dated 26.08.2008, which provides that separate orders will be issued in consultation with the Department of DPAR in the matter of Seniority, Service & Conduct Rules. It is further submitted that there is no dispute to the fact that a separate order in this regard was never issued. Further, it is pointed out that the Government of Karnataka, DPAR, issued The Karnataka Medical Service (Teaching and Technical Personnel in Medical and Dental Colleges) (Recruitment), (Amendment) Rules, 2001, in terms of powers conferred under sub-section (1) of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978. In the note along with the amended schedule, it is provided that -23- "Notwithstanding anything contained in the Karnataka Civil Services (Seniority) Rules, 1957 inter-se- seniority of Professors shall be determined on the basis of the total length of service put in cadres of Lecturers, Assistant Professors and Professors". These Rules were notified on 30.06.2001.
13. Further, learned Senior Counsel for the petitioner would point out to the regulations of the National Medical Commission, which are known as "Teachers Eligibility and Minimum Qualifications in Medical Institutions Regulations, 2022". At regulation 3.10, it is provided that the appointments to administrative posts in Government Institutions including the in charge arrangements, amongst the eligible candidates, shall be based on inter-se vertical seniority based on the date of entry into the Institution/Government Service.
14. Learned Counsel for the third respondent disputes the authenticity of the merit list at Annexure -24- 'B' furnished along with the memorandum of writ petition.
15. Learned Counsel Sri.Prashanth B.R., appearing for the first respondent-Institute submits, while adopting the arguments of the learned Counsel for the third respondent in W.P.No.8306/2020 that even for the purpose of determining the seniority of 5 senior most willing Professors as provided in the Cadre and Recruitment Rules of the teaching cadre of the Institution at Annexure-G, their length of service in the cadre is required to be considered. When there is no dispute to the fact that the respondents have been absorbed into the services of the Institute, in terms of the Government Order dated 26.08.2008 and when admittedly, the writ petitioners were promoted into the cadre of the Professors in the year 2016 and 2009 respectively, long after respondent No.3 in W.P.No.8306/2020, the Final Combined Seniority List impugned, cannot be faulted. Moreover, it is -25- submitted that the Regulations of the National Medical Commission, which is pointed out by the learned Senior Counsel, even if accepted, will have prospective effect and cannot be made applicable to a Final Seniority List prepared wayback in the year 2018 and 2019.
16. It is further submitted that the Seniority List has been prepared in terms of the Rules and Regulations-2013 of the respondent-Institution. It is submitted that sub-clause(2) of Regulation 20 of the Regulations-2013 would provide that the appointment of the Dean and Director shall be done by the Vice- Chairman of the Governing Council on the recommendations of the selection committee constituted for this purpose in accordance with the rules of recruitment which shall be based on MCI regulations.
17. Heard the learned Senior Counsel Sri.A.S.Ponnanna for the petitioner in -26- W.P.No.8306/2020, Sri A.Sampath, learned Counsel for the petitioner in W.P.No.14144/2018, Sri.Prashanth B.R., for the first respondent-Institute, learned HCGP for respondent-State and learned Counsel Sri. M.Subramanya Bhat for the third respondent in W.P.No.8306/2020 and perused the petition papers.
18. Having regard to the provisions contained in the Memorandum of Association, the Rules and Regulations-2013 and bye-laws of the respondent- Institute, both annexed to the Memorandum of Association and more particularly, having regard to sub clause (2) of clause 21 of the bye-laws, which provides for seniority, it is clear that the seniority of the employees in each category shall be determined by the order of merit in which they were selected for appointment to the cadre in question.
19. Most importantly, it is subject-wise in respect of teaching cadres. We cannot miss the fact -27- that the lis brought before this Court is in the background of appointment to the administrative post of Dean-cum-Director of the Institute as provided under the Cadre & Recruitment Rules of teaching cadre of the respondent-Institute. Unlike the consideration for promotion to the next cadre, we are concerned with the appointment to the administrative posts of the Institute.
20. Therefore, the learned Senior Counsel is right in his submission that what is required to be considered is as per the provisions contained in the C & R Rules. The requirement is that, candidates for the Administrative posts shall be selected based on seniority-cum-merit from amongst the Teachers in the same autonomous Institute. In this regard, 5 senior most willing Professors as per the cadre wise seniority list of Professors shall be considered by the Governing Council for the said appointment. It is also not disputed that as per the requirement of the -28- Regulations and byelaws, no combined seniority list is required to be prepared. The requirement under sub- clause (2) of Clause 21 under the heading 'Seniority', of the bye-laws of the Institute also clearly provides that 'The seniority of the employees in each category shall be determined by order of merit in which they were selected for appointment to the cadre in question. It is also clear that it shall be subject-wise in respect of teaching cadres'. Therefore, the enunciation of the Hon'ble Supreme Court in the case of Dr.N.Ramachandra Rao (supra) would squarely apply to the facts and circumstances of this case.
21. It was noticed by the Hon'ble Supreme Court in Dr.N.Ramachandra Rao (supra) that regard being had to the fact that in the medical profession there are several specialities and each subject have their own relative importance, it was noticed that there may be some subjects or specialities which may be more important when compared to others. It was also -29- noticed that the promotional avenues would open up in each of the specialities and for various reasons, it is found that in some specialities the promotional avenue may not open up so easily, as in the case of other specialities. Having noticed all these vagaries, the Hon'ble Supreme Court opined that the juniors who get accelerated promotion on account of fortuitous circumstances depending upon their specialty and availability of vacancies in such speciality should not be allowed to march over their seniority for appointment to administrative posts. Any advantage gained by juniors on such fortuitous circumstances should not impair the rights of their seniors for promotion to posts where speciality or teaching experience is not called for. The seniority determined in order of speciality should not therefore be the basis for promotion to administrative posts. It was finally declared that any rule providing for the contrary may be vulnerable to attack on the ground of -30- arbitrariness. On the contrary, the decisions cited by learned Counsel Sri. Subramanya Bhat are based on rules governing the absorption of employees. As noticed earlier, in the Government Order dated 26.08.2008 there is nothing which would take away the seniority of the petitioners.
22. In the considered opinion of this Court, the observations of the Hon'ble Supreme Court in Dr.N.Ramachandra Rao (supra) are aptly applicable to the facts and circumstances of the present case. We are dealing with an appointment to an administrative post in the present case. Therefore, having regard to the requirements contained in the Cadre & Recruitment Rules of the respondent- Institute, for considering the appointment to the post of Dean-cum-Director and other administrative posts, the requirement is that 5 senior most Professors should be taken into the zone of consideration. The concept of preparing a combined seniority list for this -31- purpose is not provided for. In fact, even for the purpose of promotion, this Court did not find any such requirement of preparation of a combined seniority list. Nevertheless, for our purpose, it is sufficient to notice that as per requirement found under the C & R Rules for appointment to administrative posts, more particularly, the Dean-cum-Director, 5 senior most Professors in each category are required to be considered.
23. The clarificatory note contained in the Karnataka Medical Service (Teaching and Technical Personnel in Medical and Dental Colleges) (Recruitment) (Amendment) Rules, 2001 makes it clear that 'Notwithstanding anything contained in the Karnataka Civil Services (Seniority) Rules, 1957, inter-se-seniority of Professors shall be determined on the basis of the total length of service put in cadres of Lecturers, Assistant Professors and Professors'. This again is reflected in the Teachers Eligibility -32- Qualification In Medical Institutions Regulations, 2022 of the National Medical Commission in Clause (3.10) which again provides that for the purpose of appointment to administrative posts in Government Institutions, inter se vertical seniority as on the date of entry into the Institution/Government service, is the requirement.
24. On the plain reasoning as held by the Hon'ble Supreme Court in the case of Dr.N.Ramachandra Rao (supra), it is clear that when the petitioners along with the contesting respondents were appointed under an Order dated 29.05.2000 and the petitioners were placed higher in the merit list when compared to the contesting respondents and on account of some fortuitous circumstances, if the respondents gained accelerated promotion in their specialised field, the right of the petitioners for being appointed to an administrative post cannot be scuttled on the ground that the respondents were promoted as -33- Professors much before the petitioners. It is these circumstances that were aptly noticed by the Hon'ble Supreme Court, more particularly, for the purpose of appointment to administrative posts.
25. For the reasons stated above, this Court proceeds to pass the following:
ORDER
1. The writ petitions are allowed in part.
2. It is hereby declared that the two impugned final Combined Senior Lists dated 22.02.2018 and 28.08.2019 shall not be taken into consideration for the purpose of appointment to the administrative posts of the first respondent-Institute.
3. The Governing Council of the first respondent-Bangalore Medical College and Research Institute is hereby directed to consider the five senior most -34- Professors in various Specialities/ categories on the basis of merit list furnished by the KPSC to the Government and on the basis of which the appointment orders were issued to the petitioners and the respondents herein.
In view of disposal of these writ petitions, pending interlocutory applications, stand disposed of.
Sd/-
JUDGE DL/JT