Karnataka High Court
Dr. Srinivasa K vs The Government Of Karnataka on 3 May, 2017
Equivalent citations: 2017 LAB. I. C. 4398, 2017 (4) AKR 321, (2017) 4 KCCR 443, (2017) 4 KANT LJ 277
Author: Aravind Kumar
Bench: Aravind Kumar
1
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MAY, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.39789/2016 (S-RES)
C/W
W.P.NOS.41788-41790/2016 (S-PRO)
IN W.P.NO.39789/2016
BETWEEN:
DR.SRINIVASA K
S/O KENCHAIAH K
AGED ABOUT 40 YEARS
OCC: ASSOCIATE PROFESSOR
R/O 7TH 'A' CROSS,
MARUTHINAGAR, SHETTIHALLI ROAD
TUMKUR-572 102. ... PETITIONER
(BY SRI M B NARGUND, SR. COUNSEL A/W
SRI. NANDISH PATIL, ADVOCATE)
AND:
1. THE GOVERNMENT OF
KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF MEDICAL
EDUCATION, VIKAS SODHA
BUILDING, BENGALURU-560 001.
2. THE DIRECTOR
CHAMARAJANAGAR INSTITUTE
OF MEDICAL SCIENCES
DISTRICT HOSPITAL PREMISES
B. RACHAIAH DOUBLE ROAD
CHAMARAJANAGAR- 571 313
2
3. THE DIRECTOR
DEPARTMENT OF MEDICAL
EDUCATION, ANANDRAO
CIRCLE, BENGALURU-560 001.
... RESPONDENTS
(BY SRI. R S RAVI, ADVOCATE FOR R-2;
SRI M.A. SUBRAMANI, HCGP FOR R-1 & R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE NOTIFICATION DATED 20.07.2016 ISSUED BY
THE R-2 VIDE ANNEXURE-M IN SO FAR AS DEPARTMENT
OF PHARMACOLOGY.
IN W.P.NOS.41788-790/2016
BETWEEN:
1. DR. J.V. SATHISH
S/O J.T. VENKATARAM SHETTY
AGED ABOUT 38 YEARS
WORKING AS ASSOCIATE PROFESSOR
DEPARTMENT OF MICROBIOLOGY
CHAMARAJANAGAR INSTITUTE OF
MEDICAL SCIENCES,
CHAMARAJANAGAR-571 313.
2. DR.H.R. VANISRI
W/O DR. T.S. SUBASH
AGED ABOUT 39 YEARS
WORKING AS ASSOCIATE PROFESSOR
DEPARTMENT OF PATHOLOGY
CHAMARAJANAGAR INSTITUTE OF
MEDICAL SCIENCES,
CHAMARAJANAGAR-571 313.
3. DR. GIRISH B
S/O BALARAMA
AGED ABOUT 33 YEARS
WORKING AS ASSOCIATE PROFESSOR
DEPARTMENT OF COMMUNITY
MEDICINE, CHAMARAJANAGAR
3
INSTITUTE OF MEDICAL
SCIENCES,
CHAMARAJANAGAR-571 313.
....PETITIONERS
(BY SRI P.S. RAJAGOPAL, SR. COUNSEL A/W
SRI. JAYANTH DEV KUMAR, ADVOCATES)
AND:
1. CHAMARAJANAGAR INSTITUTE
OF MEDICAL SCIENCES
(AN AUTONOMOUS
INSTITUTE OF GOVERNMENT OF
KARNATAKA)
DISTRICT HOSPITAL PREMISES
B. RACHAIAH DOUBLE ROAD,
CHAMARAJANAGAR-571 313
CHAMARAJANAGAR DISTRICT
REP. BY ITS DIRECTOR AND DEAN.
2. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT
DEPARTMENT OF MEDICAL
EDUCATION, M.S. BUILDING
BENGALURU-560 001.
..RESPONDENTS
(BY SRI. R S RAVI, ADVOCATE FOR R-1;
SRI M.A SUBRAMANI, HCGP FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE NOTIFICATION DATED 20.07.2016 UNDER
ANNEXURE-A TO THE W.P. ISSUED BY R-1 INSTITUTE BY
ISSUE OF A WRIT IN THE NATURE OF CERTIORARI IN SO
FAR AS IT CONCERNS RECRUITMENT TO ONE POST OF
PROFESSOR IN MICROBIOLOGY, ONE POST OF
PROFESSOR IN PAHTHOLOGY AND ONE OUT OF TWO
POSTS OF ASSOCIATE PROFESSOR IN CUMMUNITY
MEDICINE AND GRANT ALL CONSEQUENTIAL BENEFITS;
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THESE PETITIONS BEING HEARD AND RESERVED,
COMING ON FOR PRNOUNCEMENT OF ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
A notification dated 20.07.2016 - Annexure-A came to be issued by the first respondent - Chamarajanagar Institute of Medical Sciences (for short 'Institute') inviting applications for recruitment to fill up various posts at the Institute.
2. I have heard the arguments of Sriyuths. P.S.Rajagopal and M.B.Naragund, learned Senior Advocates appearing on behalf of Sriyuths. Jayanthdev Kumar and Nandish Patil, learned Advocates appearing for petitioners and Sri R.S.Ravi, learned Advocate appearing for the Chamarajanagar Institute of Medical Sciences (for short 'Institute) and Sri. M.A.Subramani, learned HCGP appearing for State. Perused the records.
3. Petitioners in W.P.Nos.41788-789/2016 along with petitioner in W.P.No.39789/2016 are claiming to be appointed to the post of "Professor" by 5 way of promotion. Likewise, petitioner in W.P.No.41790/2016 is claiming for being appointed to the post of "Assistant Professor" by way of promotion. It is the contention of petitioners that they are eligible for being promoted and without considering their claim for promotion, the notification dated 20.07.2016 - Annexure-A has been issued and thereby their right for being appointed by way of promotion would be lost and as such, the impugned notification is liable to be set aside.
4. Petitioners in W.P.Nos.41788-790/2016 came to be selected and appointed on 03.05.2014, 06.05.2014 and 05.05.2014 as Associate Professor of Microbiology, Associate Professor of Pathology and Assistant Professor of Community Medicine respectively at the Institute pursuant to a direct recruitment notification dated 03.02.2014 and they have been discharging their duties as such. Petitioner in W.P.No.39789/2016 came to be appointed on 03.05.2014 as Associate Professor of Pharmacology at 6 the Institute pursuant to direct recruitment notification and is also said to be in-charge of the "Pharmacology Department".
5. It is the grievance of petitioners that they have submitted representations highlighting that in terms of Recruitment Rules they are entitled for being promoted to the next post namely, Professor and Associate Professor posts respectively and said posts are to be filled up by promotion only and in the event of non availability of officers for promotion within next one (1) year, then only direct recruitment process can be resorted to and as such, it is contended by the petitioners in W.P.Nos.41788-790/2016 that petitioners 1 and 2 are entitled to be promoted to the cadre of Professor in Microbiology and Pathology and petitioner No.3 is entitled to be promoted as Associate Professor in Community Medicine. Likewise, petitioner in W.P.No.39789/2016 is contending that on completion of two (2) years of probationary period he has requested fourth respondent to declare his probationary period 7 and he is also eligible for being promoted to the post of Professor of Pharmacology, since he has worked as an Associate Professor for a period of 4 years 10 months and has a total teaching experience of approximately 12 years in the subject of Pharmacology and without considering his claim, impugned notification dated 20.07.2016 has been published calling for walk-in- interview and same is being assailed by all the petitioners in these writ petitions.
6. It is the contention of petitioners that Medical Council of India Regulations as also the Recruitment Rules of the Institute stipulate that post of Professor is to be filled from the cadre of Associate Professor in Microbiology / Pathology with three (3) years teaching experience and the candidates should have minimum of four (4) research publications in Indexed / National Journals of the same subject speciality as first author/second author in last three (3) years. Similarly, in respect of Associate Professor the method of recruitment is from the cadre of Assistant 8 Professor, who should have teaching experience as Assistant Professor in the concerned subject for four (4) years in a recognized medical college with further requirement of two (2) research publications in Indexed / National Journals of the same subject speciality as first author/second author in last four (4) years. It is also contended that all the petitioners possess the qualification prescribed by MCI for the posts called for recruitment. It is also contended that mandate of Recruitment Rules being that direct recruitment can be resorted to only if no eligible candidates are available within a time frame of one year of promotion and in the case of petitioners 1 and 2 they would acquire the qualification for three (3) years teaching experience prescribed under the impugned notification during May 2017 and third petitioner has already acquired the said qualification and as such, the Institute could not resort to appointment by direct recruitment. It is also contended that petitioners would fulfill all other qualifications prescribed by the Medical Council of India (for short 'MCI') and the Recruitment Rules as also the 9 conditions stipulated under the impugned notification. Hence, they contend that impugned notification is ultra- wires of Recruitment Rules and contrary to MCI Regulations.
7. It is also contended that Recruitment Rules would provide for recruitment by promotion and resort can be had to direct recruitment only in exceptional circumstances namely, when candidates eligible for promotion during the next one (1) year being not available. Hence, it is contended that promotion is a rule and direct recruitment is an exception and as such, exception will have to be strictly construed.
8. It is further contended that as per MCI Norms fixed under the Letter of Permission to respondent - Institute, there is provision for one post of Professor of Pathology, Pharmacology and Microbiology respectively at the Institute and insofar as, Associate Professor in Community Medicine is concerned, there are two posts and if these posts are filled up by direct recruitment, career prospects of petitioners would be 10 permanently sealed or lost. It is also contended that on account of non obtaining of prior approval of State Government before commencing recruitment process in terms of Rule 20(9) of the Rules, action of first respondent has to fail. Hence, on these grounds, petitioners have sought for quashing of impugned notification. In support of their submission they have relied upon the following judgments:
(i) (2009) 8 SCC 492: JANTIA IIILL TRUCK OWNERS ASSOCIATION vs. SHAILANG AREA COAL DEALER AND TRUCK OWNER ASSOCIATION AND OTHERS
(ii) (2004) 9 SCC 65: STATE OF TRIPURA AND OTHERS vs. K.K.ROY
(iii) (1996) 9 SCC 67: ASHOK V. DAVID M.G.HALAPPANAVAR vs. UNION OF INDIA AND OTHERS
(iv) (2007) 11 SCC 447: KUSHESHWAR PRASAD SINGH vs. STATE OF BIHAR AND OTHERS
(v) (2012) 9 SCC 310: BHARTIYA SEVA SAMAJ TRUST vs. YOGESHBHAT AMBALAL PATEL AND ANOTHER
9. First respondent has filed its statement of objections whereunder averments made in the writ petitions have been denied except to the extent admitted thereunder. It is contended that first respondent - 11 Institute was started pursuant to G.O. dated 07.12.2012 - Annexure-R1 and in order to satisfy the criteria prescribed by MCI, the Dean and Director of the Institute came to be appointed by second respondent, who in-turn has appointed various teaching staff and the administrative staff. It is also contended that pursuant to notification dated 06.02.2014 - Annexure- R2, byelaws of first respondent - Institute came to be registered under the provisions of Karnataka State Societies Registration Act and as per byelaw the Selection Committee has made certain selection of teaching staff in order to comply with the guidelines of MCI. It is also stated that only after the college has complied with the requirement of guidelines issued by the MCI, Government of India would accord sanction/permission for starting the medical college and MCI recommends for grant of such sanction/permission and accordingly, Government of India has granted permission on 13.06.2016 - Annexure-Y. 12
10. It is further contended that direct recruitments are being made as per the byelaws of the first respondent in compliance of minimum qualification for teachers as prescribed by MCI by its regulations namely, Medical Council of India Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 (for short 'MCI Regulations'). Hence, it is contended that services of teachers have to be taken into consideration from the date of granting Letter of Permission for starting the Institution and as such, services of petitioners and also that of the staff, who were appointed prior to issuance of letter of permission, has to be taken only from the date of granting letter of permission by the Government of India, which in the instant case is 13.06.2016. It is also contended that Cadre and Recruitment Rules in respect of teaching and administrative staff of first respondent - Institute is not yet framed and as per byelaws of the Institute direct recruitment is being made on the basis of walk-in- interview by way of issuing notification, prescribing thereunder the minimum qualification as prescribed 13 under MCI - Regulations. Hence, it is contended that impugned notification is in consonance with the MCI - Regulations.
11. It is also contended that all the candidates possessing requisite qualification are entitled to participate in walk-in-interview and petitioners did not appear before the Selection Committee either on 05.08.2016 or on 06.08.2016, though it was open for the petitioners to attend the interview before Selection Committee in the light of interim orders passed in the writ petitions on 25.07.2016 and 03.08.2016 respectively and as such, question of considering the candidature of petitioners would not arise.
12. It is also contended that petitioners 1 and 2 do not have three (3) years of teaching experience as Associate Professor for being considered to be recruited as Professor, which is a pre-requisite as per MCI Regulations. It is also contended that third petitioner has not put in minimum teaching experience of four (4) years as Assistant Professor and as such, considering 14 his claim for being appointed to the post of Associate Professor did not arise. It is also contended that though petitioners are appointed as Associate and Assistant Professors in the year 2014 by the Institute, they did not have the opportunity of teaching at the Institute though college was commenced in the year 2014 and permission came to be accorded by Government of India to run the college only on 13.06.2016 and as such, period prior to 13.06.2016 cannot be counted for the purposes of reckoning their teaching experience. On these grounds, respondents have sought for dismissal of the writ petitions.
13. In support of their contentions they have relied upon the following judgments:
(i) AIR 1968 SC 1210: STATE OF PUNJAB vs. DHARAM SINGH
(ii) AIR 1966 SC 1842: STATE OF UTTAR PRADESH vs. AKBAR ALI KHAN
(iii) (1994) 2 SCC 723: U.P. PUBLIC SERVICE COMMISSION U.P., ALLAHABAD AND ANOTHER vs. ALPANA
(iv) AIR 2007 SC 1746: RAJASTHAN PUBLIC SERVICE COMMISSION vs. KAILA KUMAR PALIWAL AND ANOTHER 15 DISCUSSION AND FINDING:
14. The Government of Karnataka by G.O.No. HFW 146 MPS 2012 dated 07.12.2012- Annexure-R1 accorded sanction for establishment of seven new Government Medical Colleges in the Sate of Karnataka at various districts including Chamarajanagar District. Accordingly, first respondent/ Institute came to be established in the District of Chamarajanagar. By notification dated 06.02.2014 - Annexure-R2, Dean cum Director of the first respondent / Institute came to be appointed by the Government.
15. A notification for direct recruitment dated 03.02.2014 came to be issued by the Institute and pursuant to same petitioners herein came to be selected and recruited to the posts of Associate Professors and Assistant Professor respectively. They have been discharging their duties accordingly from the date of their recruitment. Records would also disclose that they have submitted representations during July' 2016 requesting thereunder to consider their claim for 16 promotion to the next higher cadre namely, to the posts of Professor/Associate Professor. However, for reasons best known said representations or claim of the petitioners has not yet been considered and disposed of.
16. Be that as it may. The Institute in the meanwhile issued a notification dated 20.07.2016 produced as Annexures - A and M in the respective writ petitions calling for applications from eligible candidates for recruitment to the posts indicated therein. Since various posts have been notified for recruitment, the details thereof are not being delved upon in these writ petitions and only those posts which are relevant insofar as the writ petitioners are concerned are being dealt with in these writ petitions. Amongst other posts called for direct recruitment, it included recruitment to the post of Professor in Pharmacology, Pathology and Microbiology and posts of Assistant Professors in Community Medicine.
17. For the purposes of convenience, the names of petitioners, date of their appointment in the Institute 17 and to the post to which they were appointed and the post to which they are seeking for being appointed by way of promotion are tabulated hereinbelow:
Sl. Name Date of Appointed to Post to which No. appointment the post of Promotion sought for 1 Dr. J.V.Satish 03.05.2014 Associate Professor Professor of Microbiology Microbiology 2 Dr. H.R.Vanisri 06.05.2014 Associate Professor of Professor of Pathology Pathology 3 Dr. Girish.B 05.05.2014 Assistant Associate Professor of Professor of Community Community Medicine Medicine 4 Dr.Srinivas A.K. 03.05.2014 Associate Professor of Professor of Pharmacology Pharmacology
18. As already noticed hereinabove, petitioners at Sl.Nos.1, 2 and 4 hereinabove, who are working as Associate Professors are claiming for being recruited as Professors by promotion and petitioner at Sl.No.3 hereinabove who is working as Assistant Professor in Community Medicine is seeking for being recruited as Associate Professor by promotion.
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19. On impugned notification dated 20.07.2016 being issued, petitioners have approached this Court for quashing of the same and as already noticed hereinabove, their prime grievance is, in terms of the Recruitment Rules they are entitled to be promoted to the posts of Professors and Associate Professor and only in the event of non availability of eligible candidates for being promoted within next one year, then only direct recruitment can be resorted to. It is also their grievance that their individual representations submitted requesting for considering their claim for being promoted having not been considered or same having not received the attention of the Institute, it has resulted in Institute ignoring their legitimate claim or expectation. Hence, it is contended by the petitioners the respondent - Institute cannot resort to direct recruitment without exhausting the avenue of promotion. It is contended that since the post of Professor in each of the subjects to which the petitioners are making claim being one only, their claim would be lost forever if direct recruitment is made 19 without considering the claim of the petitioners for being promoted.
20. The respondent - Institute has not made any specific recruitment rules insofar as appointments being made to the Institute. This is also admitted by the Institute in its statement of objections. However, it is contended that recruitment is being made as per the byelaws of the Institute, in compliance of Minimum Qualification for Teachers as prescribed by the Medical Council of India by its Regulations i.e., Medical Council of India Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 (for short 'Regulations - 1998'). It is also contended by the Institute that as per the byelaws direct recruitment is being made on the basis of walk-in-interview by way of issuing notification prescribing thereunder the minimum qualification as prescribed under Regulations, 1998.
21. Respondent is registered under the Karnataka Societies Registration Act, 1960, and it is governed by "Chamarajanagar Institute of Medical 20 Sciences, Chamarajanagar Rules and Regulations - 2013" - Annexure - R. Under Rule 7 (2)(a) the Governing Council has power to frame Rules, Regulations, Byelaws, Cadre and Recruitment Rules, Policies xxxx of the Institute. Under Rule 8 the State Government may issue suo-moto directions as may be necessary or expedient as morefully indicated under the said Rule. Rule 20 (1) would disclose that "all appointments to the Institute shall be done on the basis of provisions of C&R Rules and subject to reservation policy of the State Government". Rule 20(2) would indicate that "the appointment of Dean and Director, Medical Superintendents, Professors, Associate Professors, Assistant Professors, Senior Residents shall be done xxxx on the recommendation of the Selection Committee xxxx in accordance with Rules of Recruitment", which shall be based on MCI Regulations. The Institute has not framed any recruitment rules. Hence, the question that would arise is:
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"Whether the respondent - Institute can make direct recruitment ignoring the directions issued by the Government of Karnataka in the year 2013 as per Annexure-S?"
22. The answer to the above question will have to be obviously in the negative, inasmuch as, the Government of Karnataka itself in the year 2013 has advised all the Medical Educational Institutions under it to follow set of Uniform Recruitment Rules for teaching posts in medical colleges or institution and has indicated or specified thereunder that such medical college/institution should observe the Norms prescribed by Medical Council of India vide Annexure-S. A bare perusal of the same would disclose that method of recruitment to the posts of Professors and Associate Professors is by promotion and if no eligible candidates are available in a time frame of one year for being promoted, then appointment can be made by direct recruitment. The method of recruitment in respect of 22 Pathology and Community Medicine as prescribed thereunder reads as under:
DEPARTMENT OF PATHOLOGY Sl. Category Total Scale of Pay Method of Recruitment Minimum No. of Posts No. of Qualification posts 1 Professor Rs.37400- 1. By promotion from M.D.(Pathology) 67000 with the cadre of / AGP of Associate Professors Ph.D.(Pathology) Rs.10000 who have worked as /D.Sc.
Associate Professor (Pathology) in pathology for four years in a recognized medical college. It is desirable to have minimum of four Research publications indexed in Index Medicus/national journal and one research publication in international journal.
2. With effect from 24th July 2013 the following conditions shall apply:
i) By promotion from the cadre of Associate Professors who have worked as Associate Professor in Pathology for three years in a recognized medical college. It is mandatory to have 23 minimum of four Research publications in Indexed/national journal.
ii) Xxxx
iii) Xxxx
3. xxxx
4. If, no eligible
candidates are
available in a time
frame of one year for
promotion, then by
Direct Recruitment.
5. xxxx
DEPARTMENT OF COMMUNITY MEDICINE Sl. Category Total Scale of Method of Recruitment Minimum No. of Posts No. Pay Qualification of posts 1 Professor xxxx xxxx xxxx 2 Associate Rs.37400- 1. By promotion from M.D.(Social Professor 67000 the cadre of Assistant and Preventive with AGP Professors who have Medicine)/M.D. of worked as Assistant (Community Rs.9000 Professor in Medicine) Community Medicine for five years in a recognized Medical College. It is desirable to have minimum of four Research publications indexed in Index Medicus/National Journals.24
2. With effect from 24th July 2014 the following conditions shall apply:
i) By promotion from the cadre of Assistant Professors who have worked as Assistant Professor in Community Medicine for four years in a recognized medical college. It is mandatory to have minimum of two Research publications in Indexed/national journal.
ii) xxxx
iii) xxxx
3. xxxxx
4. xxxxx
5. xxxxx
23. The said method of recruitment as applicable to Pathology is also applicable in respect of Microbiology and Pharmacology also. In fact, respondent in its statement of objections has contended that said Uniform Recruitment Rules framed by the State Government is applicable only to ten medical colleges as specified thereunder and would not be applicable to the respondent - Institute. However, it is not established by 25 the Institute as to how said Recruitment Rules would be inapplicable to it or as to how a departure can be made by the Institute. On the other hand, Institute has taken a stand that even if those rules are followed, it is not in a position to promote the petitioners as none of them have got teaching experience, since the Institute has commenced its educational activities only in the year 2016-17, by virtue of Letter of Permission granted by the Government of India on 13.06.2016. However, the fact remains that there are no recruitment rules specifically framed by the Institute. In that view of the matter, the respondent - Institute cannot be heard to contend that the Recruitment Rules notified by the State Government and having directed the medical colleges under it to follow the same, would be inapplicable to the respondent - Institute.
24. The Hon'ble Apex Court in the case JANTIA IIILL TRUCK OWNERS ASSOCIATION vs. SHAILANG AREA COAL DEALER AND TRUCK OWNER ASSOCIATION AND OTHERS reported in 26 (2009) 8 SCC 492 has held that draft rules may be followed where no rules in accordance with statutory provisions have been framed. It is held:
"36. Although not very relevant, we may notice that this Court in Vimal Kumari vs. State of Haryana has held that even the draft rules may be followed where no rules in accordance with the statutory provisions have been framed. [See also High Court of Gujaraj v. Gujarat Kishan Mazdoor Panchayat and Mahabir Vegetable Oils (P) Ltd. v. State of Haryana."
25. There cannot be any dispute to the proposition that promotion is a normal incidence of service. Where there is an avenue for promotion an opportunity to advance should be granted or made available as it would be an incentive for a employee for personal development. It has been held by the Apex Court in the case of STATE OF TRIPURA VS. K.K.ROY reported in (2004) 9 SCC 65 that promotion being a condition of service, avenues have to be provided thereof. It is held:
"4. Indisputably, the post of Law Officer-cum-Draftsman is a single- cadre post. It is also undisputed that 27 there does not exist any promotional avenue therefore. The respondent is holder of a Master's degree as also a degree in Law. He was appointed in the year 1982. If the contention of the appellant is to be accepted, the respondent would be left without being promoted throughout his career. In almost an identical situation, a Bench of this Court in Council of Scientific and Industrial Research vs. K.G.S. Bhatt held:
"It is often said and indeed, adroitly, an organization public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. (See Principles of Personnel Management, Flipo, Edwin B., 4th Edn., p.246.). Every management must provide realistic opportunities for promising employees to move upward. The organization that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low 28 morale, and ineffectual performance, among both non-
managerial employees and their supervisors. There cannot be any modern management much less any career planning, manpower development, management development, etc., which is not related to a system of promotions."
5. The matter came up for consideration again in O.Z. Hussain (Dr) v. Union of India wherein this Court in no uncertain terms laid down the law stating:
"Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non- medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers."
6. It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The 29 appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue for promotion, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional function of the State. It is not disputed that the other States in India/Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the Scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State appearing of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the appellant like the other States in India, and what impeded it from doing so.
Promotion being a condition of service and having regard to the requirement thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the appellant should have followed the said principle."
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26. As to whether issuance of formal order of confirmation if delayed even after satisfactory completion of the period of probation would result in injury being caused to such employee, Apex Court in the case ASHOK V. DAVID M.G.HALAPPANAVAR vs. UNION OF INDIA AND OTHERS reported in (1996) 9 SCC 67 has held:
"4. The main contention of Shri Bhat, appearing for the Union of India, was that despite restoration of seniority of the appellants they could not have been within the zone of consideration when the Selection Committee was set in December 1983, inasmuch as the appellants came to be confirmed with effect from 1-1-1986; and it is a confirmed hand who becomes eligible for consideration. Though there is no dispute that formal confirmation qua the appellants was effective from 1-1- 1986, the case of the appellants, as advanced by Shri Ganguli and Shri Vaidyanathan for them, was that under the provisions of the Mysore Government Servants Probation Rules, 1957, a probationer, after satisfactory completion of the period of probation, becomes due for confirmation; and if for unjustifiable reasons formal order of confirmation is delayed, the incumbents cannot be made to suffer. The learned counsel appearing for the State of Karnataka, 31 however, contended that a probationer cannot be treated to be a confirmed employee merely on satisfactory completion of probation till an order of confirmation is passed. This follows, according to the learned counsel, from a combined reading of Rules 5 and 9 of the aforesaid Probation Rules. Despite there being force in these contentions of the learned counsel, we entertain no doubt that formal confirmation order cannot be unreasonably delayed, as the delay causes injury in those cases where confirmation is a precondition for getting better service conditions, as was in this case."
27. The authorities which are vested with the power to do or carry out an act within a reasonable time and neglects to do so, has to be termed as failure to discharge the duty so entrusted to it. In such circumstances the omission to take action should not be allowed to cause prejudice or adversely affect the right of such party which otherwise would have resulted or visited with benefits flowing from such positive action being taken. It came to be held by Apex Court in the case of KUSHESHWAR PRASAD SINGH vs. STATE OF 32 BIHAR AND OTHERS reported in (2007) 11 SCC 447 to the effect:
"14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).
15. In Union of India v. Major General Madan Lal Yadav the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. This 33 Court referred to Broom's Legal Maxims wherein it was stated:
"It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-
performance he has occasioned. To put it differently, 'a wrongdoer ought not to be permitted to make a profit out of his own wrong."
28. It is the contention of the petitioners that having regard to their experience and research publications to their credit, first and second petitioners in W.P.Nos.41788-790/2016 are eligible for being considered to be promoted to the posts of Professors on 02.05.2017 and 07.05.2017 and third petitioner had 34 already become eligible for being promoted as Associate Professor even as on 12.03.2016 itself subject to declaration of their probation, which is a formality and without considering their claim for promotion to the higher cadre, if the recruitment process is carried out it would result in their claim being scuttled and the only opportunity in their career for being promoted would be lost to them forever.
29. Likewise, it is the contention of the petitioner in W.P.No.39789/2016 that he had already acquired qualification even as on the date of the impugned notification dated 20.07.2016 came to be issued and as such, without considering his claim for promotion the recruitment process could not have commenced.
30. However, the stand of the Institute is that as on the date of the impugned notification petitioners had not acquired qualification and as such Institute cannot be made to wait till the claim of the petitioners for being promoted is considered and permission granted by Government of India on 13.06.2016 to commence the 35 Medical College being prospective in nature, the claim of the petitioners for reckoning their teaching experience would commence from 13.06.2016 and on the date of impugned notification came to be issued i.e., 20.07.2016, they did not possess the minimum qualification prescribed under MCI Regulations - 1998.
31. In this background, it requires to be considered as to whether the claim of petitioners was required to be considered by the Institute, without which the recruitment process by way of direct recruitment to the posts of Professors and Associate Professor could have been carried out by the first respondent.
32. There is no dispute to the fact that under the impugned notification the minimum qualification fixed for the category of the post of Professor and Assistant Professor are as indicated therein. It reads: 36
REQUIREMENTS OF ACADEMIC QUALIFICATIONS, TEACHING AND RESEARCH EXPERIENCE Sl. Category of Minimum Qualification & Experience No. Post 1 Professor i) Must possess MBBS degree or equivalent qualification included in any one of the schedules of the Indian Medical Council Act 1956. Must be registered in a State Medical Register or Indian Medical Register.
ii) Should have any one of the recognized postgraduate qualification i.e., MD /MS in the concerned subject or equivalent qualification included in any one of the schedules of Indian Medical Council Act 1956.
iii) Should have teaching experience as Associate Professor in concerned subject for three years in a recognized Medical College.
iv) Minimum of four Research Publications in indexed/National Journals as 1st author / 2nd author in last three years.
2 Associate i) Must possess MBBS degree or equivalent Professor qualification included in any one of the schedules of the Indian Medical Council Act 1956. Must be registered in a State Medical Register or Indian Medical Register.
ii) Should have any one of the recognized postgraduate qualification i.e., MD /MS in the concerned subject or equivalent qualification included in any one of the schedules to Indian Medical Council Act 1956.
iii) Should have teaching experience as Assistant Professor in the concerned subject for four years in a recognized Medical College.
iv) Minimum of Two Research Publication in indexed/National Journals as 1st author/2nd author in the last four years.
37
33. The minimum qualification for the post of Professor and Associate Professor as prescribed hereinabove at Sl. Nos. (i), (ii) and (iv) are undisputedly met by the petitioners or in other words, they are possessing the above prescribed qualification.
34. The Letter of Permission dated 13.06.2016 (Annexure-Y) produced in W.P.Nos.41788-790/2016 would disclose that minimum standards regulations stipulated by the Medical Council of India is to be fulfilled by the colleges including the staff requirement. Enclosure to Annexure-Z would disclose that as on the date of first renewal the concerned medical college should possess one Professor in Pharmacology, Pathology, Microbiology and two Associate Professors in Community Medicine. The said strength is required to be maintained upto recognition being granted. It would also disclose that number of Professors in these three subjects namely, Pharmacology, Pathology and Microbiology would be one only throughout and likewise 38 there would be two Associate Professors posts till recognition is granted.
35. In the above background, it requires to be examined as to whether respondent - Institute would be entitled to proceed with the recruitment process, without considering the claim or representations of the petitioners, whereunder the petitioners are seeking for being promoted on the ground that criteria prescribed for promotion is met by them. The incidental question would be as to: whether petitioners would be eligible to be considered for being promoted to the posts of Professor and Associate Professor respectively? On the one hand, petitioners claim that they would meet all the prescribed criteria and eligible for being in the zone of consideration for promotion. On the other hand, it is the stand of the Institute that petitioners do not have the requisite qualification of teaching experience, by contending that petitioners in W.P.No.41788-790/2016 were appointed on 03.05.2014, 05.06.2014 and 05.05.2014 and reported to duty immediately thereafter 39 and petitioners 1 and 2 have not put in three years of teaching experience as Associate Professors while third petitioner has not put in teaching experience of four years as Assistant Professor, which is a condition precedent for being appointed to the post of Professor and Associate Professor or in other words, petitioners do not possess the minimum qualification prescribed by the MCI Regulations, 1998. It is also contended that the petitioner in W.P.No.39789/2016 who was appointed on 03.05.2014 as Associate Professor in Pharmacology had reported to duty on 03.05.2014 and had not put in three years of teaching experience as on the date of impugned notification. Under these circumstances, the date of appointment of the petitioners as Associate Professors and Assistant Professor should be counted for reckoning their teaching experience, which is the qualification prescribed under the impugned notification for being appointed to the said post.
36. Records would disclose that first petitioner in W.P.Nos.41788-790/2016 was working as an 40 Assistant Professor in the Department of Microbiology at Adichunchanagiri Institute of Medical Sciences from 01.06.2009 to 02.05.2014 vide Annexure-C and was appointed in the respondent - Institute as Associate Professor of Microbiology by appointment order dated 03.05.2014 - Annexure-D and has been working at the said Institute since then.
37. Second petitioner was working as an Assistant Professor at JSS Medical College from 18.11.2005 to 06.05.2014 (Annexure-G) and was appointed by the respondent - Institute as Associate Professor of Pathology on 06.05.2013 (Annexure-H).
38. Third petitioner was working as Assistant Professor at Sri. Siddhartha Medical College in the Department of Community Medicine from 10.06.2011 to 31.07.2011 and 02.05.2012 to 03.05.2014 - Annexure-L and M respectively.
39. Petitioner in W.P.No.39789/2016 having worked as Assistant Professor in various medical 41 colleges from 02.02.2007 till 02.05.2014 as per Annexures-B to F, came to be appointed in the respondent - Institute on 03.05.2014 - Annexure-G as Associate Professor of Pharmacology.
40. As to whether the date of appointment of petitioners to the respective posts is to be reckoned for the purposes of considering their teaching experience or the date on which letter of permission (13.06.2016) which came to be granted by the Ministry of Health and Family Welfare is to be reckoned would be the issue for consideration.
41. The requirements to be fulfilled by the applicant medical colleges for obtaining the letter of intent and letter of permission for establishment of new medical colleges and yearly renewals as required under Section 10-A of the Indian Medical Council Act, 1956, vide Annexure-Z would disclose the staff requirement even as on the date of letter of permission (LOP) being issued, the respective colleges are required to have appointed the staff as prescribed thereunder. 42
42. At the cost of repetition it requires to be noticed that in the subjects of Pharmacology, Pathology and Microbiology, one Associate Professor should have been appointed by the Institute even at the time of obtaining Letter of Permission. Likewise, one Assistant Professor in Community Medicine was required to be appointed at the time of obtaining Letter of Permission. It is for this reason, first respondent - Institute had appointed the petitioners on the respective dates as noted hereinabove in the year 2014, which was immediately after notification being issued by the Government of Karnataka according sanction to establish seven new Government medical colleges in various districts, the Dean and Director of the respondent - Institute came to be appointed on 06.02.2014 and simultaneously petitioners also came to be appointed.
43. As noticed hereinabove the impugned notification would indicate that for the post of Professor a candidate should have teaching experience as 43 Associate Professor in the concerned subject for three (3) years in a recognized medical college.
44. The Recruitment Rules which has been directed by the State Government to be adopted by the respondent - Institute as noticed hereinabove discloses that recruitment to the post of Professor as well as Associate Professor is by way of promotion and if within the time frame of one year such recruitment is to be made, there were to be no eligible candidates available within the zone of consideration, then resort can be had to direct recruitment. As otherwise, the respondent - Institute is duty bound to recruit to such posts by way of promotion unless such candidate being ineligible or does not meet the criteria prescribed under MCI Regulations - 1998.
45. An employee has no right to be promoted. However, he has a right to be considered for promotion and said right would fall within the meaning of Article 16(1) of the Constitution of India. Though a candidate has a fundamental right to be considered for promotion, 44 such right would be available only if he falls within the prescribed zone of consideration. If such employee who is eligible and is within the prescribed zone of consideration, if not considered for promotion then there will be a clear infraction of his fundamental right. Consideration for promotion is directly related to the concept of opportunity as found in Article 16 and the Constitutional requirement of equality with regard to such opportunity necessarily means exclusion of arbitrariness in the course of consideration for promotion. To put it differently, if there is deviation from Rules or Norms in the matter of promotion an irresistible conclusion has to be drawn that such deviation is arbitrary.
46. In exercise of powers conferred under Section 10-A read with Section 33 of Indian Medical Council Act, 1956, the Medical Council of India - MCI with the previous sanction of the Central Government has made Regulations known and called as "Medical 45 Council of India Establishment of Medical College Regulations, 1999".
47. There is no dispute to the fact that MCI - Regulations insofar as prescribing the qualification for appointment to the posts of Professor and Associate Professor is concerned would be applicable to the posts called for and being recruited under the impugned notification dated 20.07.2016 issued by respondent - Institute.
48. The Medical Council of India Minimum Qualifications for Teachers in Medical Institution Regulations, 1998 (for short MCI - 1998 Regulations) mandates the qualification and eligibility criteria to be possessed for the posts of Professor and Associate Professor and it reads as under:
Sl.
Category of Post Minimum Qualification & Experience No. 1 Professor i) Must possess MBBS degree or equivalent qualification included in any one of the schedules of the Indian Medical Council Act, 1956. Must be registered in a State Medical Register or Indian Medical Register.46
ii) Should have any one of the recognized postgraduate qualification i.e., MD/MS in the concerned subject or equivalent qualification included in any one of the schedules of Indian Medical Council Act 1956.
iii) Should have teaching experience as Associate Professor in concerned subject for three years in a recognized Medical College.
iv) Minimum of four Research Publications in indexed/ National Journals of the same Subject Speciality as 1st author/2nd author in last three years.
2 Associate i) Must possess MBBS degree or Professor equivalent qualification included in any one of the schedules of the Indian Medical Council Act, 1956. Must be registered in a State Medical Register or Indian Medical Register.
ii) Should have any one of the recognized postgraduate qualification i.e., MD/MS in the concerned subject or equivalent qualification included in any one of the schedules to Indian Medical Council Act 1956.
iii) Should have teaching experience as Associate Professor in the concerned subject for three years in a recognized Medical College.
iv) Minimum of four Research Publications in indexed/ National Journals of the same Subject Speciality as 1st author/2nd author in last four years.
47
49. Petitioners 1 and 2 in W.P.Nos.41788- 790/2016 were appointed as Associate Professor in the Institute on 03.05.2014 and 06.05.2013 and they would become eligible for being promoted to the posts of Professor on 02.05.2017 and 07.05.2017, which would be well within one year period from the date of impugned notification dated 20.07.2016. To put it differently, the Recruitment Rules as already discussed hereinabove enabling the respondent - Institute to make appointment or recruitment to the post of Professor and Associate Professor by way of promotion from the cadre of Associate Professor/Assistant Professor, the respondent - Institute cannot take recourse to direct recruitment without undertaking the exercise of holding DPC in departmental promotion. However, if such exercise is undertaken by the respondent - Institute and if for any reason it is found by the Departmental Promotion Committee - DPC that candidates who are within the zone of consideration of promotion being ineligible, then it would be well within the jurisdiction of 48 the respondent - Institute to proceed to appoint by direct recruitment.
50. Petitioner in W.P.No.39789/2016 was appointed as Associate Professor in the respondent - Institute on 03.05.2014 and thus, became eligible for being considered for promotion to the post of Professor on 03.05.2017, if the period of three (3) years is to be reckoned from the date of their respective appointments. It is also to be noticed that petitioner in W.P.No.39789/2016 was working in Siddhartha Medical College as Associate Professor in the Department of Pharmacology from 01.09.2011 to 17.12.2011 and at Kunhitharuvai Memorial Charitable Trust from 21.12.2011 to 29.09.2013 also as Associate Professor and thereafter, at D.M.Waynad Institute of Medical Sciences from 03.10.2013 till 01.05.2014 and thereafter, he has been appointed as Associate Professor in the respondent - Institute on 03.05.2014. Thus, even on the date of impugned notification third petitioner had already acquired qualification prescribed under the 49 impugned notification or in other words, he would satisfy the eligibility criteria prescribed under the impugned notification for being put into the zone of consideration to be promoted as Professor. However, his claim for promotion has not at all considered by the Institute.
51. Petitioners having been appointed on the dates mentioned hereinabove, for the respective posts in teaching faculty, respondent - Institute cannot be heard to contend the services of the petitioners has to be reckoned only from the date of LOP granted by the Government of India. Hence, this Court is of the considered view that petitioners had become eligible for being taken into the zone of consideration for promotion and non-consideration of their claims would be violation of their right enshrined in Article 16 of Constitution of India.
52. In view of the finding recorded by this Court hereinabove that recruitment rules as per Annexure-S has been adopted by all the Government medical 50 colleges throughout the State and the said rule providing for promotion from the cadre of Associate Professor to the cadre of Professor in the subjects of Pharmacology, Pathology and Microbiology and to the post of Associate Professor from the cadre of Assistant Professor in Community Medicine by reckoning their eligibility criteria from the date of their appointment in the respondent - Institute, the claim of the petitioners was required to be considered by the Institute. Non consideration of their claim for promotion has vitiated the recruitment process and as such, it calls for interference at the hands of this Court.
53. In the light of aforestated discussion, I proceed to pass the following order:
ORDER
(i) Writ petitions are hereby allowed.
(ii) Notification dated 20.07.2016 -
Annexures-A and M in
W.P.Nos.41788-790/2016 and
51
W.P.No.39789/2016 respectively,
are hereby quashed.
(iii) The respondent - Institute is hereby directed to convene Departmental Promotion Committee - DPC within one month from the date of receipt of copy of this order or within one month from the date of copy of the order being furnished to examine the claim of the petitioners for promotion to the posts of Professors and Associate Professor respectively.
(iv) In the event of petitioners' claim
being turned down or rejected for
any reason, whatsoever, the same
shall be communicated to the
petitioners and immediately
thereafter the respondent - Institute would be at liberty to notify the candidates already selected whose names have been kept in sealed 52 cover pursuant to order dated 27.02.2017.
(v) Respondent - Institute would also be at liberty to open the sealed cover made in W.P.No.41790/2016 insofar as, recruitment of one Associate Professor by issuing appointment order to the meritorious candidate amongst them and shall not fill-up the post of remaining one vacant post of Associate Professor in Community Medicine till the conclusion of DPC as ordered hereinabove.
No order as to costs.
Sd/-
JUDGE DR