Karnataka High Court
Smt Dr Ashwini M S vs The State Of Karnataka on 5 September, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 51611 of 2019
C/W WP No. 5491 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 51611 OF 2019
C/W
WRIT PETITION NO. 5491 OF 2021 (S-RES)
IN W.P.No.51611/2019:
BETWEEN:
1. SMT.DR.ASHWINI.M.S
W/O DR.VEERESH S.M.,
AGED 38 YEARS,
WORKING AS SENIOR RESIDENT,
DEPARTMENT OF OBSTETRICS & GYNECOLOGY,
SHIMOGA INSTITUTE OF MEDICAL SCIENCES,
R/AT #508, 4TH FLOOR,
SANGAMA DOCTOR'S QUARTERS,
Digitally SHIMOGA INSTITUTE OF MEDICAL SCIENCES,
signed by
PANKAJA S SHIMOGA-577 201.
Location:
HIGH
COURT OF 2. SMT.DR.SAVITHA.C.S.,
KARNATAKA
W/O RAGHUNANDAN, AGED 48 YEARS,
WORKING AS SENIOR RESIDENT,
DEPARTMENT OF OBSTETRICS & GYNECOLOGY,
SHIMOGA INSTITUTE OF MEDICAL SCIENCES,
R/A WOODS VILLA, 3RD CROSS,
'B' BLOCK, NEW 60 FEET ROAD,
SHARVATHINAGARA, SHIMOGA,
SHIMOGA-577 201.
... PETITIONERS
(BY SRI.ABHISHEK PATIL FOR
SRI.SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE)
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WP No. 51611 of 2019
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AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF MEDICAL EDUCATION,
VIKASA SOUDHA,
DR.B.R.AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. THE DIRECTOR OF MEDICAL EDUCATION,
GOVERNMENT OF KARNATAKA,
ANANDA RAO CIRCLE,
BENGALURU-560 009.
3. THE SHIMOGA INSTITUTE OF
MEDICAL SCIENCES,
DISTRICT MCGANN HOSPITAL,
SHIMOGA-577 201
REPRESENTED BY ITS DIRECTOR.
4. THE CHIEF ADMINISTRATIVE OFFICER,
SHIMOGA INSTITUTE OF MEDICAL SCIENCES,
SHIMOGA-577 201.
5. DR.CHAITRA.M., AGED ABOUT 29 YEARS,
D/O N.MANJANAIK,
PRESENTLY R/AT No.48/6, RANGA RAO ROAD,
SHANKARAPURAM, BANGALORE-560 004.
... RESPONDENTS
(BY SRI.T.P.MALIPATIL, AGA FOR R-1 & R-2;
SMT.SUMANA BALIGA.M., ADVOCATE FOR R-3 & R-4;
SMT.AKKAMAHADEVI HIREMATH, ADVOCATE FOR R-5)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED NOTIFICATION DATED:16.11.2019 ISSUED BY THE
SHIMOGA INSTITUTE OF MEDICAL SCIENCES, THE
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WP No. 51611 of 2019
C/W WP No. 5491 of 2021
R-3 HEREIN VIDE ANNEXURE-F, ONLY INSOFAR AS IT RELATES
TO ITEM No.12 OBG IS CONCERNED, ETC.
IN W.P.No.5491/2021
BETWEEN:
DR.CHAITHRA.M,
AGED ABOUT 29 YEARS,
D/O N MANJANAIK,
RESIDING AT No.48/6,
RANGARAO ROAD,
SHANKARAPURAM,
BENGALURU-560 004.
... PETITIONER
(BY SMT.AKKAMAHADEVI HIREMATH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF MEDICAL EDUCATION,
VIKASA SOUDHA,
DR.B.R.AMBEDKAR VEEDHI,
BENGALURU-560001.
2. THE DIRECTOR OF MEDICAL EDUCATION,
GOVERNMENT OF KARNATAKA,
ANAND RAO CIRCLE,
BENGALURU-560 09.
3. SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS)
DISTRICT MEGGAN HOSPITAL,
SHIMOGA-577 201.
REPRESENTED BY ITS DIRECTOR.
4. THE CHIEF ADMINISTRATIVE OFFICER
SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS)
SHIMOGA-577 201.
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WP No. 51611 of 2019
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5. DR.SAVITHA.C.S.,
AGED ABOUT 49 YEARS,
W/O RAGHUNANDAN,
WORKING AS LMO,
DEPARTMENT OF OBG,
SHIMOGA INSTITUTE OF MEDICAL SCIENCES(SIMS)
RESIDENT OF WOODS VILLA,
III CROSS, D BLOCK, NEW 60 FEET ROAD,
SHARAVATHI NAGAR,
SHIMOGA-577 201.
... RESPONDENTS
(BY SRI. T.P.MALIPATIL, AGA FOR R-1 & R-2;
SRI.S.B.TOTAD,ADVOCATE FOR R-3 & R-4;
SRI.ABHISHEK PATIL FOR SRI SHIVAPRASAD
SHANTANAGOUDAR, ADVOCATE FOR R-5)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER OF PROMOTION DATED:25.01.2020 (ANNEXURE-P)
ISSUED BY THE R-3 INSTITUTE IN RESPECT OF THE R-5, ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 17.08.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
In W.P. No.51611 of 2019:
1. Dr.Ashwini M.S.--petitioner No.1 was appointed as a Lady Medical Officer at respondent No.3--Institution i.e., Shimoga Institute of Medical Sciences, Shimoga on 05.01.2012. She was, thereafter, promoted as a Senior -5- NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 Resident vide order dated 05.10.2013 as per Annexure 'B', and in the course of her employment as a Senior Resident, she also obtained a Masters Degree in Obstetrics and Gynaecology ("O.B.G." for short) on 28.06.2019.
2. Dr.Savitha C.S.--petitioner No.2 was appointed as a Tutor in General Surgery on 03.10.2006 and thereafter, by an Official Memorandum dated 06.11.2013, her post was re-designated as Senior Resident.
3. Both of them are aggrieved by the Notification calling for a walk-in-interview in respect of the post of Assistant Professor in General Surgery and O.B.G. which had been issued by respondent No.3, vide Annexure 'F'.
4. It is their contention that under the Cadre and Recruitment Rules for appointment of Teaching staff of ten Government Autonomous Medical Institutions (for short 'C&R Rules') framed by respondent No.3--Institution for the post of Assistant Professor, the mode of recruitment is as follows:
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NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 "SHIMOGA INSTITUTE OF MEDICAL SCIENCES, SHIMOGA Cadre and Recruitment Rules for the Appointment of Teaching Staffs of 10 Government Autonomous Medical Institutions Sl. Academic Post Scale of Pay Experience No. Qualification Assistant Rs.15600- 1.By re- M.D.(Obst. & Professor 39100 designation Gunae.)/ With AGP of from the cadre M.S.(Obst. & Rs.8000 of Senior Gyane.) Residents. And 3 years experience as
2.By Transfer Junior from other Resident Autonomous Institutions
3.If no eligible candidates are there for re-
designation, then 100% by Direct Recruitment.
4.Maximum upper age limit for Direct Recruitment is 45 years in case of General Merit candidates, 48 years in case of OBC's and 50 years in case of SC's and ST's
5. It is their contention that the first mode of recruitment prescribed was by way of re-designation from the cadre of Senior Resident and since they were Senior Residents, they contend that they had to be appointed as -7- NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 Assistant Professors by re-designating their post of Senior Residents. It is contended that the other modes of recruitment i.e., by way of transfer from other autonomous institutions or by direct recruitment could be resorted to only if there were nobody in the cadre of Senior Residents. They contended that since it is clearly stated that direct recruitment can be resorted to only if there are no eligible candidates for re-designation, the impugned notification seeking direct recruitment despite the petitioners being available in the cadre of Senior Residents was wholly illegal.
6. The case of the Institution i.e., respondent No.3 is that petitioner No.1, though possessed the educational qualifications for the post of Assistant Professor did not have the requisite working experience as a Senior Resident, since she was still working as a Lady Medical Officer and her promotion as a Senior Resident had not been approved by the Department Promotions Committee and the Governing Council.
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7. It is the further case of respondent No.3 that petitioner No.2 did not have the minimum qualification of possessing the Post-Graduation Degree and it is stated that even though petitioner No.2 has completed Masters Degree in O.B.G., she was not awarded Masters Degree as on the last date of submitting the application for walk-in interview, and apart from that, the Medical Council of India Regulations prescribed one year experience as a Senior Resident after completion of Post-Graduation degree and therefore, was not eligible to apply for the post of Assistant Professor. In order to make these submissions, reliance is placed on the Medical Council of India Regulations.
8. During the pendency of this writ petition, Dr.Chaitra M. has filed an application to implead herself as respondent No.5 and the same was allowed on 30.09.2020 and it is her contention that pursuant to the Notification, by virtue of her possessing Post-Graduation Degree in O.B.G. in May-2018 and working as a Senior Resident in -9- NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 Bangalore Medical College from 29.10.2018 to 28.10.2019, she had applied for the post of Assistant Professor and had also appeared for the interview on 02.12.2019, whose results were published on 03.12.2019, indicating her name at Sl.No.47. It is, therefore, her contention that she had been selected to the said post and her name had also been published in the provisional list and as a matter of fact, the proposal to appoint her was sent to respondent No.1 for approval and the same had been withheld.
9. She also contends that both the petitioners are ineligible for being called for the interview and they cannot, therefore, be permitted to stall the process of appointment.
10. It may also be pertinent to state here that during the pendency of this writ petition, petitioner No.2 has filed a memo seeking to withdraw this writ petition on the ground that she had been granted promotion to the post of Assistant Professor and her prayer would not survive for
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NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 consideration since the relief claimed in the writ petition has become infructuous.
11. However, this memo for dismissal of the writ petition as not pressed is stoutly opposed by respondent No.5 contending that the conduct of petitioner No.2 does not entitle her to withdraw this writ petition and that the petitioner had obtained an interim order with an intention to drag on the matter for more than a year in order to become eligible for promotion and the promotion thereafter given was illegal.
12. Respondent No.5 has also preferred a writ petition challenging the said promotion in W.P. No.5491 of 2021 reiterating her contentions that petitioner No.2 was ineligible for being promoted.
13. Arguments were advanced by the learned counsel for the Institution and by the learned counsel for respondent No.5 contending that the petitioners were ineligible to be appointed as Assistant Professors in view of the University
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NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 Grants Commission Regulations ('UGC Regulations' for short).
14. The Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 (for short 'the 1998 Regulations') formulated in exercise of powers conferred under Section 33 of the Medical Council Act, 1956, stipulates that in respect of General Surgery and O.B.G., for the post of Tutor / Demonstrator / Resident / Registrar, the requisite educational qualification is an M.B.B.S. Degree. The 1998 Regulations pertaining to the same reads as follows:
"TABLE-1 REQUIREMENTS OF ACADEMIC QUALIFICATIONS TEACHING AND RESEARCH EXPERIENCE Post Academic Teaching/Research Qualifications Experience 1 2 3 *** *** *** GENERAL SURGERY *** *** *** (D)Tutor/Demonstrator M.B.B.S -
/ Resident/Registrar OBSTETRICS AND GYNAECOLOGY *** **** *** (D) Tutor/ Demonstrator/ M.B.B.S Resident/ Registrar
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15. It is not in dispute that petitioner No.1 was promoted as Senior Resident in the year 2013.
16. It was, thus, clear that for being recruited as a Resident, as per the 1998 Regulations, only a Degree in M.B.B.S. was sufficient and since the petitioner was promoted as Senior Resident in 2013 and she possessed the educational qualification of M.B.B.S. as on the date of her recruitment, it is clear that she was eligible to be appointed as a Resident.
17. Having regard to the fact that petitioner No.1 was promoted as a Senior Resident on 15.10.2013, and she was admittedly working as a Senior Resident notwithstanding the fact that her promotion was yet to be approved, it is clear that the petitioner did have six years experience as a Senior Resident when the Notification was issued on 16.11.2019.
18. Similarly, in respect of petitioner No.2, since she was promoted on 06.11.2013 as a Senior Resident, she also
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NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 possessed six years experience as a Senior Resident. Since the original Regulations of the year 1998 provided only for possessing of an educational qualification of an M.B.B.S. Degree for a Resident, it is obvious that both the petitioners did possess the educational qualification to be recruited as a Resident which was later re-designated as Senior Resident.
19. Arguments were, however, advanced that when the Notification was issued for appointments to the post of Assistant Professor, the UGC Regulations which came to be amended in the year 2018, required an Assistant Professor to possess a Post-Graduate Qualification of Doctor of Medicine or Masters in Surgery or Diplomate of National Board (MD/MS/DNB) in the concerned subject and the candidates were required to have three years experience of working as Junior Resident in a recognized medical college in the concerned subject and one year as a Senior Resident in the concerned subject, and that since both
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NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 petitioners did not possess experience of one year as a Senior Resident, they were ineligible.
20. It is also contended that for the post of Senior Resident, as per the amended UGC Regulations in the year 2018, in order to be a senior Resident, one had to possess a Post-Graduation Degree and was required to be doing her residency in the concerned Post-Graduation subject.
21. It is, therefore, contended that since petitioner No.1 did not possess the requisite experience of one year as a Senior Resident, she was ineligible to be considered to the post of Assistant Professor.
22. It was also contended that since petitioner No.2 had only taken up her examinations for the Masters Degree in O.B.G. and was awaiting her result, it was also obvious that she did not possess the experience as stipulated in the Regulations as amended in the year 2018 and she was therefore ineligible.
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23. As stated above, when the petitioners were recruited and were promoted as Senior Residents in the year 2013, the UGC Regulations only prescribed the educational qualifications of possessing an M.B.B.S. Degree. The subsequent amendment made to the UGC Regulations in the year 2018 enhancing the educational qualification of a Senior Resident to require the possessing of a Masters Degree, would obviously be inapplicable to the petitioners.
24. In other words, since the petitioners possessed the necessary qualifications of an M.B.B.S. degree as prescribed under the Regulations, as on their date of the promotion as Senior Residents, they were entitled to hold that post. Merely because a subsequent amendment enhanced the educational qualification, that would not disentitle them to hold that post since what is relevant for being considered for promotion is their eligibility as on the date of the promotion.
25. Thus, the entire arguments advanced by the learned counsel for the Institution as well as for respondent No.5,
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NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 that the petitioners did not possess the qualification required for a Senior Resident, cannot be accepted.
26. The argument of the Institution that the promotion of petitioner No.1 as a Senior Resident was pending approval, would also be of no consequence because what is contemplated under the Regulations is that the person should have the experience of being a Senior Resident for more than one year. It is the admitted case of the Institution that petitioner No.1 was working as a Senior Resident from the year 2013 till 2019 and it is, therefore, clear that she did possess the requisite work experience as a Senior Resident.
27. The C&R Rules which have been framed for the Institution, as noticed above, contemplates the first mode of recruitment to the post of Assistant Professor is by re- designating the persons available in the cadre of Senior Residents. It is only if there are no eligible candidates for re-designation, is it permissible for the Institution to seek for direct recruitment.
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28. The recruitment to an Institution can only be as per C&R Rules framed by the Institution. The UGC Regulations basically prescribe the minimum educational qualifications and work experience that are required for the purpose of being recruited. The mode of recruitment cannot, therefore, be stipulated by the UGC Regulations. So long as the candidates being recruited possess the requisite educational qualifications as prescribed under the UGC Regulations, the Institution would be at liberty to appoint them in accordance with the Rules framed by them.
29. It is to be borne in mind that the prescription of educational qualifications is by the Medical Council of India which oversees the field of Medical Education in India, and therefore, only to the extent of educational qualifications would the UGC Regulations be relevant. Unless there is a specific bar in the UGC Regulations disentitling an Institution from re-designating the persons in one cadre to the next higher cadre, it cannot be contended that such a mode of re-designation is illegal.
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30. It is admittedly not the case of either of the parties that the UGC Regulations barred the re-designation of the posts. As already observed above, if a candidate possessed the requisite educational qualifications, the recruitment can be made by the Institution in a manner it finds convenient and feasible.
31. If the Institution prescribes the mode of recruitment as re-designation, the same will have to be accepted since it is clear that by this process, the Institution seeks to provide an incentive to the existing employees and gives them a mode of reaching a higher post while yet staying within the Institution.
32. It is, therefore, clear that the C&R Rules that have been framed by respondent No.3--Institution, which provides for recruitment by re-designation, will have to be accepted and respected.
33. Since, admittedly, in both these cases, in respect of the post of Assistant Professor for General Surgery and
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NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 O.B.G., the petitioners were admittedly working as a Tutor and Senior Resident and possessed the requisite experience and educational qualifications, the Institution could not have resorted to the process of direct recruitment.
34. Since, admittedly, both thepetitioners did possess a Masters Degree and also the work experience as a Senior Resident for more than a year, they were entitled, as a matter of right, to seek to be re-designated as Assistant Professors.
35. The impugned Notifications calling for appointment of Assistant Professor by direct recruitment, being contrary to the C&R Rules, cannot be sustained and the same is accordingly quashed.
36. Petitioner No.1 shall consequently be promoted to the post of Assistant professor by re-designation of her post. The writ petition, insofar as petitioner No.1 is concerned, is accordingly Allowed.
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37. Since, petitioner No.2 has already been promoted and does not intend to press the writ petition, the writ petition, insofar as petitioner No.2 is concerned, is dismissed as having become unnecessary. In W.P. No.5491 of 2021:
38. The other writ petition filed by Dr.M.Chaithra, challenging the order of promotion and also objecting to the withdrawal of the writ petition by petitioner No.2 is wholly misconceived.
39. Admittedly, Dr.M.Chaithra--the petitioner in W.P. No.5491 of 2021 has not at all been appointed and she had only been provisionally selected as an Assistant Professor.
40. It is well settled law that mere inclusion in a provisional select list will not create any right as such. Admittedly, her name had been included in the provisional select list and she was admittedly not selected and had not worked as an employee of the Institution. It is only if
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NC: 2023:KHC:31939 WP No. 51611 of 2019 C/W WP No. 5491 of 2021 Dr.M.Chaithra had been the employee of the institution, can she be aggrieved of a promotion granted to a co- employee. A person who was not even an employee of the Institution cannot obviously challenge the promotion granted to an employee of the Institution.
41. It is, therefore, clear that the petition filed by Dr.Chaithra M., challenging the promotion granted to Dr.Savitha C.S.--respondent No.5 is wholly misconceived and the petition is, therefore, dismissed.
Sd/-
JUDGE RK CT:SN List No.: 1 Sl No.: 2