THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.28121 OF 2022
AND
WRIT PETITION NO.32250 OF 2022
COMMON ORDER
In these Writ Petitions, the petitioners are seeking a Writ of
Mandamus declaring the action of the respondents in filling up of the
posts of Professors in the respondent University (NIMS) by way of promotions without following the UGC Regulations and in calling for applications only from in-service candidates, i.e., identified personnel in the University, as illegal and contrary to Act 13 of 1989 and the Standing Order No.2 dt.30.01.1992 and consequently to direct the respondents to notify the posts of Professors in terms of the Standing Order No.2 dt.30.01.1992 and to direct the respondents to consider the candidature of the petitioners for the post of Professors and to pass such other order or orders as this Court may deem fit and proper in the circumstances of the case.
2. Brief facts leading to the filing of W.P.No.32250 of 2022 are that the petitioner has passed MBBS, MD and is a holder of Fellowship of W.P.Nos.28121 & 32250 of 2022 2 National Board of Examinations in Cardiac Anaesthesia and claims to have a teaching experience of 19 years. The petitioner has been working as Associate Professor from 2014 and as Additional Professor from 2020 in the Department of Anaesthesiology of the respondent University. It is submitted by the petitioner that the respondents had issued a Notification Rc.No.HR1/41/2022/R, dt.04.02.2022 inviting applications from the eligible candidates for filling up of the posts of Professors in various Departments including Anaesthesiology and the last date for the applications was 28.02.2022. It is submitted that the petitioner, being fully eligible for the post of Professor in Anaesthesiology, was planning to apply for the post, but the respondents issued a paper Notification published in New Indian Express paper dt.17.02.2022 cancelling the Notification due to administrative reasons. It is submitted that the respondents have issued an In-house Circular Rc.No.HR1/387/2022/F dt.22.04.2022 stating that the Institution is planning to conduct promotion (Additional Professor to Professor) for the Faculty Members working in various Departments and identified 19 Additional Professors who were required to apply for promotion in the Annexure enclosed to the Notification. It is submitted that in the said Memo, Dr. M.Srilatha and Dr. Kanithi Geetha from the Department of W.P.Nos.28121 & 32250 of 2022 3 Anaesthesiology were invited to make application for the post of Professor. It is submitted that on coming to know about the same, the petitioner has made a representation dt.25.04.2022 objecting to the calling of applications from a few selected Faculty members for appointment as Professors by citing repealed Standing Order No.1 as irrational and requested to do justice by notifying the posts of Professors for selection so that the petitioner along with other eligible candidates may apply. When the respondents did not take any action on the representation of the petitioner but proceeded to conduct interviews to the selected candidates, i.e., Additional Professors in the Department of Anaesthesiology on 08.08.2022 and the interview were scheduled for posts of Additional Professors to Professors in other Departments on 11.08.2022, the petitioner has filed W.P.No.32250 of 2022.
3. Similarly, in the case of the petitioner in W.P.No.28121 of 2022, the petitioner claims to have applied for the post of Professor in Neuro Surgery and he is also aggrieved by cancellation of the Notification dt.07.02.2022 and issuance of the Circular dt.22.04.2022 calling for in- service candidates only for interviews for promotion of Additional Professors to Professors.
W.P.Nos.28121 & 32250 of 2022 4
4. Since both the Writ Petitions are on the same set of facts, they were heard together and are being disposed of by this common and consolidated order.
5. Respondents 1 and 2 in W.P.No.32250 of 2022 have filed their counter affidavit. The affected parties and whose names are mentioned in the writ affidavit in W.P.No.32250 of 2022 have filed the implead petition and were allowed to be impleaded by the order of this Court. Subsequently, they have also filed a counter affidavit along with a stay vacate petition.
6. Similarly, in W.P.No.28121 of 2022 also, the affected party has got herself impleaded and has filed a counter affidavit. The official respondents, i.e., respondents 2 to 4 have also filed their counter affidavit.
7. Learned Senior Counsel, Sri G.Vidya Sagar, who represented the petitioner in W.P.No.32250 of 2022, also appeared for the petitioner in W.P.No.28121 of 2022. He submitted that respondents 1 and 2 in W.P.No.32250 of 2022 are the representatives of the University, i.e., its Director and Dean respectively. He submitted that the respondent W.P.Nos.28121 & 32250 of 2022 5 University is governed by the UGC Guidelines for appointment of Professors, Additional Professors and Associate Professors. It is submitted that initially, Standing Order No.1 dt.25.09.1990 was issued by the University providing a procedure of appointments by direct recruitment and promotions in the ratio of 25:75. As per the said Standing Order, Lecturers and Assistant Professors Grade-II were to be appointed by a Selection Committee who shall consider the claims of the eligible in-service Senior Lecturers and place them before a Committee consisting of the Director, Dean, Head of the Department and a Local Expert in the specialisation concerned. Only where there are no qualified Senior Lecturers for appointment by promotion, appointments shall be made by direct recruitment and not less than three fourths of the vacancies in each category of Posts of Assistant Professors Grade-I, Associate Professors and Professors in each Department shall be filled by promotion as far as possible and the remaining one fourth of the vacancies shall be filled by direct recruitment, for which persons in service of NIMS also shall be eligible to apply. Procedure for direct recruitment was provided directing that wherever any vacancy or vacancies under direct recruitment quota are to be filled, the same shall be advertised and filled following the procedure W.P.Nos.28121 & 32250 of 2022 6 of interviewing the candidates and making selections to the posts by the Selection Committee constituted under Section 22 of the NIMS Act.
8. The learned Senior Counsel for the petitioners submitted that subsequently, the Standing Order No.1 has been repealed by way of Standing Order No.2 dt.30.01.1992 and it was provided that all the posts of Assistant Professors, Associate Professors, Additional Professors and Professors shall be filled by direct recruitment only. It is submitted that thereafter, Standing Order No.35 dt.20.09.1995 was issued modifying the Guidelines issued in the Standing Order No.2, by providing that the Guidelines mentioned therein will apply to all appointments, by promotion to the posts of Associate Professors and Additional Professors which shall be filled up by promotion to the extent of 75% of the vacancies and only 25% are to be filled by direct recruitment.
9. The learned Senior Counsel for the petitioners submitted that though Standing Order No.1 has been repealed by Standing Order No.2, the respondents have issued Circular/Notification dt.22.04.2022 by referring to the Guidelines for promotion, vide Standing Order No.1 dt.20.09.1995. Therefore, he submitted that respondents 1 and 2 have not followed their own Guidelines for promotion. He further countered W.P.Nos.28121 & 32250 of 2022 7 the argument averred in the counter affidavit of respondents 1 and 2 that the Executive Body have subsequently passed a Resolution No.1588 dt.23.05.2022 approving the implementation of Assessment Promotion Scheme in NIMS on par with AIIMS, New Delhi and direct recruitment up to a maximum of 25% of posts in the cadre of Associate Professor and Professor was also approved based on requirement. He submitted that the Resolution is subsequent to the Circular/Notification and therefore, the respondents cannot rely upon the said Resolution for upholding the Circular/Notification.
10. The learned Standing Counsel for the respondents No.1 and 2 University has relied upon the averments made in the counter affidavit and submitted that NIMS is funded by the State Government and it is an Autonomous Body and therefore is not governed by UGS Regulations. It is further submitted that it is the Executive Board of the respondent University which is empowered under Section 12 of the NIMS Act to do varied acts ranging from (i) appointment of officers and employees for carrying out the management and affairs of the Institute, for conduct of the studies, investigations, research, teaching or other work undertaken by the Institute; and (ii) exercise disciplinary control over them and W.P.Nos.28121 & 32250 of 2022 8 other incidental activities including exercise all the powers of the Institute not otherwise provided for and all powers requisite to give effect to the provisions of the NIMS Act or the Rules made thereunder. It is submitted that the 2nd respondent has been functioning on the lines of AIIMS, New Delhi and other Central Government Institutes and as such, the Executive Board of the Institute has passed Resolution No.1588 on 23.05.2022 making applicable the Assessment Promotion Scheme to the cadres of the Associate Professor, Additional Professor and Professors in NIMS as well. It is submitted that direct recruitment posts are vacancy based and eligible candidates from outside can also apply pursuant to the Notification and the minimum teaching experience to attain eligibility for promotion to the post of Professor has also been revised as per AIIMS, New Delhi and other Central Institutes and that the petitioners do not fulfil the said eligibility criteria. It is further submitted that the Assessment Promotion Scheme on par with AIIMS, New Delhi is approved for implementation by the Executive Board in its 82nd meeting vide Resolution dt.23.05.2022 and therefore, applications are invited from the in-service candidates for promotion from the post of Additional Professors to that of Professors.
W.P.Nos.28121 & 32250 of 2022 9
11. It is submitted that the Internal Circular dt.22.04.2022 was issued as per the existing Guidelines, i.e., assessment promotions are to be made applicable to the cadres of Associate Professor, Additional Professor and Professor. The Institute may induct faculty by direct recruitment up to a maximum of 25% of posts in the cadre of Associate Professor and Professor based on requirement. It is further submitted that earlier cited Notifications were issued based on the old Guidelines, whereas the existing Guidelines are issued based on Resolution No.1397 of the 70th meeting held on 20.04.2015, Resolution No.1481 of the 72nd meeting held on 14.05.2016 and Resolution No.1588 of the 82nd meeting held on 23.05.2022 of the Executive Board. The internal Circular for assessment promotion was issued based on the current Guidelines and therefore it is in no terms in violation of any Rule or Guideline. It is submitted that direct recruitment as prescribed under the Guidelines shall be made applicable with due notification in the public domain. It is further submitted that as per the modified Guidelines, the criteria of eligibility is reduced from 4 years to 3 years and accordingly the petitioners, who have to yet put in required number of years of service, W.P.Nos.28121 & 32250 of 2022 10 have a fair chance of promotion under the Assessment Promotion Scheme.
12. The unofficial respondents in W.P.No.32250 of 2022, i.e., respondents 3 and 4, have also filed their counter affidavit along with a stay vacate petition and submitted that by virtue of Standing Order No.35, Standing Order No.2 has been repealed and therefore, Standing Order No.1 would get revived and the Notification issued in accordance with Standing Order No.1 has to be upheld.
13. Similarly, in the case of W.P.No.28121 of 2022 also, the official respondents 2 to 4 have filed counter affidavit stating that the petitioner therein is not fulfilling the qualifications required for the post of Professor and as such he is not eligible for the said post of Professor. However, it is also mentioned that the eligibility or otherwise of the petitioner would be decided during the course of selection process and that the post of Professor of Neuro Surgery is being filled up by way of Assessment Promotion only and in the event of non-availability of in- service suitable faculty, the Institute would invite and consider applications from outsiders.
W.P.Nos.28121 & 32250 of 2022 11
14. Having regard to the rival contentions and the material on record, it is noticed that both the writ petitioners are challenging the Circular/Notification dt.22.04.2022 calling for applications from a few candidates mentioned therein selectively by the University by referring to Standing Order No.1, even though it has been repealed by Standing Order No.2.
15. Having regard to the rival contentions and the material on record, this Court finds that in these Writ Petitions, the question to be considered is whether the Circular dt.22.04.2022 has been issued as per the Rules/Guidelines in force at the time of issuance of the Notification, i.e., dt.22.04.2022. The Notification refers to Standing Order No.1 dt.25.09.1990. Standing Order No.1 provides for 75% of the vacancies to be filled up by promotions and the balance of 25% are to be filled by direct recruitment. Standing Order No.2 dt.30.01.1992 provides for filling up of 100% vacancies only by direct recruitment. Standing Order No.2 which has been modified by Standing Order No.35 dt.20.09.1995 provides for application of Assessment Promotion Scheme in respect of 75% of the vacancies of the Associate Professor and Additional Professor and the balance 25% vacancies to be filled up are by direct W.P.Nos.28121 & 32250 of 2022 12 recruitment and wherever suitable candidates are not available, then such vacancies are to be filled by direct recruitment. Standing Order No.35 does not refer to the posts of Professors. Whether the modification of Standing Order No.2 and repeal thereof would revive Standing Order No.1 is the moot question in this Writ Petition.
16. It is noticed that the Standing Orders are issued on the basis of the Resolutions passed by the Executive Board from time to time. Standing Order No.35 dt.20.09.1995 repeals Standing Order No.2 of 1992 only in so far as they are inconsistent with the Guidelines in Standing Order No.35. In the said Standing Order, there is a reference only to the Associate Professors and Additional Professors and even in the eligibility criteria, there is a reference only to the eligibility criteria for promotion of an Assistant Professor as Associate Professor and promotion of Associate Professor as Additional Professor. Therefore, Standing Order No.35 would be applicable only to the posts of Associate and Additional Professors and not to the posts of Professors and therefore, it is seen that the Guidelines in Standing Order No.2 stand repealed only with regard to the promotions to the posts of Associate Professors and Additional Professors and not to the posts of Professors.
W.P.Nos.28121 & 32250 of 2022 13
17. However, from the documents filed by the respondents 1 and 2 along with the counter affidavit in W.P.No.28121 of 2022, it is noticed that there has been a change in the recruitment process from time to time by the Resolutions passed by the Executive Board. Standing Order No.1 refers only to three posts, i.e., Assistant Professors, Associate Professors and Professors, whereas Standing Order No.2 refers to four tier system, i.e., Assistant Professors, Associate Professors, Additional Professors and Professors. Vide Resolution Nos.1337 and 1338 of 65th meeting of the Executive Board of respondents 1 and 2 held on 02.05.2014, a three Member Committee was constituted to review the guidelines for faculty cadres, qualifications and promotions. The Committee submitted its report on 09.08.2014 and one of the recommendations of the Committee was to abolish the post of Additional Professors as MCI (Medical Council of India) did not have the cadre of Additional Professor. It was also recommended that the existing Additional Professors be re- designated as Professors from the date of their eligibility with pay and allowances as a onetime measure with effect from 01.07.2014 or a date as decided by the Executive Board. It was also recommended that all the posts of Assistant Professors are to be filled up by direct recruitment and W.P.Nos.28121 & 32250 of 2022 14 with regard to the posts of Associate Professors, a maximum of 25% of the posts shall be filled by direct recruitment depending on the need of the department for patient care, super speciality development, teacher requirements to fulfil MCI norms, on the recommendations of the Head of the Department and Dean and whenever a Professor post falls vacant, either by resignation or by superannuation, and if eligible internal candidates are not available, direct recruitment may be allowed based on the recommendations of the Dean and Director. It was further recommended that assessment promotions are to be conducted six monthly and the date of promotion is from the date of eligibility and the recommendations may be made prospectively. The assessment promotions were recommended to be made applicable to Associate Professor and Professor cadres and when a faculty member is eligible for promotion, he/she will be called upon to appear for the interview and if he/she is found suitable, then he/she can be promoted to the higher cadre irrespective of the vacancy in that cadre.
18. It is noted that in its 70th Meeting held on 20.04.2015, the Executive Board has passed Resolution No.1397 resolving to approve the Committee recommendations and implement them. Thereafter, vide W.P.Nos.28121 & 32250 of 2022 15 letter dt.13.06.2016, the Director of the 1st respondent University had intimated that after the Resolution was passed in the 70th meeting of the Executive Board held on 20.04.2015, the institute has issued orders for implementing 3 tier system in NIMS in place of 4 tier system vide Office Order bearing No.HR1/646/2014/F, dt.03.08.2015, but there was unrest prevailing amongst the NIMS faculty on the issue of 3 tier system, the Government has appointed a 5 Member Committee with Dr. Raja Reddy as Chairman vide G.O.Rt.No.543 dt.25.08.2015 and the matter was discussed in the 72nd meeting of the Executive Board held on 14.05.2016 and vide Resolution No.1481, it was resolved to follow 4 tier system for recruitment and promotions of the faculty in NIMS as per previous rules. Therefore, it was intimated that the orders issued vide reference No.1, i.e., Office Order bearing No.HR1/646/2014/F, dt.03.08.2015 was cancelled and it was decided to follow the 4 tier system with immediate effect. A copy of the minutes of the 72nd meeting of the Executive Board held on 14.05.2016 and Resolution No.1481 thereunder is also filed. From the copy of the minutes of the meeting of the 82nd Executive Board held on 23.05.2022, it is noticed that one of the subjects for discussion was on "recruitment and promotion to the faculty and orders to implement". There is a reference to report of the 3 W.P.Nos.28121 & 32250 of 2022 16 Member Committee constituted as per 65th meeting of the Executive Board and its report submitted to the 70th Executive Board meeting for applying Assessment Promotion Scheme to the post of Professor. It was observed that the recent revision was brought to the notice of the Executive Board and the proposal was placed before the Executive Board for perusal and implementation. It was observed that Assistant Professor posts are to be filled by direct recruitment incorporating the Rule of Reservation and Assessment Promotions are to be made applicable to the cadres of Associate Professor, Additional Professor and Professor and the Institute may induct faculty by direct recruitment up to a maximum of 25% of posts in the cadre of Associate professor and professor based on requirement. After considering the above subject, Resolution No.1588 has been passed, i.e., (i) Assessment Promotion Scheme on par with AIIMS, New Delhi is approved for implementation;
(ii) Direct recruitment up to a maximum of 25% of posts in the cadre of Associate Professor and Professor based on requirement is also approved. From a reading of the above minutes of the 82nd meeting of the Executive Board, it appears to be only a reiteration of the position of adopting the Assessment Promotion Scheme on par with AIIMS, New W.P.Nos.28121 & 32250 of 2022 17 Delhi as was being done earlier and not a fresh Resolution to adopt the same.
19. The learned Senior Counsel for the petitioners has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of N.T.Devin Katti and others Vs. Karnataka Public Service Commission and others1 for the proposition that where selection process was initiated by issuing advertisement inviting applications, selection normally should be regulated by the rule or order then prevailing and when the advertisement expressly states that appointment shall be made in accordance with the existing rule or order, subsequent amendment in the existing rule or order will not affect the pending selection process unless contrary intention is expressly or impliedly indicated. Thus, according to the learned counsel for the petitioners, reliance of the respondents 1 and 2 on the Resolution No.1588 dt.23.05.2022, which is passed after issuance of the Circular dt.22.04.2022, is not sustainable.
20. The learned Special Government Pleader appearing for the learned Advocate General for the respondent University has relied upon 1 (1990) 3 SCC 157 W.P.Nos.28121 & 32250 of 2022 18 the Nizam's Institute of Medical Sciences Act, 1989 to demonstrate that it is the Executive Board which has the powers of appointing number of officers and other employees and on such terms and conditions as it may deem fit for carrying out the management and affairs of the Institute and also appointing number of persons and on such terms and conditions as it may deem fit as for the conduct of the studies, investigations, research, teaching or other work undertaken by the Institute and to exercise control and discipline over the employees of the Institute. Therefore, according to him, the Resolutions passed by the Executive Board are binding on respondents 1 and 2 and the introduction of 4 tier system and Assessment Promotion Scheme in proportion to the posts of Associate Professor, Additional Professor and Professor is as per rules in force. He submitted that reference to Standing Order No.1 is only by mistake, but the Notification has been issued strictly in accordance with the Resolutions of the Executive Board.
21. The learned counsel for the implead respondents 3 and 4 in W.P.No.32250 of 2022 has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of P.U. Joshi and others, Union of India and others Vs. the Accountant General, Ahmedabad and W.P.Nos.28121 & 32250 of 2022 19 others2 for the proposition that in respect of constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions, all of them pertain to the field of policy and fall within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. It is further submitted that the Hon'ble Supreme Court has held that there is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
2 Case Nos. Appeal (Civil) 4679-4680 of 1996 and Appeal (Civil) 10983 of 1996 dt.19.12.2002 W.P.Nos.28121 & 32250 of 2022 20
22. The learned counsel for the implead respondents 3 and 4 in W.P.No.32250 of 2022 has further relied upon the judgment of a Division Bench of this Court in the case of D. Srinivasa Rao Vs. The High Court of Judicature at Hyderabad3 for the proposition that when the selection process was cancelled on administrative grounds, there is no requirement of law to specify the administrative ground for which the selection process was cancelled. Therefore, the learned counsel representing the implead respondents 3 and 4 in W.P.No.32250 of 2022 submitted that the petitioners cannot challenge the cancellation of the earlier Notification dt.04.02.2022 and have no right to question the method of selection adopted by respondents 1 and 2 University.
23. In view of the above judicial precedents and also the factual matrix, it is evident that after issuance of Standing Order No.2 and also Standing Order No.35, there have been series of Executive Board meetings and Resolutions have been passed amending the Guidelines for appointment and promotion to the posts of Assistant Professors, Associate Professors, Additional Professors and Professors. By the said Resolutions, though Standing Order No.1 has not exactly been revived, 3 W.P.No.42874 of 2016 dt.09.08.2019 W.P.Nos.28121 & 32250 of 2022 21 the provisions thereunder have been revived and therefore, respondents 1 and 2 University might have issued the Internal Circular dt.22.04.2022 referring to Standing Order No.1. Even if the Standing Order No.1 is wrongly referred to and is not applicable to the appointments to be made to the post of Professors, this Court finds that the extant rules provided for Assessment Promotion Scheme to be applicable and hence, the action of the respondent University in issuing the Internal Circular dt.22.04.2022 inviting applications from the eligible candidates internally cannot be found fault with. In view of the same, the Writ Petitions are liable to be dismissed, particularly in the light of the submissions of the respondents 1 and 2 that both the writ petitioners did not fulfil the eligibility criteria for appointment as Professors, even if a public notification were to be issued.
24. The learned counsel for the respondents 3 and 4 in W.P.No.32250 of 2022 has submitted that due to the interim order of this Court dt.10.08.2022, the promotion of only these respondents has been stayed, whereas in the other departments, the promotions have been given subject to the outcome of W.P.No.32250 of 2022. He submitted that respondents 1 and 2 in W.P.No.32250 of 2022 may be directed to grant W.P.Nos.28121 & 32250 of 2022 22 promotions to respondents 3 and 4 herein with effect from the date of their eligibility, i.e., the date on which their interviews have been conducted and they were found to be eligible.
25. Therefore, respondents 1 and 2 in W.P.No.32250 of 2022 are directed to consider the case of respondents 3 and 4 whose possible promotion has been stayed by virtue of the interim order of this Court dt.10.08.2022 which was extended from time to time and to pass orders accordingly.
26. The Writ Petitions are accordingly dismissed. No order as to costs.
27. Pending miscellaneous petitions, if any, in both the Writ Petitions shall also stand dismissed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 07.11.2022 Svv