Karnataka High Court

Dr C Ravishankar vs State Of Karnataka on 10 October, 2022

Bench: Acting Chief Justice, S Vishwajith Shetty

                           1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF OCTOBER, 2022

                       PRESENT

             THE HON'BLE MR. ALOK ARADHE
                 ACTING CHIEF JUSTICE

                         AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

             W.A.No.1337/2021 (S-PRO)

BETWEEN:

DR. C.RAVISHANKAR
S/O LATE T.S. CHANDRASHEKAR RAO
AGED ABOUT 42 YEARS
RESIDING AT NO.7TH MAIN
BTM II STAGE, BANGALORE - 560 076.          ...APPELLANT

(BY SRI D.R. RAVISHANKAR, SR. COUNSEL FOR
    SRI S.SARAVANA, ADV.)

AND:

1.     STATE OF KARNATAKA
       BY ITS SECRETARY TO THE
       DEPARTMENT OF MEDICAL
       EDUCATION, M.S. BUILDINGS
       BANGALORE - 560 001.

2.     THE BANGALORE MEDICAL COLELGE
       AND RESEARCH INSTITUTE
       BANGALORE AND AUTONOMOUS BODY
       HAVING ITS REGISTERED OFFICE
       AT RAJARAM MOHAN ROY ROAD
       AMBEDKAR VEEDHI, SAMPANGI RAMA
       NAGAR, BENGALURU
       KARNATAKA - 560 002
       REP. BY ITS DEAN CUM DIRECTOR.
                              2

3.   DR. KARTHIK
     ASST PROFESSOR
     DEPARTMENT OF ENT
     THE BANGALORE MEDICAL
     COLLEGE AND RESEARCH INSTITUTE
     BANGALORE - 560 072.           ...RESPONDENTS

(BY PROF. RAVI VARMA KUMAR, SR. COUNSEL FOR
    SRI N.K RAMESH, ADV. FOR C/R-3;
    SRI S.S. MAHENDRA, AGA FOR R-1;
    SRI P.S MALIPATIL, ADV., FOR R-2)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDERS OF THE LEARNED SINGLE JUDGE PASSED IN W.P.
NO. 53351/2014, DATED 29.09.2021 AND PASSED SUCH
OTHER ORDERS AS DEEMED APPROPRIATE.

    THIS APPEAL COMING ON FOR HEARING THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:

                    JUDGMENT

The instant intra court appeal is filed by the

unsuccessful petitioner assailing the order dated

29.09.2021 passed by the learned Single Judge of this

Court in W.P.No.53351/2014.

2. Heard the learned Senior Counsel appearing for

the parties and also perused the material on record.

3. Brief facts of the case as revealed from the

records are, the appellant as well as respondent no.3

were directly recruited as Medical Officers in Health and

Family Welfare Department in the year 2002 and 2004,

respectively. Subsequently, by virtue of the Government

Order and change of cadre, the appellant as well as

respondent no.3 were deputed to work as Lecturers in

respondent no.2-Institute with effect from 13.05.2005 &

29.07.2004, respectively. While they were working as

Lecturers in respondent no.2-Institute, concurrence was

accorded for their absorption in Medical Education

Department as Lecturers in respondent no.2-Institute. In

respect of the appellant, the order of absorption was

issued on 20.10.2005, whereas in respect of respondent

no.3, order of absorption was issued on 18.06.2007.

Respondent no.3 was thereafter promoted to the post of

Associate Professor on 17.10.2007 while the appellant

was promoted to the post of Associate Professor on

29.10.2007. Subsequently, in the year 2012, a

corrigendum was issued on 08.10.2012 notifying that the

order dated 29.10.2007 promoting the appellant to the

post of Associate Professor should be read as "with

retrospective effect from 17.10.2007" and this

corrigendum was issued on the representation of the

appellant dated 24.08.2012. Thereafter, the said

corrigendum dated 08.10.2012 was withdrawn on

03.11.2012. Two years thereafter, the seniority list of

Associate Professors of respondent no.2-Institute was

published in the Official Memorandum dated 18.07.2014

wherein respondent no.3 was placed at Sl. No.1 and the

appellant was placed at Sl. No.2 and this seniority list

was based on their date of entry into cadre of Associate

Professors. Challenging the said ranking assigned in the

seniority list as well as withdrawal of the corrigendum

dated 08.10.2012, the appellant had approached this

Court in W.P.No.53351/2014. The learned Single Judge

of this Court vide the order impugned has dismissed the

said writ petition and being aggrieved by the same, the

petitioner in the writ petition has preferred this intra

court appeal.

4. Sri D.R.Ravishankar, learned Senior Counsel

appearing for the appellant submits that respondent no.1

had erroneously withdrawn the corrigendum dated

08.10.2012, wherein the appellant was promoted as

Associate Professor with retrospective effect from

17.10.2007. He submits that the appellant is senior to

respondent no.3 since he was absorbed into service of

respondent no.2-Institute on 20.10.2005, whereas

respondent no.3 was absorbed on 18.06.2007. He

submits that in the order of absorption, it was made clear

that respondent no.3 would be placed at the bottom of

the seniority of lecturers as on the date of absorption. He

further submits that the appellant's experience as a

resident doctor is required to be taken into consideration

for the purpose of qualifying service and in this regard,

he has placed reliance on the Medical Council of India

under Minimum Qualification for Teachers in Medical

Institutions Regulations, 1998 (hereinafter referred to as

'1998 Regulations') and submits that respondent no.1 is

required to follow the 1998 Regulations and cannot

prescribe its own regulations contrary to the same. In

support of his arguments, he has placed reliance on the

judgment of the Hon'ble Supreme Court in the case of

SUDHIR.N. & OTHERS VS STATE OF KERALA & OTHERS1.

5. Per contra, learned Senior Counsel appearing for

respondent no.3 submits that the appellant became

eligible for promotion to the post of Associate Professor

(2015)6 SCC 685

only on 13.05.2008, whereas respondent no.3 was

eligible on 29.07.2007 itself. He submits that the order

dated 17.10.2007 promoting respondent no.3 as

Associate Professor remains unchallenged till date. He

submits that respondent no.2-Institute was declared

autonomous on 26.08.2008, and thereafter, the

Government becomes functus officio. He also refers to

the order dated 26.08.2008 absorbing the appellant as

well as respondent no.3 as teaching staff of respondent

no.2-Institute, wherein respondent no.3 is placed above

the appellant. He submits that since the Government had

become functus officio, it had no authority to issue the

corrigendum in the year 2014, and therefore, it was

rightly recalled. He refers to the Karnataka State Civil

Services (Regulation of Promotion, Pay and Pension) Act,

1973 (for short, 'the Act of 1973') and submits that the

said Act prohibits retrospective promotion. He also refers

to the Karnataka State Civil Service (Regulations of

Promotion, Pay and Pension) Rules, 1978 (for short,

'1978 Rules') framed under the said Act and submits that

contingencies provided under Rule 2 for promoting a civil

servant with retrospective date would not be applicable

to the appellant, and therefore, under any circumstances,

the appellant's prayer for retrospective promotion cannot

be entertained. In support of his contention, he has relied

upon the judgment of the Hon'ble Supreme Court in the

case of K.NARAYAN & OTHERS VS STATE OF KARNATAKA

& OTHERS2. He further submits that the appellant is not

entitled for the prayers sought by him as the writ petition

is hit by delay and latches. In support of this argument of

his, he has relied upon the judgment of the Hon'ble

Supreme Court in the case of P.S.SADASIVASWAMY VS

STATE OF TAMIL NADU3. He also submits that the

corrigendum dated 08.10.2012 was issued based on the

noting recorded in the file by the then Minister and such

a corrigendum is not sustainable in law, and accordingly,

the same was withdrawn by the State Government. In

support of this contention of his, he has relied upon the

judgment of the Hon'ble Supreme Court in the case of

UNION OF INDIA & ANOTHER VS ASHOK KUMAR

AGGARWAL4. He further submits that the judgment in

Sudhir's case supra cannot be made applicable to the

(1994)1 SCC 44.

(1975)1 SCC 152

(2013)16 SCC 147

facts of the present case as the appointment in the

present case is for a civil post and whereas in Sudhir's

case, it was Medical Education.

6. In reply, learned Senior Counsel for the

appellant submitted that the appellant was throughout

placed ahead of respondent no.3 in the seniority list till

the year 2014, and therefore, there is no delay in filing

the writ petition. He also submits that respondent no.2-

Institute is an autonomous institution, and therefore, the

Act of 1973 would not be applicable.

7. The undisputed facts of the case are, the

appellant and respondent no.3 were recruited as Medical

Officers in Health and Family Welfare Department in the

year 2002 & 2004, respectively. Thereafter, they were

deputed to work as Lecturers in the respondent no.2-

Institute with effect from 13.05.2005 & 29.07.2004,

respectively. The appellant was promoted to the post of

Associate Professor on 29.10.2007, whereas respondent

no.3 was promoted to the post of Associate Professor on

17.10.2007.

8. For the purpose of promotion to the post of

Associate Professor from the post of Lecturer, the Cadre

and Recruitment Rules framed by the State provide that

the candidate should have a teaching experience of not

less than three years in the post of Lecturer or Lecturer-

cum-Registrar of any higher post. The relevant Rule

reads as follows:

"For Promotion and Direct Recruitment Qualifications :

(1) Should be the holder of a Degree in Medicine of any University established by Law in India; and

(2) Should have any of the post-graduate qualification in Oto-Rhino-Laryngology specified in Annexure-A or B; and

(3) Should have teaching experience in Oto- Rhino-Laryngology not less than three years in a post of Lecturer or Lecturer-cum-Registrar of any higher post."

9. The aforesaid Rule is not in conflict with the

1998 Regulations as the same provides for a higher

experience than prescribed under 1998 Regulations with

an obvious intention to maintain higher standard of

teaching. The Cadre & Recruitment Rules does not

recognize the experience as a resident doctor and the

same cannot be found fault with. Admittedly, the

appellant has worked as a Lecturer in respondent no.2-

Institute only with effect from 13.05.2005 and as on the

date of promotion of respondent no.3 to the post of

Associate Professor i.e., 17.10.2017, the appellant had

not completed three years of experience in the post of

Lecturer.

10. The contention of the appellant that his

experience as a Resident Medical Officer is also required

to be taken in to consideration following the 1998

Regulations, requires to be rejected for the reason that

the minimum qualification has been prescribed by the

State under its Cadre & Recruitment Rules and the same

being not in conflict with the UGC Regulations, no fault

can be found with the same. The experience gained as a

resident doctor cannot be equated with the experience

gained as a Lecturer since the experience gained as a

resident doctor is while undergoing Post Graduation in

the relevant subject and a Post Graduation Degree is a

minimum requirement for the purpose of appointment as

a Lecturer.

11. Learned Senior Counsel for the appellant has

placed reliance on the judgment in Sudhir's case supra,

to contend that 1998 Regulations would prevail over the

Cadre & Recruitment Rules of the State. In Sudhir's case

supra, the validity of certain provisions of Kerala Medical

Officers admission to Post Graduate Courses under the

Service Quota Act, 2008, was challenged on the ground

that the same was contrary to the 1998 Regulations,

whereas in the present case, the Cadre & Recruitment

Rules of the State is not contrary to the 1998

Regulations, and in fact it has fixed a higher standard of

qualification for the purpose of promotion to the post of

Associate Professors from the post of Lecturers.

Therefore, the principles laid down in Sudhir's case supra

has no application to the present case.

12. Further, undisputedly, respondent no.3 was

promoted to the post of Associate Professor on

17.10.2007, whereas the appellant has been promoted to

the post of Associate Professor on 29.10.2007. For the

purpose of considering the seniority between the

appellant and respondent no.3, the date of promotion to

the cadre of Associate Professor becomes relevant and

undisputedly, respondent no.3 is senior to the appellant.

13. Section 3 of the Act of 1973 provides for

Promotions, etc., of civil servants. The same reads as

under:

"3. Promotions, etc., of civil servants

- (1) No civil servant shall-

[(a) be entitled to promotion to any post or office with effect from a retrospective date, except and to the extent specified in the rules made under this Act;]

(b) only on the ground of his seniority in a seniority list, be promoted to any post or office unless the authority competent to promote determines his eligibility and promotes him by a written order to officiate in such post or office; and no such civil servant shall save as provided in Section 9, be entitled to continue in such promoted post or office unless the said authority assesses the work of such civil servant in such post or office and declares by a written order that he had satisfactorily completed his officiation;

(c) when promoted to officiate in any post or office save as provided in Section 9, be entitled to be considered for promotion to the next higher post or office unless he is declared to have satisfactorily completed his officiation in the first promoted post or office.

(2) In matters not specified in sub-

section (1), the provisions contained in Sections 4, 5, 6, 7 and 8 shall mutatis mutandis, be applicable."

14. A reading of the same would make it clear that

there is a prohibition for promotion to any post or office

with effect from a retrospective date, except and to the

extent specified in the Rules made under the said Act of

1973.

15. Rule 2 of the 1978 Rules reads as under:

"2. Promotion.-Promotion of a civil servant may be made with effect from a retrospective date.-

(1) if his claim for promotion.-

[(a) was withheld on account of disciplinary proceedings or criminal prosecution of both pending against him and he is exonerated or acquitted subsequently, or]

(b) was not considered on the ground that he was working in some other department on deputation or otherwise; or

(c) was not considered on the ground that he was wrongly or incorrectly described in the provisional or final inter-State Seniority List or gradation list;[or]

[(d) was passed over on account of adverse remarks in his Confidential Reports which were expunged subsequently.]

(2) If, while operating the gradation list or the provisional inter-State Seniority List or any other inter-State Seniority List not being a final one, he was not considered for promotion for no justifiable reason [x x x x x]; or

(3) If, while being eligible according to his seniority in the list that was in force and otherwise fit for promotion according to Cadre and Recruitment Rules he had only been placed in independent charge of the post by the Competent Authority and has discharged the duties of the said post:

[Provided that if a civil servant on deputation to some other department and

placed in independent charge of a post in the parent Department was prevented from discharging the duties of the post on the ground that his services on deputation are essential in public interest, he shall also be considered under this sub-rule from the date his junior is considered for promotion.]"

16. The appellant does not fit into any one of the

aforesaid contingencies provided under Rule 2 of the

1978 Rules. The Hon'ble Supreme in K.Narayan's case

supra at paragraph No.7 has observed as follows:

"7. Rules operate prospectively.

Retrospectivity is an exception. Even where the stature permits framing of rule with retrospective effect the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right. The rule-making authority should not be permitted normally to act in the past. The impugned rule made in 1985 permitting appointment by transfer and making it operative from 1976 subject to availability of vacancy in effect results in appointing a Junior Engineers in 1986 with effect from 1976. Retrospectivity of the rules is a camouflage for appointment of Junior Engineers from a back date. In our opinion the rule operates viciously against all those Assistant Engineers who were appointed between 1976 to 1985. In Ex-Capt. K.C. Arora v. State of Haryana and P.D. Aggarwal v. state of U.P. it was held by this Court that the President or Governor cannot make such retrospective rules under Article 309 of the Constitution as contravene Articles 14, 16 or 311 and affect vested right of an employee. Even in

B.S. Yadav v. State of Haryana where the power to frame rules retrospectively was upheld it was observed: (SCC p. 557, para 76)

"Since the Governor exercises a legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case."

As seen earlier there is no nexus between framing a rule permitting appointment by transfer and making it retrospective with effect from 1976. Appointing a person to a higher post in a different cadre in which he has never worked is violative of constitutional guarantee of those who are working in the cadre. It is against basic principle of recruitment to any service."

17. Even though the provisions of the Act of 1973

and 1978 Rules may not be strictly made applicable to

the case on hand, the law regarding promotion with

retrospective effect has been laid down by the Hon'ble

Supreme Court in K.Narayan's case, wherein it is held

that promoting a person with retrospective effect is

against the basic principle of recruitment to any service.

18. The ground of delay and latches and the

ground that no reliance can be placed on the noting

recorded in the file for the purpose of issuing any

order/corrigendum, was not raised by respondent no.3

before the learned Single Judge in the writ petition, and