Karnataka High Court
Dr. Sunilkumar Biradar vs Gulbarga Institution Of Medical ... on 5 December, 2023
Author: R.Devdas
Bench: R.Devdas
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WA No.200041 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
WRIT APPEAL NO.200041 OF 2020 (S-RES)
BETWEEN:
DR. SUNILKUMAR BIRADAR
AGED 43 YEARS
S/O KALYANAPPA BIRADAR
OCC: ASSOCIATE PROFESSOR
DEPARTMENT OF MICROBIOLOGY
M.R. MEDICAL COLLEGE
SEDAM ROAD
KALABURAGI - 585 105
...APPELLANT
(BY SRI. H.S. SUBRAMANYA JOIS, SENIOR COUNSEL FOR
Digitally signed by
VARSHA N SMT.HEMA L. KULAKARNI AND
RASALKAR
SRI. MANJUNATH GINNI, ADVOCATES)
Location: High
Court Of Karnataka
AND:
1. GULBARGA INSTITUTION OF MEDICAL SCIENCES
REPRESENTED BY ITS
DIRECTOR-CUM-DEAN
DISTRICT GOVERNMENT HOSPITAL PREMISES
KALABURAGI - 585 105
2. DR.UMESH S.R.
AGED 41 YEARS,
M.R. MEDICAL COLLEGE,
KALABURAGI - 585 105
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WA No.200041 of 2020
3. DR. AJAY KUMAR G.
AGED 43 YEARS
M.R. MEDICAL COLLEGE
KALABURAGI - 585 105
4. DR.MANJUNATH
AGED 40 YEARS
S/O. PARAMESHWARAPPA SALIMANI
ASSOCIATE PROFESSOR
R/O NEW AMARESHWARA HARDWARES
SHOP NO.4, TMC COMPLEX
OPP: TMC OFFICE
LINGASUGUR -585 122
DIST: RAICHUR
...RESPONDENTS
(BY SRI. SACHIN M. MAHAJAN, ADVOCATE FOR R1;
SRI. VIKRAM VIJAY KUMAR, ADVOCATE FOR R2 AND R3;
SRI. D.P. AMBEKAR, ADVOCATE FOR R4)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT-1961, PRAYING TO SET-ASIDE
THE FINAL ORDER DATED 27.11.2019 RENDERED IN
W.P.NO.206532/2015 (S-RES), IN SO FAR AS THE DIRECTIONS
ISSUED TO THE 1ST RESPONDENT TO CALL FOR A FRESH
NOTIFICATION FOR THE POST OF PROFESSOR IN
MICROBIOLOGY AS UNSUSTAINABLE IN LAW; AND
CONSEQUENTLY ISSUE A DIRECTION IN TERMS OF PRAYER
NO.(II), PARAGRAPH 20 OF THE MEMORANDUM OF WRIT
PETITION THAT THE 1ST RESPONDENT BE DIRECTED TO
APPOINT THE APPELLANT AS PROFESSOR IN MICROBIOLOGY
AT THE 1ST RESPONDENT INSTITUTE, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
R.DEVDAS J., DELIVERED THE FOLLOWING:
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WA No.200041 of 2020
JUDGMENT
R. DEVDAS J., (ORAL):
Though this matter was disposed of earlier by order
dated 09.02.2021, one Dr.Rajashree J. Ingin filed a
Special Leave Petition in Civil Appeal No.2236/2023 before
the Hon'ble Supreme Court calling in question the orders
passed by this Court. Similarly, two other respondents
before this Court viz., Dr.Umesh S.R., and Dr.Ajay Kumar
G., also filed Special Leave Petitions. The appellant herein
also filed a Special Leave Petition and all the four Special
Leave Petitions which were assigned Civil Appeal numbers
were taken up together by the Hon'ble Supreme Court for
final disposal and were disposed of by order dated
28.03.2023. The Hon'ble Supreme Court held that it is
unable to find any justification or logic that this Court
chose to upset the entire selection process while dealing
with the grievances raised by the writ petitioner in relation
to the selection process concerning the post of Professor in
Microbiology only. It was also noticed that Dr.Umesh S.R.,
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and Dr. Ajay Kumar G., who were not even the candidates
for the post of Professor in Microbiology were
unnecessarily joined as respondents in the writ petition
and were continued as party respondents before the
Division Bench in the intra-court appeal. The Hon'ble
Supreme Court held that said two persons were neither
necessary nor proper parties to the writ petitions, as was
conceded by the learned Senior Counsel appearing for the
writ petitioners. Similarly, it was found that Dr.Rajashree
J. Ingin was not even a party to the writ petition.
Consequently, the Hon'ble Supreme Court opined that the
three appeals filed by Dr.Rajashree J. Ingin, Dr.Umesh
S.R., and Dr.Ajay Kumar G., who were not the candidates
in the selection process for the post of Professor in
Microbiology deserved to be allowed. Accordingly, the
three appeals filed by the said persons were allowed and
the selection process and the results declared by the
respondent-Institution insofar as all the other subjects
other than Microbiology were upheld. However, insofar as
the subject matter of this writ appeal was concerned,
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namely, the post of Professor in Microbiology, the Hon'ble
Supreme Court held that this Court was required to
reconsider the matter afresh only in respect of the said
post of Professor in Microbiology. In that view of the
matter, the Hon'ble Supreme Court directed that the writ
petitioner Dr.Sunilkumar Biradar as also the respondent-
Dr.Manjunath, who were represented before the Hon'ble
Supreme Court, were required to appear before this Court
on restoration of the intra-Court appeal and thereafter it
was directed that this Court should consider the issue
afresh and decide the matter at the earliest, without any
further delay.
2. At the beginning of the hearing, learned Counsel
Sri.D.P.Ambekar appearing on behalf of Dr.Manjunath,
respondent No.4 filed a memo of retirement while stating
that as directed by this Court on the previous date of
hearing, the learned Counsel made a communication dated
24.11.2023 to respondent No.4 bringing to his notice the
next date of hearing while requesting respondent No.4 to
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make alternative arrangements to ensure that there is
representation for respondent No.4 before this Court. A
copy of the communication along with acknowledgement
for having sent the Registered Post is also filed along with
the memo.
3. At this juncture, learned Senior Counsel
Sri.H.S.Subramanya Jois, appearing for the learned
Counsel for the appellant would submit on instructions that
respondent No.4 has been appointed at Koppal Institute of
Medical Sciences, Koppal. In fact, it appears that the wife
of respondent No.4 is also appointed in the same
institution and therefore, respondent No.4 may not be
interested in pursing the matter. Learned Senior Counsel
would also submit that the writ petition filed by
Dr.Manjunath in W.P.Nos.201462-201463/2016 was
dismissed by the learned Single Judge by order dated
27.11.2019. Respondent No.4 did not chose to challenge
the orders passed by the learned Single Judge and
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therefore that is also an indicator that respondent No.4
may not be interested in pursuing the matter.
4. Learned Senior Counsel Sri H.S.Subramanya Jois
would submit that in the orders passed by the Hon'ble
Supreme Court, it has noticed the factual aspects in
paragraph No.7. It has been noticed that initially marks
awarded to the appellant herein was 7.75 out of 15 and
respondent No.4 - Dr.Manjunath was awarded 5.10 out of
15. On a complaint made by the respondent No.4-
Dr.Manjunath, the respondent No.1 - Institution proceeded
to reduce the marks awarded to the appellant from 7.75 to
5.25. Being aggrieved by the said reduction of the marks,
the appellant herein approached this Court by filing a writ
petition. The learned Single Judge allowed the writ petition
while setting aside the selection process insofar as the
post of Professor in Microbiology is concerned. The
respondent No.1 - Institution was directed to call for a
fresh notification to the post of Professor in Microbiology in
terms of the reservation-cum-roster as provided in
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Annexure-R1 dated 19.08.2015 and Corrigendum dated
21.08.2015 and further directed that the Institution shall
complete the process of the selection within three months
from the date of receipt of a copy of the order. Learned
Senior Counsel would submit that the appellant herein was
aggrieved with a portion of the order where it was directed
that a fresh notification should be issued to the post of
Professor in Microbiology, therefore, a writ appeal was
filed.
5. Learned Senior Counsel would submit that during
the course of the proceedings before the learned Single
Judge and before this Court, an interim order has been
passed directing the respondent No.1 - Institution not to
appoint any other person to the post of Professor in
Microbiology. Even before the Hon'ble Supreme Court, the
said directions have been continued and therefore the
respondent No.1- Institution has not appointed any person
to the said post.
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6. During the process of hearing, this Court found
from the material available on record which were also not
disputed at the hands of the respondent No.1 - Institution
that even after reduction of the marks of the appellant
from 7.75 to 5.25, nevertheless, the appellant herein was
still at the top of the list, since the only other candidate
who was in fray i.e., Dr. Manjunath had awarded 5.10
marks out of 15. On the basis of the material available on
record and the statement of objections filed at the hands
of the respondent No.1- Institution, it is clear that the
respondent No.1 - Institution proceeded to reduce the
marks of the appellant herein only and no other alteration
was done to the marks awarded to the other candidates,
including the marks awarded to Dr.Manjunath which
remained at 5.10 even after the alteration of the marks
made in respect of the appellant herein. When this aspect
of the matter was pondered over, this Court finds that the
appellant herein having remained at the top of the list
even after reduction of the marks, did not have serious
grievance to approached this Court. Even as per the
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select list and the marks awarded by the respondent No.1,
the appellant herein continued to be at the top of the list
insofar as Microbiology is concerned.
7. In terms of Annexure-E, which was the provisional
marks list announced on 28.09.2015 only 05 candidates
had applied for the post of Professor in Microbiology and
out of 05 candidates, 01 candidate was declared not
eligible. In respect of the other 04 candidates, the
appellant herein namely, Dr. Sunilkumar Biradar was
awarded 7.75 marks; Dr. Manjunath P. Salimani
(respondent No.4) was awarded 5.10 marks; Dr. Suresh
Sonth was awarded 4.50 marks; and Dr. Siddesh B. Sirwar
was awarded 4.13 marks. In terms of Annexure-F which
was subsequent provisional select list, we find only 03
names insofar as Microbiology is concerned. We find the
names of the appellant - Dr. Sunilkumar Biradar, who was
awarded 5.25 marks out of 15; Dr. Manjunath P.Salimani
awarded 5.10 marks and Dr. Siddesh B. Sirwar awarded
4.13 marks.
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8. Having regard to this undisputed fact, this Court
is of the considered opinion that there was no need for the
learned Single Judge to have directed issuance of a fresh
notification for the selection to the post of Professor in
Microbiology. It would suffice if a direction is issued to the
respondent No.1 - Institution to proceed to announce the
list of the selected candidate in terms of the marks already
awarded by the respondent No.1- Institution.
9. However, the learned Senior Counsel would submit
on instructions from the appellant who is present before
the Court that the appellant will not seek for seniority from
the date of the order of appointment of the other
candidates nor will the appellant seek arrears of salary, if
he is directing to be appointed. However, in order to
render justice to the appellant, the learned Senior Counsel
would submit that the appellant should be given the
fitment to ensure that he would be able to draw salary and
the subsequent increments on par with the other
candidates.
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10. However, learned counsel Sri Sachin M. Mahajan
appearing for the respondent No.1-Institution would
submit that since the appellant has not worked and
approached this Court, there being no fault on the part of
the respondent No.1-Institution, any such benefit as was
submitted by the learned Senior Counsel should not be
given to the appellant.
11. Insofar as the submission of the learned Senior
Counsel regarding the grant of fitment to the appellant is
concerned, we are of the considered opinion that the
submissions made by the learned Senior Counsel is
reasonable and it would not harm the interest of any of
the respondents or any of the other candidates who are
selected and appointed by the respondent No.1-
Institution.
12. Consequently, we proceed to allow the writ
appeal while modifying the orders passed by the learned
Single Judge. A direction is hereby issued to the
respondent No.1-Institution to proceed to announce the
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list of selected candidates in terms of the provisional select
list at Annexure-F, for the post of Professor in
Microbiology. The list shall be announced as expeditiously
as possible and at any rate within a period of four weeks
from the date of receipt of a copy of this order.
13. The appellant, on appointment shall be given
fitment to ensure that he would be able to draw salary on
par with the other candidates who were selected and
appointed in the year 2015. However, the appellant shall
not be entitled to seek seniority over the other selected
candidates who are appointed in the year 2015 and he
shall not be entitled for arrears of salary, as conceded by
the appellant who is present before the Court.
Sd/-
JUDGE
Sd/-
JUDGE
DL,BL
Ct:VK
