Karnataka High Court

Dr Vijay Kumar C R vs The State Of Karnataka on 26 July, 2023

Bench: E.S.Indiresh

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                                                         NC: 2023:KHC:25916
                                                             WP NO.1256 OF 2023



                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 26TH DAY OF JULY, 2023

                                                BEFORE
                               THE HON'BLE MR. JUSTICE E.S. INDIRESH
                               WRIT PETITION NO.1256 OF 2023 (S-RES)
                      BETWEEN:
                      DR. VIJAY KUMAR C.R.
                      S/O VEERABHADARAPPA
                      AGED ABOUT 46 YEARS,
                      RESIDING AT: NO .24, BALAJI LAYOUT,
                      CHOLANAYAKANAHALLI,
                      ANAND NAGAR, R.T. NAGAR,
                      BENGALUU - 560 032.

                                                                   ...PETITIONER
                      (BY SRI. MUHAMMAD SHAMIL ,ADVOCATE)

                      AND:

                      1.    THE STATE OF KARNATAKA
                            REP. BY THE SECRETARY,
                            DEPARTMENT OF PERSONNEL AND
                            ADMINISTRATIVE REFORMS,
                            VIDHANA SOUDHA,
Digitally signed by         DR. AMBEDKAR ROAD.
CHAYA S A
Location: High
                            BENGALURU - 560 001.
Court of Karnataka

                      2.    SHRI ATAL BIHARI VAJPAYEE MEDICAL COLLEGE
                            AND RESEARCH INSTITUTE
                            SHIVAJINAGAR,
                            BENGALURU - 560 00.
                            REP. BY THE DIRECTOR-CUM-DEAN.

                      3.    DR. KUSUMA NAIK M.V.
                            AGED ABOUT 42 YEARS,
                            RESIDING AT: NO.B3, 2ND FLOOR,
                            MAITREE APARTMENTS, NO.96,
                            6TH MAIN, MALLESHWARAM,
                            BENGALURU - 560 003.
                                    -2-
                                         NC: 2023:KHC:25916
                                             WP NO.1256 OF 2023



    CURRENTLY WORKING AS:
    ASSISTANT PROFESSOR,
    ESI MEDICAL COLLEGE,
    RAJAJINAGAR,
    BENGALURU - 560 010.

                                                   ...RESPONDENTS
(BY SRI. M.S. NAGARAJA, AGA FOR R1 & R2;
 SRI. M.S. NAGARAJA, AGA FOR R1 AND R2;
 SMT. M.C. NAGASHREE, ADVOCATE FOR R2;
 SRI. L. SIDDAIAH & SMT. ASHWINI OBULESH,
 ADVOCATE FOR R3)

     THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE FINAL SELECTION LIST DATED 04TH JANUARY, 2023 VIDE
ANNEXURE-M ISSUED BY THE RESPONDENT NO.2 INSOFAR AS
IT RELATES TO THE SELECTION OF RESPONDENT NO.3 TO THE
POST OF PROFESSOR IN THE DEPARTMENT OF OBSTETRICS
AND GYNECOLOGY IN THE RESPONDENT NO.2-INSTITUTION;
QUASH THE GOVERNMENT ORDER DATED 06TH JUNE, 2005
VIDE ANNEXURE-N ISSUED BY THE RESPONENT NO.1; DIRECT
THE RESPONDENT NO.2 TO SELECT AND APPOINT THE
PETITIONER TO THE POST OF PROFESSOR IN THE
DEPARTMENT OF OBSTETRICS AND GYNECOLOGY IN RELATION
TO THE VACANCY NOTIFIED IN THE NOTIFICATION DATED 05TH
AUGUST, 2022 VIDE ANNEXURES 'D' AND 'E' IN THE
RESPONDENT NO.2-INSTITUTION; AND ETC.

     THIS PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

The petitioner herein is challenging the final selection list

dated 04th January, 2023 (Annexure-M) issued by the

respondent No.2 in respect selection of respondent No.3 herein

for the post of Professor in Department of Obstetrics and

Gynecology in the respondent No.2-Institution and Government

NC: 2023:KHC:25916 WP NO.1256 OF 2023

Order dated 06th June, 2005 (Annexure-N); inter-alia sought

for direction to the respondent No.2 to select and appoint the

petitioner to the post of Professor in the Department of

Obstetrics and Gynecology in relation to the vacancy notified in

Notification dated 05th August, 2022 (Annexures 'D' and 'E').

2. The relevant facts for adjudication of this writ petition

are that the petitioner claims to be the Post-Graduate in

Medicine with Master of Surgery in the subject of Obstetrics

and Gynecology and is working as Professor in the Department

of Obstetrics and Gynecology at Ambedkar Medical College,

Bengaluru. The respondent No.2-Institution has issued

Notification dated 05th August, 2022 (Annexure-D), inviting

applications from eligible candidates for filling-up of the post of

Professor and Associate Professor in various Departments

including for the post of Professor in the Department of

Obstetrics and Gynecology.

3. It is the case of the petitioner that the post notified in

respect of the Department of Obstetrics and Gynecology is a

solitary post, and therefore, the same cannot be reserved.

Hence, the petitioner has presented this writ petition,

NC: 2023:KHC:25916 WP NO.1256 OF 2023

challenging final selection list dated 04th January, 2023

(Annexure-M).

4. Heard Sri. Muhammad Shamil, learned counsel

appearing for the petitioner; Sri. M.S. Nagaraja, learned

Additional Government Advocate appearing for respondent

No.1; Smt. M.C. Nagashree, learned counsel appearing for the

respondent No.2; and Sri. L. Siddaiah and Smt. Ashwini

Obulesh, learned counsel appearing for the respondent No.3.

5. Sri. Muhammad Shamil, learned counsel appearing for

the petitioner contended that the subject in which the

notification has been issued insofar as appointment for the post

of Professor in the Department of Obstetrics and Gynecology in

the respondent No.2-Institution is a solitary post and therefore,

same cannot be reserved. Accordingly, he sought for

interference of this Court.

6. Per contra, Sri. M.S. Nagaraja, learned Additional

Government Advocate appearing for the respondent No.1

sought to justify the action of the respondent No.2-Institution.

7. Smt. M.C. Nagashree, learned counsel appearing for

the respondent No.2 submits that the post of Professor itself is

NC: 2023:KHC:25916 WP NO.1256 OF 2023

a cadre and therefore, it is not a solitary post. Accordingly, she

sought to justify the action of the respondent No.2, issuing the

final selection list dated 04th January, 2023 (Annexure-M).

8. Sri. Siddaiah L., and Smt. Ashwini Obulesh, learned

counsel appearing for the respondent No.3 submit that there is

rotation of roster insofar as appointment for the post of

Professor in the respondent No.2-Institution is concerned and

therefore, the concept of solitary post is not applicable to the

case on hand.

9. Smt. Ashwini Obulesh, learned counsel appearing for

the respondent No.3 further contended that the post of

Professor itself constitute a cadre and therefore, the judgment

rendered by Hon'ble Apex Court in the case of R.R. INAMDAR

vs. STATE OF KARNATAKA AND OTHERS reported in (2020)

19 SCC 543 is not applicable to the facts on hand.

10. Having heard the learned counsel appearing for the

parties and perusal of Notification dated 05th August, 2022

(Annexures 'D' and 'E') issued by the respondent No.2 would

indicate that six posts of Professor had been notified for

appointment and in this regard perusal of the notification

NC: 2023:KHC:25916 WP NO.1256 OF 2023

produced at Annexure-E would indicate that, there are six

various disciplines and one post of Professor in each discipline

enumerated in the said Notification. The Hon'ble Apex Court in

the case of R.R. INAMDAR (supra) at paragraphs 8 and 11

held as follows:

8. We are unable to accept the submission for more than one reason. The circular dated 31 May 1991 is prior to the decision of the Constitution Bench in Post Graduate Institute of Medical Education and Research (supra). As a matter of fact, the circular is prior to the decision in K. Govindappa (supra) as well. The principle which has been enunciated by this Court is that there can be no reservation of a solitary post and that in order to apply the rule of reservation within a cadre, there must be a plurality of posts. Where there is no interchangeability of the posts in different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. If this principle were not to be followed, reservation would be in breach of the ceiling governed by the decisions of this Court. A circular, of the nature that has been issued by the State of Karnataka, cannot take away the binding effect of the decisions of this Court interpreting the policy of reservation in the context of Article 16(4).

9. xxxx

10. xxxx

NC: 2023:KHC:25916 WP NO.1256 OF 2023

11. We would request the State of Karnataka to consider afresh the request of the management for the creation of an additional post if such a request falls within the parameters of the rules or regulations of the State of Karnataka. This exercise be completed expeditiously and within a period of two months from the date of receipt of a certified copy of this order. In the event that it is not possible for the State of Karnataka to create another post under its rules and regulations, the State of Karnataka shall consider, in the alternative, the creation of a supernumerary post for such period until a substantive post is made available, having regard to the fact that the fifth respondent is due to attain the age of superannuation in approximately three years and seven months from today."

11. Following the law declared by Hon'ble Apex Court in

the aforementioned case, I am of the view that, each discipline

in department would constitute a single post or cadre and

therefore, I find force in the submission made by learned

counsel appearing for the petitioner. Hence, I pass the

following:

ORDER

(1) Writ petition allowed;

(2) Final Selection list dated 04th January, 2023 (Annexure-M) issued by the respondent No.2 insofar as appointing the respondent No.3 for

NC: 2023:KHC:25916 WP NO.1256 OF 2023

the post of Professor in Department of Obstetrics and Gynecology in the respondent No.2-Institution is quashed;

(3) Writ of mandamus is issued to the respondent No.2-Institution to select the candidate for the post of Professor in Department of Obstetrics and Gynecology in relation to the vacancy notified as per Notification dated 05th August, 2022 (Annexure 'D' and 'E') in accordance with law, within a period of three months from the date of receipt of this order.