Karnataka High Court
Dr Anche Narayanarao Dattatri vs The State Of Karnataka on 23 February, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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WP No. 100726 of 2024
C/W WP No. 100725 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 100726 OF 2024 (S-RES)
C/W
WRIT PETITION NO. 100725 OF 2024 (S-RES)
IN W.P. NO. 100726 OF 2024:
BETWEEN:
DR. GURUSHANTAPPA YALAGANCHIN
S/O HALAPPA YALAGANCHIN,
AGED ABOUT 58 YEARS,
PROFESSOR AND HOD,
DEPARTMENT OF GENERAL SURGERY,
KIMS HUBBALLI.
... PETITIONER
(BY SRI. SUNIL S. DESAI, ADVOCATE)
AND:
Digitally 1. THE STATE OF KARNATAKA,
signed by REPRESENTED BY ITS SECRETARY,
KIRAN
KUMAR R DEPARTMENT OF MEDICAL EDUCATION,
Location: M.S. BUIDLING , BANGALORE-560001.
HIGH
COURT OF
KARNATAKA
2. DIRECTOR,
DEPARTMENT OF MEDICAL EDUCATION,
BANGALORE-560001.
3. KARNATAKA INSTITUTE OF MEDICAL
SCIENCE, HUBBALLI,
REPRESENTED BY ITS DIRECTOR,
DIST. DHARWAD-580001.
4. DR. ISHWAR HOSAMANI,
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WP No. 100726 of 2024
C/W WP No. 100725 of 2024
PROFESSOR DEPARMENT OF GENERAL SURGERY,
KIMS, HUBBALLI-580001.
... RESPONDENTS
(BY SRI. BASAVARAJ GODACHI, AGA FOR R1 & R2;
SRI. MADAN Y. DESHPANDE, ADV. FOR R3;
SRI. S.P. KULKARNI, SR. COUNSEL FOR
SRI. VISHWANATH S. BICHAGATTI, ADV. FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE WRIT OF CERTIORARI TO QUASH THE ORDER BEARING
NO.KIMS-CV(1)A/354/2023-24 DATED 31/01/2024 ISSUED BY
THE RESPONDENT NO.3 AS PER ANNEXURE-E AS ILLEGAL AND
CONTRARY TO THE PROPOSITIONS OF LAW, IN THE INTEREST
OF JUSTICE AND EQUITY.
IN W.P. NO.100725 OF 2024:
BETWEEN:
DR. ANCHE NARAYANARAO DATTATRI,
AGED 54 YEARS, PROFESSOR AND HEAD,
DEPT. OF PHARMACOLOGY,
KARNATAKA INSTITUTE OF MEDICAL
SCIENCES (KIMS), HUBBALLI,
DIST. DHARWAD-580021.
... PETITIONER
(BY SRI. VISHWANATH HEGDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
R/BY ITS PRINCIPAL SECRETARY
(MEDICAL EDUCATION),
DEPT. OF HEALTH & FAMILY WELFARE,
NO. 610, 6TH FLOOR, 4TH GATE,
M.S.BUILDING, BENGALURU-560001.
2. THE DIRECTOR,
KARNATAKA INSTITUTE OF MEDICAL SCIENCES
(KIMS),
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WP No. 100726 of 2024
C/W WP No. 100725 of 2024
HUBBALLI, DIST. DHARWAD-580021.
3. DR. JANAKI R. TORVI,
AGED 52 YEARS, OCC. PROFESSOR,
DEPT. OF PHARMACOLOGY, KIMS,
HUBBALLI, DIST. DHARWAD-580021.
... RESPONDENTS
(BY SRI. BASAVARAJ GODACHI, AGA FOR R1;
SRI. MADAN Y. DESHPANDE, ADV. FOR R2;
SRI. S.P. KULKARNI, SR. COUNSEL FOR
SRI. VISHWANATH S. BICHAGATTI, ADV. FOR C/R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT, ORDER
OR DIRECTION QUASHING THE ORDER NO. NO. KIMS. CV(1)A:
354:2023-24 DATED 31.01.2024 ISSUED BY THE RESPONDENT
NO.2 INSTRUCTING THE PETITIONER TO HAND OVER THE
POST OF HOD OF PHARMACOLOGY, KIMS, HUBBALLI TO
RESPONDENT NO.3 (ANNEXURE-V) AND ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
ON 08/02/2024 FOR ORDERS, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner in W.P.No.100725/2024 is the
Head of the Department of Pharmacology, and the
petitioner in W.P.No.100726/2024 is the Head of the
Department of General Surgery at Kasturba Institute of
Medical Sciences, Hubballi ("KIMS").
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2. Both of them are before this Court challenging
the order by which they have been directed to hand over
charge of the post of the Head of the Department ("HoD")
to the contesting private respondents in both writ
petitions.
3. They are also seeking quashing of Clause 20 of
the KIMS Bye-Laws, 2024 on the ground that it is
unconstitutional and, consequentially, for a direction to
continue them as the Head of their respective
Departments.
4. The petitioners contend that they were made
the HoDs by virtue of them being the senior-most amongst
the faculty in their respective departments, and by virtue
of a Bye-Law which has been amended in the year 2024,
the post of the HoD is sought to be made a rotational post
amongst the members of the faculties of that department,
which would deprive them of continuing as the HoD.
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5. They contend that their seniority would be
nullified, and that they would have to work under their
juniors if the post of HoD is to be occupied on rotation
basis by the other members of the Department. It is also
sought to be contended that the Bye-Law cannot be
permitted to be operated in light of the statutory
regulations made under the National Medical Commission
Act, 2019 ("the NMC Act").
6. Reliance is placed on Clause 3.10 of the
Teachers Eligibility Qualifications in Medical Institutions
Regulations, 2022 to contend that, statutorily, in
Government institutions, seniority has been accepted as
the norm in respect of all administrative posts and in light
of these statutory regulations, the Bye-Law cannot
operate. It is stated that the Bye-Law upon which the
posts of the HoD are sought to be made rotational posts
would have no validity and would have to yield to the
statutory regulations.
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7. It is also sought to be contended by the
petitioners' counsel that, prior to the publication of the
2022 Regulations, the National Medical Commission ("the
Commission") had in fact contemplated making the HoD
post a rotational post by proposing the same in its draft
regulations, but subsequently, on receipt of objections,
this proposal was given up and the final regulations made
seniority the criteria for occupying the administrative posts
in Governmental institutions, and this therefore indicated
that the attempt to make the post of HoD a rotational post
was illegal.
8. Learned counsel appearing for the institutions
as well as the learned Senior Counsel appearing for the
contesting private respondents, per contra, contended that
KIMS is a society registered under the provisions of the
Karnataka Societies Registration Act, 1960 and, therefore,
the governance of such a society will have to be according
to the Bye-Laws framed by the Society. It is submitted
that since the Bye-Laws have been framed and have also
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been approved by the competent authority, the same will
have to be adopted, notwithstanding anything contained in
the regulations. It is also contended that the petitioners,
being the employees of the society, cannot be permitted
to challenge or question the validity of a Bye-Law which
has been framed by the members constituting the Society.
9. It is also contended that not only in the State of
Karnataka, but in almost every other premier medical
college in the country, the post of the HoD has always
been a rotational post and this is because, by giving every
member of the faculty the experience to head their
respective department, there would be innovation,
creativity and better productivity in the department.
10. It is also contended that the nature of the post
of the HoD, being only an administrative post and not
being a promotional one, does not enable the petitioners
to possess an indefeasible right to be the HoD. It is further
averred that if the petitioners were to be permitted to
continue as the HoD, the other members of the
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department would never get a chance to occupy the post,
and this could lead to bitterness and discontent, apart
from resulting in a decline in academic standards.
11. In light of the arguments advanced, the
principal question to be considered in these writ petitions
is as to whether KIMS is bound by the 2022
Regulations which requires it to appoint the senior-
most member of the department as the HoD OR
whether KIMS has the discretion to appoint the HoD
on a rotation basis, amongst the members of the
respective Department in accordance with its
Bye-Laws.
12. In order to examine this question, an overview
of the provisions of the NMC Act would be necessary.
13. The NMC Act was enacted to provide for a
medical education system that improved access to quality
and affordable medical education, apart from ensuring
availability of adequate and high quality medical education
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in all parts of the country. Therefore, it is clear that the
Act has been legislated with the primary objective of
improving the medical education system in the country.
14. The Act also provides for the constitution of the
Commission, along with a Medical Advisory Council ("the
Council"). The Act also provides for holding of a National
Eligibility-cum-Entrance Test ("NEET") and also the
constitution of autonomous boards for ensuring that the
objective of the Act is fulfilled and the standard of medical
education and its utilisation is maintained.
15. Section 57 of the Act empowers the
Commission to frame regulations for the purposes of
carrying out the provisions of the Act. In exercise of the
powers under Section 57, the Commission has framed the
'Minimum Requirements for Annual MBBS Admissions
Regulations, 2020' ("the 2020 Regulations"), which
seeks to prescribe the relevant minimum standard
requirements for medical colleges and the requirements
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that are to be fulfilled by the applicant-colleges for
obtaining a letter of permission.
16. Regulation 5 of said Regulations mandate that
every medical college should have 24 departments;
Regulation 6 states that every medical college and medical
institution would have to necessarily possess the required
areas, accommodation for staff and equipment for each
department as given in the Schedules.
17. Schedule-II of the Regulations provides for staff
requirements. Part-A of the Schedule states the general
needs in respect of staff requirements. Part-B of Schedule-
II provides for specific staff requirements, and Clause (2)
in Part-B of said Schedule to the Regulations reads as
under:
"B. Staff Requirements.
1. XXXXX
2. Each department shall have a Head of the
Department of the rank of full time Professor
who shall have overall control of the
Department except in the departments of
Dermatology, Psychiatry and Dentistry where
Associate Professor may be the Head of the
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Department who shall have overall control of
the Department."
18. Thus, every department in a medical college is
mandated to have an HoD of the rank of a full-time
Professor. This HoD is to have the overall control over the
department. An exception is however made in respect of
three departments (Dermatology, Psychiatry and
Dentistry) where an Associate Professor could be the HoD
with overall control of the department.
19. Thus, statutorily, every department is required
to have an HoD and such person is required to be a full-
time professor who will have overall control of the
department.
20. The Commission, in the year 2021, published a
Draft Teachers Eligibility and Minimum Qualifications in
Medical Institutions Regulations ("the Draft
Regulations"), a copy of which is produced as
Annexure-M.
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21. Clause 3.10 and 3.11 of said Draft Regulations
of 2021 would be the relevant for the purposes of this case
and they read as follows:
3.10. Appointments to these administrative posts in
Government Institutions including the in
charge arrangements, amongst eligible
candidates, shall be based on Inter se vertical
seniority based on the date of entry into the
Institutions/Service.
3.11. The post of Head of the Department in
Medical Colleges/Institutions shall be on
rotational basis for a period of three years
amongst Professors.
22. As could be seen from the above, appointments
to administrative posts in Governmental institutions is
required to be made amongst eligible candidates based on
inter se vertical seniority, and it is also stated that this
would be based on the date of entry into the institution or
service. The administrative posts that were contemplated
in Regulation 3 of the Draft Regulations were the posts of
Dean, Director, Principal of Medical College and Medical
Superintendent.
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23. In the Draft Regulations, Regulation 3.11 did
state that the posts of HoD should be filled on a rotational
basis for a period of three years from amongst the
professors. Thus, it was the proposal of the Commission
that the posts of HoD should be rotational posts.
24. However, the Commission, after considering the
objections received to the Draft Regulations, decided to
give up its proposal to make the posts of the HoD a
rotational post by deleting Clause 3.11 altogether in the
Final Regulations. In other words, the proposal to make
the post of HoD a rotational post was given up completely;
and only the Regulation which mandated that the
appointments to all administrative posts considering
seniority was retained.
25. Another interesting factor which has to be
noticed here is that in the Clause 3.10 of the Draft
Regulations, the term "appointment to these
administrative posts" is used. However, Clause 3.10 in the
approved Teachers Eligibility Qualifications in Medical
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Institutions Regulations, 2022 ("the Final Regulations")
reads as follows:
3.10 Appointments to the administrative posts in
Government Institutions including the in-
charge arrangements, amongst eligible
candidates, shall be on inter se vertical
seniority based on the date of entry into the
Institutions/Service.
(emphasis supplied)
26. As could be seen from the above, the final
Regulation 3.10 in the Final Regulations did not use the
term "these" administrative posts and on the other hand
it used the word the appointment to "the" administrative
posts.
27. Thus, the inescapable conclusion that one has
to draw from the use of the terms "these" and "the" in
the Draft and Final Regulations is that the Commission
statutorily intended to make appointments to all
administrative posts in Governmental Institutions on the
basis of inter se vertical seniority considering the date of
entry into the institution or Government service.
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28. It must be stated here that this requirement of
appointments to administrative posts based on seniority
under the statutory Regulations is confined only to
government institutions, thereby meaning that private
medical institutions were at liberty to appoint whomsoever
they choose, to the administrative posts in the institution,
without referring to seniority. It is obvious that the
Commission was taking into consideration that in
Governmental institutions, seniority a crucial, if not a vital
factor in determining the person who occupies the post
and in order to reflect that principle, deliberately, the
statutory Regulations declare that all of the appointments
to administrative posts in a Governmental institution
should be made on the basis of seniority.
29. It is therefore clear that, statutorily, every
Governmental institution under the purview of NMC Act
and Regulations framed thereunder, would necessarily
have to appoint the senior-most person to the
administrative posts in such institution.
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30. A reading of Part-B of Schedule-II of the above
extracted Regulations leaves no room for doubt that the
HoD is a person who is in overall control the department,
and it is, therefore, obvious that the post of HoD is an
administrative post. Consequently, by virtue of Clause
3.10 of the Final Regulations of 2022, the appointments to
this post will have to be made only of the senior-most
candidates.
31. However, in the instant case, KIMS seeks to
contend that it has framed its own Bye-laws, and Bye-Law
20 provides for the post of the HoD to be a rotational post.
A Bye-Law which is framed by the members constituting a
Society cannot obviously override the statutory
Regulations framed by a statutory body as provided under
a Parliamentary Act, in the matter of governance of that
medical institution, especially a technical post which is
mandatorily provided for under the Regulations. A
statutory provision would obviously have to hold the field
and a Bye-Law framed by the members to govern the
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Society, which is a corporate body, cannot be contrary to
the statutory Regulations which prescribe the manner in
which the departments have to be manned and run. The
Bye-Law will have to therefore yield in its operation to the
statutory provision when it comes to the functioning of a
Department, as prescribed under the statutory
Regulations.
32. It is therefore clear that KIMS cannot contend
that the Bye-laws framed by it would prevail over the
statutory Regulations framed by the Commission.
33. In light of the above, it is clear that the post of
HoD in KIMS, which is admittedly a Governmental
institution, will have to be occupied by the candidate who
is the senior-most in the Department. Since it is not in
dispute that the petitioners are the senior-most candidates
in their respective departments their position as the HoD
cannot be disturbed.
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34. However, an argument was advanced by the
counsel appearing for KIMS, as well as by the learned
counsel appearing for the private respondents that the
statute has used the phrase "inter se vertical seniority"
and by applying this Regulation in its literal sense, the
post of the HoD in a particular department would have to
be occupied by a person who possesses seniority, and this
would mean that a person from some other department
could also become the HoD as a result of his seniority.
This argument cannot be accepted.
35. In respect of administrative posts in relation to
a department which is mandated under the Regulations, it
would obviously mean that it is the inter se seniority
amongst members of that particular department which
would have to be considered for the post of the HoD. To
illustrate - if, in a department, there are three Professors,
the senior-most Professor, by virtue of his earlier entry
into the institution or Government service would have to
necessarily occupy the post of the HoD.
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36. It is also pertinent to state here that if a person
in Government service is appointed in an institution such
as KIMS, the date of entry into that institution would not
be of relevance, but the date of entry into Government
service would be relevant. Therefore, in a given case, if a
Professor working in a Government Medical College is
appointed at such institution, his seniority would be
reckoned not from the date of joining the institution, but
from the date on which he entered Government service.
As stated above, this is to obviously ensure that a senior
person is not forced to work under a person who is junior
to him, which is the accepted principle in service
jurisprudence relating to the Government Servants.
37. It is also pertinent to state here that until the
Bye-Laws were amended in the year 2024, there was no
Bye-Law which mandated or provided for the post of an
HoD to be a rotational post. Since the Bye-Laws have been
amended after the framing of the Final Regulations of
2022, it is obvious that the Bye-Laws would have no effect
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whatsoever and the appointment to the post of an HoD, a
statutory requirement under the Regulations as well as an
administrative post, will have to necessarily be governed
only by the provisions of the Final Regulations of 2022,
which are statutory in nature.
38. I have also perused the judgments cited by the
learned counsel for the respondents, rendered in Bhavesh
D. Parish1, decided by the Apex Court; and Dal Pathak2,
decided by the High Court of Gauhati.
39. The judgment in Bhavesh D. Parish was relied
upon to contend that an interim order ought not to be
granted when the constitutional validity of a legislation is
questioned and also to contend that interference in policy
matters was not permissible by the Court.
40. In the above case, the validity of Section 9 of
the Reserve Bank of India Act, amended by the
Amendment Act of 1997, was challenged in terms of
Bhavesh D. Parish & Ors. v. Union of India & Anr., AIR 2000 SC 2047.
Dal Pathak v. the State of Assam & Ors., 2021 3 GauLR 43.
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Article 14 and Article 19(1)(g) of the Constitution, and the
Apex Court dismissed the same while observing that
matters concerning economic policy are more
appropriately within the purview of legislative discretion,
affirming the constitutionality of the provision. In this
case, there is no challenge to any policy but the challenge
is to a Bye-Law as a consequence of a policy decision
taken by the Society in the matter of its administration.
Since, in this case, the operation of a Bye-Law in the face
of a statutory regulation is the question involved,
obviously, the ratio in Bhavesh D. Parish's case would
therefore be inapplicable.
41. The case of Dal Pathak pertains to the
regulations governing the appointment of the HoD therein
on rotation basis, and the Gauhati High Court was not
considering a statutory regulation as is in the present
case. The said decision was based solely on the basis of an
executive order passed by the State Government and,
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therefore, said decision would be of no avail to the case of
the respondents.
42. In the result, the writ petitions will have to be
allowed; and the orders by which the private respondents
are sought to be appointed as the Head of the respective
Departments will have to be set aside and they are,
accordingly, quashed.
43. Though a declaration is sought to quash Bye-
Law No. 20, in light of the discussion made above, it would
suffice if a declaration is issued that Governmental
institutions would have to appoint the senior-most
professor in that Department as the HoD, by virtue of
Regulation 3.10 of the 2022 Regulations, and not Bye-Law
20 as framed by KIMS.
Accordingly, the writ petitions are allowed in the
above terms.
Sd/-
JUDGE
EM
