Karnataka High Court

Dr. Madhuchandra R vs The State Of Karnataka on 10 June, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                    NC: 2024:KHC-D:7717
                                                     WP No. 104358 of 2022




                           IN THE HIGH COURT OF KARNATAKA,
                                   DHARWAD BENCH

                         DATED THIS THE 10TH DAY OF JUNE, 2024

                                         BEFORE

                          THE HON'BLE MR JUSTICE M.G.S. KAMAL

                         WRIT PETITION NO.104358/2022(S-RES)


                 BETWEEN:

                 DR. MADHUCHANDRA R.,
                 AGE: 47 YEARS,
                 OCC: ASSOCIATE PROFESSOR,
                 ORTHOPEDIC DEPARTMENT,
                 KARNATAKA INSTITUTE
                 OF MEDICAL SCIENCES,
                 HUBBALLI - 580 022.
                                                              ...PETITIONER
                 (BY SRI IRANAGOUDA K. KABBUR, ADVOCATE)

                 AND:

                 1.   THE STATE OF KARNATAKA,
Digitally
signed by V N         REPRESENTED BY ITS
BADIGER
Location: High
                      PRINCIPAL SECRETARY,
Court of
Karnataka             HEALTH AND FAMILY WELFARE,
                      MEDICAL EDUCATION,
                      M S BUILDING,
                      BENGALURU - 560 001.

                 2.   THE KARNATAKA INSTITUTE OF
                      MEDICAL SCIENCES, HUBBALLI,
                      REPRESENTED BY ITS
                      DIRECTOR - 580 022.

                 3.   DR. VERENDRA BHASME
                      S/O. NOT KNOWN TO THE PETITIONER,
                      AGED ABOUT 48 YEARS,
                               -2-
                                      NC: 2024:KHC-D:7717
                                        WP No. 104358 of 2022




      OCC: ASSOCIATE PROFESSOR,
      ORTHOPEDIC DEPARTMENT,
      KARNATAKA INSTITUTE
      OF MEDICAL SCIENCES,
      HUBBALLI - 580 022.
                                              ...RESPONDENTS
(BY SRI P.N.HATTI, HCGP FOR R1;
SRI G.B.PATIL, ADVOCATE FOR R2;
SUNIL KHOT, ADVOCATE FOR R3)


        THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION OF INDIA, PRAYING TO, ISSUE APPROPRIATE
WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI
QUASHING THE IMPUGNED ORDER OR SENIORITY LIST,
DATED      07/05/2022      BEARING     NO.KIMS.CV(1)A      AND
B.322.2022-23 AT ANNEXURE-E IN SO FOR AS SENIORITY OF
THE     PETITIONER   AND    THE     RESPONDENT    NO.3.   ISSUE
APPROPRIATE WRIT, ORDER OR DIRECTION IN THE NATURE
OF CERTIORARI QUASHING THE IMPUGNED ENDORSEMENT,
DATED 20/09/2022 BEARING NO.KIMS.CV(1)A/227/2022-23
AT ANNEXURE-G. ISSUE APPROPRIATE WRIT, ORDER OR
DIRECTION IN THE NATURE OF MANDAMUS, DIRECTING THE
2ND RESPONDENT TO PLACE THE PETITIONER OVER AND
ABOVE THE 3RD RESPONDENT IN THE SENIORITY LIST OF
ASSOCIATE       PROFESSOR     IN      THE   DEPARTMENT      OF
ORTHOPEDICS AT THE 2ND RESPONDENT DEPARTMENT AND
ETC.,


        THIS   PETITION,   COMING     ON    FOR   PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                   NC: 2024:KHC-D:7717
                                      WP No. 104358 of 2022




                         ORDER

1. This petition is filed by the petitioner aggrieved

by the seniority list, dated 07.05.2022 prepared by

respondent No.2 as per Annexure-E, so far as it concerns

the petitioner and respondent No.3.

2. The case of the petitioner is that, he was

appointed to the post of Assistant Professor in the

Department of Orthopedics pursuant to the notification,

dated 15.06.2005. That the petitioner was selected under

the scheduled caste reserved category and was appointed

on 31.08.2005. That he reported to duty on 02.09.2005.

That respondent No.3, who also had applied for the said

post, was appointed on 31.08.2005 and however he

reported to duty on 09.09.2005. In the list published by

respondent No.2 on 01.07.2005, the name of the

petitioner is shown at Sl.No.14 while name of respondent

No.3 is shown at Sl.No.15.

3. It is the case of the petitioner that he along

with one Dr.Kavita Mahadevappa had filed writ petition

NC: 2024:KHC-D:7717

No.62663/2010 challenging the said seniority list

published by respondent No.2-Department. This Court by

order dated 05.04.2022, had allowed the said writ petition

quashing the list prepared by the respondent No.2 and

directed to place the petitioner's above respondent

No.3 & 4 in the said writ petition in the Seniority list .

4. It is the further case of the petitioner that

without considering the seniority of the petitioner, as

found at Annexure-C, respondent No.2 yet again prepared

seniority list in which respondent No.3 has been placed

over and above the petitioner, despite the fact that

respondent No.3 joined/reported to the duty on

09.09.2005 that is subsequent to the petitioner reporting

to the duty. That the petitioner has submitted objection as

per Annexure-F to which the respondent No.2 issued

endorsement dated 20.09.2022 stating that the name of

the petitioner is placed above one Dr.Adiveppa Hosangadi

as per the directions / order dated 05.04.2022 passed in

NC: 2024:KHC-D:7717

Writ Petition No.62663/2010. Aggrieved by the said

endorsement, the petitioner is before this Court.

5. Counsel for the petitioner submits that in the

selection list produced at Annexure-C, the name of the

petitioner is at Sl.No.14 while name of private respondent

No.3 is at Sl.No.15. He further submits that the petitioner

was appointed against the reservation under the scheduled

caste category. He further submits that the respondent-

Authorities are not complying with the procedure for

appointment. In that, when the petitioner apart from being

at Sl.No.14 in the selection list, had also reported to post

on 02.09.2005, whereas respondent No.3 who is at

Sl.No.15 below the petitioner, had reported to post on

09.09.2005. Thus, he submits that, the petitioner is senior

to the respondent No.3 which aspect has been neglected

and ignored by the respondents while issuing the

endorsement in question. Hence seeks allowing of the

petition.

NC: 2024:KHC-D:7717

6. Per contra, learned counsel appearing for the

respondent No.2-Institute submit that the consideration of

seniority inter se of the candidates belonging to the same

cadre, is governed under the Rule 20 of 1995 governing

the Seniority, which provides that the seniority of

employees in each category shall be determined by the

order of merit, in which they were selected for

appointment to the cadre in question. Thus he submits the

only criteria for determination of seniority in respect of

each category of the same cadre i.e., teaching cadre, is

merit and nothing else.

7. Counsel for the respondents relies upon the

judgment of the Coordinate Bench of this Court in the case

of Dr.Aadamali Nadaf Vs.State of Karnataka in

W.P.No.66735/2010, disposed off on 03.12.2015 which

is confirmed by the Division Bench of this Court in

W.A.No.100040/2016 disposed of on 07.12.2020.

Referring to the above judgment, learned counsel for the

respondents submit that the very issue was put to test in

NC: 2024:KHC-D:7717

the aforesaid writ petition in which the Coordinate Bench

of this Court has held that Rule provided for consideration

of merit while deciding the issue of seniority will prevail

and the said finding has been confirmed by the Division

Bench of this Court. Hence seeks for dismissal of the

petition.

8. Heard the perused the records.

9. Counsel for the petitioner relying upon the

order of the Coordinate Bench of this Court dated

05.04.2022 passed in W.P.No.62663/2010 vehemently

submits that it is the date of joining the duty which has to

be taken into consideration for the purpose of

determination of seniority. That in the said writ petition

which was filed by the petitioner, this Court had

appreciated the said aspect of the matter, accordingly, the

seniority list which was earlier prepared was quashed. He

submits that the reliance placed by the learned counsel for

the respondents on the order passed in

NC: 2024:KHC-D:7717

W.P.No.66735/2010 is not applicable to the present case

as facts involved in the said case are entirely different.

10. Necessary at this juncture to refer to the issue

that was involved in the writ petition No.62663/2010

which was with regard to determination of seniority of the

petitioner herein and one Dr.Kavita Mahadevappa as

against one Dr.S.V. Nachiket, Dr.Anita Kamat and

Dr.Adiveppa Hosangadi respondent Nos.3 to 5 therein. In

that the Coordinate Bench of this Court had taken into

consideration of the fact that the petitioners therein, were

appointed under a different list and the respondent Nos.3

to 5 therein were kept under waiting list and their

appointment was accepted subsequently. Consequently

the date of their reporting to duty was also subsequent to

the reporting date of the petitioners. It is under these

factual circumstances, this Court had held that though

Rule 20(b) provides for consideration of merit alone, in

view of the admitted factual aspect of the matter, namely

respondent Nos.3 to 5 were not included in the select list

NC: 2024:KHC-D:7717

and were kept in the waiting list, as such they could not

claim themselves to be entitled to be placed as seniors to

the petitioners in the order of merit. It was for this reason

the Coordinate Bench of this Court to set aside that list

and send the matter for reconsidered. This is fortified by

the very language used in the endorsement dated

20.09.2022 in the Annexure-G which is impugned in this

petition.

11. Yet another aspect of the matter requires to be

seen is that the aforesaid writ petition was filed in the year

2010. Counsel for the private respondent submit even

when the petitioner herein filed earlier writ petition in

W.P.No.62663/2010, the private respondent herein was

placed over and above the petitioner herein and petitioner

had no grievance as to the said seniority list. As such the

private respondent has not made party to the said writ

petition.

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NC: 2024:KHC-D:7717

12. Be that as it is, what is required for

consideration is the interpretation and application of Rule

20(b) which reads as under:

"b. The Seniority of the employees in each category shall be determined by the order of merit in which they were selected for appointment to the cadre in question subject wise in respect of teaching cadres. In respect of non-teaching staff cadre-wide seniority list will be prepared and published."

13. A plain reading of the said Rule leaves no doubt

that for the purpose of consideration of seniority all that is

required is the order of merit, in which the candidates are

selected for appointment to the cadre in question and

nothing else. This view has been taken into consideration

by the Coordinate Bench of this Court in

W.P.No.66735/2010 confirmed by the Division Bench of

this Court in WA No.100040/2010 and this Court do not

find any reason to depart from the same.

14. Further as already noted above, reliance placed

on by the petitioner on order in WP No.62663/2010, is not

applicable as the facts are completely distinguishable as