Karnataka High Court
The Karnataka Institute Of Medical ... vs Dr Namratha W Nandihal on 28 June, 2024
Author: S G Pandit
Bench: S G Pandit
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WA No.100366 of 2023
C/W WA No.100383 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO.100366 OF 2023 (S-PRO) C/W
WRIT APPEAL NO.100383 OF 2023 (S-PRO)
IN WA NO.100366/2023
BETWEEN:
THE KARNATAKA INSTITUTE OF MEDICAL
SCIENCES (KIMS) HUBLI
R/BY. ITS DIRECTOR,
TQ. HUBLI, DIST. DHARWAD-580001.
...APPELLANT
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)
AND:
1. DR. NAMRATHA W. NANDIHAL
Digitally signed AGE. 46 YEARS, OCC. ASSOCIATE PROFESSOR,
by VINAYAKA B V
DEPT. OF MICROBIOLOGY
Location: HIGH
COURT OF (PRESENTLY WORKING AS PROFESSOR)
KARNATAKA KARNATAKA INSTITUTE OF MEDICAL SCIENCES,
HUBLI, TQ. HUBLI, DIST. DHARWAD-580001.
2. THE STATE OF KARNATAKA
R/BY. ITS SECRETARY,
MEDICAL EDUCATION, DEPT. OF HEALTH
& FAMILY WELFARE SERVICES,
VIDHANA SOUDHA, BENGALURU-01.
3. DR. MYTHRI B.A.,
AGE. 40 YEARS, OCC. ASSOCIATE PROFESSOR,
DEPT. OF MICROBIOLOGY
(PRESENTLY WORKING AS PROFESSOR),
KARNATAKA INSTITUTE OF MEDICAL SCIENCES,
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WA No.100366 of 2023
C/W WA No.100383 of 2023
HUBLI, TQ. HUBLI, DIST. DHARWAD-580001.
...RESPONDENTS
(BY SRI. RAMACHANDRA A. MALI, ADVOCATE FOR R1,
SRI. MADANMOHAN M. KHANNUR, AGA FOR R2,
SRI. MALLIKARJUN S. HIREMATH, ADVOCATE FOR R3)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT
ACT, 1961, PRAYING TO, SET ASIDE THE ORDER DATED 02.02.2023
PASSED IN THE SAID CASE AND FURTHER BE PLEASED TO DISMISS
THE WRIT PETITION NO.148674/2020 AND GRANT SUCH OTHER AND
FURTHER RELIEFS INCLUDING THE COSTS OF THIS APPEAL.
IN WA NO.100383/2023
BETWEEN:
DR. MYTHRI B.A., W/O DR. ASHOK MAHADEVAPPA
AGE. 41 YEARS, OCC. PROFESSOR IN
MICROBIOLOGY DEPARTMENT,
KARNATAKA INSTITUTE OF MEDICAL SCIENCES,
HUBLI, DISTRICT DHARWAD-580022.
...APPELLANT
(BY SRI. MALLIKARJUN S. HIREMATH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
R/BY. ITS SECRETARY
MEDICAL EDUCATION DEPT. OF
HEALTH AND FAMILY WELFARE SERVICES
VIDHANA SOUDHA, BENGALURU-560001.
2. THE KARNATAKA INSTITUTE OF MEDICAL
SCIENCES, KIMS, HUBLI,
R/BY. ITS DIRECTOR
TQ. HUBLI, DIST. DHARWAD-580022.
3. DR. NAMRATHA W. NANDIHAL
AGE. 47 YEARS, ASSOCIATE PROFESSOR
DEPT. MICROBIOLOGY,
THE KARNATAKA INSTITUTE
OF MEDICAL SCIENCES, KIMS HUBLI
DIST. DHARWAD-580022.
...RESPONDENTS
(BY SRI. MADANMOHAN M. KHANNUR, AGA FOR R1,
SRI. ARAVIND D. KULKARNI, ADVOCATE FOR R2,
SRI. RAMACHANDRA A. MALI, ADVOCATE FOR R3)
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WA No.100366 of 2023
C/W WA No.100383 of 2023
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT
ACT, 1961, PRAYING TO, SET ASIDE THE FINAL ORDER AND
JUDGMENT DATED 2ND FEBRUARY 2023 PASSED IN WRIT PETITION
NO.148674/2020 AND CONSEQUENTLY DISMISS THE WRIT PETITION.
THESE WRIT APPEALS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Both the above appeals are taken up together since
respondents in W.P. No. 148674/2020 are in appeal
challenging the same order dated 02.02.2023 passed in the
said writ petition. W.A. No. 100366/2023 is by the
respondent no.2 and W.A. No. 100383/2023 is by the
respondent no.3 in W.P. No. 148674/2020.
2. Parties to the appeal would be referred to as they
stood before the Writ Court. Appellants in both the above
appeals are respondents no.2 and 3 whereas respondent
no.1 herein was the petitioner before the Writ Court.
3. The petitioner approached this Court in the
above said writ petition with a prayer to quash the final
seniority list (Annexure-G) dated 01.01.2020 of the Cadre
of Associate Professor in the Department of Microbiology in
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the second respondent Institute being arbitrary, illegal and
not sustainable in law. Petitioner and respondent No.3
applied for the post of Assistant Professor in pursuance to
the recruitment notification dated 10.07.2008 issued by
respondent No.2-Karnataka Institute of Medical Sciences
(for short 'Institute'). By order dated 11.08.2008 petitioner
as well as respondent No.3 were selected and appointed as
Assistant Professor in the Department of Microbiology. On
01.01.2009, final seniority list of Assistant Professors of the
Department of Microbiology (Annexure-E) was published by
the second respondent. In the said seniority list petitioner
was shown at Sl. No. 2 and respondent No.3 was shown at
Sl.No. 3. Again, in terms of Annnexure-C, seniority list as
on 01.01.2013 was published relating to the cadre of
Assistant Professor of Microbiology Department wherein
petitioner was shown at Sl. No. 1 and respondent No.3 was
shown at Sl. No. 2. In the meanwhile, both the petitioner
as well as respondent No.3 were promoted as Associate
Professors on 16.03.2017. Thereafter the seniority list of
the Cadre of Associate Professor was published under office
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order dated 29.10.2020 (Annexure-G and H) as on
01.01.2020. In the said seniority list of Associate
Professors respondent No.3 was shown at Sl. No.1 and
petitioner was shown at Sl. No.2. Questioning the said
seniority list, the petitioner was before this Court
contending that, in terms of Rule 19(c)(ii) of the Karnataka
Institute of Medical Sciences, Hubli (Rules and Regulations),
1995 (for short, 'the Rules and Regulations), seniority shall
be determined according to the seniority of such members
in the cadre from which they are promoted. It was
contended that in the lower cadre, i.e., in the cadre of
Assistant Professor, the petitioner was senior to respondent
No.3 as such it is contended that the petitioner ought to be
shown above respondent No.3 in the seniority list of the
cadre of Associate Professor in the Department of
Microbiology. The learned Single Judge allowed the writ
petition, quashed the seniority list dated 29.10.2020 and
also the endorsement dated 13.01.2021 vide Annexure-K.
Being aggrieved by the same, respondents No.2 and 3 are
in appeals.
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4. Heard Sri Mallikarjun S. Hiremath, learned
counsel appearing for appellant/respondent No.3 for, Sri
Aravind D. Kulkarni for appellant-institute, and Sri
Ramachandra A. Mali for the petitioner in both the writ
appeals. Perused the writ appeal papers carefully.
5. Learned counsel for the respondents both Sri
Aravind D. Kulkarni and Sri Mallikarjun S. Hiremath would
contend that both the petitioner as well as respondent No.3
were appointed as Assistant Professors in pursuance of the
same notification and by same order of appointment dated
11.08.2008. Learned counsel referring to the selection list
of the Assistant Professors published under notification
dated 11.07.2008 would submit that respondent No.3 was
placed at Sl. No.11 whereas petitioner was placed at Sl.
No.12 on the basis of merit. Therefore, in terms of
Regulation 19(b) of the Rules & Regulations, seniority of the
employees in each category should be determined by the
order of merit in the selection list. Since respondent No.3 is
placed above the petitioner in the merit list at the time of
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selection of Assistant Professors, it is stated that
respondent No.3 would be senior to petitioner. Further,
learned counsel would submit that the select list would be
the basis for seniority and ignoring the select list, seniority
was fixed in the cadre of Assistant Professors.
6. Per contra, learned counsel Sri Ramachandra
Mali would submit that respondent No.3 has accepted the
seniority assigned to her in the cadre of Assistant Professor
and she has never challenged the seniority of the petitioner
in the cadre of Assistant Professor. He further submits that,
having accepted the seniority of the petitioner in the cadre
of Assistant Professor, respondent No.3 cannot challenge
the seniority of the petitioner over her in the cadre of
Associate Professor in the department of Microbiology.
7. Learned counsel for petitioner would submit that
in terms of Regulation 19(c)(ii), seniority on promotion shall
be determined according to the seniority of such members
in the cadre from which they are promoted. It is submitted
that, since the petitioner was senior to respondent No.3 in
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the cadre of Assistant Professor, the same shall be
maintained on promotion to the post of Associate Professor
since both of them are promoted to the cadre of Associate
Professor on 16.03.2017. Thus, learned counsel submits
that learned Single Judge has rightly set aside the seniority
list impugned in the writ petition.
8. Learned counsel also invites attention of this
Court to the order dated 03.12.2015 in W.P. No.
66735/2010 wherein this Court interpreted Regulation
19(3) which is confirmed by the co-ordinate bench of this
Court under judgment dated 07.12.2020 in W.A. No.
100040/2016.
9. Having heard the learned counsel for the parties
and on careful perusal of the entire writ appeal papers, the
only point which falls for consideration is as to:
Whether the impugned order dated
02.02.2023 in W.P. No.148674/2020 requires
interference?
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10. Answer to the above point would be in the
negative for the following reasons:
(a) It is an admitted fact that the petitioner as well as
respondent No.3 were selected and appointed as
Assistant Professors, in the Department of
Microbiology in respondent No.2-Institute on
11.08.2008 in pursuance of the recruitment
notification dated 10.07.2008. Thereafter, on
01.01.2009, seniority list of Assistant Professors in the
Department of Microbiology was published and in the
said seniority list, the petitioner was placed at Sl.No.2
and respondent No.3 was placed at Sl.No.3. On
01.01.2013, provisional seniority list of the cadre of
Assistant Professors in the Department of Microbiology
was published wherein also the petitioner was placed
at Sl.No.1 above respondent No.3, and respondent
No.3 was placed at Sl.No.2. It is also an admitted fact
that respondent No.3 accepted the seniority of the
petitioner in the cadre of Assistant Professor and
respondent No.3 has not challenged the seniority of
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the petitioner above her in the seniority list published
in the year 2009 and 2013. It is relevant to state here
itself that, on the basis of the Seniority list of the
cadre of Assistant Professor which was in existence,
the petitioner as well as respondent No.3 were
promoted to the next higher cadre of Associate
Professor on 16.03.2017. On their promotion to the
cadre of Associate Professor, for the first time, the
seniority list of Associate Professors was published
under Office Order dated 29.10.2020 as on
01.01.2020. In the said seniority list of Associate
Professors, respondent No.3 was shown at Sl.No.1 and
the petitioner was shown at Sl.No.2 which made the
petitioner to approach this Court in the above said writ
petition.
(b) In terms of Regulation 19(b), seniority of the
employees shall be determined by the order of merit
in which they were selected for appointment to the
cadre in question. In the instant case, the petitioner
and respondent No.3 were appointed as Assistant
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Professors in pursuance of the same Notification and
under the same order of appointment on 11.08.2008.
It is also relevant to note that, in the select list of
Assistant Professors published on 11.07.2008, the
petitioner is shown at Sl.No.12 and respondent No.3 is
shown at Sl.No.11, but while preparing the seniority
list of Assistant Professors, the respondent No.3 was
shown below the petitioner and the petitioner was
shown above respondent No.3. However, respondent
No.3 has never questioned the seniority list of
Assistant Professor, placing the petitioner above her;
she accepted above seniority till filing of the above
writ petition in the year 2020. Having not challenged
the seniority of the petitioner in the cadre of Assistant
Professor, at this juncture, it is not open for
respondent No.3 to question and challenge the
seniority of the petitioner in the promoted cadre of
Associate Professor.
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(c) On promotion, the seniority of promoted person shall
have to be fixed in terms of Regulation 19)c.ii., which
reads as follows:
"19) SENIORITY:
a. x x x x x
c. Where two persons appointed on the same
date, seniority between them shall be
determined as follows:
i. A member recruited by direct recruitment
shall be senior to a member recruited
otherwise.
ii. In case of members appointed by promotion,
seniority, shall be determined according to
the seniority of such members in the cadre
from which they are promoted;"
Where two persons are appointed by promotion on the
same day, the seniority between them shall be
determined accordingly to seniority of such members
in the cadre from which they are appointed. In the
instant case, both the petitioner and respondent No.3
are promoted as Associate Professors from the cadre
of Assistant Professors. In the cadre of Assistant
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Professor, the petitioner was senior and respondent
No.3 was junior to the petitioner. The same seniority
shall have to be maintained in terms of Regulation
19(c)(ii) of the Rules & Regulations.
Thus, we do not find any merit in any of the
contentions raised by the appellant in both the appeals.
11. Both the appeals are devoid of merits and the
same stand dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
BVV, KMS, CT:VP
