Karnataka High Court
Dr. Mahendra B J vs State Of Karnataka on 1 February, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF FEBRUARY 2025
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR
WRIT APPEAL NO.1024 OF 2023 (S-RES)
BETWEEN:
DR. MAHENDRA B.J.
S/O M.C. JAYAKRISHNAPPA
AGED ABOUT 54 YEARS
WORKING AS DIRECTOR
MANDYA INSTITUTE OF MEDICAL SCIENCES
MANDYA -571401.
... APPELLANT
(BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR
SRI JAYANTH DEV KUMAR, ADV.)
AND:
1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL
SECRETARY TO GOVERNMENT
HEALTH AND FAMILY WELFARE
DEPARTMENT (MEDICAL EDUCATION)
M.S. BUILDING, 4TH STAGE
6TH FLOOR, DR. AMBEDKAR ROAD
BENGALURU-560001.
2. THE DIRECTOR
MEDICAL EDUCATION DEPARTMENT
BMC AND RI (OLD BUILDING)
2
1ST FLOOR, FORT, K.R. ROAD
BENGALURU-560002.
3. MANDYA INSTITUTE OF MEDICAL SCIENCES
REP. BY ITS CHIEF ADMINISTRATIVE OFFICER
MANDYA - 571 401.
4. THE SELECTION COMMITTEE
REP. BY ITS CHAIRMAN
MANDYA INSTITUTE OF MEDICAL SCIENCES
MANDYA - 571 401.
5. DR. NARASHIMHASWAMY P.
WORKING AS PROFESSOR IN
SURGERY AND HOD
DEPARTMENT OF SURGERY AT
MANDYA INSTITUTE OF MEDICAL SCIENCES (MIMS)
MANDYA - 571 401
R/AT NO.204-B, DOCTORS' QUARTERS
DISTRICT HOSPITAL CAMPUS, MIMS
MANDYA - 571 401.
...RESPONDENTS
(BY SRI.RUBEN JACOB, AAG A/W
SMT. B SUKANYA BALIGA, AGA FOR R1 & R2
SRI N JAGADISH BALIGA, ADV. FOR R3
MS. SUMANA BALIGA, ADV. FOR R4
SRI RAGHAVENDRA G GAYATHRI, ADV. FOR C/R5)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR
THE ENTIRE RECORDS LEADING TO THE WRIT PETITION
NO.21766/2022 AND SET ASIDE THE ORDER DATED
10.07.2023 PASSED BY THE HON'BLE SINGLE JUDGE IN
WRIT PETITION NO.21766/2022 AND DISMISS WRIT
PETITION NO.21766/2022 FILED BY THE 5TH RESPONDENT
HEREIN AND ETC.
3
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 23/11/2024 COMING ON THIS DAY,
S.G.PANDIT J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT)
Respondent No.5 in this intra-court appeal under
Section 4 of the Karnataka High Court Act, 1961 is
questioning the correctness and legality of order dated
10.07.2023 in W.P.No.21766/2022, whereby
notification dated 19.08.2022 (Annexure-A)
appointing appellant as Director of Mandya Institute of
Medical Sciences (for short, 'MIMS') is set aside,
remanding the matter to first respondent -
Government to complete the entire proceedings
relating to appointment of the director of respondent
No. 3 - Institute in terms of the observations
made in the order, with an observation that not
to disturb respondent No. 5 herein from the
post of Director of respondent No.3 till completion of
the entire proceedings.
2. Parties would be referred to as they stood
before the learned Single Judge. Appellant was
respondent No.5 and respondent No.5 herein was
petitioner before the learned Single Judge.
3. Brief facts of the case are that, in
pursuance to the notification dated 18.07.2022 calling
application from the eligible candidates to fill up the
post of Director of respondent No.3 - MIMS, petitioner
as well as respondent No.5 applied for the said post.
Selection was to be made from among the Professors
working in MIMS on the basis of seniority-cum-merit.
In the process of selection, respondent No.5 was
selected and was appointed as Director of MIMS under
notification dated 19.08.2022 (Annexure-A).
Questioning the selection and appointment of fifth
respondent as Director of MIMS, petitioner was before
this Court in W.P.No.21766/2022 on various grounds
including the ground that respondent No.5 was not
eligible to participate in the selection process, since as
required, he was not working in third respondent -
MIMS and that Government has no power to appoint,
whereas Governing Council is the Appointing
Authority. Learned Single Judge accepting the
contentions of the petitioner set aside the selection
and appointment of respondent No.5, remitting the
matter to respondent No.1 to complete the entire
proceedings relating to appointment of Director to
respondent No.3 - Institution in terms of the
observations made in the order. Questioning the said
order of the learned Single Judge, respondent No.5 is
in appeal.
4. Heard the learned senior counsel
Sri.P.S.Rajagopal for Sri.Jayanth Dev Kumar, learned
counsel for appellant, learned Additional Advocate
General Sri.Ruben Jacob for Smt.B.Sukanya Baliga,
learned Additional Government Advocate for
respondent Nos.1 and 2, learned counsel
Sri.N.Jagadish Baliga for respondent No.3 and learned
senior counsel Sri.M.S.Bhagawath for Sri.Raghavendra
G. Gayathri, learned counsel for respondent No.5.
Perused the writ appeal papers as well as decisions
cited by learned counsel for the parties.
5. Learned senior counsel Sri.P.S.Rajagopal
would submit that learned Single Judge committed
an error in coming to the conclusion that the state
Government is not the appointing Authority, ignoring
the Bye-laws of the Institute. Learned senior counsel
would submit that the learned Single Judge
particularly ignored Rule 22 of the Mandya Institute
of Medical Sciences Rules and Regulations, 2013,
wherein it states that the appointment of Dean and
Director and others shall be by the Vice-Chairman of
the Governing council on the recommendation of the
Selection Committee constituted for the purpose in
accordance with the rules of recruitment which shall
be based on the MCI regulations. It is submitted that
the Vice-Chairman is the Secretary to Government
Health and Family Welfare Department (Medical
Education). Hence, the appointment made by the
Government is proper and correct on the
recommendation of the Selection Committee.
Learned senior counsel would submit that if Rule 18
and Rule 22 of the Rules as well as Bye-law 20 of
the Bye-laws of the Institute read together, it could
be safely said that the Appointing Authority is the
Government and the appointment of fifth respondent
as Director by the Government is proper and is in
accordance with Rules.
6. Learned senior counsel would further
contended that the learned Single Judge failed to
notice that though fifth respondent was working
outside the cadre, his lien continued at third
respondent-institute. As such, he would be eligible to
apply for the post of Director and rightly his case
was considered and appointed as Director of the
third respondent-Institute. Learned senior counsel
would submit that the petitioner was initially on
deputation to Kodagu Institute of Medical Sciences
(KIMS) as Director and thereafter his services were
utilized at Rajiv Gandhi University of Health Sciences
(RGUHS). It is submitted that by order dated
07.10.2014, respondent No.5/appellant was
appointed as Director of the KIMS for a term of four
years or until further orders and it was a tenure
appointment. It is submitted that when the fifth
respondent was deputed to KIMS as Director, one
Dr.B.R.Harish was promoted as Professor,
Community Medicine in the third respondent-
Institute. When the post of Professor, Community
Medicine was filled up, respondent No.5 made a
representation to retain his lien at the third
respondent-Institute. It is submitted that on
09.04.2015, Governing Council of third respondent-
Institute ordered continuance of appellant's lien at
the third respondent-Institute itself. Learned senior
counsel invites attention of this Court to Seniority
List of the Institute of the Cadre of Professors dated
03.08.2022 and submits that respondent
No.5/appellant is placed on Sl.No.3 with the date of
entry to the cadre of Professor as 01.03.2007
whereas, petitioner is placed at Sl.No.4 with date of
entry to the cadre of Professor as 03.05.2010.
7. Learned senior counsel invites attention of
this Court to Rule 20 of the KCSRs and submits that
his lien continued at third respondent-Institute,
though he was appointed as Director of KIMS and
subsequently to work at RGUHS. To buttress his
argument that fifth respondent's lien continued at
third respondent-Institute, learned senior counsel
places reliance on the decision of the Hon'ble Apex
Court in the case of L.R.PATIL VS. UNIVERSITY OF
GULBARGA1. Learned senior counsel would further
submit that when the fifth respondent lien is at third
respondent-Institute only because he is working on
deputation would not be ineligible from participating in
the selection process to the Director's post. Even
though petitioner is on deputation, he continues to be
an employee of third respondent-Institute. Moreso,
when his name reflects in the seniority list of cadre of
Professors and that unless he is appointed to a
substantive post, his lien would not get terminated at
2023 SCC OnLine 1110
the third respondent-Institute. Learned senior counsel
lastly contended that the writ petition was not
maintainable at the hands of the petitioner who is
ranked fourth in the merit list prepared by the
Selection Committee. It is submitted that even if
appellant/respondent No.5 is not eligible to be
appointed as Director, petitioner who is at fourth place
in the merit list cannot seek appointment as Director.
Thus, learned senior counsel would pray for allowing
the writ appeal and to set aside the order of the
learned Single Judge.
8. Per contra, learned senior counsel
Sri.M.S.Bhagawath appearing for the petitioner would
contend that Governing Council of the third
respondent-Institute is the Appointing Authority in
terms of the Bye-laws as well as 2013 Rules of the
third respondent-Institute. The first respondent -
Government has no role to play in the matter of
appointment and the impugned order of appointment
appointing fifth respondent as Director of third
respondent-Institute is contrary to the Bye-laws as
well as 2013 Rules of the Institute. In that regard,
learned senior counsel invites attention of this Court
to Rules 2(1)(c), 2(2), 18(3) and 20(2) of 2013 Rules.
Further, learned senior counsel referring to Clause
20(2) of 2013 Rules would submit that appointment of
Dean and Director shall be by the Vice-Chairman of
the Governing Council, which would mean that
appointment order could be issued by Vice-Chairman
on the recommendation of the Selection Committee.
Vice-Chairman referred therein relates to Vice-
Chairman of the Governing Council and it would not
refer to the Secretary to Government, Health and
Family Welfare Services (Medical Education). It is
submitted that the Secretary to Government, Health
and Family Welfare Services (Medical Education)
would act as Vice-Chairman, but in his capacity as the
Secretary, Health and Family Welfare Services
(Medical Education), cannot issue order of
appointment. When the Bye-laws and 2013 rules of
the third respondent-Institute would make it clear that
appointment of Director shall be by Governing Council,
first respondent-Government has no jurisdiction to
appoint the Director to the third respondent-Institute.
9. Learned senior counsel would further
submit that the Cadre and Recruitment Rules of the
third respondent-Institute makes it abundantly clear
that the candidates to the post of Director shall be
selected based on the seniority cum merit from
amongst the teachers in the same autonomous
institution, which would mean that the teacher
working in the third respondent-Institute as on the
date of calling application to fill up the post of
Director. A person who is not a teacher in the same
autonomous institution as on the date of calling
application would not be entitled to participate in the
selection process to the post of Director. It is
contended that the fifth respondent has lost his lien at
the third respondent-Institute when he is appointed as
Director of KIMS and when the vacancy by virtue of
fifth respondent's appointment as Director of KIMS is
filled up by one Dr.Harish. He submits that against a
single post, two persons cannot work or claim lien. It
is his alternative submission that even if the lien of
fifth respondent is continued at the third respondent-
Institute, he must be working as teacher as on the
date of calling applications to fill up the post of
Director. It is his submission that fifth respondent was
not working at the third respondent-Institute as on
the date of calling applications to fill up the post of
Director i.e., 18.07.2022. In support of his contention,
he invites attention of this Court to Annexure-F,
notification dated 18.07.2022 calling applications to fill
up the post of Director of third respondent-Institute
wherein it states that Professors working in the MIMS.
Thus, he supports the findings of the learned Single
Judge.
10. Learned senior counsel Sri.M.S.Bhagawath
referring to Rule 20(b) and (d) would submit that
when respondent No.5 is appointed as Director of
KIMS and to his place at third respondent-Institute,
Dr.Harish is promoted and appointed as Professor, lien
of respondent No.5 is deemed to have been
terminated. Further, learned senior counsel would
submit that only one substantive appointment is
permissible against one post. Therefore, he submits
that fifth respondent cannot claim that his lien would
continue at the third respondent-Institute.
11. With regard to contention of the fifth
respondent that writ petition itself was not
maintainable, learned senior counsel for the petitioner
would submit that the petitioner had participated in
the selection process and when a person who was not
eligible to participate in the selection process is
selected, a person who participated in the selection
process would acquire locus to challenge such
selection and appointment. Moreover, learned Single
Judge has directed for re-consideration of the entire
issue. Thus, he prays for dismissal of the writ appeal.
12. Learned Additional Advocate General for
learned Additional Government Advocate for
respondent Nos.1 and 2 as well as learned counsel
Sri.N.Jagadish Baliga for respondent No.3 submitted
that looking to the facts and circumstances of the
case, pray for passing appropriate order.
13. Having heard the learned senior counsel as
well as other counsel appearing for the parties and on
perusal of the writ appeal papers, the only point which
falls for our consideration is as to,
"Whether the learned Single Judge's
order under appeal requires interference at
the hands of this Court?"
14. The answer to the above point would be in
the negative for the following reasons:
15. The third respondent-Institute is an
autonomous independent Institute having its own
Memorandum of Association (Annexure-B) and Bye-
Laws i.e., Mandya Institute of Medical Sciences,
Mandya Bye-laws, 2013. The management of the
institute is vested with the Governing Council of the
Institute. Minister for Medical Education is the
Chairman and the Secretary to Government, Health
and Family Welfare Department (Medical Education) is
the Vice-Chairman and there are other officials who
are members of the Governing Council. The Director-
cum-Dean of Mandya Institute of Medical Sciences,
Mandya being the Member Secretary. In terms of
2013 Bye-laws, the appointing authority is defined to
mean the Karnataka Government in respect of first
Dean/Director, Vice-Chairman of the Governing
Council in respect of subsequent Dean/Director.
Further, for selection of Dean and Director, selection
committee in terms of Bye-law No.12 shall be
constituted and method of selection is prescribed
under Bye-law No.15. Bye-law No.24 would provide
for application of other rules of the State Government
insofar as service condition of the employees of the
third respondent-Institute. In terms of Mandya
Institute Medical Sciences, Mandya Rules and
Regulations, 2013, the 'appointing authority' means
Governing Council in respect of the subsequent
Dean/Director. Rule 18(3) of 2013 Rules would
categorically state that the Governing Council shall
appoint the Dean-cum-Director through a selection
process and the term of the Dean-cum-Director is for
a period of four years. Rule 20(2) would further state
that the appointment of Dean and Director shall be by
the Vice-Chairman of the Governing Council on the
recommendation of the selection committee
constituted for that purpose.
16. From the cumulative reading of the above
Bye-Laws and 2013 Rules, it is abundantly clear that
the Governing Council is the appointing authority in
respect of the Director of the third respondent-
Institute. The selection of Director shall be by
selection committee constituted by the Governing
Council in terms of Bye-law No.12 of 2013 Bye-laws.
The contention of the learned senior counsel for
respondent No.5, referring to Rule 20(2) of 2013
Rules that the order issued by Secretary to
Government, Health and Family Welfare Department
(Medical Education) who is Vice-Chairman of the
Governing Council is proper and correct cannot be
accepted. A perusal of the impugned order, appointing
fifth respondent as Director of third respondent-
Institute is not in the capacity of the Vice-Chairman of
the Governing Council of third respondent-Institute,
but it is in the capacity of Secretary to Government,
Health and Family Welfare Department (Medical
Education). Being Secretary of the Health and Family
Welfare Department (Medical Education), he would be
Vice-Chairman of the third respondent-Institute and
as Vice-Chairman, he could issue appointment order
on the advice of the Governing Council and selection
committee. Therefore, the finding of the learned
Single Judge that the Governing Council is the
competent authority to appoint the Director needs no
interference.
17. The respondent No.3 under Notification
dated 18.07.2022 (Annexure-F) invited applications
from the eligible candidates to fill up the post of
director in the third respondent-Institute. The
eligibility criteria as stated in the notification reads as
follows:
"CºÀðvÁ ªÀiÁ£ÀzÀAqÀUÀ¼ÀÄ:
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ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ.
2. PÀ£ÁðlPÀ ¸ÀPÁðj ¸ÁéAiÀÄÄvÀÛ ªÉÊzÀåQÃAiÀÄ
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¥ÁæzsÁå¥ÀPÀgÀÄ DV PÀvÀðªÀå ¤ªÀð»¹zÀ ¨ÉÆÃzsÀ£Á
C£ÀĨsÀªÀ ºÉÆA¢gÀ¨ÉÃPÀÄ. F ¥ÉÊQ «¨sÁUÀªÉÇAzÀgÀ°è
PÀ¤µÀ× 05 ªÀµÀð ¥ÁæzsÁå¥ÀPÀgÁV ¸ÉÃªÉ ¸À°è¹gÀ¨ÉÃPÀÄ.
¥ÁæzsÁå¥ÀPÀgÀÄ ºÁUÀÄ «¨sÁUÀzÀ ªÀÄÄRå¸ÀÜgÁV PÀvÀðªÀå
¤ªÀð»¹zÀªÀjUÉ DzÀåvÉ ¤ÃqÀ¯ÁUÀĪÀÅzÀÄ. C¨sÀåyðUÀ¼ÀÄ
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¥ÁæzsÁå¥ÀPÀgÀ ªÀÈAzÀzÀ eÉõÀ×vÁ ¥ÀnÖ C£ÀĸÁgÀ
C¨sÀåyðUÀ¼À£ÀÄß ¤zÉÃð±ÀPÀgÀÄ ºÀÄzÉÝUÉ DAiÉÄÌ
ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ.
4. ¥ÁæzsÁå¥ÀPÀ ªÀÈAzÀzÀ ¸ÉêÁ eÉõÀ×vÁ
¥ÀnÖAiÀÄ°ègÀĪÀ EZÉÑAiÀÄļÀî 05 ªÀÄA¢ ¥ÁæzsÁå¥ÀPÀgÀÄUÀ¼À£ÀÄß
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CºÁ餸À¯ÁUÀĪÀÅzÀÄ.
5. ¤zÉÃð±ÀPÀgÀÄ ºÀÄzÉÝUÉ Cfð¸À°è¸ÀĪÀ
C¨sÀåyðUÀ¼ÀÄ PÀ¤µÀ× 05 ªÀµÀð ªÉÊzÀåQÃAiÀÄ C¢üÃPÀëPÀgÀ
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6. J£ï.JA.¹/JA.¹.L EAzÀ ªÀiÁ£ÀåvÉ ¥ÀqÉzÀ
¸ÀA¸ÉÜUÀ½AzÀ ªÉÊzÀåQÃAiÀÄ ²PÀëtzÀ°è ¸ÁßvÀPÉÆÃvÀÛgÀ
¥ÀzÀ«AiÀÄ£ÀÄß ºÉÆA¢gÀ¨ÉÃPÀÄ ºÁUÀÆ ¤zÉÃð±ÀPÀ
ºÀÄzÉÝAiÀÄ £ÉêÀÄPÁwUÁV CºÀðvÉ ªÀÄvÀÄÛ
CºÀðvÁ ªÀiÁ£ÀzÀAqÀUÀ¼À£ÀÄß J£ï.JA.¹/JA.¹.L
¤AiÀĪÀiÁªÀ½UÀ¼À£ÀéAiÀÄ ºÁUÀÆ ªÀÄAqÀå ªÉÊzÀåQÃAiÀÄ
«eÁߣÀUÀ¼À ¸ÀA¸ÉÜAiÀÄ ¨ÉʯÁUÀ¼À£ÀéAiÀÄ ¥ÀjUÀt¸À¯ÁUÀĪÀÅzÀÄ.
7. Cfð ¸À°è¸ÀĪÀ C¨sÀåyðAiÀÄ ªÀAiÀĸÀÄì 58
ªÀµÀð «ÄÃjgÀ¨ÁgÀzÀÄ CxÀªÁ Cfð ¸À°è¸ÀĪÀ PÉÆ£ÉAiÀÄ
¢£ÁAPÀzÀAzÀÄ ªÀAiÉÆà ¤ªÀÈwÛ ºÉÆAzÀ®Ä PÀ¤µÀ× 02
ªÀµÀðUÀ¼À ¸ÉêÁ CªÀ¢ü «ÄÃjgÀ¨ÁgÀzÀÄ.
8. C¨sÀåyðAiÀÄÄ PÀqÁØAiÀĪÁV SÁAiÀÄA ¥ÀƪÀð
¸ÉêÁªÀ¢üAiÀÄ£ÀÄß ¥ÀÆtðUÉƽ¹gÀ¨ÉÃPÀÄ."
18. The first condition itself makes it
abundantly clear that the selection to the post of
Director of third respondent-Institute could be from
amongst the senior most Professors working in the
Institute. Further, it also makes it clear that in terms
of the seniority list of the Professors of the third
respondent-Institute, five senior most Professors could
participate in the selection process.
19. Learned senior counsel for respondent No.5
submitted that since lien of respondent No.5 continued
and the name of respondent No.5 is shown in the
seniority list of Professors of third respondent-Institute,
he could participate in the selection process and his
selection is justified. But, the said contention cannot be
accepted. It is relevant to note that on appointment of
respondent No.5 as Director of KIMS, he has never come
back to work as Professor to the third respondent-
Institute. Moreover, on his appointment as Director to
KIMS, post of Professor in Community Medicine in the
third respondent-Institute is filled up by promoting one
Dr.B.R.Harish as Professor, Community Medicine. The
same is reflected in Annexure-GG, O.M. dated
01.01.2022, the seniority list of the cadre of Professors
in the third respondent-Institute as on 01.01.2022. The
said seniority list dated 01.01.2022 also indicates that
Dr.B.R.Harish reported to duty on 24.11.2014
subsequent to vacancy caused by respondent No.5 on
his appointment as Director, KIMS.
20. It is also clear from Rule 20 of KCSRs that
only one substantive appointment is permissible against
a vacant permanent post. Two persons or two Professors
cannot hold the post at the same time. In terms of Rule
20(b), on appointment or on deputation of respondent
No.5 as Director of KIMS, lien of the petitioner is
deemed to have been suspended or terminated. Even if
the petitioner's appointment as Director of KIMS is
considered as deputation which is for more than three
years, it is to be held that lien of respondent No.5 is
deemed to have been suspended or terminated.
21. Learned senior counsel for respondent
No.5/appellant placed reliance on the decision of the
Hon'ble Apex Court in L.R.PATIL (supra) to contend
that the respondent No.5's lien continued at third
respondent-Institute. In L.R.PATIL (supra), the Hon'ble
Apex Court was considering the question as to whether
in the facts of that case, on joining the new post, the
appellant's lien on the original/previous post will be
continued to be maintained, until he is permanently
absorbed in the new department or cadre in which he is
subsequently appointed? The Hon'ble Apex Court was
considering Rule 252(b) of the KCSRs along with Note-4
to Rule 20 of KCSRs. In L.R.PATIL (supra), L.R.Patil
was working as Office Superintendent in Gulbarga
University and while he was working as such, in
pursuance to notification inviting applications to fill up
the post of Assistant Registrar by direct recruitment, he
applied for the said post and was selected. As his
selection for the post of 'Assistant Registrar', L.R.Patil
was relieved from the post of Office Superintendent
recording that he has been relieved to accept another
appointment as Assistant Registrar in the same
University. The said appointment as Assistant Registrar
was on probation for a period of two years. Under the
said circumstances, the Hon'ble Apex Court held that
L.R.Patil's lien would continue in his previous post until
he is confirmed in the new post as Assistant Registrar.
The facts in the present case are entirely different.
22. The Hon'ble Apex Court in the case of
RAMLAL KHURANA (DEAD) BY LRS VS. STATE OF
PUNJAB2, has observed that 'lien' is not a word of art
and it connotes the right of a civil servant to hold the
post substantively to which he is appointed, meaning
thereby the appointment of Government servant on the
said post must be substantive as he/she cannot hold two
posts simultaneously in two different cadres and
maintain lien on both of them at the same time. In the
instant case also, petitioner who is appointed
substantively as Director of KIMS could not hold two
posts simultaneously in two different cadres i.e., as
Director of KIMS and as Professor, Community Medicine
at third respondent-Institute. Moreover, the post of
Professor in 3rd respondent-Institute subsequently is
filled up by promotion of one Dr.Harish B.R.
(1989) 4 SCC 99
23. On behalf of respondent No.5/appellant, it is
contended that the writ petition was not maintainable at
the hands of the petitioner as he is ranked fourth by
merit ranking by the selection committee. The said
contention cannot be accepted for the reason that
petitioner was also a participant in the selection process
to the post of Director of the third respondent-Institute
and when a person who is not entitled to participate in
the proceedings is selected and appointed, a person who
participated in the selection process would get locus to
challenge such selection and appointment. Moreover,
learned Single Judge after quashing the appointment of
fifth respondent as Director of third respondent-Institute
has remitted the matter to the first respondent. In terms
of the order of the learned Single Judge, entire selection
process shall have to be re-considered from the stage of
placing the proceedings of the selection committee
before the Governing Council of third respondent-
Institute, then proceed further in accordance with law.
As this Court and learned Single Judge have come to the
conclusion that Governing Council is the competent
authority to appoint the Director of third respondent-
Institute, the entire selection process is remitted back to
the Governing Council of third respondent-Institute to
proceed in accordance with law. Learned Single Judge's
order is modified only to the above extent.
24. For the reasons recorded above, writ appeal
stands disposed of. The Governing Council of third
respondent as well as first respondent are given four
weeks time from the date of uploading of this order in
the Website of the High Court of Karnataka, Bengaluru
to complete the selection process of the Director of third
respondent-Institute.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(RAMACHANDRA D HUDDAR)
JUDGE
NC
CT:bms
