Dr. Indira Gurajala vs Nizams Institute Of Medical ...
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      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                WRIT PETITION NO.28121 OF 2022
                                  AND
                WRIT PETITION NO.32250 OF 2022


                          COMMON ORDER


      In these Writ Petitions, the petitioners are seeking a Writ of

Mandamus declaring the action of the respondents in filling up of the

posts of Professors in the respondent University (NIMS) by way of

promotions without following the UGC Regulations and in calling for

applications only from in-service candidates, i.e., identified personnel in

the University, as illegal and contrary to Act 13 of 1989 and the

Standing Order No.2 dt.30.01.1992 and consequently to direct the

respondents to notify the posts of Professors in terms of the Standing

Order No.2 dt.30.01.1992 and to direct the respondents to consider the

candidature of the petitioners for the post of Professors and to pass such

other order or orders as this Court may deem fit and proper in the

circumstances of the case.

2. Brief facts leading to the filing of W.P.No.32250 of 2022 are that

the petitioner has passed MBBS, MD and is a holder of Fellowship of W.P.Nos.28121 & 32250 of 2022

National Board of Examinations in Cardiac Anaesthesia and claims to

have a teaching experience of 19 years. The petitioner has been working

as Associate Professor from 2014 and as Additional Professor from

2020 in the Department of Anaesthesiology of the respondent

University. It is submitted by the petitioner that the respondents had

issued a Notification Rc.No.HR1/41/2022/R, dt.04.02.2022 inviting

applications from the eligible candidates for filling up of the posts of

Professors in various Departments including Anaesthesiology and the

last date for the applications was 28.02.2022. It is submitted that the

petitioner, being fully eligible for the post of Professor in

Anaesthesiology, was planning to apply for the post, but the respondents

issued a paper Notification published in New Indian Express paper

dt.17.02.2022 cancelling the Notification due to administrative reasons.

It is submitted that the respondents have issued an In-house Circular

Rc.No.HR1/387/2022/F dt.22.04.2022 stating that the Institution is

planning to conduct promotion (Additional Professor to Professor) for

the Faculty Members working in various Departments and identified 19

Additional Professors who were required to apply for promotion in the

Annexure enclosed to the Notification. It is submitted that in the said

Memo, Dr. M.Srilatha and Dr. Kanithi Geetha from the Department of W.P.Nos.28121 & 32250 of 2022

Anaesthesiology were invited to make application for the post of

Professor. It is submitted that on coming to know about the same, the

petitioner has made a representation dt.25.04.2022 objecting to the

calling of applications from a few selected Faculty members for

appointment as Professors by citing repealed Standing Order No.1 as

irrational and requested to do justice by notifying the posts of Professors

for selection so that the petitioner along with other eligible candidates

may apply. When the respondents did not take any action on the

representation of the petitioner but proceeded to conduct interviews to

the selected candidates, i.e., Additional Professors in the Department of

Anaesthesiology on 08.08.2022 and the interview were scheduled for

posts of Additional Professors to Professors in other Departments on

11.08.2022, the petitioner has filed W.P.No.32250 of 2022.

3. Similarly, in the case of the petitioner in W.P.No.28121 of 2022,

the petitioner claims to have applied for the post of Professor in Neuro

Surgery and he is also aggrieved by cancellation of the Notification

dt.07.02.2022 and issuance of the Circular dt.22.04.2022 calling for in-

service candidates only for interviews for promotion of Additional

Professors to Professors.

W.P.Nos.28121 & 32250 of 2022

4. Since both the Writ Petitions are on the same set of facts, they

were heard together and are being disposed of by this common and

consolidated order.

5. Respondents 1 and 2 in W.P.No.32250 of 2022 have filed their

counter affidavit. The affected parties and whose names are mentioned

in the writ affidavit in W.P.No.32250 of 2022 have filed the implead

petition and were allowed to be impleaded by the order of this Court.

Subsequently, they have also filed a counter affidavit along with a stay

vacate petition.

6. Similarly, in W.P.No.28121 of 2022 also, the affected party has

got herself impleaded and has filed a counter affidavit. The official

respondents, i.e., respondents 2 to 4 have also filed their counter

affidavit.

7. Learned Senior Counsel, Sri G.Vidya Sagar, who represented the

petitioner in W.P.No.32250 of 2022, also appeared for the petitioner in

W.P.No.28121 of 2022. He submitted that respondents 1 and 2 in

W.P.No.32250 of 2022 are the representatives of the University, i.e., its

Director and Dean respectively. He submitted that the respondent W.P.Nos.28121 & 32250 of 2022

University is governed by the UGC Guidelines for appointment of

Professors, Additional Professors and Associate Professors. It is

submitted that initially, Standing Order No.1 dt.25.09.1990 was issued

by the University providing a procedure of appointments by direct

recruitment and promotions in the ratio of 25:75. As per the said

Standing Order, Lecturers and Assistant Professors Grade-II were to be

appointed by a Selection Committee who shall consider the claims of

the eligible in-service Senior Lecturers and place them before a

Committee consisting of the Director, Dean, Head of the Department

and a Local Expert in the specialisation concerned. Only where there are

no qualified Senior Lecturers for appointment by promotion,

appointments shall be made by direct recruitment and not less than three

fourths of the vacancies in each category of Posts of Assistant

Professors Grade-I, Associate Professors and Professors in each

Department shall be filled by promotion as far as possible and the

remaining one fourth of the vacancies shall be filled by direct

recruitment, for which persons in service of NIMS also shall be eligible

to apply. Procedure for direct recruitment was provided directing that

wherever any vacancy or vacancies under direct recruitment quota are to

be filled, the same shall be advertised and filled following the procedure W.P.Nos.28121 & 32250 of 2022

of interviewing the candidates and making selections to the posts by the

Selection Committee constituted under Section 22 of the NIMS Act.

8. The learned Senior Counsel for the petitioners submitted that

subsequently, the Standing Order No.1 has been repealed by way of

Standing Order No.2 dt.30.01.1992 and it was provided that all the posts

of Assistant Professors, Associate Professors, Additional Professors and

Professors shall be filled by direct recruitment only. It is submitted that

thereafter, Standing Order No.35 dt.20.09.1995 was issued modifying

the Guidelines issued in the Standing Order No.2, by providing that the

Guidelines mentioned therein will apply to all appointments, by

promotion to the posts of Associate Professors and Additional

Professors which shall be filled up by promotion to the extent of 75% of

the vacancies and only 25% are to be filled by direct recruitment.

9. The learned Senior Counsel for the petitioners submitted that

though Standing Order No.1 has been repealed by Standing Order No.2,

the respondents have issued Circular/Notification dt.22.04.2022 by

referring to the Guidelines for promotion, vide Standing Order No.1

dt.20.09.1995. Therefore, he submitted that respondents 1 and 2 have

not followed their own Guidelines for promotion. He further countered W.P.Nos.28121 & 32250 of 2022

the argument averred in the counter affidavit of respondents 1 and 2 that

the Executive Body have subsequently passed a Resolution No.1588

dt.23.05.2022 approving the implementation of Assessment Promotion

Scheme in NIMS on par with AIIMS, New Delhi and direct recruitment

up to a maximum of 25% of posts in the cadre of Associate Professor

and Professor was also approved based on requirement. He submitted

that the Resolution is subsequent to the Circular/Notification and

therefore, the respondents cannot rely upon the said Resolution for

upholding the Circular/Notification.

10. The learned Standing Counsel for the respondents No.1 and 2

University has relied upon the averments made in the counter affidavit

and submitted that NIMS is funded by the State Government and it is an

Autonomous Body and therefore is not governed by UGS Regulations.

It is further submitted that it is the Executive Board of the respondent

University which is empowered under Section 12 of the NIMS Act to do

varied acts ranging from (i) appointment of officers and employees for

carrying out the management and affairs of the Institute, for conduct of

the studies, investigations, research, teaching or other work undertaken

by the Institute; and (ii) exercise disciplinary control over them and W.P.Nos.28121 & 32250 of 2022

other incidental activities including exercise all the powers of the

Institute not otherwise provided for and all powers requisite to give

effect to the provisions of the NIMS Act or the Rules made thereunder.

It is submitted that the 2nd respondent has been functioning on the lines

of AIIMS, New Delhi and other Central Government Institutes and as

such, the Executive Board of the Institute has passed Resolution

No.1588 on 23.05.2022 making applicable the Assessment Promotion

Scheme to the cadres of the Associate Professor, Additional Professor

and Professors in NIMS as well. It is submitted that direct recruitment

posts are vacancy based and eligible candidates from outside can also

apply pursuant to the Notification and the minimum teaching experience

to attain eligibility for promotion to the post of Professor has also been

revised as per AIIMS, New Delhi and other Central Institutes and that

the petitioners do not fulfil the said eligibility criteria. It is further

submitted that the Assessment Promotion Scheme on par with AIIMS,

New Delhi is approved for implementation by the Executive Board in its

82nd meeting vide Resolution dt.23.05.2022 and therefore, applications

are invited from the in-service candidates for promotion from the post of

Additional Professors to that of Professors.

W.P.Nos.28121 & 32250 of 2022

11. It is submitted that the Internal Circular dt.22.04.2022 was issued

as per the existing Guidelines, i.e., assessment promotions are to be

made applicable to the cadres of Associate Professor, Additional

Professor and Professor. The Institute may induct faculty by direct

recruitment up to a maximum of 25% of posts in the cadre of Associate

Professor and Professor based on requirement. It is further submitted

that earlier cited Notifications were issued based on the old Guidelines,

whereas the existing Guidelines are issued based on Resolution No.1397

of the 70th meeting held on 20.04.2015, Resolution No.1481 of the 72nd

meeting held on 14.05.2016 and Resolution No.1588 of the 82nd meeting

held on 23.05.2022 of the Executive Board. The internal Circular for

assessment promotion was issued based on the current Guidelines and

therefore it is in no terms in violation of any Rule or Guideline. It is

submitted that direct recruitment as prescribed under the Guidelines

shall be made applicable with due notification in the public domain. It is

further submitted that as per the modified Guidelines, the criteria of

eligibility is reduced from 4 years to 3 years and accordingly the

petitioners, who have to yet put in required number of years of service, W.P.Nos.28121 & 32250 of 2022

have a fair chance of promotion under the Assessment Promotion

Scheme.

12. The unofficial respondents in W.P.No.32250 of 2022, i.e.,

respondents 3 and 4, have also filed their counter affidavit along with a

stay vacate petition and submitted that by virtue of Standing Order

No.35, Standing Order No.2 has been repealed and therefore, Standing

Order No.1 would get revived and the Notification issued in accordance

with Standing Order No.1 has to be upheld.

13. Similarly, in the case of W.P.No.28121 of 2022 also, the official

respondents 2 to 4 have filed counter affidavit stating that the petitioner

therein is not fulfilling the qualifications required for the post of

Professor and as such he is not eligible for the said post of Professor.

However, it is also mentioned that the eligibility or otherwise of the

petitioner would be decided during the course of selection process and

that the post of Professor of Neuro Surgery is being filled up by way of

Assessment Promotion only and in the event of non-availability of in-

service suitable faculty, the Institute would invite and consider

applications from outsiders.

W.P.Nos.28121 & 32250 of 2022

14. Having regard to the rival contentions and the material on record,

it is noticed that both the writ petitioners are challenging the

Circular/Notification dt.22.04.2022 calling for applications from a few

candidates mentioned therein selectively by the University by referring

to Standing Order No.1, even though it has been repealed by Standing

Order No.2.

15. Having regard to the rival contentions and the material on record,

this Court finds that in these Writ Petitions, the question to be

considered is whether the Circular dt.22.04.2022 has been issued as per

the Rules/Guidelines in force at the time of issuance of the Notification,

i.e., dt.22.04.2022. The Notification refers to Standing Order No.1

dt.25.09.1990. Standing Order No.1 provides for 75% of the vacancies

to be filled up by promotions and the balance of 25% are to be filled by

direct recruitment. Standing Order No.2 dt.30.01.1992 provides for

filling up of 100% vacancies only by direct recruitment. Standing Order

No.2 which has been modified by Standing Order No.35 dt.20.09.1995

provides for application of Assessment Promotion Scheme in respect of

75% of the vacancies of the Associate Professor and Additional

Professor and the balance 25% vacancies to be filled up are by direct W.P.Nos.28121 & 32250 of 2022

recruitment and wherever suitable candidates are not available, then

such vacancies are to be filled by direct recruitment. Standing Order

No.35 does not refer to the posts of Professors. Whether the

modification of Standing Order No.2 and repeal thereof would revive

Standing Order No.1 is the moot question in this Writ Petition.

16. It is noticed that the Standing Orders are issued on the basis of the

Resolutions passed by the Executive Board from time to time. Standing

Order No.35 dt.20.09.1995 repeals Standing Order No.2 of 1992 only in

so far as they are inconsistent with the Guidelines in Standing Order

No.35. In the said Standing Order, there is a reference only to the

Associate Professors and Additional Professors and even in the

eligibility criteria, there is a reference only to the eligibility criteria for

promotion of an Assistant Professor as Associate Professor and

promotion of Associate Professor as Additional Professor. Therefore,

Standing Order No.35 would be applicable only to the posts of

Associate and Additional Professors and not to the posts of Professors

and therefore, it is seen that the Guidelines in Standing Order No.2 stand

repealed only with regard to the promotions to the posts of Associate

Professors and Additional Professors and not to the posts of Professors.

W.P.Nos.28121 & 32250 of 2022

17. However, from the documents filed by the respondents 1 and 2

along with the counter affidavit in W.P.No.28121 of 2022, it is noticed

that there has been a change in the recruitment process from time to time

by the Resolutions passed by the Executive Board. Standing Order No.1

refers only to three posts, i.e., Assistant Professors, Associate Professors

and Professors, whereas Standing Order No.2 refers to four tier system,

i.e., Assistant Professors, Associate Professors, Additional Professors

and Professors. Vide Resolution Nos.1337 and 1338 of 65th meeting of

the Executive Board of respondents 1 and 2 held on 02.05.2014, a three

Member Committee was constituted to review the guidelines for faculty

cadres, qualifications and promotions. The Committee submitted its

report on 09.08.2014 and one of the recommendations of the Committee

was to abolish the post of Additional Professors as MCI (Medical

Council of India) did not have the cadre of Additional Professor. It was

also recommended that the existing Additional Professors be re-

designated as Professors from the date of their eligibility with pay and

allowances as a onetime measure with effect from 01.07.2014 or a date

as decided by the Executive Board. It was also recommended that all the

posts of Assistant Professors are to be filled up by direct recruitment and W.P.Nos.28121 & 32250 of 2022

with regard to the posts of Associate Professors, a maximum of 25% of

the posts shall be filled by direct recruitment depending on the need of

the department for patient care, super speciality development, teacher

requirements to fulfil MCI norms, on the recommendations of the Head

of the Department and Dean and whenever a Professor post falls vacant,

either by resignation or by superannuation, and if eligible internal

candidates are not available, direct recruitment may be allowed based on

the recommendations of the Dean and Director. It was further

recommended that assessment promotions are to be conducted six

monthly and the date of promotion is from the date of eligibility and the

recommendations may be made prospectively. The assessment

promotions were recommended to be made applicable to Associate

Professor and Professor cadres and when a faculty member is eligible

for promotion, he/she will be called upon to appear for the interview and

if he/she is found suitable, then he/she can be promoted to the higher

cadre irrespective of the vacancy in that cadre.

18. It is noted that in its 70th Meeting held on 20.04.2015, the

Executive Board has passed Resolution No.1397 resolving to approve

the Committee recommendations and implement them. Thereafter, vide W.P.Nos.28121 & 32250 of 2022

letter dt.13.06.2016, the Director of the 1st respondent University had

intimated that after the Resolution was passed in the 70th meeting of the

Executive Board held on 20.04.2015, the institute has issued orders for

implementing 3 tier system in NIMS in place of 4 tier system vide

Office Order bearing No.HR1/646/2014/F, dt.03.08.2015, but there was

unrest prevailing amongst the NIMS faculty on the issue of 3 tier

system, the Government has appointed a 5 Member Committee with Dr.

Raja Reddy as Chairman vide G.O.Rt.No.543 dt.25.08.2015 and the

matter was discussed in the 72nd meeting of the Executive Board held on

14.05.2016 and vide Resolution No.1481, it was resolved to follow 4 tier

system for recruitment and promotions of the faculty in NIMS as per

previous rules. Therefore, it was intimated that the orders issued vide

reference No.1, i.e., Office Order bearing No.HR1/646/2014/F,

dt.03.08.2015 was cancelled and it was decided to follow the 4 tier

system with immediate effect. A copy of the minutes of the 72nd meeting

of the Executive Board held on 14.05.2016 and Resolution No.1481

thereunder is also filed. From the copy of the minutes of the meeting of

the 82nd Executive Board held on 23.05.2022, it is noticed that one of

the subjects for discussion was on "recruitment and promotion to the

faculty and orders to implement". There is a reference to report of the 3 W.P.Nos.28121 & 32250 of 2022

Member Committee constituted as per 65th meeting of the Executive

Board and its report submitted to the 70th Executive Board meeting for

applying Assessment Promotion Scheme to the post of Professor. It was

observed that the recent revision was brought to the notice of the

Executive Board and the proposal was placed before the Executive

Board for perusal and implementation. It was observed that Assistant

Professor posts are to be filled by direct recruitment incorporating the

Rule of Reservation and Assessment Promotions are to be made

applicable to the cadres of Associate Professor, Additional Professor and

Professor and the Institute may induct faculty by direct recruitment up to

a maximum of 25% of posts in the cadre of Associate professor and

professor based on requirement. After considering the above subject,

Resolution No.1588 has been passed, i.e., (i) Assessment Promotion

Scheme on par with AIIMS, New Delhi is approved for implementation;

(ii) Direct recruitment up to a maximum of 25% of posts in the cadre of

Associate Professor and Professor based on requirement is also

approved. From a reading of the above minutes of the 82nd meeting of

the Executive Board, it appears to be only a reiteration of the position of

adopting the Assessment Promotion Scheme on par with AIIMS, New W.P.Nos.28121 & 32250 of 2022

Delhi as was being done earlier and not a fresh Resolution to adopt the

same.

19. The learned Senior Counsel for the petitioners has placed reliance

upon the judgment of the Hon'ble Supreme Court in the case of

N.T.Devin Katti and others Vs. Karnataka Public Service

Commission and others1 for the proposition that where selection

process was initiated by issuing advertisement inviting applications,

selection normally should be regulated by the rule or order then

prevailing and when the advertisement expressly states that appointment

shall be made in accordance with the existing rule or order, subsequent

amendment in the existing rule or order will not affect the pending

selection process unless contrary intention is expressly or impliedly

indicated. Thus, according to the learned counsel for the petitioners,

reliance of the respondents 1 and 2 on the Resolution No.1588

dt.23.05.2022, which is passed after issuance of the Circular

dt.22.04.2022, is not sustainable.

20. The learned Special Government Pleader appearing for the

learned Advocate General for the respondent University has relied upon

(1990) 3 SCC 157 W.P.Nos.28121 & 32250 of 2022

the Nizam's Institute of Medical Sciences Act, 1989 to demonstrate that

it is the Executive Board which has the powers of appointing number of

officers and other employees and on such terms and conditions as it may

deem fit for carrying out the management and affairs of the Institute and

also appointing number of persons and on such terms and conditions as

it may deem fit as for the conduct of the studies, investigations,

research, teaching or other work undertaken by the Institute and to

exercise control and discipline over the employees of the Institute.

Therefore, according to him, the Resolutions passed by the Executive

Board are binding on respondents 1 and 2 and the introduction of 4 tier

system and Assessment Promotion Scheme in proportion to the posts of

Associate Professor, Additional Professor and Professor is as per rules

in force. He submitted that reference to Standing Order No.1 is only by

mistake, but the Notification has been issued strictly in accordance with

the Resolutions of the Executive Board.

21. The learned counsel for the implead respondents 3 and 4 in

W.P.No.32250 of 2022 has placed reliance upon the judgment of the

Hon'ble Supreme Court in the case of P.U. Joshi and others, Union of

India and others Vs. the Accountant General, Ahmedabad and W.P.Nos.28121 & 32250 of 2022

others2 for the proposition that in respect of constitution, pattern,

nomenclature of posts, cadres, categories, their creation/abolition,

prescription of qualifications and other conditions of service including

avenues of promotions and criteria to be fulfilled for such promotions,

all of them pertain to the field of policy and fall within the exclusive

discretion and jurisdiction of the State, subject, of course, to the

limitations or restrictions envisaged in the Constitution of India and it is

not for the Statutory Tribunals, at any rate, to direct the Government to

have a particular method of recruitment or eligibility criteria or avenues

of promotion or impose itself by substituting its views for that of the

State. It is further submitted that the Hon'ble Supreme Court has held

that there is no right in any employee of the State to claim that rules

governing conditions of his service should be forever the same as the

one when he entered service for all purposes and except for ensuring or

safeguarding rights or benefits already earned, acquired or accrued at a

particular point of time, a Government servant has no right to challenge

the authority of the State to amend, alter and bring into force new rules

relating to even an existing service.

Case Nos. Appeal (Civil) 4679-4680 of 1996 and Appeal (Civil) 10983 of 1996 dt.19.12.2002 W.P.Nos.28121 & 32250 of 2022

22. The learned counsel for the implead respondents 3 and 4 in

W.P.No.32250 of 2022 has further relied upon the judgment of a

Division Bench of this Court in the case of D. Srinivasa Rao Vs. The

High Court of Judicature at Hyderabad3 for the proposition that

when the selection process was cancelled on administrative grounds,

there is no requirement of law to specify the administrative ground for

which the selection process was cancelled. Therefore, the learned

counsel representing the implead respondents 3 and 4 in W.P.No.32250

of 2022 submitted that the petitioners cannot challenge the cancellation

of the earlier Notification dt.04.02.2022 and have no right to question

the method of selection adopted by respondents 1 and 2 University.

23. In view of the above judicial precedents and also the factual

matrix, it is evident that after issuance of Standing Order No.2 and also

Standing Order No.35, there have been series of Executive Board

meetings and Resolutions have been passed amending the Guidelines for

appointment and promotion to the posts of Assistant Professors,

Associate Professors, Additional Professors and Professors. By the said

Resolutions, though Standing Order No.1 has not exactly been revived,

W.P.No.42874 of 2016 dt.09.08.2019 W.P.Nos.28121 & 32250 of 2022

the provisions thereunder have been revived and therefore, respondents

1 and 2 University might have issued the Internal Circular dt.22.04.2022

referring to Standing Order No.1. Even if the Standing Order No.1 is

wrongly referred to and is not applicable to the appointments to be made

to the post of Professors, this Court finds that the extant rules provided

for Assessment Promotion Scheme to be applicable and hence, the

action of the respondent University in issuing the Internal Circular

dt.22.04.2022 inviting applications from the eligible candidates

internally cannot be found fault with. In view of the same, the Writ

Petitions are liable to be dismissed, particularly in the light of the

submissions of the respondents 1 and 2 that both the writ petitioners did

not fulfil the eligibility criteria for appointment as Professors, even if a

public notification were to be issued.

24. The learned counsel for the respondents 3 and 4 in W.P.No.32250

of 2022 has submitted that due to the interim order of this Court

dt.10.08.2022, the promotion of only these respondents has been stayed,

whereas in the other departments, the promotions have been given

subject to the outcome of W.P.No.32250 of 2022. He submitted that

respondents 1 and 2 in W.P.No.32250 of 2022 may be directed to grant W.P.Nos.28121 & 32250 of 2022

promotions to respondents 3 and 4 herein with effect from the date of

their eligibility, i.e., the date on which their interviews have been

conducted and they were found to be eligible.

25. Therefore, respondents 1 and 2 in W.P.No.32250 of 2022 are

directed to consider the case of respondents 3 and 4 whose possible

promotion has been stayed by virtue of the interim order of this Court

dt.10.08.2022 which was extended from time to time and to pass orders

accordingly.

26. The Writ Petitions are accordingly dismissed. No order as to

costs.

27. Pending miscellaneous petitions, if any, in both the Writ Petitions

shall also stand dismissed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 07.11.2022 Svv