Aadamali Nadaf vs The State of Karnataka and Others

R.S. Chauhan, J.—Aggrieved by the final seniority list dated 02.01.2010, and by the promotion order dated 01.07.2014 the petitioner, Dr. Aadamali Nadaf, has approached this Court.

The brief facts of the case are that on 10.07.2008, the Karnataka Institute of Medical Sciences (KIMS for short), issued a notification inviting applications from eligible candidates for the post of Assistant Professor for the said Institute. The interviews were held on 21/22.07.2008. The petitioner was selected on 11.08.2008 for the said post. Subsequently on 30.08.2008, the KIMS issued appointment letter in favour of the petitioner. The petitioner joined the said post on 04.09.2008.

Meanwhile, the respondent No. 3, Dr. Sunil Kumar Biradar, was also selected along with the petitioner for the post of Assistant Professor. In the selection list, respondent No. 3 was declared to be less meritorious than the petitioner. However, the respondent No. 3 joined the post on 08.08.2008, whereas the petitioner joined the post on 04.09.2008. Thus, the petitioner joined the service later than the respondent No. 3.

While both the petitioner and respondent No. 3 were working as Assistant Professors, on 08.09.2009 the respondent No. 2, KIMS, issued a provisional seniority list with regard to the post of Assistant Professors working in the Forensic Medicine Department. In the provisional seniority list, respondent No. 3 was shown as being more senior to the petitioner. Therefore, the petitioner filed his objections against the said seniority list before the KIMS. Subsequently, on 02.01.2010, the KIMS published a final seniority list. However, notwithstanding the objections submitted by the petitioner, the petitioner was still shown as being junior to respondent No. 3 in the final seniority list. Hence, the petitioner''s first challenge to the seniority list dated 02.01.2010.

Furthermore, on 19.06.2014, the KIMS convened a Departmental Promotion Committee, (''DPC for short), for considering the promotion from the post of Assistant Professor to the post of Associate Professor. The basis for the said promotion is seniority-cum-merit. Considering the fact that respondent No. 3 was shown to be more senior to the petitioner, by recommendation dated 01.07.2014, the DPC recommended the name of respondent No. 3 for promotion to the post of Associate Professor.

Initially, the petitioner had filed the writ petition challenging merely the seniority list dated 02.01.2010. However, as he was equally aggrieved by the promotion order dated 01.07.2014, he filed an amendment application. The amendment application was allowed by this Court. Therefore, subsequently, the petitioner has challenged the promotion order as well.

The petitioner filed objections against the promotion order dated 01.07.2014 before the respondent No. 1, the Principal Secretary, Medical Education. Therefore, the Principal Secretary directed that the recommendation made by the DPC should be approved by the Governing Council. The issue with regard to the promotion of respondent No. 3 was placed before the Governing Council in its 42nd meeting on 07.10.2014. In the meeting of the Governing Council it was pointed out that since respondent No. 3 had joined his service prior to the petitioner, petitioner was ranked as junior to respondent-3. Moreover, since the promotion was based on seniority-cum-merit, the respondent No. 3 was given the benefit of seniority, and was duly promoted to the post of Associate Professor. However, the meeting ended inconclusively as the Governing Council called for the seniority list of the departments in which promotions were made. Subsequently, it is in the 43rd meeting of the Governing Council, held on 05.01.2015, that the promotion of respondent No. 3 to the post of Associate Professor has been approved by the Governing Council. Meanwhile, the petitioner has already filed the present petition challenging both seniority list dated 02.01.2010 and promotion order dated 01.07.2014 before this Court.

The learned Counsel for the petitioner has raised the following contentions before this Court: firstly, according to the Regulation 19 of the Rule and Regulations (Including Bye-Laws) of Karnataka Institute of Medical Sciences, Hubli, (''the Regulations'', for short), "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." Therefore, according to the learned Counsel, the seniority list is to be prepared strictly in accordance with Regulation 19 (presently renumbered as Regulation 21) of the Regulations.

Secondly, according to the selection list dated 11.08.2008, the petitioner was shown as more meritorious than respondent No. 3. Therefore, in accordance with Regulation 19 of the Regulations, while preparing the seniority list dated 02.01.2010 the petitioner should have been shown as being senior to respondent No. 3.

Thirdly, the explanation given by KIMS to the Governing Council is clearly contrary to their own Regulation-19 of the Regulations. For, the said provision does not speak and does not mandate that the seniority shall be based on the date of joining of the post. Therefore, the explanation given to the Governing Council is clearly untenable.

Fourthly, according to the Medical Council of India Regulations, the post of Associate Professor is a promotional post from the cadre of Assistant Professor. The basis of the said promotion is seniority-cum-merit. Therefore, if two or more candidates possess minimum eligibility requirement, then the DPC is permitted only to look at the seniority and to make its recommendation on the basis of seniority. In order to buttress this plea the learned Counsel has relied upon the case of Rajendra Kumar Srivastava and Others Vs. Samyut Kshetriya Gramin Bank and Others, .

Fifthly, if the final seniority list were prepared on the basis of Regulation-19 of the Regulations, the petitioner would have been more senior than the respondent-3. Therefore, the DPC should have recommended the petitioner''s name, and not the name of respondent No. 3 for promotion. Thus, both the seniority list dated 02.10.2010, and the promotion order 01.07.2014 are illegal. Hence, they deserve to be set aside.

On the other hand, Ms. Velsita J. Joseph, the learned Counsel for the 2nd respondent-KIMS, has pleaded that according to Regulation 15 of the Regulations, an appointment is said to take effect from the date the employee reports for duty. Since respondent No. 3 had joined his post prior to the petitioner joining his post, therefore he has been ranked senior to the petitioner. Hence, the impugned seniority list is in consonance with Regulation 15 of the Regulations. Secondly, since the respondent No. 3 has rightly been shown as being senior to the petitioner, the DPC was justified in recommending his name for promotion on 01.07.2014. Thus, the learned Counsel for KIMS has supported both the impugned seniority list and the impugned promotion order.

Similarly, Mr. A.S. Patil, the learned Counsel for the respondent No. 3, has supported the impugned seniority list also on the basis of Regulation-15 of the Regulations. While pleading that the seniority list has to be decided from the date of joining the post, the learned Counsel has relied on the case of Dr. Ghanshyam Dev and Another Vs. Dr. Ranbir Singh and Others, , a case decided by a learned Division Bench of Hon''ble Jammu and Kashmir High Court. Secondly, the respondent No. 3 happens to be more meritorious than the petitioner, and since the respondent No. 3 was more senior to the petitioner, the impugned promotion order is legally valid. Thus, the learned Counsel has also supported both the impugned Seniority list and the promotion order.

Heard the learned Counsel for the parties, perused the impugned seniority list and promotion order, and considered the case law cited at the Bar.

Regulation 15 of the Regulations is as under:

"15. APPOINTMENT DATE FROM WHICH APPOINTMENT TAKE EFFECT:

All appointment shall take effect on the date of duty report of the officials.

Regulation 19 of the Regulations is as under:

"19. SENIORITY:

(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-wise seniority list will be prepared and published."

A bare perusal of the two provisions clearly reveal that according to Regulation 15 of the Regulations, an appointment shall take effect on the date the official reports for duty. However, Regulation 19 of the Regulations, while dealing with seniority list, does not claim that seniority shall be determined from the date an official reports for duty. Instead, Regulation 19 of the Regulations clearly mandates that the seniority of an employee in each category shall be determined by the order of merit in which they were selected for appointment to the cadre in question. Therefore, as far as drawing up of seniority list is concerned, the said list can be drawn only on the basis of merit list and not on the basis of date of joining of the service.

Admittedly, in the selection list the petitioner was shown as more meritorious than respondent No. 3. Therefore, while drawing the seniority list the date on which the respondent No. 3 and the petitioner joined their service is an irrelevant consideration. For, according to Regulation-19 the seniority list can be drawn only on the basis of merit list. Therefore, the learned Counsel for the KIMS, and for respondent No. 3 are unjustified in claiming that the seniority list is legally valid as it is based on the date of joining of the service. Such a contention is unacceptable in the face of Regulation 19 of the Regulations.

The case of Dr. Ghanshyam Dev (supra), does not rush to the rescue of respondents for even in that case the Court had clearly noted that "the general rule with regard to seniority, regarding promotion in the case of direct selection, is on the basis of merit list". It is only if intervening events prevent a person from joining his service, and time gap is a long one, then the rule can be given a go-by. However, in the present case, time gap between the date of appointment, and date of joining is not such a large one. Thus, the said case is inapplicable to the present case.

Moreover, once a law has laid down a criteria for drawing up of seniority list, the criteria cannot be ignored. After all, the KIMS cannot be permitted to flout its own Regulations. Moreover, the joining of service is a fortuitous circumstance. Therefore, a fortuitous circumstance cannot be given precedent over the criteria of merit. Needless to say, an educational institution is wedded to the concept of merit. Although seniority is crucial in a promotion based on seniority-cum-merit, but merit could not be ignored totally. Therefore, in order to balance the two, and in order to ensure the importance of merit, Regulation-19 of the Regulations requires that the seniority list be prepared on the basis of the merit list. Therefore, the mandate of Regulation 19 of the Regulations could not be ignored by the respondent No. 2.

Hence, in the light of Regulation 19 of the Regulations, the seniority list dated 02.01.2010 is clearly illegal. Therefore, the seniority list should be modified and should be drawn up in accordance with the merit list of the post of Assistant Professor.

This being the case, and as admittedly the petitioner was more meritorious than respondent No. 3, the next question is whether the promotion of respondent No. 3 is legally justified to the post of Associate Professor or not?

Relying on an earlier decision of B.V. Sivaiah and Others etc. Vs. K. Addankl Babu and Others etc., , in the case of Rajendra Kumar Srivastava (supra), the Hon''ble Supreme Court has observed as under:

"In Siivaiah (supra), a three-Judge bench of this Court held that while the principle of seniority-cum-merit laid greater emphasis on seniority, the principle of merit-cum-seniority laid greater emphasis on merit and ability, with seniority playing a less significant role. This Court held:

We thus arrive at the conclusion that the criteria of "seniority-cum-merit" in the matter of promotion postulates that given the minimum necessary merit requisite for efficient of administration, the senior even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can by down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit."

[Emphasis added]

Undoubtedly, the basis of promotion is seniority-cum-merit. Unquestionably, both the petitioner and respondent No. 3 fulfilled the minimum eligibility criteria with regard to their education, with regard to their teaching experience, and with regard to their publications. Thus, the only issue before the DPC was out of these two candidates who was the more senior? Since the petitioner is more senior, naturally the DPC should have recommended the petitioner''s name for promotion to the post of Associate Professor. Therefore, the DPC was certainly unjustified in recommending the name of respondent No. 3 for the said post. Hence, the promotion order dated 01.07.2014 is equally illegal.

For the reasons stated above, this petition is hereby allowed. The seniority list dated 02.01.2010, and promotion order dated 01.07.2014 are hereby set aside. The Respondent No. 2 is directed to revise the Seniority List in accordance with Regulation 19 of the Regulations. The Respondent No. 2 is further directed to reconvene the DPC. The DPC is expected to make its recommendation strictly on the basis of seniority-cum-merit. It is further directed that in case the petitioner were to be promoted to the post of Associate Professor, the said promotion shall be deemed to have been made from 01.07.2014. After all, the petitioner cannot be expected to suffer any loss for no fault of his. The said exercise of convening the DPC meeting and recommendation of DPC to be sent shall be carried out within one month from the date of the receipt of the certified copy of this order.

No order as to costs.