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Judgment
R.S. Chauhan, J—These petitions have been filed challenging the legality of the appointment order dated 27.8.2014, whereby Dr. S. Venkataraghava has been promoted from the post of Associate Professor to the post of Professor in Forensic Medicine. Since both these writ petitions challenge the same order, they are being decided by this common judgment.
The facts are being taken from the Writ Petition No. 45474/2014.
It is the case of the petitioner, Dr. K.V. Satish, that on 11.8.2000 he was appointed as Lecturer in Forensic Medicine in the Bangalore Medical College. Subsequently, by order dated 28.11.2005, he was promoted to the post of Assistant Professor in the said college. Thereafter, by an order dated 25.5.2009, he was also promoted as Associate Professor in the said college. Subsequently, a vacancy arose in the post of Professor in Forensic Medicine. Against the said vacancy, three of the Associate Professors were eligible, namely, Dr. Bheemappa Havanoor, Dr. K.V. Satish (petitioner) and Dr. S. Venkataraghava (Respondent No. 6 in W.P. No. 45474/2014 and Respondent No. 3 in W.P. No. 48921/2014). The Review Committee considered their academic performance and their seniority; on 12.8.2014, it recommended Dr. S. Venkataraghava to be promoted to the post of Professor in Forensic, Medicine. By order dated 27.8.2014, Dr. S. Venkataraghava was duly promoted to the said post. Hence, these petitions before this Court.
Mr. D.R. Ravishankar, the learned counsel for the petitioner in W.P. No. 45474/2014, has raised the following contentions before this Court: firstly, the Bye-laws of Bangalore Medical College & Research Institute clearly lay down the procedure for promotion to the post of Professor. According to Bye-law 13 of the Bye-Laws, the method of recruitment has been prescribed either through promotion, or by direct recruitment, or by deputation. While Bye-law 15 of the Bye-Laws lays down the method for selection, that is, direct recruitment, Bye-law 16 of the Bye-Laws deals with promotion to a higher post. According to Bye-law 16 of the Bye-Laws, the basis for promotion shall be seniority-cum-merit from among the qualifying members of the teaching staff.
Secondly, that the C & R Rules for the teaching cadre for the Bangalore Medical College & Research Institute further prescribe the minimum eligibility criteria which needs to be fulfilled by the candidates who seek a promotion to the post of Professor. According to the said criteria, it is mandatory to have a minimum of four research publications Index/Medicus/National Journal and research publication in International Journal. According to the learned counsel, once the said minimum eligibility criteria has been met by the candidates, then the Review Committee can only consider their seniority. It cannot examine the inter se merit of the candidates. For, the basis of promotion is seniority-cum-merit. If the Review Committee were to consider the inter se merit of the candidate, it would not only violate the principle of seniority-cum-merit, but would also convert the basis into one under merit-cum-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, AIR 2010 SC 699 : (2009) 14 JT 252 : (2009) 14 SCALE 67 : (2010) 1 SCC 335 : (2010) 1 SCC(L&S) 1086 : (2009) 15 SCR 936 : (2010) 1 SLJ 242 : (2010) 1 UJ 195 : (2010) AIRSCW 341 : (2009) 7 Supreme 383 .
Thirdly, that while considering the candidacy of the three Associate Professors, the Review Committee has gone beyond its jurisdiction. It has not only considered the fact that all the three candidates do have minimum eligibility qualifications, but has also assessed their inter se merit by awarding them certain points, to each one of them, for different aspects of their merit. However, Bye-law 16 of the Bye-laws do not warrant the awarding of the points. Therefore, the criterion used by the Review Committee is de hors the Bye-law 16 of the Bye-laws. Thus, the recommendation made by the Review Committee is without any legal basis. Therefore, the entire selection process stands vitiated. Hence, the appointment of Dr. S. Venkataraghava deserves to be set aside by this Court.
Mr. C. Jagadish, the learned counsel for the petitioner in Writ Petition No. 48921/2014, has reiterated the pleas raised by Mr. D.R. Ravishankar. Therefore, his contentions are not been recorded separately.
On the other hand, Mr. S.V. Narasimhan and Ms. Sumana Baliga, learned counsels for respondents, have raised the following contentions before this Court:
Relying on the case of Madan Lal and Others Vs. State of Jammu and Kashmir and Others, AIR 1995 SC 1088 : (1995) 2 JT 291 : (1995) LabIC 1575 : (1995) 1 SCALE 494 : (1995) 3 SCC 486 : (1995) 1 SCR 908 : (1995) 2 SLJ 161 : (1995) 2 UJ 817 , Mr. S.V. Narasimhan has pleaded that, those candidates who have participated in the selection process, but have failed to seek an appointment, cannot be permitted to turn back and to challenge the selection process. They can neither challenge the process of interview by claiming it to be unfair, nor challenge the constitution of the Selection Committee. Hence, the petitioner should not be permitted to challenge the process of interview as they had participated in the interview.
Secondly, relying on the case of Dr. Basavaiah Vs. Dr. H.L. Ramesh and Others, (2010) 127 FLR 888 : (2010) 7 JT 558 : (2010) 7 SCALE 529 : (2010) 8 SCC 372 : (2010) 9 SCR 227 : (2011) 1 SLJ 170 : (2010) 5 SLR 105 : (2010) AIRSCW 5907 : (2010) 6 Supreme 18 , the learned counsel has pleaded that this Court, in its writ jurisdiction, cannot sit as an Appellate Court over the recommendation of an expert committee. In fact, this Court is required to show some deference to the recommendation of the Review Committee. Therefore, this Court is prevented from entering into the legality or illegality of the recommendation made by the expert committee. Thus, this court cannot declare the impugned appointment order as illegal.
Thirdly, the Bye-law 16 of the Bye-laws is absolutely silent on the criteria to be used by the Review Committee for adjudging the eligibility and suitability of a candidate for promotion to the higher post. In the absence of guidelines, the Review Committee was justified in adopting the criteria laid down by Bye-law 15 of the Bye-laws, and in awarding the marks according to Bye-law 15 of the Bye-laws. Moreover, since the same criterion has been applied to each of the candidate, the principle of equity has been followed. Thus, the recommendation made by the Review Committee cannot be faulted.
Heard the learned counsel for the parties, perused the record, and examined the impugned orders.
Undoubtedly, in the case of Madan Lal and others (supra), the Apex Court has opined that "it is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted." Indeed, there cannot be any doubt with regard to the opinion expressed by the Apex Court.
However, in the present case, the petitioners are not challenging the process of interview as being unfair. Their plea before this Court is with regard to the fact that the Review Committee has overstepped its powers and jurisdiction. The Review Committee has applied a yardstick which was clearly unavailable to it. Thus, the Review Committee has changed the very basis for promotion from seniority-cum-merits to merit-cum-seniority. Moreover, the petitioners have not challenged the constitution of the Review Committee before this Court. Therefore, clearly the opinion expressed by the Apex Court in the case of Madan Lal (supra), would not debar the petitioners from challenging the recommendation of the Review Committee, notwithstanding the fact that they have participated in the interview.
This Court is well aware of and is bound to agree with the opinion expressed by the Hon''ble Supreme Court in the case of Basavaiah (supra): this Court cannot sit as an Appellate Court over the recommendation of a Review Committee. However, this Court has ample power to examine whether the legally established procedure has been followed by the committee or not? Whether the Committee has functioned within the confines of the jurisdiction and power bestowed upon it or not? And if the committee has overstepped its jurisdiction and has illegally exercised its power, then this Court would be justified in invoking its writ jurisdiction and in setting aside the recommendation of the Review Committee. Consequently, this court has ample powers to set aside an appointment order.
Therefore, two moot questions that arise before this Court are, firstly, what are the powers and criteria laid down for the Review Committee to exercise while making its recommendation? Secondly, whether the Review Committee has acted within the limits prescribed by the Bye-laws or not?"
For this purpose, it would be fruitful to quote, hereunder, the relevant extracts of the provisions of the Bye-laws:
"Bye-law 13: Method of Recruitment: Method of recruitment is either by Promotion or by Direct recruitment or by deputation as per C. & R. Rules/Bye-laws of the Institute.
Bye-law 14 Procedure for direct recruitment.-
(1) The Institute shall take necessary steps to invite application from all eligible candidates by advertising the vacancies in the institutional website specifying the conditions of eligibility, method of selection applicable, provisional number of vacancies to be filled and their classification according to reservation policy of the state.
(2) An abstract of such advertisement shall also be published in more than one widely circulated newspaper in the regional language and such other media of publication as it may deem fit.
(3) The Selection Committee shall verify the credentials of all the persons to be considered for the appointment.
(4) The Selection Committee shall prepare a panel of names and recommend the names for selection in the order of merit subject to the reservation policy of the State.
(5) The Selection Committee may also prepare an additional list of eligible candidates not exceeding 10% of the vacancies notified but the candidates in the additional list shall be appointed only to the extent of the vacancies that occur if the candidates in the main list do not join duty within the stipulated time.
(6) In respect of posts to be filled by promotion, shall be filled by seniority cum merit, only after complying with Medical Council of India (MCI) norms.
Bye-law 15: Method of selection.-
The method of selection shall be on the basis of merit. The merit is assessed on the basis of the performance of the candidates and the marks obtained in the interview, as detailed below.
(1) For Director''s Post:
..........
(2) For teaching faculties (Professor/Associate Professor/Assistant Professor):
(a) Number of Publications in National/Indexed Journal above the stipulated number specified for the post by the MCI - V2 mark for each paper subject to a maximum of 2 marks.
(b) Number of Publications in International Journals - 1 mark for each paper subject to a maximum of 2 marks.
(c) WHO Fellow ship in the same subject/University Gold Medal - 1 mark.
(d) Higher experience than required for that post - y2 mark for each year to maximum of 2 marks.
(e) Presentation of papers/lectures in State/National/International Conferences - V2 mark for each paper subject to a maximum of 2 marks.
(f) Personality/Presentation in the Interview - 6 marks.
(3) For Senior Residents, Junior Residents and Tutors.......
(5) Method of recruitment for Technical Staff......
Bye-law 16: Promotion to higher post.-
(1) Subject to the provision of the recruitment rules of the Institute and in case where the C. & R. Rules of the Institute provide for promotion to a post, such post shall be filled by promotion on the basis of seniority cum merit from among the qualified members of the staff. The Appointing Authority shall consider the names of members of the staff recommended for promotion by a review committee.
(2) The Review Committee shall consist of the following members, namely:-
A bare perusal of these Bye-laws clearly reveal that Bye-law 13 of the Bye-laws clearly lays down that there are three methods of recruitment, namely by promotion, by direct recruitment or by deputation. Bye-laws 14 and 15 deal strictly with direct recruitment. While Bye-law 14 lays down the procedure for direct recruitment, co-jointly, Bye-law 15 of the Bye-laws lays down the method of selection. However, the method of selection is confined only to the direct recruitment. Since Bye-law 15 of the Bye-laws lays down the basis for selection as merit and merit only, Bye-law 15(1) lays down the method of selection for each category which needs to be applied by the selection committee. Bye-law 15(2) lays down that while assessing the merit for the post of Professor through direct recruitment a range of marks be awarded for different facts of merit, i.e., number of publication, WHO Fellowship, teaching experience etc.
However, a bare perusal of Bye-law 16 of the Bye-laws clearly reveals that the method of awarding marks as laid down by Bye-law 15 is conspicuously missing in Bye-law 16. Bye-law 16 of the Bye-laws, in its scope and ambit, states that the appointing authority shall consider the recommendation made by the committee. However, it is absolutely silent as to the basis which is to be applied by the Review Committee in order to make its recommendation. Since Bye-law 16 of the Bye-laws does not refer to Bye-law 15 and gives no indication that the yardstick established by Bye-law 15 can be followed by the Review Committee while making its recommendation for promotion, obviously the Review Committee cannot resort to the marking method mentioned by Bye-law 15(2) for adjudging the eligibility of the candidate for promotion. To do so, would be to do violence to the language of Bye-law 16 of the Bye-laws.
Since the C. & R. Rules lay down the minimum eligibility criteria by prescribing that it is mandatory to have minimum of four research publications for index/national journal, provided that, these research publications are either published or accepted for publication in Journals by the National Association/Societies. It further provides that four research publications should be taken on cumulative basis that minimum of two research publication must be published during the tenure of Associate Professor. While adjudging the eligibility of the candidate, naturally the Review Committee is required to merely consider the minimum requirement laid down by the C & R Rules. It cannot travel beyond the minimum eligibility requirement. Once the Review Committee has discovered that all the three candidates do have the minimum eligibility qualification, the only other step that the Review Committee could take was to see their seniority in the department. But by no stretch of imagination could it import the marking method laid down in Bye-law 15 of the Bye-Laws while exercising its power on making the recommendation for promotion.
However, a bare perusal of the recommendation made by the Review Committee and the proceedings of the Committee clearly show that the Committee went on to give 2 marks to Dr. S. Venkataraghava as he had more than four publications to his credit in the National Journals, gave 2 marks for his International publications, gave him 2 marks for presentation, gave him 3 marks for his personality. And thus, awarded a maximum of 9 marks to him. Meanwhile, the Review Committee gave Dr. Bheemappa Havanur and Dr. K.V. Satish, 1 mark each for having higher teaching experience than the minimum that is required; it gave no marks for presentation to Dr. Bheemappa Havanur; it gave V2 mark to Dr. K.V. Satish. It did give Dr. Bheemappa Havanur and Dr. K.V. Satish 3 marks for personality. Therefore, the Committee has imported the criterion which was laid down for the process of direct recruitment in Bye-law 15 of the Bye-laws. It has forgotten the fact that it was not making a selection for direct recruitment, but was promoting the Associate Professors to the post of Professor under Bye-law 16 of the Bye-laws. Hence, clearly the Review Committee has utilized the criterion which has no legal basis. Therefore, its recommendation is de hors the Bye-law 16 of the Bye-laws. Hence, it is legally unsustainable.
Relying on an earlier decision of B.V. Sivaiah and Others etc. Vs. K. Addankl Babu and Others etc., (1998) 5 AD 533 : AIR 1998 SC 2565 : (1998) 5 JT 96 : (1998) LabIC 2749 : (1999) 1 LLJ 754 : (1998) 4 SCALE 182 : (1998) 6 SCC 720 : (1998) SCC(L&S) 1656 : (1998) 3 SCR 782 : (1999) 1 SLJ 257 : (1998) AIRSCW 2577 : (1998) 6 Supreme 1 , in the case of Rajendra Kumar Srivastava (supra), the Hon''ble Supreme Court has observed as under:
In Sivaiah (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 efficiency 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 lay 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)]
Thus, according to the Apex Court, in the case of seniority-cum-merit, if the candidates meet the minimum eligibility criteria, then the seniority is to be emphasized. Even though the senior may be less meritorious, even then he would have the priority. Beyond considering the minimum eligibility requirement, a comparative assessment of merit is not permissible. To enter into comparative merit of the candidate is to switch over to the principle of merit-cum-seniority. The Review Committee could not have deviated from the settled position of law while implementing the principle of seniority-cum-merit. However, in the present case, since the Review Committee has ignored the settled position of law, since it has considered the relative merits of the candidates, beyond the minimum eligibility criterion, since it has imported a marking method not permitted by Bye-law 16 of the Bye-laws, its recommendation cannot be upheld. Moreover, as the appointment Order dated 27.8.2014 is based on the recommendation of the Review Committee, the said Order is equally unsustainable.
Therefore, for the reasons stated above, the appointment order dated 27.8.2014 is, hereby, set aside. These Petitions are allowed. No order as to costs.