RAVI ARJUNAN Vs. KIDEAI MEMORIAL INSTITUTE OF ONCOLOGY

JUDGEMENT

(1.) Heard the counsel for the parties.

(2.) The facts of the case are as follows : The petitioner, an Assistant Professor in Surgical Oncology has challenged the final seniority list pertaining to Assistant Professors and Lecturers vis-a-vis his ranking as against that of the second respondent. It is the petitioner's case that the second respondent and he were appointed by an order dated 10-3-2000, as against applications invited by the Kidwai Memorial Institute of Oncology dated 5-5-1994 and 12-1-1996. The second respondent had joined service on 10-3-2000 whereas the petitioner had joined service on 13-3-2000. Their respective appointments were on the basis of selection. The petitioner had scored 28 marks and the second respondent had scored 26 marks at the interview by the Selection Committee concerned. The Institute had published a Provisional Gradation List of Assistant Professors and Lecturers dated 8-4-2005. The petitioner was shown at Serial No. 10 and the second respondent was shown at Serial No. 11 in the said list. However, in a Final Seniority List prepared as on 8-6-2007, the petitioner's name finds place below that of the second respondent in order of seniority. It is this that is sought to be questioned by the petitioner in this writ petition.

(3.) The Counsel for the petitioner raises the following contentions : The seniority of the petitioner over the second respondent cannot be denied on any ground. It cannot be denied on the ground that the petitioner has joined duty (13-3- 2000) three days after the second respondent (10-3-2000). For the reason that the Karnataka Civil Services (General Recruitment) Rules, 1977 are applicable to the appointments in terms of Rule 18 thereto, seniority cannot be applied to candidates inter-se if they joined duty within 15 days from the date of appointment, in the instant case, 10-3-2000. It is contended that the seniority of the petitioner having been correctly indicated in the provisional gradation list - the ranking could not be altered unilaterally at the instance of the Chairman of the Governing Council of the Institute which is a position held, Ex-officio, by the Minister for Medical Education of the State Government of Karnataka. It is pointed out that it is provided under the Kidwai Memorial Institute of Oncology Bye-laws 1980, viz., Bye-law No. 20(1) that the Chief Administrative Officer "shall prepare and maintain in respect of each category of posts a complete and up-to-date seniority list." And under the Kidwai Memorial Institute of Oncology (Pay, Recruitment, Conditions of Service and Miscellaneous Provisions) Rules, 1981, Annexure-2 thereof at Rule 1, it is provided that the Director shall prepare and publish a seniority list of all the staff members of the Institute, both intra and inter departmental, in accordance with the provisions of the Seniority rules of the State Government or sub-rules to be framed by the Governing Council from time to time. In any event, the chairman of the Governing Council, in his individual capacity had no role to play in the alteration of the Gradation list. It is contended that Reservation of appointment by way of direct recruitment, is provided as per the roster maintained by the Government and at a percentage prescribed by the Government for candidates belonging to Scheduled Castes and Scheduled Tribes and Backward Classes. The petitioner belongs to a Scheduled Caste and in terms of the roster, maintained by the State Government as on 3-5-1994, the first point in the roster was to be given to a Scheduled Caste candidate and hence, the petitioner would be first in the seniority list insofar as the three posts in the cadre of Lecturers and Assistant Professors are concerned. This has been diligently followed in respect of all Departments as is apparent from a plain perusal of the list. It is contended that the law as settled by the Supreme Court also lays down that ranking in the seniority list could not be altered without affording an opportunity of hearing to the concerned candidate as laid down in Union of India v. P. K. Roy, AIR 1968 SC 850. It is contended that the petitioner has obtained a copy of the note put up by the Minister for Medical Education, acting as Chairman of the Governing Council, directing that the second respondent be placed above the petitioner in the seniority list. This the petitioner had obtained by invoking the provisions of the Right to Information Act. It is contended that the unilateral decision of the Chiarman of the council has been ratified, by the council as a body at its meeting dated 4-7-2007. There could be no such post-facto approval of any unilateral decision of the Chairman of the Council. The decision is void ab-initio and could not be legitimized by a latent consensus of the Council. Such an exercise negates the express power conferred on the Council which is required to act as a body - reliance is placed on the decision in Marathawada University v. Seshrao Balwant Rao Chavan (1989) 3 SCC 132 : (AIR 1989 SC 1582) and Krishna Kumar v. Divisional Assistant Electrical Engineer, (1979) 4 SCC 289 : (AIR 1979 SC 1912) in this regard.