Judgment :- 1. Misc. W. 60176 of 2010 for amendment filed in WP No.63874 of 2010 to include the additional pleadings along with annexures and for the additional prayer, allowed, recording the submission of Sri. A.C. Purad, learned counsel for the fourth respondent who submits that he has no objection for allowing this application, but requests for some more time to get ready to prepare the main case and to further submit on the merits of the matter. 2. The application for amendment even otherwise deserves to the allowed as in the wake of the affidavit supporting the application, petitioner having noticed some subsequent developments which were not within the knowledge of petitioner earlier and which have come into existence subsequently, has sought for relief vis-à-vis annexures produced along with the application as otherwise the prayer of the petitioner as it stands in the main petition, will be complete and the petitioner will not be able to seek for a proper and effective relief, in this writ petition. 3. Mr. Datar learned counsel for the petitioners requests that the matter may be taken up for disposal itself, particularly, as the matter had been heard once earlier and had been adjourned for whatever reason. 4. I do not find any justification to adjourn the matter at the instance of fourth respondent, who is represented by not one counsel but two, namely, by Mr. Suresh P Hudedagaddi and Sri A C Purad, Advocates, but both of whom only seek for an adjournment and not keen on going on with the matter on merits, though each counsel has a different reason for seeking adjournment. 5. Suresh P Hudedagaddi and Sri A C Purad, Advocates, but both of whom only seek for an adjournment and not keen on going on with the matter on merits, though each counsel has a different reason for seeking adjournment. 5. Writ petitions are requested to be defended mainly by the State Government, and if at all, incidentally by the Karnataka Institute of Medical Sciences [for short ‘KIMS’] wherein the petitioners are working as Assistant Professors, and are aggrieved by certain seniority list of the Assistant Professors working in the institute and published by KIMS, wherein figures the name of fourth respondent who it appears is basically an employee of the State Government and who had come to the autonomous organization, on deputation basis for the first time in the year 1997, worked as a lecturer and it appears had obtained a post graduate degree on Ophthalmology in the year 2002, but in between, intermittently, was coming and leaving KIMS and it appears has been working as Tutor and on and after the year 2002 designation having been revised from Tutor-com-Lecturer to Lecturer and much later to Lecturer-cum-Assistant Professor in which position she has continued. 6. It appears that while the fourth respondent was on deputation of KIMS, she has opted to get back to her parent department and had been appointed as Lecturer in the existing vacant post of Lecturer at Bangalore Medical College, Bangalore and it is claimed that she had reported to duty in the forenoon of 06.12.2005 and was promptly, yet again posted to the post of Lecturer in KIMS, Hubli, on deputation basis and therefore the Principal or Bangalore Medical College had directed the 4th respondent to hand over charge of her post as lecturer at Bangalore Medical College, to the Head of the Department and to submit an affidavit for having reported in the deputed post at KIMS! 7. It appears that the 4th respondent had, on such premise while working as a Lecturer on deputation at KIMS, had opted to get herself absorbed in the services of KIMS and accepting the same, an order had came to be issued by the State Government on 07.11.2008, under the authority of the Government of Karnataka, signed by S,Anees Siraj, Additional Secretary to Government, Health and Family Welfare Department, copy produced as Annexure-M to the petition, along with the application for amendment. 8. 8. Such an order was in respect of several officials like 4th respondent, many of whom were Professors, Assistant Professors, etc., and the 4th respondent’s name appearing at Sl.No.19, with the designation of Assistant Professor indicating her date of birth as 13.01.1952, date of entry into service as 26.11.1991 and the department as Ophthalmology which is the position indicated in the Annexure-R20 to the Government Order dated 07.11.2008. 9. It appears that the Director of KIMS had caused issue of a final seniority list of Assistant Professors in the Ophthalmology Department of the Institution as it prevailed on 01.01.2009, copy produced as Annexure-H to the petition and therein figured the writ petitioner’s name at Sl.No.2 and the 4th respondent’s name at Sl.No.6 and the name of the petitioner in Writ Petition No.61890/2011, at Sl.No.5. 10. While in this seniority list it had been indicted that the petitioner in W.P.63874/2010 i.e., Dr.Seethalakshmi had joined service on 05.09.2005 as an Assistant Professor/Lecturer, the writ petitioner in W.P.No.61890/2011 Satish Shetty had been shown to have joined service in the same post also on 05.10.2005 whereas the 4th respondent had been shown to have joined her service in the parental department on 26.11.1991 and it also indicated that she had worked as Sahayaka Pradhyapakaru/Upanyasakaru from 06.12.2005 and that she had been promoted to the post of Assistant Professor with effect from 21.10.2007. 11. The 1st respondent had caused a corrigendum to this seniority list issued on 29.01.2010 copy produced at Annexure-R1, along with the statement of objections filed by the 4th respondent as also respondent Nos.1 and 2 in W.P.No.63874/2010 indicating that in so far as the name of 4th respondent i.e. Dr.Damayanthi Suranagi, is concerned her name and rank in the seniority list should be omitted, so also of one Dr.V.S.Donimath in the Department of Orthopedics, as the seniority of these two persons was to be published independently following the Government Order No.HFW-73-KVM 2008, Bangalore, dated 07.11.2008 after seeking their guidance in consultation with the DPAR (ANNEXURE-R1). 12. 12. Purporting to be in terms of these notifications and corrigendum, the 1st respondent-Director appears to have issued a revised final seniority list of Assistant Professors in the Department of Ophthalmology in the institute but showing only the name of 4th respondent and giving details as were to be seen in the different columns of the final seniority list of Assistant Professors as had been finalized on 01.01.2009 as per Annexure-F and while this independent and disconnected so called seniority list of Assistant Professors in the institute as on 01.01.2009 showing the so called seniority position of the 4th respondent, appears to be quite innocuous and innovative, petitioners have seen red in this innocuous publication, copy of which is produced as Annexure ‘H’ to the petition caused by the 1st respondent-Director in the wake of a subsequent development as reflected in the Government Order dated 03.08.2009 copy produced as Annexure-K publishing that in terms of this order, the 4th respondent has been promoted to the post of Assistant Professor and is appointed to the post of Assistant Professor against the newly created post of Assistant Professor, all such exercise and acrobatics appears to have been made as to government and the Institute found out that there were only 5 posts of Assistant Professors in the institute and all of them were already filled up; two posts by the very writ petitioners and three posts by others and there was no existing vacancy and obviously to accommodate the 4th respondent into a post of Assistant Professor, to which she is said to have been promoted in terms of the Government Order dated 03.08.2009! 13. All such exercise, gimmicks and circus, that has taken place, only reveals the kind of clout and patronage perhaps the 4th respondent has yielded and was receiving from the governmental achilons. 14. The following notification dated 30.03.2010 issued by the 1st respondent (Annexure-L) is pointed out to be the eye-opener, as, as per the submission of Sri.Datar, learned counsel for the petitioners, with the notification reading as under: “No.KIMS/EST(1)/388/2009-10 Office of the Director Karnataka Institute of Medical Science Hubli.Defendant:30.03.201 NOTIFICATION The following teaching staff of this Institution are promoted provisionally to the post shown against then with immediate effect. Sl.No. Name of the teaching staff Post to which promoted Scale of promotional Post Dr. Damayanti Suranagi. Assistant Professor, Ophthalmology Associate Professor Ophthalmology, KIMS, Hubli. Sl.No. Name of the teaching staff Post to which promoted Scale of promotional Post Dr. Damayanti Suranagi. Assistant Professor, Ophthalmology Associate Professor Ophthalmology, KIMS, Hubli. Rs.16,400-450-20.000 TERMS AND CONDITIONS 1. Promotional is provisional pending approval of Governing Council of KIMS. Hubli and Medical Council of India, New Delhi. 2. Financial benefits will be given from the date of approval of Government Council of KIMS, Hubli. 3. It may be cancelled and personnel reverted to their original positions if the MCI of KIMS Governing Council or the Director, KIMS, Governing Council or the Director, KIMS, Hubli considers them to be ineligible to the said posts at any time your service. 4. It may be cancelled upon knowledge that the promotions are granted on wrong of false information as to their qualification or teaching experience or other certificates produced by them. 5. Monitory benefits will be given after the approval of Governing Council and Medical Council of India. 6. Unless otherwise decided by the appointing authority in any case, every employee shall be on probation for a period of two years. 7. During the period of probation the employer shall be required to put in satisfactory service failing which his service shall be liable for termination at any time without any prior notice and without any reason being assigned for the same appointing authority. 8. The period of problem may, for reason to be recorded in writing, extended by the appointing authority. 9. During the probation period He/She must produce two articles in national index journal and one article in international with himself as first author. Sd/- Karnataka Institute of Medical Science Hubli” The state government having its sway over the institute had indulged in all such illegal actions, only to favour and promote the interest of 4th respondent! 15. 9. During the probation period He/She must produce two articles in national index journal and one article in international with himself as first author. Sd/- Karnataka Institute of Medical Science Hubli” The state government having its sway over the institute had indulged in all such illegal actions, only to favour and promote the interest of 4th respondent! 15. It is really this notification which has caused the heart burn, for the petitioners as a person far junior in their cadre, a person who is virtually a new entrant to the institution, having been absorbed into the services of the institution for the first time in the year 2008, although she was working on deputation basis in the post from 2005, but in fact having been promoted to the post of Assistant Professor only in the year 2007 and in all respects far junior whether in educational qualification or experience in the post and a person who has come on deputation stealing a march over the in service, institute employees who had been appointed to the very post on a regular basis, since inception i.e., from the year 2005, being left languishing in the post but the 4th respondent being promoted to the next promotional post of Associate Professor from the earlier post of Associate Professor a post which she is purporting to have held in the 1st respondent institution, is the cause of action for the petitioners to approach this court seeking the following reliefs: In WP.63874/2010 a) Issue a writ of certiorari or direction or order quashing the order No. A KU K/127/KVM/2008 dated 03.08.2009 issued by Respo. No.3 which is produced as Annexure-K. b) Issue a writ of certiorari or direction or order quashing the order/notification in its No.KIMS/EST (1)/389/2009-10 dated:30-03-2010 issued by Resp.No.1 1 & 2 promoting Resp.No.4 4, which is produced as Annexure-L. c) Issue a writ of certiorari or direction or order quashing the undated and unnumbered seniority list as on 01.01.2009 showing only the name of Resp.No.4, which is produced at Annexure-H. d) Issue writ a mandamus to promote the Petitioner to the post of Associate Professor w.e.f. 30-03-2010 with all the benefits. e) Grant such other and further reliefs as deemed just and appropriate in the circumstances, and in the interest of justice and equity. e) Grant such other and further reliefs as deemed just and appropriate in the circumstances, and in the interest of justice and equity. WP.681890/2011 i) issue writ of certiorari or any other writ or order quashing the orders passed by the 6th Respondent dated:07/11/2008, in No. HFW73 KVM, B’lore 2008, vide Annexure-E 2nd retrospectively absorbing 4th Respondent to the cadre of Asst. Prof, by the Respondent & order dated 30/03/2010, in No.KIMS/EST/(1)388/09-10, vide Annexure- F, order dated:23/07/2010, in No.KIMS/EST/118/10-11, Vide Annexure-O, order, Dated:28/02/2010, in No.KIMS/SINI(1)/350/05-06, VIDE Annexure-1, retrospectively re-designating the 5th Respondent as Assistant Prof. and ii) Consequent upon quashing the above orders direct the 3rd Respondent not to approve the so called recommendation made in subject 16 (5) of proceedings dated:10/06/2010, and iii) direct the 2nd Respondent to consider the representations dated:03/05/2010, 15/12/2010, and 18/01/2011 vide Annexures-H & J, K and redo the seniority list and prepare the seniority list in accordance with Bye-law and strictly as per MC.I. guidelines and (iv) grant such other reliefs as this Hon’ble Court deems fit in the circumstances of the case including the cost of this writ petition in the ends of justice. 16. Mr. Datar, learned counsel would also draw my attention to a Government Notification No.AKUKA 34 MMC 2007 (A) dated 09.05.2007 in the name of Government of Karnataka and signed by the Joint Secretary to the Government, Department of Health and Family Welfare (Medical Education) copy produced at Annexure-W to the writ petition as to the kind of influence that the 4th respondent yielded in the governmental circles as the 4th respondent’s name while figures at SL.No.3 of this notifications for the purpose of promoting the persons and for giving them the pay-scales in the promoted post from post of Lecturers to Assistant Professors which indicates that so far as the 4th respondent is concerned while she is working in the post of Lecturer (as per the then existing Rules equivalent to tuitor), the promoted post is Assistant Professor and (indicating that in spite of a post that is likely to arise or created in future) to give effect to from 21.10.2007 and submits that the 4th respondent all along had been patronised by the Government far more than what she actually was entitled to and deserved and all this has happened only to the detriment of the petitioners this time and therefore the present writ petitions. 17. 17. Respondents had been put on notice, and the represented by counsel. The 1st and 2nd respondents have filed very detailed statement of objections and so also the 4th respondent. For a good measure, there is a reply statement filed by the petitioners and the respondents have come with an application for vacating the interim order granted earlier by this court. 18. To this again, there is a reply or objections filed by the petitioners and this is followed by an amendment application, objections filed but not seriously contested before the court today, yet another reply to this proliferatious pleadings in the writ petition only to the dismay of the Judge hearing the matter! but to the merriment of the lawyers! 19. While all sorts of technical and untenable objections in the statement filed and also on behalf of the 1st and 2nd respondents, submission on merits, learned counsel are content to submit that the statement of objections are exhaustive enough for defending the writ petitions and therefore urged the writ petition may be dismissed vacating the interim order. 20. Smt.Vidyavathi, learned Additional Government Advocate submits that though she had taken notice of the writ petition on behalf of the 3rd respondent-State and had written to her clients, about the writ petition, but submits that there is no response or any instructions forthcoming from her client. 21. Be that as it may, a matter like this is not going to be decided based on the statement of objections filed by the respondents which if at all can only be to point out any incorrect factual position or pleadings, if had been averred by the writ petitioners. 22. What is examined by this court is not essentially how qualified petitioners are or the 4th respondent is to the post, which is a matter essentially within the domain of the employer, but what is examined in writ petitions is as to the manner of exercise of the power and authority by persons who are in public administration. In the instant case, the Karnataka Institute of Medical Science though is an autonomous body, nevertheless is State within the meaning of Article 12 of the Constitution of India and therefore actions, notifications, memorandums and what not! In the instant case, the Karnataka Institute of Medical Science though is an autonomous body, nevertheless is State within the meaning of Article 12 of the Constitution of India and therefore actions, notifications, memorandums and what not! Issued by the Head of this Institution, are also amenable to judicial review; to be examined in writ petitions of the present nature, within the scope of the exercise of the jurisdiction, of judicial review of administrative action. 23. On applying this test of judicial review, in respect of the orders under challenge, what transpires is the arbitrary, whimsical and irrational manner in which power has been exercised by persons in authority. A streak of favourtism, runs through all the 1st actions taken by either the 3rd respondent/State Government or the and 2nd respondent/autonomous institution which has revealed a pattern for promoting, patronizing and elevating the 4th respondent with or without justification to the post of Associate professor over and above in petitioners in contravention of the Rules and Regulations and in gross violations of the fair manner of functioning, that is required on the part of every public authority, to pass the test of Articles 14 and 16 of the Constitution of India. 24. While public services are open to all, is available for merited people through open competition. Rules and Regulations are framed to ensure that while transferring or punishing employees, they are all carried out in a methodical proper manner and in a law conforming manner and arbitrariness is totally avoided. 25. The whole idea of having a law, an Act, a Rule is to ensure that there is a method and manner in the functioning of public authorities, that no arbitrary action, no dictatorial tendency is permitted to prevail or assert and all employees are treated in a fair manner. 26. 25. The whole idea of having a law, an Act, a Rule is to ensure that there is a method and manner in the functioning of public authorities, that no arbitrary action, no dictatorial tendency is permitted to prevail or assert and all employees are treated in a fair manner. 26. The facts as noticed above clearly indicates that while the petitioners have been working in the Ophthalmology department of institute as Assistant Professors ever since the year 2005, to be precise from 06.09.2005, the 4th respondent whether permitted or otherwise has been hauled around, but to be precise between a government department and the institute ever since 1994 but is in the post of Assistant Professor on a regular basis only with effect from the year 2007 petitioners are in such a post, as the petitioners were for the first time promoted to this post as per the Government Order and against the additional or newly created 6th post of Assistant Professor in the department as otherwise till then all the existing posts have already filled up and a promotion against existing vacancy having been happened for the first time in the year 2007, any seniority list whether directly or indirectly indicating the interse seniority position of petitioners vis-à-vis the 4th respondent can never put the 4th respondent above the petitioners, nor can the 4th respondent aspire to get a promotion to the next promotional post of Associate Professor by stealing a march over merit and over writ petitioners, unless she has been so selected in a merit based open competition selection process. 27. That having not happened, but the 4th respondent having only receivival the patronization of the Government Orders passed by the institute, the entire exercise is nothing short of one filled with arbitrariness and whimsical manner of exercise of power and to the detriment of the petitioners! 28. The grievance of the petitioners is fully justified. This writ petition deserves to be accepted. Therefore, rule is issued and made absolute. Annexures-K, L and H are quashed by issue of a writ of certiorari. 29. Respondents/State Authorities and the respondents who have been acting in a most arbitrary and whimsical manner are required to be disciplined by this court and petitioners compensated for having been driven to the plight of filing these petitions and respondents giving the cause to present these writ petitions by their arbitrary act. 29. Respondents/State Authorities and the respondents who have been acting in a most arbitrary and whimsical manner are required to be disciplined by this court and petitioners compensated for having been driven to the plight of filing these petitions and respondents giving the cause to present these writ petitions by their arbitrary act. 30. Both petitions are allowed, levying costs of Rs.5,000/-each on the 1st respondent and the 3rd respondent. In each petition, costs to be deposited within four weeks from today failing which the registry is directed to issue a certificate as if it is a decree passed by the civil court for recovery of the amount. 31. In so far as W.P.No.61890/2011 is concerned, submission of Sri.Ravi Hedge, learned counsel is that the 5th respondent had not actually occupied the post created on the date on which he was recognized to be functioning in the post of Assistant Lecturer and on which terms he has been permitted to function in the post of Associate Professor with effect from 23.07.2010 and that the petitioner came to know about such developments only recently on getting such information, after applying for under the provisions by the Right to Information Act and on applying to the Rajiv Gandhi University of Health Sciences and therefore submits that the seniority list in which 5th respondent figures at Sl.No.1 that cannot be recognized and a promotion based on that is not tenable and therefore seeks to submit that not only his rank is to be quashed but also the consequential promotion! 32. In service matters, diligence is the hallmark and if the 5th respondent had been promoted as an Associate Professor on 23.07.2010 based on a seniority list as it prevailed on 01.01.2009 and published thereafter, the petitioner cannot make an independent grievance. 32. In service matters, diligence is the hallmark and if the 5th respondent had been promoted as an Associate Professor on 23.07.2010 based on a seniority list as it prevailed on 01.01.2009 and published thereafter, the petitioner cannot make an independent grievance. However, while this court is not enthusiast i.e. to straightaway issue a writ of certiorari to quash the appointment of the 5th respondent in the promoted post, particularly as the petitioner had not immediately questioned the rank of the 5th respondent in the final seniority list as on 01.01.2009, nevertheless, the KIMS which is required to act in a fair and proper manner and which has overlooked such anomaly, is directed to have a re-look into the matter find out the proper position of the 5th respondent and if it is found that the 5th respondent had either misrepresented or in fact, was actually not qualified to hold the post of Assistant Professor with effect from the date on which he is so attributed or conferred or given the post and on the basis of which he completes 5 years service in the post which is the eligibility criteria for aspiring to the promotional post of Associate Professor is also wrong then the institute has to take a corrective action and such action to be taken after issue of notice to all concerned and within three months from today. 33. With such directions, this writ petitions is also allowed and the Annexure-E, F, O and L are quashed. The annexures which are quashed in W.P.No.63874/2010, obviously ensures to the benefit of the present writ petitioner also. 34. Rule issued and made absolute in this petition also. 35. For the purpose of record, Mr.Datar, learned counsel for the petitioners is permitted to file the amended writ petitions in the registry within five weeks after furnishing a copy of the same to the counsel for the respondents. 36. Misc. W. 60176 of 2010 are amendment filed in WP No.63874 of 2010 is allowed.