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2023 DIGILAW 1365 (KAR)

Deepa S. v. State of Karnataka

2023-12-06

N.S.SANJAY GOWDA

body2023
JUDGMENT 1. Writ Petition No.52800 of 2017 is filed challenging the communication dtd. 10/11/2017, by which the order promoting the petitioner to the post of Associate Professor (Microbiology) has been directed to be kept in abeyance and the Official memorandum dtd. 13/11/2017, by which the petitioner has been reverted from the post of Associate Professor to the post of Assistant Professor. 2. Writ Petition No.58172 of 2014 is filed challenging the endorsement dtd. 21/8/2014, which is to the effect that the petitioner has been kept below the ranking of respondent No.4 in the draft seniority list dtd. 7/7/2014 and also the Official Memorandum dtd. 7/7/2014 publishing the seniority list. She has also challenged the Official Memorandum dtd. 28/11/2013 by which respondent No.4 has been promoted to the post of Assistant Professor with retrospective effect from May, 2008. 3. The following facts are not in dispute: 4. The petitioner was appointed on 12/8/2008 as an Assistant Professor (Microbiology). As on the date of appointment of the petitioner, she possessed a Post- Graduate Degree in Microbiology and she was, thus, directly recruited as an Assistant Professor. 5. Respondent No.4 was appointed as a Lecturer on 24/5/2000. As on the date of his appointment, he only possessed the qualification of an Undergraduate Degree i.e., he possessed only an MBBS degree. 6. Eight years after respondent No.4 was appointed, he secured a post-graduation degree in Microbiology in the month of April, 2008. Pursuant to him acquiring the post- graduation degree, by a Notification dtd. 26/11/2009, respondent No.4 was promoted as an Assistant Professor. Thus, with effect from 26/11/2009, respondent No.4 entered the cadre of Assistant Professor. 7. It is obvious that since the petitioner had been appointed as an Assistant Professor directly on 12/8/2008 i.e., about 01 year 3 months prior to the promotion of respondent No.4 as an Assistant Professor, the petitioner would obviously be senior to respondent No.4. 8. However, the learned counsel for respondent No.4 strenuously contended that the Medical Council of India (MCI) Regulations considered both posts of Assistant Professor and Lecturer as one and the same, and prescribed the same qualifications. 9. It is contended that since respondent No.4, notwithstanding the fact that he had been appointed as a Lecturer in the year 2000, on his acquisition of a post- graduate degree, he was automatically re-designated as an Assistant Professor. 10. 9. It is contended that since respondent No.4, notwithstanding the fact that he had been appointed as a Lecturer in the year 2000, on his acquisition of a post- graduate degree, he was automatically re-designated as an Assistant Professor. 10. In this regard, reliance is sought to be placed on the clarificatory letter dtd. 11/8/2008 issued by the MCI, which states that the posts of Assistant Professor and the Lecturer belong to the same cadre. In short, it is contended that from the moment respondent No.4 acquired the post-graduate degree, his seniority in the cadre of Assistant Professor/Lecturer would have to be construed and not from the date of his entry as a Lecturer. 11. In my view, this argument cannot be accepted. No doubt, the MCI Regulations do state that for the post of Assistant Professor/Lecturer, the educational qualifications are the same. 12. As already noticed above, when respondent No.4 was appointed as a Lecturer, he did not, admittedly, possess a post-graduation degree, whereas the petitioner, at the time of her appointment, did possess a post-graduation degree. The petitioner was appointed as an Assistant Professor, whereas respondent No.4 was appointed as a Lecturer. 13. Merely because the educational qualifications under the MCI Regulations for both the posts of Lecturer and Assistant Professor are the same and both are considered to be the same cadre, respondent No.4 cannot claim that he was borne on the same cadre of Assistant Professor, from the day he procured the post-graduate degree i.e., in April, 2008. 14. It is also to be noticed here that respondent No.4 was actually promoted as an Assistant Professor only on 26/11/2009 and the Official Memorandum dtd. 28/11/2013 which was relied upon, also confirms the fact that respondent No.4 was discharging the duties of the Assistant Professor only from 26/11/2009. 15. If respondent No.4 is discharging the services in the cadre of Assistant Professor only from 26/11/2009, the question of him being considered as senior to the petitioner, who was directly appointed as an Assistant Professor on 12/8/2008, does not arise. 16. 15. If respondent No.4 is discharging the services in the cadre of Assistant Professor only from 26/11/2009, the question of him being considered as senior to the petitioner, who was directly appointed as an Assistant Professor on 12/8/2008, does not arise. 16. To re-iterate, merely because the MCI has stated that the cadre of Assistant Professor and Lecturer are one and the same, the person who was appointed as a Lecturer with a lesser qualification cannot by his mere acquisition of a post-graduate degree, subsequently march a steal over the seniority in respect of a person who had been appointed as an Assistant Professor on the basis of her post-graduation qualification. 17. It may also be pertinent to state here that if the cadre of Assistant Professor and Lecturer are one and the same, the question of respondent No.4 getting an order of promotion on 26/11/2009 (Annexure 'R7') would not arise. It is only because the respondent No.4 was in the lower cadre of Lecturer, was an order of promotion necessary in order to promote him to the cadre of Assistant Professor. 18. In this view of the matter, the petitioner who was appointed as an Assistant Professor on 12/8/2008 will be senior to respondent No.4, who was promoted to the post of Assistant Professor on 26/11/2009. 19. As a consequence, the impugned endorsements, whereby the petitioner has been placed below respondent No.4 cannot be sustained and the same are hereby quashed. 20. It is also not in dispute that during pendency of Writ Petition No.58172 of 2014 [S-PRO], the petitioner was promoted as an Associate Professor, but by the impugned orders therein, the said order of promotion was withdrawn on the ground that the seniority issue between the petitioner and respondent No.4 was not yet settled. 21. In view of the fact that it has now been held that respondent No.4 would not be considered as senior to the petitioner in the cadre of Assistant Professor, the withdrawal of the promotion under the orders impugned in W.P. No.58172 of 2014, cannot be sustained and the same are hereby quashed. 22. The petitioner shall be entitled to be considered as an Associate Professor from the date she was promoted i.e., on 28/10/2017. 23. 22. The petitioner shall be entitled to be considered as an Associate Professor from the date she was promoted i.e., on 28/10/2017. 23. At this stage, the learned counsel for respondent No.4 submits that the promotion of respondent No.4 to the post of Associate Professor has been withheld during the pendency of this petition, in view of the seniority issue that had been raised by the petitioner and respondent No.4. 24. In view of the fact that it has now been held that the petitioner is held to be senior to respondent No.4, the respondent-Institution shall consider the case of respondent No.4 for being promoted to the post of Associate Professor, immediately. 25. It is also stated at the Bar that there is one vacancy available in the post of Associate Professor in Microbiology. 26. Respondent No.2 shall, as directed above, consider the case of respondent No.4 for promotion to the post of Associate Professor and pass necessary orders at the earliest, within an outer limit of one month from the date of receipt of a copy of this order. 27. It is, however, clarified that if respondent No.4 is granted promotion to the post of Associate Professor, he shall continue to be junior to the petitioner. 28. It is needless to state that the petitioner would be entitled to all the consequential benefits that arise out of this order, by which she is ordered to be treated as senior to respondent No.4. 29. The writ petitions are accordingly allowed.