Dismissed

Dr C Ravishankar v. State of Karnataka

Karnataka HC10 Oct 2022WA/1337/2021

Case brief

AI extract

What is this about?

This intra-court appeal challenged the Single Judge order dismissing the appellant's writ petition against the withdrawal of a corrigendum granting retrospective promotion. The Court held that the appellant was ineligible due to lack of teaching experience and dismissed the appeal.

What did the court decide?

The writ appeal was declined to be entertained and dismissed. The order of the Single Judge in W.P.No.53351/2014 was upheld.

Dr C Ravishankar Vs State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON’BLE MR. ALOK ARADHE ACTING CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY

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W.A.No.1337/2021 (S-PRO)

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BETWEEN:

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DR. C.RAVISHANKAR S/O LATE T.S. CHANDRASHEKAR RAO AGED ABOUT 42 YEARS RESIDING AT NO.7TH MAIN

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BTM II STAGE, BANGALORE - 560 076. ...APPELLANT

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(BY SRI D.R. RAVISHANKAR, SR. COUNSEL FOR SRI S.SARAVANA, ADV.)

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AND:

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STATE OF KARNATAKA BY ITS SECRETARY TO THE DEPARTMENT OF MEDICAL EDUCATION, M.S. BUILDINGS BANGALORE - 560 001.

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THE BANGALORE MEDICAL COLELGE AND RESEARCH INSTITUTE BANGALORE AND AUTONOMOUS BODY HAVING ITS REGISTERED OFFICE AT RAJARAM MOHAN ROY ROAD AMBEDKAR VEEDHI, SAMPANGI RAMA NAGAR, BENGALURU KARNATAKA - 560 002 REP. BY ITS DEAN CUM DIRECTOR.

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DR. KARTHIK ASST PROFESSOR DEPARTMENT OF ENT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE BANGALORE - 560 072. ...RESPONDENTS

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(BY PROF. RAVI VARMA KUMAR, SR. COUNSEL FOR SRI N.K RAMESH, ADV. FOR C/R-3; SRI S.S. MAHENDRA, AGA FOR R-1; SRI P.S MALIPATIL, ADV., FOR R-2)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDERS OF THE LEARNED SINGLE JUDGE PASSED IN W.P. NO. 53351/2014, DATED 29.09.2021 AND PASSED SUCH OTHER ORDERS AS DEEMED APPROPRIATE. THIS APPEAL COMING ON FOR HEARING THIS DAY, VISHWAJITH SHETTY J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The instant intra court appeal is filed by the unsuccessful petitioner assailing the order dated 29.09.2021 passed by the learned Single Judge of this Court in W.P.No.53351/2014.

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Heard the learned Senior Counsel appearing for the parties and also perused the material on record.

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Brief facts of the case as revealed from the

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records are, the appellant as well as respondent no.3 were directly recruited as Medical Officers in Health and Family Welfare Department in the year 2002 and 2004,

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respectively. Subsequently, by virtue of the Government Order and change of cadre, the appellant as well as respondent no.3 were deputed to work as Lecturers in respondent no.2-Institute with effect from 13.05.2005 & 29.07.2004, respectively. While they were working as Lecturers in respondent no.2-Institute, concurrence was accorded for their absorption in Medical Education Department as Lecturers in respondent no.2-Institute. In respect of the appellant, the order of absorption was issued on 20.10.2005, whereas in respect of respondent no.3, order of absorption was issued on 18.06.2007. Respondent no.3 was thereafter promoted to the post of Associate Professor on 17.10.2007 while the appellant was promoted to the post of Associate Professor on 29.10.2007. Subsequently, in the year 2012, a corrigendum was issued on 08.10.2012 notifying that the order dated 29.10.2007 promoting the appellant to the post of Associate Professor should be read as "with retrospective effect from 17.10.2007" and this corrigendum was issued on the representation of the appellant dated 24.08.2012. Thereafter, the said corrigendum dated 08.10.2012 was withdrawn on

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03.11.2012. Two years thereafter, the seniority list of Associate Professors of respondent no.2-Institute was published in the Official Memorandum dated 18.07.2014 wherein respondent no.3 was placed at Sl. No.1 and the appellant was placed at Sl. No.2 and this seniority list was based on their date of entry into cadre of Associate Professors. Challenging the said ranking assigned in the seniority list as well as withdrawal of the corrigendum dated 08.10.2012, the appellant had approached this Court in W.P.No.53351/2014. The learned Single Judge of this Court vide the order impugned has dismissed the said writ petition and being aggrieved by the same, the petitioner in the writ petition has preferred this intra court appeal.

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Sri D.R.Ravishankar, learned Senior Counsel appearing for the appellant submits that respondent no.1 had erroneously withdrawn the corrigendum dated 08.10.2012, wherein the appellant was promoted as Associate Professor with retrospective effect from 17.10.2007. He submits that the appellant is senior to respondent no.3 since he was absorbed into service of

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respondent no.2-Institute on 20.10.2005, whereas respondent no.3 was absorbed on 18.06.2007. He submits that in the order of absorption, it was made clear that respondent no.3 would be placed at the bottom of the seniority of lecturers as on the date of absorption. He further submits that the appellant's experience as a resident doctor is required to be taken into consideration for the purpose of qualifying service and in this regard, he has placed reliance on the Medical Council of India under Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 (hereinafter referred to as '1998 Regulations') and submits that respondent no.1 is required to follow the 1998 Regulations and cannot prescribe its own regulations contrary to the same. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of

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SUDHIR.N. & OTHERS VS STATE OF KERALA & OTHERS¹ .

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Per contra, learned Senior Counsel appearing for respondent no.3 submits that the appellant became eligible for promotion to the post of Associate Professor

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1 (2015)6 SCC 685

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only on 13.05.2008, whereas respondent no.3 was eligible on 29.07.2007 itself. He submits that the order dated 17.10.2007 promoting respondent no.3 as Associate Professor remains unchallenged till date. He submits that respondent no.2-Institute was declared autonomous on 26.08.2008, and thereafter, the Government becomes functus officio. He also refers to the order dated 26.08.2008 absorbing the appellant as well as respondent no.3 as teaching staff of respondent no.2-Institute, wherein respondent no.3 is placed above the appellant. He submits that since the Government had become functus officio, it had no authority to issue the corrigendum in the year 2014, and therefore, it was rightly recalled. He refers to the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Act, 1973 (for short, 'the Act of 1973') and submits that the said Act prohibits retrospective promotion. He also refers to the Karnataka State Civil Service (Regulations of Promotion, Pay and Pension) Rules, 1978 (for short, '1978 Rules') framed under the said Act and submits that contingencies provided under Rule 2 for promoting a civil servant with retrospective date would not be applicable

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to the appellant, and therefore, under any circumstances, the appellant's prayer for retrospective promotion cannot be entertained. In support of his contention, he has relied upon the judgment of the Hon'ble Supreme Court in the case of K.NARAYAN & OTHERS VS STATE OF KARNATAKA & OTHERS² . He further submits that the appellant is not entitled for the prayers sought by him as the writ petition is hit by delay and latches. In support of this argument of his, he has relied upon the judgment of the Hon'ble Supreme Court in the case of P.S.SADASIVASWAMY VS STATE OF TAMIL NADU³ . He also submits that the corrigendum dated 08.10.2012 was issued based on the noting recorded in the file by the then Minister and such a corrigendum is not sustainable in law, and accordingly, the same was withdrawn by the State Government. In support of this contention of his, he has relied upon the judgment of the Hon'ble Supreme Court in the case of

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UNION OF INDIA & ANOTHER VS ASHOK KUMAR

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AGGARWAL⁴ . He further submits that the judgment in Sudhir's case supra cannot be made applicable to the

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2 (1994)1 SCC 44.

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3 (1975)1 SCC 152

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4 (2013)16 SCC 147

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facts of the present case as the appointment in the present case is for a civil post and whereas in Sudhir's case, it was Medical Education.

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In reply, learned Senior Counsel for the appellant submitted that the appellant was throughout placed ahead of respondent no.3 in the seniority list till the year 2014, and therefore, there is no delay in filing the writ petition. He also submits that respondent no.2Institute is an autonomous institution, and therefore, the Act of 1973 would not be applicable.

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The undisputed facts of the case are, the appellant and respondent no.3 were recruited as Medical Officers in Health and Family Welfare Department in the year 2002 & 2004, respectively. Thereafter, they were deputed to work as Lecturers in the respondent no.2Institute with effect from 13.05.2005 & 29.07.2004, respectively. The appellant was promoted to the post of Associate Professor on 29.10.2007, whereas respondent no.3 was promoted to the post of Associate Professor on

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17.10.2007.

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For the purpose of promotion to the post of Associate Professor from the post of Lecturer, the Cadre and Recruitment Rules framed by the State provide that the candidate should have a teaching experience of not less than three years in the post of Lecturer or Lecturercum-Registrar of any higher post. The relevant Rule reads as follows:

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“For Promotion and Direct Recruitment

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Qualifications :

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(1) Should be the holder of a Degree in Medicine of any University established by Law in India; and

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(2) Should have any of the post-graduate qualification in Oto-Rhino-Laryngology specified in Annexure-A or B; and

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(3) Should have teaching experience in OtoRhino-Laryngology not less than three years in a post of Lecturer or Lecturer-cum-Registrar of any higher post.”

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The aforesaid Rule is not in conflict with the

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1998 Regulations as the same provides for a higher experience than prescribed under 1998 Regulations with an obvious intention to maintain higher standard of teaching. The Cadre & Recruitment Rules does not recognize the experience as a resident doctor and the same cannot be found fault with. Admittedly, the appellant has worked as a Lecturer in respondent no.2-

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Institute only with effect from 13.05.2005 and as on the date of promotion of respondent no.3 to the post of Associate Professor i.e., 17.10.2017, the appellant had not completed three years of experience in the post of Lecturer.

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The contention of the appellant that his experience as a Resident Medical Officer is also required to be taken in to consideration following the 1998 Regulations, requires to be rejected for the reason that the minimum qualification has been prescribed by the State under its Cadre & Recruitment Rules and the same being not in conflict with the UGC Regulations, no fault can be found with the same. The experience gained as a resident doctor cannot be equated with the experience gained as a Lecturer since the experience gained as a resident doctor is while undergoing Post Graduation in the relevant subject and a Post Graduation Degree is a minimum requirement for the purpose of appointment as a Lecturer.

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Learned Senior Counsel for the appellant has placed reliance on the judgment in Sudhir's case supra,

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to contend that 1998 Regulations would prevail over the Cadre & Recruitment Rules of the State. In Sudhir's case supra, the validity of certain provisions of Kerala Medical Officers admission to Post Graduate Courses under the Service Quota Act, 2008, was challenged on the ground that the same was contrary to the 1998 Regulations, whereas in the present case, the Cadre & Recruitment Rules of the State is not contrary to the 1998 Regulations, and in fact it has fixed a higher standard of qualification for the purpose of promotion to the post of Associate Professors from the post of Lecturers. Therefore, the principles laid down in Sudhir's case supra has no application to the present case.

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Further, undisputedly, respondent no.3 was promoted to the post of Associate Professor on 17.10.2007, whereas the appellant has been promoted to the post of Associate Professor on 29.10.2007. For the purpose of considering the seniority between the appellant and respondent no.3, the date of promotion to the cadre of Associate Professor becomes relevant and undisputedly, respondent no.3 is senior to the appellant.

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Section 3 of the Act of 1973 provides for

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Promotions, etc., of civil servants. The same reads as under:

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"3. Promotions, etc., of civil servants

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- (1) No civil servant shall-

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[(a) be entitled to promotion to any post or office with effect from a retrospective date, except and to the extent specified in the rules made under this Act;]

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(b) only on the ground of his seniority in a seniority list, be promoted to any post or office unless the authority competent to promote determines his eligibility and promotes him by a written order to officiate in such post or office; and no such civil servant shall save as provided in Section 9, be entitled to continue in such promoted post or office unless the said authority assesses the work of such civil servant in such post or office and declares by a written order that he had satisfactorily completed his officiation;

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(c) when promoted to officiate in any post or office save as provided in Section 9, be entitled to be considered for promotion to the next higher post or office unless he is declared to have satisfactorily completed his officiation in the first promoted post or office.

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(2) In matters not specified in subsection (1), the provisions contained in Sections 4, 5, 6, 7 and 8 shall mutatis mutandis, be applicable."

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A reading of the same would make it clear that

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there is a prohibition for promotion to any post or office

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with effect from a retrospective date, except and to the extent specified in the Rules made under the said Act of 1973.

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15. Rule 2 of the 1978 Rules reads as under:

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"2. Promotion .-Promotion of a civil servant may be made with effect from a retrospective date.-

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(1) if his claim for promotion.-

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[(a) was withheld on account of disciplinary proceedings or criminal prosecution of both pending against him and he is exonerated or acquitted subsequently, or]

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(b) was not considered on the ground that he was working in some other department on deputation or otherwise; or

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(c) was not considered on the ground that he was wrongly or incorrectly described in the provisional or final inter-State Seniority List or gradation list;[or]

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[(d) was passed over on account of adverse remarks in his Confidential Reports which were expunged subsequently.]

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(2) If, while operating the gradation list or the provisional inter-State Seniority List or any other inter-State Seniority List not being a final one, he was not considered for promotion for no justifiable reason [x x x x x]; or

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(3) If, while being eligible according to his seniority in the list that was in force and otherwise fit for promotion according to Cadre and Recruitment Rules he had only been placed in independent charge of the post by the Competent Authority and has discharged the duties of the said post:

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[Provided that if a civil servant on deputation to some other department and

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placed in independent charge of a post in the parent Department was prevented from discharging the duties of the post on the ground that his services on deputation are essential in public interest, he shall also be considered under this sub-rule from the date his junior is considered for promotion.]"

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The appellant does not fit into any one of the

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aforesaid contingencies provided under Rule 2 of the 1978 Rules. The Hon'ble Supreme in K.Narayan's case

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supra at paragraph No.7 has observed as follows:

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" 7. Rules operate prospectively. Retrospectivity is an exception. Even where the stature permits framing of rule with retrospective effect the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right. The rule-making authority should not be permitted normally to act in the past. The impugned rule made in 1985 permitting appointment by transfer and making it operative from 1976 subject to availability of vacancy in effect results in appointing a Junior Engineers in 1986 with effect from 1976. Retrospectivity of the rules is a camouflage for appointment of Junior Engineers from a back date. In our opinion the rule operates viciously against all those Assistant Engineers who were appointed between 1976 to 1985. In Ex-Capt. K.C. Arora v. State of Haryana and P.D. Aggarwal v. state of U.P. it was held by this Court that the President or Governor cannot make such retrospective rules under Article 309 of the Constitution as contravene Articles 14, 16 or 311 and affect vested right of an employee. Even in

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B.S. Yadav v. State of Haryana where the power to frame rules retrospectively was upheld it was observed: (SCC p. 557, para 76)

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"Since the Governor exercises a legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case."

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As seen earlier there is no nexus between framing a rule permitting appointment by transfer and making it retrospective with effect from 1976. Appointing a person to a higher post in a different cadre in which he has never worked is violative of constitutional guarantee of those who are working in the cadre. It is against basic principle of recruitment to any service."

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Even though the provisions of the Act of 1973

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and 1978 Rules may not be strictly made applicable to

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the case on hand, the law regarding promotion with retrospective effect has been laid down by the Hon'ble Supreme Court in K.Narayan's case, wherein it is held that promoting a person with retrospective effect is against the basic principle of recruitment to any service.

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The ground of delay and latches and the ground that no reliance can be placed on the noting recorded in the file for the purpose of issuing any order/corrigendum, was not raised by respondent no.3 before the learned Single Judge in the writ petition, and therefore, we are of the considered view that the same need not be considered by us in this appeal.

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It is not in dispute that respondent no.3 was promoted to the post of Associate Professor on 17.10.2007 whereas the appellant was promoted to the post of Associate Professor on 29.10.2007. The promotion of respondent no.3 to the post of the Associate Professor on 17.10.2007 has not been questioned by the appellant at any point of time and by issuing a corrigendum in the year 2014, the seniority of respondent no.3 in the post of Associate professor could not have been disturbed. The notification Annexure-F dated 18.07.2014 has been issued on the basis of seniority of the appellant and respondent no.3 inter se in the post of Associate Professor and therefore, no fault can be found with the same. The learned Single Judge

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having appreciated the same has rightly dismissed the writ petition and we do not find any infirmity in the said order which is assailed in this intra court appeal. Accordingly, we decline to entertain this appeal and the same is therefore, dismissed.

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Sd/-

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ACTING CHIEF JUSTICE

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Sd/JUDGE

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Dr C Ravishankar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Dr C Ravishankar v. State of Karnataka

Case brief

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