Dismissed

Dr Darshan B B v. Mandya Institute of

Karnataka HC11 Dec 2023WP/32254/2016

Case brief

AI extract

What is this about?

This writ petition challenged the selection and appointment of a respondent to the post of Assistant Professor, alleging calculation errors in the Selection Committee's award of excess marks leading to the petitioner's exclusion despite having higher adjusted marks.

What the court decided

AI extract

Dr Darshan B B Vs Mandya Institute of — Service and Employment | Karnataka HC (2023)

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1 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 32254 OF 2016 (S-RES)

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BETWEEN:

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DR DARSHAN B B AGED 31 YEARS, S/O BHAGAWAN L R/O DOOR NO.117, A-1 BLOCK, 2ND MAIN 3RD STAGE, VIJAYANAGAR, MYSORE-570 030.

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…PETITIONER

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(BY SRI. VIGHNESHWAR.S.SHASTRI, SENIOR COUNSEL ALONGWITH SRI.SHESHADRI FOR SRI.GURURAJ.R., ADVOCATE)

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AND:

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MANDYA INSTITUTE OF MEDICAL SCIENCES BANGALORE-571 401 REPRESENTED BY ITS DIRECTOR.

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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DR HUGARA SIDDALINGAPPA MAJOR, FATHERS NAME NOT KNOWN TO THE PETITIONER ASSISTANT PROFESSOR, COMMUNITY MEDICINE, MANDYA INSTITUTE OF MEDICAL SCIENCES, BANGALORE-MYSORE ROAD, MANDYA-571 401

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…RESPONDENTS (BY SRI. SUMANA BALIGA M., ADVOCATE FOR R-1; SRI.M.NARAYANA BHAT, ADVOCATE FOR R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR

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2 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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RECORDS RELATING TO CONCERNING AND CONNECTED WITH THE SELECTION AND APPOINTMENT TO THE POST OF ASST. PROFESSOR IN COMMUNITY MEDICINE AT R-1 - INSTITUTE, HELD IN PURSUANCE OF THE NOTIFICATION DATED 06.04.2016 VIDE ANNEXURE-D ISSUED BY R-1 AND CULMINATING IN THE PUBLICATION OF THE MERIT LIST OF ASSISTANT PROFESSOR VIDE ANNEXURE-G BEARING NO. NIL DATED 27.04.2016 AND ANNEXURE-M DATED 04.05.2016 ISSUED BY R-1 AS ILLEGAL, UNSUSTAINABLE IN LAW, ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The controversy in this writ petition is to the selection and appointment to the post of Assistant Professor in Community Medicine.

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The petitioner contends that respondent No.2 was wrongly awarded excess marks and was, therefore, ineligible to be appointed. It is his contention that if the excess marks awarded to respondent No.2 are deducted or excluded, the petitioner would have secured higher marks and would be eligible to be selected.

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The learned counsel submits that the petitioner had obtained 11.21 marks whereas respondent No.2 had obtained 11.43 marks and if the excess marks awarded

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3 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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are excluded, the marks secured by respondent No.2 would stand reduced and the petitioner would thereby become more meritorious.

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The Mandya Institute of Medical Sciences (‘the Institute’ for short) which had called for the applications through the walk-in-interview. It had framed bye-laws prescribing the method of selection for Teaching Faculties , including that of Assistant Professor. The Byelaw stipulated the number of marks which were to be granted to the candidates and the relevant bye-law reads as under:

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“ For teaching faculties (Professor / Associate Professor / Assistant

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Professor):

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(a) Number of Publications in National/Indexed Journal above the stipulated number specified for the post by the MCI-1/2 mark for each paper subject to a maximum of 2 marks.

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(b) Number of Publications in International Journals-1 mark for

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4 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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each paper subject to a maximum of 2 marks.

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(d) Higher experience than required for that post- ½ mark for each year to maximum of 2 marks.

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(e) Presentation of papers/lectures in State/National/International Conferences- ½ mark for each paper subject to a maximum of 2 marks.

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(f) Personality/Presentation in the Interview- 6 marks. ”

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The Selection Committee, which was convened

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proceeded to consider the Bye-laws, and award the marks in the following manner:

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“«ÄªÀiïì ¨ÉÊ¯Á ¥ÀæPÁgÀ £ÉÃªÀÄPÁwUÁV F PÉ¼ÀPÀAqÀ ªÀiÁ£ÀzÀAqÀ §¼À¸À®Ä wÃªÀiÁð¤¸À¯Á¬ÄvÀÄ

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¢£ÁAPÀ:27.04.2016 gÀAzÀÄ £ÀqÉAiÀÄÄªÀ £ÉÃgÀ

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¸ÀAzÀ±Àð£ÀzÀ°è ¨ÉÆÃzsÀPÀ ªÉÊzÀågÀ£ÀÄß (¥ÁæzsÁå¥ÀPÀgÀÄ, ¸ÀºÀ ¥ÁæzsÁå¥ÀPÀgÀÄ ªÀÄvÀÄÛ ¸ÀºÁAiÀÄPÀ ¥ÁæzsÁå¥ÀPÀgÀÄ) DAiÉÄÌ ªÀiÁqÀÄªÀÅzÀPÁÌV «ÄªÀiïì ¨ÉÊ¯Á ¥ÀæPÁgÀ F PÉ¼ÀPÀAqÀ ªÀiÁ£ÀzÀAqÀ §¼À¸À®Ä wÃªÀiÁð¤¸À¯Á¬ÄvÀÄ.

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5 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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Publications in indexed journal above the stipulated numbers-	½ Marks for paper-maximum marks	each of 2
Publications in	1 Mark for	each-
international journals-	maximum of 2 m	arks
WHO Fellowship / University Gold Medal-	1 Mark
Higher experience than required-	½ Mark for each maximum of 2 m	year- arks
Presentation of papers-	½ Mark for paper-Maximum marks	each of 2
Personality/presentation-	Maximum of 6 m	arks

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The only difference in the Bye-law and these proceedings was that as against Clause 2(a), instead of number of publications in national/indexed journals, the Committee considered the publications in Indexed Journal above the stipulated numbers, was in relation to Clause (2)(a). For the purpose of comparison, both are reproduced as (side by side) hereunder:

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As per Bye Law	As per Selection Committee
“(2) For teaching faculties	Publications in
(Professor / Associate Professor / Assistant Professor):	indexed journal above the
(a) Number ofPublications in	stipulated
National Indexed Journal above	numbers – 1/2
the stipulated number specified for the post by the MCI – 1/2 mark for each paper subject to a maximum of2 marks.”	Mark for each paper-maximum of 2 marks

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(underlined by me)

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6 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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As could be seen from above, the only difference is that the word “ national” has been omitted by the Selection Committee.

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As rightly contended by the learned counsel for the Institute, this was because every national journal would also be an indexed journal and consequently, the Committee omitted the usage of the word “ national” in its proceedings.

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Thus, as a consequence, the following marks are to be awarded for the following category :

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for every publication in the National / Indexed journal above the stipulated numbers, the candidate would get 1/2 mark for each paper subject to a maximum of 02 marks ;

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for every publication in International Journals, the candidate would get 01 mark for each paper subject to a maximum of 02 marks ;

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7 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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for the WHO Fellow-ship in the same subject / University Gold Medal, the candidate would get 01 mark ;

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for Higher experience than required for that post, the candidate would get 1/2 mark for each year subject to maximum of 02 marks ;

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for the presentation of papers / lectures in State / National / International Conferences, the candidate would get, 1/2 mark for each paper subject to a maximum of 02 marks and

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for the personality/Presentation in the Interview, the candidate would get 06 marks.

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The marks awarded to respondent No.2 along with

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three others has been produced as Annexure ‘R8’. The marks awarded to respondent No.2 are as follows:

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Candidate Name & Registration Numbers	Category	Age	Number of Publication in National/ indexed journals ½ marks for each -maximum (2) marks	Marks o Paper Publications in international journals 1 mark for each -maximum (2) marks	btain WHO Fe in same Universi Me -maxi (1) m	ed in llowship subject/ ty Gold dal mum ark	the Inter Higher Experience than required ½ mark for each completed year maximum (2) marks	view Present pape state/N Intern Confe ½ ma ea -maxi (2) m	(15 ation of rs in ational/ ational rence rk for ch mum arks	) Personality/ Presentation Maximum of (6) Marks	Average Interview Mark (4+5+6+7+ 8+9 out of 15 mark
1	2	3	4	5	6		7	8		9	10
			No Marks award ed	No Marks award ed	No	Marks award ed	No Marks award ed	No	Marks award ed
**	**	**			**	**		**		**	**
51-Dr.Hugara Siddalingappa	GM (HKQ/ 2A)	31 Yrs	2 01	2 02	Yes Gold Medal	01	3 Yrs 8 Mths 1.5	3	1.5	4.43	11.43
**	**	**			**	**		**		**	**

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11. It is not in dispute that respondent No.2 had

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published the following Articles in the following journals:

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13	Paper Publications	1) PREVALENCE & ASSOCIATED RISK FACTORS OF PERINATAL MORTALITY IN RURAL AREAS OF MYSORE-JCDR
		2) HEALTH INSURANCE COVERAGE &
		HELATHCARE EXPENDITURE PATTERN IN RURAL MYSORE-IJMS SEPT-2015
		3) BURDEN OF HEAVY SCHOOL BAGS AMONG HIGH SCHOOL STUDENTS AND ITS RELATION WITH THEIR PHYSICAL GROWTH SEPT-2015-III HS
		4) ASSESSMENT OF AVAILABILITY & PATTERN OF UTILIZATION OF INSTITUTIONAL OBST.CARE BY VENN EXERCISE-MAY 2016-IJCM

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9 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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The learned counsel for the Institute submits that the

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Article at Sl.Nos.1, 3 and 4 are international journals and 01 mark was to be awarded for all three, but since the marks prescribed were 02 marks, respondent No.2 was awarded 02 marks.

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She also submits that since there were three international articles published, the Committee decided to treat one as an indexed article and awarded 1/2 mark to the said article and thereby, increased the number of paper publications in the national journal category.

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The learned counsel also admits that the Article mentioned at Sl.No.2 was the only National Journal. Since this is the admitted position, respondent No.2 was entitled only to 1/2 mark by virtue of having one publication in the national category. The Selection Committee by considering the extra international publication as a national journal, has wrongly awarded 1/2 mark.

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10 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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15. Thus, as against respondent No.2’s entitlement to

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11.43 marks, he was actually entitled to 11.43 LESS 0.5 marks i.e., 10.93 marks.

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However, the matter does not rest there. Respondent No.2 had presented four papers. They are as follows:

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Paper		1) EVALUATION OF AVAILABILITY AND
presentation National International conferences	in /	UTILIZATION OF OBSTETRIC CARE SERVICES UNDER JSY IN MYSORE-1PHA- CON-LUCKN
		2) SOUTH EAST ASIA CONF. AT KOLKATA- 2013. PREVALENCE AND FACTORS ASSOCIATED WITH ANEMIA AMONG PREGNANT WOMEN IN RURAL MYSORE.
		3) PREVALENCE AND ASSOCIATED RISK FACTORS OF PERINATAL MORTALITY IN
		RURAL AREAS OF MYSORE-1PHA 2011- BELGAUM
		4)PREVALENCE OF KNOWN
		HYPERTENSION IN FIELD PRACTICE
		AREAS OF MYSORE-1 PHA-2010+VIZAG.

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The Selection Committee has awarded only 1½

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marks at the rate of 1/2 mark for each presentation and it has proceeded to exclude the presentation of the paper at

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Belagavi i.e., at Sl.No.3.

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11 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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If respondent No.2 had presented a paper at a

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national conference held at Belagavi, he cannot be disentitled for the presentation merely because he presented the paper within the State.

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Thus, as against the entitlement of 02 marks for presentation of papers in national or international conferences, the Selection Committee wrongly awarded only 1½ marks.

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If respondent No.2 is awarded 02 marks for presenting four papers in four national conferences, the sum total of his marks would once again stand enhanced by 1/2 mark. In other words, even if the discrepancy of awarding 1/2 mark for the publication in the international journal is excluded by virtue of awarding 1/2 mark for presenting the paper at Belagavi, respondent No.2 would, in the ultimate analysis, be entitled to the same amount of marks, i.e., 11.43.

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12 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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The learned Senior Counsel for the petitioner, however, contends that the paper that was presented by respondent No.2 in the international journal i.e., Sl.No.3: Prevalence and Associated risk factors of Perinatal Mortality in Rural Areas of Mysore, cannot be considered since it was an published in an E-Journal.

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He places reliance on the Medical Council of India (MCI) letter dated 03.09.2015, in which it had been stated that the E-Journals were not included and this letter was

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also incorporated by the Institute in its notification.

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The learned counsel for respondent No.2, on the other hand, places reliance on the clarification issued by MCI to the Circular dated 03.09.2015, in which it is stated that the publication of E-Journal after 03.09.2015 would only be excluded and not before.

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He states that the MCI had clearly stated that the contents of its Circular dated 03.09.2015 was to be made applicable prospectively and only to those research

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13 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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papers/promotions that had been published/taken place only after 03.09.2015.

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He submitted that since it is not in dispute that the petitioner had published his article in an E-Journal prior to 03.09.2015, the Selection Committee was justified in awarding him marks for that article also.

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The MCI clarification to the Circular dated 03.09.2015, which is produced as Annexure ‘R2-XX’ (to Additional Affidavit dated 11.12.2023) clearly stipulates that the publication in the E-Journal, as excluded in the Circular dated 03.09.2015, would be applicable only prospectively and only to those research papers/promotions that have been published/taken place after 03.09.2015.

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In this view of the matter, the arguments advanced by the learned senior counsel regarding awarding of marks for E-Journal cannot be accepted.

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NC: 2023:KHC:44961 WP No. 32254 of 2016

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The learned Senior Counsel also submitted that the

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Selection Committee had committed a serious error in awarding 01 mark for the alleged Gold Medal secured by respondent No.2.

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The learned Senior Counsel stressed great emphasis on the Notification using the words “ University Gold Medal ”. He submitted that the Gold Medal that was awarded to respondent No.2 could never be considered as a University Gold Medal, since the Gold Medal awarded was titled “ KACH Mycon-2009 Gold Medal by JSS University Mysore ” which was only an Endowment Medal and not a University Gold Medal.

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It cannot be in dispute that when Gold Medals are awarded by the University, they are, at times, sponsored by private entities and the name of the private entities which had sponsored the medals are normally used as a prefix to the Gold Medals.

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15 - NC: 2023:KHC:44961 WP No. 32254 of 2016

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Merely because the name of the sponsorer is prefixed

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to the words “Gold Medal”, that would not lead to the inference that the Gold Medal awarded by the University was not a University Gold Medal.

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The fact that the University did award the Gold Medal cannot be in dispute by virtue of Annexure ‘Q’, in which it is clearly stated that the JSS University, Mysore, was awarding Gold Medals for the year 2013 to 25 candidates mentioned therein. In fact, a perusal of Annexure ‘Q’ would indicate that for various gold medals, the name of the sponsorer has been prefixed.

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As already stated above, since Annexure ‘Q’, in its very title indicates that the JSS University, Mysore was awarding gold medal to 29 candidates mentioned therein, the argument that it was only an Endowment Gold Medal and cannot be considered as a University Gold Medal, could not be sustainable.

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NC: 2023:KHC:44961 WP No. 32254 of 2016

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Consequently, the award of 01 mark for the Gold

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Medal procured by respondent No.2 cannot be doubted.

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Arguments were also advanced by the learned senior counsel contending that the Gold Medal was improperly granted and could not have been granted.

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Admittedly, the Gold Medal that was granted to respondent No.2 was not challenged by any person and so long as the Gold Medal awarded to respondent No.2 remained unchallenged, it was not for the Selection Committee to decide on the validity or otherwise of the Gold Medal that respondent No.2 has secured.

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In the ultimate analysis, since even if the marks awarded by the Selection Committee is reappraised and since it is found that respondent No.2 did secure 11.43 marks as against 11.21 marks secured by the petitioner, it was obvious that respondent No.2 was more meritorious than the petitioner and the respondents were, therefore, justified in selecting respondent No.2.

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NC: 2023:KHC:44961 WP No. 32254 of 2016

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17 -

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I find no reason to entertain the petition and the writ

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petition is therefore dismissed .

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Sd/JUDGE

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RK CT: SN List No.: 1 Sl No.: 60

Dr Darshan B B v. Mandya Institute of

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What the court decided

Dr Darshan B B v. Mandya Institute of

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