Dismissed

Dr Himamani S v. State of Karnataka

Karnataka HC27 Sept 2024WP/40348/2017

Case brief

AI extract

What is this about?

In a writ petition under Articles 226 and 227, the High Court held that a petitioner cannot claim retrospective promotion to the Department of Medicine as a vacancy filled by another colleague with a prospective appointment order. Additionally, the court ruled that once the petitioner's lien was transferred to Nephrology, she lost her claim to promotion in the original department.

What did the court decide?

Application to quash conditions in official memorandum was dismissed; petitioner's promotion in other department affirmed; no retrospective promotion in original department.

Dr Himamani S Vs State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.40348 OF 2017 (S-PRO)

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BETWEEN:

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1 . DR. HIMAMANI S. W/O DR. BABU A.R. AGED ABOUT 40 YEARS ASSOCIATE PROFESSOR AND HOD DEPARTMENT OF NEPHROLOGY MYSORE MEDICAL COLLEGE & RESEARCH INSTITUTE AND NEPHRO-UROLOGY UNIT K.R. HOSPITAL, MYSORE R/A NO.8, 1^ST FLOOR GOVERNMENT DOCTORS QUARTERS BEHIND REGALIS HOTEL J.L.B. CROSS ROAD MYSORE-570 001.

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...PETITIONER

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(BY SMT. POONAM PATIL, ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY MEDICAL EDUCATION DEPARTMENT M.S. BUILDING BANGALORE-560 001.

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2 . MYSORE MEDICAL COLLEGE & RESEARCH INSTITUTE IRWIN ROAD MYSORE-570 021. REPRESENTED BY ITS DEAN & DIRECTOR

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3 . DIRECTOR OF MEDICAL EDUCATION ANANDA RAO CIRCLE

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BANGLAORE-560 009.

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4 . DR. K. SUNEETHA .D.K

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5 . DR. LAXME GOWDA

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6 . DR. RAMESHA S.S.

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7 . DR. BASAVARAJU M.M.

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8 . DR. RANGASWAMY

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9 . DR. A. MANJULA

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ALL MAJORS ALL ARE WORKING AS PROFESSORS IN THE DEPT. OF GENERAL MEDICINE MMCRI MYSORE-560 028.

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[CAUSE TITLE AMENDED V/O DATED 23.02.2023]

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…RESPONDENTS

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(BY SMT. PRATHIBHA R.K., AGA FOR R1 & R3; SRI. CHANDRAKANTH R.GOULAY, ADVOCATE FOR R1 & R3; SRI. M. NARAYANA BHAT, ADVOCATE FOR R4 TO R9)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS FROM THE R-1, QUASH CONDITIONS NO.2 AND 3 OF THE OFFICIAL MEMORANDUM DATED 02.01.2015 VIDE ANNEXURE-J ISSUED BY R-2 AND ETC.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.09.2024, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER:

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CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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C.A.V. ORDER

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In the captioned petition, the petitioner is seeking a writ in the nature of certiorari to quash condition Nos.2 and 3 of Official Memorandum dated 02.01.2015 as per Annexure-J and consequent direction is sought against the respondents to grant petitioner retrospective promotion w.e.f. 24.11.2012 as Professor of Medicine in the respondent No.2/Institution and accordingly continue her in the Department of Nephrology.

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The facts leading to the case are as under:

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The petitioner was appointed as a Lecturer through KPSC selection in the Department of Medicine in Benglauru Medical College on 08.05.2000. Thereafter petitioner was transferred to respondent No.2/College. Petitioner

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completed her Post Graduation MD in General Medicine on 26.06.2006 and she was promoted to the post of Assistant Professor on 02.08.2006. Petitioner was later promoted to the post of Associate Professor on 24.11.2009. As there was no vacancy in the General Medicine Department, her lien was moved to Plastic Surgery Department from 24.05.2010 till she reported back to her parent Department i.e., General Medicine in view of vacancy created on account of retirement of Dr.H.Vasudev Nayak. Petitioner thereafter went on deputation to pursue Doctor of Medicine (DM) Nephrology at Rajiv Gandhi University of Health Sciences. Petitioner has completed Doctor of Medicine (DM) in Nephrology on 31.07.2014 and reported back to respondent No.2/College. The respondent No.2 issued an Official Memorandum on 06.08.2014, calling upon the petitioner to work as Associate Professor in the Department of Nephrology until further orders. Petitioner's primary contention is that the Governing Council of respondent No.2

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by way of resolution has deputed the petitioner as Associate Professor, Nephrology vide resolution dated 27.10.2014 and therefore, claimed that there is no decision on change of lien. Petitioner is aggrieved by the Official Memorandum imposing a condition that in view of transfer of petitioner from Department of Medicine, her seniority would commence from the date of reporting in the Department of Nephrology. Petitioner claims that respondent No.1/State has issued direction to the respondent No.2/College to place the issue of retrospective promotion of the petitioner before the ensuing Departmental Promotion Committee (DPC). Petitioner also contends that DPC meeting was held and it was resolved to give retrospective promotion to the petitioner which is reflected in the proceedings conducted on 03.11.2015 by respondent No.1/State and the Dean and Director of respondent No.2 has signed the proceedings. The respondent No.2/college held a Governing Council meeting to decide the request of the petitioner for

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retrospective promotion. Petitioner is aggrieved by the fact that pursuant to DPC meeting held on 31.12.2016, one Dr.Inbanathan, junior to the petitioner in General Medicine Department was promoted as Professor and petitioner was refused promotion to the post of Professor on the ground that she has not completed the requisite years of service in the Department of Nephrology.

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The captioned petition is filed by the petitioner

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by claiming that she became eligible to be promoted to the post of Professor on 24.11.2012. Citing MCI Rules and also Cadre and Recruitment Rules of respondent No.2, petitioner claims that she has served as Associate Professor for a period of 3 years with certain publications and therefore, she fulfils the said criteria. Petitioner also contends that her service rendered in the Department of Medicine needs to be considered while considering her promotion to the post of Professor denying the service rendered in the Department of Medicine as illegal and arbitrary. Petitioner

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also contends that her deputation for higher status is in accordance with law and citing Rule 61(1)(a) of Karnataka Civil Services Rules (KCSR), 1958, petitioner claims that she is entitled for study leave to pursue higher studies within India and therefore, she claims to be on deputation from 01.08.2011 to 31.07.2014. However, petitioner claims that her eligibility for promotion to the post of Professor commences from 24.11.2012 and therefore, the petitioner contends that she is entitled for retrospective promotion as per Section 2 of the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Rules, 1978.

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Respondent Nos.2 and 3, on receipt of notice, have contested the petition and statement of objections are filed. Respondent Nos.2 and 3 countering petitioner's claim have contended that petitioner's lien has been shifted to Nephrology Department on certain terms and conditions and petitioner having accepted the change of lien, she is

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not entitled to claim service rendered in the Department of Medicine for the purpose of time bound promotion. In view of change of lien to Nephrology Department, it is contended that petitioner without any demur or any protest under Official Memorandum dated 02.01.2015 accepted and reported to Nephrology Department and therefore, she cannot turn back and claim that her promotion to the post of Professor has to be retrospectively considered from 24.11.2012. Respondent Nos.2 and 3 justifying the action of DPC have also contended that petitioner has not fulfilled the requirement criteria before she can be considered for promotion to the post of Professor and therefore, the representations were considered and petitioner was found to be not eligible for the post of Professor. Respondent Nos.2 and 3 contend that as on 2012, petitioner was pursuing DM, Nephrology without any monetary allowance and therefore, no indulgence can be granted.

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Additional statement of objections is filed by respondent Nos.2 and 3 to contend that merely because petitioner has done super specialty in Nephrology, the additional qualification in itself will not constitute a ground to seek promotion on a particular date. The respondent Nos.2 and 3 have contended that this claim is totally misconceived. Respondent Nos.2 and 3 have contended that petitioner has accepted the change of lien from Department of General Medicine to that of Nephrology and the same is acted upon and she has continued to work in Department of Nephrology and therefore, petitioner's claim to the post of Professor in General Medicine with retrospective effect from 24.11.2012 is not tenable.

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Respondent Nos.4 to 9 have filed statement of objections. Respondent Nos.4 to 9 while contesting this petition have disputed the petitioner's eligibility to be promoted to the post of Associate Professor. Respondent Nos.4 to 9 contend that they were deputed by the

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Government and they have acquired Post Graduate Degree much earlier to the petitioner and therefore, order of promotion is issued in favour of petitioner. State has clearly observed that petitioner is not eligible for the post of Associate Professor which is evident at Annexure-E to the writ petition. Therefore, respondent Nos.4 to 9 contend that promotion to the post of Associate Professor is itself illegal and the Government could not have issued the order at Annexure-E. As on the relevant date, MMCRI was formed and it was an autonomous institution. Respondents have also referred to the orders passed by the coordinate Bench in W.P.No.51046/2012. Feeling aggrieved by the promotion of petitioner to the post of Associate Professor and the consequent seniority granted to the petitioner, one Dr.Inbanathan questioned the said notification in W.P.No.51046/2012. Learned Judge dismissed the writ petition, however, Division Bench in W.A.No.4319/2013 granted interim order in favour of Inbanathan and he was

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promoted to the post of Professor by an order dated 27.01.2017 and therefore, he became senior to petitioner. Respondents contend that petitioner was party to the writ petition and writ appeal and did not object the promotion conferred on Dr.Inbanathan. They have also contended that MMCRI made a declaration before Medical Council of India that Dr.Inbanathan is promoted to the post of Professor from 22.08.2012 and therefore, it is contended that petitioner cannot seek promotion to the post of Professor with retrospective effect from 24.11.2012.

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Respondent Nos.4 to 9 have filed additional statement of objections. In the additional statement of objections, respondent Nos.4 to 9 have contended that while promoting the petitioner to the post of Associate professor, no DPC was constituted by respondent No.2 nor any recommendations were made by the DPC. Respondents, therefore, contend that it was a unilateral act of Government of Karnataka as could be seen from

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Annexure-C dated 24.05.2010. Respondents have emphasized on the preamble to demonstrate that petitioner was not eligible for promotion to the post of Associate Professor. On the day Annexure-E was passed, respondent Nos.4 to 9 also contend that MMCRI was already formed and came into existence and respondent No.2 had its own Cadre and Recruitment Rules. Respondent Nos.4 to 9 have also contended that there was no vacancy in the Department of General Medicine on the date when Annexure-E came to be passed. Respondents have further contended that petitioner voluntarily opted to change of lien to Nephrology and she was promoted as Associate Professor and Head of the Department, by Official memorandum dated 02.01.2015, which is evidenced at Annexure-J to the writ petition. Respondent Nos.4 to 9 also contend that she opted to go to the Department of Nephrology and therefore, she cannot seek retrospective promotion to the post of Professor in the Department of Medicine.

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Learned counsel for the petitioner argues that

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her service in the Department of Medicine should be recognized for her promotion to Professor, citing her substantial service record and compliance with relevant promotion rules. She contends that the terms of her deputation and subsequent promotion should not preclude her from claiming promotion based on her previous service.

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In response, respondent Nos.2 and 3 maintain that the petitioner, having accepted the transfer of her lien to the Department of Nephrology, is not entitled to claim retrospective promotion in the Department of Medicine. They argue that her service in Nephrology is the relevant criterion for her current promotion status. Furthermore, they assert that the conditions imposed by the Official Memorandum reflect the agreed terms upon her transfer and subsequent appointment.

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Respondent Nos.4 to 9 challenge the legality of the petitioner’s promotion to Associate Professor, arguing that there were discrepancies and legal issues regarding her promotion and seniority. They claim that the petitioner’s promotion to Associate Professor lacked proper DPC recommendations and that MMCRI had its own rules and regulations, making her claim for retrospective promotion untenable.

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Heard learned counsel for the petitioner and learned counsel appearing for the respondents. Perused the records.

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Upon examining the materials and documents presented, it is evident that the petitioner’s lien was officially changed to the Department of Nephrology, and she accepted this new role under the stipulated conditions. It would be useful for this Court to take cognizance of the

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Official Memorandum vide Annexure-J which is extracted as under:

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�ಷಯ:- �ಾ|| �ಮಮ�, ಸಹ-�ಾ��ಾ�ಪಕರು, �ೈದ��ಾಸ� � ಾಗ, ಎಂ.ಎಂ.%&ಆ'.ಐ, )ೖಸೂರು ರವರ ,ೕ. ಬದ0ಾ1ಸುವ ಬ2ೆ3.

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ಉ0ೆ5ೕಖ:- 7�ಾಂಕ: 27.10.2014 ರಂದು ನ�ೆದ )ೖಸೂರು �ೈದ�9ೕಯ :ಾ0ೇಜು ಮತು< ಸಂ�ೆ=ೕಧ�ಾ ಸಂ?ೆ@ಯ ಆಡBತ ಮಂಡB ಸ ಾ ನಡವBಗಳD.

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---00---

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�ಾ| ಎE. �ಮಮ�, ಸಹ �ಾ��ಾ�ಪಕರು, �ೈದ��ಾಸ� � ಾಗ, )ೖಸೂರು �ೈದ�9ೕಯ :ಾ0ೇಜು ಮತು< ಸಂ�ೆ=ೕಧ�ಾ ಸಂ?ೆ@, )ೖಸೂರು, ಇವರನುG ಉ0ೆ5ೕಖದನHಯ, ತIಣ7ಂದ KಾL2ೆ ಬರುವಂMೆ �ೈದ��ಾಸ� � ಾಗ7ಂದ �ೆNಾ�ಲP � ಾಗ:ೆQ ,ೕ. ಅನುG ಬದ0ಾ1%ದುR, )ೖಸೂರು �ೈದ�9ೕಯ :ಾ0ೇಜು ಮತು< ಸಂ�ೆ=ೕಧ�ಾ ಸಂ?ೆ@, )ೖಸೂರು. ಇ,5ನ �ೆNಾ�ಲP � ಾಗದ ಸಹ �ಾ��ಾ�ಪಕSಾT Uಾಗೂ ಸದL � ಾಗದ ಮುಖ�ಸ@ರ�ಾGT ಈ :ೆಳಕಂಡ ಷರW<2ೊಳಪಟುY �ೇZಸ0ಾT[ೆ .

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�ೆNಾ�ಲP � ಾಗ:ೆQ ವರ7 \ಾ]:ೊಂಡ 7�ಾಂಕ7ಂದ �ೆNಾ�ಲP � ಾಗದ,5 ಸದLಯವರ Kೇಷ^Mೆಯು ಗಣ�ೆ2ೆ ಬರುತ<[ೆ Uಾಗೂ �ೆNಾ�ಲP � ಾಗದ Kೇಷ^Mೆಯ,5 ಕ�ೆಯವSಾTರ_ೇ9ರುತ<[ೆ .

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ಈ �ಂ[ೆ ಕತವ� aವ�ಸುW<ದR, �ೈದ��ಾಸ� � ಾಗದ Kೇಷ^MೆಯನುG bಾವc[ೇ ಪ[ೋನGW2ಾಗ,ೕ, :ಾಲZW ಬ]<2ಾಗ,ೕ ಗಣ�ೆ2ೆ Mೆ2ೆದು:ೊಳdಲು ?ಾಧ��ರುವc7ಲ5.

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�ೆNಾ�ಲP � ಾಗದ,5 ,ೕ. ಬದ0ಾವeೆ ನಂತರ ಮMೆ< bಾವc[ೇ :ಾರಣಕೂQ )]ಸ. � ಾಗ:ೆQ ಪcನಃ ಬದ0ಾವeೆ \ಾ]:ೊಳdಲು ?ಾಧ��ಲ5 Uಾಗೂ �ೆNಾ�ಲP � ಾಗದ,5 ].ಎಂ. (�ೆNಾ�ಲP) ಪದ� ಪ�ೆದ ನಂತರ 2-ವಷ ಅ[ೇ ಹು[ೆRಯ,5 ಕತವ� aವ`�ಸ_ೇ9ರುತ<[ೆ ."

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The petitioner's subsequent promotion to

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Professor in 2019 was based on her service and contributions in Nephrology, not in the Department of Medicine. Her request for retrospective promotion in the Department of Medicine does not align with established administrative practices and the rules governing promotions within the institution.

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The documents relied upon by both parties, particularly Annexure-R6 dated 27.05.2010, reveal that the petitioner’s lien was initially transferred to the Department

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of Plastic Surgery before being transferred to Nephrology. Annexure-R5, a Government Order dated 07.08.2013, further clarifies that teaching staff assigned to superspecialty courses must report to the government after completing their courses, and any posting given thereafter is to be treated as a fresh assignment. This Court deems it fit to refer to the documents evidenced at Annexures-R5 and R6 respectively. The same reads as under:

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Annexure-R5

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"ಕ�ಾಟಕ ಸ:ಾರದ ನಡವBಗಳD

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�ಷಯ: �ೈದ�9ೕಯ gIಣ ಇ0ಾhೆಯ �ಾ�i<ಯ,5ನ ಸ:ಾL ಸHಯತ< �ೈದ�9ೕಯ ಮUಾ �[ಾ�ಲಯಗBಂದ ಸೂಪ' ?ೆjkಾ,l :ೋಸುಗB2ೆ ?ೇ�ಾaರತ :ೋmಾದ,5 anೕಜ�ೆ2ೊಂಡ _ೋಧಕ %ಬoಂ7ಯು �ಾ,ಸ_ೇ:ಾದ ಷರತು< ಮತು< aಬಂಧ�ೆಗಳ ಬ2ೆ3. ***

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ಪ�?ಾ<ವ�ೆ :

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Sಾಜ� ಸ:ಾರದ ?ಾHಯತ< �ೈದ�9ೕಯ gIಣ ಸಂ?ೆ@ಗಳ _ೋಧಕ %ಬoಂ7ಯು ಸೂಪ' ?ೆjkಾ,l :ೋ%2ೆ ?ೇ�ಾaರತ :ೋmಾದ]ಯ,5 ಪ��ೇಶ ಪLೕrೆಯ ಮೂಲಕ ಪ��ೇಶ ಪ�ೆದ ನಂತರ anೕಜ�ೆಯ )ೕ0ೆ ಸೂಪ' ?ೆjkಾ,l :ೋ%`2ೆ UೋಗುMಾ<Sೆ . ಸೂಪ' ?ೆjkಾ,l �ಾ�ಸಂಗವನುG ಮುT%ದ ನಂತರ ಮMೆ< ಅ[ೇ

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�ೈದ�9ೕಯ gIಣ ಸಂ?ೆ@2ೆ �ಂ[ೆ ಇದR ಹು[ೆRಯ,5sೕ UಾಜSಾT ಮುಂದುವLಯುMಾ<Sೆ . ಇದLಂ[ಾT _ೋಧಕ %ಬoಂ7ಯು ಸೂಪ' ?ೆjkಾ,l :ೋ%2ಾT anೕಜ�ೆ Uೊಂ7ದ ನಂತರ ಮೂರು ವಷಗಳ :ಾಲ ಅವರ ಹು[ೆRಯು Mೆರ�ಾT ಉBಯುವcದLಂದ ಾರWೕಯ �ೈದ�9ೕಯ ಪLಷW<ನ ತ�ಾಸeೆ �ೇtೆ ಸಮ?ೆ� ಉಂmಾಗುW<ರುವcದು ಕಂಡುಬರುW<[ೆ . ಅಲ5[ೆ ಸೂಪ' ?ೆjkಾ,l �ಾ�ಸಂಗ \ಾ]ರುವ _ೋಧಕ %ಬoಂ7ಯು ಮMೆ< _ಾ�u ?ೆjkಾ,lಯ,5 :ಾಯaವ�ಸುವcದLಂದ �ೈದ�9ೕಯ ಸಂ?ೆ@2ೆ ಮತು< ಸ:ಾರ:ೆQ bಾವc[ೇ ಪ�nೕಜನ ಆಗುವc7ಲ5. ಸದL ಸೂಪ' ?ೆjkಾ,l �ಾ�ಸಂಗವc ಸ:ಾರದ ಮlY2ೆ aರಥಕ�ಾಗುW<ದುR, ಸದL _ೋಧಕ %ಬoಂ7ಯ hಾಸT �ಾ�9YೕE 2ಾT \ಾತ� ಉಪnೕಗ�ಾಗುW<[ೆ . ಸ:ಾರವc ಎ0ಾ5 ?ಾHಯತ< �ೈದ�9ೕಯ gIಣ ಸಂ?ೆ@ಗಳ,5 ಹಂತ ಹಂತ�ಾT ಸೂಪ' ?ೆjkಾ,l ಆಸjMೆ�ಗಳನುG MೆSೆಯುವ ಉ[ೆRೕಶ Uೊಂ7ದುR, ಈ2ಾಗ0ೇ ಹಲವc ಸಂ?ೆ@ಗಳ,5 ಸೂಪ' ?ೆjkಾ,l � ಾಗಗಳ,5 ಹು[ೆRಗಳನುG ಸೃPಸ0ಾTರುತ<[ೆ . ಈ ��ೆG0ೆಯ,5 ಸ:ಾL ?ಾHಯತ< ಸಂ?ೆ@ಗಳ,5 :ಾಯaವ�ಸುW<ರುವ hಾಯಂ �Lಯ ?ಾ@aೕಯ �ೈದ�ರು (Senior Resident), ಸUಾಯಕ �ಾ��ಾ�ಪಕರು (Assistant Professor )ಗಳನುG ಸೂಪ' ?ೆjkಾ,l :ೋE ಗB2ೆ anೕPಸುವ ಬ2ೆ3 :ೆಲವc ಷರತು< ಮತು< aಬಂಧ�ೆಗಳನುG ��ಸುವcದು ಅವಶ�ಕ�ೆಂದು ಮನಗಂಡು ಸ:ಾ`ರವc :ೆಳಕಂಡ ಆ[ೇಶವನುG Uೊರ]%[ೆ .

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ಸ:ಾ`ರದ ಆ[ೆ ೕಶ ಸಂhೆ � : ಆಕುಕ 321 ಎಂಎಂ% 2013, _ೆ ಂಗಳwರು , 7�ಾಂಕ : 07-08-2013.

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ಪ�?ಾ<ವ�ೆಯ,5 �ವL%ರುವ ಅಂಶಗಳ ��ೆG0ೆಯ,5. �ೈದ�9ೕಯ gIಣ ಇ0ಾhೆಯ �ಾ�i<ಯ,5ನ ಸ:ಾL ?ಾHಯತ< �ೈದ�9ೕಯ ��ಾನ ಸಂ?ೆ@ಗಳ _ೋಧಕ %ಬoಂ7ಯು ಸೂಪ' ?ೆjkಾ,l :ೋ%2ೆ ?ೇ�ಾaರತ :ೋmಾದ]ಯ,5 ಪ��ೇಶ ಪLೕrೆಯ ಮೂಲಕ ಪ��ೇಶ ಪ�ೆದ ನಂತರ ಸೂಪ' ?ೆjkಾ,l :ೋE` ಗB2ೆ anೕPಸುವ ಬ2ೆ3 ಈ :ೆಳಕಂಡ ಷರತು< ಮತು< aಬಂಧ�ೆಗಳನುG ��ಸ0ಾT[ೆ:

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ಸೂಪ' ?ೆjkಾ,l :ೋಸ2ಾT anೕಜ�ೆ )ೕ0ೆ Mೆರಳಲು hಾಯಂ �Lಯ ?ಾ@aೕಯ �ೈದ�ರು (Senior Resident) Uಾಗೂ ಸUಾಯಕ �ಾ��ಾ�ಪಕರು (Assistant Professor) \ಾತ� ಅಹLರುMಾ<Sೆ. ಅವರು ಈ2ಾಗ0ೆ _ಾ�u ?ೆjkಾ,l ಪದ�ಯನುG Uೊಂ7ರ_ೇ:ಾTದುR, ಸೂಪ' ?ೆjkಾ,l :ೋ%2ೆ anೕಜ�ೆ2ೊಳDdವ ಮುನG ಅವರ ಪL�ೕIeಾ ಅವ�ಯು ‹ೂೕŒಕ�ಾTರತಕQದುR Uಾಗೂ ಪL�ೕIeಾ ಅವ� ?ೇLದಂMೆ ಕaಷ^ ಮೂರು ವಷಗಳ ?ೇ�ೆ ಸ,5%ಂತಕQದುR;

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ಸಹ �ಾ��ಾ�ಪಕರು Uಾಗೂ �ಾ��ಾ�ಪಕರು ಸೂಪ' ?ೆjkಾ,l :ೋ%2ಾT anೕಜ�ೆ2ೊಳdಲು ಅಹLರುವc7ಲ5;

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ಸೂಪ' ?ೆjkಾ,l :ೋ%2ೆ anೕಜ�ೆ2ೊಳDdವ _ೋಧಕ %ಬoಂ7ಯು ಸಮು•ತ \ಾಗದ ಮೂಲಕ ಅP ಸ,5% ಸ:ಾರ7ಂದ anೕಜ�ೆ ಆ[ೇಶವನುG ಪ�ೆದು:ೊಂಡು :ೋ%`2ೆ ?ೇರತಕQದುR;

¶93

ಸೂಪ' ?ೆjkಾ,l :ೋ%2ೆ anೕಜ�ೆ2ೊಂಡ _ೋಧಕ %ಬoಂ7ಯು ಸೂಪ' ?ೆjkಾ,l �ಾ�ಸಂಗವನುG ಮುT%ದ ನಂತರ ಸ:ಾರ:ೆQ ವರ7 \ಾ]:ೊಂಡು ಮುಂ7ನ �ೇಮ:ಾWಯನುG ಪ�ೆಯ_ೇ:ಾಗುತ<[ೆ. ಸ:ಾ`ರವc ಅವರನುG ಸಂಬಂ�ತ ಸೂಪ'

¶94

¶95

?ೆjkಾ,l � ಾಗದ,5 Sಾಜ� ಸ:ಾ`ರದ bಾವc[ೇ ?ಾHಯತ< �ೈದ�9ೕಯ ಸಂ?ೆ@ಯ,5 �ೇಮ:ಾW aೕಡಬಹು[ಾTದುR, ಸದL �ೇಮ:ಾWಯನುG %ಬoಂ7ಯು ಕ�ಾ’ಯ�ಾT %HೕಕLಸ_ೇ:ಾTರುತ<[ೆ;

¶96

'ಸದL anೕಜ�ೆಯು •ದಲ�ೇ

¶97

anೕಜ�ೆbಾTರತಕQದುR;

¶98

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¶99

anೕಜ�ೆ2ೊಂಡ _ೋಧಕ %ಬoಂ7ಯು ಕ�ಾ’ಯ�ಾT ?ೇ�ಾaವೃW<ಯವSೆ2ೆ ಸ:ಾರವc �ೇZ%ದ ಸ@ಳದ,5 ?ೇ�ೆ ಸ,5ಸುವcದು ಕ�ಾ’ಯ�ಾTದುR, ಸHಯಂ aವೃW<2ೆ/SಾPೕ�ಾ)2ೆ ಅಹLರುವc7ಲ5.

¶100

ಸ:ಾL ಆ[ೇಶ ಸಂhೆ�: ಆಕುಕ 384 ಎಂಎಂ% 2012 7�ಾಂಕ: 16-01-2013ರ ಆ[ೇಶದ,5ನ (4)�ೇ \ಾಗಸೂ• ಅಂಶವನುG ಈ ಕೂಡ0ೆ KಾL2ೆ ಬರುವಂMೆ �ಂಪ�ೆಯ0ಾT[ೆ.

¶101

¶102

ಈ LೕW anೕಜ�ೆ2ೊಂಡು ಸೂಪ' ?ೆjkಾ,l :ೋಸನುG ಮುT% �ಾಪ?ಾದ _ೋಧಕ %ಬoಂ7ಯು ಸ:ಾರ aೕಡುವ �ೇಮ:ಾWಯನುG %HೕಕL% ಸಂಬಂ�ತ �ೈದ�9ೕಯ gIಣ ಸಂ?ೆ@2ೆ UಾಜSಾT :ಾಯaವ�ಸ[ೇ Uೋದ,5 ಈ :ೆಳTನಂMೆ ಕ�ಮವ�ಸ0ಾಗುವcದು;

¶103

ಮೂಲ ಹು[ೆRಯ,5 ?ೇL[ಾTaಂದ anೕಜ�ೆ ಅವ� ಮುTಯುವವSೆ2ೆ ಪ�ೆ7ದR �ೇತನ Uಾಗೂ ಭMೆ�ಯನುG 9% ಬ]’ ಸ�ತ �ಂ7ರುTಸ_ೇ:ಾಗುತ<[ೆ;

¶104

ಇದಲ5[ೆ ದಂಡದ •ತ<�ಾT ರೂ.30.00 ಲIಗಳನುG �ಾವWಸ_ೇ:ಾಗುತ<[ೆ;

¶105

ಈ ಆ[ೇಶದ 6 Lಂದ 9ರ ಷರತು< Uಾಗೂ aಬಂಧ�ೆಗಳD 201314�ೇ ?ಾ,ನ,5 Uಾಗೂ ಅನಂತರ ಸೂಪ' ?ೆjkಾ,l �ಾ�ಸಂಗವನುG ಮುTಸುವ _ೋಧಕ %ಬoಂ7ಗB2ೆ Uಾಗೂ 1 Lಂದ 9ರ ಷರತು< Uಾಗೂ aಬಂಧ�ೆಗಳD 2013-14�ೇ ?ಾ,aಂದ ಸೂಪ' ?ೆjkಾ,l �ಾ�ಸಂಗ:ೆQ ?ೇರುವ _ೋಧಕ %ಬoಂ7ಗB2ೆ ಅನH1ಸುವಂMೆ KಾL2ೆ ಬರುತ<[ೆ."

¶106

Annexure-R6

¶107

" )ೖಸೂರು �ೆ ೖದ�9ೕಯ :ಾ0ೆ ೕಜು ಮತು ಸಂ�< ೆ =ೕಧ�ಾ ಸಂ?ೆ@, )ೖಸೂರು

¶108

ಸಂ hೆ�:%ಬoಂ7(1) 143/2010-11 : 27-05-2010

¶109

ಅ�ಕೃತ �ಾಪನ ಪತ�

¶110

�ಷಯ : �ಾ.ಎE.�ಮಮ� ಇವರು ಸಹ �ಾ��ಾ�ಪಕರ ಹು[ೆRಯ,5 ವರ7 \ಾ]:ೊಂ]ರುವ ಬ2ೆ3.

¶111

¶112

ಉ0ೆ5ೕಖ : ಸ:ಾ`L ಆ[ೇಶ ಸಂhೆ� : ಆಕುಕ:112, ಎಂಎಂ%. 2010 _ೆಂಗಳwರು 7�ಾಂಕ : 24-05-2010.

¶113

)ೕ,ನ �ಷಯ:ೆQ ಸಂಬಂ�%ದಂMೆ �ಾ.ಎE.�ಮಮ� ಸUಾಯಕ �ಾ��ಾ�ಪಕರು, )]%. � ಾಗ, ಎಂಎಂ%ಆ'ಐ ಇವL2ೆ ಉ0ೆ5ೕಖದ ಆ[ೇಶದನHಯ ಸUಾಯಕ �ಾ��ಾ�ಪಕ ಹು[ೆR1ಂದ ಸಹ �ಾ��ಾ�ಪಕ ಹು[ೆR2ೆ 7�ಾಂಕ : 24-11-2009 Lಂದ KಾL2ೆ ಬರುವಂMೆ ಮುಂಬ]< aೕಡ0ಾT[ೆ.

¶114

�ಾ.ಎE.�ಮಮ� ಇವರು 7�ಾಂಕ : 25-05-2010 ರ ಪŸ�ಾಹG ಈ ಸಂ?ೆ@ಯ,5 ಸಹ �ಾ��ಾ�ಪಕ ಹು[ೆR2ೆ ಕತವ�:ೆQ ವರ7 \ಾ]:ೊಂ]ರುMಾ<Sೆ.

¶115

ಸದLಯವರನುG �ಾ5%Y ಸಜL � ಾಗದ,5 ,ೕ. ಇL% �ೈದ� �ಾಸ� � ಾಗದ,5 ಕತವ� \ಾಡಲು ಸೂ•%[ೆ. Uಾಗೂ �ಾ��ಾ�ಪಕರು Uಾಗೂ ಮುಖ�ಸ@ರು, �ೈದ��ಾಸ� � ಾಗ ಇವರ,5 ವರ7 \ಾ]:ೊಂಡು ಅವರ ಮುhಾಂತರ '6' %l%ಗಳನುG ಸ,5ಸಲು ಆ[ೇg%[ೆ."

¶116

The petitioner’s service in the Department of Medicine cannot be retroactively considered for promotion purposes in a different department where she no longer holds lien. The Official Memorandum dated 02.01.2015,

¶117

¶118

which the petitioner did not challenge, clearly stipulated that her seniority would be considered last in the Department of Nephrology from the date of her reporting.

¶119

This Court deems it fit to take cognizance of the writ appeal judgment pursuant to the declaration by respondent No.2 in front of MCA. The same reads as under:

¶120

"Learned counsel for appellant submits that a memo has been filed stating that the prayers sought in the writ petition have been granted by respondent No.2 and hence, the writ appeal may be disposed of. A memo has also been filed in that regard wherein, it is stated that respondent No.2 has promoted the appellant to the post of Professor by order dated 27/01/2017 and has been made Head of the Department of Medicines w.e.f. 01/06/2019 (Annexure “S”). A declaration has also been made by respondent No.2 before the Medical Council of India that the appellant has been made Associate Professor w.e.f. 03/08/2006 up to 21/08/2012 and as Professor from 22/08/2012 onwards vide Annexure – II.

¶121

2. Learned counsel for appellant further submits that the appellant has been placed above respondent No.6 in the

¶122

¶123

seniority list. That respondent No.6 has been transferred to the Department of Nephrology by order dated 02/01/2015, as per Annexure “T”. In the circumstances, appellant’s counsel submits that the writ appeal may be disposed of since the prayer sought for by the appellant in the writ petition has been granted.

¶124

3. Learned H.C.G.P., appearing for respondent No.1 and respondent Nos.3 to 5 and learned counsel for respondent No.6 have no objection for the writ petition to be disposed of in terms of the memo.

¶125

4. Since the prayer sought for by the petitioner in the writ petition have been granted during the pendency of this appeal, no further aspect of the matter needs to be considered. The writ appeal would not survive for consideration and is accordingly, disposed.

¶126

In view of the disposal of the writ appeal, all pending applications stand disposed."

¶127

The petitioner's claim for retrospective

¶128

promotion to the post of Professor in the Department of Medicine from 22.08.2012 is unsustainable, primarily because there was no vacancy in the said post as of that date. This is due to the fact that Dr. Inbanathan had

¶129

¶130

already been promoted to the post of Professor with retrospective effect from 22.08.2012, as confirmed by the judgment in W.A.No.4319/2013. The petitioner's attempt to seek promotion from this same date ignores the legal effect of Dr. Inbanathan's promotion, which effectively filled the vacancy from 22.08.2012 onward, thus leaving no open position for the petitioner to claim.

¶131

It is well established in service law that once a vacancy has been filled, any subsequent claim to that position, especially with a retrospective effect, is not permissible unless the previous appointment or promotion is challenged or proven to be illegal. The petitioner, in this case, did not object to Dr. Inbanathan's promotion when it was granted, nor did she challenge the retrospective effect of that promotion in any court of law. As held in R.K. Jain vs. Union of India¹ , a promotion order cannot be set aside

¶132

1 (1993) 4 SCC 119

¶133

¶134

unless there is a substantive challenge to its legality, and mere discontent with the decision is insufficient.

¶135

Bhattacharjee v. S.D. Majumdar² , emphasized that promotions granted with retrospective effect cannot be disturbed or challenged unless it is demonstrated that the promotion was made in violation of service rules or with mala fide intent. In this case, Dr. Inbanathan’s promotion with effect from 22.08.2012 was neither contested nor questioned by the petitioner, even though she had ample opportunity to do so during the pendency of the writ appeal. By failing to challenge the order promoting Dr. Inbanathan, the petitioner essentially acquiesced to the decision, thereby forfeiting any claim to the same promotion from that date.

¶136

Furthermore, the petitioner’s assertion of a lien over the Department of Medicine while seeking promotion 2 (2007) 10 SCC 513

¶137

¶138

retrospectively is flawed. According to the principle laid down by the Hon'ble Supreme Court in Ashok Kumar Gupta vs. State of UP³ , once a post is filled, especially by a valid and legal order, no other person can claim a right over that post with retrospective effect unless the original appointment or promotion is nullified. In this context, the petitioner’s claim to the Department of Medicine post after 22.08.2012 is misplaced, as the vacancy ceased to exist once Dr. Inbanathan was given retrospective promotion to the same post.

¶139

The petitioner’s argument also seems to be driven by a misconception regarding seniority and the future career prospects of her colleagues in the Department of Medicine. It appears that the petitioner, having opted for a super-specialty in Nephrology, is apprehensive that her colleagues in General Medicine may progress faster in the hierarchy and receive future promotions, while she may be

¶140

3 (1997) 5 SCC 201

¶141

¶142

left behind. However, such apprehensions cannot form the basis for seeking a retrospective promotion. In Ajit Singh vs. State of Punjab⁴ , the Hon'ble Supreme Court held that promotions are granted based on specific criteria and cannot be altered based on speculative fears about future promotions of others. The petitioner’s concern about falling behind in seniority due to her choice to specialize in Nephrology is a consequence of her own career decisions and cannot justify a claim for promotion in a department she no longer serves.

¶143

Moreover, it is pertinent to note that

¶144

retrospective promotions are generally granted only under exceptional circumstances, such as to rectify an error or to account for a delay caused by factors beyond the control of the employee. The Hon'ble Supreme Court in Secretary,

¶145

Ministry of Defence v. Prabhash Chandra

¶146

4 (1999) 7 SCC 209

¶147

¶148

Mirdha⁵ stated that retrospective promotions cannot be claimed as a matter of right and are subject to availability of vacancies and other service conditions. In this case, the petitioner’s request for retrospective promotion is not backed by any such exceptional circumstances, nor was there any delay attributable to the employer in promoting her. On the contrary, the vacancy was already filled by Dr. Inbanathan's retrospective promotion, rendering the petitioner’s claim baseless.

¶149

In conclusion, the petitioner’s attempt to seek retrospective promotion to the post of Professor of Medicine from 22.08.2012 is clearly an afterthought. The vacancy in the Department of Medicine, if any, was effectively filled by Dr. Inbanathan’s retrospective promotion, leaving no room for the petitioner to assert a claim for the same post. Additionally, the petitioner’s failure to challenge Dr. Inbanathan’s promotion when it was granted further

¶150

5 (2012) 11 SCC 565

¶151

¶152

weakens her position. As such, the petitioner's claim for retrospective promotion is legally unsound and cannot be sustained.

¶153

The concept of "lien" in service jurisprudence refers to the right of an employee to hold a post substantively, either permanently or until they are appointed to another substantive post. The Supreme Court has addressed the principles regarding the change of lien and its binding nature on employees in several judgments.

¶154

One pertinent case is Union of India vs. V. Ramakrishnan⁶ , where the Supreme Court held that an employee's lien in a particular department or post is determined by the terms of their appointment and subsequent orders governing their service conditions. The Court emphasized that once an employee accepts a transfer or a new appointment in a different department or post, they lose their lien on the previous post unless expressly

¶155

6 (2005) 8 SCC 394

¶156

¶157

stated otherwise. The judgment clearly establishes that an employee cannot claim rights or promotions in the previous department after such a change of lien.

¶158

In the present case, the petitioner’s lien was transferred from the Department of Medicine to the Department of Plastic Surgery and then to the Department of Nephrology. As per the Supreme Court's reasoning in Union of India vs. V. Ramakrishnan (supra) , once the petitioner accepted the transfer to Nephrology and was subsequently promoted within that department, she lost her lien in the Department of Medicine. Consequently, she cannot claim any rights or promotions retroactively in a department where she no longer holds a lien. The change of lien was formalized and documented, and the petitioner had knowledge of the same, making it binding upon her.

¶159

¶160

The petitioner’s prayer for retrospective

¶161

promotion to the post of Professor in the Department of Medicine cannot be entertained for several reasons:

¶162

(i) The petitioner’s lien was officially changed to the Department of Nephrology, and she accepted the conditions stipulated in the Official Memorandum dated 02.01.2015. According to the Supreme Court's judgment in Union of India vs. V. Ramakrishnan (supra) , once an employee's lien is changed, they cannot claim rights, such as promotions, in the department where they no longer hold a lien. The petitioner, having accepted the new assignment in Nephrology, effectively relinquished her claim to promotions in the Department of Medicine.

¶163

(ii) The petitioner did not challenge the Official Memorandum dated 02.01.2015, which specifically stated that her seniority would be considered last in the Department of Nephrology from the date of her reporting.

¶164

¶165

Furthermore, she did not challenge the decision in W.A.No. 4319/2013, where another employee, Dr. Inbanathan, was granted retrospective promotion to the post of Professor in the Department of Medicine from 22.08.2012. The petitioner’s inaction in challenging these critical documents and orders undermines her claim for retrospective promotion in a department where she no longer holds a lien.

¶166

(iii) Granting the petitioner’s prayer would adversely affect private respondent Nos.4 to 9, who have been working in the Department of Medicine and whose seniority and promotions are governed by the existing rules and orders. If the petitioner is granted retrospective promotion, it would disrupt the established seniority list, potentially demote or alter the positions of these respondents without any fault on their part. The Supreme Court has consistently held that the rights of third parties, especially when they are not at fault, should not be adversely affected by

¶167

¶168

administrative decisions ( State of Maharashtra vs. Jagannath Achyut Karandikar , 1989 Supp (1) SCC 393).

¶169

(iv) The petitioner accepted her new role in Nephrology, was promoted within that department, and was even made the Head of Department. To now allow a claim for retrospective promotion in a different department would violate the principles of administrative fairness and stability. It would create uncertainty and set a precedent that could lead to arbitrary claims, undermining the integrity of promotion policies and service rules.

¶170

28. Conclusions:

¶171

a) Vacancy Filled by Dr. Inbanathan :

¶172

The petitioner’s claim for retrospective promotion to the post of Professor in the Department of Medicine from 22.08.2012 is unsustainable. Dr. Inbanathan was promoted to the same post with retrospective effect from that date, as confirmed by the Court in W.A.No.4319/2013. As a

¶173

¶174

result, no vacancy existed in the Department of Medicine for the petitioner to claim a promotion from that date onward.

¶175

b) Failure to Challenge Dr. Inbanathan’s

¶176

Promotion :

¶177

The petitioner did not challenge Dr. Inbanathan’s promotion when it was granted with retrospective effect in 2017, nor did she raise any objections during the pendency of the writ appeal. This inaction signifies that the petitioner acquiesced to Dr. Inbanathan’s promotion and, in doing so, waived any right to claim the same post with retrospective effect.

¶178

c) Change of Lien from Medicine to Nephrology :

¶179

The petitioner made a voluntary decision to transfer her lien from the Department of Medicine to the Department of Nephrology, after completing super-specialty course and was subsequently appointed as Head of the Department

¶180

¶181

(HOD) of Nephrology. By accepting this change in career path and assuming the role of HOD, the petitioner effectively relinquished her claim to any future promotion within the Department of Medicine. Once a change in lien is accepted, any subsequent claim for promotion in the previous department cannot be sustained.

¶182

d) Misconception Regarding Seniority and

¶183

Apprehensions :

¶184

The petitioner’s retrospective promotion claim seems to be driven by the misconception and fear that her colleagues in the Department of Medicine will surpass her in seniority and receive future promotions, while she may be left behind in Nephrology. However, such speculative concerns cannot form the basis of a legal claim. The petitioner’s choice to specialize in Nephrology and move away from General Medicine is a professional decision that comes with its own consequences, which cannot be undone by seeking

¶185

¶186

retrospective promotions in a department she no longer serves.

¶187

e) No Legal Basis for Retrospective Promotion :

¶188

The Hon'ble Supreme Court has consistently held that retrospective promotions are granted only in exceptional circumstances, such as to rectify an error or account for undue delay. In this case, the vacancy was already filled by Dr. Inbanathan’s retrospective promotion, and the petitioner’s request lacks any such exceptional circumstances. Once a vacancy is legally filled, no other person can claim it unless the original promotion is nullified, which the petitioner has not sought to do.

¶189

The petitioner’s attempt to seek retrospective promotion from 22.08.2012 is legally flawed and appears to be an afterthought. Dr. Inbanathan’s promotion to the post of Professor in the Department of Medicine with effect from 22.08.2012 leaves no vacancy for the petitioner to claim.

¶190

¶191

Furthermore, the petitioner’s voluntary decision to change her lien to the Department of Nephrology and her subsequent appointment as HOD in Nephrology effectively foreclose any claim for promotion in the Department of Medicine. In addition, the petitioner’s failure to challenge Dr. Inbanathan’s promotion further weakens her case. As such, the petitioner’s plea for retrospective promotion must be dismissed.

¶192

For the reasons stated supra, this Court proceeds to pass the following:

¶193

ORDER

¶194

(i) The writ petition is dismissed;

¶195

(ii) The conditions set forth in the Official Memorandum dated 02.01.2015 are upheld. The petitioner’s promotion to Professor in the Department of Nephrology is affirmed, and her request for retrospective promotion to the Department of Medicine is denied.

¶196

¶197

(iii) Furthermore, the petitioner’s lien is retained in the Department of Plastic Surgery as per the terms of her transfer orders and subsequent service records. Consequently, the petitioner’s claim lacks merit, and the relief sought is denied.

¶198

SD/(SACHIN SHANKAR MAGADUM) JUDGE

¶199

Dr Himamani S v. State of Karnataka

Case brief

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Dr Himamani S v. State of Karnataka

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