JUDGMENT
Cyriac Joseph, C.J.
Page 1109
1. The appellant is the petitioner in Writ Petition No. 25424/2004 which was dismissed by the learned single Judge. The challenge in the Writ Petition was against Annexure-‘K’ notification dated 10.1.2003 containing the final seniority list of the Microbiology Department in the Karnataka Institute of Medical Sciences, Hubli-second respondent herein, ranking the third respondent Dr. Shobha D. Nadgir above the petitioner Dr. Basawaraj Revanasiddappa Guragol and also the appointment of the fourth respondent Dr. Chadrashekar as Chairman of the Department of Microbiology. Both the challenges were rejected by the learned single Judge. Aggrieved by the dismissal of the Writ Petition, the Writ petitioner has filed this Writ Appeal.
2. There cannot be any inter se seniority between the appellant and the fourth respondent Dr. Chandrasekhar. The appellant was recruited as Associate Professor and continues to be in the cadre of Associate Professor, whereas, the fourth respondent was recruited as a Professor and continues to be in the cadre of Professor. Hence the learned single Judge was right in holding that the petitioner’s challenge against the appointment of the fourth respondent is misconceived.
3. The appellant and the third respondent were recruited to the cadre of Associate Professor in the same selection process. According to Bye-law 14 of the Karnataka Institute of Medical Sciences, Hubli, when a post is filled up by direct recruitment through open advertisement, the Selection Committee shall meet and examine the credentials of all the persons who are to be considered for the posts and the Committee shall prepare panel of names and recommend the name in the order of merit. When vacancy occurs in any post owing to death, resignation or any other reason within six months of the incumbent joining duty, the appointing authority can select the next candidate, if any, recommended by the Committee. Admittedly, the direct recruitment of the appellant and the third respondent was made through open advertisement. Therefore, the Selection Committee should have necessarily prepared a panel of names and recommended the names in the order of merit. The third respondent filed a state of objections, in which, it was categorically stated that the seniority list was prepared as per the placement given at the time of selection and that as per the selection list, the name of respondent No. 3 was shown above the name of the petitioner and the same was not questioned by the petitioner. The above statement was contested by the appellant in his rejoinder, wherein, he has stated that the averment of the third respondent that her name was shown above the petitioner in the merit list or selection list is totally false and baseless and that the selection of the petitioner and the third respondent was not on merit and that no merit list was either prepared or published. Obviously, the above claim of the appellant/petitioner could not have been accepted as the bye-laws require the preparation of a selection list by the Selection Committee and recommendation of names in the order of merit. Page 1110 Since the appellant had not raised any contention in the Writ Petition that he was placed above the third respondent in the selection list/merit list prepared by the Selection Committee, the second respondent did not get an opportunity to either admit or deny such an allegation. At any rate, the appellant/petitioner did not claim even in his rejoinder that he was placed above the third respondent in the selection list/merit list prepared by the Selection Committee. In such circumstances, we are inclined to accept the contention of the third respondent that in the selection list/merit list, she was placed above the appellant. The impugned order of the learned single Judge cannot be held to be vitiated only on account of the non-production of the selection list by the second respondent.
4. It `is not disputed that the appellant and the third respondent were appointed as Associate Professors on the same date i.e., 31.12.1996. According to the appellant, he joined duty on 7.1.1997 and the third respondent joined duty only on 13.1.1997. On that basis, it is contended that in view of Clause-iii(d) of bye-law-20 of the Bye-laws of the Karnataka Institute of Medical Sciences, Hubli, the appellant is entitled to be treated as senior to the third respondent on account of his joining duty on an earlier date. No such contention was raised in the Writ Petition. No such point is seen urged before the learned single Judge. In paragraph-2 of the impugned order, the learned single Judge has categorically stated that no rule or law was pointed out to show that the date of reporting should be the criterion for deciding the seniority. Having failed to raise any contention on the basis of bye-law 20(iii)(d) in the Writ Petition and having failed to urge any such point before the learned single Judge, the appellant is not entitled to raise such a contention in this Writ Appeal. On this ground alone, the contention is liable to be rejected.
5. Even otherwise, the appellant’s contention based on bye-law 20(iii)(d) is untenable. Bye-law-14 reads thus:
14) Recruitment Of The Post:
i) The post may be filled up by invitation, Promotion or open advertisement or deputation from the State Govt as deemed fit by the appointing authority. (In the K.I.M.S. Hubli bye-laws, 1995 after Clause (i) of bye law, item (14) the following note shall be inserted)
NOTE: To provide more functional flexibility at all levels of the administration of the Institute all the vacant posts in all cadres shall be failed by promotion of the eligible and qualified persons absorbed from Govt. (As per GC. Resolution 4-2-97)
ii) The Selection committee shall meet and examine the credentials of all the persons who are to be considered for the posts.
iii) The committee shall prepare panel of names and recommend the name in order of merit.
iv) When vacancy occurs in any posts owing to death, resignation or any other reason within 6 months of the incumbent joining duty, the appointing authority can select the next candidates if any recommended by the committee.
Page 1111
It is clear from the provisions contained in bye-law 14 that the Selection Committee is bound to prepare the panel of selected candidates on the basis of merit and to recommend the name in order of merit
6. Bye-law 20 of the bye-laws of the Karnataka Institute of Medical Sciences, Hubli, reads thus:
20) Seniority:
i) The Chief Administrative Officer shall prepare and maintain the Gradation list in respect of each of the categories and publish the same every year.
ii) The Seniority of the employees in each category shall be determined by the order of merit in which they were selected for appointment to the cadre in question subjectwise in respect of teaching cadres. In respect of non-teaching staff cadre-wide seniority list will be prepared and published.
iii) Where two persons appointed on the same date, seniority between them shall be determined as follows;
a) A member recruited by direct recruitment shall be senior to a member recruited otherwise:
b) In case of members appointed by promotion, seniority shall be determined according to the seniority of such members in the cadre from which they are prompted;
c) In case of members appointed by promotion from different cadres, their seniority shall be determined according to scale of pay i.e., preference may be given to a person drawing higher scale.
d) If the two members join on the same day, their seniority in the selection list will be taken into consideration.
iv) In case of any dispute, the decision of the Governing Council shall be final.
Clause (ii) quoted above specifically stipulates that the seniority of the employees in each category shall be determined by the order of merit in which they were selected for appointment to the cadre in question subject-wise in respect of teaching cadres. Since the appellant and the third respondent were selected for appointment to the same cadre of Associate Professors and since the third respondent was ranked above the appellant in the selection list prepared by the Selection Committee, the third respondent is entitled to be treated as senior to the appellant. The above provision is in conformity with the general principles of service jurisprudence.
7. It is true that as per Clause (iii)(d) of bye-law 20, where two persons appointed on the same date join duty on the same date, their seniority in the selection list will be taken into consideration. This clause is not applicable or relevant in this case as the appellant and the third respondent though appointed on the same date, joined duty on different dates. But learned Counsel for the appellant contends that as a corollary to the provision contained in Clause (iii)(d) of bye-law 20, it must be understood that if two Page 1112 persons appointed on the same date, joined duty on different dates, the one who joined earlier should be treated as senior. We do not find any merit in this contention. No such inference can be drawn when the bye-laws do not specifically provide so and when such inference will be contrary to the specific provision contained in Clause (ii) of bye-law 20. The above contention of the learned Counsel for the appellant is contrary to what is provided in Clause (ii) of bye-law 20. The contention is not acceptable for another reason also. If two persons are appointed on the same date and if they are given specific period for joining duty as is normally done and if they join duty within the period stipulated, the benefit of seniority provided in bye-law 20(ii) cannot be denied to the person ranked above in the select list, merely because, the person ranked below joins duty earlier due to fortuitous circumstances. The appellant has no case that the third respondent had not joined duty as Associate Professor within the period stipulated for joining duty.
8. For the reasons stated above, we hold that the Writ Appeal is devoid of merit. Accordingly, the Writ Appeal is dismissed.