IMPORTANT POINT
While K. Shekar (appellant) is not entitled to continue as Additional Professor in NIMHANS and his appointment is rightly set aside, but his vacancy will have to be filled up by a fresh advertisement subject to modification suggested in this case.

Headnote:Service Matter-Whether K. Shekar, the appellant is entitled to continue as Additional Professor in the National Institute of Mental Health and Neuro Sciences (NIMHANS?-Karnataka High Court holding No-Whether correct ? (Yes) (Paras 18 to 24)-Appeals dismissed (Para 25)-Whether High Court s discretion that selection of Assistant Professor should be on the basis of 1989 advertisement sustainable ? (No)-Fresh advertisement and benefit of actual experience gained be given-Appeal dismissed with this modification.
Held : It is unnecessary to consider any further submission as there are already sufficient reasons for dismissing these appeals and upholding the judgment of the Karnataka High Court. However the appellants are correct in their submission that the High Court should not have directed the selection of an Assistant Professor on the basis of the 1989 advertisement. That advertisement related to appointments in the De-addiction Unit. NIMHANS statement that the setting up of the De-addiction Unit in NIMHANS had been abandoned because of lack of funds has been categorically refuted by respondent No. 1. Without going into the controversy having regard to the lapse of several years on account of the pendency of the litigation before different Courts, it would not be appropriate to direct the process initiated in 1989 to be completed more than 11 years later. The vacancy created by the setting aside the appellant s appointment will have to be filled and a fresh advertisement will have to be issued by NIMHANS in accordance with its Cadre and Recruitment Rules. The unfortunate consequence that the appellant will suffer by reason of the setting aside of his appointment as Assistant Professor in NIMHANS cannot be avoided on any equitable considerations although the harshness may be mitigated to some extent. Accordingly, while affirming the decision of the High Court, we modify it to the extent that the actual experience gained by the appellant by virtue of his appointment as Assistant Professor may be taken into account if the appellant applies pursuant to any future advertisement that may be issued by NIMHANS for the post of Assistant Professor in the Department of Psychiatric Social Work. With this modification, the appeals are dismissed but without any order as to costs. (Paras 27 to 30)

JUDGMENT

Ruma Pal, J.-The question in these appeals is whether, K. Shekar, the appellant in C.A.No. 355 of 2000 (referred to as the appellant hereafter) is entitled to continue as Additional Professor in the National Institute of Mental Health and Neuro Sciences (NIMHANS). The appellant was initially appointed as Lecturer. The post of Lecturer was redesignated as Assistant Professor pursuant to the 4th Pay Commission. During the pendency of the proceedings, he has been promoted as Associate Professor on 30th June 1992 and thereafter as Additional Professor with NIMHANS w.e.f. 1st July 1996. Both the Single Judge and the Division Bench of the Karnataka High Court, on an application under Article 226 filed by the respondent No. 1 have held that he had no such right. This decision has been impugned before us not only by the appellant but also by NIMHANS by way of a separate appeal.

2. The relation of facts can start with 1984 when the Indian Council of Medical Research (ICMR), New Delhi undertook to set up a project in major institutions and medical colleges for developing advanced research. The Council laid down several conditions subject to which such centers were to be set up, the relevant clause (wherein ICMR is referred to as the Council) being:

"The host institution must undertake to provide the necessary basic facilities for carrying out medical research for a period of at least 5 years. The host institutions are expected to take over the Centres from the Council after the stipulated period when the Council s support has been withdrawn.

3. One such Advanced Research Centre was set up at NIMHANS by ICMR which came to be known as the ICMR Advanced Research Centre on Community Mental Health. The appellant was appointed in the Centre as Research Officer in December, 1984.

4. On 28th September, 1986, an advertisement was issued by NIMHANS to fill the Research Protect Posts in the Centre. It was made clear in the advertisement that the Project was for a period of three years and that some posts were likely to be made permanent after three years. Of the several posts advertised, we are concerned with the post of Assistant Professor (Psychiatric Social Work). The qualifications prescribed for the post were:

"(a) First or Second Class Master s Degree in Social Work or allied Discipline or its equivalent.

(b) Ph.D/D.Sc. In Medical or Psychiatric Social Work for a recognised University or Institute."

5. In addition, a candidate had to have 4 years teaching and or research experience in the discipline after obtaining the Ph.D. Degree". It was also stipulated that if a suitable candidate is not found, the Selection committee could recommend a candidate for a lower post.

6. In the application submitted by the appellant, against the column "Reference" he cited three persons to produce a testimonial from them in regard to his fitness for the post. The three referees were persons who were on the Selection Committee.

7. The Selection Committee did not appoint the appellant as Assistant Professor of Psychiatric Social Work but appointed him as a Lecturer in Psychiatric Social Work, a post which admittedly had not formed part of the advertisement which was published on 28th September, 1986.

8. The appellant was issued a letter of appointment on 28th November 1986 by the "Chairman, Governing Body/Director of NIMHANS". The letter of appointment stated that the post was temporary and renewable on a year to year basis and that the appellant would be on probation for a period of two years from the date of appointment "which may be extended or curtailed at the discretion of the competent authority". The appointment letter also specified that the appellant s appointment was terminable on giving three months notice. The appellant signed the letter of appointment in token of acceptance.

9. On 6th December 1986, a second advertisement was issued by NIMHANS for its own purposes and not for the purposes of the ICMR Centre. T

Click Here to Read the rest of this document

2002 Supreme(SC) 275

IMPORTANT POINTWhile K. Shekar (appellant) is not entitled to continue as Additional Professor in NIMHANS and his appointment is rightly set aside, but his vacancy will have to be filled up by a fresh advertisement subject to modification suggested in this case.

Cases Referred (2)

IMPORTANT POINT
While K. Shekar (appellant) is not entitled to continue as Additional Professor in NIMHANS and his appointment is rightly set aside, but his vacancy will have to be filled up by a fresh advertisement subject to modification suggested in this case.