ORDER
A.J. Sadashiva, J.
1. In view of the principal question of law and the reliefs being one and the same, in all these petitions, they were heard together and disposed of by this common order.
2. Writ Petition Nos. 9357/96, 10750/96, 10630/96 and 11374/96 are originally filed for quashing the Notification dated March 13, 1996 issued by the Director of Jayadeva Institute of Cardiology, the first respondent in all these petitions, inviting applications for the posts of Assistant Professors in various subjects and, for a writ of mandamus directing the respondent to consider the case of the petitioners for promotion and to prohibit the respondent to resort to appointment to those posts by direct recruitment.
3. Writ Petition No. 36710/95 is filed for a writ of mandamus to consider the case of the petitioner for promotion from the post of lecturer to that of an Assistant Professor in Cardiology as per the Cadre and Recruitment Rules produced at Annexure-A and the decision of the Sub-Committee as per Annexure-B.
4. Writ Petitions 27104-105/93 are filed for a writ of mandamus directing the Respondent No. 1 to promote the petitioners to the vacancies of Assistant Professors in the Department of Cardiology and Thoracic Surgery in accordance with the provisional seniority list dated 31.12.1991.
5. During the pendency of these petitions, in view of the contentions of the respondents that, the petitions are liable to be dismissed in view of the amended Cadre and Recruitment Rules providing appointment only by direct recruitment and not by promotion, the petitioners in WP.Nos. 9357/96 and 10750/96 got their petitions amended, for a further writ in the nature of declaration, to declare that the posts of Assistant Professors in the respondent-institute are required to be filled up by promotion (as no amendment has been effected to the C & R Rules) or in the alternative to declare the amendment to C & R Rules as illegal, void and inoperative and consequently to forbear the respondent - institute from enforcing the same.
6. W.P.10630/96 is filed by the Association of Doctors of Jayadeva Institute of Cardiology for and on behalf of the members of the Association.
7. The first respondent- institute is a Society registered under the provisions of the Karnataka Societies Registration Act with the object of developing the institute into an advanced cardiac center for heart disease relief, research and training and to further develop the institute into an advanced center for the comprehensive care of the cardiac patients, research into the causation of serious cardiothoracic diseases and training of medical and paramedical personnel. In sum and substance, it is contended that it is an institute of Higher Medical Education and also P.G. Teaching Centre and hence the teaching staff must have acquired post-graduation Qualification in Super-specialty subjects. It has its own bye-laws under which the Cadre and Recruitment Rules of the employees of the institute are framed.
8. The respondent - institute in order to appoint lecturers and Assistant Professors to various departments issued a notification dated March 13, 1996 inviting applications from the eligible candidates. The petitioners who have been working as lecturers for quite some time and said to have been qualified for being promoted to the posts of Assistant Professors in accordance with the 1987 Regulations, have filed these petitions to quash the notification issued by the institute and to consider their case for promotion and to declare that the C & R Rules as amended in the year 1994, have not come into force and, also illegal, void and inoperative as stated supra. The case of the petitioners as well as respondents revolves around the Cadre and Recruitment Rules. The petitioners say that they are governed by 1987 C & R rules as no other C & R Rules have been brought into operation. Per contra, it is the case of respondents that 1987 rules are in force as amended in 1994. The rules relating to the appointment of the Assistant Professors under both the rules read as follows:
ASSISTANT PROFESSOR OF CARDIOLOGY:
As per 1987 C & R Rules: Mode of Recruitment:By promotion by selection from the cadre of lecturer in Cardiology.If no suitable person is available for appointment by promotion then by direct recruitment.
1. Should be the holder of a degree in Medicine of any University established by law in India.
2. Should have any of the post graduate qualification in cariology.
(i) D.M. Cardiology, M.D. (medicine) with one year special training in Cardiology in a recognised institution. M.D. (Medicine) with professional experience in Cardiology for a period of 3 years in a recognised institution.
OR
(ii) M.D., M.R.C.P. with cardiology as special subject,M.D., M.R.C.P. in General Medicine with one year special training inAs per 1994 C & R Rules: Mode of Recruitment : Direct Recruitment. Qualification and Experience
1. Should be the holder of a degree in Medicine of any University established by law in India.
2. Should have post graduate qualification in Cardiology.
3. Should have teaching experience in Cardiology of not less than 3 years in a post of lecturer after acquiring post graduate qualification.
Cardiology in a recognised institution
M.D., M.R.C.P. with professional experience in Cardiology for a period of 3 years in a recognised institution.
(M.R.C.P. as per IMC Regulation)
3. Should have teaching experience in Cardiology of not less than 3 years in a post of lecturers, lecturer-cum-Registrar or any higher posts.
ASSISTANT PROFESSOR OF Thoracic SURGERY:
As per 1987 C & R Rules: Mode of Recruitment
By Promotion by Selection from the cadre of lecturer in Thoracic Surgery.
If no suitable person is available for appointment by promotion, then by direct recruitment.
Qualification & Experience:
1. Should be the holder of degree in Medicine of any university established by law in India &
2. Should have any of the post graduate qualification in Thoracic Surgery.
M.Ch. in Thoracic Surgery M.S. in General Surgery with one year Sp. training in Thoracic Surgery in a recognised institution
As per 1994 C & R rules:
Mode of recruitment : Direct recruitment
Qualification & Experience. :
1. Should be the holder of degree in Medicine of any university established by law in India.
2. Should have post graduate qualification in M.Ch. Cardiothoracic Surgery.
3. Should have teaching experience in Thoracic Surgery of not less than 3 years in a post of lecturer after acquiring post graduate qualification.
OR
FRCS in thoracic Surgery, FRCS in General Surgery with special training for one year in Thoracic Surgery in a recognised institution.(FRCS as per IMC regulations) Diploma of the specialist Board of USA in Thoracic Surgery.
3. Should have teaching experience in Thoracic Surgery of not less than 3 years in a post of lecturer or lecturer cum registrar or any higher post.
ASSISTANT PROFESSOR OF ANAESTHESIOLOGY :
As per 1987 C & R Rules Mode of Recruitment :
50% by promotion by selecting from the cadre of lecturer/lecturer-cum-Registrar in Anesthesiology.50% by direct recruitment. Qualification & Experience:
1. Should be holder of a degree in a Medicine of any University established by law in India and should have any of the post graduate qualification in Anesthesiology.
2. Should have teaching experience in Anesthesiology of not less than three years in post of a lecturer or lecturer-cum-registrar of any higher post.
As Per 1994 Rules : Mode of Recruitment : Direct recruitment: Qualification & Experience
1. Should be the holder of degree in Medicine of any university established by law in India.
2. Should have post graduate qualification in M.D. Anaesthesiology.
3. Should have teaching experience in Anaesthesiology of not less than three years in post of a lecturer after acquiring post graduate qualification.
9. The case of the petitioners is that, they satisfy all the qualifications prescribed by 1987 rules. They are eligible for promotion and in fact there was a proposal to consider their case for promotion and somehow it did not materialise. The respondent without any reason issued the impugned notification inviting applications for the posts of Assistant Professors: The respondent has no Authority of Law to appoint Assistant Professors by direct recruitment without considering the case of the petitioners and without having been satisfied that none of them are eligible and suitable for promotion. They further contended that the alleged amended 1994 C & R Rules are null and void as they are arbitrary and unreasonable and as they do not provided for promotional avenues. They contended that C & R Rules have not been amended and the alleged amended rules have not become operative; In case the said rules have become operative, they are void and unconstitutional as they arbitrarily and unreasonably affect the right of the petitioners for promotion. It is their further contention that the petitioners are entitled to be considered for promotion in accordance with the rules prevailing as on the date on which the vacancy occurred and mere postponement to fill up the vacancy would not take away the right accrued to them. Elaborating their arguments, it is contended by the petitioners that the C & R Rules as amended in 1994 have not been published and therefore they have not come into force; and it is not mentioned anywhere, the date with effect from which it would become operative; Hence, they are only draft rules; Even the respondents have not acted upon the amended rules as they were of the view that the amended rules have not been brought into force and infact respondents have acted upon 1987 rules and accorded promotion to some of the Assistant Professors to the post of Professors. Further, the amendment does not provide for promotional avenues; They shut out the petitioners completely from seeking promotion to a higher post; the rules are therefore arbitrary and unreasonable and hence unconstitutional; The petitioners hold post-graduate degrees in the relevant subject and they have completed three years service as lecturers and according to 1997 C & R Rules; they are eligible for consideration of their case for promotion as there were vacancies at the relevant time and that vacancies have not yet been filled up; In view of 1987 Cadre and Recruitment Rules, they acquired a right, for consideration of their case in the year 1993 and therefore their case will have to be considered in accordance with the rules which were prevalent on the date of vacancy.
10. Per contra, it is contended by the respondents that when once the amendment was approved by the governing council, it comes into operation. The amendment was approved at the meeting of the Governing Council held on 22.3.1994; The chairman has also signed the resolution; The C & R Rules, therefore, became operative w.e.f. 22.3.1994. It is their further contention that even though the rules are not published in the manner required by the petitioners, the intimation of the rules during the course of hearing amounts to publication of the rules. Even if there is any irregularity, the same is rectified as soon as the copies of the rules were furnished to the petitioners. It is for the authorities to frame Cadre & Recruitments Rules; that power includes deletions and additions to the existing rules. In view of the nature of work in a super speciality hospital and also the norms prescribed by the Indian Medical Council and also in view of the nature of appointment being made at super speciality hospitals like NIMHANS and KIDWAI institute of Oncology, the Governing Council, in exercise of its powers, amended the Cadre and Recruitment Rules providing appointment for Assistant Professors only by direct recruitment. When the Governing Council has power to frame bye-laws, rules and regulations, it will not become unconstitutional merely because a different mode is provided for appointment; As long as petitioners are also entitled to seek appointment in the manner prescribed, the rule cannot said to be violative of constitutional provisions. It is further contended by the respondents that the appointment will have to be made in accordance with the rules which are in force on the date of appointment and not in accordance with the rules which were prevalent on the date on which the vacancy occurred.
11. In view of the aforesaid contentions, the following questions would arise for consideration:
(i) Whether the petitioners are entitled for consideration of their case in accordance with the 1987 Rules during which period the vacancy occurred;
(ii) Whether 1994 Cadre and Recruitment rules have become operative?
(iii) If point No. 2 is answered in the affirmative, whether the said rules are unconstitutional
Point No. (i):
12. It is contended by Sri Ravivarma Kumar, Learned Counsel appearing for the petitioners that, the petitioners have completed three years of their service as lecturers in the year 1993; they also had the necessary qualification prescribed for the post of Assistant Professors; there were vacancies in the year 1993 in the cadre of Assistant Professors of Cardiology and Thoracic Surgery; the petitioners are therefore entitled for consideration of their case in accordance with the rules prevailing in the year 1993.
13. Sri M.R. Achar and Sri Gangi Reddy, Learned Counsel appearing for Respondent-Institute have contended that, there is no statutory provision which compels the respondents either to appoint or promote to the vacant post. Depending upon the exigencies, it is for the respondents to take steps either to appoint or to promote; Merely, because the petitioners have completed three years of service, they are not automatically entitled for promotion; the promotion depends upon seniority and suitability and not on seniority alone. It is open to the respondents to make appointment to any post as and when they deem it fit and necessary in the absence of any legal compulsion. Appointment would be made in accordance with the law prevailing as on the date of appointment, and not on the date on which the vacancy occurred.
14. Sri Ravivarma Kumar in support of his contention relied on the Decision of the Supreme Court in Y.V. RANGAIAH v. SREENIVASA RAO : (1983)IILLJ23SC , wherein the Supreme Court has held that, vacancies in the promotional posts occurring prior to the amendment have to be filled up in accordance with the unamended rules. This very Judgment was considered by the Supreme Court in UNION OF INDIA v. S.S. UPPAL AND ANOTHER ATC Vol. 32/1996-668. After considering the case of Y.V. RANGAIAH, the Supreme Court held that, the facts in Y.V. RANGAIAH'S case are entirely different as there was a provision for preparation of list of eligible candidates for promotion during every year. In the absence of such legal compulsion, the Supreme Court, in UPPAL'S case has held that, the fixation of the seniority in the IAS follows appointment to the service and the year of allotment in the IAS will have to be determined according to the provisions of seniority rules which are in force at the time of his appointment. The date of occurrence of vacancy has really no relevance for the purpose of fixation of seniority in IAS.
The Supreme Court in SHANKARSAN DASH v. UNION OF INDIA has held as follows:
'Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up. all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons.'
15. From the aforesaid decisions, it is dear that unless there is a legal compulsion to fill up the vacancies within the prescribed period, it is open to the respondents to fill up such vacancies as and when it becomes absolutely necessary. Even otherwise whenever the vacancies are sought to be filled up, they will have to be filled up in accordance with the law in force at the time of appointment and not in accordance with law which was in force when the vacancy arose. The first point is answered accordingly.
POINT No. 2:
16. It is not in dispute that the Governing Council at its meeting held on 21.3.1994 unanimously resolved that all the posts of Assistant Professors should be filled up with post graduate qualification in Cardiology or Thoracic Surgery or Anaesthesiology by direct recruitment. The Governing Council approved the proposed amendment to the existing Cadre and Recruitment Rules. It is true that the said resolution was signed by Chairman on April 8, 1994. The Resolution does not indicate the date form which the amended rules would come into force. Sri M.R. Achar and Sri Gangi Reddy, Learned Counsel appearing for respondents have contended that in view of the amendment approved by the Governing Council and signed by the Chairman, they came into force at once. This contention was disputed by Sri Ravivarma Kumar, Sri K.R. Bhavani Shankar and Dr. N.M. Prasad who appeared in person in W.P.10630/ 96. It is their contention that, the amendment was not made in accordance with the provisions of registration of Societies Act and the amendment has not received prior approval of the Government as prescribed by the bye-laws of the Society and above all, there is no publication of Cadre and Recruitment rules and so long as they are not published they do not come into force. Sri Bhavani Shankar, the Learned Counsel appearing for the petitioners in W.P.11374/96 has contended that, by virtue of Sub-Section(2) of Section 10 of Karnataka Societies Registration Act-1960, every amendment made under Sub-section (1) of Section 10 of the Act in relation to change of name, rules and regulations of a Society would have effect only after it is registered by the Registrar after having been satisfied that the amendment has been made in accordance with the provisions of the Act and Rules. Section 6 of the Societies Registration Act, deals with the requirements with respect to memorandum of Association. Sub-section (2) of Section 6 deals with the registration of memorandum. It states that alongwith the memorandum of association, the rules and regulations of the society containing provisions relating to admission of members, general meetings, proceedings at such meetings including voting by members, the governing body and the proceedings of meeting of the governing body shall also be registered. Section 10 deals with the amendment of such rules and regulations registered along with the memorandum of association. Since Cadre and Recruitment Rules are not regulations along with memorandum of association, Sub-section (2) of Section 10 of the Societies Registration, in my considered view, is not attracted. That, according to Clause(3) of Regulation-10 of the Jayadeva Institute of Cardiology' Rules and Regulations, 1983, the Governing Council shall have the powers to add, to amend, alter the rules and regulations and Bye-laws of the Society consistent with the Societies Registration Act, and subject to approval of the Government of Karnataka and from the bye-laws of the institute it is clear that Clause (3) of Regulations-10 of the institute would not cover the C & R Rules.
17. However, in view of law laid down by this Court and the Apex Court, every law requires publication before it is brought into force. The Supreme Court in B.K. SRINIVASAN, v. STATE OF KARNATAKA : [1987]1SCR1054 has held that 'where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication.' This was followed by the Supreme Court in PANKAJ JAIN AGENCIES, vs. UNION OF INDIA : 1994ECR28(SC) . The earliest decision of the Supreme Court on this point is in HARLA v. STATE OF RAJASTHAN : [1952]1SCR110 wherein it is held that is would be against the principles of natural justice to permit the subject of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. 'Natural Justice requires that before a law can become operative, it must be promulgated or published.' It must be broadcast in some recognisable way so that all men may know what it is; or, at the very customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence, 'It is not in dispute that the amended rules were not published even on the notice board of the institute. On the other hand it is contended by Sri M.R. Achar, Learned Counsel appearing for respondent-institute that the petitioners came to know of the amendment during the pendency of this petition which satisfy the legal requirement of publication and hence the rule should become operative at least from the date of their knowledge. This contention does not deserve any consideration, from its very nature, as it contravenes the law laid down by the Apex Court. This Court also in SREE JAGADISH COLOUR CO. v. COMMISSIONER OF COMMERCIAL TAX : ILR1996KAR2052 has held that delegated legislation requires publication and the best manner which can inspire confidence, accuracy and dependability and can have a presumptive value of due communication can bo through its publication in the official gazette.
18. Some other materials are brought to my notice from the records to substantiate that the amendments have not become operative and they are as follows:
19. The Cadre and Recruitment Rules do not contain the particulars of the authority by whom and on whose behalf it has been issued nor does it contain the date with effect from which it becomes operative. The proceedings of the Promotion Review Committee held on 4.4.1996 discloses that the committee has considered the eligible staff members of the institute for promotion to the vacant higher post. It is seen from the proceedings that the Review Committee has examined the cases of Dr. C.N. Manjunath, Dr. A.M. Jagadeesh and Dr. T.S. Bhoopal, Professor of Cardiology, Professor of Anaesthesiology, Professor of Radiology respectively who were place independent charge of those posts, for promotion and recommended that the above officers have got requisite qualification, teaching experience to hold the post of professor as per C&R; Rules. As such, the Promotion Review Committee unanimously resolved to recommend to the Board of appointments the names of above officers for promotion to the post of professors in the existing vacancies in their respective faculties in the interest of public service and patients care. The recommendations of the Promotion Review Committee dated 4.4.1996 was considered and approved by the Governing Council. By virtue of the recommendation of Promotion Review Committee, three Assistant Professors were promoted and posted as Professors Officiating under Rule-15 of the Cadre and Recruitment Rules-1987. During this period, meetings were held on various dates to reconsider the Cadre and Recruitment Rules said to have been amended by the Governing Council at its Meeting held on 21.3.1994. The Proceedings of the various committee meetings and the recommendation of the Promotion Review Committee and consequential appointment of Dr. C.N. Manjunath, Dr. A.M. Jagadeesh and Dr. T.S. Bhoopal as professors in their respectively departments clearly establishes that, the respondents have acted upon 1987 C & R Rules, and the cadre and Recruitment Rules as amended in the year 1994, were neither published nor acted upon by the respondents. Point No. 2 is therefore answered in the negative.
POINT No. 3:
20. In view of my finding that, the C & R Rules as amended in the year 1994, have not become operative, I do not think that it is necessary for me to consider point No. 3. Accordingly, point No. 3 is answered.
21. It is contended by the Learned Counsel appearing for the petitioners that the case of the petitioners requires, consideration by the respondents, for promotion in accordance with the unamended rules. It is no doubt true that as the amendments have not become operative for want of its publication, the appointments cannot be made under the said provisions unless they are brought into operation in accordance with law. In this context, it may not be out of place if the respondents are directed to take the Judgments of the Supreme Court in to account in the matter of appointments and promotions to various posts. The case of the respondents is that, the Institute being higher medical education hospital and the course being the super speciality course, all the appointments shall be made by direct recruitment in accordance with the norms prescribed by the Indian Medical Council. It is true that, the Indian Medical Council has prescribed certain norms. But, those norms are only in relation to qualifications. It is not brought to my notice any norm prescribed by Indian Medical Council in relation to the mode of appointment. It is the contention of the petitioners that the Indian Medical Council has nowhere stated that all appointments shall be by direct recruitment only. Though some of the institutions like NIMHANS and KIDWAI Institute of Oncology are appointing their staff by direct recruitment, that itself may not be a ground to deprive those who are expecting their promotions in the respondent institute, if they are otherwise found suitable. This observation shall not be construed as directed. It is only as observation for consideration of the authorities concerned. In this context, it is useful to note that the respondents are also very much interested in the welfare of their patients. It is also not out of place to note that the 'patient treatment' does not confine only to administration of medicines. The tender care of a doctor is as important as medicine for the patient, more particularly to an heart patient to recover from the ailment. The doctor-patient relationship plays a vital role in minimising the pain. The doctors should light a candle of hope in the hearts of heart patients and shall make them smile to overcome the agony of the pain. How can a grim faced doctor who is bested with problems in relation to his service conditions could make his patient smile? The doctor must be active, zealous and inspiring. He is the hope and aspirations of his patients. His interest must also be looked after. He must not be allowed to lose interest, get frustrated, become disinterested and become mechanical. If the doctors are shut-out from seeking higher places and they are rendered in mobile to the posts of lecturers, the stagnation kills their desire to serve the cause of their patients.
22. In RAGHUNATH PRASAD SINGH v. SECY., HOME (POLICE) DEPT., GOVT. OF BIHAR : (1988)IILLJ209SC the Supreme Court held that:
'....reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly.'
In O.Z. HUSSAIN v. UNION OF INIDA : AIR1990SC311 , the Supreme Court has stated that:
'..provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service.'
In COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH AND ANR. v. K.G.S. BHAT : (1990)ILLJ246SC , the Supreme Court while considering the effect of promotional avenues in public service has held as follows:-
'This is indeed a sad commentary on the appellant's management. It if often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole carreer. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See Principles of Personnel Management by Flippo Edwin B. 4th Ed.P.246). Every management must provide realistic opportunities for promising employees to move upward. The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors.'
23. For the reasons aforesaid, I pass the following order:-
a) The Writ Petitions would not survive for consideration as against the Notification dated March 13, 1996, since withdrawn by the first respondent;
b) The Cadre and Recruitment Rules of the first respondent institute as amended in 1994 have not become operative and, the petitioners are therefore, entitled for consideration of their case, for promotion in accordance with law.
c) A direction shall issue to the respondents to consider the case of the petitioners for promotion in accordance with law, within three months from the date of receipt of this order.
d) Liberty is reserved to the petitioners in W.P.Nos.27104 and 27105/1993 to question the correctness of the promotions if they are aggrieved. All contentions raised by them in their petitions which are not answered herein are kept open.
24. In the circumstances of the case, there is no order as to costs.