1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1st DAY OF FEBRUARY 2025 PRESENT THE HON'BLE MR. JUSTICE S. G. PANDIT AND THE HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR WRIT APPEAL NO.1024 OF 2023 (S-RES) BETWEEN: DR. MAHENDRA B.J. S/O M.C. JAYAKRISHNAPPA AGED ABOUT 54 YEARS WORKING AS DIRECTOR MANDYA INSTITUTE OF MEDICAL SCIENCES MANDYA -571401. ... APPELLANT (BY SRI. P.S. RAJAGOPAL, SR. COUNSEL FOR SRI JAYANTH DEV KUMAR, ADV.) AND: 1. STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) M.S. BUILDING, 4TH STAGE 6TH FLOOR, DR. AMBEDKAR ROAD BENGALURU-560001. 2. THE DIRECTOR MEDICAL EDUCATION DEPARTMENT BMC AND RI (OLD BUILDING) 2 1ST FLOOR, FORT, K.R. ROAD BENGALURU-560002. 3. MANDYA INSTITUTE OF MEDICAL SCIENCES REP. BY ITS CHIEF ADMINISTRATIVE OFFICER MANDYA – 571 401. 4. THE SELECTION COMMITTEE REP. BY ITS CHAIRMAN MANDYA INSTITUTE OF MEDICAL SCIENCES MANDYA – 571 401. 5. DR. NARASHIMHASWAMY P. WORKING AS PROFESSOR IN SURGERY AND HOD DEPARTMENT OF SURGERY AT MANDYA INSTITUTE OF MEDICAL SCIENCES (MIMS) MANDYA – 571 401 R/AT NO.204-B, DOCTORS’ QUARTERS DISTRICT HOSPITAL CAMPUS, MIMS MANDYA – 571 401. …RESPONDENTS (BY SRI.RUBEN JACOB, AAG A/W SMT. B SUKANYA BALIGA, AGA FOR R1 & R2 SRI N JAGADISH BALIGA, ADV. FOR R3 MS. SUMANA BALIGA, ADV. FOR R4 SRI RAGHAVENDRA G GAYATHRI, ADV. FOR C/R5) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR THE ENTIRE RECORDS LEADING TO THE WRIT PETITION NO.21766/2022 AND SET ASIDE THE ORDER DATED 10.07.2023 PASSED BY THE HON’BLE SINGLE JUDGE IN WRIT PETITION NO.21766/2022 AND DISMISS WRIT PETITION NO.21766/2022 FILED BY THE 5TH RESPONDENT HEREIN AND ETC. 3 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23/11/2024 COMING ON THIS DAY, S.G.PANDIT J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S.G.PANDIT and HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR CAV JUDGMENT (PER: HON'BLE MR JUSTICE S.G.PANDIT) Respondent No.5 in this intra-court appeal under Section 4 of the Karnataka High Court Act, 1961 is questioning the correctness and legality of order dated 10.07.2023 in W.P.No.21766/2022, whereby notification dated 19.08.2022 (Annexure-A) appointing appellant as Director of Mandya Institute of Medical Sciences (for short, ‘MIMS’) is set aside, remanding the matter to first respondent – Government to complete the entire proceedings relating to appointment of the director of respondent No. 3 – Institute in terms of the observations made in the order, with an observation that not to disturb respondent No. 5 herein from the 4 post of Director of respondent No.3 till completion of the entire proceedings. 2. Parties would be referred to as they stood before the learned Single Judge. Appellant was respondent No.5 and respondent No.5 herein was petitioner before the learned Single Judge. 3. Brief facts of the case are that, in pursuance to the notification dated 18.07.2022 calling application from the eligible candidates to fill up the post of Director of respondent No.3 – MIMS, petitioner as well as respondent No.5 applied for the said post. Selection was to be made from among the Professors working in MIMS on the basis of seniority-cum-merit. In the process of selection, respondent No.5 was selected and was appointed as Director of MIMS under notification dated 19.08.2022 (Annexure-A). Questioning the selection and appointment of fifth 5 respondent as Director of MIMS, petitioner was before this Court in W.P.No.21766/2022 on various grounds including the ground that respondent No.5 was not eligible to participate in the selection process, since as required, he was not working in third respondent – MIMS and that Government has no power to appoint, whereas Governing Council is the Appointing Authority. Learned Single Judge accepting the contentions of the petitioner set aside the selection and appointment of respondent No.5, remitting the matter to respondent No.1 to complete the entire proceedings relating to appointment of Director to respondent No.3 – Institution in terms of the observations made in the order. Questioning the said order of the learned Single Judge, respondent No.5 is in appeal. 4. Heard the learned senior counsel Sri.P.S.Rajagopal for Sri.Jayanth Dev Kumar, learned 6 counsel for appellant, learned Additional Advocate General Sri.Ruben Jacob for Smt.B.Sukanya Baliga, learned Additional Government Advocate for respondent Nos.1 and 2, learned counsel Sri.N.Jagadish Baliga for respondent No.3 and learned senior counsel Sri.M.S.Bhagawath for Sri.Raghavendra G. Gayathri, learned counsel for respondent No.5. Perused the writ appeal papers as well as decisions cited by learned counsel for the parties. 5. Learned senior counsel Sri.P.S.Rajagopal would submit that learned Single Judge committed an error in coming to the conclusion that the state Government is not the appointing Authority, ignoring the Bye-laws of the Institute. Learned senior counsel would submit that the learned Single Judge particularly ignored Rule 22 of the Mandya Institute of Medical Sciences Rules and Regulations, 2013, wherein it states that the appointment of Dean and 7 Director and others shall be by the Vice-Chairman of the Governing council on the recommendation of the Selection Committee constituted for the purpose in accordance with the rules of recruitment which shall be based on the MCI regulations. It is submitted that the Vice-Chairman is the Secretary to Government Health and Family Welfare Department (Medical Education). Hence, the appointment made by the Government is proper and correct on the recommendation of the Selection Committee. Learned senior counsel would submit that if Rule 18 and Rule 22 of the Rules as well as Bye-law 20 of the Bye-laws of the Institute read together, it could be safely said that the Appointing Authority is the Government and the appointment of fifth respondent as Director by the Government is proper and is in accordance with Rules. 8 6. Learned senior counsel would further contended that the learned Single Judge failed to notice that though fifth respondent was working outside the cadre, his lien continued at third respondent-institute. As such, he would be eligible to apply for the post of Director and rightly his case was considered and appointed as Director of the third respondent-Institute. Learned senior counsel would submit that the petitioner was initially on deputation to Kodagu Institute of Medical Sciences (KIMS) as Director and thereafter his services were utilized at Rajiv Gandhi University of Health Sciences (RGUHS). It is submitted that by order dated 07.10.2014, respondent No.5/appellant was appointed as Director of the KIMS for a term of four years or until further orders and it was a tenure appointment. It is submitted that when the fifth respondent was deputed to KIMS as Director, one 9 Dr.B.R.Harish was promoted as Professor, Community Medicine in the third respondent- Institute. When the post of Professor, Community Medicine was filled up, respondent No.5 made a representation to retain his lien at the third respondent-Institute. It is submitted that on 09.04.2015, Governing Council of third respondent- Institute ordered continuance of appellant’s lien at the third respondent-Institute itself. Learned senior counsel invites attention of this Court to Seniority List of the Institute of the Cadre of Professors dated 03.08.2022 and submits that respondent No.5/appellant is placed on Sl.No.3 with the date of entry to the cadre of Professor as 01.03.2007 whereas, petitioner is placed at Sl.No.4 with date of entry to the cadre of Professor as 03.05.2010. 7. Learned senior counsel invites attention of this Court to Rule 20 of the KCSRs and submits that 10 his lien continued at third respondent-Institute, though he was appointed as Director of KIMS and subsequently to work at RGUHS. To buttress his argument that fifth respondent’s lien continued at third respondent-Institute, learned senior counsel places reliance on the decision of the Hon'ble Apex Court in the case of L.R.PATIL VS. UNIVERSITY OF GULBARGA1. Learned senior counsel would further submit that when the fifth respondent lien is at third respondent-Institute only because he is working on deputation would not be ineligible from participating in the selection process to the Director’s post. Even though petitioner is on deputation, he continues to be an employee of third respondent-Institute. Moreso, when his name reflects in the seniority list of cadre of Professors and that unless he is appointed to a substantive post, his lien would not get terminated at 1 2023 SCC OnLine 1110 11 the third respondent-Institute. Learned senior counsel lastly contended that the writ petition was not maintainable at the hands of the petitioner who is ranked fourth in the merit list prepared by the Selection Committee. It is submitted that even if appellant/respondent No.5 is not eligible to be appointed as Director, petitioner who is at fourth place in the merit list cannot seek appointment as Director. Thus, learned senior counsel would pray for allowing the writ appeal and to set aside the order of the learned Single Judge. 8. Per contra, learned senior counsel Sri.M.S.Bhagawath appearing for the petitioner would contend that Governing Council of the third respondent-Institute is the Appointing Authority in terms of the Bye-laws as well as 2013 Rules of the third respondent-Institute. The first respondent – Government has no role to play in the matter of 12 appointment and the impugned order of appointment appointing fifth respondent as Director of third respondent-Institute is contrary to the Bye-laws as well as 2013 Rules of the Institute. In that regard, learned senior counsel invites attention of this Court to Rules 2(1)(c), 2(2), 18(3) and 20(2) of 2013 Rules. Further, learned senior counsel referring to Clause 20(2) of 2013 Rules would submit that appointment of Dean and Director shall be by the Vice-Chairman of the Governing Council, which would mean that appointment order could be issued by Vice-Chairman on the recommendation of the Selection Committee. Vice-Chairman referred therein relates to Vice- Chairman of the Governing Council and it would not refer to the Secretary to Government, Health and Family Welfare Services (Medical Education). It is submitted that the Secretary to Government, Health and Family Welfare Services (Medical Education) 13 would act as Vice-Chairman, but in his capacity as the Secretary, Health and Family Welfare Services (Medical Education), cannot issue order of appointment. When the Bye-laws and 2013 rules of the third respondent-Institute would make it clear that appointment of Director shall be by Governing Council, first respondent-Government has no jurisdiction to appoint the Director to the third respondent-Institute. 9. Learned senior counsel would further submit that the Cadre and Recruitment Rules of the third respondent-Institute makes it abundantly clear that the candidates to the post of Director shall be selected based on the seniority cum merit from amongst the teachers in the same autonomous institution, which would mean that the teacher working in the third respondent-Institute as on the date of calling application to fill up the post of Director. A person who is not a teacher in the same 14 autonomous institution as on the date of calling application would not be entitled to participate in the selection process to the post of Director. It is contended that the fifth respondent has lost his lien at the third respondent-Institute when he is appointed as Director of KIMS and when the vacancy by virtue of fifth respondent’s appointment as Director of KIMS is filled up by one Dr.Harish. He submits that against a single post, two persons cannot work or claim lien. It is his alternative submission that even if the lien of fifth respondent is continued at the third respondent- Institute, he must be working as teacher as on the date of calling applications to fill up the post of Director. It is his submission that fifth respondent was not working at the third respondent-Institute as on the date of calling applications to fill up the post of Director i.e., 18.07.2022. In support of his contention, he invites attention of this Court to Annexure-F, 15 notification dated 18.07.2022 calling applications to fill up the post of Director of third respondent-Institute wherein it states that Professors working in the MIMS. Thus, he supports the findings of the learned Single Judge. 10. Learned senior counsel Sri.M.S.Bhagawath referring to Rule 20(b) and (d) would submit that when respondent No.5 is appointed as Director of KIMS and to his place at third respondent-Institute, Dr.Harish is promoted and appointed as Professor, lien of respondent No.5 is deemed to have been terminated. Further, learned senior counsel would submit that only one substantive appointment is permissible against one post. Therefore, he submits that fifth respondent cannot claim that his lien would continue at the third respondent-Institute. 16 11. With regard to contention of the fifth respondent that writ petition itself was not maintainable, learned senior counsel for the petitioner would submit that the petitioner had participated in the selection process and when a person who was not eligible to participate in the selection process is selected, a person who participated in the selection process would acquire locus to challenge such selection and appointment. Moreover, learned Single Judge has directed for re-consideration of the entire issue. Thus, he prays for dismissal of the writ appeal. 12. Learned Additional Advocate General for learned Additional Government Advocate for respondent Nos.1 and 2 as well as learned counsel Sri.N.Jagadish Baliga for respondent No.3 submitted that looking to the facts and circumstances of the case, pray for passing appropriate order. 17 13. Having heard the learned senior counsel as well as other counsel appearing for the parties and on perusal of the writ appeal papers, the only point which falls for our consideration is as to, “Whether the learned Single Judge’s order under appeal requires interference at the hands of this Court?” 14. The answer to the above point would be in the negative for the following reasons: 15. The third respondent-Institute is an autonomous independent Institute having its own Memorandum of Association (Annexure-B) and Bye- Laws i.e., Mandya Institute of Medical Sciences, Mandya Bye-laws, 2013. The management of the institute is vested with the Governing Council of the Institute. Minister for Medical Education is the Chairman and the Secretary to Government, Health and Family Welfare Department (Medical Education) is 18 the Vice-Chairman and there are other officials who are members of the Governing Council. The Director- cum-Dean of Mandya Institute of Medical Sciences, Mandya being the Member Secretary. In terms of 2013 Bye-laws, the appointing authority is defined to mean the Karnataka Government in respect of first Dean/Director, Vice-Chairman of the Governing Council in respect of subsequent Dean/Director. Further, for selection of Dean and Director, selection committee in terms of Bye-law No.12 shall be constituted and method of selection is prescribed under Bye-law No.15. Bye-law No.24 would provide for application of other rules of the State Government insofar as service condition of the employees of the third respondent-Institute. In terms of Mandya Institute Medical Sciences, Mandya Rules and Regulations, 2013, the ‘appointing authority’ means Governing Council in respect of the subsequent 19 Dean/Director. Rule 18(3) of 2013 Rules would categorically state that the Governing Council shall appoint the Dean-cum-Director through a selection process and the term of the Dean-cum-Director is for a period of four years. Rule 20(2) would further state that the appointment of Dean and Director shall be by the Vice-Chairman of the Governing Council on the recommendation of the selection committee constituted for that purpose. 16. From the cumulative reading of the above Bye-Laws and 2013 Rules, it is abundantly clear that the Governing Council is the appointing authority in respect of the Director of the third respondent- Institute. The selection of Director shall be by selection committee constituted by the Governing Council in terms of Bye-law No.12 of 2013 Bye-laws. The contention of the learned senior counsel for respondent No.5, referring to Rule 20(2) of 2013 20 Rules that the order issued by Secretary to Government, Health and Family Welfare Department (Medical Education) who is Vice-Chairman of the Governing Council is proper and correct cannot be accepted. A perusal of the impugned order, appointing fifth respondent as Director of third respondent- Institute is not in the capacity of the Vice-Chairman of the Governing Council of third respondent-Institute, but it is in the capacity of Secretary to Government, Health and Family Welfare Department (Medical Education). Being Secretary of the Health and Family Welfare Department (Medical Education), he would be Vice-Chairman of the third respondent-Institute and as Vice-Chairman, he could issue appointment order on the advice of the Governing Council and selection committee. Therefore, the finding of the learned Single Judge that the Governing Council is the 21 competent authority to appoint the Director needs no interference. 17. The respondent No.3 under Notification dated 18.07.2022 (Annexure-F) invited applications from the eligible candidates to fill up the post of director in the third respondent-Institute. The eligibility criteria as stated in the notification reads as follows: “CºÀðvÁ ªÀiÁ£ÀzÀAqÀUÀ¼ÀÄ: CºÀðvÁ ªÀiÁ£ÀzÀAqÀUÀ¼ÀÄ: CºÀðvÁ ªÀiÁ£ÀzÀAqÀUÀ¼ÀÄ: CºÀðvÁ ªÀiÁ£ÀzÀAqÀUÀ¼ÀÄ: 1. ªÀÄAqÀå ªÉÊzÀåQÃAiÀÄ «eÁߣÀUÀ¼À ¸ÀA¸ÉÜAiÀÄ°è ¸ÉÃªÉ ¸À°è¸ÀÄwÛgÀĪÀ ¥ÁæzsÁå¥ÀPÀgÀ ¥ÉÊQ eÉõÀ×vÉ ªÀÄvÀÄÛ ªÉÄjmï DzsÁgÀzÀ°è ¸ÀzÀj ºÀÄzÉÝUÉ C¨sÀåyðAiÀÄ£ÀÄß DAiÉÄÌ ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ. 2. PÀ£ÁðlPÀ ¸ÀPÁðj ¸ÁéAiÀÄÄvÀÛ ªÉÊzÀåQÃAiÀÄ PÁ¯ÉÃG/¸ÀA¸ÉÜUÀ¼À°è PÀ¤µÀ× 10 ªÀµÀð ¥ÁæzsÁå¥ÀPÀgÀÄ/¸ÀºÀ ¥ÁæzsÁå¥ÀPÀgÀÄ DV PÀvÀðªÀå ¤ªÀð»¹zÀ ¨ÉÆÃzsÀ£Á C£ÀĨsÀªÀ ºÉÆA¢gÀ¨ÉÃPÀÄ. F ¥ÉÊQ «¨sÁUÀªÉÇAzÀgÀ°è PÀ¤µÀ× 05 ªÀµÀð ¥ÁæzsÁå¥ÀPÀgÁV ¸ÉÃªÉ ¸À°è¹gÀ¨ÉÃPÀÄ. ¥ÁæzsÁå¥ÀPÀgÀÄ ºÁUÀÄ «¨sÁUÀzÀ ªÀÄÄRå¸ÀÜgÁV PÀvÀðªÀå ¤ªÀð»¹zÀªÀjUÉ DzÀåvÉ ¤ÃqÀ¯ÁUÀĪÀÅzÀÄ. C¨sÀåyðUÀ¼ÀÄ 22 PÀ¤µÀ× 05 ªÀµÀðUÀ¼À PÁ® DqÀ½vÁ£ÀĨsÀªÀ ºÉÆA¢gÀ¨ÉÃPÀÄ. 3. ªÀÄAqÀå ªÉÊzÀÀåQÃAiÀÄ «eÁߣÀUÀ¼À ¸ÀA¸ÉÜAiÀÄ ¥ÁæzsÁå¥ÀPÀgÀ ªÀÈAzÀzÀ eÉõÀ×vÁ ¥ÀnÖ C£ÀĸÁgÀ C¨sÀåyðUÀ¼À£ÀÄß ¤zÉÃð±ÀPÀgÀÄ ºÀÄzÉÝUÉ DAiÉÄÌ ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ. 4. ¥ÁæzsÁå¥ÀPÀ ªÀÈAzÀzÀ ¸ÉêÁ eÉõÀ×vÁ ¥ÀnÖAiÀÄ°ègÀĪÀ EZÉÑAiÀÄļÀî 05 ªÀÄA¢ ¥ÁæzsÁå¥ÀPÀgÀÄUÀ¼À£ÀÄß ¤zÉÃð±ÀPÀgÀ ºÀÄzÉÝAiÀÄ £ÉêÀÄPÁwAiÀÄ ¸ÀAzÀ±Àð£ÀPÉÌ CºÁ餸À¯ÁUÀĪÀÅzÀÄ. 5. ¤zÉÃð±ÀPÀgÀÄ ºÀÄzÉÝUÉ Cfð¸À°è¸ÀĪÀ C¨sÀåyðUÀ¼ÀÄ PÀ¤µÀ× 05 ªÀµÀð ªÉÊzÀåQÃAiÀÄ C¢üÃPÀëPÀgÀ ºÀÄzÉÝAiÀÄ CxÀªÁ «¨sÁUÀzÀ ªÀÄÄRå¸ÀÜgÀ CxÀªÁ ¥ÁæzsÁå¥ÀPÀ ºÀÄzÉÝAiÀÄ DqÀ½vÁvÀäPÀ ¸ÉêÁ£ÀĨsÀªÀ ºÉÆA¢gÀ¨ÉÃPÀÄ. 6. J£ï.JA.¹/JA.¹.L EAzÀ ªÀiÁ£ÀåvÉ ¥ÀqÉzÀ ¸ÀA¸ÉÜUÀ½AzÀ ªÉÊzÀåQÃAiÀÄ ²PÀëtzÀ°è ¸ÁßvÀPÉÆÃvÀÛgÀ ¥ÀzÀ«AiÀÄ£ÀÄß ºÉÆA¢gÀ¨ÉÃPÀÄ ºÁUÀÆ ¤zÉÃð±ÀPÀ ºÀÄzÉÝAiÀÄ £ÉêÀÄPÁwUÁV CºÀðvÉ ªÀÄvÀÄÛ CºÀðvÁ ªÀiÁ£ÀzÀAqÀUÀ¼À£ÀÄß J£ï.JA.¹/JA.¹.L ¤AiÀĪÀiÁªÀ½UÀ¼À£ÀéAiÀÄ ºÁUÀÆ ªÀÄAqÀå ªÉÊzÀåQÃAiÀÄ «eÁߣÀUÀ¼À ¸ÀA¸ÉÜAiÀÄ ¨ÉʯÁUÀ¼À£ÀéAiÀÄ ¥ÀjUÀt¸À¯ÁUÀĪÀÅzÀÄ. 23 7. Cfð ¸À°è¸ÀĪÀ C¨sÀåyðAiÀÄ ªÀAiÀĸÀÄì 58 ªÀµÀð «ÄÃjgÀ¨ÁgÀzÀÄ CxÀªÁ Cfð ¸À°è¸ÀĪÀ PÉÆ£ÉAiÀÄ ¢£ÁAPÀzÀAzÀÄ ªÀAiÉÆà ¤ªÀÈwÛ ºÉÆAzÀ®Ä PÀ¤µÀ× 02 ªÀµÀðUÀ¼À ¸ÉêÁ CªÀ¢ü «ÄÃjgÀ¨ÁgÀzÀÄ. 8. C¨sÀåyðAiÀÄÄ PÀqÁØAiÀĪÁV SÁAiÀÄA ¥ÀƪÀð ¸ÉêÁªÀ¢üAiÀÄ£ÀÄß ¥ÀÆtðUÉƽ¹gÀ¨ÉÃPÀÄ.” 18. The first condition itself makes it abundantly clear that the selection to the post of Director of third respondent-Institute could be from amongst the senior most Professors working in the Institute. Further, it also makes it clear that in terms of the seniority list of the Professors of the third respondent-Institute, five senior most Professors could participate in the selection process. 19. Learned senior counsel for respondent No.5 submitted that since lien of respondent No.5 continued and the name of respondent No.5 is shown in the seniority list of Professors of third respondent-Institute, 24 he could participate in the selection process and his selection is justified. But, the said contention cannot be accepted. It is relevant to note that on appointment of respondent No.5 as Director of KIMS, he has never come back to work as Professor to the third respondent- Institute. Moreover, on his appointment as Director to KIMS, post of Professor in Community Medicine in the third respondent-Institute is filled up by promoting one Dr.B.R.Harish as Professor, Community Medicine. The same is reflected in Annexure-GG, O.M. dated 01.01.2022, the seniority list of the cadre of Professors in the third respondent-Institute as on 01.01.2022. The said seniority list dated 01.01.2022 also indicates that Dr.B.R.Harish reported to duty on 24.11.2014 subsequent to vacancy caused by respondent No.5 on his appointment as Director, KIMS. 20. It is also clear from Rule 20 of KCSRs that only one substantive appointment is permissible against 25 a vacant permanent post. Two persons or two Professors cannot hold the post at the same time. In terms of Rule 20(b), on appointment or on deputation of respondent No.5 as Director of KIMS, lien of the petitioner is deemed to have been suspended or terminated. Even if the petitioner’s appointment as Director of KIMS is considered as deputation which is for more than three years, it is to be held that lien of respondent No.5 is deemed to have been suspended or terminated. 21. Learned senior counsel for respondent No.5/appellant placed reliance on the decision of the Hon'ble Apex Court in L.R.PATIL (supra) to contend that the respondent No.5’s lien continued at third respondent-Institute. In L.R.PATIL (supra), the Hon'ble Apex Court was considering the question as to whether in the facts of that case, on joining the new post, the appellant’s lien on the original/previous post will be continued to be maintained, until he is permanently 26 absorbed in the new department or cadre in which he is subsequently appointed? The Hon'ble Apex Court was considering Rule 252(b) of the KCSRs along with Note-4 to Rule 20 of KCSRs. In L.R.PATIL (supra), L.R.Patil was working as Office Superintendent in Gulbarga University and while he was working as such, in pursuance to notification inviting applications to fill up the post of Assistant Registrar by direct recruitment, he applied for the said post and was selected. As his selection for the post of ‘Assistant Registrar’, L.R.Patil was relieved from the post of Office Superintendent recording that he has been relieved to accept another appointment as Assistant Registrar in the same University. The said appointment as Assistant Registrar was on probation for a period of two years. Under the said circumstances, the Hon'ble Apex Court held that L.R.Patil’s lien would continue in his previous post until he is confirmed in the new post as Assistant Registrar. The facts in the present case are entirely different. 27 22. The Hon'ble Apex Court in the case of RAMLAL KHURANA (DEAD) BY LRS VS. STATE OF PUNJAB2, has observed that ‘lien’ is not a word of art and it connotes the right of a civil servant to hold the post substantively to which he is appointed, meaning thereby the appointment of Government servant on the said post must be substantive as he/she cannot hold two posts simultaneously in two different cadres and maintain lien on both of them at the same time. In the instant case also, petitioner who is appointed substantively as Director of KIMS could not hold two posts simultaneously in two different cadres i.e., as Director of KIMS and as Professor, Community Medicine at third respondent-Institute. Moreover, the post of Professor in 3rd respondent-Institute subsequently is filled up by promotion of one Dr.Harish B.R. 2 (1989) 4 SCC 99 28 23. On behalf of respondent No.5/appellant, it is contended that the writ petition was not maintainable at the hands of the petitioner as he is ranked fourth by merit ranking by the selection committee. The said contention cannot be accepted for the reason that petitioner was also a participant in the selection process to the post of Director of the third respondent-Institute and when a person who is not entitled to participate in the proceedings is selected and appointed, a person who participated in the selection process would get locus to challenge such selection and appointment. Moreover, learned Single Judge after quashing the appointment of fifth respondent as Director of third respondent-Institute has remitted the matter to the first respondent. In terms of the order of the learned Single Judge, entire selection process shall have to be re-considered from the stage of placing the proceedings of the selection committee before the Governing Council of third respondent- Institute, then proceed further in accordance with law. 29 As this Court and learned Single Judge have come to the conclusion that Governing Council is the competent authority to appoint the Director of third respondent- Institute, the entire selection process is remitted back to the Governing Council of third respondent-Institute to proceed in accordance with law. Learned Single Judge’s order is modified only to the above extent. 24. For the reasons recorded above, writ appeal stands disposed of. The Governing Council of third respondent as well as first respondent are given four weeks time from the date of uploading of this order in the Website of the High Court of Karnataka, Bengaluru to complete the selection process of the Director of third respondent-Institute. Sd/- (S.G.PANDIT) JUDGE Sd/- (RAMACHANDRA D HUDDAR) JUDGE NC CT:bms