writ petition nos.12029 -12037/2011 c/w wp...

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 26TH DAY OF SEPTEMBER 2012

P R E S E N T

THE HON’BLE MR.JUSTICE N. KUMAR

A N D

THE HON’BLE MR.JUSTICE H.S. KEMPANNA

WRIT PETITION Nos.12029 -12037/2011 C/w WP Nos.27388 – 27402, 17178 – 17194, 16876 – 16903, 20111 – 20115 & 21397 – 406/2011, 19459 –

19464 & 20116 – 20120/2011 (S-KAT)

IN WRIT PETITION Nos.12029 -12037/2011:

BETWEEN: 1. DR. S A SOMASHEKAR

S/O ANKEGOWDA AGED 44 YEARS, ASSISTANT PROFESSOR (ORTHOPAEDICS) BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-560001

2. DR S T KAVYA AGE 46 YEARS, W/O B N CHANDRAPPA ASSISTANT PROFESSOR (GENERAL MEDICINE) BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-560001

3. DR H C SUDHA AGE 45 YEARS, D/O CHIKKA SIDDAIAH ASSISTANT PROFESSOR (OBG) BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-560001

4. DR VEDARAJU AGE 41 YEARS, S/O SHAMACHARI OOD LECTURERS (RADIOLOGY) BOWRING AND LADY CURZON HOSPITAL, SHIVAJINAGAR, BANGALORE-560001 ... PETITIONERS

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(BY SRI J PRASHANTH, ADV.)

AND: 1. DR. K HARISH S/O N KARIGOWDA

AGE NOT KNOWN TO THE PETITIONER SENIOR SPECIALIST BOWRING AND LADY CURZON HOSPITAL BANGALORE-560001

2. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF HEALTH & FAMILY WELFARE VIKAS SOUDHA BANGALORE-560001

3. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF MEDICAL EDUCATION VIKAS SOUDHA BANGALORE-560001

4. ADDITIONAL SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKAS SOUDHA BANGALORE-560001

5. THE DIRECTOR OF MEDICAL EDUCATION

IN KARNATAKA ANAND RAO CIRCLE BANGALORE-560009

6. THE DIRECTOR OF HEALTH AND FAMILY WELFARE IN KARNATAKA ANAND RAO CIRCLE BANGALORE-560009

7. THE DIRECTOR OF DEAN BMRCI FORT, BANGALORE-560001

8. DR VASANTH KUMAR K S/O KALAYNAYAK 43 YEARS, SENIOR SPECIALIST (RADIO DIAGNOSIS), BOWRING AND LADY CURZON HOSPITAL, SHIVAJINAGAR, BANGALORE

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R/A NO.24, IST CROSS, IST MAIN, VIVEKANANDA COLLEGE, KANAKAPUR MAIN ROAD, BANGALORE-78

9. DR R BHANU MURTHY S/O RAMAKRISHNA AGED 43 YEARS, SENIOR SPECIALIST (MS ORTHOPEDIC) BOWRING AND LDY CURZON HOSPITAL BANGALORE ... RESPONDENTS

(BY SRI S.V. NARASIMHAN FOR R-1 & 8, SRI.S.N. ASWATHANARAYANA FOR R-9, SMT. REVATHY ADINATH NARDE HCGP FOR R-2 TO 7)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226

OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

ANEX-A ORDER DTD 21.2.11 PASSED IN APPLICATION NO.

1964/2009; 2025/2009 AND 55/2010 AND DISMISS THE SAID

APPLICATIONS FILED BEFORE KARNATAKA ADMINISTRATIVE

TRIBUNAL, BANGALORE. DISMISS THE APPLICTIONS NOS.

1964/09, 2025/09 AND 55/09 FILED BY THE CONTESTING

RESPONDENTS.


BETWEEN:

1. DR K SHANKARA

AGED ABOUT 52 YEARS, S/O SRI. CHIKKATHIMMEGOUDA, ASSISTANT PROFESSOR, DEPARTMENT OF ORTHOPAEDICS, HIMS, HASSAN

2. DR. N. SRIRANGA AGED ABOUT 38 YEARS, S/O DR. (PROFESSOR) T.R. NAGARAJ ASSOCIATE PROFESSOR, DEPARTMENT OF ORTHOPAEDICS, HIMS, HASSAN

3. DR. V.R. KRISHNAMURTHY AGED ABOUT 45 YEARS, S/O LATE SRI. RANGE GOUDA, ASSISTANT PROFESSOR,

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DEPARTMENT OF SURGERY HIMS, HASSAN

4. DR. ESHWARAPRASAD G.D AGED ABOUT 39 YEARS, S/O LATE SRI. G.S. DEVEGOUDA ASSISTANT PROFESSOR, DEPARTMENT OF SURGERY HIMS, HASSAN

5. DR. KRISHNE GOUDA H.R AGED ABOUT 57 YEARS, S/O LATE SRI. RAMALINGE GOUDA ASSISTANT PROFESSOR, DEPARTMENT OF MEDICINE HIMS, HASSAN

6. DR. SHIVAKUMARSWAMY UDASIMATH AGED ABOUT 38 YEARS, S/O PANCHAKSHARAYYA UDASIMATH, ASSISTANT PROFESSOR, DEPARTMENT OF PATHOLOGY HIMS, HASSAN

7. DR. H. KUMAR NAIK AGED 42 YEARS, S/O D.HOBALI NAIK ASSISTANT PROFESSOR, DEPARTMENT OF PATHOLOGY HIMS, HASSAN

8. DR. D. PREMA KUMAR AGED 55 YEARS, S/O LATE SRI. K.M DODDALINGAPPA, PROFESSOR OF MEDICINE, HIMS HASSAN NOW RE-DEPUTED AS REGISTRAR OF RAJIV UNIVERSITY OF HEALTH SCIENCE

9. DR. CHANDREGOWDA AGED ABOUT 45 YEARS, S/O LATE SRI. UJJANIGOWDA ASSOCIATE PROFESSOR, DEPARTMENT OF MEDICINE, MIMS,MANDYA

10. DR. PUTTASWAMYGOWDA A.B S/O NOT KNOWN AGED 44 YEARS, ASSOCIATE PROFESSOR,

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DEPARTMENT OF ORTHOPAEDICS MIMS,MANDYA

11. DR. PUTTASWAMY AGED ABOUT 48 FYEARS, S/O MULLAIAH, ASSOCIATE PROFESSOR, DEPARTMENT OF FORENSIC MEDICINE MIMS, MANDYA

12. DR. A. PANDARINATH AGED 53 YEARS, S/O M.V. ASHWATHNARAYANA RAO ASSISTANT PROFESSOR DEPARTMENT OF ORTHOPAEDICS MIMS, MANDYA

13. DR. RAJASHEKARA K.A AGED 50 YEARS, S/O LATE SRI. APPJI GOWDA, ASSISTANT PROFESSOR DEPARMENT OF SURGERY, MIMS, MANDYA

14. DR. GOPALAKRISHNA K.H AGED 46 YEARS, S/O LATE SRI. HUCHANNA SETTY, ASSISTANT PROFESSOR DEPARMENT OF SURGERY, MIMS, MANDYA

15. DR. S. SRINIVAS AGED 52 YEARS, S/O SIDDEGOWDA ASSISTANT PROFESSOR DEPARMENT OF OPTHALMOLOGY MIMS, MANDYA ... PETITIONERS

(BY SRI VIVEK S REDDY, ADV.)

AND: 1. DR RAMAKRISHNA

AGED ABOUT 49 YEARS, S/OMUDLAGIRIGOWDA SENIOR SPECIALIST, BOWRING & LADY CURZON HOSPITAL, SHIVAJINAGAR, BANGALORE R/AT PLOT NO.C30, II CROSS,

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SAMEERAPURA, BANGALORE 560 018.

2. THE STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE SERVICES, VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE 560 001

3. THE STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF MEDICAL EDUCATION VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE 560 001

4. THE DIRECTOR OF MEDICAL EDUCATION IN KARNATAKA ANANDA RAO CIRCLE, BANGALORE 560 009

5. THE DIRECTOR OF HEALTH & FAMILY WELFARE SERVICES IN KARNATAKA, ANAND RAO CIRCLE, BANGALORE 560 009

6. THE DIRECTOR & DEAN BMCRI, FORT, BANGALORE 560 001

7. THE DIRECTOR & DEAN HASSAN INSTITUTE OF MEDICAL SCIENCES, (HIMS), HASSAN

8. THE DIRECTOR & DEAN MANDYA INSTITUTE OF MEDICAL SCIENCES, (MIMS), HASSAN ... RESPONDENTS

(BY SRI S V NARASIMHAN FOR R2 TO 5, SRI.S.S. TUTAD FOR R-7, R-6 & 8 SERVED)

THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227

OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE

RECORDS RELATING TO THE IMPUGNED ORDER DATED

11.4.2011 VIDE ANNEXURE-B, PASSED BY THE HON'BLE

KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN THE

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APPLICATION NO.2659/2009 FROM THE SAID TRIBUNAL,

PERUSE THE SAME AND DECLARE THE ENTIRE PROCEEDINGS

CULMINATING IN THE SAID ORDER AS A NON-EST.


BETWEEN:

1. DR. R.K DATTA

S/O LATE C H VENKATADASAPPA AGED 47 YEARS DEPARTMENT OF ENT ASSISTANT PROFESSOR, SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2

2. DR JAGANNATH PAIRU S/O P TANGAVELU AGED 42 YEARS, DEPARTMENT OF OBG ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE BANGALORE-2

3. DR R ANIL KUMAR AGED 40 YEARS S/O LATE R RAMABHADRAIAH DEPARTMENT OF ENT ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE BANGALORE-2

4. DR ASHOK KUMAR DEVOOR AGED ABPIT 39 YEARS S/O SHIVAPPA DEPARTMENT OF OBG ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2

5. DR RAMESH R S/O R REVANNA AGED 46 YEARS S/O R REVANNA DEPARTMENT OF ANAESHESIA ASSISTANT PROFESSOR

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SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2

6. DR M SATHESHA S/O LATE B MUNIYAPPA AGED 46 YEARS DEPARTMENT OF ANAESHESIA ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2

7. DR VASANTHA KUMAR J S/O JANARDHANA AGED 47 YEARS DEPARTMENT OF ENT ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2

8. DR M D PRAKASH S/O LATE D DODDARANGAIAH AGED 41 YEARS DEPARTMENT OF ENT ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2

9. DR JAYACHANDRA S/O VENKATARAMAPPA AGED 50 YEARS, DEPARTMENT OF MEDICINE ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2

10. DR V SRINIVASA S/O LATE V VENKATAPPA AGED 42 YEARS, DEPARTMENT OF MEDICINE ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2

11. MANJUNATH R S/O M RAMEGOWDA AGED 44 YEARS, DEPARTMENT OF MEDICINE ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2

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12. DR G M PUTTAMADAIAH S/O MADAIAH M AGED 41 YEARS, DEPARTMENT OF E.N.T ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2

13. DR K SRINIVAS S/O DR K KRISHNA JOIS AGED 44 YEARS, DEPARTMENT OF OBG ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2

14. DR S KALPANA W/O DR H PRATAPASURYA AGED 54 YEARS, DEPARTMENT OF OPHTHALMOLOGY ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2

15. DR SHANTALA W/O DR HARISHWARA C E AGED 36 YEARS, DEPARTMENT OF MICROBIOLOG ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2

16. DR VIJAYALAKSHMI NAYAK D/O MAHABALA NAYAK AGED 56 YEARS, DEPARTMENT OF OBG ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2

17. DR VENKATESH K L S/O LATE K H LAKSHMAIAH SHETTY AGED 44 YEARS, DEPARTMENT OF GENERAL SURGERY ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2 ... PETITIONERS

(BY SRI B S VIJAYALAKSHMI & K.C. SHANTHAKUMAR, ADV.)

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AND: 1. THE STATE OF KARNATAKA

REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, (MEDICAL EDUCATION) VIKASA SOUDHA BANGALORE-560001

2. DR RAMAKRISHNA S/O MOODALAGIRI GOWDA AGED ABOUT 48 YEARS R/O DOOR NO. C30, II CROSS, SAMEERAPURA BANGALORE-560018 (SERVING AS A SENIOR SPECIALIST AT THE BOWRING AND LADY CURZON HOSPITALS), SHIVAJINAGAR BANGALORE-560001 ... RESPONDENTS

(BY SMT. REVATHY ADINATH NARDE, HCGP FOR R-1, SRI S V NARASIMHAN FOR C/R2)



RECORDS RELATING TO THE IMPUGNED ORDER DATED

11.4.2011 VIDE ANNEXURE-A PASSED BY THE HON'BLE

KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN

APPLICATION NO.2659/2009 FROM THE SAID TRIBUNAL,

PERUSE THE SAME AND DECLARE THE ENTIRE PROCEEDINGS

CULMINATING IN THE SAID ORDER AS A NON-EST.


BETWEEN:

1. DR SABU NINGAPPA SATIHAL

ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, B.I.M.S BELGAUM 590 001, S/O H BHEEMARAYAPPA AGED 55 YEARS, R/AT PLOT NO. 2721, SECTOR NO.12, M.M.EXTENSION, BELGAUM 590 016

2. DR SUDHEENDRA P R ASSISTANT PROFESSOR, DEPARTMENT OF ORTHOPEDICS SHIVAMOGGA INSTITUTE OF MEDICALSCIENCES (SIMS) SHIVAMOGGA

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577201 S/O P R KEKUDA, AGED 42 YEARS, R/AT NO.1 MEGGAN HOSPITAL DOCTORS QUARTERS KUVEMPU ROAD, SHIVAMOGGA

3. DR. H N NAGARAJ ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY,SHIVAMOGGA INSTITUTE OF MEDICALSCIENCES (SIMS) SHIVAMOGGA 577201 S/OBHEEMARAYAPPA, AGED 55 YEARS, R/AT "SHUSHRUTHA " #126, GOPALAGOWDA BADAVANE, SHIVAMOGGA 577 201

4. DR. M MANJUANTHA ASSISTANT PROFESSOR, DEPARTMENT OF SKIN & SID, SHIVAMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577201 S/O G MURIGAPPA, AGED 55 YEARS, R/AT TILAKNAGARA SHIVAMOGGA 577 201

5. DR S M GANAGI ASSISTANT PROFESSOR, DEPARTMENT OF OPHTHALMOLOGY B.I.M.S. BELGAUM 590 001 S/O GANAGI M N AGED 59 YERAS, R/AT C/O S.N.KHOT, IST FLOOR "MAIRU SMRITI " NO.20, K.R.LAYOUT, CLUB ROAD, BELGAUM 590 001

6. DR.ANILKUMAR M TALWADE ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, B.R.I.M.S. BIDAR S/O MADHAV RAO,AGED 43 YEARS, R/AT C/O TALWADE HOSPITAL LECTURERS COLONY RAOD, GUNJ, BHALKI, BIDAR DISTRICT 585 328

7. DR.ERANNA R PALLED ASSISTANT PROFESSOR, DEPARTMENT OF RADIO DIAGNOSIS, B.I.M.S. BELGAUM 590 001 S/O RUDRAPPA PALLED,AGED 39 YEARS, R/AT C/O H B HUGAR, H.NO.453, 2ND MAIN, 2ND CROSS, SADASHIVANAGAR, BELGAUM 590 001

8. DR.S.K. MAHENDRAPPA M D ASSISTANT PROFESSOR, DEPARTMENT OF MEDICINE / MEDICAL SUPERINTENDENT, SHIVAMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) S/O LATE S K KALIVEERAPPA, AGED 56 YEARS

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R/AT H.#.21,"SANTRUPTHI",3RD MN,4THCROSS ASHWATHANAGAR SAVALANGA RD,SHIVAMOGGA

9. DR.NANDA S SHINGE ASSISTANT PROFESSOR, DEPARTMENT OF O.B.G. SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201, W/O P M UTHAPPA, AGED 57 YEARS, R/AT P.M.UTHAPPA (RETD. SP) "RAMIT", IST MAIN 5TH CROSS, A BLOCK SHARAVATHINAGAR SHIVAMOGGA 577 201.

10. DR.RAJALAKSHMI G ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201 W/O DR NAGARAJAM AGED 44 YEARS, R/AT "SHRI SHARADADEVI KRUPA", OLD POST OFFICE RD.ANNAJI RAO LAYOUT, VINOBHANAGAR

11. DR.NAGARAJA M ASSISTANT PROFESSOR, DEPARTMENT OF E.N.T.SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201 S/O MRUTHYUNJAYAPPA, AGED 46 YRS R/AT "SHRI SHARADADEVI KRUPA", OLD POST OFFICE RD. ANNAJI RAO LYT,VINOBHANAGAR

12. DR.C.G.RAVINDRA ASSISTANT PROFESSOR, DEPARTMENT OF ANESTHESIA, SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201 S/O LATE GANGAPPA,AGED 53 YEARS, R/AT "GANGA",KASHIPUR MAIN ROAD, VINOBHANAGAR EXTENSION,SHIVAMOPGA 577201

13. DR. SHIVANANDA P T ASSISTANT PROFESSOR, DEPARTMENT OF ANESTHESIA, SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201 S/O PATEL THIMMANNA BHATT, AGED 45 YERAS, R/AT SHIMOGGA577 201

14. DR.K CHANDRASHEKHRAPPA ASSISTANT PROFESSOR, DEPARTMENT OF ANESTHESIOLOGY, SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O K UMAPATHIYAPPA, AGED 56 YERAS,

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R/AT "KAVI NIVAS", 100 FT ROAD, RAJENDRA NAGAR SHIVAMOGA 577 204

15. DR.RATIKANT NARAYANA RAIKAR ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O NARAYAN PANDURANG RAIKAR, AGED 54 YRS R/AT HIG-74, KALLAHALLI STAGE II, 100 FT ROAD, VINOBHANAGAR SHIVAMOGA 577 204

16. DR. B T SUBRAMANYA ASSISTANT PROFESSOR, DEPARTMENT OF E.N.T. SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O B P THIMMAPPAIAH, AGED 59 YEARS, R/AT NO.5, DOCTORS QUARTERS, MEGGAN HOS- PITAL COMPOUND, KUVEMPU RD SHIMOGA 577 201

17. DR.K C SHEKHARAPPA ASSISTANT PROFESSOR, DEPARTMENT OF GENEARL MEDICINE, SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O LATE K CHANNAPPA, AGED 57 YEARS, R/AT NO.74, 2ND MAIN B BLOCK, GOPALAGOWD EXTN., NEAR INCOME TAX OFFICE SHIMOGA 577 205

18. DR. RAMESH S ASSISTANT PROFESSOR, DEPARTMENT OF E.N.T. SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O SANNAPPA, AGED 46 YEARS R/AT C-19, C-1 11TH CROSS, C BLOCK GOPA- LGOWDA BADAVANE, SHIMOGA 577 205

19. DR.A. MADHUSUDHAN ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, SHIMOGA INSTITUTE OF MEDICAL SCIENCE(SIMS) SHIMOGA 577 201 S/O H S ANANTHARAMAIAH,AGED 51 YEARS, R/AT NO.6, DOCTORS QUARTERS, MEGGAN HOS- PITAL COMPOUND, KUVEMPU RD SHIVAMOGA 577 201

20. DR R MANJUNATHASWAMY ASSISTANT PROFESSOR, DEPARTMENT OF

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PAEDIATRICS,SHIMOGA INSTITUTE OF MEDICAL SCIENCE(SIMS) SHIMOGA 577 201 S/O A D RANGAPPA,AGED 49 YEARS, R/AT MIG-95, KALLAHALLI STAGE II VINOBHANAGAR, SHIVAMOGA 577 205

21. DR RATHNAMMA J ASSISTANT PROFESSOR, DEPARTMENT OF OPTHALMOLOGY, SHIMOGA INSTITUTE OF MEDICAL SCIENCE(SIMS) SHIMOGA 577 201 W/O B S HONKAN, AGED 58 YEARS, R/AT A BLOCK SHARAVATHINAGAR, SHIVAMOGA 577 201

22. DR SWATHI BHAT SENIOR RESIDENT, DEPARTMENT OF O.B.G., SHIMOGA INSTITUTE OF MEDICAL SCIENCE(SIMS) SHIMOGA 577 201 W/O DR.NANDA KISHORE AGED ABOUT 45 YEARS R/AT NO.108, "HONGIRANA", IST MAIN, RAJENDRANAGAR, SHIVAMOGA 577 201

23. DR.CHANDRASHEKHAR T R ASSISTANT PROFESSOR DEPARTMENT OF PSYCHIATRY, B.I.M.S. BELGAUM 590 001, S/ORANGANATHA SHETTY T S, AGED 46 YEARS, R/AT NO.21, SAMPIGE ROAD, VISVESWARAIAHNAGAR BELGAUM 590 001

24. DR GURUDATTA K N ASSISTANT PROFESSOR DEPARTMENT OF ANESTHESIA MGGAN HOSPITAL, SHIVAMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577 201, S/O NAGARAJA RAO K AGED 50 YERAS, R/AT NO.381, "ESHWAVASYA" 3RD CROSS, RAVINDRANAGAR SHIMOGA 577 201

25. DR.RAJESHWARI ADIVEPPA KADKOL ASSISTANT PROFESSOR DEPARTMENT OF OBD, BELGAUM INSTITUTE OF MEDICAL SCIENCES, BELGAUM W/O DR.S H MOTIMATH AGED 55 YEARS,R/AT PLOT 22, AZAM NAGAR WEST, BELGAUM 590 010

26. DR CHAMPA ALLAPPA KOPPAD ASSISTANT PROFESSOR DEPARTMENT OF OBG, BELGAUM INSTITUTE OF MEDICAL SCIENCES, BELGAUM W/O DR ALLAPPA M KOPPAD

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AGED 52 YEARS, R/AT SRI GANESH 633 SECTOR 13, T.V.CENTRE, BELGAUM 590 001

27. DR UMADEVI SHIVAPPA ANGADI ASSISTANT PROFESSOR DEPARTMENT OF ENT, BELGAUM INSTITUTE OF MEDICAL SCIENCES, BELGAUM D/O SRI SHIVAPPA V ANGADI, AGED 49 YERAS, R/AT ANUGRAHA PLOT NO.4, SCHEME 40, HANUMAN NAGAR DOUBLE ROAD, BELGAUM 590 001

28. DR SHAILAJA M HUGAR ASSISTANT PROFESSOR DEPARTMENT OF OPTHALMALOGY, BELGAUM INSTITUTEOF MEDICAL SCIENCES, BELGAUM C/O DR. A S HAGRUGOP AGED 48 YRAS, R/AT PLOT NO.762, SCHEME 40: KALPAVRAKSHA KUVEMPUNAGAR BELGAUM 590 001. ... PETITIONERS

(BY SRI ABHISHEK MALI PATIL FOR M/S. NAIK & NAIK LAW FIRM, ADVS.)

AND: 1. DR RAMAKRISNA

SENIOR SPECIALIST, BOWRING AND LADY CURZON HOSPITALS, SHIVAJINAGAR BANGALORE 560 001, S/O MUDALAGIRI GOWDA AGED 46 YEARS, R/AT PLOT NO.C 30, II CROSS SAMEERAPURA BANGALORE.

2. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF HEALTH AND FAMILY WELFARE VIKASA SOUDHA DR.B R AMBEDKAR VEEDHI BANGALORE 1

3. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF MEDICAL EDUCATION VIKASA SOUDHA DR.B R AMBEDKAR VEEDHI BANGALORE 1

4. ADDITIONAL SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKASA SOUDHA DR.B R AMBEDKAR VEEDHI

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BANGALORE 1

5. THE DIRECTOR OF MEDICAL EDUCATION IN KARNATAKA ANANDA RAO CIRCLE BANGALORE 9

6. THE DIRECTOR OF HEALTH AND FAMILY WELFARE IN KARNATAKA, ANANDA RAO CIRCLE, BANGALORE 9

7. THE DIRECTOR & DEAN BMCRI FORT BANGALORE 560 001

8. THE DIRECTOR & DEAN SHIMOGA INSTITUTE OF MEDICAL SCEINCE (SIMS) SHIVAMOGA 577 201

9. THE DIRECTOR & DEAN BELGAUM INSTITUTE OF MEDICAL SCIENCES (BIMS) BELGAUM ... RESPONDENTS

(BY SRI S V NARASIMHAN FOR R1, SMT. REVATHY ADINATH NARDE, HCGP FOR R-2 TO 6, R-7, R-8 & 9 SERVED)



RECORDS FROM THE RESPONDENTS. QUASH THE IMPUGNED

ORDER DTD 11.4.11 MADE IN APPLICATION NO. 2659/09 VIDE

ANENX-E BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL

(KAT) AT BANGALORE.

IN WRIT PETITION Nos.20111 -20115/2011 & 21397 – 21406/2011: BETWEEN:

1. DR. B N ANANDARAVI

S/O NARASIMHAIAH AGED ABOUT 46 YEARS ASSISTANT PROFESSOR DEPARTMENT OF SURGERY NO.282, 12TH CROSS 4TH MAIN

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2ND STAGE, MYSORE

2. DR S H BELLAD S/O H K BELLAD AGED ABOUT 52 YEARS DEPARTMENT OF ORTHOPEDICS NO.3553, 20TH MAIN VIJAYANAGAR II STAGE MYSORE

3. DR K S BALASUBRAHMANYA S/O LATE K V SRINIVASA MURTHY AGED ABOUT 53 YEARS ASSISTANT PROFESSOR OF SURGERY NO.3253, 7TH MAIN, 2ND CROSS DATTAGALLY II STAGE MYSORE-22

4. DR S CHANDRASHEKAR S/O SUBRAMANYA S C AGED ABOUT 43 YEARS NO.60, "HAMSADHWANI" SANMARGA, SIHRTHANAGAR 2ND STAGE MYSORE

5. DR GAYATHRI M N S/O NANJUNDAIAH AGED ABOUT 43 YEARS ASSISTANT PROFESSOR OF PATHOLOGY MMCRI, MYOSRE C/O V SIDDAIAH MELLAHALLI, HAROHALLI POST MYSORE TALUK

6. DR KRISHNA PRASAD S/O RAJU AGED ABOUT 55 YEARS ASSISTANT PROFESSOR PULMONARY MEDICINE NO.479, GIRIDHARASHENI LAYOUT ALANAHALLI POST MYSORE -570028

7. DR MADHU B S S/O B K SHIVALINGAIAH AGED ABOUT 44 YEARS NO.18, 5TH MAIN, 8TH CROSS SARASWATHIPURAM MYSORE – 570 009.

18

8. DR P S MARADESHA S/O M SHIVARUDRAPPA AGED ABOUT 50 YEARS ASSISTANT PROFESSOR ENT NO.164, 9TH CROSS, 12TH MAIN SARASWATHIPURAM MYSORE

9. DR PRAKASH H S S/O H D SHIVALINGAIAH AGED ABOUT 39 YEARS ASSISTANT PROFESSOR SURGERY NO.12, MMC DOCTORS QUARTERS J L B CROSS ROAD MYSORE-570005

10. DR RAJENDRA KUMAR S/O LATE GORAVIAH AGED ABOUT 46 YEARS ASSISTANT PROFESSOR, DEPARTMENT OF PEDIATRICS, NO.77, DAYA MARGA SIDDARTHA NAGAR MYSORE-570011

11. DR RAVI N S/O NARASIMHAIAH V AGED ABOUT 44 YEARS ASSISTANT PROFESSOR DEPARTMENT OF FORENSIC MEDICINE NO.5874, SHRISHAILA, 24TH MAIN, 2ND STAGE VIJAYANAGAR MYSORE-570017

12. DR SUBHASH C S/O D CHANDRASHEKAR AGED ABOUT 40 YEARS ASSISTANT PROFESSOR OF ENT NO.1190, 2ND CROSS, GANAE MARGA G & H BLOCK MYSORE

13. DR SUNIL KUMAR P C S/O P N CHANDRASHEKAR AGED ABOUT 40 YEARS ASSISTANT PROFESSOR IN ORTHOPEDICS NO.98, F 1ST MAIN, VIVEKANANDA LAYOUT MYSORE-570023

14. DR B C VIJAYALAKSHMI W./O DR M K NAGARAJA AGED ABOUT 44 YEARS

19

ASSISTANT PROFESSOR OF ANESTHESIOLOGY NO.85, BENAKA, V L LAYOUT OPP MILK DAIRY MYSORE-570011

15. DR K MAMATHA W/O DR S C SURESHA AGED ABOUT 48 YEARS ASSISTANT PROFESSOR OF OBG NO.200, 7TH CROSS, II MAIN K C NAGARA MYSORE ... PETITIONERS

(BY SRI B S VIJAYALAKSHMI & K.C. SHANTHA KUMAR, ADV.)


REP BY THE SECRETARY TO THE GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKASA SOUDHA BANGALORE-560001

2. DR RAMAKRISHNA S/O MOODALAGIRI GOWDA AGED ABOUT 48 YEARS R/O DOOR NO.C30, II CROSS, SAMRERAPURA BANGALORE-560018 (SERVING AS A SENIOR SPECIALIST AT THE BOWRING AND LADY CURZON HOSPITALS) SHIVAJINAGAR BANGALORE …RESPONDENTS

(BY SMT. REVATHY ADINATH NARDE, HCGP FOR R-1 SRI S V NARASIMHAN FOR R2)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES

226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO

CALL FOR THE RECORDS RELATING TO THE IMPUGNED

ORDER DT 11.4.11 VIDE ANN-A PASSED BY THE HON'BLE

KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN

APPLICATON NO.2659/09 FROM THE SAID TRIBUNAL, PERUSE

THE SAME & DECLARE THE ENTIRE PROCEEDINGS

CULMINATING THE SAID ORDER AS A NON-EST.

20


BETWEEN:

1. DR T KEMPARAJU S/O LATE THAMME GOWDA

AGED 53 YEARS, R/A NO. 20, II CROSS, 515, CWS COLONY, NEW THIPPASANDRA, HAL III STAGE, BANGALORE-75

2. DR. CHIKKA NARASAREDDY S/O SANJEEVAIAH AGED 51 YEARS, WORKING AS ASST.PROFESSOR OF PEDIATRICS, R/A NO. SFS-B-2, NO. 54, 7TH B CROSS, NEAR SHOPPING COMPLEX, YELAHANKA NEW TOWN, BANGALORE-64

3. DR. DIWAKAR T N S/O LATE G H NARASIMHAMURTHY AGED 42 YEARS, WORKING AS ASST.PROFESSOR OF MEDICINES, R/A NO. 33, "HARI PRIYA", 6TH CROSS, "A" SECTOR, AMRUTHNAGAR, SAHAKARINAGAR POST, BANGALORE-92

4. DR. K GOPALAKRISHNA S/O GIRI GOWDA AGED 46 YEARS, WORKING AS ASST.PROFESSOR OF ORTHOPEDICS FLATNO. 106, I DEAL APARTMENT, 16TH CROSS, IDEAL HOME TOWN, RAJESHWARINAGAR, BANGALORE-98

5. DR. GAYATHRI DEVI C W/O DR. M NARAYANA SWAMY AGED 46 YEARS, R/A NO. 12/2, "MATHRU KRUPA" III CROSS, KAMALA NEHRU EXTENSION, YESHWANTHPUR BANGALORE-22

6. R. BHARATHI N W/O M D SHASHIDHAR AGED 48 YEARS, DEPT. OF OPTHOMOLOGY, R/A NO. 29, A.S.I CROSS, II PHASE, IV BLOCK, BANASHANKARI II STAGE, BANGALORE-85 ... PETITIONERS

(BY SRI J PRASHANTH, ADV.)

21

AND: 1. DR A RAMAKRISHNA S/O MUDALAGIRI GOWDA

AGED 46 YEARS, R/A NO. C-30, II CROSS, SAMEERAPURAM BANGALORE-18

2. THE STATE OF KARNATAKA REP. BY ITS SECY., TO GOVT., HEALTH AND FAMILY WELFARE DEPT. (MEDICAL EDUCATION), VIKAS SOUDHA, BANGALORE-01 ... RESPONDENTS

(BY SRI S V NARASIMHAN, ADV. FOR R1 SMT REVATHY ADINATH NARDE, HCGP FOR R-2)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES

226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO

QUASH THE ORDER DT 11.4.11 PASSED IN APPLICATION

NO.2659/09 VIDE ANN-A BY THE HON'BLE KARNATAKA

ADMINISTRATIVE TRIBUNAL.

IN WRIT PETITION Nos.20116 - 20120/2011:

BETWEEN:

1. DR. SURENDRAN K.A.K.,

AGED 47 YEARS, S/O LATE A. KUMARASWAMY ASSISTANT PROFESSOR OF SILK & STD, NO.49, 3RD CROSS, F BLOCK, J.P NAGAR MYSORE

2. DR. BANGARU H AGED ABOUT 45 YEARS, S/O LATE H. HANUMAIAH, ASSISTANT PROFESSOR OF SKIN & STD NO.386, 15TH MAIN, NEETHI MORGA, SIDARTHA LAYOUT, MYSORE

3. DR. M.M BASAVARAJU AGED ABOUT 47 YEARS, S/O M.S. MUDDAPPA ASSISTANT PROFESSOR OF MEDICINE NO.16, 24TH BLOCK, MANASI NAGAR, HANCHYA SATAGALLI LAYOUT, MYSORE

22

3. DR. M.L RAMACHANDRA AGED ABOUT 47 YEARS, S/O M.S. LINGAIAH ASSISTANT PROFESSOR, DEPARTMENT OF SURGERY NO.669, 1ST FLOOR, 13TH MAIN 4TH STAGE, T.K. LAYOUT, MYSORE ... PETITIONERS

(BY SRI K.C. SHANTHAKUMAR, ADV.)


REPRESENTED BY THE SECRETARY TO THE GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKASA SOUDHA, BANGALORE – 560 001.

2. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF MEDICAL EDUCATION, VIKASA SOUDHA, BANGALORE – 560 001.

3. THE ADDITIONAL SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKASA SOUDHA, BANGALORE – 560 001.

4. THE COMMISSIONER DEPARTMENT OF HEALTH & FAMILY WELFARE SERVICES, ANANDRAO CIRCLE BANGALORE – 560 009

5. THE DIRECTOR OF MEDICAL EDUCATION IN KARNATAKA ANANDARAO CIRCLE, BANGALORE – 560 009.

6. THE DEAN/DIRECTOR MYSORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, MYSORE

7. DR. SRI R.P. SAINATH AGED ABOUT 57 YEARS S/O. LATE SRI R.N. PAMPARAO WORKING AS SENIOR SPECIALIST (SENIOR RESIDENT)

23

DEPARTMENT OF PULMONARY MEDICINE MYSORE MEDICAL COLLEGE & RESEARCH CENTRE MYSORE.

8. DR. SRI V LAKSHMINARAYANA

AGED ABOUT 57 YEARS S/O. SRI VENKATARAMAIAH WORKING AS SENIOR SPECIALIST (RESIDENT) DEPARTMENT OF SKIN & STD MYSORE MEDICAL COLLEGE & RESEARCH CENTRE, MYSORE.

9. DR. SRI B.S. MANJUNATH

AGED ABOUT 45 YEARS S/O. SRI B.S. SHIVAPPA WORKING AS SENIOR SPECIALIST (BLOOD BANK OFFICER) K R HOSPITAL, MYSORE.

10. DR. SRI. Y.M. SHIVAKUMAR AGED ABOUT 47 YEARS S/O. SRI. MALLEGOWDA, VENUGOPAL SENIOR SPECIALIST (RESIDENT) DEPARTMENT OF SKIN & STC MYSORE MEDICAL COLLEGE & RESEARCH CENTRE MYSORE. 11. DR.SRI K. MOHAN AGED ABOUT 42 YEARS S/O. LATE SRI G. KARIYAPPA RESIDENT MYSORE MEDICAL COLLEGE & RESEARCH CENTRE MYSORE.

... RESPONDENTS (BY SMT. REVATHY ADINATH NARDE, HCGP FOR R-1 TO 5, R-6 SERVED SRI P RAJASHEKAR, ADV. FOR R7-R11)

THESE WPs ARE FILED UNDER ARTICLES 226 AND 227


RECORDS RELATING TO THE IMPUGNED ORDER DT.23.2.11

VIDE ANN-A PASSED BY THE HON'BLE KARNATAKA

ADMINISTRATIVE TRIBUNAL, BANGALORE IN APPLICATION

NOS.3261-3265/10 FROM THE SAID TRIBUNAL, PERUSE THE

SAME & DECLARE THE ENTIRE PROCEEDINGS CULMINATING

IN THE SAID ORDER AS A NON-EST.

24

THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, N. KUMAR, J., MADE THE FOLLOWING: -

COMMON ORDER

Writ Petition Nos.12029-12037/2011 and Writ

Petition Nos.20116-20120/2011 are preferred by the

parties to the order passed by the Tribunal, whose

absorption in the Medical Education Department was

set aside by the Tribunal by a common order dated

21.02.2011.

2. All the other writ petitioners have preferred writ

petitions challenging the orders passed by the Tribunal

on the ground that they were not parties before the

Tribunal and the order passed by the Tribunal affects

their interests. As the question involved in all these

batch of writ petitions is one and the same, they are

taken up for consideration together and disposed of by

this common order.

3. For the purpose of convenience the parties are

referred to as they are referred to in the original

applications before the Tribunal.

25

4. The applicants were all recruited in the

Department of Health and Family Welfare Services.

They possessed not only MBBS degree but also Masters

Degree in various other faculties. They have been

working for more than 20 years at various places in

various capacities. They are working in teaching

hospitals attached to Bangalore Medical College and

Research Institute (For short ‘the BMCRI’). The

Principal of BMCRI issued a circular dated 28.6.2006 as

per Annexure-A requiring the General duty Doctors,

Specialists / Senior Specialists etc., to exercise their

option for being absorbed in the Medical Education

Department by enclosing the certificates mentioned

therein. In terms of the said circular on 3.7.2008 the

applicant along with other senior Specialists submitted

joint representation to the 1st respondent through

proper channel exercising their option for change of

cadre (Absorption) for the reasons stated therein in the

Medical Education Department. They have stated they

have been working for more than 13 to 16 years as

Senior Specialists in different hospitals and the

26

hospitals are attached to the medical college and they

possess Post-graduation in the respective subjects.

They also brought to the notice of the authorities that in

many of the institutions the Doctors working in Medical

Education Department were absorbed for teaching cadre

wherein no criteria has been fixed, roaster system has

not been followed, no opportunity is given to eligible

interested Doctors working in Health Department with

equal qualification and working in the same hospitals.

A committee was constituted by the 1st respondent –

State of Karnataka, headed by Additional Chief

Secretary and Principal Secretary, Department of

Medical Education for the purpose of consideration of

absorption of Special Doctors belonging to Health and

Family Welfare Department to the Medical Education

Department. The Committee in its meeting held on

31.06.2007 formulated certain guidelines in the matter

of absorption. The Committee observed that respondent

Nos.1, 3 and 5 i.e, the State of Karnataka, Additional

Secretary to the Government, Health and Family

Welfare Department and the Director of Health and

27

Family Welfare Services have to prescribe the criteria for

selection and absorption of such Medical Officers while

deputing / absorbing in the Department of Medical

Education. The norms mentioned and stipulated by the

committee are to be adhered to before taking any action

in the matter of absorption of Doctors. Until a report is

submitted under the Chairmanship of Secretary,

Medical Education Department and appropriate

government orders are issued, the

deputation/absorption of Senior Specialists of Health

Department were not to be considered. The applicants,

who were awaiting for absorption in the Medical

Education Department got an endorsement dated

1.10.2008, wherein the 5th respondent rejected their

request stating that the services of the applicants is

required in public interest as there is shortage of

Specialists Doctors in the Department. However, on

28.2.2009, 144 doctors working in 6 medical colleges

were absorbed. The grievance of the applicants is that

all those persons, who were all, absorbed were all

juniors to them as per the seniority list. The norms

28

prescribed by the committee in its meeting held on

31.10.2007 is not followed. The condition precedent for

absorption is that the Doctor to be absorbed should be

either a Specialist or a Doctor should be on deputation

working in the hospital attached to the medical college.

Some of the doctors who are absorbed were at no point

of time, much less, on official duty in the Medical

College. Though the applicants are also similarly placed

more experienced more qualified their request is

rejected and persons, who are much juniors to them

and did not possess the requisite qualification, have

been absorbed. Thus equality clause enshrined under

Articles 14 and 16 of the Constitution of India has been

violated by the authorities. The applicants obtained

the note sheets relating to absorption of

Doctors/Specialists in BMCRI and other Medial Colleges

of the District through Right to Information Act, 2005.

The note sheet dated 13.11.2008 discloses that the 1st

respondent had declined to give consent for absorption

of 190 Specialists Doctors in Medical Education

Department for the reasons stated at paragraphs 53 to

29

60 of the said note sheets. The Department of health

and Family Welfare Services was not in favour of

absorbing the Doctors working as teaching Doctors in

the Department of Medical Education. The 3rd

respondent - Additional Secretary to the Government

Health and Family Welfare Department in the draft

Cabinet note dated 18.11.2008 had solicited approval of

Cabinet to absorb 190 Specialists / Doctors of Health

and Family Welfare Department working as teaching

staff in the Health and Family Welfare Department in

the Medical Colleges under the administrative control of

the Medical Education Department in the services of the

respective autonomous institutions. This note was

nothing but a favour to a class of persons in violation of

opinion expressed by the committee, which met on

31.01.2007. Therefore, they contended that it is

nothing but a colourable exercise of power to favour a

few Doctors ignoring the seniority and other criteria in

the matter of absorption adopted by the committee.

Thus denying equal opportunity to the applicants.

30

5. The Department of Health and Family Welfare

Services was bifurcated into two Departments viz.,

Health and Family Welfare Services and Medical

Education Department. The Department of Medical

Education issued an order giving autonomous status to

the Medical Institutions situated at Bidar, Raichur and

Shimoga in the year 2007-2008. This was done on the

same principles as was done earlier in giving the

autonomous status to the BMCRI, Mysore Medical

College, KIMS Hubli and VIM'S, Bellary. In view of the

declaration of the said institutions as the separate

autonomous bodies, there was dearth of teaching staff

in the Institution. In order to comply with the guidelines

of Medical Council of India, by an order dated

28.02.2009, the government absorbed 144 doctors, who

were working in six autonomous institutions. The

applicants are not at all discharging the duties as

teaching staff of the said autonomous institutions,

though they are working in the autonomous

institutions. The Health and Family Welfare

Department had already issued endorsement

31

dated 1.10.2008 rejecting the claims of the applicants

for absorption in the respondent Department on the

ground that their services are very much required in the

5th respondent Department. Lot of essential expert

Doctors are needed in the 5th respondent – Department.

The said endorsement dated 1.10.2008 has nothing to

do with the order of absorption of 144 doctors which is

issued on 28.2.2009. Both the issues are totally

different and not connected with each other. When the

six institutions referred to above were declared as

autonomous body, the district hospitals in the

respective places were treated as Teaching Hospitals

attached to the institutions, which were declared as

autonomous bodies. In these six places the district

hospitals had already had the Specialists Doctors. But

consequent on conversion of Hospitals as teaching

hospitals Doctors/Specialists of Health and Family

Welfare Department were shown as teaching faculty

depending on the qualification prescribed by the

Medical Council of India, at the time of annual

inspection to meet the shortage of faculty. It

32

has become necessary to absorb the Specialists of

Health and Family Welfare Department, who were

working in the teaching Hospital in the respective

Medical Colleges. The list of 190 Specialists / Doctors

of Health and Family Welfare Department working in

the teaching hospitals in the respective Medical Colleges

was submitted for approval of the Cabinet. The Cabinet

in its meeting dated 4.12.2008 and 8.12.2009 agreed for

absorption of 144 doctors of Health and Family Welfare

Department in the respective Medical Colleges, where

these specialists were working. Pursuant to this

decision of the Cabinet, Government Order dated

28.2.2009 is issued.

6. The committee constituted to formulate the

guidelines in the matter of absorption/deputation has

taken a decision not to consider absorption of

Specialists / Senior Specialists belonging to Health and

Family Welfare Department in Medical Education

Department. But it was absolutely necessary to

consider the absorption of eligible

33

Specialists / Senior Specialists working in the teaching

hospitals of Medical Colleges to save the colleges from

de-recognition from Medical Council of India due to

deficiency of required teaching faculty. The order dated

28.2.2009 was issued in the larger interest of Medical

Institution of the State which was facing acute shortage

of teaching faculty and OOD Lecturers / Specialists.

The matter was taken to the Cabinet, especially to turn

down the serious objections raised by the Health and

Family Welfare Department against the absorption. The

health and Family Welfare Department declined to give

consent for absorption of 190 specialists in Medical

Education Department. This matter was taken up

before the Cabinet for taking appropriate decision. The

Cabinet after examining the matter in detail has

accorded its approval in the meeting held on 18.2.2009

for absorption of 144 Specialists / Sr. Specialists /

General Duty Doctors etc., who were working in the

teaching hospital attached to medical colleges. This

exercise was undertaken to meet the deficiency of

teaching staff in the Medical Colleges which were facing

34

difficulties consequent on Medical Council of India

threatening to de-recognize the Medical Colleges. This

decision was taken in public interest to protect the

hospitals, which were facing the wrath of Medical

Council of India due to deficiency in the teaching staff.

There were no eligible candidates with required

qualification who fulfilled the guidelines prescribed by

the Medical Council of India to fill up the posts for

conducting walk in interview. 144 specialists with

required qualification were absorbed as against vacant

posts available in the respective medical colleges and

the Doctors working in teaching hospitals were alone

considered for this absorption. As far as possible the

seniority of the Doctors is taken care of for absorption.

There is no patronage and favouritism in the process of

absorption, due care is taken in selecting the doctors

who possessed the required qualification.

7. It is not in dispute that there are no special rules

made for the purpose of absorption of doctors working

on deputation in the Department of Medical Education.

35

The absorption is made purely on the basis of the

Cabinet decision. It is reflected in the order dated

28.2.2009 that when the said absorption was

challenged before the Tribunal, the Tribunal directed

the State to furnish the following particulars :

(a) Under What rules the impugned order is

issued;

(b) Rules governing the autonomous body BMRC

especially C & R Rules;

(c) Correspondence of Medical Council of India

regarding urgency of absorption.

8. In spite of sufficient opportunities being given the

respondents did not answer those queries. However, at

the time of argument the learned Government Advocate

submitted that there are no special rules framed for

absorption / deputation of the Doctors / Specialists

from the Department of Health and Family Welfare

Department. It is on the basis of the Cabinet note

alone the impugned order dated 28.2.2009 is issued

absorbing 144 doctors to those autonomous bodies

subsequently formed at Shimoga, Hassan, Mandya,

Bidar, Raichur and Belgaum.

36

9. After carefully considering the rival contentions,

looking into the proceedings of the committee, the

government orders, the opinion of the Finance

Department, Health and Family Welfare Department

and after taking note of the fact that the applicants

were seniors in the order of seniority list, which was

produced and which was not in dispute, the Tribunal

was of the view that the Cabinet note also made it clear

that absorption should be on the basis of seniority.

However, overlooking the seniority some persons who

were never on deputation working in teaching colleges

have been absorbed taking into consideration the

influence of certain bigwigs. It is arbitrary. Equal

opportunity has been denied to the applicants. It is

high time rules are framed for the purpose of

absorption of Doctors / Specialists who are attached to

the Medical Institutions and therefore, they set aside

the impugned orders and directed the authorities to

consider the case of the applicants for absorption in

accordance with the decision taken by the Cabinet

Committee held on 14.8.2008, especially based on Note

37

No.8 of the official records by including the names of

the applicants in the absorption order dated 28.2.2009.

Aggrieved by the said order, the present writ petitions

are filed.

10. Following the aforesaid judgment, other batch of

applications were also allowed for the same reasons,

which are the subject matter of the other batch of writ

petitions.

11. Learned counsel appearing for the petitioners

contend that the qualification possessed by the

applicants and the respondents is not one and the

same. When the respondents are absorbed in the post

not meant for the applicants, applicants have no locus

standi to challenge their absorption. Secondly it was

contended when 144 doctors were absorbed all of them

were not made parties to the proceedings and therefore,

the applications filed suffers from non-joinder of

necessary parties. The effect of setting aside the order

dated 28.2.2009 adversely affects those persons, who

are not parties before the Tribunal. Further it was

38

contended that all those persons, who are absorbed had

possessed the requisite qualification. They are eligible

to be absorbed. Their absorption is made in public

interest as otherwise, those medical colleges would lose

their recognition. After absorption, all these

respondents are functioning in those respective colleges.

Under these circumstances, the Tribunal committed a

serious error in setting aside the order of absorption

insofar as the respondents are concerned and also

issuing a direction to consider the case of the applicants

along with the respondents. Petitioners in other writ

petitions are challenging the aforesaid order on the

ground the said order affects their interests. Admittedly

they were not made parties before the Tribunal.

Therefore, the said order violates the principles of

natural justice. On that short ground according to

them the said order requires to be set aside.

12. Per contra, learned counsel for the applicants

submits that the material on record discloses that all

the applicants possessed the requisite qualification and

39

they are eligible to be absorbed. All of them are working

in teaching hospitals. They are interested in teaching.

They made a request and filed their applications for

absorption in pursuance of the notification as per

annexure A-3. Their request was turned down on the

ground of public interest, but thereafter, some of the

persons who are juniors to them but did not possess the

requisite qualification were absorbed. This action was

arbitrary on the face of it and the Tribunal rightly set

aside the absorption orders. They were challenging the

action of absorption on the ground it is arbitrary. The

question of impleading 144 doctors, who were absorbed

under the said government order would not arise. At

any rate, the persons, who have approached this Court,

have no locus standi, as this Court has no jurisdiction

to entertain the writ petitions in its original jurisdiction

as those petitioners have to approach the very same

Tribunal.

13. In the light of the aforesaid facts and the rival

contentions the point that arise for our consideration is

40

a) Whether the order of absorption dated

28.02.2009 is violative of Articles 14 and

16 of the Constitution of India and its

striking down by the Tribunal is justified ?

b) In the facts of this case what is the

appropriate order to be passed?

14. The facts are not in dispute. The Department of

Health and Family Welfare Services is bifurcated into

two Departments viz., Health and Family Welfare

Services and Medical Education Department. The

Department of Medical Education has issued an order

giving autonomous status to the Medical Institutions

situated at Bangalore, Mysore, Mandya, Bellary, Hubli,

Raichur, Shimoga and Hassan. The applicants and the

respondents were all recruited by the Department of

Health and Family Welfare. They possessed the basic

degree in medicine and they have also acquired masters

while in service. All the Government hospitals situated

in the aforesaid districts are attached to respective

Medical Colleges. Those hospitals are called as teaching

hospitals. The Medical Council of India has prescribed

41

the teaching pattern in these Medical Colleges and

unless these Medical Colleges satisfy the said

requirement the degrees issued by them will not be

recognized. There is dearth of duly qualified Doctors in

these teaching hospitals. In spite of the government

attempting to recruit the doctors by walk-in-interviews

suitable candidates were not found. Therefore, the

Department Of Health and Family Welfare in order to

save the recognition to these Medical Colleges has

deputed the duly qualified doctors to the teaching

hospitals so that they could do the teaching and they

can also serve the public in the hospitals. They

prepared the list of 190 Doctors / Specialists working in

teaching hospitals in the respective Medical Colleges

submitted for approval of the Cabinet, for their

absorption in the Medical Colleges. There is stiff

opposition to this proposal from the Department of

Health and Family Welfare, apart from the Finance

Department. A Committee was constituted which was

presided over by Additional Chief Secretary to consider

such request. The Committee in its meeting held on

42

31.10.2007 resolved that certain guidelines have to be

formulated, in the matter of absorption of Doctors /

Specialists certain criteria is to be prescribed for

selection and absorption of the Medical Officers while

deputing / absorbing in the Department of Medical

Education. Once such criteria is fixed, it has to be

adhered to, before taking any action in the matter of

absorption of Doctors. They made it clear that only

after a report is submitted under the chairmanship of

Medical Education Department, appropriate

Government orders are to be issued. The deputation /

absorption of Sr. Specialists of Health and Family

Welfare Department was not be considered. In fact

initially when the request was made for absorption of

190 doctors, as aforesaid, the State declined to give its

consent. As is clear from the Note sheet dated

13.11.2008, the Finance Department was of the view in

the absence of clarity on the terms and conditions and

the quantum of finance required, the Finance

Department cannot really give any opinion. It is

therefore, necessary that the Chief Secretary had to

43

conduct a meeting to sort out these issues after which

the Department of Medical Education can formulate its

proposals to be placed before the cabinet. Therefore, the

medical education department was informed to conduct

a meeting to sort out the issues involved. When the

said matter was placed before the Chief Secretary, he

was of the view that a small committee is to be

constituted within a week or 15 days and they can

submit a report and the same may be placed before the

cabinet for appropriate orders. When the matter was

placed before the cabinet, the cabinet approved and

directed that they should have consultation with the

Finance Department and thereafter, appropriate orders

could be passed. Subsequently DPAR gave its opinion

stipulating the terms and conditions, which are to be

fulfilled before such absorption, is effected. Thereafter,

when the matter was placed before the Finance

Department a note was prepared. The Note No.40 sets

out that the proposal of the Administrative Department

relates to absorption of services of doctors of the

Department of Health and Family Welfare, who are

44

working on OOD basis as teaching staff in the various

autonomous medical institutions coming under the

Department of Medical Education, in view of the

substantial difference in the scales of pay of the

professionals etc., of Medical Education Department

and the specialists in the Health and Family Welfare

Department, absorption of officials as proposed is likely

to be viewed as an action of promotion or promotion to a

higher cadre, since such absorption is made without

regarding the seniority. The specialists, who remained

in the Health and Family Welfare Department made

demand for similar benefits particularly, for absorption.

Thereafter, it was decided that for such absorption the

rules are to be framed for in service recruitment of

qualified specialists and that all the qualified persons in

Health and Family Welfare Department are given

opportunity to offer themselves for selection to the posts

in the Medical Education Department on the principle of

merit-cum reservation. Thus, the absorption would be

based either on the principles of seniority cum merit or

merit cum reservation.

45

15. After obtaining opinion of the Finance Department

the matter was placed before the Chief Secretary to the

Government. His opinion is as under;

Sub: Absorption of Doctors of HFW into ME Dept. - reg.

8) DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄÄ ¸ÀzÀj ¥Àæ¸ÁÛªÀ£ÉUÉ wÃªÀæªÁV «gÉÆÃ¢ü¹gÀÄvÁÛgÉ. DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ°è ºÁUÀÆ ªÉÊzÀåQÃAiÀÄ ²PÀët E¯ÁSÉAiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛgÀÄªÀ ªÉÊzÀågÀÄUÀ¼À ªÀÄzsÉå EgÀÄªÀ ªÉÃvÀ£À vÁgÀvÀªÀÄåªÀ£ÉßÃ PÁgÀtªÀ£ÁßVlÄÖPÉÆAqÀÄ FUÁUÀ¯ÉÃ DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ ªÉÊzÀågÀÄ ªÀÄÄµÀÌgÀ ºÀÆqÀÄªÀÅzÁV ÉzÀjPÉ ºÁQgÀÄvÁÛgÉ. MAzÀÄ ªÉÃ¼É DaiÀiÁ D¸ÀàvÉæAiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛgÀÄªÀ vÀdÕ ªÉÊzÀågÀÄUÀ¼À£ÀÄß ªÉÊzÀåQÃAiÀÄ ²PÀët (DAiÀiÁ ªÉÊzÀåQÃAiÀÄ ªÀÄºÁ«zÁå®AiÀÄUÀ¼À°è) «°Ã£ÀUÉÆ½¸À ÉÃPÁzÀ°è ºÁ° DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ°è PÉ® À ¤ªÀð»¸ÀÄwÛgÀÄªÀ ¸ÉàµÀ°¸ïÖ ªÉöÊzÀågÀÄUÀ¼À eÉÃµÀ×vÉAiÀÄ£ÀÄß ¥ÀjUÀtô¸ÀÄªÀ CªÀ±ÀåPÀvÉ EgÀÄvÀÛzÉ. F jÃw eÉÃµÀ×vÉAiÀÄ£ÀÄß ¥ÀjUÀtô¸ÀzÉÃ «°Ã£ÀUÉÆ½¹zÀ°è EzÀjAzÀ ªÀåwjPÀÛ ¥ÀjuÁªÀÄ GAmÁUÀÄªÀ J¯Áè ¸ÁzÀsåvÉUÀ¼ÀÄ EgÀÄvÀÛªÉ. DzÀÝjAzÀ DyðPÀ E¯ÁSÉAiÀÄ C©ü¥ÁæAiÀÄzÀAvÉ «°Ã£ÀPÁÌV ¤UÀ¢¥Àr¸À§ºÀÄzÁzÀ ¤§AzÀsUÀ¼ÀÄ ºÁUÀÆ µÀgÀvÀÄÛUÀ¼À£ÀÄß CAwªÀÄUÉÆ½¸À®Ä ªÀiÁ£Àå ªÉöÊzÀåQÃAiÀÄ ²PÀàt ¸ÀaªÀgÀÄ, DgÀÉÆÃUåÀ ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt ¸ÀaªÀgÀÄ ºÁUÀÆ UÀÈºÀ ¸ÀaªÀgÀÄ (UÀÊºÀ ÀaªÀgÀÄ ¸ÀévÀB ªÉÊzÀågÁVgÀÄªÀÅzÀ®èzÉÃ F »AzÉ ªÉÊzÀåQÃAiÀÄ ²PÀët ¸ÀaªÀgÁVzÀÝgÀÄ) UÀ¼À£ÉÆß¼ÀUÉÆAqÀ MAzÀÄ aPÀÌ ¸À«ÄwAiÀÄ£ÀÄß gÀa¸ÀÄªÀÅzÀÄ ¸ÀÆPÀÛªÁVgÀÄvÀÛzÉ. F ¸À«ÄwAiÀÄÄ MAzÀÄ ªÁgÀ CxÀªÁ ºÀ¢£ÉÊzÀÄ ¢£ÀUÀ¼ÉÆ¼ÀUÁV MAzÀÄ ªÀgÀ¢AiÀÄ£ÀÄß ¤ÃqÀÄªÀAvÉ

46

PÉÆÃj D ªÀgÀ¢AiÀÄ DzsÁgÀzÀ ªÉÄÃ¯É ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¸ÀaªÀ ¸ÀA¥ÀÅlzÀ ªÀÄÄAzÉ ªÀÄAr¸À§ºÀÄzÁVgÀÄvÉÛzÉ.

¸À»/-

(¸ÀÄzsÁPÀgï gÁªï) ¸ÀPÁðgÀzÀ ªÀÄÄRå PÁAiÀÄðzÀ²ð.

16. When the said note was placed before the Chief

Minister, he directed to place the same before the

Cabinet for discussion. Accordingly, note was prepared

and placed before the cabinet.

17. After considering the said note the Cabinet

approved as under:

“22) ÀaªÀ ¸ÀA¥ÀÅl n¥ÀàtôAiÀÄ PÀArPÉ 8 gÀ°è M¼ÀUÉÆArgÀÄªÀ ¥Àæ¸ÁÛªÀ£ÉUÀ¼À£ÀÄß ¸ÀaªÀ ¸ÀA¥ÀÅl C£ÀÄªÉÆÃ¢¹vÀÄ. (underline supplied)

23) ªÀÄÄAzÀÄªÀjzÀÄ, «°Ã£ÀUÉÆAqÀ ªÉÊzÀågÀÄUÀ¼À ¸ÉÃªÁ µÀgÀvÀÄÛ ºÁUÀÆ ªÉÃvÀ£À ¤UÀ¢¥Àr¸ÀÄªÀ «µÀAiÀÄUÀ¼À°è ¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉ (¸ÉÃªÁ ¤AiÀÄªÀÄUÀ¼ÀÄ) ºÁUÀÆ DyðPÀ E¯ÁSÉUÀ¼ÉÆA¢UÉ ¸ÀªÀiÁ¯ÉÆÃa¹zÀ £ÀAvÀgÀ ¸ÀÆPÀÛ DzÉÃ±ÀªÀ£ÀÄß ºÉÆgÀr¸À ÉÃPÉAzÀÄ ¸ÀaªÀ ¸ÀA¥ÀÅlªÀÅ E¯ÁSÉUÉ ¸ÀÆa¹vÀÄ.”

18. Thereafter, DPAR gave their opinion as follows;

30) ¸ÀASÉåÃ ¹D¸ÀÄE 524 ÉÃ¤J 2008 ¹D¸ÀÄE(¸ÉÃªÁ ¤AiÀÄªÀÄUÀ¼ÀÄ-J)

47

DPÀÄPÀ 395 JAJA¹ 2007( sÁ-1) ¢£ÁAPÀ 22.12.2008.

PÀ£ÁðlPÀ ¹«¯ï ¸ÉÃªÉUÀ¼ÀÄ (¸ÁªÀiÁ£Àå £ÉÃªÀÄPÁw)

¤AiÀÄªÀÄUÀ¼ÀÄ, 1977gÀ ¤AiÀÄªÀÄ 16(J) (2) gÀ°è ¸ÀPÁðgÀ, ¸ÀªÀiÁ£À

zÀeÉðAiÀÄ ºÀÄzÉÝUÀ½UÉ PÁgÀtUÀ¼À£ÀÄß °TvÀ ªÀÄÆ®PÀ zÁR°¹

MAzÀÄ E¯ÁSÉAiÀÄ CxÀªÁ ¸ÉÃªÉAiÀÄ £ËPÀgÀgÀ£ÀÄß E£ÉÆßAzÀÄ

E¯ÁSÉ CxÀªÁ ¸ÉÃªÉUÉ ªÀUÁðªÀuÉ ªÀÄÆ®PÀ £ÉÃ«Ä¸À®Ä D¸ÀàzÀ

PÀ°à¸À¯ÁVzÉ.

31) ªÉÄÃ®ÌAqÀ ¤AiÀÄªÀÄzÀ£ÀéAiÀÄ gÁdå ¹«¯ï ¸ÉÃªÉUÀ¼À°è£À

ºÀÄzÉÝUÀ¼À £ËPÀgÀgÀ£ÀÄß ¸ÁéAiÀÄvÀÛ ¸ÀA¸ÉÜUÀ¼À°è£À ºÀÄzÉÝUÀ½UÉ ªÀUÁðªÀuÉ

ªÀÄÄSÁAvÀgÀ £ÉÃªÀÄPÁw ªÀiÁqÀ®Ä D¸ÀàzÀ EgÀÄªÀÅ¢®è. ¥Àæ¸ÁÛªÀ£ÉUÉ

¸ÀaªÀ ¸ÀA¥ÀÅlªÀÅ ¢£ÁAPÀ 4.12.2008 gÀAzÀÄ C£ÀÄªÉÆAzÀ£É

¤ÃrgÀÄªÀ »£Éß¯ÉAiÀÄ°è F PÉ¼ÀPÀAqÀ CA±ÀUÀ¼À£ÀÄß

¥Àj²Ã°¹PÉÆAqÀÄ ¸ÀÆPÀÛ PÀæªÀÄ vÉUÉzÀÄPÉÆ¼Àî§ºÀÄzÀÄB-

1. DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ 144 ªÀÄA¢

vÀdÕ ªÉÊzÀågÀÄUÀ¼ÀÄ E¯ÁSÉAiÀÄ ªÀÊAzÀ ªÀÄvÀÄÛ £ÉÃªÀÄPÁw ¤AiÀÄªÀÄUÀ¼À

¥ÀæPÁgÀ ¸ÀPÀæªÀÄªÁV £ÉÃªÀÄPÁw ºÉÆA¢gÀ ÉÃPÀÄ.

2. ¸ÀzÀj ªÉÊzÀågÀÄUÀ¼ÀÄ ¥Àj«ÃPÀëuÁ¢ü/¸ÁÜ£À ¥À£Àß CªÀ¢üAiÀÄ£ÀÄß

vÀÈ¦ÛPÀgÀªÁV ¥ÀÇgÉÊ¹gÀ ÉÃPÀÄ.

3. ¸ÀzÀj ªÉÊzÀågÀÄUÀ¼À «gÀÄzÀÞ E¯ÁSÁ «ZÁgÀuÉ/Qæ«Ä£À¯ï

ªÉÆPÀzÀÝªÉÄ E®è¢gÀÄªÀÅzÀ£ÀÄß RavÀ¥Àr¹PÉÆ¼Àî ÉÃPÀÄ.

48

4. ¸ÀzÀj ªÉÊzÀågÀÄUÀ¼ÀÄ ¸ÁéAiÀÄvÀÛ ¸ÀA¸ÉÜUÀ¼À ¸ÉÃªÉAiÀÄ°è

«°Ã£ÀUÉÆAqÀ°è ªÀÄÄAzÉ CªÀgÀÄ gÁdå ¹«¯ï ¸ÉÃªÉUÀ¼À°è£À

ºÀÄzÉÝUÀ½UÉ ªÁ¥À¸ÀÄì §gÀ®Ä D¸ÀàzÀ EgÀÄªÀÅ¢®è.

5. ¸ÀPÁðj E¯ÁSÉ¬ÄAzÀ ¸ÁéAiÀÄvÀÛ ÀA¸ÉÜUÉ «°Ã£ÀUÉÆ¼Àî®Ä

¸ÀA§A¢ü¹zÀ £ËPÀgÀÄUÀ¼À M¦àUÉAiÀÄ£ÀÄß §gÀªÀtôUÉ ªÀÄÆ®PÀ

¥ÀqÉAiÀÄ ÉÃPÀÄ.

6. ¸ÀzÀj £ËPÀgÀgÀÄ ¸ÀPÁðgÀzÀ°è ¸À°è¹zÀ ¸ÉÃªÉUÉ

¸ÀA§A¢ü¹zÀAvÉ ¸ÀPÁðj DzÉÃ±À ÀASÉå J¥sïr 70 J¸ï Dgï

J¸ï 77 ¢£ÁAPÀ 27.10.1977gÀ ¥ÀæPÁgÀ ¥ÉÇæÃgÁl ¦AZÀtô

¸Ë® Àså zÉÆgÉAiÀÄ ÉÃPÁzÀgÉ ¸ÀzÀj öDzÉÃ±ÀzÀ°è£À J¯Áè

µÀgÀvÀÄÛUÀ¼À£ÀÄß ¥ÀÇgÉÊ¸À ÉÃPÀÄ; F §UÉÎ DyðPÀ E¯ÁSÉAiÉÆA¢UÉ

¸ÀªÀiÁ¯ÉÆÃa¸À ÉÃPÀÄ.

(¸ÀPÁðgÀzÀ PÁAiÀiðzÀ²ðzÀ ¹D¸ÀÄE AiÀÄªÀjAzÀ C£ÀÄªÉÆÃ¢vÀ)

¸À»/-

(zÉÃªÀgÁdÄ) ¸ÀPÁðgÀzÀ C¢üÃ£À PÁAiÀÄðzÀ²ð,

¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉ, (¸ÉÃªÁ ¤AiÀÄªÀÄUÀ¼ÀÄ-1)

19. The Finance Department gave its opinion as

under;

49

“40) The proposal of the administrative department

relates to absorption of the services of the

doctors of the Department of Health and

Family Welfare Services who are working on

OOD basis, as teaching staffs under the

various autonomous Medical institutions

coming under the Department of Medical

Education. In view of the substantial

difference in the scales of pay of

professors/associate professors etc., of

Medical Education and the specialists in the

Health Department, absorption of officers as

proposed is likely to be viewed as a kind of

promotion or appointment to a higher grade.

Since such absorption is made without regard

to seniority, the specialists who remain in the

Health and Family Welfare Department may

demand similar benefits, particularly if some

of them are senior to those now proposed for

absorption.

(Emphasis supplied) 41. The one time absorption just therefore be

offered only to the senior most specialist

qualified for such absorption. Otherwise,

special rules may be framed for “in service”

recruitment of qualified specialists, so that all

the qualified persons in Health and Family

Welfare Department are given an opportunity

50

to offer themselves for selection to the posts in

medical education on the principle of merit

cum reservation. Thus it appears that the

absorption must be based either on the

principle of “Seniority cum Merit” or of “Merit

cum Reservation”.

(Approved by the Principal Secretary

Finance Department)

Sd/- (P.Narayana)

Under Secretary to Government

Finance Department (Services –1) 20. It is clear from the material on record that the

name of 144 Specialists and Senior Specialists, who

were absorbed, was not annexed to the Cabinet note.

The applicants have produced the gradation list, which

is not in dispute. The persons, who are now absorbed,

are very much juniors to the applicants. While

absorbing, seniority has to be taken into consideration

apart from the field in which, they have requisite

qualification/expertisation. They are also expected to

give due weightage to the teaching Doctors, who are

already working in the Institutions. All these three

51

factors are not kept in mind and contrary to these

stipulations, 144 doctors have been absorbed.

Therefore, while absorbing 144 doctors, due weightage

has not been given to the opinion of the Cabinet, DPAR

and also the Finance Department. The State has not

explained the criteria or the basis for selecting these

144 doctors for absorption. All the persons, who are

similarly placed, who possessed the requisite

qualification, who satisfied all other conditions, are

eligible to be considered for absorption. Infact, the

original list contained 190 doctors. The department

wanted to absorb them. Now they have absorbed only

144 persons. Why the remaining persons are not

absorbed, why 144 doctors are preferred against others

is not forthcoming from any other material. It is

unfortunate that inspite of the committee

recommending for framing of rules prescribing criteria

for absorption, no rules are framed. Inspite of the

Finance Department pointing out the difficulty that they

have to face in future, if such an absorption is not

based on a reasonable criteria and the DPAR also set

52

out the conditions based on which the absorption rules

have been done and particularly, when the cabinet

approved Note No.8, which prescribed seniority as a

condition for absorption under the guise of giving effect

to these orders, the list prepared for absorption is

contrary to the aforesaid stipulations. Therefore, it is

patently illegal and arbitrary and offends Articles 14

and 15 of the Constitution of India. It is discriminatory.

When the applicants requested for absorption, the

request was rejected on the ground that service was

required in the public interest. It is thereafter, this

absorption has taken place. Therefore, case of the

applicants have not at all been considered for

absorption. The State is unable to explain the reason for

excluding these applicants and choosing those

privileged 144 doctors. The said list also includes few

candidates, who have not been deputed into Medical

Education Department. One Dr.S.T.Kavya has been

absorbed, though she was not deputed solely on the

ground that the Chief Minister wants her to be

absorbed. In fact, in the cabinet note, it is categorically

53

stated that by absorbing these doctors who are working

in District Hospitals, public interest would not suffer,

because the doctors were giving services in the Health

and Welfare Department. They are rendering services in

the teaching hospitals. Admittedly, all these applicants

are working on deputation in the District hospitals,

which are all teaching hospitals. They are not only

rendering services to the public, but they are also

teaching the students in the Medical Colleges. They are

far far senior to the persons who are absorbed.

Discrimination is patent. In that view of the matter, the

Tribunal on careful consideration of all the material on

record, taking into consideration the opinion expressed

by the Health and Welfare Department, Finance

Department, DPAR and the Cabinet, was of the view

that the denial of absorption to these applicants is

illegal and therefore, the direction issued to the

authorities to consider their case for absorption and

absorb them in services is lawful and do not suffer from

any infirmity.

54

21. Infact, in the connected applications, one of the

prayer was to strike down the order dated 28.2.2009

absorbing these 144 doctors working in six Medical

Colleges. That has also been allowed.

22. From the material on record, we are satisfied that

this absorption has been done in a very casual manner.

After constituting a Committee, Committee’s

recommendations have been ignored. They have also

ignored the recommendations of the Finance

Department, DPAR and the Department of Health and

Family Welfare. In fact, the absorption is also contrary

to the cabinet note. There should be the rules

prescribing the criteria for such absorption, so that all

eligible persons who are considered on merits and are

absorbed. Now it is in the absence of such rules that

power is exercised by the authorities. It has been done

according to their whims and fancies which is on the

face of it hit by Articles 14 and 15 of the Constitution of

India. Therefore, we are of the view that, it is proper to

issue a direction to the Government to first frame rules

55

prescribing criteria and then call for applications and

then consider their applications for absorption. That

would put an end to all the controversies. It is open to

them, while making such absorption to bifurcate

subject wise. Once the rules are framed, criteria is fixed,

then the Courts have no role to play. But in the absence

of rules, criteria and the power is not exercised properly,

then it becomes the duty of the Court to interfere and

strike down such arbitrary action. In that view of the

matter, we do not see any justification to interfere with

the order passed by the Tribunal.

23. Insofar as the contention of the petitioner in other

cases who have challenged the order of the Tribunal

before this Court that they were not made parties, they

have not been heard is concerned, it is settled law that

in these matters, nobody can approach this Court

directly. If they were really aggrieved by the order of the

Tribunal, if they were not heard in the matter, the

proper course available to them was to approach the

Tribunal and make their grievance. If the Tribunal does

56

not consider their request or pass any order, then they

can come to this Court. They cannot approach this

Court straight away. Therefore, their writ petitions are

not maintainable.

24. Section 19 of the Administrative Tribunal Act,

1995, provides for applications to Tribunal reads as

under;

19. Applications to Tribunals: (1) Subject to

the other provisions of this Act, a person

aggrieved by any order pertaining to any

matter within the jurisdiction of a Tribunal

may make an application to the Tribunal for

the redressal of his grievance.

Explanation.- For the purposes of this sub-

section, “order” means an order made-

a) by the Government or a local or other authority

within the territory of India or under the

control of the Government of India or by any

corporation (or society) owned or controlled by

the Government; or

b) by an officer, committee or other body or

agency of the Government or a local or other

authority or corporation (or society) referred to

in clause(a).

57

(2) Every application under sub-section (1) shall

be in such form and be accompanied by such

documents or other evidence and by such fee

(if any, not exceeding one hundred rupees) (in

respect of the filing of such application and by

such other fees for the service of execution of

processes, as may be prescribed by the

Central Government).

(3) On receipt of an application under sub-section

(1), the Tribunal shall, if satisfied after such

inquiry as it may deem necessary, that the

application is a fit case for adjudication or

trial by it, admit such application; but where

the Tribunal is not so satisfied, it may

summarily reject the application after

recording its reasons.)

(4) Where an application has been admitted by a

Tribunal under sub-section (3), every

proceedings under the relevant service rules

as to redressal of grievances in relation to the

subject-matter of such application pending

immediately before such admission shall

abate and save as otherwise directed by the

Tribunal. no appeal or representation in

relation to such matter shall thereafter be

entertained under such rules.

58

25. The constitution bench of the Apex Court in the

case of L.Chandra Kumar Vs.Union of India reported in

AIR 1997 SC 1125 dealing with the jurisdiction of

administrative tribunal at para 99 held as under;

“99. In view of the reasoning adopted by us,

we hold that Clause 2(d) of Article 323A and

Clause 3(d) of Article 323B, to the extent they

exclude the jurisdiction of the High Courts

and the Supreme Court under Articles

226/227 and 32 of the Constitution, are

unconstitutional. Section 28 of the Act and

the “exclusion of jurisdiction” clauses Article

323A and 323B would, to the same extent, be

unconstitutional. The jurisdiction conferred

upon the High Courts under Articles 226/227

and upon the Supreme Court under Article 32

of the Constitution is part of the inviolable

basic structure of our Constitution. While this

jurisdiction cannot be ousted, other Courts

and Tribunals may perform a supplemental

role in discharging the powers conferred by

Articles 226/227 and 32 of the Constitution.

The Tribunals created under Article 323A and

Article 323B of the Constitution are possessed

of the competence to test the constitutional

validity of statutory provisions and rules. All

59

decisions of these Tribunals will, however, be

subject to scrutiny before a Division Bench of

the High Court within whose jurisdiction the

concerned Tribunal falls. The Tribunals will,

nevertheless, continue to act like Courts of

first instance in respect of the areas of law for

which they have been constituted. It will not,

therefore, be open for litigants to directly

approach the High Courts even in cases

where they question the vires of statutory

legislations (except where the legislation

which creates the particular Tribunal is

challenged) by overlooking the jurisdiction of

the concerned Tribunal. Section 5(6) of the

Act is valid and constitutional and is to be

interpreted in the manner we have indicated”.

26. Therefore, it is not open for the applicants to

directly approach the High Court even in cases where

there is question of ultravirus nature of statutory

legislation is made by overlooking the jurisdiction of the

concerned Tribunal. If the Tribunal passes an order

without hearing the parties, it is always open to the

persons to approach the tribunal and seek review of the

said order. Only when that request is not granted, he

60

can approach this Court. He cannot directly approach

this Court contending that the order passed by the

Tribunal without impleading them as party behind their

back is bad in law. In view of the fact that the

absorption order is challenged, no right of these

petitioners is taken away. All that has been done is that

the applicants’ case also to be considered along with the

persons who are similarly placed and if they are found

eligible, certainly they would be absorbed.

27. It is contended that if these absorptions are set

aside, it will have an adverse effect in running the

Medical College and it may be contrary to the

stipulations in the MCA. If the Government is sincere

and responsible, they could form a Committee to frame

rules within a period of three days from the date of

receipt of a copy of this order with a direction to the

committee to frame rules within a week from its

constitution and thereafter, publish provisional draft

rules giving a direction to file objection and thereafter,

to finalize the rules within a month and thereafter, start

61

the process of absorption, if necessary, by issuing a

notification in the Gazette, in the newspaper and in the

internet and complete the whole exercise within a period

of two months. We do not see any merit in any of these

writ petitions. Hence, we pass the following:

ORDER

(a) All the writ petitions are dismissed.

(b) The authorities shall frame rules

prescribing the criteria for absorption

within a period of two months from

today.

(c) Thereafter, they shall consider the case

of the eligible persons including the

petitioners before this Court as well as

the applicants before the Tribunal for

absorption and pass appropriate orders

on merits and in accordance with law

under the rules framed for such

absorption.

(d) This exercise shall be done within two

months from the date of receipt of copy

of this order.

62

Parties to bear their own costs.

Sd/- JUDGE

Sd/- JUDGE

NG/SA

writ petition nos.12029 -12037/2011 c/w wp...

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