Karnataka High Court
Dr. S A Somashekar vs Dr. K Harish S/O N Karigowda on 26 September, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR.JUSTICE N. KUMAR
AND
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
2
(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
3
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.
IN WRIT PETITION Nos.27388 -27402/2011:
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,
4
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,
5
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,
6
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
7
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.
IN WRIT PETITION Nos.17178 -17194/2011:
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
8
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
9
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.)
10
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)
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-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.
IN WRIT PETITION Nos.16876 -16903/2011:
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
11
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
12
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,
13
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
14
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
15
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
16
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)
THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
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
17
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.)
AND:
1. THE STATE OF KARNATAKA
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
IN WRIT PETITION Nos.19459 -19464/2011:
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.)
AND:
1. THE STATE OF KARNATAKA
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
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
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 wêÀæªÁV «gÉÆâü¹gÀÄvÁÛgÉ. DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ°è ºÁUÀÆ ªÉÊzÀåQÃAiÀÄ ²PÀët E¯ÁSÉAiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛgÀĪÀ ªÉÊzÀågÀÄUÀ¼À ªÀÄzsÉå EgÀĪÀ ªÉÃvÀ£À vÁgÀvÀªÀÄåªÀ£Éßà PÁgÀtªÀ£ÁßVlÄÖPÉÆAqÀÄ FUÁUÀ¯Éà DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ ªÉÊzÀågÀÄ ªÀÄĵÀÌgÀ ºÀÆqÀĪÀÅzÁV ¨ÉzÀjPÉ ºÁQgÀÄvÁÛgÉ. MAzÀÄ ªÉÃ¼É DaiÀiÁ D¸ÀàvÉæAiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛgÀĪÀ vÀdÕ ªÉÊzÀågÀÄUÀ¼À£ÀÄß ªÉÊzÀåQÃAiÀÄ ²PÀët (DAiÀiÁ ªÉÊzÀåQÃAiÀÄ ªÀĺÁ«zÁå®AiÀÄUÀ¼À°è) «°Ã£ÀUÉƽ¸À¨ÉÃPÁzÀ°è ºÁ° DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛgÀĪÀ ¸ÉàµÀ°¸ïÖ ªÉöÊzÀågÀÄUÀ¼À eÉõÀ×vÉAiÀÄ£ÀÄß ¥ÀjUÀtô¸ÀĪÀ CªÀ±ÀåPÀvÉ EgÀÄvÀÛzÉ. F jÃw eÉõÀ×vÉAiÀÄ£ÀÄß ¥ÀjUÀtô¸ÀzÉà «°Ã£ÀUÉƽ¹zÀ°è EzÀjAzÀ ªÀåwjPÀÛ ¥ÀjuÁªÀÄ GAmÁUÀĪÀ J¯Áè ¸ÁzÀsåvÉUÀ¼ÀÄ EgÀÄvÀÛªÉ. DzÀÝjAzÀ DyðPÀ E¯ÁSÉAiÀÄ C©ü¥ÁæAiÀÄzÀAvÉ «°Ã£ÀPÁÌV ¤UÀ¢¥Àr¸À§ºÀÄzÁzÀ ¤§AzÀsUÀ¼ÀÄ ºÁUÀÆ µÀgÀvÀÄÛUÀ¼À£ÀÄß CAwªÀÄUÉƽ¸À®Ä ªÀiÁ£Àå ªÉöÊzÀåQÃAiÀÄ ²PÀàt ¸ÀaªÀgÀÄ, DgÀÉÆÃUåÀ ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt ¸ÀaªÀgÀÄ ºÁUÀÆ UÀȺÀ ¸ÀaªÀgÀÄ (UÀʺÀ ¸ÀaªÀgÀÄ ¸ÀévÀB ªÉÊzÀågÁVgÀĪÀÅzÀ®èzÉà F »AzÉ ªÉÊzÀåQÃAiÀÄ ²PÀët ¸ÀaªÀgÁVzÀÝgÀÄ) UÀ¼À£ÉÆß¼ÀUÉÆAqÀ MAzÀÄ aPÀÌ ¸À«ÄwAiÀÄ£ÀÄß gÀa¸ÀĪÀÅzÀÄ ¸ÀÆPÀÛªÁVgÀÄvÀÛzÉ. F ¸À«ÄwAiÀÄÄ MAzÀÄ ªÁgÀ CxÀªÁ ºÀ¢£ÉÊzÀÄ ¢£ÀUÀ¼ÉƼÀUÁV MAzÀÄ ªÀgÀ¢AiÀÄ£ÀÄß ¤ÃqÀĪÀAvÉ 46 PÉÆÃj D ªÀgÀ¢AiÀÄ DzsÁgÀzÀ ªÉÄÃ¯É ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¸ÀaªÀ ¸ÀA¥ÀÅlzÀ ªÀÄÄAzÉ ªÀÄAr¸À§ºÀÄzÁVgÀÄvÉÛzÉ.
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(¸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 M¼ÀUÉÆArgÀĪÀ ¥Àæ¸ÁÛªÀ£ÉUÀ¼À£ÀÄß ¸ÀaªÀ ¸ÀA¥ÀÅl C£ÀĪÉÆâ¹vÀÄ. (underline supplied)
23) ªÀÄÄAzÀĪÀjzÀÄ, «°Ã£ÀUÉÆAqÀ ªÉÊzÀågÀÄUÀ¼À ¸ÉêÁ µÀgÀvÀÄÛ ºÁUÀÆ ªÉÃvÀ£À ¤UÀ¢¥Àr¸ÀĪÀ «µÀAiÀÄUÀ¼À°è ¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉ (¸ÉêÁ ¤AiÀĪÀÄUÀ¼ÀÄ) ºÁUÀÆ DyðPÀ E¯ÁSÉUÀ¼ÉÆA¢UÉ ¸ÀªÀiÁ¯ÉÆÃa¹zÀ £ÀAvÀgÀ ¸ÀÆPÀÛ DzÉñÀªÀ£ÀÄß ºÉÆgÀr¸À¨ÉÃPÉAzÀÄ ¸ÀaªÀ ¸ÀA¥ÀÅlªÀÅ E¯ÁSÉUÉ ¸ÀÆa¹vÀÄ."
18. Thereafter, DPAR gave their opinion as follows;
30) ¸ÀASÉåà ¹D¸ÀÄE 524 ¸ÉäJ 2008 ¹D¸ÀÄE(¸ÉêÁ ¤AiÀĪÀÄUÀ¼ÀÄ-J) 47 DPÀÄPÀ 395 JAJA¹ 2007(¨sÁ-1) ¢£ÁAPÀ 22.12.2008.
PÀ£ÁðlPÀ ¹«¯ï ¸ÉêÉUÀ¼ÀÄ (¸ÁªÀiÁ£Àå £ÉêÀÄPÁw) ¤AiÀĪÀÄUÀ¼ÀÄ, 1977gÀ ¤AiÀĪÀÄ 16(J) (2) gÀ°è ¸ÀPÁðgÀ, ¸ÀªÀiÁ£À zÀeÉðAiÀÄ ºÀÄzÉÝUÀ½UÉ PÁgÀtUÀ¼À£ÀÄß °TvÀ ªÀÄÆ®PÀ zÁR°¹ MAzÀÄ E¯ÁSÉAiÀÄ CxÀªÁ ¸ÉêÉAiÀÄ £ËPÀgÀgÀ£ÀÄß E£ÉÆßAzÀÄ E¯ÁSÉ CxÀªÁ ¸ÉêÉUÉ ªÀUÁðªÀuÉ ªÀÄÆ®PÀ £ÉëĸÀ®Ä D¸ÀàzÀ PÀ°à¸À¯ÁVzÉ.
31) ªÉÄîÌAqÀ ¤AiÀĪÀÄzÀ£ÀéAiÀÄ gÁdå ¹«¯ï ¸ÉêÉUÀ¼À°è£À ºÀÄzÉÝUÀ¼À £ËPÀgÀgÀ£ÀÄß ¸ÁéAiÀÄvÀÛ ¸ÀA¸ÉÜUÀ¼À°è£À ºÀÄzÉÝUÀ½UÉ ªÀUÁðªÀuÉ ªÀÄÄSÁAvÀgÀ £ÉêÀÄPÁw ªÀiÁqÀ®Ä D¸ÀàzÀ EgÀĪÀÅ¢®è. ¥Àæ¸ÁÛªÀ£ÉUÉ ¸ÀaªÀ ¸ÀA¥ÀÅlªÀÅ ¢£ÁAPÀ 4.12.2008 gÀAzÀÄ C£ÀĪÉÆAzÀ£É ¤ÃrgÀĪÀ »£É߯ÉAiÀÄ°è F PɼÀPÀAqÀ CA±ÀUÀ¼À£ÀÄß ¥Àj²Ã°¹PÉÆAqÀÄ ¸ÀÆPÀÛ PÀæªÀÄ vÉUÉzÀÄPÉƼÀÀÄzÀÄB-
1. DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ 144 ªÀÄA¢ vÀdÕ ªÉÊzÀågÀÄUÀ¼ÀÄ E¯ÁSÉAiÀÄ ªÀÊAzÀ ªÀÄvÀÄÛ £ÉêÀÄPÁw ¤AiÀĪÀÄUÀ¼À ¥ÀæPÁgÀ ¸ÀPÀæªÀĪÁV £ÉêÀÄPÁw ºÉÆA¢gÀ¨ÉÃPÀÄ.
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4. ¸ÀzÀj ªÉÊzÀågÀÄUÀ¼ÀÄ ¸ÁéAiÀÄvÀÛ ¸ÀA¸ÉÜUÀ¼À ¸ÉêÉAiÀÄ°è «°Ã£ÀUÉÆAqÀ°è ªÀÄÄAzÉ CªÀgÀÄ gÁdå ¹«¯ï ¸ÉêÉUÀ¼À°è£À ºÀÄzÉÝUÀ½UÉ ªÁ¥À¸ÀÄì §gÀ®Ä D¸ÀàzÀ EgÀĪÀÅ¢®è.
5. ¸ÀPÁðj E¯ÁSɬÄAzÀ ¸ÁéAiÀÄvÀÛ ¸ÀA¸ÉÜUÉ «°Ã£ÀUÉƼÀî®Ä ¸ÀA§A¢ü¹zÀ £ËPÀgÀÄUÀ¼À M¦àUÉAiÀÄ£ÀÄß §gÀªÀtôUÉ ªÀÄÆ®PÀ ¥ÀqÉAiÀĨÉÃPÀÄ.
6. ¸ÀzÀj £ËPÀgÀgÀÄ ¸ÀPÁðgÀzÀ°è ¸À°è¹zÀ ¸ÉêÉUÉ ¸ÀA§A¢ü¹zÀAvÉ ¸ÀPÁðj DzÉñÀ ¸ÀASÉå J¥sïr 70 J¸ï Dgï J¸ï 77 ¢£ÁAPÀ 27.10.1977gÀ ¥ÀæPÁgÀ ¥ÉÇæÃgÁl ¦AZÀtô ¸Ë®¨Àså zÉÆgÉAiÀĨÉÃPÁzÀgÉ ¸ÀzÀj öDzÉñÀzÀ°è£À J¯Áè µÀgÀvÀÄÛUÀ¼À£ÀÄß ¥ÀÇgÉʸÀ¨ÉÃPÀÄ; F §UÉÎ DyðPÀ E¯ÁSÉAiÉÆA¢UÉ ¸ÀªÀiÁ¯ÉÆÃa¸À¨ÉÃPÀÄ.
(¸ÀPÁðgÀzÀ PÁAiÀiðzÀ²ðzÀ ¹D¸ÀÄE AiÀĪÀjAzÀ C£ÀĪÉÆâvÀ) ¸À»/-
(zÉêÀgÁdÄ) ¸ÀPÁðgÀzÀ C¢üãÀ PÁAiÀÄðzÀ²ð, ¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉ, (¸ÉêÁ ¤AiÀĪÀÄUÀ¼ÀÄ-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