Karnataka High Court
Mrs. Mamatha G.C vs State Of Karnataka on 1 October, 2024
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NC: 2024:KHC:41026
WP No. 49151 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 49151 OF 2014 (S-RES)
BETWEEN:
MRS. MAMATHA G.C
AGED 45 YEARS,
W/O R. VENKATAPPA,
M.Sc. (NURSING), LECTURER,
BANGALORE MEDICAL COLLEGE AND
RESEARCH INSTITUTE, COLLEGE OF NURSING,
BANGALORE.
R/O NO.70/1, 'A' TYPE,
K.P.W.D. QUARTERS,
JEEVAN BHEEMANAGAR,
NEW THIPPASANDRA POST,
BANGALORE-560075
...PETITIONER
(BY SRI. SUBRAMANYA JOIS, SENIOR ADVOCATE FOR
SRI. K. SREEDHAR, ADVOCATE)
Digitally signed AND:
by
MARKONAHALLI
RAMU PRIYA 1. STATE OF KARNATAKA
Location: HIGH
COURT OF REPRESENTED BY ITS PRINCIPAL SECRETARY,
KARNATAKA HEALTH AND FAMILY WELFARE SERVICES,
BANGALORE-560001.
2. THE SECRETARY
MEDICAL EDUCATION DEPARTMENT,
GOVERNMENT OF KARNATAKA,
VIKASA SOUDHA,
BANGALORE-560001.
3. THE DIRECTOR
HEALTH AND FAMILY WELFARE SERVICES,
ANANDRAO CIRCE,
BANGALORE.
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NC: 2024:KHC:41026
WP No. 49151 of 2014
4. THE DIRECTOR OF MEDICAL EDUCATION
ANANDARAO CIRCLE,
BANGALORE.
5. THE BANGALORE MEDICAL COLLEGE AND
RESEARCH INSTITUTE (AUTONOMOUS INSTITUTE UNDER
GOVERNMENT OF KARNATAKA),
REPRESENTED BY ITS DEAN CUM DIRECTOR,
K.R. ROAD, FORT,
BANGALORE-560002.
...RESPONDENTS
(BY SRI. GOPALAKRISHNA SOODI, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NOS.1 TO 4;
SRI. P.S.MALIPATIL, ADVOCATE FOR RESPONDENT NO.5)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
OFFICIAL MEMORANDUM BEARING NO.ShuMaViBan/Sibbandi/50/14-
15 DATED 13.08.2014 VIDE ANNEXURE-P DIRECTING THE
RESPONDENTS TO PRODUCE THE RECORDS AND ALSO QUASH THE
GOVERNMENT ORDER DATED 12.08.2014 REFERRED IN ANNEXURE-P
AND ETC.
THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The petitioner has challenged an Official Memorandum bearing No.ShuMaViBan/Sibbandi/50/14-15 dated 13.08.2014 issued by the respondent No.5 and to quash the Government -3- NC: 2024:KHC:41026 WP No. 49151 of 2014 order dated 12.08.2014 referred to in the aforesaid order dated 13.08.2014. The petitioner has also sought for a writ in the nature of mandamus directing the respondents to continue the service of the petitioner as Lecturer in Nursing College, Fort, Bengaluru, lying within the administrative jurisdiction of respondent No.5 and direct the respondents to consider the case of the petitioner for absorption as Lecturer in Nursing College, Bengaluru.
2. The petitioner contends that she joined Government service in the year 1998 as a nurse in the Health and Family Welfare Department. She claimed that she was permitted to pursue B.Sc. (Nursing) in the year 2007 and M.Sc. (Nursing) in the year 2010. Based on her qualification, she was deputed on Official Duty (OOD) basis to the Nursing College coming under the administrative jurisdiction of the respondent No.5 A as per order dated 16.07.2013. Later, respondent No.5 passed an order dated 25.07.2013 appointing the petitioner as a Lecturer at the Nursing College. She claimed that she was relieved as a nurse at the Health and Family Welfare Department on 30.09.2013. Within a few months therefrom, the respondent No.1 passed an order dated 04.06.2014 directing the Lecturers -4- NC: 2024:KHC:41026 WP No. 49151 of 2014 at the Nursing Colleges to report back to their respective parent departments. The petitioner contends that the Principal of the Nursing College addressed a letter dated 17.06.2014 explaining the circumstances that require continuation of the services of the petitioner and similarly situated Lecturers. The petitioner and others submitted a representation on 01.07.2014 to continue them as Lecturers at the Nursing College. The Hon'ble Chief Minister then issued a direction to continue the petitioner as Lecturer following which the respondent No.5 passed an order dated 22.07.2014 continuing the petitioner as a Lecturer in the Nursing College. Later, the respondent No.5 passed an order dated 13.08.2014 relieving the petitioner from the Nursing College based on the Government order dated 12.08.2014.
3. Being aggrieved by the said order, the petitioner has filed this writ petition.
4. The petitioner has contended that the officials working in the Health and Family Welfare Department and Medical Education Department were deputed from time to time depending upon they possessing qualification prescribed for -5- NC: 2024:KHC:41026 WP No. 49151 of 2014 their post. She claims that such officials were also permitted to change their cadre where they were deputed. She relied upon an order dated 22.10.1981 issued by the State Government permitting change of cadre from the jurisdiction of one Directorate to another. She contends that the Government had also passed an order dated 22.06.2008 permitting absorption of teaching staff of Medical Education Department in the autonomous institute of Bangalore Medical College and Research Institute. She claimed that the State Government in its letter dated 18.06.2009 addressed to the Government of India, accepted the teaching staff required in the Medical Education Department, who were drawn from the Health and Family Welfare Department. She contends that the State Government had passed similar order on 22.01.2005 permitting eligible candidates to be redeployed in the concerned Department depending upon their qualification and eligibility to hold the respective posts. Accordingly, number of employees were deployed in the Medical Education Department who were drawn from the Health and Family Welfare Department. She contends that the issue of absorption of such employees in the Medical Education Department was considered by the -6- NC: 2024:KHC:41026 WP No. 49151 of 2014 Government in its proceedings dated 07.11.2012 in which it was decided to absorb the employees in the Medical Education Department if they gave their willingness. Therefore, she contends that it was permitted by the respondent No.1 from time to time to draw the employees from the Health and Family Welfare Department to depute them in Medical Education Department and later absorb them with their willingness.
5. During the pendency of this writ petition, the petitioner filed an application (I.A No.1/2016) for a direction to the respondents to consider her case for absorption as a Lecturer in the Nursing College run by the respondent No.5. She contended that she was fully qualified to be appointed as a Lecturer at the Nursing College run by the respondent No.5. She claimed that the Government had passed an order dated 12.06.2009 permitting the absorption of Doctors working in the respective teaching colleges as Lecturers. She claimed that she too had filed a representation dated 09.05.2014 requesting the respondents to consider her case for absorption. She contended that the Indian Nursing Council in its letter dated 12.12.2014 had noticed the deficiency of lecturers in the Nursing College administered by the respondent No.5 and that the respondent -7- NC: 2024:KHC:41026 WP No. 49151 of 2014 No.5 had addressed a letter dated 23.12.2015 to the Nursing Council naming the petitioner as one of the Lecturers working in the college. She, therefore, contends that the respondent No.5 was saved from de-recognization by the Indian Nursing council. The State Government also addressed letters to respondent Nos.4 and 5 dated 12.04.2015 and 06.05.2015 directing the consideration of absorption of the Lecturers. She claimed that following this, she submitted representations dated 11.08.2015 and 22.12.2015 requesting the State Government to absorb her services at the Nursing College administered by the respondent No.5. This Court in terms of the order dated 15.09.2022, passed the following order:
"It is to be noticed that request of the petitioner for absorption in the BMRCI submitted on 17.04.2015 is still pending consideration before the Director of Medical Education as is evident from Annexure 'X'.
Learned counsel appearing for the petitioner has by way of a memo filed a document upon which he relies upon, according to which, out of 21 sanctioned posts in the Government College of Nursing, Bangalore Medical College and Research Institute, all the five working staff are those on deputation from the Health Department. It is further -8- NC: 2024:KHC:41026 WP No. 49151 of 2014 submitted that the remaining posts are vacant and the said aspect may be taken note of and appropriate decision would be taken on the reference made to the Director of Medical Education at Annexure-S. Such decision to be taken without prejudice to the contentions in the present petitions, if otherwise, the petitioner is entitled for such relief."
The said request of the petitioner was rejected by the respondent No.3 in terms of an endorsement dated 19.10.2022. The petitioner therefore filed an application (I.A. No.1/2023) under Order VI Rule 17 read with Section 151 of CPC seeking permission to raise the additional facts, additional grounds and additional prayer stated therein. In the application, she claimed that the Health and Family welfare Department was the only department dealing with medical education until they were bifurcated. She claimed that the Medical Education Department was also a wing of the Health and Family Welfare Department. She contended that a Nursing Assistant named Smt. B. Kasturi was appointed as a Lecturer in the Medical Education Department on 19.08.1986. She contended that she too was entitled to be absorbed in the Medical Education Department as she possessed all the requisite qualification. She contended that -9- NC: 2024:KHC:41026 WP No. 49151 of 2014 when Health and Family Welfare Department was in existence, qualified staff who were eligible to teach students were posted and absorbed in the teaching cadre in the Nursing Colleges. She contends that the endorsement issued by the respondent No.3 rejecting the request of the petitioner is improper, illegal and warrants interference.
6. Per contra, the respondent No.5 has filed its statement of objections. It is contended that the petitioner who was working as a Nurse in the Health and Family Welfare Department was deputed to work at the Government Nursing College against a vacant post of Clinical Instructor and not as a Lecturer. It is admitted that the officers working in the Health and Family Welfare Department were deputed to Medical Education Department from time to time. It is contended that this arrangement was based on the exigencies of service and the Government had permitted changing of cadre from one Directorate to the other. It contended that the Government order dated 26.08.2008 relied upon by the petitioner was issued in the year 2008 in the interest of public service. It contended that Annexure 'E' relied upon by the petitioner was the proceedings of a meeting held by the then Minister of
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NC: 2024:KHC:41026 WP No. 49151 of 2014 Medical Education where it was brought to the notice of the Hon'ble Minister that as per the decision of this Court, the services absorbed in respect of 144 Doctors in the six new medical colleges were cancelled and their services were placed at the disposal of the Health and Family Welfare Department. It is contended that the Hon'ble Minister had agreed for such a proposal and it was resolved to absorb the services of the para medical nurses and other staff in Group 'C' and Group 'D' in the event of they consenting to be absorbed in the Medical Education Department. It is contended that the aforesaid proceedings did not relate to absorption of a Lecturer deputed to work against a vacancy of a Clinical Instructor. It is admitted that the petitioner was deputed on 16.07.2003 to the Government Nursing College to work as a Lecturer but against the vacancy of a Clinical Instructor. It is also admitted that since the date of her deputation, she has been working as a Lecturer in the respondent No.5 - institution. It contended that the Principal of Government Nursing College had addressed a communication to the Principal Secretary of the Department of Health and Family Welfare that the deputationists should be continued in the Government Nursing School in order to
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NC: 2024:KHC:41026 WP No. 49151 of 2014 facilitate the education of the students since the examinations were going on. It admitted that the petitioners and others had made representations on 01.07.2014 to continue their services in the existing college. It also admitted that as per the official memorandum dated 22.07.2014, the service of the petitioner was continued in the Government Nursing College until further orders from 22.07.2014 in view of the note by the Hon'ble Chief Minister dated 19.07.2014. It also admitted that the petitioner was directed to report back to her parent department and was relieved of her duties on 13.08.2014 which was on the basis of the Government order dated 12.08.2014. It contended that in the exigencies of service in the Government Departments and institutions attached to the Government, the transfer or deputation of officials are made as and when required. It contended that if a particular officer who has a requisite qualification to handle the teaching post in Medical Education Department, and if he or she is posted, it cannot be said that it is not a mere deputation and contended that a deputationist will not have any right to remain in the deputed post. It is contended that it was not an appointment by transfer as defined under Rule 16(a) of the Karnataka Civil Services
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NC: 2024:KHC:41026 WP No. 49151 of 2014 (General Recruitment) Rules, 1977 (for short, 'the Rules, 1977"). It is contended that the petitioner was working as a Nurse in the General hospital at Indiranagar. She was deputed to work as a Lecturer against the post of Clinical Instructor and accordingly, she was relieved on 13.09.2013 from the post of Nurse. The respondent has relied on the Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977, which reads as follows "16. Relaxation of rules relating to appointment and qualifications.-
Notwithstanding anything contained in these rules or the rules of recruitment specially made in respect of any service or post, the Government may, for reasons to be recorded in writing,-
(a)appoint to a post-
(i) an officer of the Defense Services, an All India Services or a Civil Service of the Union, or the Civil Services of any other State;
(ii) an officer holding a post of an equivalent grade by transfer or by deputation from any other service of the State for recruitment to which these rules apply:
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NC: 2024:KHC:41026 WP No. 49151 of 2014 [Provided that appointment by transfer under this sub-clause shall not be made unless the officer has passed the examination prescribed under the Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974 for the post to which he is proposed to be transferred.] [Provided further that where it is necessary in public interest to appoint an officer belonging to a service which has no equivalent grade, an officer holding a post in the next lower grade in such service may be appointed by deputation for a period not exceeding two years:
Provided also that no such appointment shall be to a post which is equivalent to or higher than the next promotional post to such officer in such other service.]
(iii) an officer who by bodily infirmity is permanently incapacitated for the post which he holds;
Provided that appointment under this sub-clause shall not be :-
(1) to a post lower than that held by such officer save with his consent;
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NC: 2024:KHC:41026 WP No. 49151 of 2014 (2) to a post higher than the post held by such officer except when the Government is of the opinion that there is no other equivalent post to which such officer can be appointed:"
Therefore, it is contended that the period of deputation was not to exceed two years in case of appointment of persons belonging to a service which has no equivalent grade. An officer holding a post in the next lower grade in such service may be appointed by deputation. It is stated that in view of the exigencies of service, she was deputed to serve as a Lecturer in the Nursing College as against the post of a Clinical Instructor and when it was found that her services were no more required, she was reverted back to her parent department in the interest of service. With this it is contended that the petitioner has no right to claim absorption and it is prayed that the petition be dismissed.
7. The petitioner has filed an extensive rejoinder to the statement of objections contending that she is not blocking any post in the respondent - institution to which regular appointment is undertaken. She contends that at no point of time, the respondent No.5 made any attempt to fill up the post
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NC: 2024:KHC:41026 WP No. 49151 of 2014 by regular appointment. She claimed that as on the date of filing rejoinder, there were 14 vacancies in the institute and the respondent No.5 had not mentioned any genuine reason for denying the relief of absorption to her. It is contended that by an order dated 14.06.2012, the Director of Health and Family Services had passed an order that as per the Indian Nursing Council norms, there was a shortage of teaching staff and employees working in the hospitals were in excess and having M.Sc. degree and they could be lent to Medical Education Department for teaching cadre. Therefore, the petitioner and others were ordered to work as Lecturers for four days in a week. The petitioner who possessed M.Sc. qualification reported to duty in Nursing College on 18.06.2012 and was working ever since then. She contends that the Nursing College was admitted to the respondent No.5 as per the order dated 11.07.2012. She contends that she was deputed as per the official memorandum dated 25.07.2013 against Clinical Instructor post. Another employee by name Smt.Nagarathnamma was also appointed at the same time. Therefore, she contends that she was appointed against the vacant post of Lecturer since she was possessing the required
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NC: 2024:KHC:41026 WP No. 49151 of 2014 qualification. She contended that her absorption would not result in blocking the appointment of others. She claimed that as late as 16.08.2016, another employee was deputed as per the order dated 16.08.2016 which indicated that posts are filled up only on deputation basis and without undertaking any process of regular recruitment. She contends that if a regular recruitment was undertaken, she also could have submitted her application. She claimed that the Director of Medical Education wrote a letter to the Director, Health and Family Services on 16.12.2016 on the representation made by the Trained Nurses Association of India requesting to fill up the post by promotion or by recruitment to the vacant post in the interest of students. The Principal of Nursing College wrote a letter dated 20.12.2016 mentioning the list of eligible teaching faculty members in which the petitioner's name was also found at Sl. No.6. She contends that she has been working as a Lecturer which is evident from the attendance register extract. She contends that as per Annexures 'A' to 'E', the Government had taken a decision to absorb all eligible employees in the autonomous institutions wherever they are found eligible. She claims that if those directions are applied to her, she is also
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NC: 2024:KHC:41026 WP No. 49151 of 2014 entitled for absorption as Lecturer in the Nursing College. She referred to Annexure 'Q', which is a translation of proceedings of Government, and contended that the Government had taken a decision to mitigate the shortage of teaching staff, employees working and possessing required qualification should be absorbed in the same institutions and that the said principle is also applicable to her. She therefore, prays that she be absorbed in service.
8. The learned senior counsel for the petitioner reiterated the above contentions and contended that when the respondent No.1 is not averse to absorbing Doctors who are deputed as Teachers in teaching hospitals, the same principle has to be applied to the petitioner. He contends that the petitioner had given her option to be retained and absorbed as Lecturer in Nursing College administered by the respondent No.5 and therefore, the respondents ought to have considered the same. Besides this, he contends that the post of Lecturers in the Nursing Colleges administered by the respondent No.5 are to be filled up from Health and Family Welfare Department and therefore, the petitioner is entitled to be absorbed in the Nursing College administered by the respondent No.5. The
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NC: 2024:KHC:41026 WP No. 49151 of 2014 learned counsel referred to various communications between the respondent No.5 and the State Government and contended that the respondent No.5 was also in favour of absorbing the petitioner into services of the Nursing College. Besides this, he contends that the petitioner has been involved in examination duties and valuation of answer scripts etc. He contends that the State Government had registered the Government Dental College and Research Institute and transferred all the teaching posts from the Department of Medical Education to the autonomous institutions including the Government Dental College Research Institute. He, therefore, contends that it has been the consistent policy of the State Government to absorb the employees who are sent on deputation to teaching hospitals and therefore, this facility has to be extended to the petitioner also.
9. Per contra, the learned Additional Government Advocate for respondent Nos.1 to 4 submits that the petitioner continues to hold a lien in the post of staff nurse in the Health and Family Welfare Department and that she continues to draw salary as a staff nurse in the Health and Family Welfare Department. He submits that but for the interim order granted
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NC: 2024:KHC:41026 WP No. 49151 of 2014 by this Court, the petitioner would have been repatriated to the parent department and she would have continued as a staff nurse in the Health and Family Welfare Department. He contends that the petitioner cannot now take advantage of the interim order granted by this Court and claim that she is entitled for absorption in the Nursing College. As a matter of fact, he contends that the petitioner could not have been deputed to the post of Lecturer which was higher in rank to that of a staff nurse. He contends that even the period of deputation as provided under Rule 16 of the Rules, 1977 was not to extend beyond two years. He contends that there are no rules prescribed for absorption of the services of the petitioner and similarly situate personnel and hence, the petitioner cannot compel the respondent No.1 to absorb the services of the petitioner.
10. I have considered the submissions of the learned counsel for the petitioner and the learned Additional Government Advocate for respondent Nos.1 to 4.
11. The petitioner whose initial service was in the Health and Family Welfare Department was deputed to work in
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NC: 2024:KHC:41026 WP No. 49151 of 2014 the Nursing College under the administrative control of the respondent No.5 as per the order dated 16.07.2013 against a vacant post of Clinical Instructor. Respondent No.1 had passed an order dated 04.06.2014 directing the Lecturers in the Medical Education Department to report back to their parent department. The respondent No.1 being the deputing authority had all the right to call back its employees. Therefore, the petitioner was not clothed with any indefeasible right to continue in the Medical Education Department. She was bound to report back to the respondent No.1. However, the petitioner approached this Court and this Court protected her repatriation to the parent department by an interim order dated 30.10.2014. From then on, the petitioner has continued in the Medical Education Department. However, she continued to hold lien as a staff nurse in the Health and Family Welfare Department and continued to draw salary as a staff nurse in the Health and Family Welfare Department. The contention of the petitioner that she was entitled to be absorbed in the Nursing College is not based on any rules or order or executive instructions issued by the State Government. There is no material placed on record to establish that as on the date of the
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NC: 2024:KHC:41026 WP No. 49151 of 2014 petitioner being deputed on OOD basis to the Medical Education Department that she had a claim to be absorbed in the Medical Education Department. Since the services of the petitioner continued to be maintained at the Health and Family Welfare Department, she cannot stonewall the order of respondent No.1 to report back to the Health and Family Welfare Department. No doubt, the petitioner has acquired enormous experience as she has been teaching students in the Nursing College. However, that in itself cannot arm the petitioner with any better right to continue as a Lecturer or as a Professor or a Teacher in the Medical Education Department. The contention of the petitioner that in cases of Doctors who were appointed in the Health and Family Welfare Department and deputed to teaching hospitals, the State Government was ordered to frame rules for absorption and therefore, the said benefit has to be extended to the petitioner, does not appeal to this Court as the facts in those cases were clearly distinguishable. In that case, the petitioners therein possessed the requisite qualification and they held equivalent posts in the Health and Family Welfare Department. Therefore, the petitioner cannot seek for parity. Even otherwise, the petitioner was holding the post of a staff
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NC: 2024:KHC:41026 WP No. 49151 of 2014 nurse and strictly speaking, she could not have been deputed to perform the duties of a Lecturer by placing her in the vacant post of a Clinical Instructor. Therefore, she cannot compel the respondent No.1 to absorb her services into the Medical Education Department. Under the circumstances, this writ petition lacks merit and same is dismissed.
In view of dismissal of this petition, the pending interlocutory applications do not survive for consideration and the same stand disposed off.
Sd/-
(R. NATARAJ) JUDGE SMA/List No.: 1 Sl No.: 18