Karnataka High Court
Dr. Raghavendra B Nayak vs The State Of Karnataka on 27 June, 2023
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2023:KHC-D:6329
WP No. 103049 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 103049 OF 2021 (S-TR)
BETWEEN:
DR. RAGHAVENDRA B NAYAK S/O. BHEEMRAO
NAYAK, AGE. 40 YEARS, OCC. ASSOCIATE
PROFESSOR, DEPARTMENT OF PSYCHIATRY
DIMHANS, DHARWAD, R/O. H.NO.1 GROUP A
DIMHANS STAFF, QUARTERS OPPOSITE TO
GERMAN HOSPITAL, NARAYANAPUR, DHARWAD.
... PETITIONER
(BY SRI. GANGADHAR J M, ADVOCATE)
AND:
Digitally signed
by RAKESH S
HARIHAR 1. THE STATE OF KARNATAKA,
RAKESH Location: High
S
Court of
Karnataka,
BY ITS UNDER SECRETARY,
HARIHAR Dharwad
Date: DEPARTMENT OF HEALTH & FAMILY WELFARE
2023.07.04
11:06:07
+0530
(MEDIAL EDUCATION), M S BUILDING,
BENGALURU-560001.
2. NATIONAL COMMISSION FOR SCHEDULE CASTE,
5TH FLOOR, LOK NAYAK BHAVAN,
KHAN MARKET, NEW DELHI-110003,
REPRESENTED BY ITS MEMBER/SECRETARY.
3. THE DIRECTOR,
DHARWAD INSTITUTE OF MENTAL HEALTH &
NEUROSCIENCES, DHARWAD,
DIST. DHARWAD-580001.
-2-
NC: 2023:KHC-D:6329
WP No. 103049 of 2021
4. DR. B RAMESH BABU,
AGE. MAJOR, PROFESSOR & HOD,
DEPARTMENT OF PSYCHIATRY,
RAICHUR INSTITUTE OF MEDICAL SCIENCE,
HYDERBAD ROAD, RAICHUR,
R/O. H.NO. 30, DOCTORS QUARTERS,
RIMS CAMPUS, RAICHUR-584101.
5. THE DIRECTOR,
RAICHUR INSTITUTE OF MEDICAL SCIENCES,
RAICHUR, DIST. RAICHUR-584101.
... RESPONDENTS
(BY SRI. M H PATIL, AGA FOR R1;
SRI. SUNIL S DESAI, ADVOCATE FOR R3;
SRI. H M DHARIGOND, ADVOCATE FOR R4;
R2 & R6 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE APPROPRIATE ORDER OR DIRECTION OR APPROPRIATE
WRIT IN THE NATURE OF CERTIORARI QUAHSING THE
IMPUGNED ORDER DATED 03.08.2021 PASSED BY THE 2ND
RESPONDENT BEARING NO.P3 KARNATAKA-1/2015/SSW-1,
VIDE ANNEXURE-A & ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
-3-
NC: 2023:KHC-D:6329
WP No. 103049 of 2021
ORDER
1. The petitioner who was working as Associate Professor in the Dharwad Institute of Medical Health and Neorosciences, Dharwad (for short, 'DIMHANS, Dharwad') has approached in this Court invoking its jurisdiction under Articles 226 and 227 of the Constitution of India seeking for the following reliefs:
"i. Issue appropriate order or direction or appropriate writ in the nature of certiorari quashing the impugned order dated 03.08.2021 passed by the 2nd respondent bearing No.P3 Karnataka- 1/2015/SSW-1, vide Annexure-A;
ii. Issue appropriate writ, order or direction in the nature of prohibition restraining the 2nd Respondent not to hold any further enquiry in respect of complaint filed by the 4 th Respondent (file bearing No.P3 Karnataka-1/2015/SSW-1,) till the disposal of Writ Petition No. 102228/2021 pending before this Hon'ble Court.
iii. Issue appropriate writ or direction declaring that the 4th Respondent is ineligible to permanently transfer from the 5th Respondent Institution to the 3rd Respondent Institution as a Professor of Psychiatry.-4-
NC: 2023:KHC-D:6329 WP No. 103049 of 2021 iv. Issue any other incidental and consequential relief's as deemed fit under the facts and circumstances of the case and in aid of the main relief sought for.
2. The first respondent had passed an order of transfer of the fourth respondent from fifth respondent- Institution to the third respondent-Institution. The petitioner had filed WP No.117865/2019, questioning the said order of transfer dated 19.02.2020 and this Court had granted interim order in the said writ petition. Pending consideration of the writ petition, the first respondent had withdrawn the order of transfer of fourth respondent. Challenging the said order dated 17.02.2020, the fourth respondent was before this Court in WP No.145149/2020. This Court by order dated 02.11.2020 had set aside the said order passed by the State Government on the ground that the said order was not a speaking order and accordingly had remanded the matter to the first respondent. Thereafter on 08.12.2020, the first respondent had passed a fresh order holding that the -5- NC: 2023:KHC-D:6329 WP No. 103049 of 2021 fourth respondent is not entitled to be transferred to the third respondent-Institution. Being aggrieved by the same, the petitioner had filed WP No.102228/2021 before this Court and this Court considering the fact that the fourth respondent had challenged the order dated 08.12.2020 belatedly, had not granted interim order in the said writ petition and on the other hand, had directed the fourth respondent to report for duty at the fifth respondent- Institution subject to further orders from this Court.
3. Thereafter it appears that fourth respondent had approached the second respondent-Commission and in the said proceedings initiated by the fourth respondent, the second respondent has passed the following order:
"5. In view of above, the Commission passes the following recommendations:
i) Principal Secretary to implement the Order of Chief Secretary of Karnataka vide note dated 10.05.2018 and 16.05.2018 and pay withheld salary w.e.f.08.02.2018 to 25.05.2018 along with TA/DA to petitioner for attending this Commission inquiry and salary arrears w.e.f.26.01.2021.-6-
NC: 2023:KHC-D:6329 WP No. 103049 of 2021
ii) The Principal Secretary to submit an undertaking to the Commission within 3 days through its Chief Secretary stating that back log vacancy and reservation policy OM on 36012/2/96 Estt(Res) dated 2nd July 1997, DOPT O.M.No.36012/6/88 Estt(SCT) 25.4.1989 shall not be violated and petitioner shall be retained in DIMHANS Dharwar and he shall be given all services benefits maintaining his seniority. Subject to compliance of the direction petitioner is also directed to submit an undertaking that he shall withdraw his pending case(s) before the High Court.
iii) Superintendent of Police, Raichur-Karnataka is to protect the civil rights of petitioner and initiate action under POA SC/ST act in case of offences and submit status report in the ongoing case 3/2021 registered in Jan 2021."
4. Being aggrieved by the same, the petitioner is before this Court.
5. Learned counsel for the petitioner submits that the 2nd respondent has given a positive direction to the State Government to retain the fourth respondent at DIMHANS, Dharwar. He submits that this Court in the case of Sri. M.B.Siddalingaswamy in WP No.63405/2016 -7- NC: 2023:KHC-D:6329 WP No. 103049 of 2021 disposed of on 23.11.2020, has held that such positive direction upon adjudication of a dispute concerning conditions of service of the individuals, cannot be given by the Commission.
6. Per contra, learned counsel appearing for the 4th respondent submits that the 2nd respondent has only issued recommendations and therefore the same cannot be considered as directions. He has placed reliance on the orders passed by the Division Bench of this Court in the case of Dr.Sakey Shamu Vs.The State of Karnataka in Writ Appeal No.3821/2019 disposed of on 21.10.2019 and submits that it is for the State Government to consider the recommendations of the second respondent - Commission and pass appropriate orders.
7. Learned counsel appearing for the 3rd respondent submits that as on this date, the 4th respondent is not working in the third respondent- Institution. He also has supported the arguments addressed on behalf of the petitioner and submits that the second respondent had no jurisdiction to issue positive -8- NC: 2023:KHC-D:6329 WP No. 103049 of 2021 directions either to the State Government or to the third respondent-Institution.
8. I have given my anxious consideration to the arguments addressed on both sides and perused the material on record.
9. The fourth respondent had approached this Court in W.P. No.102228/2021 challenging the order dated 08.12.2020 passed by the first respondent, wherein it was held that the fourth respondent was not entitled to seek transfer to the third respondent - Institution. In the said writ petition, this Court while rejecting the prayer made by the fourth respondent for interim relief had directed the fourth respondent to report to duty in the fifth respondent
- Institution. Having suffered the said order, the fourth respondent has approached the second respondent making a grievance as against the order dated 08.12.2020, which was the subject matter of W.P. No.102228/2021. During the pendency of said writ petition before this Court, the second respondent - Commission vide the order impugned at Clause 5(ii) of the order has directed the first -9- NC: 2023:KHC-D:6329 WP No. 103049 of 2021 respondent to retain the petitioner in the third respondent
- Institution and to give him all service benefits maintaining his seniority. The second respondent - Commission appears to have lost sight of the fact that the State Government had already passed an order on 08.12.2020 observing that the fourth respondent was not entitled to seek transfer to the third respondent - Institution and the said order was subject matter of the adjudication in W.P. No.102228/2021.
10. A Co-ordinate bench of this Court in the case of Sri. M.B. Siddalingaswamy Vs. the State of Karnataka & others, in W.P. No. 63405/2016, disposed off on 23rd November 2020 after taking into consideration the various judgments of the Hon'ble Supreme Court has held that the Commission cannot issue positive direction upon adjudication of a dispute concerning the conditions of the service of an individual. In the present case, the direction issued at paragraph No.5(ii) of the impugned order at Annexure-A, dated 03.08.2021 insofar as it directs the State Government to retain the fourth
- 10 -
NC: 2023:KHC-D:6329 WP No. 103049 of 2021 respondent in the third respondent - Institution and to give him all service benefits maintaining his seniority, is positive in nature. I am of the considered view that such a direction could not have been given by the second respondent having regard to the fact that the matter was already subjudiced before this Court in W.P. No.102228/2021 and also in the background of the orders passed by this Court in the case of Sri. M.B. Siddalingaswamy (Supra).
11. Though, learned counsel appearing for the fourth respondent has referred to the judgment of the Division Bench of this Court in the case of Dr. Sakey Shamu S/o. Late Chinnaiah Vs. the State of Karnataka & others in W.A. No.3821/2019, disposed off on 21st October 2019, the same cannot be made applicable to the facts and circumstances of the present case, since in the said case a recommendation was made by the National Commission for the purpose of consideration by the State Government and no positive directions were issued as issued by the second respondent - Commission
- 11 -
NC: 2023:KHC-D:6329 WP No. 103049 of 2021 in the present case. Therefore, the judgment in the case of Dr. Sakey Shamu S/o. Late Chinnaiah (supra) will not be applicable to the facts and circumstances of the present case.
12. Under the circumstances, I am of the considered view that the directions issued by the second respondent - Commission insofar as it directs the first respondent to retain the fourth respondent in the third respondent - Institution and to give him all service benefits maintaining his seniority is one without jurisdiction. Learned counsel appearing for the third respondent has submitted that till date the State Government has not acted upon the directions issued by the second respondent to retain the fourth respondent in the third respondent - Institution and to give him all service benefits maintaining his seniority. Under the circumstances, the following:
- 12 -
NC: 2023:KHC-D:6329 WP No. 103049 of 2021 ORDER The writ petition is disposed off with an observation that the order impugned insofar as it relates to directing the State Government to retain in the fourth respondent in the third respondent - Institution and to give him all service benefits maintaining his seniority is one without jurisdiction and the State Government, while considering the case, the fourth respondent would not be bound by the directions issued by the second respondent - Commission in paragraph 5(ii) of the impugned order and if the fourth respondent has any grievance that he has not been relieved by the third respondent or that the fifth respondent has not taken him for duty, he is always at liberty to approach the State Government seeking appropriate reliefs.
Sd/-
JUDGE Kgk & Vnp*/Ct:Bck List No.: 1 Sl No.: 6