Karnataka High Court
Dr Savinay Shreyaskar vs The State Of Karnataka on 4 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2533, 2021 (2) AKR 257
Bench: Aravind Kumar, Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
WRIT PETITION NO.12223 OF 2020 (S-KSAT)
BETWEEN:
DR. SAVINAY SHREYASKAR
S/O DR.G.M.KALLESHWARAPPA,
AGED ABOUT 36 YEARS,
WORKING AS A MEDICAL OFFICER,
SANTHEBENNUR COMMUNITY HEALTH CENTRE,
CHENNAGIRI TALUK - 577 552.
DAVANAGERE DISTRICT.
...PETITIONER
(BY SRI. A NAGARAJAPPA, ADVOCATE )
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT,
KARNATAKA GOVERNMENT SECRETARIAT,
VIKASA SOUDHA,
DR.AMBEDKAR VEEDHI
BENGALURU - 560 001.
2. THE COMMISSIONER FOR HEALTH AND FAMILY
WELFARE SERVICES
OFFICE OF THE COMMISSIONER,
ANANDARAO CIRCLE,
BENGALURU - 560 009.
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3. THE MEMBER SECRETARY FOR SPECIAL
RECRUITMENT
COMMITTEE-CUM-CHIEF ADMINISTRATIVE OFFICER,
HEALTH AND FAMILY WELFARE SERVICES
ANANDARAO CIRCLE,
BENGALURU - 560 009.
4. THE KARNATAKA MEDICAL COUNCIL
#16/6, MILLER TANK BED ROAD,
VASANTHNAGAR,
BENGALURU - 560 052.
5. THE MEDICAL COUNCIL OF INDIA
REP. BY ITS SECRETARY,
OFFICE AT POCKET 14, SECTOR-8,
DWARAKA PHASE-I,
NEW DELHI - 110 077.
...RESPONDENTS
(BY SMT. SHILPA GOGI, HCGP FOR R-1 TO R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER OF THE KARNATAKA ADMINISTRATIVE
TRIBUNAL AT BENGALORE IN APPLICATION NO.3797 OF
2020 DISPOSED OF ON 18.09.2020 AT ANNEXURE-B AND
ETC.
THIS WRIT PETITION IS COMING ON FOR ORDERS
THIS DAY, ARAVIND KUMAR J., MADE THE FOLLOWING:
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ORDER
Heard Sri.A.Nagarajappa, learned counsel appearing for petitioner and Smt.Shilpa Gogi, learned Additional Government Advocate appearing for respondents 1 to 3. Notice to respondents 4 and 5 stands dispensed with.
2. First respondent by notification dated 4th February 2020 and gazetted on 6th February 2020 published draft Rules of the Karnataka Directorate of Health and Family Welfare Services (Recruitment of Senior Medical Officers/Specialised, General Duty Medical Officers and Dental Health Officer) (Special) Rules 2019, in exercise of the power conferred under clause(a) of Sub Section (2) of Section 3 of the Karnataka State Civil Services Act, 1978 (Karnataka Act No.14 of 1990) and invited objections and suggestions from all persons likely to be affected thereby. Objections and suggestions received came to be considered and in exercise of power conferred under sub section (1) of 4 Section 3 read with Section 8 of the Karnataka State Civil Services Act 1978, the Rules called as Karnataka Directorate of Health and Family Welfare Services (Recruitment of Senior Medical Officers/Specialised, General Duty Medical Officers and Dental Health Officer) (Special) Rules 2020 came to be made and was published in gazette on 16.06.2020 (Annexure-A13). Amongst various category of posts and scale of pay which would carry with it was also specified in the schedule thereunder by fixing the qualification. Insofar as present writ petition is concerned, it revolves around the post of 'General Duty Medical Officers' (Rs.52,650 - Rs.97,100) whereunder minimum qualification fixed was :
"Must possess MBBS degree from a
University established by law in India. The
General Duty Medical Officers recruited
under these rules shall work in the rural areas for a minimum period of six years." 5
3. Petitioner, who had obtained a Bachelor Degree of Medicine and Bachelor of Surgery from the University of Mauritius on 11th June 2009 (Annexure-A3), submitted a representation to respondents 1 and 2 on 14th July 2020 Annexures A-14 and A-15 contending interalia that under notification dated 16th June 2020 (Annexure-A13), minimum qualification prescribed for General Duty Medical Officers is MBBS degree from a University established by law in India is required to be revised since he has acquired MBBS degree from the University of Mauritius and has also cleared the screening test prescribed by National Board Examination for Indian nationals with foreign medical qualification and has undergone internship in India and has also obtained registration certificate from both Indian Medical Council and Karnataka Medical Council and has been serving as a Medical Officer at Health & Family Welfare Department, Government of Karnataka on contract basis for last three years. It is also contended that eligibility prescribed under the notification dated 16th June 2020 would forbid 6 petitioner and persons similarly placed from applying to the post. As such, eligibility criteria is to be revised by specifying "MBBS degree from any University with Indian Medical Council and Karnataka Medical Council recognition'' in substitution to qualification that a candidate "must possess MBBS Degree from a University established by Law in India".
4. Notification dated 10th September 2020 (Annexure-A18) has been issued by first respondent calling for applications from eligible candidates including appointment to the post of "General Duty Medical Officer", which is pursuant to Special Rules dated 16th June 2020 published in Gazette on 14th July 2020.
5. Being aggrieved by same, petitioner filed an application before the Karnataka State Administrative Tribunal, Bengaluru in Application No.3797/2020 for quashing of the notification dated 10th September 2020 Anenxure A18 and also sought for a direction in the nature of mandamus to respondents 1 and 2 to allow the 7 applicant to participate in the appointment to the post of 'General Duty Medical Officer' in Department of Health and Family Welfare Services. Said application came to be adjudicated by the Tribunal and by order dated 18th September 2020 and rejected on the ground that Courts would not consider relevancy and equivalency of qualifications prescribed for various posts and power of judicial review in such matters cannot be exercised unless it is shown that action of employer is contrary to any constitutional or statutory provision or is patently arbitrary or vitiated due to malafides. Hence, petitioner is before this Court.
6. It is the contention of Mr.Nagarajappa, learned counsel appearing for petitioner, that petitioner though had filed objections to the draft Rules on 14th July 2020 Annexures-A14 and A15, Tribunal had proceeded on the premise that petitioner had not filed his objections which is contrary to facts. He would further submit that when Indian Medical Council, which is the Statutory Authority constituted under the Indian Medical 8 Council Act, 1956, has recognised equivalence of MBBS degree obtained by the petitioner from the Mauritius University, State Government or any other Statutory Authority would not be empowered to prevent or prohibit petitioner from filing application for the post of 'General Duty Medical Officer' which prescribes qualification of MBBS degree and as such, order of the Tribunal is liable to be set aside and application filed by the applicant before the Tribunal be allowed. He would submit that decisions relied upon by the Tribunal are inapplicable to facts of present case. He would also contend that it is not a case of qualification obtained by petitioner outside India being contrary to the Medical Council of India Act 1956 (for short 'MCI Act') more particularly, when Section 12(1) of the MCI Act recognizes medical qualifications granted by Medical Institution outside India Included in the Second Schedule is recognized as a medical qualification. Hence contending that MCI Act prevails over the State laws as per Article 254 of the Constitution of India. Hence, contending that respondents failed to apply the doctrine of "Iron Out 9 creases", the respondents authorities ought to have made appropriate provision by treating the petitioner as a candidate for the post of General Duty Medical Officer and Tribunal ought to have granted the relief and this aspect has been erroneously not considered. He would also further submit that qualification prescribed under impugned notification dated 10th September 2020 Annexure-18 is erroneous and liable to be quashed particularly in the background of the Indian Medical Council Act 1956 as well as Karnataka Medical Council having recognised degree issued by the Mauritius University to the petitioner to be equivalent to the degree issued by any University established by law in India. Hence, he prays for allowing the writ petition.
7. Per contra, Smt.Shilpa Gogi, Learned High Court Government Pleader appearing for respondents would support the impugned order and would submit that State being Rule Making Authority is empowered and entitled to fix qualification and candidates like petitioner would have no right to contend qualification prescribed 10 under the Notification dated 10.09.2020 being erroneous or equivalency qualification ought to have been fixed or accepted. Hence, she prays for dismissal of the writ petition.
8. It is well settled law that it is open to the Appointing Authority to lay down requisite qualification for recruitment of a Government servant and it falls in the domain of the policy maker as held by the Hon'ble Apex court in the case of THE COMMISSIONER, CORPORATION OF MADRAS v. MADRAS CORPORATION TEACHERS' MANDRAM AND OTHERS reported in AIR 1997 Supreme Court 2131. What should be the qualification for the post is a matter for administration to decide.
9. The Hon'ble Apex Court in the case of POST GRADUATE INSTITUTE AND OTHERS ETC., v. DR.J.B. DILAWARI AND OTHERS reported in AIR 1988 Supreme Court 1348 has held that :
"Though the Court, it is stated, is the expert of experts, it is proper to take note of 11 its limitations. Realization of this situation has led to a series of pronouncements where this Court has reiterated the position that matters involving expertise should be should be left to be handled by expert bodies".
Thus, it is for the Authorities to prescribe qualification etc., to regulate the method of recruitment and it is not the province of the Court to travel into the domain of appointing authority and prescribe qualifications, as held by the Apex Court in the case of V.K. SOOD v. SECRETARY, CIVIL AVIATION AND OTHERS reported in AIR 1993 SUPREME COURT 2285.
10. It is also trite law that any such prescription of higher qualification than those prescribed in the Rules is also the prerogative of the appointing authority or the employer as the case may be. In other words, if minimum qualification has been fixed or prescribed, the Appointing Authorities may also provide with other qualification and same will be a bar to such 12 appointment is an argument which can not be accepted by holding that prescribing higher qualification cannot be a ground for setting aside the appointments made..
11. In the matter of MOHAMMAD SHUJAT ALI AND OTHERS v. UNION OF INDIA AND OTHERS reported in AIR 1974 SUPREME COURT 1631, the Apex court has held that Government can decide as to what educational qualifications are to be treated as equivalent. It has further held as under :
"It must be noted that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, informed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would not lightly disturb the 13 decision of the Government. It is only where the decision of the Government is shown to be based on extraneous or irrelevant consideration or actuated by mala fides or irrational and perverse or manifestly wrong that the Court would reach out its lethal arm and strike down the decision of the Government."
12. Keeping these authoritative pronouncements in mind when we turn our attention to the facts on hand, it would emerge from the records that first respondent - Government before publishing or making the Rules 2020 had published draft Rules on 4th February 2020 and gazetted in part IV-A of the Karnataka Gazette on 6th February 2020 calling for objections and suggestions to be filed within 30 days from date of publication in official gazette. On the basis of objections and suggestions received, the Rules 2020 came to be made on 16th June 2020 and published in Karnataka Gazette also. Though petitioner claimed that he had filed objections to draft notification, Tribunal had rightly rejected the said contention inasmuch as thirty days 14 time granted to file objections had expired on 6th March 2020 and what was relied upon by petitioner is representation dated 14th July 2020, Annexures-A14 & A15, which obviously has been filed after the Rules have been made on 16th June 2020 and published on 14th July 2020. As such, contention raised with regard to objection having been filed and same having not been considered by Respondent-Authority does not hold water and is liable to be rejected and accordingly rejected.
13. Insofar as contention with regard to qualification prescribed under the Rules 2020 for post of 'General Duty Medical Officer' that a candidate should possess 'MBBS degree from a University established by law in India' is onerous since qualification possessed by petitioner would disclose that he is a MBBS degree holder and said degree issued by the Mauritius University having been recognized by the Indian Medical Council as well as Karnataka Medical Council and thereby he cannot be prohibited from applying on the ground that notification only specifies "MBBS degree 15 from a University established by law in India" having been prescribed is an argument which requires to be considered for outright rejection.
14. As to whether courts have jurisdiction to examine equivalence of qualification prescribed by the Authority is an issue which is no more res integra. The Hon'ble Apex Court in the matter of THE MAHARASHTRA PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY v. SANDEEP SHRIRAM WARADE AND OTHERS in CA No.4597/2019 and connected matters disposed of on 03-05-2019 has held question of equivalence will fall outside the domain of judicial review. It has been further held:
"10. xxx xxx xxx Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to back to the appointing authority after 16 appropriate orders, to proceed in accordance with law. In no case can the Court, in the grab of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."
16. In the matter of SANJAY KUMAR MANJUL vs. CHAIRMAN, U.P.S.C. AND OTHERS reported in AIR 2007 SC 254 a question arose as to whether experience in "Epigraphy" may be considered to be "field experience in Archeology", for appointment to the post of "Superintending Archeologist" in Archeological Survey of India. It came to be held by Hon'ble Apex Court:
"24. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision thereof.
25. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same.17
26. It is well settled that the superior courts while exercising their jurisdiction under Article 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post."
15. In instant case, State Government by virtue of power conferred under sub section (1) of Section 3 r/w.Section 8 of the Karnataka Civil Services Act 1978 has made Rules 2020 referred to herein supra prescribing thereunder that candidates applying for the post of "General Duty Medical Officers'' must possess degree from a University established by law in India. The said qualification prescribed by the Authority cannot be found fault with, inasmuch as, it is in the domain of the Appointing Authority to prescribe as to what qualification a candidate should possess and it is for the Appointing Authority to decide as to whether any relaxation can be made in the prescribed qualification. The appointing authority if intends or is of the considered view that even degree holders of other University who are having degree equivalent to MBBS 18 would also be entitled to participate or apply, they would have said so in the notification. There is conscious omission of equivalent degrees viz. the degrees obtained by the candidates from other Universities under the impugned notification dated 10.09.2020 since equivalence has not been specified or indicated under the Rules 2020 and same cannot be found fault with. Merely because the Indian Medical Council or the Karnataka Medical Council has recognized said degree obtained from foreign University, by ipso facto does not entitle a candidate to contend that employer should be compelled to provide opportunity to equivalent degree holders to apply or participate in recruitment process. As to whether equivalent degree holders should be included or excluded is the discretion of the appropriate Appointing Authority and in instant case, the State Government has prescribed only candidates possessing MBBS degree issued by a University established by law in India as the qualification. Neither courts nor Tribunals could either examine equivalence of qualification nor can it compel the Appointing Authority 19 to do so. It is completely within the domain of appointing Authority. As such, we do not find any error either on facts or in law having been committed by the Tribunal in rejecting the application of the petitioner.
16. For reasons aforestated, prayer sought for in the writ petition cannot be granted and writ petition stands dismissed.
17. However, we make it clear dismissal of this writ petition would not come in way of petitioner pursuing his grievance before first respondent by submitting a fresh representation to consider equivalency of degree obtained by him to be equivalent to the degree granted by a University established by law in India, if he so desires. It is needless to state in the event of such fresh representation being submitted, first respondent would examine the same on merits and in accordance with law without being influenced by any observations made herein above and by virtue of this liberty granted it shall not be construed by the 20 respondents as to any fetter having been imposed by this court to the recruitment process already commenced and same can be proceeded with.
SD/-
JUDGE SD/-
JUDGE rs