Karnataka High Court
Dr.Adnan Saeed vs The State Of Karnataka on 5 April, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.25219 OF 2022 (S-RES)
BETWEEN:
DR. ADNAN SAEED
S/O ISMAIL BAIG
AGED ABOUT 46 YEARS
#22, AGA ABBAS ALI ROAD,
HALASOOR ROAD CROSS,
BENGALURU - 560 042.
...PETITIONER
(BY SMT. JAYNA KOTHARI, SENIOR ADVOCATE FOR
SRI. ROHAN KOTHARI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
MEDICAL EDUCATION DEPARTMENT
ROOM NO.611, 6TH FLOOR,
4TH PHASE, M.S. BUILDING,
BENGALURU - 560 001.
REP. BY ITS SECRETARY.
2. THE STATE OF KARNATKA
DEPARTMENT OF HEALTH AND FAMILY WELFARE
NO.32, 1ST CROSS ROAD,
KESHAVA NAGAR, BINNIPETE,
BENGALURU - 560 023.
REP. BY ITS PRINCIPAL SECRETARY.
2
3. BENGALURU MEDICAL COLLEGE
RESEARCH INSTITUTE ('BMCRI')
FORT, KRISHNA RAJENDRA ROAD,
BENGALURU - 560 002.
REPRESENTED BY ITS DIRECTOR.
4. THE INQUIRY OFFICER
BANGALORE MEDICAL COLLEGE AND
RESEARCH INSTITUTE,
FORT, KRISHNA RAJENDRA ROAD,
BENGALURU - 560 002.
...RESPONDENTS
(BY SRI. M.S. NAGARAJA, AGA FOR R1 & R2;
SRI. P.S. MALIPATIL, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DIRECT THE RESPONDENT NO.1 TO SET-ASIDE THE
GOVERNMENT ORDER DATED 07TH AUGUST, 2013 VIDE
ANNEXURE-C; DIRECT THE RESPONDENTS TO SET-ASIDE
THE NOTICE DATED 11TH APRIL, 2022 VIDE ANNEXURE-G
AND 06TH MAY, 2022 VIDE ANNEXURE-J AND ACCEPT THE
PETITIONER'S RESIGNATION DATED 27TH AUGUST, 2021
VIDE ANNEXURE-F; AND ETC.
IN THIS WRIT PETITION, ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT
OF ORDERS", THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
In this writ petition, the petitioner is assailing Government Order dated 07th August, 2013 (Annexure-C), 3 Notices dated 11th April, 2022 (Annexure-G), 06th May, 2022 (Annexure-J), and Show-cause Notice dated 15th July, 2022 (Annexure-L); inter-alia sought for direction to respondents to accept the resignation of the petitioner filed on 27th August, 2021 (Annexure-F).
2. The relevant facts for adjudication of this petition are that the petitioner is specialised in Oncology and was appointed as Intensive Care Medical Officer (for short, hereinafter referred to as 'ICMO') on 22nd October, 2009 at Department of General Surgery in the respondent No.3- Bangalore Medical College and Research Institute (for short, hereinafter referred to as 'BMCRI') pursuant to selected in an walk-in-interview, and reported for duty in the respondent No.3-BMCRI in the Department of General Surgery, Bowring and Lady Curzon Hospital as per the appointment order dated 27th October, 2009 (Annexure-A). It is further stated in the writ petition that in terms of Rule 5(1) of Karnataka Civil Services Rules, 1977, the period of probation is for a period of two years and same was 4 declared on 21st October, 2011. In the meanwhile, the respondent No.2 issued Government order dated 07th August, 2013 (Annexure-C), inviting applications from the eligible in-service candidates for pursuing Super Specialty course, subject to condition that the candidates must serve compulsorily in Government service till their retirement. It is further stated in the writ petition that the petitioner succeeded in Post-Graduate Super specialty Entrance Test- 2015 as an in-service candidate for the Academic year 2015 and has availed seat at Kidwai Memorial Institute of Oncology (for short hereinafter referred to as 'KIMO') to pursue Masters in Surgical Oncology course after getting relieved from his parent department. After completing the Super Specialty course in Surgical Oncology by deputation, for three years, in KIMO from 2015 to 2018, the petitioner was relieved of his deputation period as per Official Memorandum dated 08th August, 2018 (Annexure-D). On the next day i.e., on 09th August, 2018 (Annexure-E), the petitioner approached the respondent No.1-Government 5 seeking placement at KIMO, since there is no Department of Surgical Oncology at respondent No.3-BMCRI.
3. It is the grievance of the petitioner that neither the respondents 1 and 2-Government nor the respondent No.3- BMCRI had given posting to the petitioner and as such, it is the grievance of the petitioner that since no posting was given to him nor able to get salary and as such, he tendered resignation to the respondent No.1-Government on 27th August, 2021 (Annexure-F). The said resignation was not accepted by the respondent No.1-Government and on the other hand, the respondent No.3-BMCRI has issued notice dated 11th April, 2022 (Annexure-G), seeking explanation from the petitioner for unauthorized absent. In pursuance of the same, petitioner made reply dated 14th April, 2022 (Annexure-H). Again the respondent No.3-BMCRI issued one more notice on 06th May, 2022 (Annexure-J) and in furtherance of the same, the petitioner replied by letter dated 03rd June, 2022 (Annexure-K) stating that the petitioner was not given placement, and therefore, tendered 6 resignation. In the meanwhile, the respondent No.3-BMCRI issued a Show-cause notice dated 15th July, 2022 (Annexure-L), seeking explanation that as the petitioner was absent from 10th August, 2022 and stated that the petitioner has violated the Government Order dated 07th August, 2013 and bye-laws of the respondent No.3-BMCRI as well as Rule 3(1) of Karnataka Civil Services (Conduct) Rules, 2021. Feeling aggrieved by the same, the petitioner filed reply dated 18th August, 2022 (Annexure-M). It is contended in the writ petition that the respondent No.1-Government without considering the reply made by the petitioner, has appointed the Inquiry Officer as per order dated 21st August, 2022 (Annexure-N) and initiated domestic enquiry against the petitioner. Being aggrieved by the action of the respondents, petitioner filed this writ petition.
4. Heard, Smt. Jayna Kothari, learned Senior Counsel on behalf Sri. Rohan Kothari, appearing for the petitioner Sri. M.S. Nagaraja, learned Additional Government Advocate 7 appearing for respondents 1 and 2 and Sri. P.S. Malipatil, learned counsel appearing for the respondent No.3-BMCRI.
5. Smt. Jayna, Kothari, learned Senior Counsel appearing for the petitioner contended that the action taken by the Government insisting the candidates to enter into a contract to work compulsorily with the Government is contrary to the law declared by the Hon'ble Apex Court in the case of ASSOCIATION OF MEDICAL SUPER SPECIALITY ASPIRANTS AND RESIDENTS AND OTHERS vs. UNION OF INDIA AND OTHERS made in Writ Petition (Civil) No.376 of 2018 decided on 19th August, 2019. Referring to the aforesaid judgment, learned Senior Counsel Smt. Jayna Kothari contended that the impugned Bond entered into between the petitioner and respondent- Government mandates that the Doctors will have to serve compulsorily till retirement and are not eligible for voluntary retirement, which is contrary to law and liable to be interfered with in the writ petition.
8
6. Nextly, learned Senior Counsel appearing for the petitioner contended that even though the petitioner wanted to fulfill the condition of compulsory service in terms of the Bond referred to above, no posting was given to the petitioner despite repeated request made by the petitioner and in view of not allowing the petitioner to work nor releasing salary for that interregnum period, the petitioner was constrained to made an application for resignation and accordingly, it is submitted that the action of the respondent initiating enquiry against the petitioner is liable to be quashed.
7. Per contra, Sri. P.S. Malipatil, learned counsel appearing for the respondent No.3-BMCRI contended that though the petitioner executed Bond as prescribed in the Government order, he was relieved from service to pursue his super specialty course and after completion of three years of deputation for higher studies, the petitioner was relieved by Kidwai and he approached the respondent- Government instead of reporting back to the respondent 9 No.3-BMCRI. Accordingly, he sought for dismissal of the writ petition. Emphasizing on these aspects, Sri. P.S. Malipatil argued that the respondent No.3-BMCRI is a parent department and without reporting to the parent department i.e., respondent No.3-BMCRI, the petitioner approached the respondent No.1-Government and remained absent. Therefore, he contended that the impugned orders are just and proper and does not call for interference in this writ petition.
8. Sri. M.S. Nagaraja, learned Additional Government Advocate appearing for the respondents 1 and 2 submit that pursuant to request made by the petitioner for posting, the Government has scrutinized and secured report of availability of vacancy from KIMO by letter dated 22nd September, 2018 and 17th October, 2019 (Annexure-R1) and therefore, it is contended that the petitioner ought to have attended the office regularly and signed the Attendance Register. He submitted that the petitioner remained absent and failed to sign the Attendance Register 10 and therefore, the impugned action taken by the Government, issuing notice for un-authorised absent is just and proper. Accordingly, he sought for dismissal of the petition.
9. In the light of the submission made by learned counsel appearing for the parties, it is the grievance of the petitioner that the action of the respondents to compel the candidates to enter into an agreement to work with the Government compulsorily and to execute the Bond by accepting undertaking to work till retirement is contrary to law. At this juncture, it is relevant to extract Paragraph 7 of the Agreement, which reads as under:
"¤AiÉÆÃd£ÉUÉÆAqÀ ¨ÉÆÃzsÀPÀ ¹§âA¢AiÀÄÄ PÀqÁØAiÀĪÁV ¸ÉêÁ ¤ªÀÈwÛAiÀĪÀgÉUÉ ¸ÀPÁðgÀªÀÅ £ÉêÀÄPÁw ¸ÀܼÀzÀ°è ¸ÉÃªÉ ¸À°è¸ÀĪÀÅzÀÄ PÀqÁØAiÀĪÁVzÀÄÝ ¸ÀéAiÀÄA ¤ªÀÈwÛUÉ gÁfãÁªÉÄUÉ CºÀðjgÀĪÀÅ¢®è."
10. In this regard, I have carefully examined the law declared by the Hon'ble Apex Court in the case of ASSOCIATION OF MEDICAL SUPER SPECALITY ASPIRANTS (supra), wherein, it is held that the conditions of execution of compulsory bonds for admission to Post- 11 Graduation and Super Specialty courses in Government Medical Colleges are just and proper. However, at paragraph 19 of the judgment, it is observed that compelling the candidates to work with unreasonable period compulsorily was held to be invalid. Paragraph 19 of the judgment reads as under:
"19. Reasonableness is a ground that pervades through the submissions made by the counsel on both sides. In the State of West Bengal, the requirement of a compulsory bond was initially a service of one year in the State in default of Rs.10 Lakhs was to be paid. This was enhanced to three years and Rs.30 Lakhs by a Notification dated 09.10.2014. In the State of Tamil Nadu, the bond condition was that a doctor has to serve for ten years in the State and in default of which, the doctor was to pay Rs.2 Crores. This was reduced to two years and Rs.50 Lakhs. The Armed Forces Medical College imposes a condition of five years compulsory service in the Army for post-graduate and super Speciality doctors who prosecuted their study in the college. They have an option of not serving for five years by recompensing the Government by paying Rs.25 Lakhs. The main contention of the counsel appearing for the Appellants is that the condition of a long period of service that is imposed is 12 unreasonable. The basis for the submission is that they have already served the society by working in Government hospitals while undergoing their course. Further conditions imposed on them would impede the progress of their careers. Restrictions placed on their choice of place of work are also unreasonable according to them. An alternate submission made by the counsel appearing for the Appellants is that the imposition of the condition of compulsory bond should be reasonable and the exit clause should be relaxed. Notifications issued by the State Governments imposing a condition of compulsory service and a default clause are per se not unreasonable. However, we are in agreement with the learned counsel for the doctors that the period of compulsory service and the exit should be reasonable. The State Governments and the Armed Forces Medical College are directed to consider imposing the condition of compulsory service period of two years in default of which the Doctors shall recompense the Government by paying Rs. 20 Lakhs."
11. Taking into consideration the law laid down by Hon'ble Apex Court in the aforementioned case, I am of the view that paragraph 7 of the Bond executed by the petitioner in favour of the respondent-Government is liable 13 to be quashed. In the backdrop of this aspect, I am of the view that respondent-Authorities ought to have accepted the letter of resignation dated 03rd June, 2022 (Annexure-K), subject to the observation made by Hon'ble Apex Court in the case of ASSOCIATION OF MEDICAL SUPER SPECALITY ASPIRANTS (supra).
12. It is also pertinent to mention here that condition Nos.3 and 4 of the Government Order dated 07th August, 2013 (Annexure-C) provides that the Teaching staff posted for Super speciality Course should apply through appropriate channels and get the posting order from the Government. It is also noted that such Teaching staff assigned to Super Speciality Course will have to report to the Government after completing the Super Specialty Course and seek further postings. The Government may appoint such Teaching staff after completion of course in any Autonomous Medical Institution of the State Government in the relevant Super Speciality category and the staff shall compulsorily accept such appointment. Condition No.7 in the 14 Government Order Dated 07th August, 2013 (Annexure-C) further stated that the Teaching staff who were deployed in pursuing the Super Speciality Course shall serve compulsorily at the place appointed by the Government till compulsory retirement and shall not be eligible for resignation on voluntary retirement. On careful examination of aforementioned terms and conditions in the Government Order dated 07th August, 2013 (Annexure-C), it is pertinent to mention here that the petitioner was relieved by Kidwai Cancer Institute, after completion of Super Speciality Course, on 08th August, 2018 (Annexure-D) and immediately on the next day, the petitioner approached the respondent No.1-Government on 09th August, 2018 requesting the respondent-Government to provide placement for continuance of his work (Annexure-E). The respondent No.1-Government has acknowledged the letter dated 09th August, 2018, however, did not act nor taken decision to show placement to the petitioner. It is also to be noted that on 27th August, 2021 (Annexure-F), the petitioner tendered resignation to the respondent No.1- 15 Government on the ground that the Government has not provided placement nor released salary and hence, he is facing financial crisis in the family on account of non- payment of salary. In the meanwhile, the respondent No.3 herein by letter dated 11th April, 2022 (Annexure-G) and 17th March, 2022 at the instance of the State Government, issued notice to the petitioner, seeking explanation for remaining absent subject to Karnataka Civil Services Rules. The petitioner has made reply dated 14th April, 2022 (Annexure-H). However, the respondent No.3-BMCRI has rejected the explanation offered by the petitioner and thereby, initiated the Department Enquiry against the petitioner by issuing charge memo produced at Annexure-L dated 15th July, 2022. Thereafter, the petitioner replied by letter dated 18th August, 2022(Annexure-M). In the backdrop of these facts, on careful examination of the charge memo, where by the Government has issued notice vide Annexure-L on the ground that the petitioner was remained absent without permission of the Government and accordingly, it is the contention of the respondent- 16 Government that the petitioner remained un-authorised absent, which amounts to misconduct under Rule 3(1) of Karnataka Civil Services (Conduct) Rules, 2021.
13. It is not in dispute that the petitioner immediately after completion of his Super Speciality course on 08th August, 2018 (Annexure-D), reported to the respondent No.1-Government on 09th August, 2018 and there is no explanation from the respondent-Government for providing suitable posting to the petitioner and without doing so, have issued the charge memo on 15th July, 2022 (Annexure-L) on the ground that the petitioner was un-authorised absent, is blatantly wrong and impugned order of issuance of charge memo is to victimize the petitioner without any wrong on his part. Clause 3 and 4 of Government Order dated 07th August, 2013 itself provides for reporting to the Government after completing the Super Speciality course and as such, petitioner has reported to the Government on 09th August, 2018 and therefore, the action of the respondent- Government is contrary to law and accordingly, I find force 17 in the submission made by Smt. Jayna Kothari, learned Senior Counsel appearing for the petitioner. Now, it is the duty of the respondent-Government to pay salary to the petitioner for the period for which posting was not given. Therefore, the Chief Secretary to Government is directed to conduct an enquiry and to recover the loss caused to the respondent-Government on whose behalf, the Government has to release salary for the said period. In the result, I pass the following:
ORDER
(a) Writ petition is allowed;
(b) Government Order dated 07th August, 2013 (Annexure-C) is partly accepted in terms judgment rendered by Hon'ble Apex Court in the case of ASSOCIATION OF MEDICAL SUPER SPECIALITY ASPIRANTS AND RESIDENTS AND OTHERS vs. UNION OF INDIA AND OTHERS made in Writ Petition (Civil) No.376 of 2018 decided on 19th August, 2019;18
(c) Notice dated 11th April, 2022 (Annexure-G), Notice dated 06th May, 2022 (Annexure-J), Show-cause Notice dated 15th July, 2022 (Annexure-L) and Government Order dated 21st October, 2022 (Annexure-N) are hereby quashed;
(d) The Chief Secretary to Government, Government of Karnataka is directed to hold an enquiry and file the report to the this Court within six months from the receipt of this order.
Ordered accordingly, SD/-
JUDGE ARK