Karnataka High Court
Dr. L. Umesh vs State Of Karnataka on 2 December, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.47256 OF 2015 (S-RES)
BETWEEN:
DR. L. UMESH
AGED ABOUT 54 YEARS
S/O LATE G S LINGARAJ
WORKING AS PROFESSOR & HOD
DEPARTMENT OF NEPHROLOGY
(VICTORIA HOSPITAL CAMPUS)
BANGALORE-560002
AND R/A NO.1604-G, MANTHRI GREENS
SAMPIGE ROAD, MALLESWARAM
BANGALORE-560003
...PETITIONER
(BY SRI: P.S. RAJAGOPAL, SENIOR ADVOCATE A/W
SRI: RAGHAVENDRA G GAYATRI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS ADDL CHIEF SECRETARY TO GOVT.,
DEPARTMENT OF HEALTH & FAMILY
WELFARE SERVICES (MEDICAL EDUCATION)
1ST FLOOR, VIKAS SOUDHA
DR AMBEDKAR VEEDHI
BANGALORE-560001
2. STATE OF KARNATAKA
BY ITS ADDL CHIEF SECRETARY TO GOVT.,
DEPARTMENT OF HEALTH & FAMILY
WELFARE SERVICES, 1ST FLOOR
VIKAS SOUDHA, DR AMBEDKAR VEEDHI
BANGALORE-560001
2
3. DIRECTOR
INSTITUTE OF NEPHRO-UROLOGY
(VICTORIA HOSPITAL CAMPUS)
BANGALORE-560001
4. DR R KESHAVA MURTHY
AGED ABOUT 50 YEARS
S/O BYRANNA
PROFESSOR & HOD
DEPARTMENT OF UROLOGY
INSTITUTE OF NEPHRO-UROLOGY
(VICTORIA HOSPITAL CAMPUS)
BANGALORE-560002
...RESPONDENTS
(BY SRI: DHYAN CHINNAPPA, AAG A/W
SRI: R. SRINIVASA GOWDA, AGA FOR R1 & R2;
SRI: GURURAJ JOSHI, ADVOCATE FOR R3;
SRI: MADHUSUDHAN R.NAIK, SR. ADVOCATE A/W
SRI: M.R. RAJAGOPAL, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE
RECORDS LEADING TO THE ORDERS DATED 25.8.2000, 27.6.2015
AND 29.7.2015 AND QUASH THE ORDER DATED 29.11.2008 VIDE
ANN-AC, INSOFAR AS IT PERTAINS TO ABSORPTION OF THE R-4 INTO
THE SERVICES OF THE INSTITUTE OF NEPHRO-UROLOGY AND QUASH
NOTIFICATION DATED 4.12.2008 VIDE ANN-AD, AND QUASH THE
INTER-DEPARTMENTAL FINAL SENIORITY LIST DATED 29.7.2015 VIDE
ANN-E INSOFAR AS IT INCLUDES THE NAME OF THE R-4 AND QUASH
THE NOTIFICATION DATED 27.8.2015 VIDE ANN-F, PLACING THE R-4
IN AS ADDITIONAL CHARGE OF THE POST OF DIRECTOR OF
INSTITUTE OF NEPHRO-UROLOGY AND GRANT ALL CONSEQUENTIAL
BENEFITS INCLUDING SENIORITY TO THE PETITIONER OVER AND
ABOVE THE R-4 AND APPOINT THE PETITIONER AS DIRECTOR OF THE
INSTITUTE OF NEPHRO-UROLOGY.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 17.11.2020 AND COMING ON FOR PRONOUNCMENT
OF ORDER, THROUGH VIDEO CONFERENCE, THIS DAY, THE COURT
MADE THE FOLLOWING:
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ORDER
A tussle between the petitioner and respondent No.4 for the post of Director in the autonomous Institute of Nephro- Urology established by the State of Karnataka has led to the filing of this petition under Article 226 of the Constitution of India.
2. Petitioner claims to be a Post Graduate Degree holder (MD) in Paediatrics and super-specialty degree namely DM Nephrology. He joined M.S. Ramaiah Medical College on 13.08.1996 as Assistant Professor and promoted as Associate Professor in the Department of Nephrology with effect from 1.01.2000 and further promoted as Professor of Nephrology with effect from 01.01.2004.
3. Pursuant to the notification issued by the third respondent / Institute of Nephro-Urology, he applied for the post of Professor of Nephrology and after due selection process, was appointed as Professor of Nephrology vide Annexure-'B' dated 18.05.2012 and reported for duty on 31.05.2012. He was 4 declared to have satisfactorily completed the probation on 09.02.2015.
4. According to the petitioner, right from the inception of the 3rd respondent/Institute, there was no seniority list notified in any cadre whatsoever. For the first time, third respondent/Institute published a provisional seniority list of teaching staff namely Professor, Associate Professor and Assistant Professor as on 26.06.2015 by its office order dated 27.06.2015. The petitioner filed his objections to the provisional seniority list on 29.06.2015 and requested the third respondent / Institute to restore his seniority based on the length of service in the cadre of Professor as the petitioner was senior to the fourth respondent in the cadre of Professor. The grouse of the petitioner is that without considering his objection, a final seniority list was published on 29.07.2015 showing the name of the petitioner below the fourth respondent. Pursuant to the said seniority, after the retirement of one Dr.N.H.Nagaraj, Professor of Urology, the Government issued a Notification on 27.08.2015 (Annexure-F) appointing the 4th respondent as the Director on 5 additional charge with effect from 01.09.2015. According to the petitioner, this order is without jurisdiction as the power to appoint Director on officiating basis is vested on the Governing Council and not on the Government. Alleging that the erroneous seniority list has led the fourth respondent to steal a march over the petitioner, the petitioner has approached this Court seeking the following reliefs viz:
a) Quash order bearing No. HFW 409 MMC, 2008, dated 29.11.2008 (under Annexure-AC to the writ petition) insofar as it pertains to absorption of the 4th respondent into the services of the Institute of Nephro-Urology by issue of a writ in the nature of certiorari or such other appropriate writ, order or direction;
b) Quash notification bearing No.INU/EST(1)/54/ 2008-09 dated 04.12.2008 (under Annexure-AD to the writ petition) and quash the inter departmental final seniority list dated 29.07.2015 (under Annexure-E to the writ petition) insofar as it includes the name of the 4th respondent;
c) Quash notification bearing No.AKuKa/273/MSF/ 2015, dated 27.08.2015 (under Annexure-F to the writ petition) placing the 4th respondent in as additional charge of the post of Director of Institute of Nephro-Urology;
d) And grant all consequential benefits including seniority to the petitioner over and above the 4th respondent and a writ of mandamus appoint the 6 Petitioner as Director of the Institute of Nephro-
Urology; and
e) Issue such other appropriate writ, order or direction as this Hon'ble Court deems fit to grant in the interest of justice and equity, including the award of costs of this writ petition.
5. In support of these reliefs it is averred in the petition that the fourth respondent was appointed on 5.07.1991 as Assistant Surgeon in the second respondent / Department of Health and Family Welfare. While on probation, he remained unauthorisedly absent from duty with effect from 1.11.1994. Hence, a charge memo was issued to the fourth respondent on 23.08.1995 for his unauthorized absence from duty in violation of Rule 106A and Rule 108 of the Karnataka Civil Service Rules vide Annexure-H and an enquiry was initiated and charge against the fourth respondent was held proved. The 2nd Respondent accepted the report of the Inquiry Officer and imposed penalty of dismissal from service upon the 4th respondent which is a disqualification for future employment in the Government, as contemplated under Rule 8(viii) of the Karnataka Civil Service (Classification, Control and Appeal) 7 Rules, 1957, by its order dated 16.07.1996 (Annexure-K). The 4th respondent challenged the said order by filing an Application before the Karnataka Administrative Tribunal in Application No.5799 of 1996. The Tribunal by its order dated 20th February 1997 referred the Application to a larger Bench. The larger Bench of the Tribunal disposed of the Application on 04.04.1997 (Annexure-'L') remitting the matter back to the Government.
6. According to the petitioner, while directing the Government to reconsider the matter, the Tribunal neither set aside the penalty of dismissal from service nor ordered reinstatement. In the meanwhile, the fourth respondent joined the service of Manipal Institute in April 1997. The second respondent issued a show cause notice to the fourth respondent on 16.06.1997 (Annexure-'M') enclosing copy of the report of the Inquiry Officer. The fourth respondent submitted his reply to the second show cause notice on 25.06.1997 vide Annexure-N contending that application submitted by him on 16.01.1995 seeking study leave was not responded to by the second respondent. According to the petitioner, this reply itself 8 demonstrated that from 01.11.1994, the fourth respondent remained unauthorisedly absent till 16.01.1995 and he had not even submitted an application for leave and that the study leave could not have been sanctioned by the Government as the fourth respondent was still on probation and as such, he was ineligible to apply for study leave.
7. The further case of the petitioner is that suppressing the fact of his dismissal from service and consequent disqualification for future employment under the Government, the fourth respondent applied for the post of Lecturer in Urology pursuant to the notification issued by the Government through the Karnataka Public Service Commission on 08.06.1999 vide Annexure-P. In the application, the fourth respondent suppressed the entire history of his past service leaving the space of previous employment with the Government blank. Pursuant to the selection process conducted by the Karnataka Public Service Commission, the fourth respondent was appointed as Lecturer in Urology which was in the very same Department 9 of Health and Family Welfare on 25.08.2000 (Annexure-Q) and posted him to Bangalore Medical College, Bangalore.
8. In the meanwhile, the Government having come to know of the fact that the fourth respondent was suffering from the penalty of dismissal from service which was a disqualification for future employment and that by suppression of material fact, he secured appointment and was working as Lecturer in Urology in the Department of Medical Education under the very Government, the matter was moved before the competent authority on 05.06.2003. It is averred in the petition that on coming to know of the said development, the fourth respondent generated an antedated resignation letter dated 02.05.2003 and served it on the Hon'ble Minister for Health on 23.06.2003 vide Annexure-V. The department of Health and Family Welfare throwing all norms, rules and instructions that were in force to the winds and acting even beyond the prayer of the fourth respondent who did not seek retrospective acceptance of the resignation, accepted the resignation of the fourth respondent with retrospective effect from 1.11.1994 by an order dated 10 18.07.2003 vide Annexure-W. Soon thereafter the Government passed order dated 17.09.2003 (Annexure-X) declaring satisfactory completion of his probation in the Medical Education Department with full knowledge of the fraudulent nature of appointment secured by the fourth respondent.
9. The further case of the petitioner is that the fourth respondent, who was then working as Lecturer at Bangalore Medical College, after the establishment of the third respondent
- Institute as autonomous Institution, was deputed to the Institute on 28.11.2006. He was promoted as Assistant Professor in the Government and taken back to the Government service. The fourth respondent reported for duty at the Institute on the afternoon of 30.03.2007 (Annexure-AA). He was promoted as Professor of Urology in the Government by notification dated 18.08.2008 (Annexure-AB) with effect from 31.08.2008. Thereafter, he was again repatriated to the Government and yet again deputed to the Institute. On his third deputation, he joined the Institute on 02.09.2008. Things standing thus, the Government conveyed its sanction for permanent absorption of 11 teaching staff of the second respondent working on deputation in the third respondent/Institute by order dated 29.11.2008. In the said Government order, the name of the fourth respondent was placed at Sl.No.6 (Annexure-AC). According to the petitioner, by misreading sanction of the Parent Department, the Director of the Institute ordered absorption of the fourth respondent into the services of the third respondent/Institute by order dated 4.12.2008 (Annexure-AD). This order is without authority of law as the Director of the Institute is incompetent to order absorption that too without any selection by the Selection Committee as stipulated under Rule 12 of the Rules and Regulations of the Institute. Thus, it is contended that the journey of the fourth respondent in the service of the State Government being a product of fraud, ignoring the disqualification and deliberate suppression of facts, his absorption being incompetent and unlawful, the fourth respondent's inclusion in the seniority list as an employee of the Institute is untenable and consequently, his appointment as Incharge Director of the Institute is also illegal and violative of the Rules and Regulations of the Institute. Hence the petition. 12
10(i) On behalf of respondent Nos.1 and 2, common statement of objections is filed wherein it is contended that the respondent Nos.1 and 2 are empowered to place the fourth respondent in additional charge as it is only an interim arrangement and not a regular appointment. It is further stated that the seniority list of the Institute was published in 2013 and later it was published in 2015. Petitioner did not file any objection to the seniority lists published in 2013 and 2015. Respondent Nos.1 and 2 denied the contention of the petitioner that the entry of respondent No.4 into service is fraught with fraud and false representation only to claim seniority over the petitioner for which he does not have any merit. It is further contended that the petitioner joined the service on 31.05.2012 when he was aged 50 years 7 months and 17 days contrary to the Cadre and Recruitment Rules of the Institute which had stipulated the age of entry for the post of Professor for direct recruitment as 45 years for General candidate. Eventhough the seniority list was published by the Institute in 2013 and later in January 2015, petitioner filed his objection to the provisional 13 seniority list only on 29.06.2015, requesting the Institute to consider his services in private medical college; but since the petitioner had joined the Institute only on 31.05.2012 and the services rendered by him elsewhere could not be considered, his objections were not valid and for the said reason, final seniority list was published on 29.07.2015 and on the retirement of Dr.N.H.Nagaraj, Professor of Urology, respondent No.4 being the senior-most of the teaching faculty, in exercise of the powers vested with the Government to appoint a Director, he was put in additional charge only by way of interim arrangement till regular Director was appointed. It is not a promotion but only vesting with the additional charge and therefore, the prayer made in the petition challenging the appointment of fourth respondent as Director on additional charge is misconceived.
10(ii) With regard to the contention urged by the petitioner alleging that the fourth respondent was a dismissed employee and was disqualified for appointment under the Government, respondent Nos.1 and 2 in the objection statement asserted that the order of dismissal issued against the fourth respondent was 14 considered by the larger Bench of the Karnataka Administrative Tribunal and by its order dated 04.4.1997, the matter was remitted to the Government with a direction to serve the enquiry officer's report on the fourth respondent. This order implied that the dismissal order was not in force and the Government was empowered to take suitable action in accordance with law after seeking the explanation from the fourth respondent. Respondent No.4 filed his reply and on consideration of his reply, Government ordered for closure of the enquiry against the fourth respondent by accepting the resignation of the fourth respondent with effect from 01.11.1994 without any service or financial benefits to respondent No.4. After the finality of this process, the probationary period of respondent No.4 was declared as successful.
10(iii) According to Respondent Nos.1 and 2, after the establishment of the Institute of Nephro-Urology, Respondent No.4 was deputed to the Institute along with the other teaching staff in public interest. The Institute of Nephro-Urology absorbed the services of the teaching faculty who were on 15 deputation vide Annexure-23 after following due process for absorption as required under the Rules and Regulations of the Institute. The option from the deputed teaching faculty was obtained and later a Screening Committee was formed which went through the applications for absorption. The recommendation of the Screening Committee was approved by the Governing Council after which the Government passed the order of absorption dated 29.11.2008 (Annexure-25). It is further contended that as on the date of absorption of the fourth respondent, the petitioner was not in the service of the Institute and therefore, he does not have any locus standi to challenge the absorption of the teaching faculty made in the year 2008. Further it is contended that there is no provision for absorption of the teaching faculty in the Rules & Regulations of the Institute.
11(i) Respondent No.3 in its statement of objections has taken up the plea that the petitioner has suppressed many facts before the Court and therefore there is no merit in the writ petition; the Institute of Nephro-Urology, Bangalore has not 16 been made as party, as such, petition against the Director of Institute of Nephro-Urology, Bangalore, cannot be maintained for the reliefs sought therein and without the Governing Council of the Institute of Nephro-Urology, Bangalore, being made as party to the petition, no relief can be granted to the Petitioner. It is contended that the petitioner has intentionally avoided the Bye-Law No.23 of the Institute, which provides that "In respect of matters not provided for the rules as applicable such as General Conditions of service, travelling and daily allowance, leave salary, joining time, foreign service, terms and orders and decisions issued in this regard by the State Government from time to time shall be applicable mutatis-mutandis to the employees of the Institute till the rules in this regard are framed by the Governing Council." It is the case of the third respondent that the Governing Council has not framed specific rules for the posting of Director during the interregnum period from the date of superannuation of the outgoing Director and appointment of the new Director and hence as per Rule No.13 of Rules and Regulations of the Institute, respondent Nos.1 and 2 are well within their power to appoint the Director and accordingly, 17 respondent No.4 being four years senior to the petitioner was placed in charge of post of Director.
11(ii) Regarding the seniority list, respondent No.3 has taken up the plea that the seniority list was prepared earlier in the year 2013 itself and the petitioner being a professor in the very same Institute knew about the same, but he has made an effort to mislead this Court by contending that there was no seniority list on an earlier occasion. According to respondent No.3, petitioner himself has signed the circular dated 31.5.2013 (Annexure-R2); another seniority list was published on 15.01.2015 and even then the petitioner did not bother to challenge the same immediately, but has approached this Court only on 31.10.2015 and therefore, there is a deliberate attempt to mislead this Court on this point. Further, respondent No.3 has contended that the petitioner is junior in service to Respondent No.4 from the date of his entry into the Respondent No.3/Institute and hence the petitioner cannot overcome the seniority and be appointed as a Director of the Institute. Further it is contended that respondent No.4 has been given the 18 additional charge of the post of the Director and the grant of the officiating charge (Complete Charge) is at the discretion of the Government and hence the petitioner cannot challenge the grant of additional charge and therefore the relief claimed in the petition is premature in nature. Further, it is contended that respondent No.4 along with other candidates who are similarly situated like that of the respondent No.4 have been absorbed as per Rule 12 of the Rules and Regulations of the Institute on deputation with the approval of Screening Committee with all the terms and conditions applicable to the Government Servants. The Screening Committee by its proceedings dated 6.3.2008 has discussed the absorption of the respondent No.4 along with the other candidates as per the proceedings at Annexure-R11; therefore the conduct of the petitioner in challenging the absorption of respondent No.4 is not fair and against all cannons of reasonableness. The entire petition is misconceived, devoid of merits and therefore is liable to be rejected with exemplary costs.
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12(i) Respondent No.4 in his statement of objections has contended that the petitioner has no locus standi to file the present Writ Petition; petitioner has suppressed many facts before this Court; respondent No.4 was absorbed in the Institute as Professor of Urology in the year 2008; petitioner was appointed as Professor of Nephrology in the year 2012 and therefore he is four years Senior to the petitioner. Writ petition is liable to be dismissed on the ground of delay and laches. The provisional seniority list was prepared on 30.5.2013 inviting objections and the petitioner did not file any objections to the same. Petitioner has made an effort to mislead this Hon'ble Court by contending that there was no seniority list on an earlier occasion. The copy of the seniority list published in the year 2013 is produced at Annexure-R1. The petitioner himself has signed on the circular dated 31.5.2013 as could be seen in Annexure-R2. There is a deliberate effort on the part of the petitioner to suppress this fact. Hence, the petitioner is estopped from challenging the Seniority list issued in the year 2013 and 2015.
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12(ii) Further he contends that he has been given only the additional charge of the post of the Director and the grant of the officiating charge (Complete Charge) is at the discretion of the Government. Hence, the challenge made by the petitioner is premature. Further, he contends that the appointment of the petitioner as a Professor is also an illegal appointment as the petitioner was over-aged as on the date of his appointment. The proceedings of the Selection Committee reflects that the petitioner was over aged and therefore his appointment is contrary to the Cadre and Recruitment Rules of the Institute. The petitioner was appointed as Professor in the Institute in the year 2012 and therefore his seniority should be reckoned from that date and this aspect has been taken into consideration by the Government while placing respondent No.4 in the additional charge of the post of Director. Therefore, the petitioner cannot find fault with the same.
12(iii) With regard to the allegations made in the petition that respondent No.4 was a dismissed employee and was disqualified for future appointment in the service under 21 Government, respondent No.4 has asserted that the Karnataka Administrative Tribunal had directed the authorities to reconsider the dismissal of respondent No.4; after remand, he submitted his resignation letter vide Annexure-R7 and the same was accepted in the year 2003 with retrospective effect from 1.11.1994 without any service benefits and accordingly, enquiry was dropped; as a result, the enquiry proceedings culminated in exonerating him. He contends that resignation was submitted by him way back in the year 2000 which resulted in passing the order on 18.07.2003. The petitioner has failed to challenge this order; hence, the order dated 18.07.2003 accepting the resignation of respondent No.4 has attained its finality. It is well established principle of law that a person who approaches the court of law must establish his case on his own strength and cannot depend upon the state of affairs of the other side and try to make out his case. The Hon'ble Karnataka Administrative Tribunal having set-aside the order of dismissal passed against him, the Government was bound by the said order. Rule 8(viii) of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 has no application to the case on hand as 22 respondent No.4 has not been dismissed from service, but has been relieved by acceptance of resignation. Therefore, there is no illegality in the absorption of respondent No.4 as he was the senior amongst all the professors and also meritorious.
12(iv) Further contention of Respondent No.4 is that he was absorbed alongwith other similarly situated persons as per Rule 12(2) of Rules and Regulations of the Institute of Nephro- Urology which empowers the Institute to obtain the services of any Government servant on deputation with the approval of the Screening Committee. All the procedures contemplated under the Rules and Regulations have been followed by the Institution and the Screening Committee by its proceedings dated 06.03.2008 discussed the absorption of respondent No.4 and the Government has accorded its approval vide order dated 29.11.2008. Since then, respondent No.4 has been in service as Professor of Urology. Therefore, the petitioner is estopped from challenging the said absorption at this point of time. Thus contending that the entire petition is misconceived and devoid of merit, sought to dismiss the writ petition with exemplary costs. 23
13(i) Sri. P.S. Rajagopal, learned Senior Counsel appearing for the petitioner has advanced elaborate arguments taking me through each and every document filed alongwith the petition as well as the documents produced by the respondents alongwith their statement of objections, in an endeavour to show that by suppressing material facts, respondent No.4 gained entry into Government service. Referring to the order passed by the KAT, learned Senior Counsel vehemently submitted that by this order, the dismissal of respondent No.4 was not set-aside; as a result, he continued to be a dismissed employee disqualified for future appointment under the Government. In support of his submission, learned Senior Counsel referred to service particulars of fourth respondent and emphasised that eventhough the actual date of entry of fourth respondent into Government service was 05.07.1991, it was deliberately shown as 31.08.2000 and the same was forwarded by third respondent to the Government, as a result, the Government was misled to believe that the respondent No.4 entered into Government 24 service for the first time in the year 2000 eventhough he was dismissed from Government service as on that day.
13(ii) Even with regard to absorption of fourth respondent into the Institute, the learned Senior Counsel emphasized that a peculiar procedure was followed by the respondents with a view to accommodate respondent No.4. Referring to Rule 12, learned Senior Counsel pointed out that though Rule 12(2) stipulated that it shall be lawful for the Institute to obtain the services of any Government servant on deputation or to absorb him in its service, but the first proviso thereto specifically provides that the absorption into the service of the Institute shall be done only with the approval of the Screening Committee to be constituted by the Governing Council for that purpose. It is submission of learned Senior Counsel that in the instant case, the Screening Committee neither assessed the suitability nor it did recommend the absorption of respondent No.4. There is no whisper in the proceedings of Screening Committee that it has looked into the background of respondent No.4 and no finding is recorded to the effect that he was found fit to be absorbed. In support of this 25 submission, he referred to the order of absorption wherein the date of entry of fourth respondent into service is shown as 30.08.2000 and pointed out that even this order does not refer to the approval of the Governing Council, thus, he argued that the submission made by respondent Nos.1 and 2 as well as by respondent No.4 that the absorption of respondent No.4 was approved by the Governing Council is blatant lie.
13(iii) It is the submission of learned Senior Counsel that the order passed by the Government accepting the resignation of the respondent No.4 with retrospective effect is bad in law. Placing reliance on the decision rendered by the Division Bench of this Court in Smt.A.R.VINUTHA vs. DIRECTOR OF COLLEGIATE EDUCATION IN MYSORE, BANGALORE and Another, ILR 1973 KAR 951, learned Senior Counsel emphasized that the authority accepting the resignation cannot make it operative with effect from a date earlier than the one on which the official has tendered the resignation. The appointing authority may accept the resignation with immediate effect or with effect from a prospective date. No power vests with the Government to accept 26 resignation retrospectively. Further referring to the principles laid down in GOVIND PRASAD v. R.G. PARSAD and Others, (1994) 1 SCC 437, learned Senior Counsel pointed out that it is settled law that an executive order by the Government cannot be made operative with retrospective effect. In other words, it is the submission of learned Senior Counsel for petitioner that since the appointment of fourth respondent was vitiated and tainted right from inception, to overcome these illegalities, the Government has accepted the resignation with retrospective effect and therefore his appointment cannot be protected by law.
13(iv) Further the learned Senior Counsel for petitioner would submit that the order of dismissal passed against the fourth respondent having not been set-aside by KAT, even the resignation letter tendered by respondent No.4 was of no value. In support of this submission, learned Senior Counsel referred to another decision of this Court in ABDUL BASHEER v. STATE OF KARNATAKA & Ors, ILR 1985 KAR 298 wherein it is held that only a person who is in service can resign and not a person who had been long anterior dismissed from service. 27
13(v) On the question of locus standi of the petitioner to challenge the absorption and the consequent appointment of the fourth respondent as Incharge Director is concerned, learned Senior Counsel emphasized that the cause of action accrued to the petitioner only when joint seniority list was prepared and published by the third respondent and immediately thereafter, he has taken action challenging not only the seniority list, but also the initial entry of the fourth respondent into the service and his absorption in the Institution. In support of this submission, learned Senior Counsel has placed reliance on the decision in K.SHEKAR vs. V.INDIRAMMA & Others, (2002) 3 SCC 586, with reference to para Nos.22 and 23 wherein it is held that, "To get rid of the 'weed' so to speak, one had to eliminate the root." On the same point, learned Senior Counsel has referred to the decision in P.LAL vs. UNION OF INDIA, (2003) 3 SCC 393, wherein it is held that, a person whose seniority is affected by permitting a voluntarily retired employee to resume office is an aggrieved person and is entitled to maintain the application before the CAT.
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13(vi) In LAKHI RAM vs. STATE OF HARYANA, (1981) 2 SCC 674, similar proposition has been laid down to the effect that, an officer whose chances of promotion are prejudiced due to expunging adverse remarks from the ACR of a co-officer has locus standi to maintain a writ petition under Article 226, the expungement eventhough made in favour of another person.
13(vii) In NAWAL KISHORE MISHRA vs. HIGH COURT OF JUDICATURE OF ALLAHABAD, 2015 AIR SCW 1514, an issue arose before the Hon'ble Supreme Court in connection with the filling up posts of District Judge by direct recruitment as against the posts reserved for Scheduled Castes and Scheduled Tribes and other Backward Classes totally to an extent of 34 vacancies, suitable candidates being not available, High Court filled up those posts by promotion of in-service candidates. It was held therein that the persons who were candidates for direct recruitment and had come out successful in the written test have locus standi to challenge such promotions.
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13(viii) On the same point, learned Senior Counsel has also referred to the decision of the Division Bench of this Court in M.G.JAYARAM vs. Dr.N.R.RAMAKRISHNA, W.P.No.3798/2009 c/w. W.P.No.3344/2009 (disposed on 28.03.2013) and the decision in MADHUKAR SADBHA SHIVARKAR vs. STATE OF MAHARASHTRA, (2015) 6 SCC 557.
13(ix) On the question of delay and laches, learned Senior Counsel has placed reliance on the decision in M.R.VASUKI vs. KARNATAKA ELECTRICITY BOARD, ILR 1992 Karnataka 690 and would submit that the delay has to be measured from the date of publication of seniority list and in the instant case, petitioner having felt aggrieved only after the preparation and publication of the seniority list wherein he was placed below respondent No.4, prompt action taken by him in challenging the seniority list as well as the unlawful absorption of respondent No.4 cannot be jettisoned on the ground of delay and laches.
13(x) Buttressing his argument further learned Senior Counsel referred to the decision in KHUB RAM vs. DALBIR SINGH, (2015) 8 SCC 368, wherein it is observed that, delay in 30 impleading the appointed candidate would be inconsequential where fraudulent entry into service has been effected by submitting questionable certificates of experience, more so when the appointee lacked the essential qualification of working experience in Government / semi-Government / Public Sector Undertaking and with vehemence submitted that the entry of the fourth respondent into the service being fraught with fraud and illegalities, the question of delay cannot come in the way of exposing the illegalities that have gone into the appointment and consequent seniority accorded to respondent No.4.
13(xi) In order to strengthen the case of the petitioner that the appointment of the fourth respondent was void ab initio because of suppression of material facts and fraud, learned Senior Counsel has referred to some more decisions namely,
(i) DEVENDRA KUMAR vs. STATE OF UTTARANCHAL, (2013) 9 SCC 363;
(ii) SECRETARY, ANDHRA PRADESH SOCIAL
WELFARE RESIDENTIAL EDUCATIONAL
31
INSTITUTIONS vs. PINDIGA SRIDHAR, (2007)
13 SCC 352;
(iii) URUKUNDI vs. SENIOR DIVISIONAL
MANAGER, ILR 2003 Karnataka 2898;
(iv) HMT Ltd., vs. Mrs.CHAYA SRIVATSAVA,
(2003) 7 KLJ 682;
(v) STATE OF ORISSA vs. MAMATA MOHANTY,
(2011) 3 SCC 436;
(vi) REGIONAL MANAGER, CENTRAL BANK OF
INDIA vs. MADHULIKA GURUPRASAD DAHIR,
(2008) 13 SCC 170.
13(xii) Based on the principles enunciated in the above decisions, learned Senior Counsel argued that if the initial appointment is not in consonance with law, the subsequent events cannot sanctify the same. Where appointment is secured by playing fraud, for termination thereof, even natural justice is not attracted. False information stated in the application for employment voids the appointment. If after appointment it is found that appointment was secured suppressing relevant facts or stating falsehood, it cannot be said that employer cannot 32 terminate and appointment secured by falsity cannot be protected under law.
13(xiii) Insofar as the necessity of making the Institute a party to the proceedings, learned Senior Counsel would submit that in the writ petition, the third respondent is described as "Director, Institute of Nephro-Urology", which could have been more accurately worded as "Institute of Nephro-Urology, by its Director"; but this clerical mistake could not be blown out of proportions to contend that no relief could be granted in the writ petition. He submitted that such a technical objection cannot be allowed to defeat substantial justice as held in MUZAFFARPUR ELECTRIC SUPPLY COMPANY LTD., vs. MUZAFFARPUR ELECTRIC SUPPLY WORKERS UNION, AIR 1959 SC 1294 and such a hairsplitting hyper technical objection cannot outweigh the relief claimed by the petitioner.
13(xiv) Further, the learned Senior Counsel pointed out that in the instant case, the orders that are challenged are Annexure-'AC' insofar as it concerns respondent No.4 and this is an order passed by the State Government which has been made 33 a party. Similarly, Annexure-'F' challenged in the petition was passed by the Government and the Government also is made a party. The other two orders Annexure-'AD' and Annexure-'E' are admittedly passed by the Director of the Institute who is respondent No.3 and therefore, the third respondent is properly described as "Director, Institute of Nephro-Urology". To support this submission, learned Senior Counsel has referred to the case law in MURARI MOHAN DEB vs. SECRETARY TO THE GOVERNMENT OF INDIA, (1985) 3 SCC 120, wherein considering identical contention that in the absence of Union of India being impleaded as a party, the petition so challenged is incompetent, it is held that the cause title could be conveniently read as Government of India and the oral request to correct the description of the respondent could have satisfied the procedural requirement. Similarly, in G.GANAPATHI PAI vs. VEERAPPA RUDRAPPA KOTI, ILR 1973 KAR. 1489, a Division Bench of this Court was dealing with a case wherein a contention was raised to the effect that Institute has not been made a party and the third respondent is described as Director of the Institute, it was held that it is a triviality which is inconsequential and in case of 34 misdescription of a party, neither Order VI Rule 17 CPC nor Order I Rule 10 of CPC would apply.
14. Sri.Dhyan Chinnappa, learned AAG appearing for respondent Nos.1 and 2 and Sri.Gururaj Joshi, learned counsel appearing for respondent No.3 have argued in line with the contention urged in their statement of objections, reiterating that the absorption of respondent No.4 is in accordance with the Bye-laws of the Institute and all requisite procedure as contemplated in the Rules and Regulations and Bye-laws governing the Institute have been duly followed and further it is contended that in the order of seniority, the respondent No.4 was eligible for appointment as Incharge Director and no illegalities or mala fides are attached to the procedure followed by respondent No.1.
15(i) The arguments of the learned Senior Counsel for petitioner are assiduously countered by learned Senior Counsel appearing for respondent No.4 with reference to decided case laws. The sum and substance of the argument of learned Senior Counsel is that the initial "selection" and appointment of 35 respondent No.4 to the post of Lecturer in Urology at Bengaluru Medical College and the order of Government accepting the resignation and closing the enquiry initiated against respondent No.4 for his unauthorized absence have not been challenged by the petitioner till date. Even if such a challenge is laid, yet, in view of the adequate forum available to the petitioner to challenge these orders, in terms of sections 15 and 19 of the Administrative Tribunal Act, 1995, this Court in exercise of the jurisdiction under Article 226 of the Constitution cannot mould the reliefs to suit the requirements of the petitioner. That apart, the petitioner having not been in the services of respondent No.3
- Institute as on the date of the initial appointment and subsequent absorption of the respondent No.4, has no locustandi to challenge the appointment or the absorption of respondent No.4. That apart, the initial appointment having been made in the year 2000, the challenge to the said appointment in the year 2015 is liable to be sloughed off on the ground of delay and laches.
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15(ii) Insofar as the contention urged by the petitioner disputing the order of the Karnataka Administrative Tribunal is concerned, learned Senior Counsel would submit that the Administrative Tribunal having held that the inquiry initiated against the respondent No.4 was vitiated, sent back the matter to the Government for reconsideration and accordingly, the explanation of respondent No.4 was called for and in the mean- while, respondent No.4 having tendered his resignation, he was relieved from service without any monetary benefits, as such, there was no impediment for respondent No.4 to apply for the post of Lecturer in Urology as there was no dismissal order operating against him.
15(iii) Insofar as absorption of respondent No.4 in the Institute is concerned, by referring to the original file and the records, he pointed out that due process for absorption was followed; option was called for from the deputed teaching faculty and Screening Committee was formed which scrutinised the applications for absorption and recommendation of the Screening Committee was duly approved in terms of Rule No.12(2) and 37 hence the absorption of respondent No.4 is beyond challenge. In this regard, learned Senior Counsel pointed out that the absorption order in the instant case was made by the Government in terms of Government Order dated 27.10.1977 and not under the Rules and Regulations of the Institute. The entire process of deputation of the staff working in the establishment of Bangalore Medical College and their transfer and absorption to INU was made under Government Order dated 01.09.2003 which necessarily required sanction of the Government. This process did not require approval of the Governing Council of the INU as contended by the petitioner and hence, the challenge laid to the absorption of fourth respondent and his consequent seniority in the third respondent Institute is wholly misconceived and contrary to the actual facts. Dilating on this point, the learned Senior Counsel submitted on behalf of respondent No.4 that the requirement of going through the process of absorption on deputation would arise only when the permanent employment is made in accordance with Rules and Regulations of the Institute. For the purpose of absorption process of deputed Government servants of the State 38 Government, the rules only provide for approval of the Screening Committee and this requirement has been duly complied and the Governing Council has approved the absorption of the respondent No.4 and therefore there is no illegality whatsoever in the absorption of respondent No.4 as contended by the petitioner. For the same reason, it is argued that the seniority list having been prepared in accordance with the Rules and Regulations of the Institute and the petitioner having not filed his objections thereto is estopped from challenging the seniority list on the pretext of challenging the appointment of respondent No.4 to the post of Director of the Institution.
15(iv) With regard to the entitlement of respondent No.4 to the post of Director, he pointed out that respondent No.4 being four years senior to the petitioner and the service rendered by the petitioner in a private establishment namely, M.S.Ramaiah Medical College, Bangalore did not qualify for the seniority, there is absolutely no reason to interfere with the seniority of respondent No.4 and his consequent appointment to the post of Director of the third respondent - Institute. Thus 39 contending that the entire petition is misconceived and is actuated by malice and mala fides, learned Senior Counsel appearing for the fourth respondent has prayed for dismissal of the petition with exemplary costs.
16. I have bestowed my careful consideration to the multi- pronged contentions urged by the parties and have carefully scrutinized the material on record. In the light of the above contentions, the points that arise for consideration are:
(1) Whether respondent No.4 was disqualified for future employment in the services of the State in view of his alleged dismissal from service in the Department of Health and Family Welfare?
(2) Whether the acceptance of resignation of respondent No.4 by the State Government with retrospective effect is bad in law?
(3) Whether the absorption of respondent No.4 in the Institute of Nephro-Urology is violative of the bye-laws of the Institute?
(4) Whether the petitioner is entitled for the reliefs claimed in the petition without seeking the relief 40 of quashment of initial appointment of respondent No.4 as Lecturer in 2000 and acceptance of his resignation by the Government in the year 2003?
(5) Whether the petitioner has locus standi to challenge the absorption and the consequent seniority of respondent No.4 under Article 226 of the Constitution?
(6) Whether the Seniority list prepared by the second respondent is in accordance with the rules and regulations governing the second respondent -
Institute?
(7) Whether the notification dated 27.08.2015 (Annexure-'F') placing the fourth respondent in additional charge of the Director suffers from any illegality or contravention of the bye-laws of the Institution?
Point No.1:
17. At the outset it is to be noted that the petitioner has not challenged the selection and appointment of respondent No.4 as Lecturer in the Bangalore Medical College. However, having realized that without setting aside the initial appointment 41 of respondent No.4, the petitioner cannot sustain his challenge to the absorption and subsequent posting of respondent No.4 as Incharge Director of respondent No.3 - Institute, an indirect challenge is mounted against respondent No.4 challenging his entry into the service of respondent No.2 on the ground that the dismissal order passed against respondent No.4 by respondent No.2 was neither set-aside nor was he reinstated in service by the Karnataka Administrative Tribunal and therefore, he being a "dismissed employee" was not entitled for future employment in the Government and consequently his induction into respondent No.3 - Institute is illegal and contrary to the Rules and Regulations of the Institute.
18. This argument, in my view, is wholly misconceived and proceeds on the erroneous reading of the order of Karnataka Administrative Tribunal in Application No.5799/1996. I have gone through this order passed by the Karnataka Administrative Tribunal, which is at Annexure No.13. No doubt, as contended by learned Senior Counsel for the petitioner, the said order does not state in so many words that the order of dismissal passed 42 against the fourth respondent is set-aside nor is there any direction to reinstate respondent No.4, but that by itself cannot be a ground for the petitioner to brand respondent No.4 as a "dismissed employee". The petitioner does not dispute the fact that respondent No.4 had challenged his dismissal order and the matter was finally decided by the Karnataka Administrative Tribunal as per its order dated 04.04.1997. A bare reading of the above order indicates that the question as to whether the failure on the part of the Leave Sanctioning Authority to pass orders on the leave application submitted by the employee vitiates the enquiry, was referred for consideration of the larger Bench. Answering this question, the Hon'ble Karnataka Administrative Tribunal, in para 5 of the order, has observed thus:
a. Having regard to the wordings of rule 106-A of K.C.S.RS. and the exception indicated therein in cases of alleged misconduct on the ground of absence from duty without getting leave sanctioned, what is to be established by the department is that the Government servant was absent without getting leave sanctioned and the explanation offered by 43 the government servant for the absence is not to the satisfaction of the leave sanctioning authority. The normal mode of establishing by a Government that it was beyond his control to attend the office is by making a leave application supported by medical certificate or other material to substantiate the grounds urged by him. When a leave application is made the leave sanctioning authority is duty bound to pass orders either granting or rejections the leave applied for. If leave is rejected the Government servant becomes liable for disciplinary action also. Since, no such order is made in this case no misconduct is committed and accordingly, the proceedings is vitiated.
(Underlining supplied) Having arrived at the above conclusion, the Tribunal in the concluding para of the judgment, has ordered thus:-
9. In the light of the above ratios of the cases decided by the Supreme Court, the authorities are directed to serve the copy of the enquiry officer's report and, thereafter, the applicant is directed to furnish his explanations, if any, within eight weeks from the date of 44 receipt of enquiry Officer's report. The disciplinary authority, after considering the explanation, pass suitable orders in accordance with law.
19. This order has been passed following the ratio laid down by the Hon'ble Supreme court in UNION OF INDIA vs. Md.RAMZAN KHAN, AIR 1991 SC 471 and MANAGING DIRECTOR, E.C.I.L. vs. B.KARUNAKAR, AIR 1994 SC 1074, wherein it is laid down that it is incumbent on the part of the disciplinary authority to make endeavor to furnish Enquiry Officer's report.
20. Undisputedly, this order was passed pursuant to the challenge laid by respondent No.4 questioning the legality of the dismissal order passed against him by the Disciplinary Authority without service of the Enquiry Report and without passing any order on the leave application submitted by him. It is trite law that an appeal is a continuation of the proceedings. Under the said circumstances, the Appellate Authority having held that no misconduct was committed by respondent No.4 and that the 45 proceedings initiated against him were vitiated for non-compliance of the principles of natural justice and respondent No.1 having been directed to afford an opportunity to respondent No.4 to furnish his explanation and thereafter to take a final decision in the matter, it goes without saying that no final order was passed in the disciplinary proceedings initiated against respondent No.4 for his unauthorized absence. In view of this order, the enquiry initiated against the respondent No.4 remained inconclusive. It is a matter of record that ultimately the resignation tendered by respondent No.4 was accepted and the enquiry was closed. That being the factual and legal position, the argument of learned Senior Counsel appearing for petitioner that respondent No.4 was a "dismissed employee" and was disqualified for future employment in the Government is nothing but flogging a dead horse with the hope that it could breath life and carry the weight of the otherwise stale and untenable contentions set up by the petitioner. Eventhough elaborate arguments are advanced by learned Senior Counsel appearing for petitioner and learned Senior Counsel appearing for respondent No.4 on this point, yet the fact remains that the 46 enquiry initiated against respondent No.4 for his unauthorized absence did not end up in his dismissal and therefore, there is absolutely no scope for the petitioner to dispute the initial appointment and induction of respondent No.4 into the service of respondent No.2. In view of this conclusion, the further contention urged by the petitioner that the fourth respondent is guilty of suppression of the material facts while gaining entry into the Institution and that he was not qualified for any employment in the service of the State in view of Rule 8(viii) of the KCS (CCS) Rules cannot be considered a ground to interfere with the appointment of the fourth respondent as Lecturer in Urology at Bangalore Medical College. This issue is accordingly answered against the petitioner.
Point No.2:
21. Coming to the legality of the acceptance of resignation tendered by respondent No.4 is concerned, the material on record reveal that pursuant to the orders of the Karnataka Administrative Tribunal, the fourth respondent was called upon to submit his explanation to the Enquiry Report. 47 Respondent No.4 appears to have submitted his resignation on 02.05.2003 (Annexure-'O'). This resignation is accepted by the Government with retrospective effect from 01.11.1994. There cannot be any quarrel over the proposition of law that the authority accepting resignation cannot make it operative from a date earlier than the one on which the official has tendered the resignation. But, in the instant case, the petitioner has not challenged this order either before the statutory authorities or before this Court.
22. Undisputedly, the resignation submitted by respondent No.4 was accepted by the Government by its order dated 08.07.2003. Though learned Senior Counsel for the petitioner has sought to contend that in order to get rid of the weed, the petitioner who is aggrieved by the action of the respondent could take recourse to eliminate the root, but it is settled proposition of law that even if the order is void or illegal, it requires to be declared so by a competent forum and it is not permissible for any person to challenge the validity of the said order in a collateral proceeding.
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23. In BHARAT AMRATLAL KOTHARI v. DOSUKHAN SAMADKHAN SINDHI & ORS, (2010) 1 SCC 234, the Hon'ble Supreme Court has laid down the law as under:-
32. Though a High Court has power to mould reliefs to meet the requirements of each case, that does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the court.
In para 30 of the said judgment, it is held thus:-
30. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petition. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the court. Normally, the court will grant only those reliefs specifically prayed by the petitioner.
24. In SANT LAL GUPTA v. MODERN COOP. GROUP HOUSING SOCIETY LTD., (2010) 13 SCC 336, in para 21, it is held that, 49
21. It is a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud". An authority cannot be permitted to evade a law by "shift or contrivance", (See Jagir Singh v. Ranbir Singh (1979) 1 SCC 560: 1979 SCC (Cri) 348: AIR 1979 SC 381] and M.C. Mehta v. Kamal Nath (2000) 6 SCC 213])
25. The law on this point is further elucidated by the Hon'ble Supreme Court in KRISHNADEVI MALCHAND KAMATHIA & Others vs. BOMBAY ENVIRONMENTAL ACTION GROUP & Others, (2011) 3 SCC 363, in para 16 thereof, it is held that, "It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In STATE OF KERALA v. M.K.KUNHIKANNAN NAMBIAR MANJERI MANIKOTH NADUVIL, AIR 1996 SC 906, TAYABBHAI M.BAGASARWALLA v.
50HIND RUBBER INDUSTRIES (P) Ltd., AIR 1997 SC 1240, M.MEENAKSHI v. METADIN AGARWAL, (2006) 7 SCC 470 and SNEH GUPTA v. DEVI SARUP, (2009) 6 SCC 194, this court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum."
In the very same decision, in para 19, it is observed that, "Thus, from the above it emerges that even if the order / notification is void / voidable, the party aggrieved by the same cannot decide that the said order / notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person."
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26. In the light of the above proposition of law, the arguments advanced by learned Senior Counsel for the petitioner and learned counsel for the third respondent that the respondent No.4 has misled the Government by showing a wrong date of his entry into service in the application form and antedated the resignation letter etc., do not merit consideration. Even otherwise, the contentions raised by the petitioner in this regard are based on disputed facts which cannot be adjudicated by this Court under Article 226 of the Constitution of India especially when section 15 of the Administrative Tribunals Act confers jurisdiction and authority on the Administrative Tribunals to adjudicate any dispute with regard to the appointment and recruitment of any civil servants. The said section reads as under:-
15. Jurisdiction, powers and authority of State Administrative Tribunals.
(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court 1***) in relation to 52
(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;
(b) all service matters concerning a person not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of sub-section (1) of section 14 appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation 2[or society] owned or controlled by the State Government;
(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation 2[or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.53
Section 19(1) reads thus, S 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.
27. Thus, the statute having provided specific remedies for redressal of the disputes and the matters relatable to the service under the State, this Court cannot adjudicate the said issue on the guise of deciding the seniority of respondent No.4 in the collateral proceedings. As a result, I hold that the dispute raised by the petitioner challenging the acceptance of resignation by the Government is legally untenable and liable to be dismissed.
POINT No.3:
28. Coming to the issue of absorption of respondent No.4 is concerned, I find that this contention has no legal or factual basis. The contention of the petitioner is based on the premise that the absorption order passed by the Government 54 was not approved by the Governing Council of INU and therefore, the absorption of respondent No.4 is bad in law and consequently, placing respondent No.4 above the petitioner and his subsequent appointment as Ad-hoc Director are illegal. Eventhough learned Senior Counsel for petitioner has referred to the Rules and Regulations of the Institution to contend that in terms of first proviso to Rule No.12(2), approval of the Screening Committee constituted by the Governing Council is a must, but in the instant case, the entire process of absorption appears to have taken place in terms of Government Order dated 27.10.1977 and not under the Rules and Regulations or Bye-Laws governing the Institution. Since the permanent transfer or absorption of the employees with posts were sanctioned by the Government, the approval of the Governing Council was not necessary. The challenge to the absorption of respondent No.4 appears to have been mounted on misconstruing Rule No.12 of the Rules and Regulations of the Institute which deals with Appointment of Staff. It reads as under:-
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1. The Medical, Technical and Scientific staff shall be appointed either permanently or on contract basis or on deputation. In case of appointment on contract basis and deputation, the maximum period of appointment shall not exceed five years.
The permanent appointment shall be in accordance with the Rules and Regulations of the Government of Karnataka.
Provided that the Governing Council may, for reasons to be recorded extended the services of any such staff for a period not exceeding 3 years.
2. It shall be lawful for the Institute to obtain the services of any Government servant on deputation or to absorb him in its service:
Provided that absorption into the service of the Institute shall be only with the approval of screening committee to be constituted by the Governing council for the purpose.
Provided further that the terms and conditions on which any Government servant may be so absorbed shall in no way be less advantageous than the terms and conditions applicable to him, immediately before the date of his absorption in the Government service.56
3. It shall be lawful for the Institute to recommend to the Government as decided by the Governing council for the withdrawal of the services of any official who is on deputation or contract from the Government either on the expiry of the term of deputation or during the period of deputation/contract.
29. Undeniably, the posts to which the appointment was made were not created by the Institute as contended by the petitioner, rather the posts that were existing in other departments were transferred and absorbed into the Institution at the time of establishment of the Institute. This distinction between the posts transferred by the Government and the posts created by the Institute appears to have been lost sight of by the learned Senior Counsel for petitioner. The argument of learned Senior Counsel proceeded on the assumption that the approval of the Governing Council is a pre-condition for transfer of the posts by the Government. A reading of the proceedings of the Government of Karnataka in Government Order No.HFW.409.MMC.2008, Bangalore, dated 29.11.2008 (Annexure-AC) indicates that the Government had accorded 57 sanction in the public interest for the permanent absorption of teaching staff of Medical Education Department then working in Institute of Nephro-Urology, Bangalore into the autonomous Institute of Nephro-Urology, Bangalore with retrospective effect from the date on which they reported at the Institute of Nephro- Urology, subject to the conditions prescribed therein. The name of respondent No.4 finds place at Sl.No.6 and his date of entry into service therein is shown as 30.08.2000. As on that date, the petitioner herein was not even born into the service of the third respondent. The absorption of respondent No.4 as well as other similarly placed employees has been done by the Government following due procedure as contemplated in various orders passed by the Government which are produced by the learned AAG appearing for respondent Nos.1 and 2. This is not the first instance where the Government has resorted to the procedure of absorption. Along with respondent No.4, seven other persons were permanently absorbed into the Institute. The absorption process which concerns other similarly placed employees cannot be set at naught on the purported contention urged by the petitioner that the absorption of the fourth 58 respondent was bad for want of previous approval of the Governing Council.
30. In this context, it may also be relevant to note that as per Rule No.9(3)(g) of the Rules and Regulations of the Institute of Nephro-Urology, among other things, the Governing Council shall have the power "to create posts and to make appointments thereto in accordance with provisions of Rule 16 to
18. Thus there is a clear distinction between the posts transferred from BMC to INU under Government Order dated 01.09.2003 and posts created by the Governing Council. It is only the posts created by the Governing Council whose appointment is required to be done / approved by the Governing Council. For the purpose of absorption of the staff or Government servants from other Departments, the Rules only provided for approval of the Screening Committee to be constituted by the Governing Council for that purpose. In the instant case, Annexure-24 produced by respondent No.4 indicates that the Screening Committee in its Meeting held on 06.03.2008 for absorption of Government Servants into the services of Institute of Nephro-Urology has taken up the process 59 of absorption and directed to obtain option for permanent absorption. Accordingly, the option was submitted by the fourth respondent and on considering the same, the Screening Committee in its proceedings dated 06.03.2008 has accorded approval and accordingly, the absorption order was passed by the Government vide Government Order No.HFW 409 MMC, 2008, dated 29.11.2008, as such, there is no illegality whatsoever in the absorption of respondent No.4 as sought to be contended by the petitioner.
POINT Nos.4, 5, 6 and 7:
31. In view of the above conclusion, point Nos.4 and 5 do not survive for consideration. Even if it is held that the petitioner has locus standi to challenge the absorption and the consequent seniority of respondent No.4, yet in the view of my finding that the absorption of respondent No.4 is in accordance with law and the Rules and Regulations governing respondent No.3 - Institute, it has to be held that petitioner is not entitled for the relief (a) claimed in the petition. The claim made by the petitioner for restoration of his seniority and his entitlement and 60 eligibility for the post of Director are elaborately discussed by me in the final order pronounced today in Writ Petition No.7141 of 2020 and I have held that the seniority list prepared by respondent No.3 is in accordance with the Rules and Regulations governing respondent No.3 - Institute and that the petitioner is precluded from disputing the said seniority list as he was not even born in the cadre when respondent No.4 was appointed as Professor. In the said order, I have upheld the ad-hoc appointment of the fourth Respondent as in-charge Director, as a result, relief Nos.(b) and (c) claimed in the petition are also liable to be rejected. Point Nos.6 and 7 are accordingly answered against the petitioner.
For the above reasons, the petition fails and the same is dismissed with cost of Rs.20,000/- (Rupees Twenty Thousand only) to be paid by the petitioner to respondent No.4, or deposit the same with the Registry, within four weeks from the date of this order.
Sd/-
JUDGE Bss/mn/-