Karnataka High Court
Dr R Keshavamurthy vs The State Of Karnataka on 2 December, 2020
Equivalent citations: AIRONLINE 2020 KAR 2636
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.7141 OF 2020 (S-RES)
BETWEEN:
DR R KESHAVAMURTHY
S/O LATE BYRANNA
AGED ABOUT 56 YEARS
WORKING AS IN-CHARGE DIRECTOR AND
PROFESSOR AND HEAD OF THE DEPARTMENT OF UROLOGY
INSTITUTE OF NEPHRO-UROLOGY
VICTORIA HOSPITAL CAMPUS
BENGALURU-560002.
...PETITIONER
(BY SRI: MADHUSUDHAN R.NAIK, SENIOR ADVOCATE A/W
SRI: M R RAJAGOPAL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT, DEPARTMENT OF HEALTH AND
FAMILY WELFARE SERVICES
(MEDICAL EDUCATION), 1ST FLOOR
VIKASA SOUDHA
DR AMBEDKAR VEEDHI
BENGALURU-560001.
2. THE INSTITUTE OF NEPHRO-UROLOGY
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VICTORIA HOSPITAL CAMPUS
BENGALURU-560002.
REPRESENTED BY ITS DIRECTOR
3. DR L UMESH
S/O LATE G S LINGARAJ
AGED ABOUT 59 YEARS
WORKING AS PROFESSOR AND HOD
DEPARTMENT OF NEPHROLOGY
VICTORIA HOSPITAL CAMPUS
BENGALURU-560002.
AND ALSO R/A
NO.1604-G, MANTHRI GREENS
SAMPIGE ROAD, MALLESHWARAM
BENGALURU-560003.
...RESPONDENTS
(BY SRI: DHYAN CHINNAPPA, AAG A/W;
SRI: R. SRINIVASA GOWDA, AGA FOR R1;
SRI: GURURAJ JOSHI, ADVOCATE FOR R2;
SRI: K.B. MONESH KUMAR, ADVOCATE FOR C/R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS FROM R-1 GOVERNMENT IN RELATED TO FILE AS
PER ANNEXURE-Q AND QUASH THE NOTIFICATION DATED
20.05.2020 ISSUED BY THE R-1 AS PER ANNEXURE-Q AND
DECLARE THAT THE ACT OF THE GOVERNMENT IN ISSUING THE
IMPUGNED NOTIFICATION IS VIRTUALLY HAVING AN EFFECT OF
OVERREACHING THE INTERIM ORDER GRANTED BY THE
HON'BLE COURT AND OVER BOARDED THE ISSUE INVOLVED IN
WP.NO.26359/2019 AS SUCH THE IMPUGNED ORDER BE
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DECLARED AS ARBITRARY AND VIOLATIVE OF ARTICLE 14 OF
THE CONSTITUTION OF INDIA, MUCH LESS BE DECLARED IT IS
NOTHING BUT COLORABLE EXERCISE OF POWER BY THE STATE
UPON IGNORING THE RELEVANT FACTORS AND DIRCT R-1 TO
CONSIDER AND TAKE A DECISION ON THE PROPOSAL
SUBMITTED BY THE PETITIONER AS A DIRECTOR OF
R-2/INSTITUTE VIDE OFFICE NOTE DATED 19.05.2020 TO
APPOINT THE DIRECTOR PERMANENTLY TO R-2/INSTITUTE
VIDE OFFICE NOTE DATED 19.05.2020 TO APPOINT THE
DIRECTOR PERMANENTLY TO R-2 INSTITUTE AS PER
ANNEXURE-P, ALLOW THE WRIT PETITION WITH COSTS AND
GRANT AN INTERIM ORDER TO STAY THE OPERATION
EXECUTION AND IMPLEMENTATION OF THE NOTIFICATION
DATED 20.05.2020 ISSUED BY THE R-1 AS PER ANNEXURE-Q
AND FURTHER RESTRAIN R-3 FROM INTERFERING WITH THE
PROCESS OF DISCHARGING THE DUTIES BY THE PETITIONER IN
THE OFFICE AS A DIRECTOR OF R-2 INSTITUTE IN ANY MANNER
PENDING DISPOSAL OF THIS WRIT PETITION.
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
Notification dated 20.05.2020 issued by the first respondent bearing No.MED/95/MSF/2019 (Annexure-Q) is under challenge in this petition filed under Article 226 and 227 of the Constitution of India. By this Notification, the third respondent has been appointed as a Director on in-charge basis to the second respondent viz., The Institute of Nephro-Urology in the place of the petitioner.
2. On entertaining the petition, the original records were called for and the petition was tagged with W.P.No.18455/2015, W.P.No.47256/2015, W.P.No.28629/2017 and W.P.No.26539/2019. The parties were heard on the interim application and by order dated 15.06.2000, the impugned order at Annexure-Q was stayed. This interim order is being extended from time to time.
3. The impugned order is assailed by the petitioner mainly on the following three grounds namely:-
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(i) The impugned notification at Annexure-Q is issued purportedly to withdraw the earlier notification dated 20.06.2019 (appointing Dr. M.Shivalingaiah as the incharge Director) despite the stay granted by this Court in W.P.No.26539/2019. Therefore, the action of the first respondent amount to deliberate attempt to overreach and circumvent the interim order passed by this Court, which cannot be countenanced.
(ii) Secondly, the impugned order has been issued on non-existent facts arising out of an issue relating to amendment of Bye-Laws of the second respondent - Institute enhancing the age of superannuation of Director from 65 to 70 years. The said amendment was called in question in W.P.No.18455/2015 and by virtue of the interim order dated 28.04.2015, the petitioner not only continued as incharge Director till 07.06.2017, but he was once again appointed to the said post on 10.05.2019.
Under the said circumstances, the pendency of 6 W.P.No.18455/2015 was neither relevant nor germane for reconsidering the matter and hence there was no basis for issuance of the impugned notification.
(iii) Thirdly, the impugned order on the face of it indicates that it has been issued yielding to the pressure of religious heads and the Home Minister and not in public interest as sought to be made out. It is a product of legal malice, political bias and outcome of nepotism on the part of Hon'ble Chief Minister.
4. The contention of respondent No.1 - State is that as per Rule 13 of the Rules and Regulations governing respondent No.2
- Institute, the appointment of the Director to the Institute shall be by the recommendation of the Governing Council, either by direct recruitment or on contract basis or on deputation from among regular Government servants. Hon'ble Chief Minister is the Chairman of Governing Council and Health Minister for Medical Education is the Vice Chairman and the Director of the Institution is the Member Secretary. In the instant case, the 7 appointment was made under Rule 14 of Rules and Regulations of the Institute. It is only an ad-hoc arrangement. The petitioner has no vested right to the post of Director nor any right of lien. All previous appointments were also made in similar fashion by the Government and not by the Governing Council. Since regular appointment was stayed by this Court in its order dated 28.04.2015 in W.P.No.18455/2015, the only option available to the Government was to take recourse to Rule 14 of Rules and Regulations of the Institute. Since the petitioner was a party to W.P.No.18455/2015, W.P.No.47256/2015, W.P.No.28629/2017 and W.P.No.26539/2019, his continuance as Director had given rise to conflicting interest. Hence a decision was taken to appoint the third respondent as Director on ad-hoc basis in terms of the Rules and Regulations of the Institute. It is the prerogative of the Chairman of the Governing Council to appoint the Director. Writ Petition No.26539/2019 was by then withdrawn by the State of Karnataka and therefore there was no impediment to appoint the third respondent as Ad-hoc Director.
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5. Respondent No.2 in its objection statement has taken up a plea that the power of appointing the officiating Director to the respondent No.2 Institute vests with the Governing Council of respondent No.2. It is the prerogative of the Governing Council headed by the Hon'ble Chief Minister and therefore the appointment of respondent No.3 as officiating Director cannot be found fault with. By the impugned order, no fundamental rights of the petitioner have been taken away. Petitioner himself was appointed as Officiating Director under Rule-14 of Rules and Regulations of the Institute. Similarly, one Dr. M. Shivalingaiah was appointed as officiating Director of respondent No.2 on 07.06.2017 and 20.06.2019. Soon after passing the impugned notification, petitioner on coming to know of the same, kept himself absent from respondent No.2/Institute and was not available for handing over the charge to respondent No.3. As such, during the COVID-19 situation, to handle the important post of Officiating Director of respondent No.2 Institution, respondent No.3 assumed the charge as Officiating Director of the respondent No.2 Institution on 20.05.2020, by informing the situation to respondent No.1. The Petitioner on 21.05.2020 9 wrote a leave letter addressed to the Director which clearly indicates that he has accepted the relinquishment of his post of Officiating Director of respondent No.2 Institution as on 20.05.2020 and therefore the petitioner is not entitled for the relief claimed in the petition.
6. It is further contended by Respondent No.2 that Rule-32 of KCSR is not applicable to the facts of the case, since the appointment of officiating Director to the respondent No.2 Institute is the prerogative of the Governing Council headed by the Hon'ble Chief Minister. By referring to Bye-Law No.23, it is contended that as per the said provision, in respect of the matters not provided for in the rules as applicable, the orders and decisions issued by the State Government from time to time shall be applicable to the employees of the Institute till rules in that regard are framed by the Governing Council. According to the second respondent, the Governing Council has not framed specific rules for the posting of Director during the interregnum period from the date of superannuation of the out-going Director and appointment of the New-Director as per Rule 13 of Rules 10 and Regulations of the Institute, as such, as per the Bye-law No.23, respondent No.1 is empowered to post suitable person to officiate as Director on Additional Charge as done in the notification dated 20.05.2020 and hence the same is beyond challenge by the petitioner. Further, it is contended that the grant of officiating charge is the discretion of the Government and hence on this score also, the petitioner is not entitled to question the action taken by respondent No.1 in placing respondent No.3 in additional charge of the post of Director.
7. Respondent No.3 in his statement of objections has taken up the contention that the entry of the petitioner into the service of respondent No.2 is fraught with fraud and illegalities. Petitioner was a dismissed employee and was disqualified for future appointment under the Government. His absorption into the institution is not in accordance with the Bye-Laws governing the Institute; whereas, the third respondent was appointed lawfully as Professor of respondent No.2 Institute vide order dated 31.05.2012(Annexure-R10). After completion of his Probationary tenure, he was confirmed in service as Professor 11 and Head of Department of Nephrology on 25.02.2015 and therefore the total service of respondent No.3 is required to be taken into account and his seniority has to be reckoned from the date he was first promoted as Professor including his previous teaching assignment. He further contended that Respondent No.2 Institute prepared the seniority list of Professors wherein it is mentioned that respondent No.3 is the senior most and only eligible Professor of Nephrology having 17 years teaching experience as Professor, whereas, as per the seniority list prepared by respondent No.2, it reflects that the petitioner has experience as Professor only for 12 years and therefore respondent No.3 is senior to the petitioner. Further, he contended that, the petitioner got the respondent No.1 to issue prospective orders nominating him as adhoc Director from 01.09.2015 by using political clout. According to respondent No.3, petitioner somehow managed the concerned authority to draft the Seniority list to ensure that he is placed above respondent No.3(Annexure-R18). In the said seniority list, the seniority of respondent No.3 is given a go by. At that stage, one Dr M. Shivalingaiah was nominated by the respondent No.1 12 based upon the instructions of the Hon'ble Chief Minister. Dr. M. Shivalingaiah had also secured the letter of a Parliament Member, but the petitioner managed to secure the post of adhoc Director. Thus it is contended that the conduct of the petitioner does not entitle him to the reliefs claimed in the petition.
8. Considered the rival submissions and perused the documents produced alongwith the petition and the statement of objections filed by the respondents as well as original records secured from the office of the second respondent-Institute viz., the minutes of the proceedings of Governing Council and the file produced by learned Addl. Advocate General. On thorough consideration of these materials, I find that the impugned order is issued in utter disregard of the interim order passed by this Court in W.P.No.26539/2019 and it suffers from malafide exercise of power by respondent No.1 and blatant violation of rules and regulations governing the second respondent.
9. Though the third respondent in a bid to defend the impugned order apparently for the reason that he is undue beneficiary of the said order has disputed the very entry of the 13 petitioner in the second respondent Institute contending that by playing fraud and misrepresentation, he secured the employment in the Institute, but the third respondent has not challenged the initial selection and appointment of the petitioner in his parent department, as such, this contention does not merit acceptance and accordingly rejected in limine.
10. In SANT LAL GUPTA v. MODERN COOP. GROUP HOUSING SOCIETY LTD., (2010) 13 SCC 336, in para 21, it is held that,
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]) 14
11. 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.
HIND 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 15 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."
12. Coming to the entitlement and eligibility of respondent No.3 to hold the post of Director is concerned, the seniority list at Annexures-'E', 'E1' and 'E2' clearly indicate that the petitioner is senior to the third respondent. As per the seniority list (Annexure-'E'), the petitioner is placed at Sl.No.3, respondent No.3 at Sl.No.4 and Dr.M. Shivalingaiah at Sl.No.5. Eventhough a contention has been urged by the third respondent that the seniority list was prepared at the instance of the petitioner, but it is not in dispute that the said seniority list has not been challenged by the third respondent till date, except disputing its 16 validity in the collateral proceedings in questioning the absorption of the petitioner into the service of the Institute on the ground that the entry of petitioner in service of the second respondent is fraught with fraud and suppression of material facts. This issue has been elaborately considered and answered in W.P.No.47256/2015 and it is held that the third respondent is precluded from questioning the validity of the seniority list. Therefore, it follows that as per the seniority list at Annexures- 'E', 'E1' and 'E2', the petitioner is senior to the third respondent and hence, the contention urged by the third respondent that he was eligible to the post of Director in preference to the petitioner is liable to be rejected.
13. There is no dispute that the petitioner was appointed as Incharge Director of the second respondent - Institute on 10.05.2019. Subsequently, on 20.06.2019, one Dr. M. Shivalingaiah was appointed as the Incharge Director by displacing the petitioner which was challenged in W.P.No.26539/2019. By an interim order dated 24.06.2019 in the said petition, this Court restrained the first respondent from 17 displacing the petitioner from the post and the said interim order is seem to have been in force as on the date of the impugned notification. Though it is contended by Sri.Dhyan Chinnappa, learned Addl. Advocate General appearing for respondent No.1 that in view of withdrawal of the said writ petition, there was no impediment for respondent No.1 to revoke the appointment made in favour of the petitioner, but there is nothing in the impugned order to indicate that the petitioner is displaced from the said post on account of the dismissal of the Writ Petition No.26539/2019. On the other hand, as rightly pointed out by learned Senior Counsel appearing for the petitioner that the impugned order is issued on totally irrelevant ground namely that the continuance of the petitioner as the Incharge Director is against the public interest in view of the stay order granted in W.P.No.18455/2015. As already stated above, W.P.No.18455/2015 was filed on a different set of facts challenging the enhancement of the age of superannuation of Director from 65 to 70 years. The said amendment was called in question in W.P.No.18455/2015. But this petition was withdrawn 18 by the petitioner by filing a memo for withdrawal (Annexure-N) which read as under:-
MEMO FOR WITHDRAWAL It is submitted that, in a 4th respondent Governing Council meeting held on 26.12.2019, committee reverses the earlier decisions dated 06.03.2015 regarding age limit of superannuation for appointment of Director to the 4th respondent Institute. To that effect, committee passed the resolution to amend the Bye- laws. Later, resolution and amended Bye- laws is registered under the provision of Societies Registration Act 1961 on 06.03.2020 in the office of the registrar of firms. The copy of the resolution and certificate are produced herewith for kind perusal of this Hon'ble Court as Document 1 and 2 respectively.
Wherefore the above named petitioner most respectfully pray this Hon'ble Court, to take the memo on record, and grant leave to withdraw the writ petition, since same is become infructuous in view the 4th respondent resolution dated 26.12.2019, reserving the liberty to the petitioner to work-out the legal remedy in terms of law, in the event 1st or 4th respondent taking any decision in appointment of director of the 4th respondent, if it affect 19 the legal rights of the petitioner, in the interest of justice and equity.
14. In the light of these facts, Respondent No.1 could not have ventured to disturb the appointment of the petitioner by placing the third respondent in place of the petitioner.
15. In this context, it is also relevant to note that even subsequent to the interim order dated 28.04.2016 passed in W.P.No.18455/2015, petitioner not only continued as the Incharge Director till 07.06.2017, but he was once again appointed to the said post on 10.05.2019, as such, there was no vacancy which could have filled by Respondent No.1 by inducting respondent No.3 as Director.
16. Rule 13 of Rules and Regulations of the Institute of Nephro-Urology, Bangalore provides for the mode of appointment of Director. It reads:-
13. APPOINTMENT OF DIRECTOR Mode of Recruitment:
1. Appointment of the Director shall be by the Government on the recommendation of the Governing council, either by direct 20 recruitment or on contract basis or on deputation from amongst regular Government servants.
Provided that the First Director shall be appointed by the Government by selection from amongst Professors in Urology or Nephrology in regular Government service.
2. Appointment on contract basis or on deputation shall be for a period not exceeding five years. Provided that the Government may, on the recommendation of the Governing Council extend the services of a Director beyond five years, by a period not exceeding three years.
3. Minimum Qualification and Experience:
a. Degree in Medicine b. Post Graduate Degree in Urology or Nephrology from any recognized University.
c. Teaching Experience of not less than 10 years in Urology or Nephrology after acquiring the post graduate qualification of which not less than 5 years shall be in a post not lower in rank than of Professor or any other equivalent post.
d. Teaching experience of at least 20 years in Urology or Nephrology in case of contract appointments.
4. Age Limit: Minimum 50 years Superannuation at the age of 65 years.
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5. Pay Scale: Rs.16,400-20,000 with Administrative allowance of Rs.5,000/- per month.
6. Director shall be in overall Administrative control and Management of the Institute.
17. From a plain reading of this rule, it is clear that this rule is applicable only in case of regular or permanent appointment to the post of Director. But in the instant case, admittedly, the appointment made in the impugned notification is an ad-hoc appointment which is governed by Rule 14 which reads as under:-
"Notwithstanding anything contained in Rule 13, the Governing council may appoint a person to officiate as Director in the absence of the Director.
18. Undeniably, the impugned order is passed by the Government under the above rule. But as rightly submitted by learned counsel for respondent No.2 the above rule does not provide for the procedure for appointment of officiating director. Nonetheless, Bye-Law 23 of the Institute, provides for a 22 mechanism to meet such contingencies. This Bye-Law reads as under:-
"23. Other conditions of Service:-
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 order 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."
19. A reading of the original file indicates that the Government has taken recourse to Rule 32 of the KCSR which reads as under:-
R.32. Instead of appointing a Government servant to officiate, it is also permissible to appoint him to be in charge of the current duties of a vacant post. In such a case a "charge allowance" (additional pay) is payable as specified in Rule 68.
[Note 1]- A Government servant can be appointed under this Rule to be in-charge of the current duties of a vacant post only if he is eligible to be promoted to officiate in that post according to the Cadre and Recruitment Rules applicable to that post or if he is holding a post in an equivalent or higher grade.] [Note 2] - The provisions of this Rule apply also to cases where a Government servant being relieved of his 23 own appointment is appointed to be in independent charge of a higher appointment as a temporary measure.]
20. It needs to be stated that Rule 32 of Karnataka Civil Services Rules empowers the Government to appoint a Government servant to be incharge of the current duties only in respect of a vacant post. A person cannot be posted to displace a person who is already holding the post. Existence of vacant post is a sine-qua-non for application of Rule 32 of Karnataka Civil Services Rules. This Rule does not make any distinction in respect of persons holding the post on deputation or absorption or regular appointment. In that view of the matter, the order of posting the third respondent to the post held by the petitioner has to be held as illegal and void-ab-initio. Undeniably as on the date of passing the impugned order, the post of Director was not vacant and the petitioner himself was officiating as incharge Director pursuant to the interim order granted by this Court in W.P.No.26539/2019, as such, there was no justification for respondent No.1 or the Governing Council of the second respondent to appoint third respondent in place of the petitioner 24 on the guise of alleged conflict of interest. The impugned order therefore being violative of the interim order granted by this Court and contrary to Rule 14 of Rules and Regulations of the Institute and Bye-Law 23 of Bye-Laws of the Institute and Rule 32 of Karnataka Civil Services Rules cannot be sustained.
As a result, the petition is allowed. The impugned notification dated 20.05.2020 issued by the first respondent bearing No.MED/95/MSF/2019 (Annexure-Q) is set-aside only in so far as appointing third Respondent as Incharge Director to the second Respondent-Institute. Consequently the petitioner shall continue as Director on incharge basis to the second respondent institute of Nephro-Urology until a permanent Director is appointed in terms of Rule 13 of Rules and Regulations of the Institute or any further arrangement is made for appointment of officiating Director in terms of Rule 14 of Rules and Regulations of the Institute.
Sd/-
JUDGE Bss/mn/-