Karnataka High Court
Dr Raghu T Gokhale vs The Under Secretary on 31 May, 2010
Bench: Manjula Chellur, B.S.Patil
IN THE HIGH COURT OF' KARNATAKA, BAN
PRESENT
AND
THE HONTBLE Mi2:fJii§TibE s_.
WRIT APPEAL NOS. 192im..1?'923/2010. fl31DN§AD]
WRIT ApPEAL*N--o. 192224;;/2Oi'0~.rVE:zuNwAD) i
APPEAL NOS';_V19."3V=1/i2O'1':0
_t3;-1:2'. §'_§zm;_935-~i'9zi'o/'2-010...rEDN--AD)
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. iv 5«:W.A.N'o\s:;V1A9'2A1ii~19523/2010
BETWE'E'Nii.._ii, I
1. Dr. Raghu' T. G'ukhaie.._
S / 0 Tnippeswa niy Gokhale
Aged ab011t'37 years
Medical Of'fice;r"
._'P}*im;;iry.VAHealth' Center
V Nonévinaiagre, Tiptur Taluk
' 'Tun'ivkur_'EDiStrict
.. Dr} Rariganath M.V.
Si'/0 Ve*r1katarangaiah M.C
Agecfabout 34 years
* Medical Officer
it 'Prjirnary Health Unit
' * .7I'h-ippur, Gubbi Taluk
Tumkur District APPELLANTS
N1 _. '.
" w{]"3y Sn'. '1'. P. Rajendra Kumar Sungay, Advocate)
DATED THIS THE 31ST DAY OF MAY, 2010 xi'
THE HONBLE MRS. JUSTICE.MANJLTLZX'
AND
1. The Under Secretary
Department of Health &
Family Welfare (Services-- 1}
M. S. Building _
Bangalore--560 O01 :
2. The Commissioner D
Department of Health 8:
Family Welfare C'
Anarid Rao Circle
Bar1galore--56O 009:"
3. The Director
Department of Health..<3z '
Family Welfa:rlev--.' C
Anaricl Rajo y _
Bar1ga1Gre¥'5.6:G«O3O9
4. Raj_iv.Gari'd_hi U1f_1lV€l"F3l'E:?jf
off~iealth'Sc;i.er1(;3eVs _
4"' Block. J
Barigalo're--56.0 0.41
Repreéerited by,its_ "
Registrar)'Meml:5er Secretary
V. _ 5. ivIoh'a,r1
V A , Aged al:outV38 years
- {S/_o'i,ate lvastgdevan
_ "-Woriciflg as ylifledical Officer
A Primary Health Center
}:3.anii1italcpura
Gundiiipet Taluk
» AA Chamarajanagar District
6. Dr. Narasimha Murty N.
Aged about 38 years
S / o Narasaiah S
Working as Medical Officer
Primary Health Center
Gottigere
Bangalore
7. Dr. Hariprasad C.
Aged about 38 years
S/o Cheluve Gowda s
Working as Medical Officer-._y
Primary Health Center
Mirle, K. R. Nagar Taluk
Mysore District ' ~ A
8. Dr. Purushotham _
Aged about years ' *
S/o K. Bheeniaiah '
Workingeas yMe._di'_ca1 Qfficerf
Primary' Hearth Cente'1"'~i'- y_ °
Nao1_e_k_ere._ V V. A
Maidhugiri g'}"alu1i';.' _ ._
TUfIikL1_I"DiSVtF'7{T:'tAA " A
9. Dr. N. VT..'_MuVrli' _ y
Aged abo'uty_38ayears
S;/o Late 8. 'Fh.imma,iah
v?Workingvi.as Medical Officer
'C A , _Pr:1r1ary Health Center
Kivthanagaznangala
'«KL1nigai..Ta£.1;'}{, Tumkur District
10.D.r. Jaiprakash H. R.
Aged about 35 years
A' 3/0 Raiashekar
Working as Medical Officer
" Primary Health Center
Baragi, Gundlupet Taluk
__ 7 Chamarajanagar District
11.Dr. Chetan M
Aged about 38 years
S/o Late Ornkara Murthy
Working as Medical Officer
Primary Health Center
Dodda Agrahara, Sira Taluk _y
Tumkur District O
12.Dr. R. Niveditha
Aged about 38 years _V
Working as Lady Medical Officer
Primary Health Center
Udayapura. Channrayapattria'*'ifaI1ik-._
Hassan District
13.Dr. Vidya Shankarappa.
Aged about 37 years ' ' "
Working as La;Lly_VMe'dica_l'd C if
GeneraI,Ho"s.pitalI'_V'
Bailhongal f__ O '
Belgaum gDi_stri1e:t "
14.Dr.7Su1--1itha N W " _
Agedabout 3Syears
W/ o Gangkadar' H. 'dalgateri
Working as Lady' Medical Officer
H. Chikkadi
g . . . . . .. '
1=5.Dr._ Riyaz"Ahi'n ed Abdulgani Makandar
"A'ged'vab~o_ult. years
' . S,'/"o Abciul Gani
Working-.a's Medical Officer
Primary Health Center
A Kargal'
'Cnikkodi District
16.Dr. Raju G
Aged about 45 years
S / o Gangathimmaiah
Working as Medical Officer
R/at No.l0O9, 4th Main,
5"] Cross. Judicial Layout
Yelahanka
Bangalore
17.Dr. M. N. Swamy
Aged about 39 years
S/0 Nanjundappa M. B.
Working as Taluk Health Officer
Tipatur, Tumkur District * "
18.131'. Girish R
Aged about 37 years'... ' "
S/o K. S. Ra.niachaff1draiah .
Working as Ivl;§3ciiVcal"Ofiicer A "
Community._'HcaithVCenter
Solur, Mag--a_dji Tal"uk._V _
Raifnanagar Di;=;m'_ct'«..
Ageclvabout 36"yejars' "
S/ o D.' lRaniaswamy'_.'*
Wo_rking"as_ District'-T. 'B. Control Officer
Qhiciiaballaptirg g.
l9.Drl.'v..Narasi1niia"-Murtliy_:D.R..
if 2o..i)-1-,'Vs§..rea"veen Chandra
yAg.ed'«aboVut 39 years
._ S ,1 0" '1}ate__S;.;.SViddaraju
' _Work_1'ng' as Medical Officer
Prim.aryvHea1th Center
Billalet.
= A. fanelavapura Taluk
" _ lviandya District
2l.Dr. Vasantha Lakshmi A.V.
Aged about 40 years
D / o Vasudeva
Working as General Duty Medical Officer
General Hospital, Pandavapura
Mandya District
22.Dr. M. D. Shiva Ramakrishna
Aged about 37 years
S/o M. D. Doddalingaiah
Working as Medical Officer
Primary Health Center
Keelanapura, Mysore Taluk .
Mysore _ = "
23.Dr. Revanna
Aged about 37 years V
S/o Maribasavaiah§' O' _ '
Working €33 M§§dical:--.OffiC"er 4'
Primary«i~Iealih..Center__V' " = ' »
Adaguru, C:';_a]_igel{ere_ Pofst
K.
Mysore lJist1fict'i, , "
24. Dr. vvlillralaiash "~
Aged a"o'_olut_ 42 yea rs
S/Q Sl'1ekh_appa* '
Ni/"o1*l{.ing as Medical Officer
- ,G°er:leral. Hospital "" " '
'V 'A A , Sh1ra._gL1ppa
' V. "BelIa;*y}3~1str1ct
"-Qhavrnarajendra Hospital.
I-lassan.
26;Dr. Mxshwanath Gowda M.G,
A v __G.overnment Hosp1tal.
Indiranagar, Old Madras Road,
l Bangalore.
27.Dr. Basavaraj Virappa,
Biradarpatil,
PHC-Kasabajambagi,
Mudhola Taluk.
Bagalkote.
28.Dr.Shivakirar1 C.S,
P HC~H0nnur,
Davanagere District.
29.Dr. J agadish S.G,
P HC--1\/Iudarangadi.
Udupi Taiuk & Dist.
30.Dr. Rajeshwari
District Hospital. :
Maciikeri. '
31.Dr.Sudha:'a'fii1jiC;§i\I.. ¢
S.N.R. I;Iosp.:ta1,---';~_V '
K0131'. V V' a '
32.Dr,'i'Kn¥'afi'
Geri_era1'IIos'pita1L, A
Sirsi; Uttara'
33.Dr._ Javéiii Cha.1idré1"kaifii Sangappa,
"EEC-.Ameefia.__Gada,V
- HL1n_a.gunda Taluk,' '
Baga]}gn_ta._D1st.
1 M. Salimath,
' . PHC-M'ujigu'nda,
-C_'yad.vgg~ Dl.8trICt.
35.Dr: Gfindapalli Suresh Irappa,
., A' ' LCHC-Byadagi,
j " * Eiaveri District.
36.Dr. Bhagyalakshmi K,
Eye~speciaiist,
District Government Meggan
Hospital, Shirnoga.
37.Dr. Dasharatha S.H,
District Hospital.
Bijapur.
38.Dr.Kiran S.H.
District Hospital,
Davanagere.
39.Dr.Venkatesh J .D,
Meggan Hospital, V '
Shimoga.
40.Shubha K.J,_j"
General H%5SP§1j'G:1I. Banritli', 'V
T.Narasipura '
Mysore V'
41_Dr,.p;;shp;iiH.1s;,,D' _
PHC~Bai1hongja1a;i 4' --
Beigaum D1stn'et_}_ "
42.D1_'.Anil D Sadashivv Kanaiie,
I?;HC~,;\/Iada"i3hVavi,
.....
' 43'§Dr."Siiri_€efha N, .._r-Gexieial Hospital, 'x'eIahanjLf,a,,,1' Bangaiovre Urban Dist.
44.Dri sianivas so.
" iifiovernment Hospital, " = __Hoskote, Bangalore Urban Dist.
.__.\
45.Dr. Basavantrao Gummed, District Hospital, Bldar.
46.Dr. Vishnumurthy I-LY, PHC~Bharathibai1e, Mudigere Taluk, Chickmagalur Dist.
47.Dr. Onkara Murthy B, District Hospital, Chltradurga.
48.Dr. Rekha S, BBMP, Bangalore.
49.Dr.Manjanaik R, V PHC~Kondsjji«,,,'V Harihara, j , .
Davanagereb_'D1"st.-'.,__ b
50.Dr.,Basti Stinita _ ~ PHC_--BanaVai"s;,"-.,A "
Ars1kr3re<_Ta1u,k,'V "
Hassan_LDist. '
51.D;r.~s1;ob1'da-M:.J;"
,_Pi"~J..C--_K. Honnalagere, _ Mad"c',i11VTa1.uk, V '--Mam_:1y'a D_1str_1ct.
"5:?.x.'Dr. i5o§%,ifniiii:i'VA.S, ' PHC-Vismshwaranagar, 1\/Iyso-tie. ' ._"é5.3,,Dr. Pftitiilbha M.S, .V .12 J. .
, ,, "'l/ " , PHC--AkkurHosa11i, , 'Ctiannapatna Taluk, , Ramnagara District.
54.Dr. Girish R, District Hospital.
Chamarajanagar.
55.Dr. Ratna Rucirayya, Chillurmath, District Hospital, Bagalkot.
56.Dr.l\/Ianjunath M.D, CHC-Bannur, '1'.Narasipur Taluk, Mysore Dist.
57.Dr. Eshwarappa M;
District TB. Centre, ' Karawar, Uttara Kannatiah Disitfiétg V
58.Dr. " 1 L.H,,,Hosp"i-t2_ii'_ *=:;,, ~ V Ba1V1ga10ré.VD.D'v'.. H
59. Dr. iVIura1iVdhafa':.DV.DD' "* -.
PHC--KaV_'aluVruD, .
Kpppal District..
' _ sob}-. Harilal Nah:
.,Gene1'al--Hea1th Centre, V _ "f§haVfin'avrayapatna Taluk, ' ,Hasse.n'B{istfict.
61 .Dr: Rétjalakshmi V, AA ; District Hospital, .V_B'tj1gaum.
11
62.Dr. Kalavathi S.D, Communicable Disease Hospital, Mysore.
63.Dr. Babu Mahendra Prasad N, Government Hospital, K.R.Puram, Bangalore.
64.Dr. Udayakumara, District Hospital, Udupi.
65.Dr.Prashantha P.G..~ .
General Health cen:.;~é%;- _ Hospete, Bellary Dist; V
66.Dr. Shivaswmay S, j' P.H.C. KaSl1Vi:}~ah3lll« L NanjanagL1"d..'_Ta1-tik '' it Mysore Bis-"r;_1_'i«;;t 2
67.Dr;VShashiI{a.Ia , "
Hea1th'--Centi"'e,["'-~.,it . IPP--8A, BBMP,.VKo_c;iihalIi;' Bangalorei. _ " A Chidariamla H.f}udur, " vGena::era1'vi--Eiiospital';""' ' 2 .,K.R,F=..11'arn~, A V {Bangalore East T aluk, ' ._ "Banga.lor__e'{_Jrban Dist.
69lDr.Ar1an'c'la Kumar V, PH*C--Eirundi.
A. ,Mysore Taluk.
ya ' l 70.5}. Mamatha K. E General Hospital, Kunigal, T umkur Dist.
80.9r. I-Iemaraju G, Taluk Hospital, Malavaili, Manciya District.
81 .Dr.Sumithra K, District Hospital, Ramnagara.
82.Dr. Yeshraj G, PHCJ-Iunasanahaiii, Ramnagar District.
83.Dr. Bhanu Rekha .
Chigateri District Ho_s"pital--',: .A ~ Davanagere.
84.Dr. N irmala Ma._<:iiwz;L1Aap'p-a, Pudaka1katti,j,..-' '"
District__.1+ios.pita1;'. " ..j "
Gadagf _V 5 V ' H.E3_.I.S. Cvhosha}*Iosp_1_ta!., ' - Barlgalore. -- "
86.Dr. Puia1:es'111.Kaoltatakoppa, F:'H'C--_sha1at'adi,' V_"B:haxjVwag:1 D1s'm.c.t.._.. v » z3'7'».Dr...Vanash1-e¢ N, ' .'.a.Ge:1éra1" Hospital, A '3angar"pet;_:= ._§{o1ar I)1s§.r1ct.
. RESPONDENTS [By Ravivarma Kumar Associates, Sn'. J. Prashanth, Acslxrocaté, Sn'. V. R. Sarathy, Advocate for C/R5-'7, R1043, _ R16{_«18 8: R21, Sri. N. K. Ramesh, Advocate for R4) %t'>o<;t *=i¢8I
4. Dr. S. Naveen Chandra Aged about 39 years S/o Late S. Siddaraju Working as Medical Officer Primary Health Center Bellale, Pandavapura Taluk Mandya District
5. Dr. Rekha C Chamarajendra Hospital V ' Hassan
6. Dr. M. N. Swamy Taluk Health Officer Tipatur, Turnkur District
7. Dr. Vidya Shankarappé; Yadalii. '' Lady Medical Officer . A General Hospital ' Bailhongal , ' I Belgauirl
8. Dr. :Moha11iKuffIarlV ' Medical Officer" V' Primary L Health Ce'nter_} Bannitakpura' V. C ' Cfi1nCllIlp€tTa'II1k « "Chamaraj.anagar"'District . _ [)r.VVVl'=laraS.'£1_iIuL1a Murty. N AMedica.I_v»Oi'fi.c'er.
' ._I_3rimar.y Health Center, Gotti--ger'e;
Bangalore.
'~1f"'1o:.:5i:.vishwanath Gowda M.G. Government Hospital, Indiranagar, Old Madras Road, ' Bangalore.
ix ,/I
11.Dr. Basavaraj Virappa Biraciarpatil PHC--Kasabajambagi, Mudhol Taluk, Bagalkote.
12.Dr. Shivakiran C.S. PHC--H0r1nur, Davanagere District.
13.Dr. Hariprasad C Medical Officer.
Primary Health Center. _ _ Mirie, KR. Nagar Taiuk, ' Mysore District.
14.Dr.Jagadish S.G. PHC~Muda1'angadi, - D :.
Udupi'i'a1uk&District.fl '
15.Dr. RajeshW'a'ri District Hc?spit;ai..'_ ~ 7 Madikere. "V V" V. D"
16.Dr. R. Niveci'itha,_:' . "
Lady Msdical O_fficer,, Primary Hc_a1th..Ceritef, ,.Ej«day0.pura. 'Channarayapattna Taluk, " vsflasis-an "--Dist1'ict." """ " D Abdulgani Makandar, 2 " --1\(Iedica1.Off1ccr, ' Health Center, Karga1,'Chikkodi District.
3 ~18...Dr.vJaiprakash H.R. V Medical Ofiicer, Primary Health Center, Baragi, Gundlupet Taluk, Charnarajanagar District.
19.131". Sudharani C.N. S.N.R. Hospital, Kolar.
20.Dr. Chetan M. Medical Officer, Primary Health Center, Dodda Agrahara, Sira Taluk, Tumkur District.
21.Dr. Kiran V. Kulkarni, ~ General Hospital, L' _ Sirsi, Uttara Kannada District... "
22.Dr. Vasantha Lakshn'1i.'_ V General Duty VMedicaV1V_ Officer, V' General I-10sp'ita_1, 'A " * "
PandaVap11ra;"::jE\/iandffa V *
23.Dr. J avali Ch'andr'akar1tjSa'ng'appa;' PHC.--_Arné'ena ._ ' i' Hu,nagundaVTa1tik, _ Bagalkota
24.Dr. Viéhwanatii it/It sajinaath PH.C--Mu1g11_r1da,,.'* Gadag Distri'ci:._ AV 25.131'. fiezizzgiapalli Suresh Irappa, ' ._ "Htavé:r:"_;:>:s:;-ict.
25f'Dr. Efiifiagjt/alakshmi. K Eye-s1_'::»ec'1alist.
it ~ ; District Government Meggan Hospital. V' , _ Shimoga.
27.Dr. Dasharatha S.PI.
District Hospital.
Bijapur.
28.Dr. Kiran S.H. District Hospital.
Davanagere.
29.Dr. Venkatesh J.D. Meggan Hospital.
Shimoga.
30.Shubha K.J. General Hospital, Bannur. A. T. Narasipura Taluk.__ ._ Mysore District. ' V "
31.Dr. Narasimha ~ V District TB. C:o11troI--.Qfficer. "
Chickal;all'apu~r.. "
32.Dr.,..Pus1fi1sa"'iil;1i:;. 1. j"
PHvC~Bailalf1onga.l, _ * Bel"gaurn.. "
33.1». A:i;i._sa;1a'shi{r.Kaf£asde. RHC~Madab1'1aV.i, "
,.}.;3<Ii§lg2'L1_11'I1. V . 34.Dr,_ AP1.1r'-!.1:s'h,otharn, V _ Med'i:;ai~ Gffieer.
~. " -- __I-iealth Center, ' Naolekere; D Madhugiri Taluk, "Tun§ku'r"Dist1'ict.
D 35.3;-."suneetha N. General Hospital, 'felahanka, Bangalore Urban District.
36.Dr. Srinivas BC}.
Government Hospital, Hoskote, Bangalore Urban District.
37.Dr. Basavantrao Gummed, District Hospital, Bidar.
38.D1'. Vishnumurthy H.Y. PHC--Bharathibai1e, Mudigere Taluk, Chickmagalur District.
39.Dr. Onkara Murthy B. District Hospital, Chitradurga.
40.Dr.Rekha s. D BBMP, Bangaioregg \ 4I.Dr.:Vi\/Ianjaiiaik PHC.¢Konda;;'i;v -» ' V Harihara, ' Davanagcfe _Distriot. " V. . V 42.D11;.Basti Sunita VDeV.endra, "?HC?+BaI"1avara, H DDDDD H V VA_rsi_kere'Ta1,uk, VAaHass;ar_1 Dist.'_',,
43..1_5r. s,h.oBi<;a:DM.J. PHC+--K. Eionrialagere, Maddiir Taiuk.
D is .Mandya District.
":3-21';1:;r'". Poomima A.S, A PHC--Visveshwaranagar, Mysore.
/ _/r 20 4--.5.Dr. Prathibha M.S. PHC~Akkur Hosalli, Channapatna Taiuk.
Rarnnagara District.
46.Dr.Girish R. Medical Officer, Community Health Centre, Soiur, MagadiTa1uk.
Ramanagar District.
47.Dr.N.T.Mur1i.
Primary Health Center, Kithanagamanagala; .
Kunipa1Ta1uk, ' Tumkur District.
48.Dr. Girish Rg ' District Hc_}sp§'i;a1', L Chamarajan_aga.r;; " 4.: "
49 . Dra. Ratna; VI-"mdrazyya, ' ' Chf!1ur*11'}ath,"f"-~ '-
District"¥Iospitai_;V'V. "
[email protected] _ i ' "
50...1'i)r. Revanliay. & ' ~PriI3r1cary" Health Céfiter, » * -. Adaguru, ' Gaiigekere Post.
" _ , K;AR,E\IVagarc.TaEuk, 2 A ' -MysOrr3;Diatrict.
5 1"."Dr.1'§/:iar'1';"iinath M.D. CFIC--I3anr1"ur.
* +_.'i'.I\§a'rasipur Taiuk, V. Mysore Dist.
".3/I H
52.Dr. Eshwarappa M. District T.B.Centre.
Kai-war, Uttara Kannada District.
53.Dr.Wahid Khan, L. H.Hospital, Bangalore.
54.Dr. Muralidhara V. PI-*IC--KaValuru.
Koppal District.
55.Dr. Raju G, .
R/at N0.1509, 4"' I\'/faint}, V V .V 5*" Cross. Judicial Layotit. Yelahanka, V V_ ' V Bangalore.
56.Dr. Ha2'_ilal"'i\IVaL<=.:'§/l.'L,.: V" ~-- General He--.'{_1lth Centreifi V I-*Iiresave,"».__ ' "*1:;V._ ' Ch:ar1nrayap_atnaV ta§1ik.._ Hassan district'.-»,A "
57.Dr. Rajalal:sll1§.n_.i.llVl. " ll District 1'iospit.a1--, ' ..E5Velgaum. ' .4 58..Dr._V»ll{AalaVtfathi S.D. X V ._CorVi*i:rV1uriic:alV;Ee' Disease Hospital, ~_ "i\V«Iys"oreV.._V '~ "
59."Dr. Mahendra Prasad N, Govexmrnent Hospital, . * .«_VK.P.Puram.
' Bangalore.22
60.Dr. Udayakumara, District Hospital, Udupi.
6l.Dr. Prashantha P.G, General Health centre, Hospete, Bellary dist.
62.Dr. Shivaswamy S. PHC--KasuVinahalli, Nanjangucl Taluk, Mysore District.
63.Dr. Shashikala S, Health Centre, V --_ IPP--8, BBMP, KocIihal1i.,_a_" V Bangalore. _ ' General Hospit-al":,--_V V _ K.R.Pur¥a.m,ii__}=_ " ' Bangaln_1fe*V,EastI:Taluk,-._ Bangalore 'E;IrbVa131 IJist';-,
64.Dr. Chidaiiariélsail, "suduf, "
65.Dr. M,D'. Shix:aRamak_1*i€-iina, Prima1'y._He.alth. Centrer.
Keelanapura,' Mysore Taluk, ~Mysore. "
» Dr... _ Kumar V. ' Pi~Ic*..Bim'ndi, H = A . '--1\./iysore''Ta'l;1ik.
6'7'.i4Dr."'1\:&.aitiatha K. Gene: al Hospital, D " *a.Kunigal, Tumkur Dist.
Mohan Kumar S.L. General Hospital.
Kunigal, Tumkur Dist.
69.Dr. Jayaram PH.
District Hospital.
Chitradurga.
7 O.Dr. I-Iosamani Shantha Shivappa Chigateri District Hospital. Davanagere.
71 .Dr. Jayamaia V. V Giriyabovipalya Health Ceiling, Mysore. V.
72.Dr. Vijaya Kumar R;
T.B. Centre. Aneka1,~.._ _ ; V V Bangalore Urban Distri(_;t. 7 3.Dr. Manjulva.-dévi _M. PI-IC - Shiifag-{1age,. ; Ne1amai1gaL'ia Tallgk, __' Bang1ofeVV.R*{1fa1Distriétf '_ ° 7¢1.I)r..:tvSLii'i_itiifI_.\I.W _ c.1~%1--,c.= chVikke.¢1~:., ' ' Chiki:pdi,A ' * 75.13:, Rekfia ..
.. BBMP I-Ieaiti1..C_<_=:nt1fe.
. _, A " ~--KOI'9;;n2iI1gala. """ H ":«'e_.:';r._jsuxyazgaiith 13.
~. "--.1?Hc-D:'1a_a:murs (S), ' ._Ba1ki .'1*a1uk.
Bids; District.
"?V'7..Dr.vVAnitha Badan, Government Hospital.
Bangarpet. Kolar District.24
78.Dr. Hamaraju G. Taluk Hospital, Malavalki, Maridya District.
7'9.Dr. Sumithra K. District Hospital, Ramnagara.
80.131'. Yeshraj G. PHC--Hunasar1aha11i, Ramanara District.
81.Dr. Bhanu Rekha E. Chigateri District Ho"spita1.~~""" - V Davanagare.
82.Dr. §irrna1a Madiwalapvpa» Pudaka1ka_.tti;
District Iii-spitéi1,. . ' Gadag.
83.Dra.;vK2itrit]r1it:ar1i:VA§Z'i. _ . H.S,I.S. 'Ghoshfa..Hosp--1tai--, ' Bangalore. ' ' V
-84.Dr. Prairash 1~1a.;1:,A'*. "
Fgeneral HoS'p.itgt1, A. " ~Shir'ag_u;ppa, »A * --. Bellvary District.
Kaciarakoppa, ' ._4PHCV-.Sha.iavadi, Dha-rwad District.
!"*€;
86.Dr. Vanishree N. General Hospital, Bangalore, Kolar District. REsPoN1:_)P;NTs..V_ (By M/ s. Ravivarma Kumar Associates, Sri. N. K_.. _ Advocate for R-3) *=lHk This Writ Appeal is filed as 4 ofttl?ie'*Karriatalia___l"ligf,3ri Court Act praying to set aside the "order 'passed. W.P.N0.854}4/2010 dated 26;--1.-2010. 2 V' WRIT APPEAL N¢s;;9_34/2015 ' 81 1913543; 193os;1g4o;go1o BETWEEN Dr. Gyna Kumar; B.D.S~" .
S/o Sri. B. Ci:zi1:n_a:---aj Aged about 33_..''years--w._ , ff * Dental Health Officer 3 "
Goverxi rfient ialukfiiifiospital Devariahalli V' ' "
Barlgaiore District." .. APPELLANT (By sn. G-Vowtharan pe°v_c';...m1a1, Advocate) .....
A .1;" to Government . '«-l'_ofAi{amataka"
' . Departrnexit of Health 8.1 "Family ,\1'.? elfare Vikasa Soudha _ Bangal0re«56O O01 2;». The Commissioner Health 8: Family Welfare Services Anand Rao Circle Bangalore-560 O09
-.1?26
Rajiv Gandhi University of Health Sciences 4*" T Block, Jayanagar Banga1ore--56(3 009 By its Registrar--MeInber Secretary for Selection to Post Graduate Medical and Dental Degree and Diploma Courses Dr. Syed Ziauddin Aged about 30 years .
S/o Syed Moiuddin Working as Dental Health 0 fieer _ General Hospital _ --. it Doddaballapur V « 5 Sr. Nagendratcupta A Aged about 39 years ' _ S/0 Radhaknshnaiah Shettyt' , "
District Hospital » Q Chicliabyailapur, ~ Workingas «Dental '1*Iea_lth_ H ~ . Dr§'vvVenugo15aii"-sci.'ls, S/o Satilyarxarayanafllao"G. R Aged ah.out.v 35 years Working "as Dental "Health Officer .» General Hospital " 'sChi5r1tar"r! am . R. ' Aged' a'DoutV34 years D A ._S/oVRar1galnath C. J 'Wor--kirig' as Dental Health Officer Talulé General Hospital Turuvekere V * .ef£'i1rrikur District
13. 27 . Dr. Shanthala. K. S D/o Sarathy Chandra K Aged about 30 years Working as Dental Health Officer District Hospital Dharwad . Dr. Jayadeep N. A Aged about 35 years S/o Anath M. B Working as Dentai Healthgflfficer it C. 1-1. C. Bantwala Mangalore District
10.Dr. Sudhir Raika _ _« Aged about 33 yearsv » ._ --
Working as Dental Health Yelaburga General Ho'spita1 * Koppal Dist1"ii:1tg_.'*
11.Dr. Mahesli_E$'ajeridthfi~:v'o- g_ * Aged iab.ou~t_ 33'13{ears_' ~ Wc:rkingCasfDenta1 Health Officer E-Ianga}. General Hospital - ' ' Haveri District' . ».
12.Dr.. S. N.aVeeI1wC'hai'adVra . Aged' about 39 .y_ear'fs " / o.-.'Late.. S. Siddaraj u » » Working. Medical Officer ' Prinjary Pieaith Center, Bellalre
-- A '--PandaVap'ura Taluk ...4'Mandya'j;District Di~._t<;~. s. Su1'na,M.B.B.S ».W/0" Dr. S. A. Somashekar x _ Aged about 35 years " Medical Officer {DCMO) At Manchegowdanapaiya (M.G.Pa1ya) Ramanagar Taiuk & District 28
14.Dr. A_1'atiKulkarni, }3.D.S. D / 0 Prof. V. T. Kulkami Aged about 34 years Dental Health Officer Community Health Centre Nitte, Karkala Taluk Udupi District
15.Dr. Priya Darshini C, B.D.S D / 0 Dr. M. Chandra Mohan Aged about 33 years ' -
Dental Health Officer General Hospital, }3angarapet'=_d _ Kolar District A _ as
16.Dr. Sameena Kowser'Su.'ssin.,.7B;D.Se»._ . W/0 Mr. Rasool .V " "
Aged about 33 years " _ -
Dental Health}j.OfficerA "
General 1Piospi't.aI:,-_VBagepa.l.li ' ' Chickaballapigr Dis't1jictfg ._
17.Dr.. Manjtunath 'Mest'ha_, 3.1:). s S / o;Srl.' Ganatjathi, 1\/E~e_Stha ' Aged' about 3.4 years '~ "
Dental Health' Officer, General Hospital Knndapura .. {ildupi District V _ A ;18._D1'.V'V'er1};{a*tesh s. T., 13.9.5 _ . S /'o_°$ri; 'I'ha_yappa.L.I
-- ' Aged' ai3ou,t"34 years A ._Dental Health Officer General "Hospital, Ayanur Shirnoga District RESPONDENTS {I33"r4"'A.M/s. Ravivarma Kumar Associates, Sri. J. Prashanth, "'--AdVocate, Sri. V. R. Sarathi, Advocate for C/R4, 5, 7, 11, Government Advocate for R1 & 2. Sri. N K. Rarnesh, A V' "Advocate for R--3) 29 These Writ Appeals are filed u/s 4 of the Karnataka High Court Act praying to set aside the order passedin the W.P.No.8544-50/2010 dated 26.4.2010.
These appeals coming on for Preliminary__Hea1?irig: _ being reserved for pronouncement of Judgment, clay; * MANJULA CHELLUR.-J, delivered themfollowingzr » ._ :2. p '~ JUDGMENrga In all these appeals, cocnimon "questions. of jeontroijrersgrd'.
which arises for the consideratinontof this islin respect of the Government bearing No.Aa. Ku. Ka/842/HSHA jvrc-'spondent no. 1.
The appellants' lS£'.idi'GOV€1'nII1€1'1t Order as illegal and Withoult ju_ristliction.
'The that" led to the filing of the writ petitions lbefore single Judge are as under:
Petitioners. _a_rid. private respondents are Medical » ffi_cerVs'~w*ho'~-.are in-service of the respondent authorities H 'Vii:-._tlie'll)epartment of Health and Family Welfare. It is "no: that all of them were eligible for Post- "Gra_dulation course: in M.S., M.D., M.D.S. under the category l 'irrservice candidates. The selection process which "ultimately results in admission of the candidates to Post- 30 Graduate, Masters and Diploma Course is undisputedly governed by rules by a test called as Karnataka CQIlV(il'L1i'3t.V_Of Entrance Test. This process of selection and -Ii._s" _ governed by Rules of 2006. Earlier to2006.;2'G€l3*riiles'wer:e " as applicable. Applications were acalled for lg ' = candidates to take such Cornlnon Entrance :"i"'esVt.Vpopu;larly_a"; known as PGET by a notification 2(j;11.2009. Entrance test also be 11.2.2010. A provisional merit. list was aimou.nc.ed'°on *2; '.,!2';2O 1 0.
3. dated 29.1.20 10 contempliates being granted for contract doctors appointed on contract basis and' s1;bseau.ent,ly Vregularised and also for doctors who werainitially appointepci by granting rural weightage but later ' te1*min.ated«.fr'om service in pursuance of the Supreme Court 'order anadf"p--the.reafter appointed on contract basis. This was cha'11eng§d"'in W.P.Nos. 8544-50/2010 clubbed with 9546» The weightage marks have to be added to the Z7rnarl<s obtained by the in»--service candidates in the written a "test. So far as general merit candidates are concerned to 3} become eligible in the entrance test, they are required to obtain a minimum of 50% and so far as SC and ityzas 40% of marks.
4. According to the appeEEa*nts,"the ser\_ricAe:vw*eVig1ii;ageg marks ought to have been granted«ion-Ky' to s'u.ch..i11--ser«.tice._ candidates who were reguiariy'~aj:Spointed~._ag 'CrfIicers."' It is their categoricalVcontenti'o'1i--..that'-ac.andidates.~who were appointed on contract and those who were initiafly. weightage but later into service on contra.ct--basis5v'.arefoot benefit. However, the appeiiants gjgervice weightage marks can be awarded of regular service rendered by then; inthe [jep:ar_tine'nt irrespective of the number of years ' had in either on contract basis or as candidates H .ini=tiaEEy appointed by granting rurai weightage.
According ' to the appeiiants, when Government issued a "notification on 18.1.2005 extending benefit of awarding dbservdice weightage marks to those in--seI'vice candidates who "worked as contract doctors, the aggrieved candidates 32 approached the court in the case of Dr. Prathap and Others vs. State of Karnataka - ILR 2005 Kai' 2682 and quashed the Government Order dated _ that award of service weightage marks to .'coI1tr:act""doctors '* was illegal. The appellants contend the '(_2':o'vef'ri'1tariei1t;l quite contrary to the law laididowjn the case 9 has come up with the impugned:notificatiori 1 .2010 providing service weigh_ta;ge contract/rural weightage doctors _ their services without to the appellants-
petitioners, ':..:.l~n6.f§ifi.CatiOn is the result of pressure _ contract and rural weightage candidate,_s"and cause immense hardship and injustice touuthe 'ap'pellan"ts and such other doctors who were regullarly appointed and have been working as Their grievance is that by adopting this rriethod, appellants and such other candidates who have a secured better ranking than that of the private rvespiondents are placed much below the respondents and he V' because of award of service weightage marks for every 33 year exceeding 5 years under the category of contract and rurai weightage service to the respondents they arvecV_:p1_aced above them. With these averrnents, they _ Iearned single Judge in severai writ petitions." '
5. As against this, the case .respondents._u before the learned singie Judge»)?-s that--.KarnataIs;aV'V'Me'dica1it' Officers Association which VV't._he petitioners and respondents are members certain demands before the weightage for contract.' seiection for Post- Graduate"stu'dti'esi*;.; In by the Medicai Officers the appeliante and one of the appeflants even went to v.e)«itent._ btofyisubmitting his resignation and A. thvcrefore, now' it"is__n_ot open to the appellants to go back and ' con.tend"~that* awarding of such weightage marks to the 'contract and those selected under rura} weightage as bad According to them, the appeais have to be Atdis-missed in limini on the ground of acquiescence. The Atprixfate respondents piaced reiiance on 2006 rules and aiso it "the corrigendum dated 10.1.1997. According to them the 34 impugned order is not at all in violation of the rules and Government Orders of the Government. Accordingttowi Dr. Prathap's case was much prior to the « _ therefore, the law laid down in Dr. Vl?Arathap_'--s'cas:e. not 2 come in the Way of the present case. the order of the Adrninistrative Trfofunal 110.4656/2008 and connected: "vvhefrein the Government was direcnffj. period of service with effect fromAinitia1vAa.ppoi.ntrnAent weightage till their appoipnltfmeffit the purpose of selection and admission' to.Vi_P,G';'i'courses. The VGoiiernraiefntzlfigdvocate and the Advocate for the University 'A.the:_".."'impugned order and adopt the co»i;.§;entions of the_counsel for the private respondents. .fi'tie'«.:i:VéE'irned single Judge has, by his order dated if dismissed the writ petitions holding that after the dispos'al offIZ)r. Prathap's case, sub~--rule[2} of Rule 3 came to V. "'se..4an'iended specifying in~serv1ce candidates who are entitled forffservice weightage marks including contract and rural 'vaeightage doctors. It is held that in the absence of any challenge to the amended rules, there cannot be any decision regarding the validity of the amended rules...LH.elrice. on account of the amendment of rules, it is _ Prathap's case had no appiicationto the factspi." the cased'. 'v He has further heid that absorption ru:'les:'ot candidates who were terminated due V' to c1e'rii.aJ'_V of plrurai weightage benefit were questiorie'dl,Vbeforelltiielbupregme Court and the said matters" were itiat'ter:Ttransferred to the Karnataka AdII1lnlStIf_3.ii\;C:'~. disposal in accordance ' 85.2005, the Tribunal upheld rules. Therefore, all thoseij appointed on rural weightage 4' and:_"'so:r1tinued on contract basis and absorbed under-thedl'-said ruies are entitled to treat their «servlice"ireridered oVnmcontract/ rural weightage basis for grant 1 cf~weigh.tage"i-rriarks for in-service. According to them, the inipugnednorder passed by the respondents is in consonance not oiiliji with the amended sub~rulc{2) of the Ruie 3 of 2006 also in accordance with the directions issued by the l __Tribunal in appiication no.4656/ 2008. 36
7. So far as the second prayer of mandamus, the teamed single Judge has held that the selection procedure and pattern to conduct entrance test for . Post--Graduation applicable in ca;nnotl:'_'vbe"V: Vmadre "' applicable for the year 2009-10. He u1:_timateiy_lhleldltiiattiie procedure applicable for the eiurrent ae.ademie'vVyle.ar..,is based on the amended rules and the_4'l:£inpugned.'order. Therefore there is no justification in:"the'.cia;eizn of_'the~writ petitioners.
8. piesent appeals are filed. The . appeals W.A.No. 1922. 1923 Medical Sciences and W.A.1S;?l34"to Dental Course. According to appellant ii'iAutli.irdvset:_ofva~ppeal, he got 80% in the entrance ifvpgtheladditicnal marks based on rural weightage 'andcontracfvfimployrnent basis was not awarded to the H have got a seat and now by virtue of awarding such marks to the rules, he is deprived of the seat.
9. Learned Senior Counsels Mr. B. N. Nanjunda _gV___E5'<eddy and Mr. P. S. Rajagopal arguing for appellants /P / , 3?' brought to the notice of the court various rules that were in force earlier to Rules of 2006, the subsequent amevndinents brought in 2006 and also various orders of . especially Annexure--F dated 8.4.2009, and A:ine:»eL'1_re¥'G dated " "
5.4.2010. According to them, when thei'nfotifficationfdatedf 18.01.2005 was brought intofforce sirni.l'ar to ;
dated 29.01.2010, it came to «.i,n:v.jIDr._%l3'rathap's case wherein the learriecl _sing1e that contract doctors were not entitl--ccl_ iforfi Vp:we'ightage for their service service, therefore, to overcorrie..Vs:u.'c:hn court in Dr. Prathap's case 2 3. to be amended and accordingthern, 'reference whatsoever to contract doctorsgpandait-.hasreference only to doctors appointed under weightage category. According to them, the definition of;~"in-service"candidates" with or without the word "regular"
pre.fixe_d 'to,¥service would mean such candidates who were Aappoitnted against substantive post appointed in accordance " the rules of recruitment. Therefore, they contend that 'irrespective of amendment of sub--rule{2) of Rule 3, service i}, 38 means as stated above. They further contend that the amendment brought to sub--ru1e[2] in the year 20O7Viia_s no effect whatsoever. Hence, according to them private respondents are eligible to take entrance are not eligible for grant of additional marks of 'pertyear excess of 5 years of service with refe'rence totheir ser=aice._ either on contract basis or ori-.._rt:ra1 vveightage: basis': They V' also brought to our notice Sec-tionp_'*2"[g}_ the dtdefinition of 'in- service' candidate and'4";'i_ile " i'»V:5wh'ich'A.V:refers to selection process.
10. 1:-It that the list prepared by the totally in violation of the law laid down' the Co1'ir't.aj.1d even contrary to the amended subw}rLile{2) oft.' 3 as sub~«ru1e[2) of Rule 3 does not .Ai:I1C1l1d(_3t.'AI;E:'¢1fldid'Elt€S appointed on contract basis. They that the appointment on rural weightage being qnasl'ied by the Apex court, any concession shown for theservice rendered by such doctors appointed on rural fiveightage basis also cannot be taken into consideration. 39
11.'l'hey also brought to the notice of the ._ court Annexure~»F dated 8.4.2009 which was the subject of another writ petition in W.P.Nos.9397~9399/the learned single Judge wherein this court by"'a--«i:harmonio2.1s"'V reading of Rule 61 [l}[a) of K.c.s.:a aipng vtfithriapplenciigg sub-rule2[3) of 2006 Rulesvhas indicated thatC_:b.oth rules and Rule 61[1)[a) operatefi'ii:'yVt'ne_Vsame lilherefore, they have to be read aecordingffto them, the learned single _Judge,... approved the order/ 3 slabs based on the by the candidates.
Therefifolreg vGo\/ernment Order dated 8.4.20tj9VVV_ "and the present Government Ordjerdatedul similar to the one dt. 8.4.2009 at l An'nexti"1*e--G._aIsofhas to be strictly complied with by the respondent'authorities while preparing the list of the eligible ca~:3_dida;tesl'.:'..-- It was also contended before us by the senior counsels' that affidavit of one Mr.HeInanth, Under Secretary tr)_'_('ffove1'r1ment, Department of Health and Family Welfare, is M "nothing but a false statement. Even the 11 candidates out of an 40 86 candidates from the Department of Health and Family Welfare who are supposed to get the benefit of the impugned order dated 29.1.2010 cannot have the benefit of tl'ie"'»said order as the records before the court would reveai----there break in their service. According to them,__the fag Form no.1 8: 2 furnished by the reference to these 11 doctorspsindicatepthat there b'real§f'in';gp service. With these arguments»._placingV"reliarice on several citations, they sought? fopr s_etting--~ aside the orders of the learned single Judge by a1l'oiNi'f1'g'l'the V12." 'AsT;pagaii:1st this, thelearned senior counsel Prof. Ravivarrna_ K:.1Ina.rg Co.rnr.nenced his argument with the statementdthrat the_re'.can.not be any distinction between the = d_octor's'a.n.d.«'the private respondent doctors as they Officers rendering service to different rcornrnunitieslyrat different levels. In other words, according to h1'ni,..vvhetlier they work as doctors on contract basis or appointed on the basis of rural weightage or regularly appointed, there is no change in the nature of the service or if "duties rendered by them. Therefore, there should not be any 41 distinction so far as petitioners / appellants doctors and the private respondent doctors. According to him,,v~.by»_l't,he amendment dated 10.1.2007, deietion of under sub~rule (2) of rule 3 indicating i;'1c1us:ionll"ofv"rural" weightage is only an illustration; th_er::§ore._.._l'thle' provision of sub~ruie[2] of Rule'3_g is elXhaucsvti'v,e.v..,}jience, * includes all kinds of in--sewice. of the nature of their initial..._appoint;_nent.,'g»nil:-ether on contract basis or on Illral wei§}i*tas\cAg flregular basis. Therefore, exclude contract service, leaihed senior counsel. It was further appeals are not maintainable on thellgroundl as appeliants and private respondent doctors' as-members of the association demanded avlrardiing "weightagelllmarks for service to the contract ~.ye1=1l_}, flience, in the absence of any challenge to the' Ajof the Tribunal, the corrigendum dated 10.1.fZ{)_(57, is valid and the same was implemented for thelracademic year 2010--11. According to him, there is no break in--service at any point of time and the documents ii 42 issued by the concerned authorities appointing 11 candidates by virtue of absorption rules wouldyvtiridyicate though there was a termination order on they were not relieved and theymvvere "
absorption rules. Therefore, it is not open to._thle"'appellarit_s even to contend that the 11 olutof 86-,cfin.ciida;tésj vhag ctlirevzstlnv in--service. According to having not challenged the 2006 in-service, they cannot now challenge... on Gopal 'i'heerthan's'_gc{asle:.1"--l. l""Aclcording to him, no advantage is to' thelllitespondeliiitlldoctors better than the advantage glivtn tol3the'.appellant doctors. Award of 4 marks for each year or "excess of 5 years of service is applicable llltoipappella-nts. as Well as private respondent dQ"Q.tors.;'i'A 'Fh.ereforev,ll"itlis nothing but treating equals equally no relevance. He further contends that serving_ lthelDepartment itself would be a qualification and nothingfiiiore is required. Hence, he seeks for conjoint l"'ll_AA1*e_ad:ing of rule 2{g), sub-rule(2) of rule 3 and Government 43 Order dated 10.1.2007 along with rule 61(1)(a} and appendix II A of K.C.S.R.
13. According to him, subsequent to Ranganathlsl pertaining to Government Order dated 'doubt another Government Order dated the Word "regular" appearingl i1a._:t'ne datedlll 5.4.2010 is removed by'. another."p_Eovernmeni~..Order dated 15.5.2010. Hence. the dated 5.4.2010 has to be reafi "t}ovei*n1nent Order dated 15.5.2o10.; ' ?l4._ _ll'l1e._'vleiai'*ned.LGovernment Advocate supports the argurnent of thelliearnedldsenior counsel Prof. Ravivarma Kuinar _ and-. places V' reliance on the following citations " detaiieidfi hereinafter:
it of AIR 1997 SIEPREME COURT 1467:
__ seen that Section 3 of the Amendment 5 of 1991 seeks to vaiidate the iilegal it declarations made simultaneously with the publication of the Section 4 notification and in some cases even prior to the publication of Section 4 notification; it also seeks to validate 45 the judgment of the High Court. It has amended the definition of 'house' by substitution of a Section 21'? for the old section and provided that the new definition shall"
retrospective effect notwithstanding' contained in any judgment..yA_decreei any Court or other authority.ff'».In"other has removed the basisffofpjlthe decisions ffrendéered by the High Court so would not have given: 1. ig_ni''*-..the laitered circumstances. to the facts in this.case;"" if if 0 if if
15. th.§:..__1iea.rned:._senior counsel Mr. P. S. Rajagopali'conjten:ded that'-after"'dii*sposal of the Writ petitions and the appeals Government Order dated in by removing the word "regular" inft}overnment""(3.rder dated 5.4.2010 which is only to 'ov'crcome~. the impediment in pursuance of Government Order at iii-*.;iji:nfe§:ure--G dated 5.4.2010. pp "With these arguments in our mind, we proceed to consicier these appeals. First and foremost consideration A/Rzvould be with reference to maintainability of appeals. 46 Merely because appellants and private respondents doctors being members of the Medical Association participating in the meeting, etc. would not come in the way_.'of:"««them questioning any rules or Government Order if' ~ be contrary to law, rules and legal... prece_dent';:'_': Therefo1*e, it "
learned single Judge was justified duestion"i'iioi' acquiescence will not arise. "U'11der KCSR Ruleslfiav..provision--.V' is made for deputation or leave to a Government servant lord:"pro-sec_utio"np'Vof"higher studies or specialised training contained in Rule 5 refers to selection higher studies or training in specialised strictly on the basis of seniority except for reasons to be recorded in writing. So far as these provisions are concerned, there is uniform applied to any Government servant who could seiit on deputation or could be granted with study leave. does not restrict its application to any particular '--..Vcategory of Government employees. So far as Karnataka __Conduct of Entrance Test for Admission to Post Graduate 47 Medical and Dental Degree and Diploma Courses Rules, 2003, they are special rules providing the procedure for conduct of entrance test and admission to post Graduate Courses. By virtue of powers under section iéI§_lE"i.ll{i}l_' _ Karnataka Education Act, 1983, r/vvusectioni " = Educational institutions [Prohibition of~CA.apliiati-on- Fee:-i]___Act,l 1984, the said Rules prescribeptheVlprocedui.-editor:"entriance_id'E. test and admission to PG Mastelrsylantd were drafted in the year 2003. Rule----.Ii':p'{g) defines'~--ii'i{As'eryice candidates as under: 'V " Inlfiuservice ?:_andidate"ll"means persons Family Welfare l'5er{/ices, _ it lp ' Medical Education Serwlces, 'State Insurance (Medical) '€':e.rvi,ces.,_lViahai'r.a§ara Palike Services. Boards and Corporations Services and autonomous .._institutions registered under the Societies Registration Act, 1960 iiacliiding the persons deputed from such " services to any other foreign services."
it 17. Under sub--rule (2) of rule 3 of 2003 Rules, eligibility to take entrance test was prescribed. Rule 10 X. 48 provided procedure for selection of in-seIvice candidates for admission to Post Graduate Medical and Dental 'Coursesl.i~.o_In the year 2003, the Apex Court in the case of _ AND OTHERS vs. GOPAL D. T1arHAN1---~. reported in (2003) 7 SCC 83 candidates shouid pass a Post C';radula.telEntr:t1nce 3. relevant portion of the Judgmentis at paras: &}36 reads as under: 3 3 "21.,_ To wit.hs:t_ar1d t.estlof_reasonable classification Article 14 of 'ivell_ settled that the the twin tests: (1) it on an intelligible differentia llivvhich «persons or things piaced la.ogroup-._frorn'those left out or placed not in it the and (ii) the differentia must have a E'lra.tiorial relation with the object sought to be
-- It is permissible to use territories or V the'j_n:ature of the objects or occupations or the the basis for classification. So long as 3 there is a nexus between the basis of classification and the object sought to be achieved, the classification is valid. We have, in the earlier part of the judgment, noted the 49 relevant statistics as made available to us by,.___ the learned AdVocate-General under '- i ~. instructions from Dr. Ashok Shanna, A' (Medical Services), Madhya Pradesh, preseriti in the Court. The rural health.services'v"[it..ijL .
an appropriate expression) it strengthened. 229 cornmunityhealthggcentreés " . [CHCSJ and 169 firs't~__referralV" units postgraduates. There wro'ngV_in_the State Governniient "apart _ a definite percentage of educati'onai post- graduation _1ev:el' H of «degree and dip1.on§;a . gzjficlusjvcélyll in--service candidates. 'To lofvlthe seats so set V'l'apa1't,};here?iiVs a"separate"and exclusive source Xof '--entr3? admission. It is not reservation..V'In§s--e_rvice candidates, and the candid..atesv'*no't the service of the State EjC;oV"ernIne11t......are two classes based on an _Vvi11telligihle differentia. There is a laudable it '~piurpoAse.--"'sought to be achieved. In--service candiciates, on attaining higher academic ' . Vllachvievements, would be available to be posted in rural areas by the State Government. It is not that an in--service candidate would leave the service merely on account of having secured a post graduate degree or diploma 50 though secured by virtue of being in the_, service of the State Government. If there'.i.si»-__h._ any misapprehension, the same is allaye~d..by.'__'_ the State Government obtaining a bondfifrcamill such candidate as a condition precedent. to their taking admission that aifteri at PG degree/diploma course woul:d"_i_ste~rv'e " S' the State Government'--.foi'._another'fivevive-ars:' Additionally, a bank gu_a_rantee_Vof rtipees three lakhs is requiredfto be along vvith the bond. Thereis-gt clearlyfaijerceptible reasonab:le.. _ne>;:_1is' . the reclassification and 'tl§:.e c?oj:ect~.s'ou to. V eved. 36," dddd '°"x7'..T¢:;':i:,suri1:?Itip o'ur'-coiiclusions as under:
V V V' the.__.S--tate of Madhya Pradesh allocation. oi'A'2(}%*--._seats in postgraducation in the'u'univ"ersities of Madhya Pradesh for in» ,_service c'and.i.d«ates is not a reservation; it is a separate and exclusive channel of entry or it admission. the validity whereof be determined on the constitutional vlllpirinciples applicable to communal Vvllreservations. Such two channels of entry or two sources of admission is a valid provision. There can be only one common entrance test for determining eligibility for 51 postgraduation for inwservice candidates and those not in service. The requirement of minimum qualifying marks cannot be lowereddl i- "
or relaxed contrary to the Medical Councils ll India Regulations framed in__t.his_beh_alf.' " " . ' In the State of=__v there are five universitiesW.i.'e., thercylare " ' universities more than"~~._yone." 'R.egu1atio'r'r 9[2)(iii} cannot be mademuisep owf_in the State? of Madhya Pradesii ~ isingly or it in combination with 5V[i}_.-.:_fl:or.ljdetermining the eligibility F'GJCourse.
: ;ffig.§._ is p assign a reason*a_b;_e Vifeightage services rendered in 'rural/fiiribaiii areasby the 'in--service candidates 7,for the 'p{ii=pos,e4Vl'of"deterinining inter se merit within the t:'1a.~::s."of in--service candidates who
-- ., have qVualii'ied"'-inwthe pre--PG test by securing minifnur.r.i*quaiiiying marks as prescribed ..by 'the.Medica1 Council of India. Women candidates constitute a themselves and the provision of .. relaxed or reduced eligibility criteria by "reference to continuous service rendered in rural areas for the purpose of sponsorship by the State Government in specified disciplines which have utility for serving wornenfolk in 52 villages does not suffer from the vice of invidious discrimination."
2
$1 lengthy discussion and consideration of3V_:'.inte.ljiigibl.c" _ differentia between the in--servicem candi'cia't*es:'Vv ba'ndQth__e candidates not in service was brou'ght;_ou.t3 inathe Vabovec.__\said judgment. Allocation of seats for ifl-"SE_fI1V'I'iC€ can:i;iriatesV§was_ not a reservation but it is a u channel of entry. Weightage wazsiyalso far as services rendered by in--s_ervice in"vrtiral----l'Varea as against other
18. continued and on weightage marks for the doctors' V was introduced by the Government} challenged in ILR 2005 KAR 2682- in ' tha, of..yDR.T.'15RA'THAP AND OTHERS vs. STATE OF rrs PRINCIPAL SECRETARY AND OTHERS. In the question that arose was 'Whether the contract Doctors are the persons belonging to the Health and Family Welfare Services. If they were not 'in--se1'vice candidates', whether they were entitled to any service weightage for their service on contract basis? This was with reference to a Notification dated 18.1.2005 similar to the 53 present Notification dated 29.1.2010. His Lordship after referring to definition of 'in-service candidates' definedgat Rule 2{g) of the Rules with reference to c1aujse+3'.V'_~o.f _ Government Order dated 18.1.2005 held to be eligible for admission to postgraduateslgdegreeg courses either in Medicine,or_ Dentistry being. V"in--se:}rviLe candidate' he should belonguR"to_V'l'the and Family Welfare Services and ot1'ier:.re'quiremgents asudefined in Rule 2{g) of the Rules," 'in--service candidate' wo_uld"p;;rnean:,_ it=iis"xheldV.th'at._i.n order to become a member of service 'satisvfyltwo conditions viz.. the appoirltmentflv"m.ast"abe~_:in..__ substantive capacity and the appointmentiito to be according to the Rules. Hence'; even 'if, doctors appointed on contract basis lor__a long time they did not become the members of«~lin¢lserfv--icVe iiniess they were appointed according to Rules. Th'erefQ_i'e,-ellilt Awas held that the contract doctors did not V' become..-- "members of in~--service during their contractual it of service as their appointments could be terminable V. any time. Therefore, it was held that the Government 54 Order dated 18.1.2005 granting weightage to the doctors for their contractual period of service contrary to the _4R,a'1es'..as they were not members in--service during that.3V_'p'eriod----. . illegal. In the year 2006 similar rules came"i'ato.e5ti:stence: '* After the' judgment in Pratap's Zeasegtayyrvulleshl cameftg "bet amended by virtue of the amendment 'datede.'l'05 deleting the word "regular". amendment would read as under: ' I " In--service didate iwlic ---- eompleted three of 0 concerned depa1jtrn'ent5It.é».. Candidates appointed under and successfully ip1'ohationary"pVeriod as on the last date.' of l1'eeeip't.lpoivapplieations for the Entrance testshallvvapply'.thro_i.3gh the proper channel only 'through "concerned Head of the Department i.e. ..:°Dii1'ec'tor of ll/Aiedioal Education/ Director of Health A it " _an.Vd'fam:ily_Welfare Servioes/ Director, ESI/ Heads ' Autononlous Institutions/ Heads of Boards and' Corporation, as the case may be." is 192. It is also pertinent to note that by virtue of the C.rd'er"dated 10.1.2007 those candidates who were appointed 0 under rural weightage category are included. Whether the .,-t~ ;
)/ 55 expression 'including candidates appointed under rural weightage category' would include doctors appo4i.nted'l~.tQn contract basis as well? So far as regular _ contemplated under 2003 Rules. the sameis '» replacing it with 3 years of serviceaasI-alreaédyzstatedValgoafiei By issue of corrigendum dated 1.20.07, ; is deleted. It is not in disputellléthlat subseqtient togissuance of corrigendum dated;..4_Tl0.1.5209932; "..th.Ve'y«.Vf0l1owed the law declared in Dr. Prathapfsv:l'case__Vvdth'oiit"granting additional marks by adding";:ervic:L2gweightageyii}ith...reference to contract service.
:30. "Asia Vi.5gy1r1¢%$iy --l(j2i'i+s'cus_sed: on 29.1.2010 impugned Governnient %Or»derlA:.l;sirni1a'r<to that of 18.1.2005 providing weightage of inarlés Afordcontract/rural weightage services tio%bei-- issued." "" The stand of the Government and the is to the effect that by virtue of removal of the Word?-.V."regu1ar" as per corrigendum dated 10.1.2007 the contract service has to be reasoned. The Government lfllfdeir dated 29.1.2010 is neither contrary to law declared in Prathap's case nor the rules of 2006. At this stage, it is 56 pertinent to mention what exactly service would mean in- service jurisprudence when we are dealing with the4.tighl_ts_0f the in-service candidates. The very purpose of__ _ 2006 is to provide and regulate conduct of _e~ntra:nce'~:test selection and admission to Post_--_Grad.ufjatec, { Dental Degree and Diploma yCo.ursesl."._vWith in» service candidates the definitionD'ispv'atu2(gl 'su'o:frule(2} of rule 3 explains how en'tra'nce conducted. Rule 4 speaks of eligibility,_V_R:'ule 'n'»toi._'Constitution of Entrance Test" to Reservation of Seats, Rule"?! Seats, Rule 8 empowers Rule 9 is with reference to verification furnished by candidates in application ofV_:categoriesf:Rule 10 refers to Procedure for lll"-,Seloct'ion. of A. in--serviceV candidates for admission to Post- and Dental Courses and Rule 11 refers to Distjributi llotjilseats.
2l.}_ As per Rule 11, any seat reserved for in--service V~:Df"eanDd~i.dates if remains unfilled for want of eligible candidates, they shall be added to the non in--service quota seats. 58 as per the Recruitment Rules provided for such __ post. Therefore, it does not take into its ambit all kind of Hence. though the word 'regular' is removed . (2) of Rule 3, the meaning of servicegwith.'refcrence»:to in; service candidates would remain the "far" the amendment brought in by the corrigetndump dated; ; to the 2006 Rules, deleting the fregularliand ligncluding in its fold the candijdzates "the rural weightage category', it thatdby making this amendment, :includ--e'iservice of all those candidates "eappvoilnted under the rural candidates. It is pertinent 'to the very appointment of candidates rurallsweightage was ultimately held as byi:the_ApeHxdCourt. But, their services were later on basis followed by their absorption as per the Rules.
R .23..,SoV far as the present appeals are concerned, none 'the appellants have questioned this corrigendum dated 2 wherein weightage of marks to service by the \' 59 candidates who were appointed on rural weightage basis is to be taken into consideration. Therefore, we have to 'd_esi_st from expressing any opinion regarding _ otherwise of inclusion of service of such candidates who'wer_e initially appointed on the basis of ru_vral;_iveigl'iiagel_"~. it
24. So far as these'll_c-ategolry. 'of candidates..3 areal' concerned, as per the GoverI1n1_e_n't_ services of the candidates whVo'--«.._.w'ere'l.l:pappointed:'"o_n rural weigtage quota who were later on contract is permissible only if there--,is::.n;oV b£eai{"i§} their service. At any stretch of imaginatio~n, the'c[ontention"'of the learned Senior Counsel for the private_ and the learned Government _ Advai:cate~ to the"i-e1:'fect_that the inclusion of rural weightage .As:ei*vice_biIi,ruVle~--2(3) would extend to each and every nature of lllseluhrvicevvotlier the regular service including the contract service cannot be accepted.
25. So far as the benefit being extended to those candidates who have rural weightage service, apparently the 60 G.O. of the Government itself refers to continuos service without any break in their service in betweeni~-.y'_their termination and their absorption into sewice.§V_W'V136"--.h3¢iT¢" _ aiready referred to the contentions raised"by:.::the'~.:13arties2 before us, so far as the documents antiA.theiiyafiid--avit' the' Under Secretary by name Mr.-Hemaiith. affidavit of Mr. Hemanth, candid'atesh'outVf§of 86 in- service candidates, _ of break in service'. This is the made in the affidavit. y -- ------compared with the docu merits. / authorities referred to in note that so far as these 1 1 candidates, terminated by order dated 2O.1A2.V2O03<ff' i_i\cco'rdingd"to the respondents, irrespective of th"e---date: of order ofterniination, termination of their service effect when they were relieved from duty. case of STATE OF' PUNJAB 81 ANOTHER --vs-- BALB'IR_A'SINGH 8: OTHERS [1976(3) SCC 242], the date on the order was despatched is relevant and not the if actual date of receipt of the said communication. in the said 61 case, the question that arose was which would be the date of termination or reversion of an employee when the employment was terminated and order of terIninati.onyy_vatas communicated. Their Lordships held that it _ actual receipt of termination or reversion-"order but-AtZo__e4 termination or reversion would be thee-odlateayonl lwhic'h__ the communication of the impiigned order waslsentv out or _ despatched. They further held tvhenloncielsuch order is sent out or (l€SpatCh€Cl;'_.'"iit. bevylfithin the Control of the authority who rfherefore, the date of despat,chl'jics:.rele%rant"and' no't.'the~iother dates. If we apply the saiddlaw by Apex Court, the date of despatch of would be relevant date and not the date twelre «relieved or the date of receipt of ."'--Acorl1'1:rIiuln'i.ca'ti.on. even' otheI'w1'se, from the records, we note _thatl 4of._rle.lieving the doctors either on 30*" or earlier datteylone days later only they were re--appointed. For V'-.,eXarnp'1e_dwith reference to the case of Vasantha Lakshmi, Prasad and Naveen Chandra though they were admittedly relieved on 30.12.2003, they were re--appointed 62 on 11.1.2004 or subsequently. Nothing is said about 31.12.2003. Therefore, there is intervention of4.oVne,:"d_ay between the two orders. Definitely, this is a _ In this View of the matter, it wasnnot op_e11~to::~.the:Under». Secretary to swear to the 1 candidates there was no break in seririce". In tliefight of this" ; discussion, the particulars _t:he_u doctors require to be verified; "aboVeHdiscussion, it would only mean that_in:'_the."V_$ibsen'ce'AA'fof!..ehallenge to the amended 10.1.2007, the of service rendered by the same was But, based on the factual situation the fatcof candidates has to be decided as .....
next aspect is that with reference to appellants urge that after preparing merit list ofvtlfiie candidates eligible for consideration of the Post G_raé}.uate, Masters and Diploma courses, the slab contemplated under G.O. dated 5.4.2010 at Annexure G has 65 completed 3 years of service. By adopting this priority basis, the State Government wanted to consider the cases,of-those candidates who have completed more service than'ti1e--- _ candidates. Therefore, it created a slab at_E3----years,'»{i years and 3 years interval.
27. In the present case i4tni1,exure G dated is" l worded similar to that dated--:§8.4:.2009. In the absence of any of the learned Single Judge, the opinion expressed reference to GO.
of 2OQ9...h_ayifig hold the field. On perusal' oflthe at Annexure G dated 5.4.2o1o"mth,Vre'i'eyé1§.¢e: Rule 61- 1 (a) r/w Appendix II'Pi.;':. a1soafindvv_thaV'; they are not inconsistent to Rules of » other hand, their intention seems to extend H o*i£'"in--service quota as far as possible to all in- serlVice"--Vcarididates to the maximum extent and the minimum " "serVice"'stipulated is 3 years. Therefore, it appeals to us that l7.the"said prescription of slab by dividing into 3 categories on "the basis of years of service is just and proper. In order to 66 overcome this Judgment of the learned single Judge, there seems to be another notification dated 15.5.2O1_Q.V:ii~ssiued subsequent to the Judgment of the learned under the impugned order that "too after» counseling was over, by removing;-A-the 5vord'*- "iihiayarni (regular) and giving retrospective effectto it fronzjdian. ; Therefore, in view of our opinion'w«with regard: effect of removal of the word of rule 3, the present G.Og._ have the effect of including "or-~l:of rural weightage doctors who.V.ha.d;»'brea1{ ini'their'service. V2.8.' ins issuing this notification. the understanding of theA._pro:_cedure prescribed for selection and ailoeatioii of l"seais____based on 3 siabs i.e. first by giving » vpreferenee*.to"-the 5 years of experience and after exhausting 'thhe-..sam'el;'_"if seats are remaining to the candidates with four years geicplenence followed by the last one,- where 3 years of 2 V, "miperience is the consideration. Therefore, by removal of the 'regular' by (3.0. dated 15.5.10, one cannot understand it "the G.O. at Annexure G dated 5.4.2010 as to authorise the 67 authorities to dispense with the slab system pointed out above and to club all 3 categories together and p.rep.are_ a common merit list after assigning the ranks to _ candidates. If strict adherence of is not followed, it would be in Appendix II--A of the KCSR Rules. Alconjoint ; 61(1) (21) of KCSR Rules r/w élppiemiax lllI'--'.i¥.,ll:sv1':;1b~l~:1j11le (2) of Rule 3 of 2006 rules G.C). 5.4.2010 there is no conflict bett2szeVe:n».a1nzl and the G0.
The conjoint an inescapable conclusion. different slabs has to be followed for lfailocatlon ofseats asfindicated above.
29.l".':3_ollfarllas tlinrd set of writ appeal. the appellant not allottedvaseat. If the above procedure is followed, . f;'r1.,;3re __ be reshuffling of the placement of the H ._a'n.dll.if by virtue of reshuffling of the places of the calndidatesllin the dental category, if he is entitled for a seat "ir1s_1;'11eVlrlner'it list to be prepared, he will stand to benefit. In of the above discussion, the appeals deserve to be if " "allowed in part.
iii)
iv) service rendered by the candidates, who were initially appointed on rural vveightage basis and absorbed later on, if there is no break in their S€I"V"lCC§ The respondent Nos. 1 to 4 shall _ the observations made in this ord_er'exar_n~ine the _ l documents pertaining' '"to* « the; 1.1' 'candidates [rural weightage candid.ate{s]i to fin._d"out there is break inise-ryice or_ni:t. They shall strictlyliadhere farocedure contemplated-i. ur.;der: dated 5.4.2010 Annexure-F; A éallocatliori'teflseats based on senioriw 'and'.rneriti"t_her_e'has to be strict adherence of 4' at Annexure--G on priority tl"ba'sis.V Fi'rst"°lpreference shall be to those candidates who have completed 5 years of .4 service and if any seats are left over, the " iiafididates coming in the second slab of 4 years service shall be considered and thereafter, 'V 'the remaining un--allotted seats, if any, shall go the third category of candidates having 3 years of service. We direct the Rajiv Gandhi University for Medical & Health Sciences to ensure that there shall be smooth re-adjustment or re~