Karnataka High Court
Subhash Bheemappa Chendaki vs The State Of Karnataka on 21 April, 2022
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.105107 OF 2021 (S-RES)
BETWEEN:
SUBHASH BHEEMAPPA CHENDAKI,
AGE: 40 YEARS,
OCC.: CHIEF RADIOTHERAPY TECHNOLOGIST,
VIJAYANAGAR INSTITUTE OF MEDICAL SCIENCES,
BALLARI, TQ. AND DIST. BALLARI-583104.
...PETITIONER
(BY SRI. F.V.PATIL AND SRI. NANDISH PATIL, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF MEDICAL EDUCATION
REP. BY ITS PRINCIPAL SECRETARY,
NO.3, M.S.BUILDING, AMBEDKAR VEEDHI,
BENGALURU-560001.
2. THE DIRECTOR
DIRECTORATE OF MEDICAL EDUCATION,
ANANDARAO CIRCLE,
BENGALURU-560001.
3. THE DIRECTOR,
VIJAYANAGAR INSTITUTE OF MEDICAL SCIENCES,
BALLARI, TQ. AND DIST. BALLARI-583104.
4. THE DIRECTOR,
KARNATAKA INSTITUTE OF MEDICAL SCIENCES,
HUBBALLI-580021,
TQ. HUBBALLI, DIST. DHARWAD.
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...RESPONDENTS
(BY SRI. V.S.KULKARNI, AGA FOR RESPONDENT NOs.1 AND 2;
SRI. J.M.ANILKUMAR, ADVOCATE FOR RESPONDENT NO.3,
SRI. GOPAL PATIL, ADVOCATE FOR RESPONDENT NO.4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 20.09.2021 BEARING NO.MED 417 MPS
2021 ISSUED BY RESPONDENT NO.1 VIDE ANNEXURE-E AND
ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 25.01.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner has sought for the issuance of a writ in the nature of certiorari to quash the order dated 20.09.2021 passed by respondent No.1 (Annexure-E) and the intimation dated 01.10.2021 issued by respondent No.3 (Annexure-F) and also for a writ in the nature of mandamus to the respondent No.3 to permit the petitioner to work as Chief Radiotherapy Technologist and to pay the salary from 16.09.2021.
2. Briefly stated the facts as asserted in the writ petition are that, the petitioner was appointed as a Radiotherapy Technician at the respondent No.4 on 3 03.09.2005. The petitioner was thereafter transferred to the vacant post of Radiotherapy Technician at respondent No.3. The petitioner claimed that he possessed the requisite qualification for upgradation and re-designation of Radiotherapy Technologist to Chief Radiotherapy Technologist as per the norms of the Atomic Energy Regulatory Board. Accordingly, the post held by the petitioner was upgraded in terms of an order dated 28.10.2017 and the petitioner was permitted to work as Chief Radiotherapy Technologist. He claimed that he continued to work as Chief Radiotherapy Technologist from 28.10.2017 to 04.10.2021. The petitioner claimed that some discriminatory elements wrote anonymous letters to Higher Officers accusing the petitioner of collecting money from the patients. This was followed by an enquiry and a report was submitted that the accusations were false. The petitioner alleged that respondent No.3 instead of closing the proceedings appraised the respondent No.1 for taking further action. On the basis of a letter addressed by respondent No.3, a letter was addressed to respondent No.3 that if the petitioner had completed three years 4 service at respondent No.3, he should be sent back to the parent Department. Following the said direction, the respondent No.3 relieved the petitioner on 04.10.2021 and directed the petitioner to report to a lower post of Radiotherapy Technician at respondent No.4. The petitioner obediently reported at respondent No.4. However, respondent No.4 refused to accept the services of the petitioner on the ground that the post of Chief Radiotherapy Technologist was not sanctioned by the Government at respondent No.4. Therefore, the petitioner was not permitted to report to duty. In view of this development on 21.10.2021, the petitioner went back to respondent No.3 and reported to duty. The respondent No.3 instead of accepting the services of the petitioner, informed him that he had sought appropriate direction from respondent No.1 and that steps would be taken after getting information from respondent No.1. Therefore, the petitioner has challenged the direction issued by respondent No.1 to the respondent No.3 dated 20.09.2021 and the consequent relieving of the petitioner and repatriating him back to the respondent No.4. 5
3. The respondent No.3 opposed the writ petition and contended that the petitioner had approached the Court with soiled hands and had made several false and incorrect statements in the writ petition. It claimed that it was an institution established by the Government of Karnataka and had its own bye-laws. Regulation 16 of the Regulations dealt with deputation of employees and it identified the number of sanctioned posts of Teaching and Non-Teaching staff. It claimed that in its institution the Department of Oncology was not established and it was later established in the year 2006. Two posts of Radio Therapists were sanctioned and another post was added later on. There was no sanctioned posts of Chief Radiotherapy Technologist. It claimed that the petitioner was deputed from respondent No.4 on 25.09.2010 to work at the respondent No.3. The respondent No.1 in terms of an official memorandum dated 30.09.2013 had transferred 23 non-teaching staff to various institutions in the State on the request made by the said employees. The petitioner was one such employee. The order of transfer was 6 conditional and it was made clear that transfers were subject to the approval of the post by the Governing Council of the respective institutions in accordance with the new bye-laws. The bye-laws of respondent No.3 was modified and the new bye-laws was adopted in the year 2013. Bye-law No.12 of the new bye-laws mandated that the approval of the Governing Council for the post was necessary. It claimed that the Atomic Energy Regulatory Board had suggested to respondent No.3 to have adequate number of Radiotherapy Technologists. In view of the above and considering the request of the petitioner the post then held by the petitioner was re-designated on 19.07.2014 as Chief Radiotherapy Technologist since he was the only regular employee working on deputation in the Department of Radiotherapy. The petitioner made continuous requests for upgrading the post and granting additional scales of pay which was accepted and the post of petitioner was re-designated in the pay-scale of Rs.22800-43200 subject to approval by the Departmental Promotion Committee. Respondent No.3 claimed that the approval for such grant was neither granted by 7 Departmental Promotion Committee nor the Governing Council of respondent No.3 as the petitioner was not a permanent employee of respondent No.3. It alleged that in the year 2015 the public and staff had made allegations against the petitioner of demanding and collecting money from patients and also from the staff assuring them to get promotions and favours from the management. An internal enquiry was conducted by a Committee which exonerated the petitioner. However, the complaints by the public continued and some of them even complained to respondent No.1. The respondent No.1, therefore, directed the respondent No.3 in terms of the letter dated 26.04.2021 to take necessary action against the petitioner. Following this, the respondent No.3 issued a notice to the petitioner on 26.06.2021 to show-cause why action should not be initiated against him. In the meanwhile, the respondent No.1 taking note of the conduct of the petitioner and also that his transfer to the respondent No.3 was not in accordance with law and also in view of the fact that his term of deputation had expired, directed the respondent to return the services of the petitioner to the 8 parent institution. Accordingly, the petitioner was repatriated to his parent institution on 01.10.2021. The respondent No.3 claimed that since the petitioner was not its permanent employee, he could not claim any post as a matter of right and therefore, prayed that the writ petition be dismissed.
4. The petitioner filed his re-joinder to the statement of objection contending that the petitioner was transferred to respondent No.3 in compliance with bye-law No.12 of the respondent No.3. He alleged that the order repatriating him on the presumed ground that his services were lent by the respondent No.4 was incorrect. He further stated that since the respondent No.4 failed to accept the services of respondent No.3 after such repatriation, the non-payment of the salary for four months was illegal. He claimed that after this Court granted an interim order, he sought permission to join duty at respondent No.3 as Chief Radiotherapy Technologist. However, he was not permitted to work and he was not paid the salary.
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5. The learned counsel for the petitioner filed his written submissions and contended that the order passed by respondent No.1 directing the services of the petitioner to be repatriated was without any application of mind. He claimed that the services of the petitioner was not governed by the Karnataka Civil Services Rules. He also claimed that the services of the petitioner was not lent to the respondent No.3. He contended that the order passed by respondent No.1 should be sustained on the reasons mentioned therein and the respondent No.3 cannot supplement any reasons by filing its statement of objections. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others [(1978) 1 SCC 405]. He contended that the order dated 25.09.2010 repatriating the services of the petitioner had spent in itself in view of the order of transfer dated 30.09.2013 vide Annexure-R3. He contended that the respondent No.3 had acquiesced that the petitioner was a permanent employee by granting 10 yearly increments maintaining separate register and passing an order upgrading his post to Chief Radiotherapy Technologist. Therefore, he contended that respondent No.3 is estopped from now contending that there was no approval of post by the respondent No.3. In this regard he relied upon the judgment of the Hon'ble Supreme Court in the case of The Nayagarh Co-operative Central Bank Ltd. and Another v. Narayan Rath and Another [(1977) 3 SCC 576].
6. Per contra, the learned counsel for the respondent No.3 submitted that the order dated 25.09.2010 posting the petitioner at the respondent No.3 itself was self-evident that until further orders he was deputed to work at the respondent No.3. He submitted that in terms of the order of transfer dated 30.09.2013, he was transferred to the respondent No.3 by treating him as a regular employee, though he was not. The learned counsel, therefore, submitted that the petitioner had no right to continue in the post at respondent No.3. 11
7. I have considered the submissions made by learned counsel for the parties.
8. It is not in dispute that the substantive appointment of the petitioner was to the post of Radiotherapy Technician at the respondent No.4. It is also not in dispute that the petitioner was initially posted at the respondent No.3 on 25.09.2010, on deputation, which was until further orders. It is evident from Annexure-R3, which is an official memorandum dated 30.09.2013 that certain non-teaching staff working at the Government autonomous institutions within the jurisdiction of the Department of Medical Education submitted representations requesting for transfer. The petitioner, who was then on deputation at the respondent No.3 seems to have requested the respondent No.3 to merge his deputation to fill up one post of Radiotherapy Technician, by transferring him to the respondent No.3. Though the petitioner was then not a permanent employee of respondent No.3, but was on deputation, yet owing to his request that his wife was working at the respondent No.3 as an Assistant Professor 12 of Statistics, the respondent No.3 recommended to transfer the petitioner to the respondent No.3, which was however subject to the approval by the Governing Council of respondent No.4. This transfer was never approved by the Governing Council of respondent No.4. Once at the respondent No.3, the petitioner became ambitious and taking advantage of the communication of the Atomic Energy Regulatory Board that a post of Chief Radiotherapy Technician should be created to provide Chemotherapy treatment to cancer patients, the petitioner pounced upon the opportunity and got his post re-designated as Chief Radiotherapy Technician. Though the petitioner claimed that upon his transfer to the respondent No.3, he was placed below the junior most Radiotherapy Technician as on 30.09.2013. This is untrue, since there was only one post of Radiotherapy Technician, at that point in time. The mistake in transferring the petitioner from the respondent No.4 to respondent No.3 without noticing that he was earlier on deputation, came to the notice of respondent No.1, who thereafter instructed the respondent No.3 to repatriated the services of the petitioner to the respondent 13 No.4. The respondent No.3 has acted in compliance with the direction of respondent No.1 and repatriated the services of the petitioner to the respondent No.4. Once at the respondent No.4, the petitioner seems to have claimed that he was working as Chief Radiotherapy Technician at respondent No.3, and therefore, he has to be accommodated in the same post, notwithstanding the fact that the post of Chief Radiotherapy Technician was not created by respondent no.4. This resulted in faux pas as the petitioner did not desire to work as Radiotherapy Techinician, while the respondent No.4 was not willing to accept the petitioner as Chief Radiotherapy Technician. The record speaks for the fact that the petitioner was over ambitious and used his good offices for conversion of his deputation to one of transfer and thereafter got his post re-designated as Chief Radiotherapy Technician. The respondents were therefore justified in repatriating the services of the petitioner.
9. Even otherwise, the petitioner had deliberately suppressed the fact that he was earlier deputed by the 14 respondent No.4 to the respondent No.3 and he continued as a deputationist from the year 2010 till the year 2013. He has managed to continue at the respondent No.3 from the year 2013 till he was repatriated back to the respondent No.4 in the year 2021. As rightly contended by the learned counsel for the respondent No.3, the petitioner cannot claim continuation in a post.
10. In that view of the matter, the petition lacks merit and is dismissed.
11. Consequently, all pending applications, if any, stand dismissed.
Sd/-
JUDGE hnm