Karnataka High Court
Dr.Devanand S/O. Late B P Obaiah vs Principal Secretary To Government on 11 June, 2014
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JUNE 2014
BEFORE
THE HON'BLE MR. JUSTICE H.BILLAPPA
WRIT PETITION NO.84495/2013 (S-Tr.)
BETWEEN:
Dr.Devanand,
Aged about 50 years,
S/o.late B.P.Obaiah,
Working as Professor and
Head of the Department,
Department of Anesthesia,
Vijayanagara Institute of Medical
Sciences, Bellary-583103
And r/a.Ananda Nilaya,
Veeranna Gowda Colony,
Besides Fire Station,
Bellary-583 103. .. PETITIONER
(By Sri.K.L.Patil, Adv.)
AND:
1. Principal Secretary to Government
Health and Family Welfare Services
(Medical Education), Vidhana Soudha,
Bangalore-560 001.
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2. Vijayanagara Institute of Medical
Sciences, Bellary-583 103,
rep. by its Director.
3. Dr.D.Srinivas,
Professor, Department of Anesthesia,
Vijayanagara Institute of Medical
Sciences, Bellary-583 103.
4. Belgaum Institute of Medical Sciences,
Belgaum, rep. by its Director.
.. RESPONDENTS
(By Smt.K.Vidyavathi, AGA for R1;
Sri.V.R.Datar, Adv. for R2; R3 served; and
Sri.A.S.Gundakal, Adv. for R4)
This writ petition is filed under Article 226 of the
Constitution of India praying to quash (i) order
dt.31.10.2013 (under Annexure-L to the writ petition)
passed by the 1st respondent, (ii) official memorandum
dated 31.10.2013 (under Annexure-M to the writ
petition) issued by the 2nd respondent/Vijayanagara
Institute of Medical Sciences, Bellary and (iii)
corrigendum dated 5.11.2013 (under Annexure-N to the
writ petition) issued by the 1st respondent by issue of a
writ in the nature of certiorari and direct the respondents
to issue writ in the nature of mandamus to continue the
petitioner at 2nd respondent Vijayanagara Institute of
Medical Sciences, Bellary.
This petition coming on for orders this day, the
Court made the following:
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ORDER
In this writ petition under Articles 226 & 227 of the Constitution of India, the petitioner has called in question the order dated 31.10.2013 vide Annexure-'L' and official memorandum dated 31.10.2013 bearing No.VIMS/C(2)/184/13-14 issued by the second respondent vide Annexure'M' and corrigendum dated 5.11.2013 bearing No.AhKuKa 136 RGU 2012 issued by the first respondent vide Annexure-'N'.
2. By the impugned order at Annexure-'L', the petitioner has been transferred to Karnataka Institute of Medical Sciences, Hubli, with immediate effect until further orders. Vide Annexure-'M', the petitioner has been relieved from duties on 31.10.2013. Thereafter, as per Annexure-'N', the order dated 31.10.2013 has been modified transferring the petitioner to Belgaum Institute of Medical Sciences, Belgaum, with immediate effect until :4: further orders. Aggrieved by that, the petitioner has filed this writ petition.
3. Briefly stated the facts are;
The petitioner joined service in the second respondent -Institution as Lecturer on 31.12.1997. From 12.3.2001, he became the Assistant Professor. Thereafter, the petitioner was promoted as Professor on 6.12.2005. Subsequently, the petitioner was appointed as Director of the second respondent -Institution for a period of three years with effect from 23.5.2011. On certain allegations of malpractice in PGET-2011-12, the CID, Karnataka, filed a report to the Government in which certain observations were made against the petitioner. The CID recommended initiation of disciplinary proceedings against the petitioner. The petitioner was sent on deputation for a temporary period to Mandya Institute of Medical Sciences, Mandya, as its :5: Director on the ground that it would hamper the investigation on the criminal side. Thereafter, on 10.1.2013 show-cause notice-cum- charge sheet was issued to the petitioner. The petitioner submitted his reply to the show-cause notice on 22.1.2013. Accepting the reply, the Disciplinary Authority dropped the disciplinary proceedings. The petitioner was exonerated of all the charges by order dated 13.3.2013. Thereafter, the petitioner was sent back to the second respondent - Institution vide order dated 20.3.2013. Thereafter, a communication is sent by the CID to the Government stating that certain proceedings are pending against the petitioner on the criminal side and his continuance as Director of the Institute would jeopardize the investigation by the CID. In continuation of the order dated 20.3.2013 the petitioner was also given additional charge of the Chitradurga Institute of Medical Sciences, Chitradurga. On 22.5.2013 an interim order was passed :6: by this Court in writ petition No.77110/2013 filed by the in-charge Director Mr.Lakshminarayana Reddy staying the order dated 20.3.2013. Thereafter, vide notification dated 18.6.2013 the order dated 20.3.2013 re-posting the petitioner as Director of the Institute was withdrawn by the Government. Consequently, the writ petition was disposed of as having become infructuous. On 17.7.2013, the petitioner was withdrawn from the post of Director of Institute and is posted to work as Professor and Head of the Department of Anesthesia in the Institute. On 31.10.2013, the petitioner has been transferred as Professor of Karnataka Institute of Medical Sciences, Hubli, on the ground that it may hamper the domestic enquiry. On the same day the petitioner has been relieved from his duties. Thereafter, on 5.11.2013 a corrigendum has been issued by the Government re-posting the petitioner from Karnataka Institute of Medical Sciences, Hubli to Belgaum Institute of Medical :7: Sciences, Belgaum as Professor in the Department of Anesthesia. Aggrieved by the orders dated 31.10.2013 and 5.11.2013, the petitioner has filed this writ petition.
4. The State has filed its statement of objections contending that the petitioner was discharging his duty as Director in the second respondent Institute. It was alleged that the petitioner was involved in malpractice in connection with Post Graduate Entrance Test Examination 2011-12. This Court vide its order dated 26.5.2011 in W.P.No.13774/2011 directed to investigate into the alleged malpractice and illegalities in PGET 2011. Thereafter, in compliance with the direction of this Court dated 21.3.2012, the Additional Director General of Police, CID has submitted investigation report to the first respondent. In the said report, the Additional Director General of Police, CID has recommended to initiate disciplinary proceedings against 23 officials while serving :8: in various capacities and being responsible Government officials at VIMS, Bellary. The petitioner's name was found at Sl.No.14. The Additional Director General of Police, CID, has strongly recommended to initiate appropriate disciplinary proceedings against all the concerned officials. On 13.8.2012, the 1st respondent directed the second respondent to initiate departmental enquiry against the concerned staff. However, the second respondent on 1.9.2012 addressed a letter to the first respondent and requested to initiate departmental enquiry against the petitioner from one retired K.A.S. officer called Sri.Lingappa.
5. It is stated, subsequently on 20.3.2013, the first respondent issued notification whereby the petitioner's appointment as Director, Mandya was withdrawn and the petitioner was re-posted to the second respondent Institution as Director. On 8.4.2013, :9: the Additional Director General of Police, CID has written letter to the first respondent and requested the first respondent not to post the petitioner in the second respondent -Institution as CC.No.126/2012 is pending before the Special Court, Bellary.
6. It is stated, the petitioner is working as Professor in the Department of Anesthesia. Since the petitioner was named as one of the accused in the malpractice of PGET examination 2011-12, on 23.10.2013, the first respondent has sent fax message to all the autonomous Medical Colleges to give report in connection with the vacancy of post in Anesthesia Department. All the Government autonomous Medical Colleges have sent their status report stating that there is no vacancy of Professor's post in the Anesthesia Department except Belgaum Institute of Medical Sciences, Belgaum. On 31.10.2013 the first respondent : 10 : has issued notification relieving the petitioner from the Director post of the second respondent Institute and transferring the petitioner to the Karnataka Institute of Medical Sciences, Hubli. Since there is no vacancy in the Department of Anesthesia in the Karnataka Institute of Medical Sciences, Hubli, the Government has issued corrigendum dated 5.11.2013 transferring the petitioner to Belgaum Institute of Medical Sciences, Belgaum. The petitioner suppressing all these facts has approached this Court and obtained the interim order. Therefore, the writ petition may be dismissed.
7. The learned counsel for the petitioner contended that the impugned orders at Annexures-'L', 'M' and 'N' cannot be sustained in law. He also submitted that the transfer has been made on the ground that the continuance of the petitioner in the present post would hamper the disciplinary proceedings. : 11 : Infact, the disciplinary proceedings have been dropped by order dated 13.3.2013 and the petitioner is exonerated of all the charges. After investigation, charge sheet has been filed and the petitioner is shown as a witness. Inviting my attention to Rule 12 of the Vijayanagara Institute of Medical Sciences, Bellary, Rules and Regulations 2013, the learned counsel for the petitioner submitted that the transfer is in violation of Rule 12. The transfer cannot be made without a resolution from the concerned governing council of the two autonomous institutions. In the present case, there is no resolution of the governing council as required under Rule 12. Further he submitted that the transfer has a serious consequence and it can be considered only if there is a resolution of the concerned governing council. In the present case, there is no resolution and therefore, the transfer is bad in law and it is contrary to : 12 : Rule 12. Therefore, the impugned orders cannot be sustained in law.
8. As against this, the learned AGA supported the impugned orders. She submitted that serious allegations of malpractice have been made against the petitioner and therefore, to facilitate smooth enquiry and proper investigation, the petitioner has been transferred. It is only an interim arrangement exercising power under Rule 8 and therefore, the impugned orders do not call for interference.
9. The learned counsel for the second respondent also supported the impugned orders and submitted that the transfer is only to facilitate an enquiry and it is only until further orders. It is not a permanent order. Therefore, Rule 12 is not applicable. Exercising power under Rule 8, the transfer orders have been : 13 : passed and therefore, the impugned orders do not call for interference.
10. I have carefully considered the submissions made by the learned counsel for the parties.
11. The point that arises for my consideration is, Whether the impugned orders call for interference?
12. It is relevant to note, the petitioner has joined service in the year 1997. Presently, he is working as a Professor and Head of the Department. Certain allegations of malpractice were made against the petitioner and others in connection with PGET-2011-12 examination. Therefore, the petitioner was sent on deputation for a temporary period to Mandya Institute of Medical Sciences, Mandya, as its Director to facilitate smooth investigation of criminal case. Thereafter, the disciplinary proceedings have been initiated against the : 14 : petitioner. Thereafter, by order dated 13.3.2013, the disciplinary proceedings initiated against the petitioner have been dropped and the petitioner is exonerated of all the charges. The investigation in criminal case has completed and charge sheet has been filed against Dr.Vinayak Prasanna and others. The petitioner is shown as a witnesses i.e., CW.19. It is clear, there is no disciplinary proceedings pending against the petitioner and no charge sheet is filed against the petitioner. Infact, the petitioner is exonerated of the charges in the disciplinary proceedings and the disciplinary proceedings are dropped. The transfer orders are made mainly on the ground that the continuance of the petitioner in the Institution may hamper disciplinary proceedings and investigation in criminal case. The investigation is completed and charge sheet is filed. In the disciplinary proceedings, the petitioner is exonerated of the charges. : 15 :
13. Rule 12 of the Vijayanagar Institute of Medical Sciences, Bellary Rules and Regulations 2013 reads as follows:
"Transfer of the Teaching/
technical staff:-
Generally, there shall be no transfers of teaching and non-teaching staff recruited or absorbed by the institute from one autonomous institute to another autonomous institute. However, under extra-ordinary circumstances and for the reasons to be recorded in writing, the Government shall have the powers to transfer any teaching or technical staff from one autonomous institute to another autonomous institute. The teaching or technical staff so transferred shall be shown last in the seniority list of that category, to which he has been transferred to, irrespective of his seniority in the parent institute. No such transfer can be considered without a resolution of the : 16 : respective governing council to spare/accept a person."
14. It is clear, it is only under extra-ordinary circumstances and for the reasons to be recorded in writing, the Government can transfer any teaching or technical staff from one autonomous institute to another autonomous institute. The teaching or technical staff so transferred shall be shown as last in the seniority list of that category. The transfer cannot be considered without a resolution of the respective governing council to spare/accept a person.
15. In the present case, there is no resolution of the respective governing council to spare/accept a person. In the absence of that, there can be no transfer. Therefore, the impugned orders are clearly in violation of Rule 12 and cannot be sustained in law.
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Accordingly, the writ petition is allowed and the impugned orders at Annexures-'L', 'M' and 'N' dated 31.10.2013 and 5.11.2013 are hereby quashed. I.A.No.1/2014 does not survive for consideration and accordingly, it is rejected.
Sd/-
JUDGE Bss