Karnataka High Court
Dr Basavaraj vs State Of Karnataka on 17 October, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.25369/2018 (S-RES)
BETWEEN:
DR. BASAVARAJ
S/O A D SHIVALINGAPPA,
AGED ABOUT 44 YEARS,
NO.152, 6TH BLOCK,
5TH CROSS, BSK III STAGE,
III PHASE, BANGALORE-560085.
...PETITIONER
(BY SRI GAURAV G K, ADV.)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY,
DEPARTMENT OF HEALTH AND
FAMILY WELFARE,
(MEDICAL EDUCATION),
AMBEKDAR VEEDHI,
BANGALORE-560001.
2. KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY
DR. M H MARIGOWDA ROAD,
BANGALORE-560029,
REPRESENTED BY ITS DIRECTOR.
3. THE DIRECTOR
KIDWAI CANCER INSTITUTE,
2
DR. M H MARIGOWDA ROAD,
BANGALORE-560029.
4. DR. PRABHA SESHACHAR
W/O A N RAM PRASAD,
AGED ABOUT 52 YEARS,
R/AT NO.410, 7TH CROSS,
10TH MAIN, 1ST BLOCK,
JAYANAGAR,
BENGALURU-560011.
...RESPONDENTS
(BY SRI T P SRINIVAS, PRL.GA FOR R1
SRI ARAVIND V CHAVAN, ADV. FOR R2 & R3
SRI P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SMT. ASHWINI RAJAGOPAL, ADV. FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 26.03.2018 PASSED BY THE R-3 APPOINTING THE R-4
TO THE POST OF SR. SURGEON / PROFESSOR (RESIDENT
MEDICAL OFFICER) VIDE ANNX-A AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY ORDERS
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
The petitioner, a candidate who applied for the post of Senior Surgeon/Professor (Resident Medical Officer) (for short "RMO") in the second respondent-Kidwai Memorial Institute of Oncology is before this Court under Article 226 of the Constitution of India, questioning the correctness and legality of appointment of respondent No.4 in pursuance of 3 Annexure-A notification bearing No.PɹL/¹§âA¢-1/42/2017-18 dated 26.03.2018 and for further direction to respondent Nos.1, 2 and 3 to appoint the petitioner to the post of Senior Surgeon/Professor (RMO).
2. Heard learned counsel Sri.Gaurav G.K. for the petitioner; Sri.T.P.Srinivas, Principal Government Advocate for respondent No.1, learned counsel Sri.Arvind V Chavan for respondent Nos.2 and 3, and learned Senior counsel Sri.P.S.Rajagopal along with Smt.Ashwini Rajagopal, learned counsel for respondent No.4. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that under notification dated 22.02.2018, the second respondent invited applications to fill up one post of Senior Surgeon/ Professor (Resident Medical Officer). The qualification prescribed was a Degree in Medicine of any University established by law in India; should have Post Graduate qualification in any subject in Medical Faculty viz., MS/MD/ 4 Equivalent qualification in clinical/para-clinical subjects; should have experience in the subject of not less than 8 years and preference to candidates with experience in Oncology and academic and Professional attainments and Hospital Administration. The petitioner and respondent No.4 applied for the said post of RMO and respondent No.4 was selected and appointed vide Annexure-A dated 26.03.2018 which is under challenge in this writ petition.
4. Learned counsel for the petitioner would submit that the petitioner possesses qualification of MD in Biochemistry along with MBBS whereas respondent No.4 possesses qualification of MBBS, Diploma in Anesthesiology and Acupuncture. Therefore learned counsel would submit that respondent No.4 would not possess qualification of Post Graduation. Hence, he would not be entitled for appointment. It is submitted that the second respondent committed an error in appointing a person who would not possess prescribed qualification. Learned counsel would 5 submit that the petitioner fulfills the requisite qualification and he is most meritorious applicant to be appointed as RMO in preference to respondent No.4. Learned counsel would further contend that appointment of 4th respondent is not only in violation of qualification prescribed under Cadre and Recruitment Rules of second respondent-Institute, but who would not even meet the eligibility criteria. Thus, he prays for allowing the writ petition.
5. Learned counsel Sri.Aravind V.Chavan appearing for respondent Nos.2 and 3 would justify the appointment of 4th respondent. Learned counsel would submit that 4th respondent would possess requisite qualification as prescribed under the notification inviting applications as well as Cadre and Recruitment Rules. Moreover, he submits that the petitioner has no locus standi to challenge the appointment of 4th respondent, since he does not possess the qualification prescribed under the notification as well as Cadre and Recruitment Rules. He submits that Post 6 Graduation required is in clinical and para-clinical subjects whereas the petitioner possesses Post Graduation in Biochemistry which is a pre-clinical subject. Placing reliance on the Regulations on Graduate Medical Education, 1997 ("1997 Regulations" for short), learned counsel for respondent Nos.2 and 3 would submit that respondent No.4 possess additional qualification of Diploma in Hospital Management and she is an assessor for National Accreditation Board for Hospitals and Healthcare Providers. Thus, he prays for dismissal of the writ petition.
6. Learned Senior Counsel Sri.P.S.Rajagopal appearing for respondent No.4 submits that the petitioner who does not possess requisite qualification has no locus standi to challenge the appointment of respondent No.4. Learned Senior counsel would submit that 4th respondent possesses qualification prescribed by the second respondent-Institution in terms of recruitment notification as well as in terms of Cadre and Recruitment Rules. Learned Senior counsel also 7 submits that the qualification of MD in Biochemistry is pre- clinical subject and it is not a clinical/para-clinical subject, in terms of 1997 Regulations. Further, learned Senior counsel also submits that the eligibility criteria also requires experience in the subject for not less than 8 years, which the petitioner does not possess. Learned Senior counsel would submit that the petitioner acquired MD in Biochemistry in the year 2017 and as on the last date for submitting the application, the petitioner had no qualification of 8 years experience from the date of acquiring Post Graduation MD in Biochemistry.
7. Replying, learned counsel for the petitioner would submit that the 8 years experience is counted by the second respondent-Institute from the date of acquiring MBBS and not from the date of acquiring Post Graduation. Learned counsel for respondent No.2-Institute also would submit that experience is considered from the date of acquiring MBBS 8 degree and not from the date of acquiring Post Graduation for assessment.
8. After hearing the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to whether the petitioner possesses qualification in terms of the notification dated 22.02.2018 (Annexure-B) for the post of RMO?
9. Answer to the above point would in the negative for the following reasons:
Under notification dated 22.02.2018, the second respondent-Institute invited applications from the eligible candidates for one post of RMO. The prescribed qualification is as follows:
"(i) Should be a holder of a Degree in Medicine of any University established by law in India;
(ii) Should have Post Graduate qualification in any subject in Medical Faculty viz., M.S./M.D./ Equivalent qualification in clinical/para-clinical subjects;9
(iii) Should have experience of work in the subject of not less that 8 years; and
(iv) Preference will be given to candidates with experience in Oncology and academic and Professional attainments/ and Hospital Administration."
A reading of the above makes it clear that a candidate should possess a degree in Medicine of any University established by law; should have Post Graduation qualification in any subject in Medical Faculty i.e., M.S., M.D.,/ Equivalent qualification in clinical/para-clinical subjects; experience of 8 years in the subject and preference would be given to candidates with experience in Oncology and academic and Professional attainments and Hospital Administration.
10. Admittedly, 4th respondent possesses preferential qualification of Diploma in Hospital Management issued by the National Institute of Health and Family Welfare and she is an assessor for National Accreditation Board for Hospitals and Healthcare Providers in addition to MBBS and Post Graduation Diploma in Anesthesiology which is equivalent to 10 M.D. Admittedly, the petitioner possesses qualification of M.D. in Biochemistry. The contention of the learned counsel for the petitioner that one should possess Post Graduation i.e., MD, but that need not be clinical or para-clinical subject cannot be accepted. The qualification of Post Graduation in Medical Faculty or equivalent qualification should be in clinical or para-clinical subject, since, the work of RMO involves interaction with patients and handling of patients and also administration of the hospitals.
11. 1997 Regulations is placed on record along with memo dated 14.10.2022. Regulation 7(2)(a)(b) and (c) reads as follows:
"7(2) The period of 4½ years is divided into three phases as follows:
(a) Phase-I (two semesters) - consisting of Pre-clinical subjects (Human Anatomy, Physiology including Bio-
Physics, Bio-chemistry and introduction to Community Medicine including Humanities). Besides 60 hours for introduction to Community Medicine including Humanities, rest of the time shall be somewhat equally 11 divided between Anatomy and Physiology plus Biochemistry combined (Physiology 2/3 & Biochemistry 1/3).
(b) Phase-II (3 semesters) - consisting of para- clinical/clinical subjects.
During this phase teaching of para-clinical and clinical subjects shall be done concurrently.
The para-clinical subjects shall consist of Pathology, Pharmacology, Microbiology, Forensic Medicine including Toxicology and part of Community Medicine. The clinical subjects shall consist of all those detailed below in Phase-III.
Out of the time for Para-clinical teaching approximately equal time be allotted to Pathology, Pharmacology, Microbiology and Forensic Medicine and Community Medicine combined (1/3 Forensic Medicine and 2/3 Community Medicine). See Appencidx-C.
(c) Phase-III (Continuation of study of clinical subjects for seven semesters after passing Phase-I) The clinical subjects to be taught during Phase II & III are Medicine and its allied specialties, Surgery and its allied specialists, Obstetrics and Gynaecology and Community Medicine.
12
Besides clinical posting as per schedule mentioned herewith, rest of the teaching hours be divided for didactic lectures, demonstrations, seminars, group discussions etc., in various subjects. The time distribution shall be as per Appendix-C. The Medicine and its allied specialties training will include General Medicine, Paediatrics, Tuberculosis and Chest, Skin and Sexually Transmitted Diseases, Psychiatry, Radio-diagnosis, Infectious diseases etc. The Surgery and its allied specialties training will include General Surgery, Orthopaedic Surgery including Physio-therapy and Rehabilitation, Ophthalmology, Otorhinolaryngology, Anaesthesia, Dentistry, Radio- therapy etc. The Obstetrics & Gynaecology training will include family medicine, family welfare planning etc." The above Regulation makes it clear as to what are the subjects of pre-clinical, para-clinical or clinical subjects. Biochemistry is a pre-clinical subject. Therefore, the qualification of MD in Biochemistry cannot be considered as clinical or para-clinical. Therefore, I am of the view that the petitioner would not possess qualification of Post Graduation in clinical/para-clinical subject. Since, this Court has come 13 to the conclusion that the petitioner would not possess basic qualification i.e., Post Graduation in clinical or para-clinical, this Court need not go into the question whether the petitioner possesses 8 years experience or whether experience should be counted from the date of completion of MBBS or from the date of completion of Post Graduation.
12. For the reasons stated above, there is no merit in the writ petition. Accordingly, the petition stands dismissed.
Sd/-
JUDGE mpk/-* CT:bms