Karnataka High Court
Smt. Bhavya T S vs The State Of Karnataka on 26 June, 2012
Author: K.L.Manjunath
Bench: K.L.Manjunath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF JUNE 2012
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE V.SURI APPA RAO
WA No.4845/2010 (S-RES)
AND
WA Nos.1487-1523/2011
AND
WA Nos.1524-1559/2011
BETWEEN :
1 SMT. BHAVYA T S
AGED 24 YEARS
D/O SWAMY
THAGADUR GRAMA,
THENDAKERE POST, K R PET TALUK,
MANDYA DISTRICT
2 SMT A B PRAMEELA
AGED 30 YEARS
D/O SRI K G ANIL KUMAR
QUARTERS NO.10, CHESCOM,
SUDARSHANA CIRCLE, MADIKERI,
KODAGU DISTRICT
3 SMT SHANTHALE C B
AGED 29 YEARS
2
D/O SRI RAVI K S
NO.53, 1ST STAGE, 3RD CROSS,
KUVEMPUNAGAR,
MYSORE.
4 SMT GEETHA M
AGED 28 YEARS
S/O MAHADEVAPPA B
NO.435, 2ND CROSS,EWS,
KUVEMPUNAGAR,
MYSORE
5 SRI BASAVARAJU P K
AGED 27 YEARS
S/O KARIAYAPPA, K G HATTI
ANIVALA POST,HOSADURGA TALUK
CHITRADURGA DISTRICT 577554
6 SRI R SATHISH
AGED 30 YEARS
S/O LATE R RAVICHANDRA
#117, 1ST MAIN, 2ND CROSS,
MAHADESWARA EXTENSION,
MATAGALLI POST,
MYSORE 16.
7 SRI BAHUBALI PATIL
AGED 27 YEARS
S/O CHENNAPPA PATEEL
THIRTHAGRAMA, ATHANI TALUK AND
HOBLI, BELGAUM DISTRICT
8 SRI B SATHISH
AGED 26 YEARS
S/O B G THIPPESWAMY
SRI RAMA TEMPLE STREET,
3
NEAR VEGETABLE MARKET,
HOSADURGA 577 527
CHITRADURGA DISTRICT
9 SRI MANJUNATHA
AGED 24 YEARS
S/O SRI SIDDAIAH M
NO.1129, 2ND STAGE, 1ST MAIN ROAD,
GOKULAM,
MYSORE
10 SMT SUJANA R
AGED 26 YEARS
D/O SRI RAVISHEKHAR H
NO.560, 2-A MAIN ROAD,
B BLOCK, 3RD STAGE,
KANAKADASANAGAR, MYSORE
11 SRI SHOBHARANI E
AGED 26 YEARS
D/O ERAIAH, TELECOM DEPARTMENT
BHERYA V & PO. K R NAGAR,
MYSORE DISTRICT
12 SMT SARITHA K M
AGED 27 YEARS
D/O SRI NANJAPPA
NO.1187, KESARE, 3RD STAGE,
KALPAVRUKSHA NAGAR,
MYSORE
13 SMT JYOTHI
AGED 22 YEARS
D/O SRI CHIKKARAMAIAAH
NANJADEVANAPURA GRAMA & POST,
CHAMARAJANAGAR TALUK AND DISTRICT
4
14 SRI DEVARAJU M P
AGED 30 YEARS
S/O PUTTAIAH
MOODIGERE VILLAGE,
KANCHANAHALLI POST,
NAGAMANGALA TALUK, MANDYA
15 SRI RAJU
AGED 30 YEARS
S/O SEVANTHARA KAMBALE,
KIRANGI, ATHANI TALUK,
BELGAUM DISTRICT
16 SRI BADAKAPPA H
AGED 27 YEARS
S/O SANJEVAPPA H
KADALABALU,
HAGARIBOMMANAHALLI,
BELLARY 583 212
17 SMT THULASAMMA B S
AGED 32 YEARS
S/O SIDDAPPA
THAMATAKALA, MADEHALLI POST,
CHITRADURGA TALUK & DISTRICT
18 SMT NAGAMMA
AGED 27 YEARS
S/O SRI GAVIMAIAH
GAMANAHALLI (VILLAGE & POST)
SRIRANGAPATNA TALUK,
MANDYA DIST
19 SMT INDRAMMA
AGED 34 YEARS
W/O SRI KUMARA S
5
NO.1954, BEHIND V V MARKET,
AGRAHARA,
MYSORE 570004
20 SMT CHANDRAKALA
AGED 31 YEARS
W/O SRI R REVANNA
NO.173, B BLOCK,
HALAGUDU GRAMA & POST,
T NARASIPURA TALUK
MYSORE DISTRICT
21 SMT RAJESHWARI S P
AGED 29 YEARS
S/O LATE CHANDRASHEKAR S N
C/O D K SHIRALINGAPPA
NO.65, 3RD CROSS, VIDYANAGAR,
OPPOSITE A T I COMPOUND
MYSORE DISTRICT 11
22 SMT SHWETHA J
AGED 28 YEARS
D/O SRI MAHADEVASWAMY H
HOUSE NO.1111, 1ST BLOCK,
KANAKAGIRI, VIDYARANYAPURAM,
MYSORE
23 SMT SHEELAVATHI
AGED 28 YEARS
S/O DAMODAR K
CHATRA MAIDANA VASA,
KASABA HOBLI, MOODIGRE TALUK,
CHICKMAGALUR DISTRICT
24 SRI S DORESWAMY
AGED 30 YEARS
6
S/O SIDDEGOWDA
NO.625, 8TH CROSS,
3RD MAIN ROAD, JANATHANAGAR,
T K LAYOUT, MYSORE
25 SMT SAVITHA H K
AGED 26 YEARS
D/O SRI KRISHNEGOWDA
HEBBALE (POST & VILLAGE)
KUSHALANAGARA HOBLI,
SOMVARAPET TALUK, KODAGU DISTRICT
26 SRI RAVI M
AGED 27 YEARS
S/O SRI MAHADEV
NO.EWS 226,
4TH MAIN ROAD,
SHARADADEVI NAGAR, MYSORE
27 SRI KHATHUN B R
AGED 32 YEARS
S/O ABDUL RAHIM
CYCLE SHOP,
TAVAREKERE EXTENSION,
T M HALLI POST,
TURUVEKERE TALUK,TUMKUR DISTRICT
28 SMT RUBEENA K S
AGED 27 YEARS
S/O LATE SIRAJUDDIN K
RUBEENA, MANJIK,NALIHUDIKERI POST,
SIDDAPURA, SOMAVARAPET TALUK,
KODAGU DISTRICT 571 253
29 SMT SHILPASHREE N
AGED 24 YEARS
7
S/O NINGARAJU C
NO.553, THIYOBALD MAIN ROAD,
NAZARBAD,
MYSORE 570010
30 SMT RAJESHWARI R
AGED 25 YEARS
M S RAMAIAH NARAYANA
HRUDAYALAYA, HEART CENTRE,
CLOTH LAB, STAFF NO.10087, NEW BEL
ROAD, BANGALORE 560056
31 SMT MANJULA N
AGED 24 YEARS
D/O SRI NAGARAJU H S
HOSKOTE, CHATRA HOBLI,
HOSAKOTE POST, NANJANGUD TALUK,
MYSORE
32 SMT SOWMYA M S
AGED 26 YEARS
S/O MANTALINGAPPA C M
NO.536, KUMARA NILAYA,
CHAMUNDESHWARI NAGAR,
8TH CROSS,MANDYA
33 SRI MANIKUMAR J
AGED 28 YEARS
S/O JAYARAMEGOWDA
NO.3/A, 4TH MAIN ROAD,
V V MOHALLA, MYSORE
34 SMT VANI MADIWALA
AGED 27 YEARS
W/O SRI ADARSHA H L
NO.XY-7, OLD EXIHIBITION BUILDING,
8
NEAR M M C
MYSORE 570021
35 SRI KISHROE H B
AGED 26 YEARS
SP BELUREGOWDA
HULIKAL POST, ARKALGUD TALUK
HASSAN DISTRICT
36 SRINIVAS J
AGED 31 YEARS
S/O JUGALAPPA
MADHUSHREE NIVAS, 7TH B CROSS,
VIDYANAGAR,
TUMKUR 572 103
37 SRI PRAMOD H Y
AGED 23 YEARS
S/O SRI YOGANANDA H K
HANAGAL POST, HANAGAL HOSUR,
ARAKALGUD TALUK,
HASSAN DISTRICT ...APPELLANTS
(BY SRI M S BHAGAWAT, ADV)
AND:
1 THE STATE OF KARNATAKA
DEPARTMENT OF HEALTH & FAMILY
WELFARE
M S BUILDING, BANGALORE 560 001
REP BY ITS SECRETARY
2 THE CHIEF SECRETARY TO GOVERNMENT
DEPARTMENT OF HEALTH & FAMILY WELFARE
(MEDICAL EDUCATION)
9
M S BUILDING,
BANGALORE 560 001
3 MYSORE MEDICAL COLLEGE & RESEARCH
INSTITUTE MYSORE
REP BY ITS DIRECTOR & DEAN
...RESPONDENTS
(BY SRI M.KESHAVA REDDY, AGA
AND SMT.M.C.AKKAMAHADEVI, AGA FOR R1 & 2
SRI T.SESHAGIRI RAO, ADV. FOR R3)
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION Nos.27421-27424/2010, 27429-27432/2010,
27459-462/2010, 27495-496/2010, 27465-472/2010, 27475-478/2010, 27481-
482/2010, 27485-492/2010, 27497-504/2010, 27507-522/2010, 27447-448/2010,
27493-494/2010, 27565-566/2010, 27563-564/2010, 27561-562/2010 DATED
21/10/2010.
THESE WRIT APPEALS COMING ON FOR ORDERS THIS DAY,
K.L. MANJUNATH J., DELIVERED THE FOLLOWING:-
JUDGMENT
The order passed in W.P.Nos.27405-27572/2010 by the learned Single Judge dated 21.10.2010 is called in question in these appeals.
2. Heard the learned Counsel for the parties.
3. The appellants herein were appointed as paramedical staff 10 at Mysore Medical College and Research Institute (for short hereinafter referred to as MMCRI). They were selected and the order of appointment was issued on 05.08.2010 and that they reported to duty on 07.08.2010. The State of Karnataka by its order dated 26.08.2010 cancelled the selection and their appointment. Accordingly, they were relieved from their duties with effect from 26.08.2010.
4. Challenging the legality and correctness of the order passed by the Government dated 26.08.2010 in cancelling the selection and their appointment, the appellants along with others approached this Court. The dispute in the aforesaid writ petitions was in regard to the cancellation of their appointment to paramedical staff in Hassan Institute of Medical Sciences and also the MMCRI. However, the present appeals are concerning to Mysore Medical College and Research Institute only.
5. The admitted facts are as hereunder:
The third respondent was earlier known as Government Mysore Medical College. It was run by the State of Karnataka. 11 Later, the third respondent was converted into an autonomous body and the same was registered under the provisions of the Societies Registration Act in the year 2007. The third respondent in its meeting held on 16.07.2009 resolved to fill up 19 vacant posts of Laboratory Technicians, 61 Staff Nurses and two CT Scan Technicians, 1 Radio Therapist Technician. According to the appellants, pursuant to the aforesaid decision, a walk-in-interview was conducted and the appellants were got selected which was later cancelled by the Government, on the ground that the selection process was on account of illegality and irregularity. The State Government contended before the learned Single Judge that while issuing the notification, the third respondent had initially notified for filling up of posts of 26 staff nurses, 19 Lab Technicians, 1 C.T. Scan Technician and 1 Radio Therapist Technician. It was notified to recruit only 47 posts. Without following the procedure, contrary to the notification issued by the third respondent to fill up 47 posts, 61 posts of Staff Nurses as against 26 Staff Nurses were filled up. In addition to that, 1 extra C.T. Scan technician and three junior Lab 12 Technicians were appointed. According to the Government, the Government is the controlling authority, as the entire finance is made by the Government and when the recruiting authority, contrary to Article 12 has appointed the persons illegally, the Government has got power to issue directions to set right things. The learned Single Judge considering the matter in detail came to the conclusion that what was notified was only to recruit 26 Staff Nurses. As against the same, 61 staff nurses were appointed and that the reservation as contemplated under the law had also not been followed. In the circumstances, considering various rulings relied upon by both the parties, held that the appointment of excess 35 staff as illegal and a direction was issued to identify the excess 35 staff appointed and also to issue endorsement to remove them. This order is called in question in these appeals.
6. Sri M.S.Bhagawat, learned Counsel for the appellants submits that as per the proceedings of the 6 th Governing Council meeting dated11.05.2005, a decision was taken to fill up 47 posts, since there was need to appoint 61 Staff Nurses based on the need 13 of the different Hospitals and as per the Medical Council of India Rules, the Dean of the third respondent-Institute addressed a letter dated 10.02.2010 to the Chairman of the Governing Council who was also Hon'ble Minister for Medical Education requesting the Chairman to grant permission to fill up 61 Staff Nurses as against 26 Staff Nurses. According to him, on 17.02.2010 the Hon'ble Chairman has accorded permission to the Dean of the third respondent to recruit 61 Staff Nurses as against 26 Staff Nurses, as per the resolution dated 11.05.2009. Therefore, he contends that the procedure followed by the third respondent to recruit 61 staff nurses is justified and legal. He also relied upon the notification issued by the third respondent to show that the third respondent had reserved liberty either to increase or reduce the vacancies and in view of the same, if the third respondent has appointed staff nurses, the same could not have been cancelled by the State of Karnataka. He also contends that the learned Single Judge has committed an error in regularising the appointment of 26 persons and in ordering to remove 35 staff nurses by identifying them. He further submits 14 that the State of Karnataka has no power to cancel the order of appointment made by the third respondent which is a registered Association under the provisions of the Karnataka Societies Registration Act.
7. Per contra, the learned Counsel appearing for the third respondent submits that there was only one resolution, wherein the Governing Council in its meeting held on 11.05.2009 had resolved to fill up only 26 staff nurses and there is no other resolution passed by the Governing Council to appoint excess staff.
8. The learned Government Advocate contends that since the entire finance is made by the State Government, as the Government has control over the third respondent in regard to various aspects of the matter including the administration and the government has powers to issue direction from time to time if the third respondent fails to act upon in terms of the aims and objects of the third respondent, according to him, the Government has only issued direction to cancel the appointment on the ground that appointment made by the third respondent is contrary to the resolution of the 15 Governing Council.
9. He further contends that the appellants based on the permission granted by the Chairman of the Governing Council cannot contend that a resolution has been passed to recruit 61 Staff Nurses. According to him, the Chairman has no right to grant permission to the Dean to recruit 61 Staff Nurses in the absence of a resolution passed by the Governing Council. He further submits that the learned Single Judge considering the judgment of the Hon'ble Supreme Court in MUKUL SAIKIA VS. STATE OF ASSAM reported in (2009)1 SCC 386 has held that since 26 posts were to be recruited, as the first 26 posts have been duly selected, has directed to cancel the appointment in regard to the remaining 35 who were appointed in excess of the resolution dated 11.05.2009. In the circumstances, he requests the Court to dismiss the appeals.
10. By way of reply Mr.Bhagawat, learned Senior Counsel submits that the order of the learned Single Judge is contrary to the judgment of the Hon'ble Supreme Court in the case of AMLAN JYOTI BOROOAH Vs. STATE OF ASSAM reported in (2009)3 SCC 16
227. Relying upon para-40 of the judgment, he contends that in a case of emergency, it is always open for the recruiting authority to recruit excess staff and the same cannot be within the purview of the judicial review. Therefore, he requests the Court to set aside the order of the learned Single Judge.
11. He further submits that the learned Single Judge has also committed an error in directing the third respondent to intimate 26 persons to treat the order of cancellation of appointment as show cause notice and the learned Single Judge ought to have given similar relief to the appellants herein before cancelling their appointment.
12. Having heard the learned Counsel for the parties, the following facts are not in dispute in these appeals:
1. The third respondent was a Government Medical College, which was later converted into autonomous body and the same is governed by the byelaws of the Association and the entire control is on the State of Karnataka, since the entire finance is made by the State.17
2. It is also not in dispute that a resolution was passed by the Governing Council in its 6th Governing Council meeting held on 11.05.2009 to recruit 47 posts, out of which 26 posts are to recruit staff nurses. It is also not in dispute that on the request of Dean of the third respondent-Institution, the Chairman has accorded permission to recruit additional staff.
13. The question is whether the Chairman had powers to permit the third respondent to recruit 61 Staff Nurses contrary to the resolution of the Governing Council. It is also not in dispute that Chairman has no powers to grant such power without there being a resolution by the Governing Council in view of 14(D) of Rules and Regulations, of the third respondent. Therefore, it is clear that any permission granted by the Chairman to recruit in excess of the resolution of the committee will not enure to the benefit of the appellants who have been recruited in excess of 26 posts as resolved by the Governing Council of the third respondent.
14. The learned Single Judge considering that the process of selection in allowing the candidates to appear for the interview is in 18 accordance with law partially, has also held that since there was a valid notification to recruit 26 posts, he has saved the appointment of 26 persons. The learned Single Judge considering the background of the case and the decision of the Governing Council has directed the third respondent to invite reply from first 26 candidates who were selected based on the reservation to pass an appropriate order after hearing the selected 26 candidates and however, the case of the appellants has not been considered by him because they were recruited in excess of 26 posts.
15. In such circumstances, this Court is of the opinion that no error is committed by the learned Single Judge in passing such an order, since he has relied upon the judgment in Mukul's case. No doubt, the learned Counsel for the appellants has relied upon the judgment of the Hon'ble Supreme Court in AMLAN JYOTI BOROOAH VS. STATE OF ASSAM, but it is for the recruiting authorities to find whether there is an emergency or not and such appointment cannot be made without there being a resolution. There is no extreme urgency in the instant case to allow the third 19 respondent to go ahead with the recruitment without following the proper procedure.
16. In the circumstances, we do not see any merits in these appeals. Accordingly, these appeals are dismissed.
Sd/-
JUDGE Sd/-
JUDGE JT/-