Karnataka High Court
Mr N Venugopal vs The State Of Karnataka on 25 February, 2022
Bench: G.Narendar, Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
WRIT PETITION NO.13482/2020 (S-KSAT)
BETWEEN:
1. MR N VENUGOPAL
AGED ABOUT 52 YEARS,
S/O LATE SRI S K NARAYAN
WORKING AS SENIOR PHARMACIST
ESI DIAGNOSTIC CENTRE
BASAVANAGUDI, BENGALURU-560 004
2. MR PRADEEP K
AGED ABOUT 45 YEARS,
S/O SRI M KISHORE RAO
WORKING AS PHARMACIST
ESI DISPENSARY YESHWANTHPURA
MALLESHWARAM WEST,
BENGALURU-560 055
... PETITIONERS
(BY SRI SANTOSH B.M, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
LABOUR DEPARTMENT
VIKASA SOUDHA,
BENGALURU-560 001
2
2. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
DPAR, VIDHANA SOUDHA,
BENGALURU-560 001
3. THE DIRECTOR
DIRECTORATE ESISMS,
RAJAJINAGAR,
BENGALURU-560 010
4. SRI K NARASEGOWDA
S/O KARIYAPPA,
AGED ABOUT 52 YEARS,
WORKING AS PHARMACIST,
ESI DISPENSARY PEENYA,
SRS ROAD, PEENYA,
BENGALURU-560058
5. SRI P NAGESHA
S/O PUTTANANJAIAH
AGED ABOUT 47 YEARS,
WORKING AS PHARMACIST,
ESI HOSPITAL, MYSORE-571 117
6. SRI J SHANKAR
S/O JAYARAMA
AGED ABOUT 45 YEARS,
WORKING AS PHARMACIST,
ESI DISPENSARY KENGERI,
BENGALURU-560060
7. SMT SHENTHAMARAI SELVI A S
D/O A SELVARAJ
AGED ABOUT 44 YEARS,
WORKING AS PHARMACIST,
ESI DISPENSARY DYAVASANDRA,
BENGALURU-560007
8. SRI DHARMARAJA H M
S/O MOGANNA GOWDA
AGED ABOUT 38 YEARS,
WORKING AS PHARMACIST
3
ESI HOSPITAL, K R S ROAD,
MYSORE-571117
9. SRI K GURURAJ SHETTY
S/O K RAGHAVENDRA SHETTY
AGED ABOUT 51 YEARS,
WORKING AS SENIOR PHARMACIST
ESI DISPENSARY KOPPAL
DR SIMPILINGANNA ROAD,
NEAR K.S.R.T.C. BUS DEPOT,
MURALIDHAR DESHPANDE BLDG.,
KOPPAL-583 231
10. SRI MAHAJAN SHETTI
S/O SRI HAMPANNA
AGED ABOUT 64 YEARS,
SENIOR PHARMACIST
E.S.I.DIRECTORATE OFFICE
RAJAJINAGAR, BENGALURU-560010
RETIRED AND NOW RESIDING AT
NO.137, 1ST MAIN ROAD,
MLA LAYOUT, R T NAGAR,
BENGALURU-560 032
11. SRI K M VISHWANATH
S/O SRI M MADAIAH
AGED ABOUT 60 YEARS,
PHARMACIST, E.S.I DIRECTORATE OFFICE,
RAJAJINAGAR, BENGALURU-560010
RETIRED AND NOW RESIDING AT
NO.173, 14TH CROSS, 1ST BLOCK,
RAJAJINAGAR, BENGALURU-560 010
12. MRS. K P RAJESHWARI
D/O LATE SRI K N PILLAI
AGED ABOUT 60 YEARS,
SENIOR PHARMACIST,
E.S.I. HOSPITAL
INDIRANAGAR, BENGALURU-560 038
4
RETIRED AND NOW RESIDING AT
NO.P-39 9TH A MAIN, 12TH SECTOR
L.I.C. COLONY, JEEVANBHIMANAGAR,
BENGALURU-560 075.
... RESPONDENTS
(BY SMT. SHILPA S.GOGI, HCGP FOR R1-R3,
SRI D.NAGARAJ, ADV. FOR R4 TO R9,
V/O DATED 25/11/2020 PETITION IS
DISMISSED AGAINST R10-R12.
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 14.08.2020 PASSED BY THE HON'BLE
KARNATAKA STATE ADMINISTRATIVE TRIBUNAL IN
APPLICATION NOS.6546 TO 6550 OF 2014 VIDE ANNEXURE-A
ETC.
THIS WRIT PETITION COMING ON FOR 'PRELIMINARY
HEARING-B GROUP' THIS DAY, G.NARENDAR J, MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned High Court Government Pleader and the learned counsel for the respondent NOs.4 to 9.
2. The petitioners are before this Court being aggrieved by the order of the Tribunal dated 14.08.2020 by which the Tribunal was pleased to dismiss the application preferred by the petitioners and respondents No.10, 11 and
12. The instant petitioners were applicants No.4 and 5 5 before the Tribunal and the applicants No.1 to 3 have been arraigned as respondents herein. The applicants moved the Tribunal being aggrieved by the G.O. dated 14.08.2014 by which the respondent forwarded a proposal to the Government for upgrading 7 posts of Pharmacists as Graduate Pharmacists and to be filled by the Senior Pharmacists who possess graduation in pharmacy.
3. The facts in a nutshell are that the third respondent is dispensing medical care to persons who are insured under the ESI Act in terms of clause 17(1)(i). That by proceedings dated 07.12.2007 the first respondent formulated the Karnataka Employees' State Insurance Scheme (Medical) Services Recruitment Rules, 2007, under which the strength of the employees in the cadre of Pharmacists was fixed at 298. That subsequently by an executive order dated 27.07.2010 55 posts were upgraded as Senior Pharmacists and again in 2014 a proposal was sent to the Government for upgrading 7 posts of pharmacists as graduate pharmacists i.e., the said posts 6 were to be filled up from the cadre of Senior Pharmacists who possess graduation in pharmacy and in the event of qualified senior pharmacists not being available, the same is to be filled up by qualified pharmacists who possessed the qualification. The said proposal by the department has been approved and the first respondent has issued the impugned order approving the proposal for upgrading 7 posts to the post of graduate pharmacist. The said sanction or approval of proposal is called in question.
4. It is contended that by the impugned proceedings pharmacists who have completed their graduation in pharmacy would become eligible despite they being junior to the other pharmacists, but who do not possess graduation in pharmacy. It is nextly contended that the impugned order is contrary to Section 3 of the 1978 Act as no post can be abolished or created without amendment to the Cadre and Recruitment Rules (C and R Rules, for short) of the Department. That on account of the upgradation the same has resulted in disparity in pay scale 7 also. That as a consequence of the upgradation and in the event of there being no senior pharmacists possessing a graduation degree in pharmacy, then it would result in a pharmacist making a quantum leap over not only pharmacists who are senior to him, but also those in the grade of senior pharmacist and that the same is perse discriminatory and impermissible in law. It is nextly contended that the proposal amounts to an amendment to the C and R Rules under the guise of an executive order and the same is also impermissible in view of the law laid down by this Court in the case of Sri M.V. Dixit and Others Versus State of Karnataka and others reported in ILR 2004 KAR 3802.
5. Per contra, the learned High Court Government Pleader would take this Court through paragraphs 4, 5, 7, 8, 9 and 10 and would contend that the prerogative to prescribe qualification for a post is exclusively in the domain of the State/employer and that it cannot be surrendered to the dictates of the employee. That the impugned order is 8 only a proposal and it is open for the petitioners to set out their objection as and when the C and R Rules are sought to be amended and in that background the application and the instant writ petition are premature. That the attempt is only to provide a window of career progression or otherwise the petitioners and other similarly situated, would be stagnating in the same post and that career progression is recognized by the Courts. That the petitioners who had no objection to the creation of a separate grade of senior pharmacists under the executive order of 2010 and having taken the benefit cannot now turn around and oppose a mere proposal to create one more grade. That the proposal is in the larger interest of the employees and it in no way detracts or alters the service condition of the petitioners. That the proposal for creating a separate grade was positively considered and accepted by the Government/employer on account of the representations received under which it was pointed out that the persons who are similarly situated as petitioners have been stagnating in the same cadre since 1997 without any 9 avenue for promotion. That the application is premature and it is not for this Court to decide the validity of the proposal at this stage and it is open to the petitioners to either object to the proposed amendment to the C and R Rules or impugn the C and R Rules, if amended and if they are aggrieved by the amendments.
6. Having heard both the counsels we have carefully perused the order impugned and the order of the tribunal. The tribunal has categorically concluded that the petitioners would have no locus to challenge a mere proposal and in fact has termed the application 'a premature one. The tribunal has discussed the issue thread bare and has concluded that the proposed upgradation of posts cannot be found fault with. Apparently the proposal is yet to take shape by way of amendments to the C and R Rules. In that view of the matter, we do not find any error in the finding of the tribunal that the application is premature. That apart, as rightly contended by the learned High Court Government Pleader the prerogative of 10 stipulating a qualification is in the exclusive domain of the employer. It is also within the domain of the employer to create or abolish a post subject to the condition that it is done in a manner known to law. The reliance on the ruling of this Court rendered in M V Dixit's case is inapplicable to the facts of the instant case. Apparently what is noted is only a proposal and that being the obtaining facts we do not find any error in the order impugned. The tribunal in paragraph 11 has placed reliance on the rulings of the Apex Court in the cases of P. U. Joshi vs. Accountant General reported in (2003) 2 SCC 632 and in the case of Union of India v. Pushpa Rani reported in (2008) AIR SCW 6564. The principles and law laid down by the Apex Court clearly controverts the case canvassed by the petitioners. It is also pertinent to note that the application though came to be dismissed that the dismissal has come with a caveat whereby the respondents have been directed to finalize the process of amendment to the C and R Rules after following due process of law. In that view of the matter, we do not find any ground that warrants interference with the well 11 reasoned order of the tribunal. Accordingly, the petition being devoid of merits is dismissed.
Sd/-
JUDGE Sd/-
JUDGE ykl CT-HR