Karnataka High Court
Dr Anoop Nai vs State Of Karnataka on 7 March, 2023
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF MARCH 2023
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.39341/2019 [S-RES] C/W.
WP NOS. 23289/2013 [S-RES], 39476/2012 [S-PRO],
15740/2013 [S-RES], 19688/2013 [S-RES],
28905/2012 [S-RES], 22025/2013 [S-RES],
46022/2012 [S-PRO]
IN WP NO. 39341/2019
BETWEEN :
DR. KALAVATHI M
AGED ABOUT 50 YEARS
D/O D. MUNIYAPPA
WORKING AS LECTURE
DEPARTMENT OF PROSTHODONTICS
GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE
FORT, VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
... PETITIONER
(BY SRI . D R RAVISHANKAR, SENIOR ADVOCATE FOR
SMT. SIRI RAJASHEKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPT. BY ITS SECRETARY
DEPARTMENT OF HEALTH & FAMILY WELFARE
(MEDICAL EDUCATION)
2
ROOM NO.341, 3RD FLOOR,
VIDHAN SOUDHA
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE,
FORT VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
REPT. BY ITS DEAN CUM DIRECTOR.
3. DR. ANOOP NAIR
S/O SRI. S.K. NAIR
AGED ABOUT 32 YEARS
WORKING AS LECTURER
DEPARTMENT OF PROSTHDONTICS
GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE
FORT, VICTORIA HOSPITAL CAMPUS,
BENGALURU - 560 002.
4. DR. RESHMA KULKARNI
AGED ABOUT 36 YEARS
WORKING AS LECTURER
DEPARTMENT OF PROSTHODONTICS
GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE,
FORT, VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI. AJOY KUMAR PATIL., ADVOCATE FOR R4;
SRI. P.S. RAJAGOPAL., SENIOR ADVOCATE FOR
SMT. M.L. SUVARNA., ADVOCATE FOR 3
SMT. SUMANA BALIGA., ADVOCATE FOR R2;
SRI. T.P. SRINIVASA, PRL. GA FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUION OF INDIA PRAYING TO QUASH THE
3
CORRIGENDUM ISSUED BY THE R-1 DATED 13.05.2019
VIDE NO. AAKUKA/54/MMC/2011 (BHAAGA) PRODUCED
AS ANNEXURE-P; QUASH PROMOTION ORDER DATED
21.06.2019 VIDE NO.
SADAMKAASAMSAM/SIBHANDI(1)/32/2018-19 OF R-3
AND 4 AT ANNEXURE-Q ISSUED BY THE R-2; DIRECT THE
R-2 TO PROMOTE THE PETITIONER RETROSPECTIVELY,
TOGETHER WITH ALL SERVICE, CONSEQUENTIAL AND
MONETARY BENEFITS.
IN WP NO. 23289/2013
BETWEEN :
DR. RESHMA KULKARNI
AGED ABOUT 37 YEARS
W/O DR VIDYASHANKAR N
WORKING AS ASSISTANT
PROFESSOR / LECTURER
DEPT OF PROSTHODONTICS
GOVERNMENT DENTRAL COLLEGE
AND RESEARCH INSTITUTE
BENGALURU - 560 002.
... PETITIONER
(BY SRI.AJOY KUMAR PATIL., ADVOCATE)
AND :
1. STATE OF KARNATAKA
DEPARTMENT OF HEALTH AND
FAMILY WELFARE SERVICE
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE DEAN-CUM-DIRECTOR
GOVERNMENT DENTAL COLLEGE AND
RESEARCH INSTITUTE, FORT
VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI. T.P. SRINIVASA., PRL. GA FOR R1;
SMT. SUMANA BALIGA.M, ADVOCATE FOR R2)
4
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED GOVERNMENT ORDER NO. Aa Ku
Ka 69 RGU 2013, BENGALURU DATED 9.4.2013 VIDE
ANNEXURE-A PASSED BY THE 1ST RESPONDENT; QUASH
THE IMPUGNED GOVERNMENT ORDER NO. Aa Ku Ka 69
RGU 2013, BENGALURU DATED 29.4.2013 VIDE
ANNEXURE-B PASSED BY THE 1ST RESPONDENT.
IN WP NO. 39476/2012
BETWEEN :
DR MAMATHA SHRI V
W/O DR NARENDRA,
AGED ABOUT 35 YEARS,
WORKING AS ASSISTANT
PROFESSOR/LECTURER,
DEPARTMENT OF ORAL SURGERY,
GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE,
BENGALURU - 560 002.
... PETITIONER
(BY SRI. CHANDRAKANTH R GOULAY., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF HEALTH AND
FAMILY WELFARE SERVICES,
VIDHANA SOUDHA,
BENGALURU - 1.
2. THE DEAN CUM DIRECTOR,
GOVERNMENT DENTAL COLLEGE AND
RESEARCH INSTITUTE, FORT,
VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
5
3. DR.P.HEMA MYTHILY
AGED 40 YEARS,
WORKING AS LECTURER IN ORAL SURGERY,
GOVERNMENT DENTAL COLLEGE AND
RESEARCH INSTITUTE,
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI. T.P. SRINIVASA., PRL. GA FOR R1;
SMT. SUMANA BALIGA.M., ADVOCATE FOR R2;
SRI. VIJAYAKUMAR BAJENTRI., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDERS BEARING NO. H & FW
SERVICES 182 MMC DATED 27.07.2010 VIDE ANNEXURE-
G AND THE CORRIGENDUM BEARING NO. H & FW
SERVICES BEARING NO. H & FW SERVICES 54/MMC 2011
DATED 27.4.11 VIDE ANNEXURE-J BOTH PASSED BY THE
R1-STATE GOVT. AS ARBITRARY, ILLEGAL AND VOID.
IN WP NO. 15740/2013
BETWEEN :
DR. RESHMA KULKARNI
W/O DR. VIDYASHANKAR N
AGED ABOUT 37 YEARS
WORKING AS ASSISTANT
PROFESSOR/LECTURER
DEPT OF PROSTHODONTICS
GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE
BENGALURU - 560 002.
... PETITIONER
(BY SRI AJOY KUMAR PATIL., ADVOCATE)
6
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF HEALTH AND
FAMILY WELFARE SERVICE
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE DEAN-CUM-DIRECTOR
GOVERNMENT DENTAL COLLEGE AND
RESEARCH INSTITUTE, FORT
VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
3. DR KALAVATHI
D/O D MUNIYAPPA
AGED ABOUT 48 YEARS
WORKING AS LECTURER IN
DEPT OF PROSTHODONTICS
GOVERNMENT DENTAL COLLEGE
AND RESERCH INSTITUTE, FORT
VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI. T.P. SRINIVASA., PRL. GA FOR R1;
SMT. SUMANA BALIGA.M, ADVOCATE FOR R2;
SRI. VIKAS ROJIPURA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER/CORRIGENDUM BEARING Aa Ku Ka
54 MMC 2011 DATED 27.4.2011 VIDE ANNEXURE-N,
PASSED BY THE 1ST RESPONDENT.
IN WP NO. 19688/2013
BETWEEN :
DR. ANOOP NAI
AGED ABOUT 33 YEARS,
7
S/O S.K.NAIR,
WORKING AS LECTURER,
DEPARTMENT OF PROSTHODONTICS,
GOVERNMENT DENTAL COLLEGE AND
RESEARCH INSTITUTE, OLD FORT,
VICTORIA HOSPITAL CAMPUS,
BENGALURU - 560 002.
... PETITIONER
(BY SRI. P.S. RAJA GOPAL., SENIOR ADVOCATE FOR
SMT. M.L. SUVARNA, ADVOCATE FOR
SRI. K. PUTTEGOWDA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRTARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY
WELFARE (MEDICAL EDUCATION)
ROOM NO.341, 3RD FLOOR, VIDHANA SOUDHA,
BENGALURU - 560 001.
2. GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE,
FORT, VICTORIA HOSPITAL CAMPUS,
BENGALURU - 560 002.
REPRESENTED BY
DEAN CUM DIRECTOR.
3. DR.M. KALAVATHI
AGED ABOUT 49 YEARS,
D/O. D. MUNIYAPPA,
WORKING AS LECTURER,
DEPARTMENT OF PROSTHODONTICS,
GOVERNMENT DENTAL COLLEGE &
RESEARCH INSTITUTE, FORT
VICTORIA HOSPITAL CAMPOUS,
BENGALURU - 560 002.
... RESPONDENTS
8
(BY SRI. T.P. SRINIVASA., PRL. GA FOR R1;
SMT. SUMANA BALIGA.M, ADVOCATE FOR R2
SRI. VIKAS ROJIPURA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUION OF INDIA PRAYING TO QUASH
NOTIFICATION DATED 27.4.2011 (UNDER ANNEXURE-K
TO THE W.P.) ISSUED BY THE R-1 BY ISSUE OF A WRIT IN
THE NATURE OF CERTIORARI AND GRANT ALL
CONSEQUENTIAL BENEFITS THAT FLOW FROM SUCH
ORDER.
IN WP NO. 28905/2012
BETWEEN :
DR P. HEMA MYTHILY
AGED ABOUT 40 YEARS
D/O SRI B PADMANABHAN
LECTURER IN ORAL SURGERY
GOVERNMENT DENTAL COLLEGE &
RESEARCH INSTITUTE, FORT,
VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
... PETITIONER
(BY SRI. VIJAYA KUMAR BAJENTRI., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
MEDICAL EDUCATION DEPARTMENT
VIKASA SOUDHA
BENGALURU - 560 001.
2. THE DEAN-CUM-DIRECTOR
GOVERNMENT DENTRAL COLLEGE &
RESEARCH INSTITUTE, FORT
VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
9
3. DR (MRS) MAMTHA SHRI V
AGED ABOUT 35 YEARS
W/O DR NARENDRA
LECTURER IN ORAL SURGERY
GOVERNMENT DENTAL COLLEGE &
RESEARCH INSTITUTE, FORT
VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI. T.P. SRINIVASA., PRL.GA FOR R1;
SMT. SUMANA BALIGA., ADVOCATE FOR R2;
SRI. CHANDRAKANTH R GOULAY., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUION OF INDIA PRAYING TO
CALL FOR THE RECORDS RELATING TO THE OFFICIAL
MEMORANDUM NO. GDCRI/EST (1)/06/2011-12 DATED
03.08.12 ISSUED BY THE R2 VIDE ANNEXURE-P AND
QUASH THE RANKING ASSIGNED TO THE PETITIONER
AND THE R3 ARE CONCERNED AT SL. NO.3 AND 2;
DIRECT THE R2 TO REFIX THE RANKING OF THE
PETITIONER, COUNTING THE SERVICE RENDERED BY
HER AS LECTURER IN ORAL SURGERY DENTISTRY FROM
26.9.2005, THE DATE ON WHICH SHE WAS DEPUTED AS A
LECTURER IN ORAL SURGERY.
IN WP. NO. 22025/2013
BETWEEN :
1. DR S. JANITHA
W/O DR.K.SRIKUMAR PRABHU,
AGE 33 YEARS,
WORKING AS LECTURER/
ASSISTANT PROFESSOR,
DEPARTMENT OF PERIODONTICS,
GOVERNMENT DENTAL COLLEGE,
BENGALURU - 560 002.
10
2. DR.MAMTHASHRI.V
W/O DR.NARENDRA,
AGE 35 YEARS,
WORKING AS LECTURER/
ASSISTANT PROFESSOR,
DEPARTMENT OF ORAL SURGERY,
GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE,
BENGALURU - 560 002.
... PETITIONERS
(BY SRI. CHANDRAKANTH R GOULAY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF MEDICAL EDUCATION,
M.S.BUILDING,
BENGALURU - 560 001.
2. THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF HEALTH &
FAMILY WELFARE SERVICES,
VIKASA SOUDHA,
BENGALURU - 560 001.
3. THE DEAN-CUM-DIRECTOR,
GOVERNMENT DENTAL COLLEGE
AND RESEARCH INSTITUTE,
FORT, VICTORIA HOSPITAL CAMPUS,
BENGALURU - 560 002.
4. SMT.(DR) P.HEMA MYTHILY
D/O SRI B.PADMANABHAN,
AGED ABOUT 40 YEARS,
LECTURER IN ORAL SURGERY,
GOVERNMENT DENTAL COLLEGE AND
11
RESEARCH INSTITUTE,
VICTORIA HOSPITAL CAMPUS
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI. T.P. SRINIVASA., PRL.GA FOR R1 & R2;
SMT. SUMANA BALIGA.M., ADVOCATE FOR R3;
R4 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER BEARING NO. HAKUKA 69
RGU2013 DATED 9.4.2013 AS PER ANNEXURE-K PASSED
BY THE 1ST RESPONDENT AND BEARING NO. HaKuKa 69
RGU DATED 29.4.2013 AS PER ANNEXURE-L PASSED BY
THE RESPONDENT NO.2 AS ARBITRARY, ILLEGAL AND
VOID AND ALSO IN VIOLATION OF ARTICLES 14 AND 16
OF THE CONSTITUTION OF INDIA; DIRECT THE
RESPONDENTS TO ALLOW THE PETITIONERS HEREIN TO
RETAIN SENIORITY ON THE BASIS OF THE PUBLISHED
FINAL SENIORITY LIST AS PER ANNEXURE-M AND
PENDING DECIION IN WRIT PETITIONS NO.28448/12,
28905/12 AND 46022/12 AND W.P. NO.19921-25/2013
BEFORE THIS COURT.
IN WP NO. 46022/2012
BETWEEN :
DR. KALAVATHI M
AGED 48 YEARS,
D/O D.MUNIYAPPA,
WORKING AS LECTURER,
DEPARTMENT OF PROSTHODONTICS,
GOVERNMENT DENTAL COLLEGE AND
RESEARCH INSTITUTE FORT,
VICTORIA HOSPITAL CAMPUS,
BENGALURU - 02.
... PETITIONER
12
(BY SRI. VIKAS ROJIPURA., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF HEALTH AND
FAMILY WELFARE
(MEDICAL EDUCATION),
ROOM NO.341, 3RD FLOOR,
VIDHAN SOUDHA, BENGALURU - 01.
2. GOVERNMENT DENTAL COLLEGE AND
RESEARCH INSTITUTE
FORT, VICTORIA HOSPITAL CAMPUS,
BENGALURU - 02,
REP. BY ITS DEAN CUM DIRECTOR.
3. DR. ANOOP NAIR
S/O SRI. S K NAIR
AGED ABOUT 32 YEARS,
WORKING AS LECTURER
DEPARTMENT OF PROSTHODONTICS,
GOVERNMENT DENTAL COLLEGE AND
RESEARCH INSTITUTE FORT,
VICTORIA HOSPITAL CAMPUS,
BENGALURU - 02.
4. DR. RESHMA KULKARNI
AGED ABOUT 36 YEARS,
WORKING AS LECTURER DEPARTMENT
OF PROSTHODONTICS,
GOVERNMENT DENTAL COLLEGE AND
RESEARCH INSTITUTE FORT,
VICTORIA HOSPITAL CAMPUS,
BENGALURU - 02.
5. DR. NAGARANJINI PRAKASH
AGED ABOUT 32 YEARS,
13
DEPARTMENT OF
PROSTHODONTICS,
GOVERNMENT DENTAL
COLLEGE AND
RESEARCH INSTITUTE FORT,
VICTORIA HOSPITAL CAMPUS,
BENGALURU - 02.
... RESPONDENTS
(BY SRI. T.P. SRINIVASA., PRL.GA FOR R1;
SRI. YOGESH NAIK, ADVOCATE FOR R2;
SRI. P.S. RAJAGOPAL, SENIOR ADVOCATE FOR
SRI. K. PUTTEGOWDA, ADVCOATE FOR R3;
SRI. AJOY KUMAR PATIL, ADVCOATE FOR R4;
SRI. PUTHIGE R. RAMESH., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUION OF INDIA PRAYING TO CALL FOR
THE RECORDS RELATING TO OFFICIAL MEMORANDUM
NO. GDCRI/EST (1)/06/2011-12 DATED 3.8.12
ANNEXURE-P ISSUED BY THE R2 AND QUASH THE SAME
IN SO FAR AS IT RANKS THE PETITIONER AT NO.6 AND
THE R3, 4, & 5 AT NO. 3, 4 AND 5 RESPECTIVELY. IN THE
"DPEARTMENT WISE FINAL GRADATION LIST OF
TEACHING STAFF OF ASSO PROF/ASST PROF AND
LECTURERS OF GDCRI, BENGALURU AS ON 1.8.12
DEPARTMENT OF PROSTHODONTICS-7" APPENDED
THERETO.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED ON 28.10.2021 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THIS COURT
MADE THE FOLLOWING:
14
ORDER
The dispute in these writ petitions is about inter se seniority amongst Lecturers with Government Dental College and Research Institute, Bengaluru [for short, 'the GDC'] in the departments of Prosthodontics and Oral Maxillo Facial Surgery. If one set of these Lecturers is absorbed while on deputation from the Department of Health and Family Welfare Department via the Department of Medical Education, State of Karnataka, the other set of Lecturers is directly recruited by the GDC. The lecturers have filed multiple writ petitions calling in question the Seniority List/s and other orders because of subsequent events over a period of time, and for reasons of convenience, these lecturers are referred to by their names in the course of this Order.
2. This Court must record the necessary and undisputable facts chronologically before recording the 15 details of each of the petitions, the rival contentions and the questions that arise for consideration. These facts would be:
26.08.2000 Dr. Kalavathi [the petitioner in WP No. 46022/2012 and 39341/2019] is selected as a Dental Health Officer with the Department of Health & Family Welfare when she was only a graduate in Dental Science.
21.09.2005 Dr. P Hema Mythily1 [the petitioner in
WP No. 28905/2012], who is
appointed as a Dental Health Officer on 12.01.2005, is sent on deputation to the Department of Medical Education for further deputation to GDC as a 'Lecturer' in the 1 Dr. Hema Mythily has completed her Post Graduation in 2001; and her probation is declared on 21.02.2008 w.e.f. 03.02.2007 while on deputation 16 Department of Oral and Maxillo Facial Surgery. .
16.11.20062 GDC is registered as a Society under the provisions of the Karnataka Societies Registration Act, 1960 with its Rules and Regulations, Bylaws and Pay and Recruitment Rules.
09.05.2007 Dr. Kalavathi M3 , is sent on deputation as a 'Lecturer' with GDC, with the Department of Prosthodontics via deputation to the Department of Medical Education as in the case of Dr. P Hema Mythily.
2 It appears that there is an error in mentioning the date [it is mentioned as 15.11.2007] in the Letter addressed by the Secretary, Department of Health and Family Welfare to the Registrar of Societies for registration of the Society. 3 Dr. Kalavathi M., who is appointed as District Health Officerwith the Department of Health and Family Welfare, is deputed as 'In service' candidate to complete post graduation in the year 2004 and she has completed Post-graduation in September 2007 17 25.07.2007 The DCI has notified regulations called DCI Revised BDS Course Regulations 2007. These Regulations, insofar as the qualification for Tutors, has prescribed Degree in BDS with a minimum work experience of 1 year teaching, and as regards Lecturers, the minimum qualification is MDS in the concerned subjects.
19.05.2008 Dr. Nagaranjini Prakash, Dr.
Reshma Kulkarni and Dr. Anoop
Nair are appointed by direct
recruitment as lecturers with the
Department of Prosthodontics. Dr.
Mamatha Shri is appointed as
Lecturer with the GDC in the
18
Department of Oral Surgery.4
26.08.2008 The State Government by its order
dated 26.12.2007, had transferred
all the teaching staff with the
Department of Medical Education to
autonomous institutions including
GDC. However, with the 21 teaching
staff in the cadre of Professors/
Assistant Professors/ Lecturers with the GDC exercising the option for absorption [this does not include Dr. Kalavathi or Dr. P Hema Mythily], the Government order dated 26.08.2008 is issued absorbing this teaching staff with the GDC.
4
These parties are respondents in the corresponding writ petitions filed by Dr. Kalavathi and Dr. Hema Mythily, and they have also filed their own writ petitions which are to adverted later 19 10.09.2008 The director of GDC has written to the Department of Health and Family Welfare requesting for absorption of 15 Dental Health Officers on deputation with GDC [including Dr. Kalavathi or Dr. P Hema Mythily] while giving the details of the sanctioned posts and explaining the circumstances in which certain posts have been filled up by Walk-In-
Interviews.
31.08.2009 The Department of Health and
Family Welfare has issued Official
Note stating that because the
department requires the services of Dental Health Officers on deputation, the request for absorption of these officers is 20 rejected 10.10.20095 The Director of GDC has once again written to the Department of Health and Family Welfare giving the details of sanctioned posts and stating that because of urgency certain vacant post have been filled up, but insofar as the 15 Dental Health Officers on deputation with GDC as lecturers, they have completed more than two years of satisfactory service and they are duly qualified, and as such, they can be granted Change in cadre and observed with the GDC.
27.10.2009 The Dental Health Officers on
deputation with GDC have submitted
another representation with the
5
As seen from a copy of this Letter in the original file handed over by the Principal Government Advocate that the reference to Change in cadre is left out 21 office of the Hon'ble CM requesting for absorption of their services with the GDC. The original of this representation, which is part of the file that is handed over by the learned Principal Government Advocate, is seen but it is not obvious that this request is signed either by Dr Kalavathi or Dr. P Hema Mythily. However, it is signed by 5 others who are on deputation with the Department of Periodontics and Conservative Dentistry.
24.11.2009 The Department of Health and
Family Welfare has issued
notification for repatriation of the Dental Health Officers/ Medical Officers sent on deputation and 22 calling upon them to report to duty with the department. The names of Dr. P Hema Mythily Mythily and Dr Kalavathi are at Sl. No.175 and 164 respectively in the list appended to this notification. However, immediately thereafter different correspondences have been addressed by certain ministers to recall this notification on the ground that the recognition of the GDC would be in jeopardy if the Dental Health Officers on deputation are called 05.12.2009 The Director of GDC has once again written to the Department of Health and Family Welfare stating that to avoid cancellation of recognition by 23 the DCI, certain vacant posts have been filled in by Walk-in interview, and out of the remaining 17 posts, 15 posts are occupied by Dental Health Officers who are on deputation from this department.
These officers are duly qualified, and they have worked for more than two years satisfactorily; their services must be absorbed with GDC. [There is a similar letter addressed by the Director of GDC to the Department of Health and Family Welfare on 07.07.2009] 09.12.2009 The Director of GDC has written to the Department of Health and Family Welfare stating that, if for any reason, the Dental Health Officers on 24 deputation cannot be released for absorption with the GDC, they may be continued for a period of six -
eight months as minimum six
months would be required to make
fresh recruitment
10.12.2009 The Department of Health and
Family Welfare has issued orders
permitting certain financial
allowances to the Medical Officers
and Dental Health Officers on
deputation with different
institutions. These officers have
been permitted allowances such as
Rural Service Allowance, Post-
graduation Allowance, Emergency
Surgery Allowance, Super-specialty Allowance and certain allowance 25 even to the officers on deputation in Urban Centers subject to certain conditions 19.12.2009 Some of the Dental Health Officers on deputation with GDC have again submitted a representation with the office of the Hon'ble Chief minister for considering the request of GDC for their absorption stating that the file has remained with the Department of Medical Education.
On perusal of the original file, it is seen that about eleven persons have signed but it cannot be definitely discerned that either Dr Kalavathi or Dr P Hema Mythily have joined in this request.
28.01.2010. The Department of Health and 26 Family Welfare Sciences has issued order on this date stating that those officers whose services have been repatriated and have not reported to duty are permitted to continue on disputation until 30th of April 2010 04.05.2010 The Director of GDC has written to the Department of Health and Family Welfare stating, amongst others, that the Dental Health Officers are in the pay scale of Rs.14050-25050. If these officers are granted change in cadre they will be entitled to AICTE pay scale, and if the offices on deputation are absorbed, because they are being given different allowances, there will be no additional financial burden 27 10.06.2010 The Department of Health and Family Welfare has written to the Dean - cum - Director of GDC calling for particulars of; and undertaking from, the Dental Health Officers on deputation as lecturers. These details have been forwarded along with the undertaking by the Dental Health Officers on 11.06.2010 [along with the undertaking executed Dr. P Hema Mythily and Dr Kalavati]. In the meanwhile, consequent to the notification issued for repatriation by the Department of health and family welfare, and in the case of those who participated in counselling, the officers have been given posting but this does not extend to either Dr 28 Kalavathi or Dr Hema Mythily 27.10.2010 The State Government Cabinet6, on this day has taken the decision to accord sanction for absorption of 14 Lecturers, including Dr. Kalavathi and Dr. P Hema Mythily, with the GDC.
27.04.2011 The State Government has issued corrigendum to the orders dated 27.10.2010 stating that the 6 It is seen from the note approved for Cabinet decision on absorption of the Dental Health Offices on deputation with GDC that such note is in the light of the opinions from the Department of Personnel and Administration [DPAR] and Department of Finance. The Department of Finance has said that granting absorption to some of the Dental Health Officers without regard to the seniority of those who have continued, could be construed as promotion and therefore Rules may be framed for in-service absorption with option being extended to all the officers with the department. The DPAR has opined that the officers could be absorbed on terms such as the officers exercising the option and giving up their lien with the parent department observing that Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977 cannot be invoked because GDC is not a government department and there could be absorption under this Rule only if the two departments (the parent department and GDC) are government departments 29 absorption of the lecturers who were on deputation to the Dental College is in Public Interest.
29.08.2011 GDC has prepared the tentative Gradation List [Seniority List] of the teaching staff in the Department of Prosthodontics and Oral Surgery.
Dr. Kalavathi and Dr. P Hema Mythily are placed above the direct recruits - Dr. Nagaranjini Prakash, Dr. Reshma Kulkarni, Dr. Anoop Nair, Dr. Mamathi Shri and Dr. Janitha J - in the corresponding lists 06.07.2012 The Director, GDC has circulated another temporary Gradation List placing the Direct Recruits above the lecturers on deputation, and calling for objections 30 03.08.2012 The Director, GDC has published the final Gradation List [Seniority List] in terms of the temporary gradation list dated 06.07.2012. Dr. Kalavathi has filed objections dated 10.07.2012.
09.04.2013 The State Government, because its different Medical Institutions are converted into District Teaching Institutions and because the employees with the Department of Medical Education are sent either on Other Duty [OOD] or Deputation or on Redeployment, has issued orders stipulating that if, as of the date these employees were so sent, they were duly qualified to be appointed as 'Lecturers', their absorption with the respective institutions must be 31 from the date of their deputation and they must be placed in the seniority list above those directly recruited after they were so sent.
29.04.2013 The State Government has issued this Order as a corrigendum to the Government Order dated 09.04.2013 stating that GDC shall also be in the list among the institutions to which the aforesaid Government Order would apply 13.05.2019 The State Government has issued Corrigendum withdrawing the earlier Corrigendum dated 27.04.2011 which stated that the absorption vide Government Order dated 27.07.2010 was in Public Interest 21.06.2019 Dr. Reshma Kulkarni, who was 32 working as an Assistant Professor, is promoted as a professor based on the Final Gradation List dated 03.08.2012 The details of the different writ petitions that are disposed of by the Order.
3. W.P. No.46022/2012: Dr. Kalavathi has filed this writ petition calling in question the seniority list [Gradation list] dated 03.08.2012 because Dr. Nagaranjini Prakash, Dr. Reshma Kulkarni and Dr. Anoop Nair [the third to fifth respondents in this writ petition] are placed above her. As aforesaid, GDC has published two provisional seniority lists in the year 2011 and 2012. In the first provisional list, Dr. Kalavathi is placed above, but with the publication of second provisional seniority list in the year 2012, Dr. Nagaranjini Prakash, Dr. Reshma Kulkarni and Dr. Anoop Nair are placed above Dr. Kalavathi. As such, 33 Dr. Kalavathi has filed this petition calling in question the Seniority List dated 03.08.2012.
4. W.P. No.39341/2019: On 27.04.2011, the State Government has issued corrigendum to its order dated 27.10.2010 [the order of absorption] holding that absorption of Dr. Kalavathi M and Dr. P Hema Mythily [and twelve others] is in public interest. However, the by the Corrigendum dated 13.05.2019 this inclusion is withdrawn. Dr. Kalavathi has therefore filed this second writ petition in W.P. No.39341/2019 impugning the corrigendum dated 13.05.2019.
5. W.P. No.28905/2012: Dr. P. Hema Mythily has filed this writ petition calling in question the final Gradation List dated 03.08.2012 insofar as she is placed below Dr. Mamatha Shri V [the third respondent in this writ petition] with the prayer for re-fixing their seniority inter se considering the services served by her as a 'Lecturer' with the Department of Oral Maxillo 34 Facial Surgery, GDC from 21.09.2005. Dr. P. Hema Mythily's case is that she has completed post graduation in Oral Maxillo Facial Surgery in the year 2001. She is appointed as 'Dental Health Officer' with the Department of Health and Family Welfare Sciences on 12.01.2005 and she is deputed to the post of a 'Lecturer' with the Department of Oral Maxillo Facial Surgery on 21.09.2005. She is asked to file a declaration [in the prescribed Form] to opt for absorption, and she has filed such declaration on 01.08.20087. Dr. Mamatha Shri V. is appointed through direct recruitment as a 'Lecturer' with the Department of Oral Surgery only on 19.06.2008 and therefore, she cannot be placed above her in the Seniority List.
7
A copy of this is option is placed as an annexure, but it seen from the original file [which is handed over by the principal Government Advocate] that Dr. P Hema Mythyili has filed another undertaking exercising the option for absorption consequent to the communication dated 10.6.2010 35
6. W.P.No.15740/2013 and W.P. No.19688/2013: Dr. Reshma Kulkarni and Dr. Anoop Nair have filed these petitions respectively. Dr. Reshma Kulkarni has filed the petition in WP No. 15740/2013 calling in question the impugned Corrigendum dated 27.04.2011 to the Government Order dated 27.10.2010 as it would mean Dr. Kalavathi's absorption [and absorption of thirteen others who were on deputation with GDC including Dr. P Hema Mythily] will be in public interest. Dr. Anoop Nair has also filed the writ petition in WP No. 19688/2013 calling in question the impugned Corrigendum dated 27.04.2011. This Corrigendum enables Dr. Kalavathi to claim seniority over and above them in the cadre of 'Lecturer' with the Department of Pedodontics. It is unanimously stated that these petitions would not survive because the State Government has withdrawn this Corrigendum by the next Corrigendum dated 13.05.2019, but these petitions 36 are continued because writ petitions are filed calling in question the next Corrigendum dated 13.05.2019.
7. W.P.NO.39476 / 2012 and W.P.NO.22025 / 2013: Dr. Mamatha Shri. V has filed the writ petition in WP No. 39476/2012 calling in question the impugned Order of absorption dated 27.07.2010 and the impugned Corrigendum dated 27.04.2011 [for the insertion of the expression "in public interest" in the order of absorption dated 27.07.2010]. Dr. Mamatha Shri V is appointed as 'Lecturer' in Oral Surgery with GDC on 19.05.2008, and she is aggrieved by this insertion because it enables Dr. P. Hema Mythily to claim seniority over and above the petitioner in the cadre of 'Lecturers' in the Department of Oral Maxillo Facial Surgery.
7.1 Dr. S Janitha, who is appointed directly as a 'Lecturer' in Oral Surgery with GDC on 19.05.2008 as Dr. Mamatha Shri V, has joined her in filing the writ 37 petition in W.P.NO.22025/2013. They have filed this writ petition calling in question the impugned order dated 09.04.2013 and the subsequent Corrigendum dated 29.04.2013. The State Government by the first order dated 09.04.2013 has directed all employees sent on OOD or Deputation or Redeployment from the Department of Medical Education must be deemed to be absorbed as lecturers with the respective institutions w.e.f the date of such deputation or redeployment or being sent on OOD. GDC is not mentioned in this order, but the later Government Order dated 29.04.2013 is issued to include GDC in the list of those institutions to which the benefit of the order dated 09.04.2013 was extended.
8. W.P.NO.23289/2013: Dr. Reshma Kulkarni [one of the respondents in the writ petitions in WP No. 46022/2012 and 39341/2019 filed by Dr. Kalavathi] as also filed this writ petition calling in question the 38 Government dated 09.04.2013 and the subsequent Corrigendum/Government Order dated 29.04.2013 as this would enable Dr. M Kalavathi to claim seniority based on her deputation.
9. The Details of the interim orders in these petitions:
9.1 On 13.03.2013 in WP NO. 46022/2012, this Court has stayed the impugned final gradation list dated 03.08.2012 on the condition that such interim order shall not impede the consideration of the Direct Recruits for promotion. A similar order is not there in WP No. 28905/2012, and the interim order dated 13.03.2013 in WP NO. 46023/2012 is continued from time to time until it is made subject to further orders.
As such, the promotions in the Department of Prosthodontics is made subject to the orders of this Court in these petitions. Further, with the petitions being clubbed, on 05.06.2015 it is once again reiterated 39 that there should be no impediment to consider the claims for promotion. On 27.04.2018, this Court has permitted the State to decide on granting promotions after the DPC is convened.
9.2 This Court on 22.06.2018, has recorded that the State has considered the proposal for promotion and orders are yet to be issued. It is further recorded that formal orders of promotions are not issued because of the Election Code of Conduct. Dr. Reshma Kulkarni is promoted as a professor on 21.06.2009 based on the impugned Seniority List dated 03.08.2012, and if Dr. Kalavathi succeeds in her petitions, this promotion will be in jeopardy.
10. It emerges from the above that the challenge in these writ petitions is to the following Government Order/Corrigendum and Gradation/Seniority lists of those who are either absorbed or appointed by direct recruitment as lecturers with GDC in the Departments 40 of Prosthodontics and oral surgery. The concerned is granted promotion consequent to the impugned Gradation/Seniority list but subject to the outcome of these writ petitions. The details of the impugned Government Order/Corrigendum and Gradation/Seniority Lists in the corresponding writ petitions are as follows:
WP No.39476.2012 [a] The Government Order 27.10.2010 insofar as the absorption of Dr. P Hema Mythily amd the Corrigendum dated 27.04.2011 issued to include the expression that the absorption of the concerned vide the order dated 27.07.2010 is 'in public interest'.
WP No.15740/2013 and 19688/2013 [b] The Corrigendum dated 27.04.2011 issued to the Government Order dated 27.07.2010 to include the expression that the absorption of the concerned 41 vide the order dated 27.07.2010 is 'in public interest'.
WP No.46022/2012 and 28905/2012 [c] The Gradation List dated 03.08.2012 insofar as Dr. Anoop Nair, Dr. Reshma Kulkarni and Dr. Nagaranjini Prakash are placed above Dr. Kalavathi M in the Department of Prosthodontics, and Dr. Mamatha Shri V is placed above Dr. P Hema Mythily in the Department of Oral Surgery.
WP No. 22025/2013 and 23289/2013 [d] The Government Order dated 09.04.2013 issued stipulating that all those who have been sent on OOD or Deputation or Redeployment as lecturers from the Department of Medical Education the different institutions, and who have the requisite qualifications, must be treated as absorbed from the date of deputation and placed accordingly 42 above those who are appointed by direct recruitment subsequently and the order dated 29.04.2013 stipulating that GDC will be one of the institutions listed in the Government Order dated 09.04.2013.
WP No. 39341/2019
[e] The Government Order dated
13.05.2019 withdrawing the
Corrigendum dated 27.04.2011 and
the order dated 21.06.2019 granting promotion to Dr. Reshma Kulkarni
11. The submissions of Sri D R Ravi Shankar, the learned Senior Counsel for Dr. Kalavathi M in the petition in WP No. 39341/2019:
11.1 Dr. Kalavathi's deputation in the month of July 2007 with GDC as a lecturer, as against a permanent post, was in the backdrop of the indisputable fact that the GDC, which was recently registered as an autonomous institution, required to have requisite lecturers on its permanent rolls to ensure 43 continuance of recognition from the DCI. The Director of GDC has written to the State Government on 10.10.2009 and 05.12.2009 for permission to absorb the services of Dr. Kalavathi [and other lecturers] who were on deputation citing that it would be necessary to ensure continuation of DCI's recognition for GDC. Dr. Kalavathi is offered option for absorption, and she has indeed exercised the option. However, the State Government has passed the GO dated 27.10.2010 for absorption based on the letters of the Director of GDC.
Thus, Dr. Kalavathi's absorption is not on her request but on the request of the Dean - Director, GDC. Crucially, Dr. M. Kalavathi's absorption with GDC is not subject to the condition that her services as a Lecturer on deputation will be excluded.
11.2 The DCI Regulations [as it stood at the relevant date] only prescribed graduation in Dental Science as the minimum educational qualification for 44 the post of a lecturer in a Dental College, but these Regulations are amended with effect from 25.07.2007 prescribing post-graduation in the concerned subject as qualification for the post of a lecturer. Dr. Kalavathi, who had commenced post-graduation course as of the date of her deputation, has acquired the qualification in the month of September 2007.
11.3 It would be indisputable that Dr. Kalavathi's deputation with GDC w.e.f. September 2007 is as a duly qualified person to hold the post of a lecturer; that her deputation is primarily because of the repeated requests by the Director of GDC to ensure that the recognition by DCI is continued; that she is absorbed without any condition. If despite these circumstances, she is placed below those who are appointed only in the month of May 2008, her services from the year 2007 as a lecturer would be ignored and that would be impermissible in law. If Dr. Kalavathi's 45 services are absorbed with GDC because of the circumstances as aforesaid, the benefit of her past services cannot be denied to her in publishing the impugned Seniority list dated 03.08.2012, reckoning the date of absorption for deciding the seniority.
11.4 Dr. M. Kalavathi was deputed as a lecturer, and she is also absorbed as a lecturer. Therefore, it cannot be disputed that the post to which is deputed and the post in which he is absorbed are equivalent. If these posts are equivalent, it is settled law that the past service of an officer on deputation must be counted for seniority in the absorbed post. It will be against all rules of service jurisprudence if a person holding a particular post is observed in the same [or equivalent post] and the past service in the post before such absorption is not taken into consideration for computing seniority in the transport post. 46
11.5 In support of this proposition, reliance is placed upon the decision of the Hon'ble Supreme Court in K Madhavan and another v. Union of India and others8, and this Court's attention is drawn to the following in paragraph 21.
"It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transport post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this court that it is it is a just and wholesome principle commonly applied where persons from different sources are crafted to serve in a new service that the existing length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadre".
8
1987 (4) Supreme Court Cases 566 47 Further reliance is also placed upon the next decision of the Hon'ble Supreme Court in Sub- Inspector Rooplal and another v. Lieutenant Governor, Delhi and others9 to contend that this proposition is reiterated, and attention is drawn to the following in paragraph 17 of this decision:
"In law, it is necessary that if the previous service of the transferred official is to be counted for seniority in the transferred post, then the two posts should be equivalent".
11.6 The GDC had also duly published the first temporary seniority list on 29.09.2011 placing Dr. Kalavathi above Dr. Nagaranjini Prakash, Dr. Reshma Kulkarni and Dr. Anoop Nair, but in the subsequent temporary seniority list dated 06.07.2012, ignoring the Dr. Kalavathi's rights to past service, the aforesaid are placed above her. The impugned final Seniority list is also published on 03.08.2012 placing Dr. Kalavathi 9 2000 (1) Supreme Court Cases 644.
48below the aforesaid. If Dr. Kalavathi's services are absorbed with GDC because of the circumstances as aforesaid, the benefit of her past services cannot be denied to her in publishing the Seniority list reckoning the date of absorption for deciding the seniority and therefore, this Court must intervene.
12. The submissions of Sri Vikas Rojipura, who also appears for Dr. M. Kalavathi but in her petition in WP No.46022/2012 12.1 Absorption into service by the very nature of things implies that an employee, who is not holding a particular post in his/her own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department, is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he/she becomes a holder of that post in his/her own right and loses his/her lien on his/her parent post. This is canvassed as redoubtable in view of the enunciation by 49 the Hon'ble Supreme Court in Devdutta and Others v. State of M.P. and Others,10 and reliance is placed on the following portion of the judgment:
"8. Now coming to the question of seniority, the term "absorbed" in Service Jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post......"
As such, Dr. Kalavathi's absorption is not contrary to law, and in fact, her absorption is a recognized mode, and in that event her services as a lecturer cannot be ignored for the purposes of seniority. 10 1991 Supp (2) SCC 553 50 12.2 It cannot be denied that the decision to absorb Dr. M. Kalavathi and others is a policy decision because of peculiar circumstances such as that GDC is registered as an autonomous institution viz., as a 'Society' under the provisions of the Karnataka Society is Registration Act, 1960, that GDC was relying upon teaching staff brought on deputation from the concerned Departments of the State Government, and those from the Department of Medical Education were already absorbed; that the recognition by DCI would have been jeopardized if requisite number of staff were not on permanent rolls; that the Director of GDC had repeatedly written to the State Government stating inter alia that the absorption of Dr. M Kalavathi [and 13 others] was necessary to ensure the continuation of recognition by DCI and that though Walk - in interviews were held, the requisite teaching staff could not be recruited.
51
12.3 In the cases of policy decision to absorb employees, the scope of judicial review is confined to those cases where it can be shown that the absorption is either unfair or unreasonable. In the present case, because of the peculiarities and because it would be salient that when an employee on deputation is absorbed loses lien with the parent department and the past service should not generally be denied on deputation, this Court must quash the impugned Seniority list dated 03.0.8.2012 which tantamount to denying the post service as a lecturer on deputation.
12.4 In support of the proposition that when the absorption is as a matter of public policy, the scope of judicial review is confined to cases where it is unreasonable or unfair, reliance is placed upon the following from the decision in R.S. Makashi and Others v. I.M. Menon and Others11:
11
[1982] 1 SCC 379 52 It is open to the rule-making authority to take a note of the relevant circumstances obtaining in relation to each department and determine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned departments and the courts will only insist that the rules so formulated should be reasonable, just and equitable. Judged by the said test of reasonableness and fairness, the action taken by the Government in equating the clerical personnel which had rendered two years' regular service in other departments with the temporary Supply Inspectors of the CFD and in directing as per impugned Rule 4(a) that their inter se seniority shall be determined with reference to the length of service calculated on the basis of the said equation cannot be said to be in any way discriminatory or illegal."
13. The submissions of Sri. Vijaykumar B Bajanthri12, the learned counsel who appears for Dr. P Hema Mythily in WP No. 28905/2012. 12
Sri Vijaykumar B Bajanthri, while adopting the submissions by Sri. D R Ravishankar and Sri. Vikas Rojipura, has the aforesaid additional submissions 53 13.1 The arguments canvassed on behalf of Dr. M Kalavathi would apply even to Dr. P Hema Mythily's claim because her deputation is in the month of September 2005 which is much before the GDC is registered as an autonomous body and she had completed her post-graduation even before her appointment as a Dental Health Officer in the month of January 2005. It is emphasized that she completed her post-graduation in the year 2001.
13.2 The Dean - Director of GDC has written to the State Government for absorption of Dr. P Hema Mythily's services essentially because her services as a lecturer on deputation was satisfactory and if her services are not absorbed, the recognition from DCI would be in serious jeopardy. The consistent view of this Court has been that when the absorption is based on the request by the Institution/Department in whose services there is absorption, it must be presumed to be 54 in public interest. In this regard reliance is placed upon the decision of this Court in W.P.No.2523/2007 which is decided on 22.02.2008, and attention is drawn to the following:
In the statement of objections filed by the respondent - corporation, it is specifically stated that the services of petitioner came to be observed on the ground that there is deficiency in the assistant surgeon posts and qualified doctors in the respondent- corporation hospitals. Though there was a request by the petitioner for is absorption in the respondent-Corporation, the government in its order dated 10.5.1999, has mainly absorbed the services of the petitioner on the ground of public interest. On technical grounds, the respondent shall not denied a benefit of service rendered by the petitioner from the year 1979 to 1999 i.e. for a period of two decades.
13.3 Dr. P Hema Mythily's absorption is based on the option to consent for absorption, and this Court, when absorption is based on the option extended, has opined that the exercise of absorption 55 must be regarded as being in public interest. In this regard reliance is placed upon the decision of Division Bench of this Court in W.P. Nos.327 and 328/1967 which is decided on 15.04.1970, and reliance is upon the following paragraph:
"Moreover, the exercise of option given by the Government to an official to serve in one section or another section, or in one Department or another Department, does not amount to a request by him for a transfer from one section or department to another.
When such option was given by the Government itself, a transfer, if any, from one section or Department to another, in consequence of exercise of such option, must be regarded as being in public interest."
14. The submissions of Sri Ajoy Kumar Patil, the learned counsel who appears who appears for Dr.Reshma Kulkarni [a Direct Recruit] 14.1 Sri Ajoy Kumar Patil [and later by Sri P S Raj Gopal, the learned Senior Counsel for Dr. Anoop 56 Nair] prefaces his submissions with the contention that the absorption of Dr M. Kalavathi may not have been challenged, but it would be open to Dr. Nagaranjini Prakash, Dr. Reshma Kulkarni and Dr. Anoop Nair to demonstrate that if her absorption is not in accordance with law, she cannot have a march over the aforesaid in seniority because their seniority would be affected.
14.2 With this as the preface, it is argued that at the first instance, the service of Dr. Kalavathi is lent to the Department of Medical Education and subsequently by order dated 10.05.2007 she is deputed as a Lecturer with GDC with effect from 9.5.2007. The State cannot deny that when a Dental Health Officer with the Department of Health and Family Welfare is sent on deputation with GDC via their services being lent to the Department of Medical Education, there must be change in cadre as contemplated under Rule 16(a)(2) of the General Recruitment Rules. Therefore, in 57 the case of Dr. Namitha Shanbog, who was similarly placed as Dr. M Kalavathi, the Government order dated 14.08.200713 is issued first permitting change in cadre and permitting deputation under Rule 6 of the Seniority Rules 1957 with the stipulation that she must be placed at the lowest position in the seniority list.
14.3 The representation dated 19.12.2009, submitted on behalf of the Lecturers on deputation with GDC, demonstrate14 that even Dr. Kalavathi was aware 13 This Government order dated 14.08.2007 is produced as Annexure-R4/2 with the Statement of Objections in W.P.No.39341/2019.
14
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ಎರಡು ವಷ#ಗ%ಂದ ಸ ಾ#& ದಂತ ಮ'ಾ (ಾ)ಲಯದ*+ ,-ೕಜ ೆ ೕ/ೆ0ೆ
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ಸಮಯದ*+ ನಮ8ನು ಸಂ ೆ9ಯ*+:ೕ *ೕನ0ೊ%ಸುವ ದೃ< =ಂದ ಈ ?ಾ* ಇದ6 Aೋಧಕ ಹು(ೆ6ಗಳನು ಭ5# !ಾEರುವ Fಲ+. ಈ ಾರಣFಂ(ಾ ಈ ಪತH ೆ ಅನುಭಂJ ರುವ ಪK ಯಂLೆ ಆ/ೋಗ) ಮತು ಕುಟುಂಬ ಕ3ಾ)ಣ ಇ3ಾ?ೆ=ಂದ ,-ೕಜ ೆ ೕ/ೆ0ೆ Aೋಧಕ/ಾ ೆಲಸ ,ವ#Nಸು5ರುವ ನಮ8ನು ಆOಾ ಸಂಬಂJ ದ Aಾಗಗಳ*+ PಾಶRತ4ಾ ಈ ಸ ಾ#& ದಂತ ಮ'ಾ (ಾ)ಲದ*+ ?ಾ* 58 of the fact her parent department being the Department of Health and Family Welfare, which will have no teaching posts, there will have to be a change in cadre of a teaching staff with the Department of Medical Education and on such change in cadre, she could be absorbed with the GDC as a Lecturer. Dr. Kalavathi's absorption is without change in cadre. As such, her absorption is impermissible in law, and if the very absorption is impermissible, she cannot have a march over the Direct Recruits.
14.4 Dr. Kalavathi's absorption is on her request, and the canvass that her absorption is based on the request by the Director - Dean of GDC is belied by indisputable circumstances. To underline this contention, reliance is placed upon copies of the representations, including the representation dated ಇರುವ Sೊಧಕ ಹು(ೆ60ೆ ,ಯ!ಾನು ಾರ *ೕನ0ೊ%ಸSೇ ೆಂದು ತಮ8*+ ೋರುLೇ4ೆ.
5910.10.200915, submitted on behalf of all those Lecturers who were on deputation with GDC to the Hon'ble Chief minister with a request for absorption. It is strenuously argued that the contention that the absorption is only on the request made by the Dean-Director of GDC is wholly erroneous and unjustifiable.
14.5 Dr. Kalavathi's absorption must necessarily be construed as absorption as contemplated under Rule 6 of the Seniority Rules 1957 in the light of the fact that even Dr. Kalavathi M has requested for change in cadre and for subsequent absorption. The canvass that her absorption is not under the aforesaid Rules, but as a matter of state policy to secure 15 This representation dated 10.10.2009 reads as under:
" ೕ*ನ ಷಯ ೆ 'ಾಗೂ ಉ3ೆ+ೕಖ ೆ ಸಂಭಂJ ದಂLೆ, ನಮ8 ೋ& ೆಯ ೕ/ೆ0ೆ Lಾವ ನಮ8 ವೃಂದ ಬದ3ಾವUೆಯ ಕಡತ ಸಂ?ೆ) 'ೆV ಎW ಡಬು+X ೧೮೨ ಎ\ ಎ\ ೨೦೦೯ F ೭.೭.೧೯ ಅನು ಸಂಪ ಟ ಸAೆ0ೆ ಮಂEಸಲು ಆ(ೇ` F6&. ಈ ಕಡತವ ಇನು 4ೈದ)bೕಯ `cಣ ಇ3ಾ?ೆಯ*+ Sಾb ಉ%Fದು6 Lಾವ ದಯ!ಾE ಸಂಪ ಟ ೆ ಮಂEಸಲು ನಂ5 ೊಳdeLೇ4ೆ. ಸೂಕ ಕHಮವನು Lೆ0ೆದು ೊಳeSೇ ೆಂದು". 60
recognition from GDC is only to deflect the unavoidable and take advantage of the provisions of Rule 6 of the Seniority Rules 1957 which protect the past service when the absorption is in public interest.
14.6 The general rule is that 'past service' must be protected when absorption is in public interest. The provisions of Rule 6 of the Seniority Rules 1957 incorporate this general rule, but proviso to Rule 6 incorporate an exception viz., when an employee requests for absorption, she/he cannot be given the advantage of 'past service'. The provisions of Rule 6 of the Seniority Rules 1957 are in consonance with the proposition enunciated by the Hon'ble Supreme Court in K P Sudhakaran and another v. State of Kerala and others.16 Dr. Kalavathi M, who has requested for absorption, cannot seek to protect her 'past service' 16 (2006) 5 SCC 386 61 despite the provisions of proviso to Rule 6 of the Seniority Rules, 1957.
14.7 The absorption of Dr Kalavathi M. will have to necessarily be considered under the Seniority Rules, 1977, and if it is asserted on her behalf that absorption is independent of these Rules, it would only mean that the absorption is not based on any rules. The Hon'ble Supreme Court in Yogendra Prasad Mandal v. State of Bihar and others17 has held that in the absence of specific provision, the appointment [absorption] in a specific post takes effect from the date of the appointment [absorption]. The Hon'ble Supreme Court has emphasized this proposition in a case where certain employees were rendered surplus because of the decision to close down a corporation under the aegis of the Bihar Forest Department and the decision to absorb the surplus employees with the Forest Department led 17 (1998) 3 Supreme Court Cases 137 62 to the question whether their past service with the corporation must be considered. Notwithstanding the finer differences in factual matrix, this proposition must apply in all fours, and Dr. Kalavathi M. can only claim seniority from the date of her absorption.
15. The submissions by Sr. Chandrakanta Goulay, the learned counsel who appears for Dr. Mamatha Shri and Dr. S Janitha:
15.1 The categorical submissions are that the following are additional canvass to supplement Sri Ajoy Patil's submissions as against the very absorption and the right to claim march over the direct recruits. It is emphasized that unlike in the case of absorption of Dr. M Kalavathi, the absorption of Dr. P Hema Mythily is called in question in WP No.39476/2012. However, the principal canvass is that if it is demonstrated that the absorption itself is impermissible in law [for the reasons canvassed by Sri. Ajoy Kumar Patil], this Court must hold that the Dental Health Officers who were 63 absorbed with GDC cannot have a march over the seniority of those who have been appointed by direct recruitment.
15.2 The benefit of absorption is granted to about 144 doctors working in six medical colleges despite stiff objections by the Department of Health and Family Welfare and the fact that request for absorption by certain others working with Bangalore Medical College and Research Institute was rejected. This decision to reject the request is challenged before the Karnataka State Administrative Tribunal by those whose request for absorption, and ultimately the concerned questions are considered by a Division Bench of this Court in W.P.Nos.12029-2037/201118 and connected matters.
18
These writ petitions are decided on 26.09.2012, and it is stated that this order is called in question by the Hon'ble Supreme Court in SLP Nos.30604 - 30693/2013) and there is stay.
6415.3 The Division Bench has considered the question of absorption in the light of the question whether such absorption was in violation of Articles 14 of the Constitution of India, and the Division Bench has also considered the question whether there could have been absorption when the Department of Personnel and Administrative Reforms had pointed out that it would be necessary to frame rules for absorption of doctors from the Department of the State Governments to autonomous Institutions. The Division Bench has held as follows:
"............ There should be Rules prescribing the criteria for such absorption so that all eligible persons are considered on merits and observed. Now it is in the absence of such rules that power is exercised by the authorities. It has been done according to their whims and fancies which is in the face of articles 14 and 15 of the Constitution of India. Therefore, we are of the view that, it is proper to issue a direction to the government to frame rules prescribing criteria and then call for 65 applications and then consider their application for absorption. That will put an end to all controversies......"
Even in the present case the Department of Personnel and Administrative Reforms has opined that rules must be framed before absorption, but the absorption is made without any rules. As such, the absorption of Dr. P. Hema Mythily must be quashed in allowing the writ petition in W.P. No. 39476/2012.
16. The submissions by Sri. P S Rajagopal, the learned senior counsel who appears for Dr. Anoop Nair.
16.1 The law on whether past or previous service must be taken into account in reckoning seniority when two services are distinct and separate is stated by a Division Bench of this Court in V S Richards v. The state of Karnataka, represented by Secretary, Department of finance, Bangalore and 66 another19, and reliance is placed on the following Paragraph 10 which reads as follows:
"It is well settled principle of service jurisprudence that past or previous service will not be taken into account in reckoning seniority where the two services are distinct and different. Further seniority is a comparative concept between employees who are equally circumstanced. Where the previous service is neither in the same class or grade, nor in an equivalent class or grade, the question of counting search previous service does not arise. Therefore, even assuming that rule 6A applied, the period of service as Sargent in the Indian Air Force cannot be counted as seniority in the cader of Commercial Tax Inspectors as it is not equivalent post."
16.2 Dr Kalavathi was working in the cadre of Dental Health Officers with the Department of Health and Family Welfare, and her deputation as a lecturer with GDC is to a different cadre, and this is demonstrated by the following:
19
ILR 2003 Kar 3582 67 [a] Different Qualification. The minimum Educational Qualification for Dental Health Officers, according to the relevant Rules, is only BDS, but for lecturers it has been MDS for a long time.
[b] Different Pay Scales: For Dental Health Officers the pay scale was only Rs. 14050 - 25050 as of prior to absorption. For lecturers, AICTE pay scale is accorded. Initially AICTE pay scale was Rs.8000/- - Rs.13,500/- [up to 01.04.2011] but thereafter AICTE Pay Scale is revised to Rs.15,200 - Rs.39,100/-.
[c] Different Duties. If the lecturers have to teach, the Dental Health Officers do not teach. [d] Different Employers - If as Dental Health Officers they were employed with the Department of Health and Family Welfare, on deputation they were with GDC which was hived as an 68 autonomous institution in 2006, with its own Rules and Regulations/bylaws.
16.3 These circumstances establish that Dr M. Kalavathi, until her absorption with GDC, was not equally circumstanced as those who are directly recruited in the year 2008, and in that event, to reckon her service from the period of deputation for the purposes of seniority would be impermissible in law. Dr. Anoop Nair has not called in question Dr. M. Kalavathi's absorption, but it would be open to point out that the absorption is void, and if Dr. Kalavathi's absorption is void, she cannot have a march over the seniority of those who are recruited before the date of absorption.
16.4 GDC is constituted as an autonomous body with its own Rules and Regulations - 2005 [Rules 2005] which are in effect from 16.02.2007, and if there could be any absorption that would enable Dr M. 69 Kalavathi, or any other similarly placed person, to claim Seniority, it will have to be according to the relevant Rules and Regulations. These Rules and Regulations contemplate absorption of only those who were on rolls of GDC as of the date these Rules and Regulations are brought into force, and to bolster the submission emphasis is laid on the definition of an 'Employee' under Rule 2(g) and Rule 14. Further, the provision for absorption is only upon obtaining option from the 'existing staff' and subject to the procedure contemplated under Rule 14. The mode of recruitment as contemplated under Bylaw No. 9 and 11 [which are framed in exercise of rule 2 (r) of Rules, 2005] is by inviting applications directly or by promotion or by deputation and there cannot be any appointment by absorption de hors Rule 14.
16.5 The absorption of Dr M Kalavathi is not according to the Regulations 2005, and if the absorption 70 is not according to the Regulations 2005, the question whether the absorption is in public interest or at the behest of the absorbed employee would not arise for consideration. The employee who is absorbed outside the applicable rules, cannot seek seniority over those who are duly recruited, and in this regard, reliance is placed upon a division bench judgement of this Court in Dr Giridhar Kamalapurkar v. Dr. Venu Gopal Rao and others20. In any event, it can be demonstrated that Dr Kalavathi, who was not duly qualified to be appointed as a lecturer because she only held graduation in dental sciences, along with others has persisted with the government and through the Dean- cum-Director of GDC for absorption. These redoubtable circumstances pave way for applying the following two salient principles.
20
(2001) 3, Karnataka Law Journal, 467 71 16.6 Firstly, there cannot be two qualifications for the same post, and this would be the inevitable consequence if Dr M Kalavathi, who was not qualified as of the date of the deputation, is given the benefit of absorption from the date of deputation. Secondly, if the absorption is on the request of an official, he or she cannot have the advantage of seniority over those who all directly recruited.
16.7 The decision of the Hon'ble Supreme Court in K Madhavan and another v. Union of India and others and Sub- Inspector Rooplal and another v. Lieutenant Governor, Delhi and others supra must necessarily be considered in the light of the decision of this Court's decision in Dr C Renu Prasad, versus State of Karnataka and others21. This Court has considered the import of the aforesaid decisions when the benefit of past service was claimed for seniority on 21 ILR 2000 Karnataka. 2256 in Para 27 & 28 72 the basis that the deputation is to the same post or an equivalent post. This Court has opined that if the absorption is with a department or an organization which is under the administrative control of the same employer, and the absorption is in accordance with the applicable rules, the factors emphasized in the aforesaid decisions could be considered, but if the deputation and absorption is from the government department to an autonomous body or a society with an option, the employee must forego his/her services with the government department because the official makes a conscious decision to seek absorption outside the government.
16.8 On the issuance of Corrigendum dated 27.04.2011, it is canvassed that a Corrigendum, or an erratum, can be issued when there is a typographical error or an error of that kind. The jurisdiction to issue corrigendum cannot be exercised to alter the rights that 73 are created, and the subject corrigendum violates this redoubtable proposition. It is also canvassed that the decision to absorb vide Government order dated 27.10.2010 is taken by the Cabinet but the corrigendum dated 27.04.2011, which stipulates that the absorption is in public interest, is by the minister. The minister could not have exercised jurisdiction to issue corrigendum to a decision by the cabinet.
16.9 In fact, this Court's attention is drawn to Item No. 33 of the First Schedule of the Karnataka Government Transaction of Business Rules, 1977 to emphasise that if any cabinet decision is required to be modified or altered or revised, the file must be placed once again before the cabinet for its decision. The pith of the submission is that because the corrigendum is erroneously issued clarifying that the absorption is in public interest, the Government Order dated 13.05.2019 is issued withdrawing the inclusion. 74
17. Sri. Puthige R Ramesh, the learned Senior Counsel for the fifth respondent in W.P. No.46022/2022 filed by Dr. M Kalavathi calling in question the Gradation List dated 03.08.2012 has filed a memo comprising of concise submissions and judgments. Sri. Puthige R Ramesh, in reiteration of the different grounds urged by Sri. P S Rajagopal, contends that Dr. M Kalavathi cannot succeed in these petitions unless she can show that her deputation is in accordance with law and that her services while on deputation must be considered for the purposes of seniority, but she has failed to demonstrate these aspects. In view of the similarity in the contentions, the canvass by Sri. Puthige R Ramesh is not elaborated.
18. The statement of objections filed on behalf of the state on 13.08.2015.
18.1 This statement of objections is filed before the corrigendum is issued on 13.05.2019 75 withdrawing the incorporation of the expression, 'public interest' in the Corrigendum. It is stated at the very first instance, that the absorption of Dr Kalavati and Dr. P Hema Mythily (as also other Dental Health Officers on deputation with GDC) was because of the request made by GDC, and the absorption is after taking their willingness and undertaking for absorption.
18.2 With reference to Rule 6 of the Seniority Rules 1957, it is stated that when a person is transferred in 'public interest' from one class, or grade, of service to another but carrying the same pay or pay scale, the seniority of such person shall be determined with reference to the date of the first appointment to the class/grade from which the person is transferred. In the circumstances of the Dental Health Officers on deputation, and because several similarly placed officers were absorbed, the seniority of the absorbed officers is reckoned from the date of deputation. Presently, Sri T P 76 Srinivas, the learned Principal Government has just made over the original files
19. The submissions by Smt. Suman Baliga, the learned counsel for GDC 19.1 Dr M Kalavathi, as of the date when the concerned were directly recruited, was on deputation from the Department of Health and Family Welfare and was drawing salary in the pay scale of Rs.7400-Rs.13,120/-. Dr M Kalavathi, prior to deputation, was working as a Dental Health Officer and only possessed graduation in dental science. These circumstances show that Dr Kalavathi was in a different cadre until her absorption. Therefore, those who are subsequently appointed by direct recruitment have been placed above in the impugned Senior List.
19.2 Though the order of absorption dated 27.07.2010 did not specify that the absorption of the 77 Dental Health Officers was in public interest, it is later classified so by the corrigendum/ erratum dated 27.04.2011, and this is also one of the reasons why the services of Dr Kalavathi from the date of absorption is reckoned for the purposes of seniority.
20. The Questions framed for Consideration. In the facts and circumstances of the case, and in the light of the rival submissions, the questions for consideration should be:
[a] Whether Dr. Mamatha Shri22 and Dr. Nagaranjini Prakash, Dr. Reshma Kulkarni and Dr. Anoop Nair23 demonstrate that the absorption of Dr. P. Hema Mythily and Dr. Kalavathi M as Lecturers with the Departments of Oral Surgery and Prosthodontics, GDC respectively vide the absorption order 22 The petitioner in WP No.39476/2012 and the respondent in the corresponding petitions by Dr. Hema Mythily 23 The respondents in the writ petition filed by Dr. Kalavathi M and petitioner/s in the corresponding petitions 78 dated 27.07.2010 is contrary to settled principles of law.
[b] If the answer to the above is in the affirmative:
Should the absorption order dated 27.07.2010 insofar as Dr. Hema Mythily [which is called in question in WP No. 39476/2012] be quashed.
Or Should there be a direction to GDC to reckon the services of Dr. M Kalavathi and Dr. P Hema Mythily as lecturers on deputation until their absorption for determination of their seniority qua Dr. Mamatha Shri, Dr S. Janitha and Dr. Nagaranjini Prakash, Dr. Reshma Kulkarni and Dr. Anoop Nair in the corresponding Departments notwithstanding the Corrigendum dated 29.04.2013 which is later withdrawn by the order dated 13.5.2019.
79
[c] What orders must be made in the different writ petitions based on the findings on the aforesaid questions.
21. The Health Officers and Dental Health Officers with the Department of Medical Education and Department of Health and Family Welfare are deputed to different medical/dental institution in the State as teaching staff, and with these institutions being declared autonomous, some of these officers are later absorbed. The dispute over absorption of the medical officers, at the instance of those who continued with the Department of Medical Education, is considered by the Division Bench of this Court in W.P.Nos.12029- 2037/2011, and the Division Bench's decision is carried in appeal before the Hon'ble Supreme Court in CA No.8089-8178/2015 (SLP Nos.30604-30693/2013). It is stated that there is a stay in the proceedings before the Hon'ble Supreme Court. The reliance on this decision is 80 to emphasize that the Division Bench has frowned upon absorption without the necessary Rules in place.
22. The different posts with the GDC, other than those occupied by the officers on deputation from the Department of Health and Family Welfare via the Department of Medical Education, are filled up by Walk- in-interviews. Simultaneously with such recruitment, the Dean-cum-Director of GDC has commenced correspondence with the Department of Health and Family Welfare for absorption of the officers [including Dr. M Kalavathi and Dr. P Hema Mythily] on deputation. There are also representations by some of the officers on deputation for absorption. It could be that either Dr. M Kalavathi or Dr. P Hema Mythily, or both, have also signed at least one of the many representations submitted.
23. Though some representation [and communications] indicate that Change-in-cadre for the 81 Dental Health Officers on deputation is requested, and this was also under contemplation as a precursor to absorption (because they were initially appointed in a non-teaching cadre), there is no order granting Change- in-cadre. If some of the officers on deputation have repeatedly requested for absorption, the Dean-cum- Director has persistently pursued for absorption. The Department of Health and Family Welfare has over a period of two years refused to accept the request for absorption of the officers on deputation. In fact, this department on multiple occasions has informed GDC that the request is refused, and the Department has also issued notifications for repatriation of the Dental Health Officers and calling upon them to report to duty.
24. The Director of GDC on 9.12.2009 has communicated with the Department of Health and Family Welfare that if the Officers cannot be released for absorption they must be continued at least for a period of 6 - 8 months as GDC would require a minimum of 6 82 months to fill up the vacant posts, and the Department of Health and Family Welfare has permitted the officers on deputation to continue until 30.04.2010. On the very next date, viz., 10.12.2009, the Department of Health and Family Welfare has allowed certain allowances, which is referred to in the Note for Cabinet decision. The Director of GDC on 04.05.2010, has written to the Department of Health and Family Welfare stating that the Dental Health Officers on deputation are in the pay scale of Rs.14050-Rs.25050, and though these officers will have to be granted AICTE pay scale upon absorption, there would not be any financial burden because of the grant of different allowances.
25. The request for absorption is renewed with the Dean-cum-Director, GDC reiterating that absorption of the officers on Deputation would be necessary for continuance of recognition by DCI as no decision is taken on the earlier requests and representation. With 83 this renewal, the communications are made inter se the Department of Health and Family Welfare and the Dean-cum-Director, GDC calling for particulars of the officers who will have to be absorbed and the undertaking from them that they are willing for absorption on terms as indicated in the Communication. Dr. Hema Mythily and Dr. M Kalavathi (and others) have submitted such undertaking, and they are absorbed by the cabinet decision on 27.07.2010. This decision is after considering, amongst others, that the deputation from the Department of Health and Family Welfare was as against "open option" to all the Dental Health Officers and the following views by the Departments of Finance and Personnel and Administrative Reforms:
a) By the Department of Finance: Because the officers on depuration would be entitled AICTE pay scale (a higher pay scale), the absorption would be construed as granting promotions 84 ignoring the claims of others in the Department of Health and Family Welfare. Therefore, as a one-time measure absorption may be offered to the specialists qualified for such absorption, or otherwise, special rules may be framed for in -
service recruitment of senior specialists so that all the qualified officers in Department of Health and Family Welfare department are given an opportunity to offer themselves for selection to the posts with the Department of Medical Education and next absorption.
b) By the Department of Personnel and Administrative Reforms: The provisions of Rule 16A of Karnataka Civil Services (General recruitment) Rules 1977 contemplate absorption of officers in one department from another department but these rules do not contemplate absorption of government employees with autonomous institutions. If 85 there is a decision to absorb the officers on deputation, it must be subject to different conditions that would include a consensus between the Department of Health and Family Welfare and GDC.
26. This Court from the above must opine that the following circumstances are established as indisputable.
[a] The Deputation of the Dental Health Officers to GDC from the Department of Health and Family Welfare via Department of Medical Education is as against 'open option' to all the Dental Health Officers.
[b] The Dental Health Officers and GDC
have both pursued with the State
Government for absorption over a period of almost two years despite opposition by the 86 Department of Health and Family Welfare which had even issued orders for repatriation extending the time for reporting back to it, as also ensuring certain allowances to bring about same parity in pay/remuneration.
[c] The Cabinet decision for absorption does not refer to any Rule or Regulation in particular, nor does the note for the Cabinet decision indicate that a decision to absorb is taken in exercise of any power under a particular Rule or Regulation.
27. The GDC is registered as a Society under the Karnataka Societies Act, 1961 with its Regulations [Regulations, 2005] and relevant Byelaws24. The Regulations 2005 and Bye Laws provide for appointment by invitation and deputation, and the 24 The Bye-laws are framed in exercise of the powers conferred by Rule 2(t) of the Regulations- 2005 87 Regulations 2005 do contemplate absorption. Some of the relevant provisions of Regulations and Bye-laws are as follows:
The relevant Regulations in Regulations 2005:
Rule 2 (b): "Academic staff" means members of the staff who are wholly engaged in teaching.
Rule 2 (g): "Employee" means a person in the employment of the Institute.
Rule 2 (q): "Bye-laws", means the Bye-laws of the Government Dental College and Research institute, Bangalore framed under the Rules and Regulations-2006 of the Institute.
Rule 14 - Absorption of Staff:
Absorption of staff in the restitute shall be regulated as under
(a) The Institute shall obtain option from the existing staff when they are willing to be absorbed in the Institute or not25.
(b) The Institute may retain the staff till such time, as it may consider necessary, in spite of representations to the contra.
(c) The Institute may get personnel from the Government on deputation.
(d) Institute may appoint staff, absorb staff or request for the withdrawal of the services of the staff on the 25 The underlining is by this Court 88 recommendations of a screening committee constituted by the Governing Council for the purpose.
(e) Terms and conditions for the transfer/absorption of Government employees would be as per (G.O. No.F.D.70 SRS 77 Bangalore 27-10-1977. Some of the relevant provisions of Bye-laws Bye-law 2 (b) "Academic Staff" means any member of the stall who is wholly engaged in the Teaching or Research Program.
Bye-law 2 (g) "Employee" means any person in the service of the Institute working in any cadre or any post Bye-law 9. QUALIFICATIONS FOR APPOINTMENT:
(a) Age, experience and educational qualifications for appointment to all the posts shall be as prescribed in the Cadre and Recruitment Rules issued by the Governing Council.
The PAY AND RECRUITMENT RULES provides that:
The Posts in the Institute shall be classified as Group 'A', Group 'B', Group 'C & Group 'D' posts. The cadre strength of each category of posts are to be indicated by the Governing Council. Until a separate Rule for Cadre and Recruitment is framed, the method of recruitment, age limit and qualifications prescribed for appointment, for such categories shall be as indicated in 1) Karnataka Civil Services (General Recruitment) Rules 1977, or in the 2) Medical Council of India Regulations as the case may be. 89
28. It is obvious from the provisions of Rule 14 of the Regulations 2005 that a person on deputation from the State Government with the GDC as of the date of its registration as a Society, could be absorbed with the permission of the State Government because of the expression 'from the existing staff' in this Rule. Dr. Hema P Mythily, who was on deputation with effect from 21.09.2005, would undoubtedly be an existing staff even as of the date GDC is registered as a Society, and therefore, the decision to absorb her could be within the framework of Rule 14 of Regulations 2005. The Cabinet's decision dated 27.10.2010 must necessarily be construed in the light of the aforesaid provisions of Rule 14. Dr. M Kalavathi is sent on deputation with effect from 09.05.2007, and the GDC is registered as a Society on 16.11.2006. As such, her absorption cannot be under the aforesaid Rule and she cannot draw any support therefrom. It must be observed that Dr. M 90 Kalaathi's absorption is not challenged, and hence, this aspect may not be very germane unless her seniority is reckoned from the date of her absorption despite this difference.
29. It is argued that the Cabinet's decision to absorb Dr M Kalawati and Dr Hema Mythily must necessarily be examined in the light to provisions of Rule 6 of the Seniority Rules, 1957, and it is canvassed that if it is so examined, this Court will have to conclude that Dr M Kalawati and Dr Hema Mythily, because they have requested for their absorption, must be placed at the bottom of the concerned Gradation Lists. It is also argued that the decision to absorb Dr M Kalawati and Dr Hema Mythily cannot be sustained because they were not similarly circumstanced as the contesting respondents. In this regard, it is asserted that the pay scales for Dental Health Officers and Lecturers with GDC are different; that the nature of duties as Dental 91 Health Officers and Lecturers are different, that Dr M Kalavati was not even duly qualified as of the date of her deputation, that if the Dental Health Officers were employed with the state their absorption is with GDC, and therefore they were under two different employers as against being just an employee of the Government.
30. The provisions of Rule 14 of Regulations, 2005 contemplate absorption but without prescribing any parameter. It is undisputed that when absorption is validly made it is either in public interest or on the request of the concerned official, and this is statutorily recognised in Rule 6 of the Seniority Rules, 195726. In 26 Rule 6: The transfer (absorption) of a person is in public interest from one class or grade of a service to another class or grade carrying the same pay or scale of pay shall not be treated as first appointment to the later for purposes of seniority; and the seniority of a person so transferred shall be determined with reference to his first appointment to the class or grade from which he was transferred; Provided that, where the transfer is made at the request of the officer, he shall be placed in the seniority list of the class or grade of service to which he is transferred below all the officers borne on that class or grade of service on or before the date of the transfer..
92the absence of any parameter in Rule 14 of Regulations, 2005, it will be well served in law if the parameters of Rule 6 of the Seniority Rules, 1957 are applied when absorption is traced to Rule 14 above. This will bring in consistency with the settled proposition and enable a decision to resolve the question of seniority amongst the deputationists and direct recruits [the contesting parties herein] in line with the settled proposition. As such the question, whether Dr M Kalawati and Dr Hema Mythily must be placed above the contesting respondents is accordingly examined as also in the light of the following settled propositions on absorption and circumstances that are borne out by the records.
[a] There is no fundamental right to absorption, and it must be based on the relevant rules and regulations.
[b] Absorption implies that an employee, who has not been holding a particular post in 93 a department in his/her own right by virtue of either recruitment or promotion to that post but is holding such post either on deputation or by transfer, is subsequently absorbed in that post and looses lien on the parent post.
[c] The absorption must be when two posts are similarly circumstanced, and this facet must be considered in the light of the relevant circumstances such qualification prescribed, pay and allowances admitted, the nature of duties, whether it is inter se departments in an organization or different organizations.
[d] If the decision to grant absorption is taken by the concerned in exercise of residuary powers as a policy decision, the Courts will not interfere unless and until 94 it is shown that the absorption is unfair and unreasonable, and the norms for absorption must be decided with objectivity and fairness as the absorption could affect the seniority of others.
31. The GDC has appointed the contesting respondents by direct recruitment with the concerned departments in the month of May 2008. Thereafter, 21 teaching staff [in the cadre of Professors/Asst. Professors/Lecturers] who were on deputation are absorbed in the month of August 2008. The Dean-cum- Director of GDC in the month of September 2009 has started communication with the Department of Health and Family Welfare for absorption of 15 Dental Health Officers on deputation, including Dr M Kalavathi and Dr. Hema Mythily. It is stated by the Dean-cum-Director of GDC that absorption would be necessary to ensure that DCI could de-recognise the institution or reduce 95 seats because of the lack of requisite teaching staff on its permanent rolls. There is persistent communication by the Dean-cum-Director of GDC with the Department of Health and Family Welfare for absorption. There is also the request by Dental Health Officers, as a group, for change-in-cadre and absorption.
32. As the repeated and persistent requests by the Dean-cum-Director of GDC are borne out by the records so also the requests by the Dental Health Officers as a group. The question at this stage would be whether, notwithstanding the repeated and persistent requests by the Dean-cum-Director of GDC over almost a period of two years, this Court must opine that the absorption is because of request by Dr. Hema Mythily and Dr M Kalavathi or in public interest.
33. In service matters, public interest must essentially mean the interest of the employer, and a useful reference could be made to the enunciation by 96 the Delhi High Court that, "public interest vis-a-vis a government servant would normally be the interest of the government"27. If certain Dental Health Officers are brought on deputation when GDC was not registered as an autonomous institution and if some of these officers are absorbed [the reference is to the absorption of 21 Dental Health Officers in the month of August 2008.], and insofar as the other officers on deputation, a persistent request is made by GDC for absorption over a period of two years citing a possible de-recognition [or a reduction in seats] as the reason, this Court is persuaded to opine that the dominant hue in the decision to absorb will be that of public interest viz., the interest of GDC. This is better emphaised when examined in the contrasting position. The absorption would dominantly be on request when a few officers on their own initiative, and for their own reasons, have submitted a representation for absorption. Therefore, it 27 T.P. Mahajan v. Union of India and others - 1977 SCC Online Delhi 97 is opined that the absorption of Dr M Kalavathi and Dr. Hema must be construed as being in public interest, and because Dr. M Kalavathi's absorption is not challenged, their absorption can be disturbed, and their right to previous service on deputation for the purposes of seniority cannot be denied if it is shown that they were equally circumstanced and duly qualified as on the date of their deputation.
34. Dr. P Hema Mythily has completed her Post Graduation in Oral and Maxillo Facial Surgery in the month of March 2001. She is appointed as a Dental Health Officer with the Department of Health and Family Welfare on 12.01.2005. She is sent on deputation as a Lecturer with the Department of Oral Surgery, GDC on 21.09.2005 which is before GDC is registered as Society and an autonomous body. As of the date of depuation, she was duly qualified for appointment to the post of a lecturer. Further, it is 98 seen that Dr. Hema Mythily was teaching for more than two years as of the date of absorption, and satisfaction of service is also recorded by the concerned. She may have been appointed to a non teaching position but with her deputation she has worked as against a teaching post for over two years as of the date of absorption.
35. If the Dean-cum-Director had communicated vide the Communication dated 07.07.2009 that the officers on Deputation were on Pay Scale of 10450- 25050 [16400+5630], by the Communication dated 04.05.2010 he has opined that there would be no difference in the actual pay but for some difference because of different allowances permitted28. Perhaps 28 ಎ3ಾ+ 15 ಅನ) ೇ4ಾ ಉಪ ಾ)ಸಕರುಗಳನು Sೋಧಕ ವೃಂದ ೆ ವ0ಾ#= *ೕನ0ೊ% ದ6*+ 'ೆಚುjವ& ಭLೆ)ಗಳ ೊ ಳ0ೊಂಡಂLೆ AICTE 4ೇತನ PೆHೕp0ೆ ಒಳಪಡುವ ದ&ಂದ ತಗಲುವ 4ಾ<#ಕ 4ೆಚj 'ಾಗೂ ಸ ಾ#& ಆ(ೇಶ ಸಂ?ೆ): ಆಕುಕ :
718 'ೆVಎuಎ'ೆV 2008, F: 10.12.2009 ರ*+ ಗುಂಜೂ/ಾ5 ,ೕಡ3ಾ ದ6 ತುತು# {bLಾ| , ಭLೈ, Eಪ+}ೕ, ಾ ತ ೋತರ ಪದ 0ಾ ,ೕಡ3ಾದ Pೇಷ ಭLೆ), ಇವ ಗಳನು ಸದ& ವ)ದ)ರುಗ%0ೆ ,ೕEದ*+ ಅವ ಗಳd ತಮ8 !ಾತೃ ಇ3ಾ?ೆ=ಂದ ಆ/ೋಗ) ಮತು ಕುಟುಂಬ ಕ3ಾ)ಣ ಇ3ಾ?ೆಯ*+ ಪ~ೆಯು5ರುವ ಒಟು 4ೇತನವನು 99 unwittingly, but some parity in pay is also brought about between Dr. Hema Mythily and Dr. Mamatha Shri and Dr. S Janitha. As such, despite difference such as being employed with different employers and not being given change-in-cadre, as of the date of her absorption she was substantially similarly circumstanced as Dr. Mamatha Shri and Dr. S Janitha. Hence, her seniority cannot be denied qua these persons.
36. Dr. Kalavathi M is differently placed from Dr. Hema Mytily, and the question is should the outcome in her case be different because of such difference. In the year 2003, she is deputed as Dental Health Officer to pursue post graduation as an in-service candidate, and as of the date of her deputation viz., 9.5.2007, she was only pursuing post graduation. It is undisputed that ನಮೂF , ಒಂದು ತುಲ ಾತ8ಕ ತ Lೆಯನು (Statement) ಇದ/ೊಂF0ೆ ಲಗ5ಸ3ಾ (ೆ.
ಇವ ಗಳನು ಗಣ ೆ0ೆ Lೆ0ೆದು ೊಂಡ*+ ಇವರುಗಳ ೇ4ೆಯನು ಸ ಾ#& ದಂತ ಾ3ೇಜು ಮತು ಸಂPೆ‡ೕಧ ಾ ಸಂ ೆ9, Sೆಂಗಳˆರು ಇ*+ ?ಾಯಂ ಆ *ೕನ0ೊ% ದ6*,+ Oಾವ (ೇ &ೕ5ಯ 'ೆಚುjವ& ಆ‰#ಕ 'ೊರ Šೕಳdವ Fಲ+4ೆಂಬ ಅಂಶವನು ಸ ಾ#ರದ ಗಮನ ೆ ತರ3ಾ (ೆ.
100the BDS Course Regulations framed by the DCI and approved under Dentists Act, 1948 prescribed only graduation in dental science as minimum qualification for the post of a lecturer, and this position continued until the month of September 2007 when DCI notified its regulations called Revised Course BDS Regulations 2007 prescribing post-graduation as the minimum qualification for the post of lecturer. However, it is also undisputed that for the purposes of appointment as a lecturer with a Government College, the State of Karnataka had prescribed post graduation as the minimum qualification for the post of a lecturer when the Regulations by DCI prescribed graduation. As such, Dr. M. Kalavathi as of the date of her deputation was not qualified to be appointed as a lecturer with the Government Dental College.
37. It is also argued that much before the date of Dr. M Kalavathi's absorption, she was successful in 101 completing the post graduation. However, in challenging the Gradation List dated 03.08.2012, she is seeking for seniority in the light of her service on deputation which commences with effect from 09.05.2007. If as of that date she was not duly qualified in terms of the relevant Rules for appointment as a Lecturer with GDC, she cannot be given the benefit of seniority reckoning her service from the date of her deputation. Though it is argued that her services if not from the date of deputation at least from the date she completed post graduation must be recognized for the purposes of seniority, this Court must conclude that this would be impermissible when the relevant date would be the date of entry into service as a Lecturer on deputation.
38. It is argued that the higher qualification of post graduation for the post of a Lecturer is only for the purposes of direct recruitment and it cannot be 102 imported for the purposes of deputation. Sri Vikas Rojipura in support of this proposition relies upon a decision of the Hon'ble Supreme Court in Dr.M.Dakshayini v. State of Karnataka and Anr in Civil Appeal No.4236/2018 decided on 20.04.2018. This decision is in the backdrop of the provisions of the Karnataka Health and Family Planning Services [Collegiate Branch] Recruitment Rules 1967 which only contemplated preference to post graduate candidates while prescribing graduation as the qualification and in the peculiar circumstances of the case where both the contesting parties, after their initial appointments as Assistant Surgeons, were granted change-in-cadre and posted as Lecturers. This decision cannot help Dr. M Kalavathi.
39. The question whether the absorption of Dr. M.Kalavathi and Dr. P.Hema Mythily is contrary to the law is answered in their favour. Further, because it is 103 opined that their absorption is predominantly in public interest, their service prior to their absorption could not have been ignored for the purposes of seniority, but because Dr.M.Kalavathi was not duly qualified to be appointed as a Lecturer with a Government college on the date of her deputation, her services from the date of her deputation cannot be reckoned for seniority, and the relevant date would only be the date of the order of absorption viz., 27.10.2010.
40. On the other hand, Dr. P Hema Mythily because she was substantially circumstanced as the contesting respondents being duly qualified as of the date of her deputation [21.09.2005], because she was drawing as of the date of her absorption salary/allowances comparable with AICTE Pay Scale and because she was working as a Lecturer for more than two years as of the date of her absorption, her past 104 services on deputation must be reckoned for the purposes of seniority. Hence, the following:
ORDER
(i) The Writ Petition in W.P.No.28905/2012 is allowed quashing the Official Memorandum dated 03.08.2012 in No.GDCRI/EST(1)/06/2011-12 [Gradation list-Annexure-P] insofar as Dr. P Hema Mythily is placed below Dr.Mamatha Shri V. [the third respondent]. The second respondent is directed to re-fix her seniority counting her services as a Lecturer in the Department of Oral Surgery from 26.09.2005. The promotions granted, if any, shall be consequentially revised with Dr. P. Hema Mythily being granted all consequential benefits.105
(ii) The Writ Petition in W.P.No.46022/2012 is dismissed. (iii) The Writ Petition in
W.P.No.39341/2019 insofar as challenge to the Government Order dated 13.05.2019 in No.AAKUKA/54/MMC/2011 (BHAAGA) [Annexure-P] is disposed of as not surviving for consideration in view of this Court's decision on the questions formulated and answered, and insofar as the challenge to the second respondent's order dated 21.06.2019 in No.SADAMKAASAMSAM/ SIBHANDI(1)/32/2018-19 [Annexure-Q] granting promotions to Dr.Reshma Kulkarni [the fourth respondent], the petition stands dismissed.
(iv) The Writ Petition in W.P.No.39476/2012 insofar as the challenge 106 to the order dated 27.07.2010 in No.H&FW Services 182 MMC 2009 [Annexure-G] granting absorption to Dr. P.Hema Mythily is dismissed and insofar as the challenge to the Corrigendum dated 27.04.2011 in H&FW Services 54/MMC 2011 [Annexure-J] is disposed of as not surviving for consideration in view of this Court's decision on the questions framed and answered.
(v) The Writ Petitions in
W.P.No.15740/2013, W.P.No.19688/2013,
W.P.No.22025/2013 and W.P.No.23289/
2013 are disposed as not surviving for consideration in view of this Court's decision on the questions framed and answered.
SD/-
JUDGE SA* Ct:sr