Karnataka High Court
Dr.K.H.Naveen vs The State Of Karnataka on 17 February, 2022
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
W.P.No.37102 OF 2017(S-RES)
BETWEEN:
Dr. K.H.Naveen,
Aged 37 years,
Presently working as
Assistant Professor,
All India Institute of Medical Sciences,
Jodhpur, (Rajasthan),
Earlier working as Assistant Professor,
Mysore Medical College and
Research Institute,
Mysore-570 001.
... Petitioner
(By Sri. Ranganatha S Jois, Advocate (VC))
AND:
1. The State of Karnataka,
Represented by its Secretary,
Department of Health
and Family Welfare,
M.S. Building, Vidhana Veedhi,
Bangalore-560 001.
2. Mysore Medical College
And Research Institute,
Mysore, Rep. by its
Director and Dean-570 001.
2
3. Director of Medical Education
In Karnataka,
Ananda Rao Circle,
Bangalore-560 009.
... Respondents
(By Smt.M.C. Nagashree, AGA. For R1 & R3(PH):
Sri.Chandrakanth R Gouloy, Advocate for R2(VC))
This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to call for the records
relating to the impugned endorsement dated: 07.11.2016
passed by the R2 vide Annexure-L and also the
endorsement dated: 20.07.2017 issued by the R1 vide
Annexure-S, peruse and quash the said endorsement and
the order as arbitrary, illegal and is without application of
mind and contrary to rule 25(b) Rule 20(A)(1) note 4 of
the KCSR and thus violative of Article 45 and 16(1) of the
Constitution of India.
This writ petition, coming on for orders, this day,
the Court, made the following:
ORDER
This writ petition is filed under Article 226 of the Constitution of India challenging the endorsement dated 07.11.2016 issued by respondent No.2 vide Annexure-L and the letter dated 20.07.2017 issued by the first respondent vide Annexure-S, wherein the request of the petitioner to rejoin the duty has been 3 rejected on the ground that he has resigned the services on personal grounds.
2. The brief facts of the case are that the petitioner joined the services of the second respondent as Assistant Professor on 23.04.2010 on probation for a period of two years. His probationary period has been declared satisfactory on 17.10.2012. Thereafter in the year 2016 the petitioner had applied for the post of Assistant Professor in the All India Institute of Medical Sciences, Jodhpur (for short, 'AIIMS'). For attending the interview, he sought for experience certificate and 'No Objection Certificate' (for short, 'NOC') from the second respondent dated 09.02.2016 vide Annexure-C. The second respondent has issued the NOC to the petitioner to attend the interview at AIIMS on 11.02.2016 vide Annexure-D. Thereafter, the petitioner has secured a job in AIIMS and he has submitted his resignation letter on 4 19.08.2016 to the second respondent vide Annexure- F. Pursuant to the petitioner's resignation letter, the second respondent issued an Official Memorandum dated 24.08.2016 vide Annexure-G. His resignation was accepted from the afternoon of 19.08.2016,
3. The petitioner joined the services at AIIMS on 29.08.2016 and the same has been accepted on 02.09.2016 vide Annexure-H. Thereafter, the petitioner, not satisfied with the job in AIIMS, wanted to re-join to the services of the second respondent. Hence, he submitted a representation dated 16.09.2016 vide Annexure-J. The second respondent, by endorsement dated 07.11.2016 vide Annexure-L rejected the request of the petitioner for rejoining on the ground that he has resigned the post for personal reasons. Thereafter, he submitted a representation to the Government to consider his request for rejoining of the duty. The Government, has rejected his 5 request. Being aggrieved by the same, the petitioner is before this Court.
4. Sri Ranganatha S.Jois, the learned counsel appearing for the petitioner has submitted that the petitioner, after obtaining permission from the second respondent participated in the interview conducted by the AIIMS. Afterwards he obtained the appointment order from the AIIMS and he submitted his resignation vide Annexure-F requesting the second respondent to relieve him from the services to join AIIMS. His request has been considered and he has been relieved from the service as per Annexure-G.
5. He further contended that as per Rule 252-B of the Karnataka Civil Services Rules (for short, 'KCSRs') since he has resigned his job to take up new job, his lien on earlier post will continue till he gets confirmation in the new job he has joined. Since he 6 was not satisfied with the new job, immediately he has submitted a representation requesting the second respondent to permit him to rejoin the duty. Instead of considering his request to rejoin the duty, contrary to Rule 252(b) of KCSRs., the impugned endorsement vide Annexure-L has been issued by the second respondent. Even though he has submitted the resignation to join new job, the authority has wrongly construed that he has resigned for personal reasons and issued the impugned endorsement.
6. It is his further contention that even the petitioner has requested the Government to consider his case for rejoining and submitted a representation requesting to direct the second respondent to permit him to rejoin the duty, but his representation has not been properly considered by the Government. The Government has wrongly construed that he is seeking for re-appointment and has issued the impugned 7 endorsement vide Annexure-S which is contrary to Rule 252(b) of KCSRs. In support of his contentions, he has relied on the judgment of a Co-ordinate Bench of this Court in W.P.No.8136/2020 disposed of on 13.10.2020. The same has been confirmed by a Division Bench of this Court in W.A.No.596/2020 disposed of on 25.02.2021.
7. Per contra, Sri Chandrakanth R.Goulay, the learned counsel appearing for the respondent No.2 has filed a detailed objection statement and contended that from the date the petitioner has joined the service, he has the habit of submitting the resignation on personal grounds. Even though he has taken NOC to attend the interview at AIIMS, after obtaining the job he has not made any representation seeking permission to join the new post. On the other hand, he has submitted the resignation on the ground of personal reason. Therefore, he has been relieved 8 from the services on the request of personal ground and there is no lien to the post which the petitioner is holding in the second respondent. Even Section 252(b) of KCSRs. is not applicable to the case of the petitioner since he has resigned to the post on personal reason and not for obtaining a new job in AIIMS. He cannot take any shelter under Section 252(b) of KCSRs. Hence, his request for rejoining the service has been rightly rejected since the employee once resigned from the service on personal ground and that has been accepted, later, he cannot be permitted to rejoin the service.
8. It is his further contention that even though his request has been rejected by the second respondent he has approached the Government to consider his case for fresh appointment. He has admitted in his representation vide Annexure-N that 9 he has resigned on personal grounds. Hence, he cannot seek relief in terms of Rule 252(b) of KCSRs. Hence, sought for dismissal of the writ petition.
9. Smt.M.C.Nagashree, the learned AGA appearing for respondent Nos. 1 and 3 submitted that the petitioner has resigned the post on personal grounds, he cannot seek defence under Section 252(b) of KCSRs. Therefore, he is not entitled to seek for rejoining to duty since he has no lien on the post. Therefore, the State Government has rightly issued the impugned endorsement vide Annexure-S rejecting his request. There is no illegality in the endorsement issued by the State Government vide Annexure-S. Hence, she sought for dismissal of the writ petition.
10. Heard the learned counsel for the parties and perused the writ papers and the annexures. 10
11. It is not in dispute that the petitioner is appointed as Assistant Professor in the third respondent - Institute by appointment order dated 03.04.2010 on probation. The petitioner's probationary period has been declared as per Annexure-B from 30.07.2012. Thereafter, the petitioner has filed an application requesting the second respondent to issue NOC to attend the interview at AIIMS. Pursuant to his request, the respondent No.2 has issued NOC vide Annexure-D dated 11.02.2016. Thereafter the petitioner was selected and he has been appointed at AIIMS. He submitted his resignation to second respondent to relieve him from the services as per Annexure-F dated 19.08.2016. In response to the letter dated 19.08.2016 the second respondent relieved the petitioner from the post by Official Memorandum dated 24.08.2016 vide Annexure-G on the afternoon 11 of 19.08.2016. In Annexure-G there is a reference to the petitioner's representation dated 19.08.2016. Immediately he joined the service at AIIMS on 29.08.2016. Thereafter within a span of 15 days, the petitioner submitted a letter for withdrawal of resignation and permission to rejoin the duty. To consider his case Rule 252(b) of KCSRs. is relevant. Hence, the same is extracted hereinbelow:
"252(b): Resignation of an
appointment to take up, with proper
permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service."
12. It is very clear from the above provision that if an employee, after obtaining proper permission for another appointment, whether permanent or temporary, any request for relieving is not a resignation of public service, he will continue to hold 12 his lien in the earlier post till he gets confirmed in the new post. In the case on hand, it is very clear from resignation letter Annexure-F that he has withdrawn the earlier resignation tendered on personal grounds and requested the respondent to relieve him from duty to join the post of Assistant Professor at AIIMS, Jodhpur. Thereafter, within a short span of one month he has approached the respondent to rejoin and he wants to continue in the second respondent - Institute. But the said request has not been properly considered by applying the provisions of Rule 252(b) of KCSRs. The impugned endorsement Annexure-L has been issued contrary to Section 252(b) of the KCSRs. Hence, the same is unsustainable.
13. Even the petitioner also approached the Government vide representation dated 05.12.2016 vide Annexure-N requesting the first respondent to direct the second respondent to permit him to rejoin 13 the service in the second respondent - Institution. His representation has not been properly considered by the first respondent. The first respondent has wrongly construed his representation for reappointment in the second respondent - Institution and issued the impugned endorsement. The impugned endorsement Annexure-S has been passed without application of mind and the same is contrary to Rule 252(b) of KCSRs. Hence, the impugned endorsement dated 07.11.2016 issued by respondent No.2 vide Annexure- L and the letter dated 20.07.2017 issued by the first respondent vide Annexure-S are unsustainable and they are liable to be quashed.
14. Accordingly, writ petition is allowed. The endorsement dated 07.11.2016 vide Annexure-L and the letter dated 20.07.2017 vide Annexure-S are quashed. The respondents are directed to consider the case of the petitioner in accordance with law 14 keeping in mind the provisions of Rule 252(b) of KCSRs., within a period of three months from the date of receipt of a copy of this order.
In view of disposal of the main petition, the pending IAs. do not survive for consideration.
Sd/-
JUDGE Cm/-