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1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF SEPTEMBER 2012
P R E S E N T
THE HON’BLE MR.JUSTICE N. KUMAR
A N D
THE HON’BLE MR.JUSTICE H.S. KEMPANNA
WRIT PETITION Nos.12029 -12037/2011 C/w WP Nos.27388 – 27402, 17178 – 17194, 16876 – 16903, 20111 – 20115 & 21397 – 406/2011, 19459 –
19464 & 20116 – 20120/2011 (S-KAT)
IN WRIT PETITION Nos.12029 -12037/2011:
BETWEEN: 1. DR. S A SOMASHEKAR
S/O ANKEGOWDA AGED 44 YEARS, ASSISTANT PROFESSOR (ORTHOPAEDICS) BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-560001
2. DR S T KAVYA AGE 46 YEARS, W/O B N CHANDRAPPA ASSISTANT PROFESSOR (GENERAL MEDICINE) BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-560001
3. DR H C SUDHA AGE 45 YEARS, D/O CHIKKA SIDDAIAH ASSISTANT PROFESSOR (OBG) BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-560001
4. DR VEDARAJU AGE 41 YEARS, S/O SHAMACHARI OOD LECTURERS (RADIOLOGY) BOWRING AND LADY CURZON HOSPITAL, SHIVAJINAGAR, BANGALORE-560001 ... PETITIONERS
2
(BY SRI J PRASHANTH, ADV.)
AND: 1. DR. K HARISH S/O N KARIGOWDA
AGE NOT KNOWN TO THE PETITIONER SENIOR SPECIALIST BOWRING AND LADY CURZON HOSPITAL BANGALORE-560001
2. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF HEALTH & FAMILY WELFARE VIKAS SOUDHA BANGALORE-560001
3. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF MEDICAL EDUCATION VIKAS SOUDHA BANGALORE-560001
4. ADDITIONAL SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKAS SOUDHA BANGALORE-560001
5. THE DIRECTOR OF MEDICAL EDUCATION
IN KARNATAKA ANAND RAO CIRCLE BANGALORE-560009
6. THE DIRECTOR OF HEALTH AND FAMILY WELFARE IN KARNATAKA ANAND RAO CIRCLE BANGALORE-560009
7. THE DIRECTOR OF DEAN BMRCI FORT, BANGALORE-560001
8. DR VASANTH KUMAR K S/O KALAYNAYAK 43 YEARS, SENIOR SPECIALIST (RADIO DIAGNOSIS), BOWRING AND LADY CURZON HOSPITAL, SHIVAJINAGAR, BANGALORE
3
R/A NO.24, IST CROSS, IST MAIN, VIVEKANANDA COLLEGE, KANAKAPUR MAIN ROAD, BANGALORE-78
9. DR R BHANU MURTHY S/O RAMAKRISHNA AGED 43 YEARS, SENIOR SPECIALIST (MS ORTHOPEDIC) BOWRING AND LDY CURZON HOSPITAL BANGALORE ... RESPONDENTS
(BY SRI S.V. NARASIMHAN FOR R-1 & 8, SRI.S.N. ASWATHANARAYANA FOR R-9, SMT. REVATHY ADINATH NARDE HCGP FOR R-2 TO 7)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ANEX-A ORDER DTD 21.2.11 PASSED IN APPLICATION NO.
1964/2009; 2025/2009 AND 55/2010 AND DISMISS THE SAID
APPLICATIONS FILED BEFORE KARNATAKA ADMINISTRATIVE
TRIBUNAL, BANGALORE. DISMISS THE APPLICTIONS NOS.
1964/09, 2025/09 AND 55/09 FILED BY THE CONTESTING
RESPONDENTS.
IN WRIT PETITION Nos.27388 -27402/2011:
BETWEEN:
1. DR K SHANKARA
AGED ABOUT 52 YEARS, S/O SRI. CHIKKATHIMMEGOUDA, ASSISTANT PROFESSOR, DEPARTMENT OF ORTHOPAEDICS, HIMS, HASSAN
2. DR. N. SRIRANGA AGED ABOUT 38 YEARS, S/O DR. (PROFESSOR) T.R. NAGARAJ ASSOCIATE PROFESSOR, DEPARTMENT OF ORTHOPAEDICS, HIMS, HASSAN
3. DR. V.R. KRISHNAMURTHY AGED ABOUT 45 YEARS, S/O LATE SRI. RANGE GOUDA, ASSISTANT PROFESSOR,
4
DEPARTMENT OF SURGERY HIMS, HASSAN
4. DR. ESHWARAPRASAD G.D AGED ABOUT 39 YEARS, S/O LATE SRI. G.S. DEVEGOUDA ASSISTANT PROFESSOR, DEPARTMENT OF SURGERY HIMS, HASSAN
5. DR. KRISHNE GOUDA H.R AGED ABOUT 57 YEARS, S/O LATE SRI. RAMALINGE GOUDA ASSISTANT PROFESSOR, DEPARTMENT OF MEDICINE HIMS, HASSAN
6. DR. SHIVAKUMARSWAMY UDASIMATH AGED ABOUT 38 YEARS, S/O PANCHAKSHARAYYA UDASIMATH, ASSISTANT PROFESSOR, DEPARTMENT OF PATHOLOGY HIMS, HASSAN
7. DR. H. KUMAR NAIK AGED 42 YEARS, S/O D.HOBALI NAIK ASSISTANT PROFESSOR, DEPARTMENT OF PATHOLOGY HIMS, HASSAN
8. DR. D. PREMA KUMAR AGED 55 YEARS, S/O LATE SRI. K.M DODDALINGAPPA, PROFESSOR OF MEDICINE, HIMS HASSAN NOW RE-DEPUTED AS REGISTRAR OF RAJIV UNIVERSITY OF HEALTH SCIENCE
9. DR. CHANDREGOWDA AGED ABOUT 45 YEARS, S/O LATE SRI. UJJANIGOWDA ASSOCIATE PROFESSOR, DEPARTMENT OF MEDICINE, MIMS,MANDYA
10. DR. PUTTASWAMYGOWDA A.B S/O NOT KNOWN AGED 44 YEARS, ASSOCIATE PROFESSOR,
5
DEPARTMENT OF ORTHOPAEDICS MIMS,MANDYA
11. DR. PUTTASWAMY AGED ABOUT 48 FYEARS, S/O MULLAIAH, ASSOCIATE PROFESSOR, DEPARTMENT OF FORENSIC MEDICINE MIMS, MANDYA
12. DR. A. PANDARINATH AGED 53 YEARS, S/O M.V. ASHWATHNARAYANA RAO ASSISTANT PROFESSOR DEPARTMENT OF ORTHOPAEDICS MIMS, MANDYA
13. DR. RAJASHEKARA K.A AGED 50 YEARS, S/O LATE SRI. APPJI GOWDA, ASSISTANT PROFESSOR DEPARMENT OF SURGERY, MIMS, MANDYA
14. DR. GOPALAKRISHNA K.H AGED 46 YEARS, S/O LATE SRI. HUCHANNA SETTY, ASSISTANT PROFESSOR DEPARMENT OF SURGERY, MIMS, MANDYA
15. DR. S. SRINIVAS AGED 52 YEARS, S/O SIDDEGOWDA ASSISTANT PROFESSOR DEPARMENT OF OPTHALMOLOGY MIMS, MANDYA ... PETITIONERS
(BY SRI VIVEK S REDDY, ADV.)
AND: 1. DR RAMAKRISHNA
AGED ABOUT 49 YEARS, S/OMUDLAGIRIGOWDA SENIOR SPECIALIST, BOWRING & LADY CURZON HOSPITAL, SHIVAJINAGAR, BANGALORE R/AT PLOT NO.C30, II CROSS,
6
SAMEERAPURA, BANGALORE 560 018.
2. THE STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE SERVICES, VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE 560 001
3. THE STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF MEDICAL EDUCATION VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE 560 001
4. THE DIRECTOR OF MEDICAL EDUCATION IN KARNATAKA ANANDA RAO CIRCLE, BANGALORE 560 009
5. THE DIRECTOR OF HEALTH & FAMILY WELFARE SERVICES IN KARNATAKA, ANAND RAO CIRCLE, BANGALORE 560 009
6. THE DIRECTOR & DEAN BMCRI, FORT, BANGALORE 560 001
7. THE DIRECTOR & DEAN HASSAN INSTITUTE OF MEDICAL SCIENCES, (HIMS), HASSAN
8. THE DIRECTOR & DEAN MANDYA INSTITUTE OF MEDICAL SCIENCES, (MIMS), HASSAN ... RESPONDENTS
(BY SRI S V NARASIMHAN FOR R2 TO 5, SRI.S.S. TUTAD FOR R-7, R-6 & 8 SERVED)
THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS RELATING TO THE IMPUGNED ORDER DATED
11.4.2011 VIDE ANNEXURE-B, PASSED BY THE HON'BLE
KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN THE
7
APPLICATION NO.2659/2009 FROM THE SAID TRIBUNAL,
PERUSE THE SAME AND DECLARE THE ENTIRE PROCEEDINGS
CULMINATING IN THE SAID ORDER AS A NON-EST.
IN WRIT PETITION Nos.17178 -17194/2011:
BETWEEN:
1. DR. R.K DATTA
S/O LATE C H VENKATADASAPPA AGED 47 YEARS DEPARTMENT OF ENT ASSISTANT PROFESSOR, SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2
2. DR JAGANNATH PAIRU S/O P TANGAVELU AGED 42 YEARS, DEPARTMENT OF OBG ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE BANGALORE-2
3. DR R ANIL KUMAR AGED 40 YEARS S/O LATE R RAMABHADRAIAH DEPARTMENT OF ENT ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE BANGALORE-2
4. DR ASHOK KUMAR DEVOOR AGED ABPIT 39 YEARS S/O SHIVAPPA DEPARTMENT OF OBG ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2
5. DR RAMESH R S/O R REVANNA AGED 46 YEARS S/O R REVANNA DEPARTMENT OF ANAESHESIA ASSISTANT PROFESSOR
8
SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2
6. DR M SATHESHA S/O LATE B MUNIYAPPA AGED 46 YEARS DEPARTMENT OF ANAESHESIA ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2
7. DR VASANTHA KUMAR J S/O JANARDHANA AGED 47 YEARS DEPARTMENT OF ENT ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2
8. DR M D PRAKASH S/O LATE D DODDARANGAIAH AGED 41 YEARS DEPARTMENT OF ENT ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2
9. DR JAYACHANDRA S/O VENKATARAMAPPA AGED 50 YEARS, DEPARTMENT OF MEDICINE ASSISTANT PROFESSOR SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2
10. DR V SRINIVASA S/O LATE V VENKATAPPA AGED 42 YEARS, DEPARTMENT OF MEDICINE ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2
11. MANJUNATH R S/O M RAMEGOWDA AGED 44 YEARS, DEPARTMENT OF MEDICINE ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2
9
12. DR G M PUTTAMADAIAH S/O MADAIAH M AGED 41 YEARS, DEPARTMENT OF E.N.T ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2
13. DR K SRINIVAS S/O DR K KRISHNA JOIS AGED 44 YEARS, DEPARTMENT OF OBG ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2
14. DR S KALPANA W/O DR H PRATAPASURYA AGED 54 YEARS, DEPARTMENT OF OPHTHALMOLOGY ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2
15. DR SHANTALA W/O DR HARISHWARA C E AGED 36 YEARS, DEPARTMENT OF MICROBIOLOG ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2
16. DR VIJAYALAKSHMI NAYAK D/O MAHABALA NAYAK AGED 56 YEARS, DEPARTMENT OF OBG ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2
17. DR VENKATESH K L S/O LATE K H LAKSHMAIAH SHETTY AGED 44 YEARS, DEPARTMENT OF GENERAL SURGERY ASSISTANT PROFESSORS SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE-2 ... PETITIONERS
(BY SRI B S VIJAYALAKSHMI & K.C. SHANTHAKUMAR, ADV.)
10
AND: 1. THE STATE OF KARNATAKA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, (MEDICAL EDUCATION) VIKASA SOUDHA BANGALORE-560001
2. DR RAMAKRISHNA S/O MOODALAGIRI GOWDA AGED ABOUT 48 YEARS R/O DOOR NO. C30, II CROSS, SAMEERAPURA BANGALORE-560018 (SERVING AS A SENIOR SPECIALIST AT THE BOWRING AND LADY CURZON HOSPITALS), SHIVAJINAGAR BANGALORE-560001 ... RESPONDENTS
(BY SMT. REVATHY ADINATH NARDE, HCGP FOR R-1, SRI S V NARASIMHAN FOR C/R2)
THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS RELATING TO THE IMPUGNED ORDER DATED
11.4.2011 VIDE ANNEXURE-A PASSED BY THE HON'BLE
KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN
APPLICATION NO.2659/2009 FROM THE SAID TRIBUNAL,
PERUSE THE SAME AND DECLARE THE ENTIRE PROCEEDINGS
CULMINATING IN THE SAID ORDER AS A NON-EST.
IN WRIT PETITION Nos.16876 -16903/2011:
BETWEEN:
1. DR SABU NINGAPPA SATIHAL
ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, B.I.M.S BELGAUM 590 001, S/O H BHEEMARAYAPPA AGED 55 YEARS, R/AT PLOT NO. 2721, SECTOR NO.12, M.M.EXTENSION, BELGAUM 590 016
2. DR SUDHEENDRA P R ASSISTANT PROFESSOR, DEPARTMENT OF ORTHOPEDICS SHIVAMOGGA INSTITUTE OF MEDICALSCIENCES (SIMS) SHIVAMOGGA
11
577201 S/O P R KEKUDA, AGED 42 YEARS, R/AT NO.1 MEGGAN HOSPITAL DOCTORS QUARTERS KUVEMPU ROAD, SHIVAMOGGA
3. DR. H N NAGARAJ ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY,SHIVAMOGGA INSTITUTE OF MEDICALSCIENCES (SIMS) SHIVAMOGGA 577201 S/OBHEEMARAYAPPA, AGED 55 YEARS, R/AT "SHUSHRUTHA " #126, GOPALAGOWDA BADAVANE, SHIVAMOGGA 577 201
4. DR. M MANJUANTHA ASSISTANT PROFESSOR, DEPARTMENT OF SKIN & SID, SHIVAMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577201 S/O G MURIGAPPA, AGED 55 YEARS, R/AT TILAKNAGARA SHIVAMOGGA 577 201
5. DR S M GANAGI ASSISTANT PROFESSOR, DEPARTMENT OF OPHTHALMOLOGY B.I.M.S. BELGAUM 590 001 S/O GANAGI M N AGED 59 YERAS, R/AT C/O S.N.KHOT, IST FLOOR "MAIRU SMRITI " NO.20, K.R.LAYOUT, CLUB ROAD, BELGAUM 590 001
6. DR.ANILKUMAR M TALWADE ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, B.R.I.M.S. BIDAR S/O MADHAV RAO,AGED 43 YEARS, R/AT C/O TALWADE HOSPITAL LECTURERS COLONY RAOD, GUNJ, BHALKI, BIDAR DISTRICT 585 328
7. DR.ERANNA R PALLED ASSISTANT PROFESSOR, DEPARTMENT OF RADIO DIAGNOSIS, B.I.M.S. BELGAUM 590 001 S/O RUDRAPPA PALLED,AGED 39 YEARS, R/AT C/O H B HUGAR, H.NO.453, 2ND MAIN, 2ND CROSS, SADASHIVANAGAR, BELGAUM 590 001
8. DR.S.K. MAHENDRAPPA M D ASSISTANT PROFESSOR, DEPARTMENT OF MEDICINE / MEDICAL SUPERINTENDENT, SHIVAMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) S/O LATE S K KALIVEERAPPA, AGED 56 YEARS
12
R/AT H.#.21,"SANTRUPTHI",3RD MN,4THCROSS ASHWATHANAGAR SAVALANGA RD,SHIVAMOGGA
9. DR.NANDA S SHINGE ASSISTANT PROFESSOR, DEPARTMENT OF O.B.G. SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201, W/O P M UTHAPPA, AGED 57 YEARS, R/AT P.M.UTHAPPA (RETD. SP) "RAMIT", IST MAIN 5TH CROSS, A BLOCK SHARAVATHINAGAR SHIVAMOGGA 577 201.
10. DR.RAJALAKSHMI G ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201 W/O DR NAGARAJAM AGED 44 YEARS, R/AT "SHRI SHARADADEVI KRUPA", OLD POST OFFICE RD.ANNAJI RAO LAYOUT, VINOBHANAGAR
11. DR.NAGARAJA M ASSISTANT PROFESSOR, DEPARTMENT OF E.N.T.SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201 S/O MRUTHYUNJAYAPPA, AGED 46 YRS R/AT "SHRI SHARADADEVI KRUPA", OLD POST OFFICE RD. ANNAJI RAO LYT,VINOBHANAGAR
12. DR.C.G.RAVINDRA ASSISTANT PROFESSOR, DEPARTMENT OF ANESTHESIA, SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201 S/O LATE GANGAPPA,AGED 53 YEARS, R/AT "GANGA",KASHIPUR MAIN ROAD, VINOBHANAGAR EXTENSION,SHIVAMOPGA 577201
13. DR. SHIVANANDA P T ASSISTANT PROFESSOR, DEPARTMENT OF ANESTHESIA, SHIMOGGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIVAMOGGA 577 201 S/O PATEL THIMMANNA BHATT, AGED 45 YERAS, R/AT SHIMOGGA577 201
14. DR.K CHANDRASHEKHRAPPA ASSISTANT PROFESSOR, DEPARTMENT OF ANESTHESIOLOGY, SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O K UMAPATHIYAPPA, AGED 56 YERAS,
13
R/AT "KAVI NIVAS", 100 FT ROAD, RAJENDRA NAGAR SHIVAMOGA 577 204
15. DR.RATIKANT NARAYANA RAIKAR ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O NARAYAN PANDURANG RAIKAR, AGED 54 YRS R/AT HIG-74, KALLAHALLI STAGE II, 100 FT ROAD, VINOBHANAGAR SHIVAMOGA 577 204
16. DR. B T SUBRAMANYA ASSISTANT PROFESSOR, DEPARTMENT OF E.N.T. SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O B P THIMMAPPAIAH, AGED 59 YEARS, R/AT NO.5, DOCTORS QUARTERS, MEGGAN HOS- PITAL COMPOUND, KUVEMPU RD SHIMOGA 577 201
17. DR.K C SHEKHARAPPA ASSISTANT PROFESSOR, DEPARTMENT OF GENEARL MEDICINE, SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O LATE K CHANNAPPA, AGED 57 YEARS, R/AT NO.74, 2ND MAIN B BLOCK, GOPALAGOWD EXTN., NEAR INCOME TAX OFFICE SHIMOGA 577 205
18. DR. RAMESH S ASSISTANT PROFESSOR, DEPARTMENT OF E.N.T. SHIMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577201 S/O SANNAPPA, AGED 46 YEARS R/AT C-19, C-1 11TH CROSS, C BLOCK GOPA- LGOWDA BADAVANE, SHIMOGA 577 205
19. DR.A. MADHUSUDHAN ASSISTANT PROFESSOR, DEPARTMENT OF GENERAL SURGERY, SHIMOGA INSTITUTE OF MEDICAL SCIENCE(SIMS) SHIMOGA 577 201 S/O H S ANANTHARAMAIAH,AGED 51 YEARS, R/AT NO.6, DOCTORS QUARTERS, MEGGAN HOS- PITAL COMPOUND, KUVEMPU RD SHIVAMOGA 577 201
20. DR R MANJUNATHASWAMY ASSISTANT PROFESSOR, DEPARTMENT OF
14
PAEDIATRICS,SHIMOGA INSTITUTE OF MEDICAL SCIENCE(SIMS) SHIMOGA 577 201 S/O A D RANGAPPA,AGED 49 YEARS, R/AT MIG-95, KALLAHALLI STAGE II VINOBHANAGAR, SHIVAMOGA 577 205
21. DR RATHNAMMA J ASSISTANT PROFESSOR, DEPARTMENT OF OPTHALMOLOGY, SHIMOGA INSTITUTE OF MEDICAL SCIENCE(SIMS) SHIMOGA 577 201 W/O B S HONKAN, AGED 58 YEARS, R/AT A BLOCK SHARAVATHINAGAR, SHIVAMOGA 577 201
22. DR SWATHI BHAT SENIOR RESIDENT, DEPARTMENT OF O.B.G., SHIMOGA INSTITUTE OF MEDICAL SCIENCE(SIMS) SHIMOGA 577 201 W/O DR.NANDA KISHORE AGED ABOUT 45 YEARS R/AT NO.108, "HONGIRANA", IST MAIN, RAJENDRANAGAR, SHIVAMOGA 577 201
23. DR.CHANDRASHEKHAR T R ASSISTANT PROFESSOR DEPARTMENT OF PSYCHIATRY, B.I.M.S. BELGAUM 590 001, S/ORANGANATHA SHETTY T S, AGED 46 YEARS, R/AT NO.21, SAMPIGE ROAD, VISVESWARAIAHNAGAR BELGAUM 590 001
24. DR GURUDATTA K N ASSISTANT PROFESSOR DEPARTMENT OF ANESTHESIA MGGAN HOSPITAL, SHIVAMOGA INSTITUTE OF MEDICAL SCIENCES (SIMS) SHIMOGA 577 201, S/O NAGARAJA RAO K AGED 50 YERAS, R/AT NO.381, "ESHWAVASYA" 3RD CROSS, RAVINDRANAGAR SHIMOGA 577 201
25. DR.RAJESHWARI ADIVEPPA KADKOL ASSISTANT PROFESSOR DEPARTMENT OF OBD, BELGAUM INSTITUTE OF MEDICAL SCIENCES, BELGAUM W/O DR.S H MOTIMATH AGED 55 YEARS,R/AT PLOT 22, AZAM NAGAR WEST, BELGAUM 590 010
26. DR CHAMPA ALLAPPA KOPPAD ASSISTANT PROFESSOR DEPARTMENT OF OBG, BELGAUM INSTITUTE OF MEDICAL SCIENCES, BELGAUM W/O DR ALLAPPA M KOPPAD
15
AGED 52 YEARS, R/AT SRI GANESH 633 SECTOR 13, T.V.CENTRE, BELGAUM 590 001
27. DR UMADEVI SHIVAPPA ANGADI ASSISTANT PROFESSOR DEPARTMENT OF ENT, BELGAUM INSTITUTE OF MEDICAL SCIENCES, BELGAUM D/O SRI SHIVAPPA V ANGADI, AGED 49 YERAS, R/AT ANUGRAHA PLOT NO.4, SCHEME 40, HANUMAN NAGAR DOUBLE ROAD, BELGAUM 590 001
28. DR SHAILAJA M HUGAR ASSISTANT PROFESSOR DEPARTMENT OF OPTHALMALOGY, BELGAUM INSTITUTEOF MEDICAL SCIENCES, BELGAUM C/O DR. A S HAGRUGOP AGED 48 YRAS, R/AT PLOT NO.762, SCHEME 40: KALPAVRAKSHA KUVEMPUNAGAR BELGAUM 590 001. ... PETITIONERS
(BY SRI ABHISHEK MALI PATIL FOR M/S. NAIK & NAIK LAW FIRM, ADVS.)
AND: 1. DR RAMAKRISNA
SENIOR SPECIALIST, BOWRING AND LADY CURZON HOSPITALS, SHIVAJINAGAR BANGALORE 560 001, S/O MUDALAGIRI GOWDA AGED 46 YEARS, R/AT PLOT NO.C 30, II CROSS SAMEERAPURA BANGALORE.
2. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF HEALTH AND FAMILY WELFARE VIKASA SOUDHA DR.B R AMBEDKAR VEEDHI BANGALORE 1
3. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF MEDICAL EDUCATION VIKASA SOUDHA DR.B R AMBEDKAR VEEDHI BANGALORE 1
4. ADDITIONAL SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKASA SOUDHA DR.B R AMBEDKAR VEEDHI
16
BANGALORE 1
5. THE DIRECTOR OF MEDICAL EDUCATION IN KARNATAKA ANANDA RAO CIRCLE BANGALORE 9
6. THE DIRECTOR OF HEALTH AND FAMILY WELFARE IN KARNATAKA, ANANDA RAO CIRCLE, BANGALORE 9
7. THE DIRECTOR & DEAN BMCRI FORT BANGALORE 560 001
8. THE DIRECTOR & DEAN SHIMOGA INSTITUTE OF MEDICAL SCEINCE (SIMS) SHIVAMOGA 577 201
9. THE DIRECTOR & DEAN BELGAUM INSTITUTE OF MEDICAL SCIENCES (BIMS) BELGAUM ... RESPONDENTS
(BY SRI S V NARASIMHAN FOR R1, SMT. REVATHY ADINATH NARDE, HCGP FOR R-2 TO 6, R-7, R-8 & 9 SERVED)
THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS FROM THE RESPONDENTS. QUASH THE IMPUGNED
ORDER DTD 11.4.11 MADE IN APPLICATION NO. 2659/09 VIDE
ANENX-E BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL
(KAT) AT BANGALORE.
IN WRIT PETITION Nos.20111 -20115/2011 & 21397 – 21406/2011: BETWEEN:
1. DR. B N ANANDARAVI
S/O NARASIMHAIAH AGED ABOUT 46 YEARS ASSISTANT PROFESSOR DEPARTMENT OF SURGERY NO.282, 12TH CROSS 4TH MAIN
17
2ND STAGE, MYSORE
2. DR S H BELLAD S/O H K BELLAD AGED ABOUT 52 YEARS DEPARTMENT OF ORTHOPEDICS NO.3553, 20TH MAIN VIJAYANAGAR II STAGE MYSORE
3. DR K S BALASUBRAHMANYA S/O LATE K V SRINIVASA MURTHY AGED ABOUT 53 YEARS ASSISTANT PROFESSOR OF SURGERY NO.3253, 7TH MAIN, 2ND CROSS DATTAGALLY II STAGE MYSORE-22
4. DR S CHANDRASHEKAR S/O SUBRAMANYA S C AGED ABOUT 43 YEARS NO.60, "HAMSADHWANI" SANMARGA, SIHRTHANAGAR 2ND STAGE MYSORE
5. DR GAYATHRI M N S/O NANJUNDAIAH AGED ABOUT 43 YEARS ASSISTANT PROFESSOR OF PATHOLOGY MMCRI, MYOSRE C/O V SIDDAIAH MELLAHALLI, HAROHALLI POST MYSORE TALUK
6. DR KRISHNA PRASAD S/O RAJU AGED ABOUT 55 YEARS ASSISTANT PROFESSOR PULMONARY MEDICINE NO.479, GIRIDHARASHENI LAYOUT ALANAHALLI POST MYSORE -570028
7. DR MADHU B S S/O B K SHIVALINGAIAH AGED ABOUT 44 YEARS NO.18, 5TH MAIN, 8TH CROSS SARASWATHIPURAM MYSORE – 570 009.
18
8. DR P S MARADESHA S/O M SHIVARUDRAPPA AGED ABOUT 50 YEARS ASSISTANT PROFESSOR ENT NO.164, 9TH CROSS, 12TH MAIN SARASWATHIPURAM MYSORE
9. DR PRAKASH H S S/O H D SHIVALINGAIAH AGED ABOUT 39 YEARS ASSISTANT PROFESSOR SURGERY NO.12, MMC DOCTORS QUARTERS J L B CROSS ROAD MYSORE-570005
10. DR RAJENDRA KUMAR S/O LATE GORAVIAH AGED ABOUT 46 YEARS ASSISTANT PROFESSOR, DEPARTMENT OF PEDIATRICS, NO.77, DAYA MARGA SIDDARTHA NAGAR MYSORE-570011
11. DR RAVI N S/O NARASIMHAIAH V AGED ABOUT 44 YEARS ASSISTANT PROFESSOR DEPARTMENT OF FORENSIC MEDICINE NO.5874, SHRISHAILA, 24TH MAIN, 2ND STAGE VIJAYANAGAR MYSORE-570017
12. DR SUBHASH C S/O D CHANDRASHEKAR AGED ABOUT 40 YEARS ASSISTANT PROFESSOR OF ENT NO.1190, 2ND CROSS, GANAE MARGA G & H BLOCK MYSORE
13. DR SUNIL KUMAR P C S/O P N CHANDRASHEKAR AGED ABOUT 40 YEARS ASSISTANT PROFESSOR IN ORTHOPEDICS NO.98, F 1ST MAIN, VIVEKANANDA LAYOUT MYSORE-570023
14. DR B C VIJAYALAKSHMI W./O DR M K NAGARAJA AGED ABOUT 44 YEARS
19
ASSISTANT PROFESSOR OF ANESTHESIOLOGY NO.85, BENAKA, V L LAYOUT OPP MILK DAIRY MYSORE-570011
15. DR K MAMATHA W/O DR S C SURESHA AGED ABOUT 48 YEARS ASSISTANT PROFESSOR OF OBG NO.200, 7TH CROSS, II MAIN K C NAGARA MYSORE ... PETITIONERS
(BY SRI B S VIJAYALAKSHMI & K.C. SHANTHA KUMAR, ADV.)
AND: 1. THE STATE OF KARNATAKA
REP BY THE SECRETARY TO THE GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKASA SOUDHA BANGALORE-560001
2. DR RAMAKRISHNA S/O MOODALAGIRI GOWDA AGED ABOUT 48 YEARS R/O DOOR NO.C30, II CROSS, SAMRERAPURA BANGALORE-560018 (SERVING AS A SENIOR SPECIALIST AT THE BOWRING AND LADY CURZON HOSPITALS) SHIVAJINAGAR BANGALORE …RESPONDENTS
(BY SMT. REVATHY ADINATH NARDE, HCGP FOR R-1 SRI S V NARASIMHAN FOR R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS RELATING TO THE IMPUGNED
ORDER DT 11.4.11 VIDE ANN-A PASSED BY THE HON'BLE
KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN
APPLICATON NO.2659/09 FROM THE SAID TRIBUNAL, PERUSE
THE SAME & DECLARE THE ENTIRE PROCEEDINGS
CULMINATING THE SAID ORDER AS A NON-EST.
20
IN WRIT PETITION Nos.19459 -19464/2011:
BETWEEN:
1. DR T KEMPARAJU S/O LATE THAMME GOWDA
AGED 53 YEARS, R/A NO. 20, II CROSS, 515, CWS COLONY, NEW THIPPASANDRA, HAL III STAGE, BANGALORE-75
2. DR. CHIKKA NARASAREDDY S/O SANJEEVAIAH AGED 51 YEARS, WORKING AS ASST.PROFESSOR OF PEDIATRICS, R/A NO. SFS-B-2, NO. 54, 7TH B CROSS, NEAR SHOPPING COMPLEX, YELAHANKA NEW TOWN, BANGALORE-64
3. DR. DIWAKAR T N S/O LATE G H NARASIMHAMURTHY AGED 42 YEARS, WORKING AS ASST.PROFESSOR OF MEDICINES, R/A NO. 33, "HARI PRIYA", 6TH CROSS, "A" SECTOR, AMRUTHNAGAR, SAHAKARINAGAR POST, BANGALORE-92
4. DR. K GOPALAKRISHNA S/O GIRI GOWDA AGED 46 YEARS, WORKING AS ASST.PROFESSOR OF ORTHOPEDICS FLATNO. 106, I DEAL APARTMENT, 16TH CROSS, IDEAL HOME TOWN, RAJESHWARINAGAR, BANGALORE-98
5. DR. GAYATHRI DEVI C W/O DR. M NARAYANA SWAMY AGED 46 YEARS, R/A NO. 12/2, "MATHRU KRUPA" III CROSS, KAMALA NEHRU EXTENSION, YESHWANTHPUR BANGALORE-22
6. R. BHARATHI N W/O M D SHASHIDHAR AGED 48 YEARS, DEPT. OF OPTHOMOLOGY, R/A NO. 29, A.S.I CROSS, II PHASE, IV BLOCK, BANASHANKARI II STAGE, BANGALORE-85 ... PETITIONERS
(BY SRI J PRASHANTH, ADV.)
21
AND: 1. DR A RAMAKRISHNA S/O MUDALAGIRI GOWDA
AGED 46 YEARS, R/A NO. C-30, II CROSS, SAMEERAPURAM BANGALORE-18
2. THE STATE OF KARNATAKA REP. BY ITS SECY., TO GOVT., HEALTH AND FAMILY WELFARE DEPT. (MEDICAL EDUCATION), VIKAS SOUDHA, BANGALORE-01 ... RESPONDENTS
(BY SRI S V NARASIMHAN, ADV. FOR R1 SMT REVATHY ADINATH NARDE, HCGP FOR R-2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DT 11.4.11 PASSED IN APPLICATION
NO.2659/09 VIDE ANN-A BY THE HON'BLE KARNATAKA
ADMINISTRATIVE TRIBUNAL.
IN WRIT PETITION Nos.20116 - 20120/2011:
BETWEEN:
1. DR. SURENDRAN K.A.K.,
AGED 47 YEARS, S/O LATE A. KUMARASWAMY ASSISTANT PROFESSOR OF SILK & STD, NO.49, 3RD CROSS, F BLOCK, J.P NAGAR MYSORE
2. DR. BANGARU H AGED ABOUT 45 YEARS, S/O LATE H. HANUMAIAH, ASSISTANT PROFESSOR OF SKIN & STD NO.386, 15TH MAIN, NEETHI MORGA, SIDARTHA LAYOUT, MYSORE
3. DR. M.M BASAVARAJU AGED ABOUT 47 YEARS, S/O M.S. MUDDAPPA ASSISTANT PROFESSOR OF MEDICINE NO.16, 24TH BLOCK, MANASI NAGAR, HANCHYA SATAGALLI LAYOUT, MYSORE
22
3. DR. M.L RAMACHANDRA AGED ABOUT 47 YEARS, S/O M.S. LINGAIAH ASSISTANT PROFESSOR, DEPARTMENT OF SURGERY NO.669, 1ST FLOOR, 13TH MAIN 4TH STAGE, T.K. LAYOUT, MYSORE ... PETITIONERS
(BY SRI K.C. SHANTHAKUMAR, ADV.)
AND: 1. THE STATE OF KARNATAKA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKASA SOUDHA, BANGALORE – 560 001.
2. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF MEDICAL EDUCATION, VIKASA SOUDHA, BANGALORE – 560 001.
3. THE ADDITIONAL SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION) VIKASA SOUDHA, BANGALORE – 560 001.
4. THE COMMISSIONER DEPARTMENT OF HEALTH & FAMILY WELFARE SERVICES, ANANDRAO CIRCLE BANGALORE – 560 009
5. THE DIRECTOR OF MEDICAL EDUCATION IN KARNATAKA ANANDARAO CIRCLE, BANGALORE – 560 009.
6. THE DEAN/DIRECTOR MYSORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, MYSORE
7. DR. SRI R.P. SAINATH AGED ABOUT 57 YEARS S/O. LATE SRI R.N. PAMPARAO WORKING AS SENIOR SPECIALIST (SENIOR RESIDENT)
23
DEPARTMENT OF PULMONARY MEDICINE MYSORE MEDICAL COLLEGE & RESEARCH CENTRE MYSORE.
8. DR. SRI V LAKSHMINARAYANA
AGED ABOUT 57 YEARS S/O. SRI VENKATARAMAIAH WORKING AS SENIOR SPECIALIST (RESIDENT) DEPARTMENT OF SKIN & STD MYSORE MEDICAL COLLEGE & RESEARCH CENTRE, MYSORE.
9. DR. SRI B.S. MANJUNATH
AGED ABOUT 45 YEARS S/O. SRI B.S. SHIVAPPA WORKING AS SENIOR SPECIALIST (BLOOD BANK OFFICER) K R HOSPITAL, MYSORE.
10. DR. SRI. Y.M. SHIVAKUMAR AGED ABOUT 47 YEARS S/O. SRI. MALLEGOWDA, VENUGOPAL SENIOR SPECIALIST (RESIDENT) DEPARTMENT OF SKIN & STC MYSORE MEDICAL COLLEGE & RESEARCH CENTRE MYSORE. 11. DR.SRI K. MOHAN AGED ABOUT 42 YEARS S/O. LATE SRI G. KARIYAPPA RESIDENT MYSORE MEDICAL COLLEGE & RESEARCH CENTRE MYSORE.
... RESPONDENTS (BY SMT. REVATHY ADINATH NARDE, HCGP FOR R-1 TO 5, R-6 SERVED SRI P RAJASHEKAR, ADV. FOR R7-R11)
THESE WPs ARE FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS RELATING TO THE IMPUGNED ORDER DT.23.2.11
VIDE ANN-A PASSED BY THE HON'BLE KARNATAKA
ADMINISTRATIVE TRIBUNAL, BANGALORE IN APPLICATION
NOS.3261-3265/10 FROM THE SAID TRIBUNAL, PERUSE THE
SAME & DECLARE THE ENTIRE PROCEEDINGS CULMINATING
IN THE SAID ORDER AS A NON-EST.
24
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, N. KUMAR, J., MADE THE FOLLOWING: -
COMMON ORDER
Writ Petition Nos.12029-12037/2011 and Writ
Petition Nos.20116-20120/2011 are preferred by the
parties to the order passed by the Tribunal, whose
absorption in the Medical Education Department was
set aside by the Tribunal by a common order dated
21.02.2011.
2. All the other writ petitioners have preferred writ
petitions challenging the orders passed by the Tribunal
on the ground that they were not parties before the
Tribunal and the order passed by the Tribunal affects
their interests. As the question involved in all these
batch of writ petitions is one and the same, they are
taken up for consideration together and disposed of by
this common order.
3. For the purpose of convenience the parties are
referred to as they are referred to in the original
applications before the Tribunal.
25
4. The applicants were all recruited in the
Department of Health and Family Welfare Services.
They possessed not only MBBS degree but also Masters
Degree in various other faculties. They have been
working for more than 20 years at various places in
various capacities. They are working in teaching
hospitals attached to Bangalore Medical College and
Research Institute (For short ‘the BMCRI’). The
Principal of BMCRI issued a circular dated 28.6.2006 as
per Annexure-A requiring the General duty Doctors,
Specialists / Senior Specialists etc., to exercise their
option for being absorbed in the Medical Education
Department by enclosing the certificates mentioned
therein. In terms of the said circular on 3.7.2008 the
applicant along with other senior Specialists submitted
joint representation to the 1st respondent through
proper channel exercising their option for change of
cadre (Absorption) for the reasons stated therein in the
Medical Education Department. They have stated they
have been working for more than 13 to 16 years as
Senior Specialists in different hospitals and the
26
hospitals are attached to the medical college and they
possess Post-graduation in the respective subjects.
They also brought to the notice of the authorities that in
many of the institutions the Doctors working in Medical
Education Department were absorbed for teaching cadre
wherein no criteria has been fixed, roaster system has
not been followed, no opportunity is given to eligible
interested Doctors working in Health Department with
equal qualification and working in the same hospitals.
A committee was constituted by the 1st respondent –
State of Karnataka, headed by Additional Chief
Secretary and Principal Secretary, Department of
Medical Education for the purpose of consideration of
absorption of Special Doctors belonging to Health and
Family Welfare Department to the Medical Education
Department. The Committee in its meeting held on
31.06.2007 formulated certain guidelines in the matter
of absorption. The Committee observed that respondent
Nos.1, 3 and 5 i.e, the State of Karnataka, Additional
Secretary to the Government, Health and Family
Welfare Department and the Director of Health and
27
Family Welfare Services have to prescribe the criteria for
selection and absorption of such Medical Officers while
deputing / absorbing in the Department of Medical
Education. The norms mentioned and stipulated by the
committee are to be adhered to before taking any action
in the matter of absorption of Doctors. Until a report is
submitted under the Chairmanship of Secretary,
Medical Education Department and appropriate
government orders are issued, the
deputation/absorption of Senior Specialists of Health
Department were not to be considered. The applicants,
who were awaiting for absorption in the Medical
Education Department got an endorsement dated
1.10.2008, wherein the 5th respondent rejected their
request stating that the services of the applicants is
required in public interest as there is shortage of
Specialists Doctors in the Department. However, on
28.2.2009, 144 doctors working in 6 medical colleges
were absorbed. The grievance of the applicants is that
all those persons, who were all, absorbed were all
juniors to them as per the seniority list. The norms
28
prescribed by the committee in its meeting held on
31.10.2007 is not followed. The condition precedent for
absorption is that the Doctor to be absorbed should be
either a Specialist or a Doctor should be on deputation
working in the hospital attached to the medical college.
Some of the doctors who are absorbed were at no point
of time, much less, on official duty in the Medical
College. Though the applicants are also similarly placed
more experienced more qualified their request is
rejected and persons, who are much juniors to them
and did not possess the requisite qualification, have
been absorbed. Thus equality clause enshrined under
Articles 14 and 16 of the Constitution of India has been
violated by the authorities. The applicants obtained
the note sheets relating to absorption of
Doctors/Specialists in BMCRI and other Medial Colleges
of the District through Right to Information Act, 2005.
The note sheet dated 13.11.2008 discloses that the 1st
respondent had declined to give consent for absorption
of 190 Specialists Doctors in Medical Education
Department for the reasons stated at paragraphs 53 to
29
60 of the said note sheets. The Department of health
and Family Welfare Services was not in favour of
absorbing the Doctors working as teaching Doctors in
the Department of Medical Education. The 3rd
respondent - Additional Secretary to the Government
Health and Family Welfare Department in the draft
Cabinet note dated 18.11.2008 had solicited approval of
Cabinet to absorb 190 Specialists / Doctors of Health
and Family Welfare Department working as teaching
staff in the Health and Family Welfare Department in
the Medical Colleges under the administrative control of
the Medical Education Department in the services of the
respective autonomous institutions. This note was
nothing but a favour to a class of persons in violation of
opinion expressed by the committee, which met on
31.01.2007. Therefore, they contended that it is
nothing but a colourable exercise of power to favour a
few Doctors ignoring the seniority and other criteria in
the matter of absorption adopted by the committee.
Thus denying equal opportunity to the applicants.
30
5. The Department of Health and Family Welfare
Services was bifurcated into two Departments viz.,
Health and Family Welfare Services and Medical
Education Department. The Department of Medical
Education issued an order giving autonomous status to
the Medical Institutions situated at Bidar, Raichur and
Shimoga in the year 2007-2008. This was done on the
same principles as was done earlier in giving the
autonomous status to the BMCRI, Mysore Medical
College, KIMS Hubli and VIM'S, Bellary. In view of the
declaration of the said institutions as the separate
autonomous bodies, there was dearth of teaching staff
in the Institution. In order to comply with the guidelines
of Medical Council of India, by an order dated
28.02.2009, the government absorbed 144 doctors, who
were working in six autonomous institutions. The
applicants are not at all discharging the duties as
teaching staff of the said autonomous institutions,
though they are working in the autonomous
institutions. The Health and Family Welfare
Department had already issued endorsement
31
dated 1.10.2008 rejecting the claims of the applicants
for absorption in the respondent Department on the
ground that their services are very much required in the
5th respondent Department. Lot of essential expert
Doctors are needed in the 5th respondent – Department.
The said endorsement dated 1.10.2008 has nothing to
do with the order of absorption of 144 doctors which is
issued on 28.2.2009. Both the issues are totally
different and not connected with each other. When the
six institutions referred to above were declared as
autonomous body, the district hospitals in the
respective places were treated as Teaching Hospitals
attached to the institutions, which were declared as
autonomous bodies. In these six places the district
hospitals had already had the Specialists Doctors. But
consequent on conversion of Hospitals as teaching
hospitals Doctors/Specialists of Health and Family
Welfare Department were shown as teaching faculty
depending on the qualification prescribed by the
Medical Council of India, at the time of annual
inspection to meet the shortage of faculty. It
32
has become necessary to absorb the Specialists of
Health and Family Welfare Department, who were
working in the teaching Hospital in the respective
Medical Colleges. The list of 190 Specialists / Doctors
of Health and Family Welfare Department working in
the teaching hospitals in the respective Medical Colleges
was submitted for approval of the Cabinet. The Cabinet
in its meeting dated 4.12.2008 and 8.12.2009 agreed for
absorption of 144 doctors of Health and Family Welfare
Department in the respective Medical Colleges, where
these specialists were working. Pursuant to this
decision of the Cabinet, Government Order dated
28.2.2009 is issued.
6. The committee constituted to formulate the
guidelines in the matter of absorption/deputation has
taken a decision not to consider absorption of
Specialists / Senior Specialists belonging to Health and
Family Welfare Department in Medical Education
Department. But it was absolutely necessary to
consider the absorption of eligible
33
Specialists / Senior Specialists working in the teaching
hospitals of Medical Colleges to save the colleges from
de-recognition from Medical Council of India due to
deficiency of required teaching faculty. The order dated
28.2.2009 was issued in the larger interest of Medical
Institution of the State which was facing acute shortage
of teaching faculty and OOD Lecturers / Specialists.
The matter was taken to the Cabinet, especially to turn
down the serious objections raised by the Health and
Family Welfare Department against the absorption. The
health and Family Welfare Department declined to give
consent for absorption of 190 specialists in Medical
Education Department. This matter was taken up
before the Cabinet for taking appropriate decision. The
Cabinet after examining the matter in detail has
accorded its approval in the meeting held on 18.2.2009
for absorption of 144 Specialists / Sr. Specialists /
General Duty Doctors etc., who were working in the
teaching hospital attached to medical colleges. This
exercise was undertaken to meet the deficiency of
teaching staff in the Medical Colleges which were facing
34
difficulties consequent on Medical Council of India
threatening to de-recognize the Medical Colleges. This
decision was taken in public interest to protect the
hospitals, which were facing the wrath of Medical
Council of India due to deficiency in the teaching staff.
There were no eligible candidates with required
qualification who fulfilled the guidelines prescribed by
the Medical Council of India to fill up the posts for
conducting walk in interview. 144 specialists with
required qualification were absorbed as against vacant
posts available in the respective medical colleges and
the Doctors working in teaching hospitals were alone
considered for this absorption. As far as possible the
seniority of the Doctors is taken care of for absorption.
There is no patronage and favouritism in the process of
absorption, due care is taken in selecting the doctors
who possessed the required qualification.
7. It is not in dispute that there are no special rules
made for the purpose of absorption of doctors working
on deputation in the Department of Medical Education.
35
The absorption is made purely on the basis of the
Cabinet decision. It is reflected in the order dated
28.2.2009 that when the said absorption was
challenged before the Tribunal, the Tribunal directed
the State to furnish the following particulars :
(a) Under What rules the impugned order is
issued;
(b) Rules governing the autonomous body BMRC
especially C & R Rules;
(c) Correspondence of Medical Council of India
regarding urgency of absorption.
8. In spite of sufficient opportunities being given the
respondents did not answer those queries. However, at
the time of argument the learned Government Advocate
submitted that there are no special rules framed for
absorption / deputation of the Doctors / Specialists
from the Department of Health and Family Welfare
Department. It is on the basis of the Cabinet note
alone the impugned order dated 28.2.2009 is issued
absorbing 144 doctors to those autonomous bodies
subsequently formed at Shimoga, Hassan, Mandya,
Bidar, Raichur and Belgaum.
36
9. After carefully considering the rival contentions,
looking into the proceedings of the committee, the
government orders, the opinion of the Finance
Department, Health and Family Welfare Department
and after taking note of the fact that the applicants
were seniors in the order of seniority list, which was
produced and which was not in dispute, the Tribunal
was of the view that the Cabinet note also made it clear
that absorption should be on the basis of seniority.
However, overlooking the seniority some persons who
were never on deputation working in teaching colleges
have been absorbed taking into consideration the
influence of certain bigwigs. It is arbitrary. Equal
opportunity has been denied to the applicants. It is
high time rules are framed for the purpose of
absorption of Doctors / Specialists who are attached to
the Medical Institutions and therefore, they set aside
the impugned orders and directed the authorities to
consider the case of the applicants for absorption in
accordance with the decision taken by the Cabinet
Committee held on 14.8.2008, especially based on Note
37
No.8 of the official records by including the names of
the applicants in the absorption order dated 28.2.2009.
Aggrieved by the said order, the present writ petitions
are filed.
10. Following the aforesaid judgment, other batch of
applications were also allowed for the same reasons,
which are the subject matter of the other batch of writ
petitions.
11. Learned counsel appearing for the petitioners
contend that the qualification possessed by the
applicants and the respondents is not one and the
same. When the respondents are absorbed in the post
not meant for the applicants, applicants have no locus
standi to challenge their absorption. Secondly it was
contended when 144 doctors were absorbed all of them
were not made parties to the proceedings and therefore,
the applications filed suffers from non-joinder of
necessary parties. The effect of setting aside the order
dated 28.2.2009 adversely affects those persons, who
are not parties before the Tribunal. Further it was
38
contended that all those persons, who are absorbed had
possessed the requisite qualification. They are eligible
to be absorbed. Their absorption is made in public
interest as otherwise, those medical colleges would lose
their recognition. After absorption, all these
respondents are functioning in those respective colleges.
Under these circumstances, the Tribunal committed a
serious error in setting aside the order of absorption
insofar as the respondents are concerned and also
issuing a direction to consider the case of the applicants
along with the respondents. Petitioners in other writ
petitions are challenging the aforesaid order on the
ground the said order affects their interests. Admittedly
they were not made parties before the Tribunal.
Therefore, the said order violates the principles of
natural justice. On that short ground according to
them the said order requires to be set aside.
12. Per contra, learned counsel for the applicants
submits that the material on record discloses that all
the applicants possessed the requisite qualification and
39
they are eligible to be absorbed. All of them are working
in teaching hospitals. They are interested in teaching.
They made a request and filed their applications for
absorption in pursuance of the notification as per
annexure A-3. Their request was turned down on the
ground of public interest, but thereafter, some of the
persons who are juniors to them but did not possess the
requisite qualification were absorbed. This action was
arbitrary on the face of it and the Tribunal rightly set
aside the absorption orders. They were challenging the
action of absorption on the ground it is arbitrary. The
question of impleading 144 doctors, who were absorbed
under the said government order would not arise. At
any rate, the persons, who have approached this Court,
have no locus standi, as this Court has no jurisdiction
to entertain the writ petitions in its original jurisdiction
as those petitioners have to approach the very same
Tribunal.
13. In the light of the aforesaid facts and the rival
contentions the point that arise for our consideration is
40
a) Whether the order of absorption dated
28.02.2009 is violative of Articles 14 and
16 of the Constitution of India and its
striking down by the Tribunal is justified ?
b) In the facts of this case what is the
appropriate order to be passed?
14. The facts are not in dispute. The Department of
Health and Family Welfare Services is bifurcated into
two Departments viz., Health and Family Welfare
Services and Medical Education Department. The
Department of Medical Education has issued an order
giving autonomous status to the Medical Institutions
situated at Bangalore, Mysore, Mandya, Bellary, Hubli,
Raichur, Shimoga and Hassan. The applicants and the
respondents were all recruited by the Department of
Health and Family Welfare. They possessed the basic
degree in medicine and they have also acquired masters
while in service. All the Government hospitals situated
in the aforesaid districts are attached to respective
Medical Colleges. Those hospitals are called as teaching
hospitals. The Medical Council of India has prescribed
41
the teaching pattern in these Medical Colleges and
unless these Medical Colleges satisfy the said
requirement the degrees issued by them will not be
recognized. There is dearth of duly qualified Doctors in
these teaching hospitals. In spite of the government
attempting to recruit the doctors by walk-in-interviews
suitable candidates were not found. Therefore, the
Department Of Health and Family Welfare in order to
save the recognition to these Medical Colleges has
deputed the duly qualified doctors to the teaching
hospitals so that they could do the teaching and they
can also serve the public in the hospitals. They
prepared the list of 190 Doctors / Specialists working in
teaching hospitals in the respective Medical Colleges
submitted for approval of the Cabinet, for their
absorption in the Medical Colleges. There is stiff
opposition to this proposal from the Department of
Health and Family Welfare, apart from the Finance
Department. A Committee was constituted which was
presided over by Additional Chief Secretary to consider
such request. The Committee in its meeting held on
42
31.10.2007 resolved that certain guidelines have to be
formulated, in the matter of absorption of Doctors /
Specialists certain criteria is to be prescribed for
selection and absorption of the Medical Officers while
deputing / absorbing in the Department of Medical
Education. Once such criteria is fixed, it has to be
adhered to, before taking any action in the matter of
absorption of Doctors. They made it clear that only
after a report is submitted under the chairmanship of
Medical Education Department, appropriate
Government orders are to be issued. The deputation /
absorption of Sr. Specialists of Health and Family
Welfare Department was not be considered. In fact
initially when the request was made for absorption of
190 doctors, as aforesaid, the State declined to give its
consent. As is clear from the Note sheet dated
13.11.2008, the Finance Department was of the view in
the absence of clarity on the terms and conditions and
the quantum of finance required, the Finance
Department cannot really give any opinion. It is
therefore, necessary that the Chief Secretary had to
43
conduct a meeting to sort out these issues after which
the Department of Medical Education can formulate its
proposals to be placed before the cabinet. Therefore, the
medical education department was informed to conduct
a meeting to sort out the issues involved. When the
said matter was placed before the Chief Secretary, he
was of the view that a small committee is to be
constituted within a week or 15 days and they can
submit a report and the same may be placed before the
cabinet for appropriate orders. When the matter was
placed before the cabinet, the cabinet approved and
directed that they should have consultation with the
Finance Department and thereafter, appropriate orders
could be passed. Subsequently DPAR gave its opinion
stipulating the terms and conditions, which are to be
fulfilled before such absorption, is effected. Thereafter,
when the matter was placed before the Finance
Department a note was prepared. The Note No.40 sets
out that the proposal of the Administrative Department
relates to absorption of services of doctors of the
Department of Health and Family Welfare, who are
44
working on OOD basis as teaching staff in the various
autonomous medical institutions coming under the
Department of Medical Education, in view of the
substantial difference in the scales of pay of the
professionals etc., of Medical Education Department
and the specialists in the Health and Family Welfare
Department, absorption of officials as proposed is likely
to be viewed as an action of promotion or promotion to a
higher cadre, since such absorption is made without
regarding the seniority. The specialists, who remained
in the Health and Family Welfare Department made
demand for similar benefits particularly, for absorption.
Thereafter, it was decided that for such absorption the
rules are to be framed for in service recruitment of
qualified specialists and that all the qualified persons in
Health and Family Welfare Department are given
opportunity to offer themselves for selection to the posts
in the Medical Education Department on the principle of
merit-cum reservation. Thus, the absorption would be
based either on the principles of seniority cum merit or
merit cum reservation.
45
15. After obtaining opinion of the Finance Department
the matter was placed before the Chief Secretary to the
Government. His opinion is as under;
Sub: Absorption of Doctors of HFW into ME Dept. - reg.
8) DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄÄ ¸ÀzÀj ¥Àæ¸ÁÛªÀ£ÉUÉ wêÀæªÁV «gÉÆâü¹gÀÄvÁÛgÉ. DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ°è ºÁUÀÆ ªÉÊzÀåQÃAiÀÄ ²PÀët E¯ÁSÉAiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛgÀĪÀ ªÉÊzÀågÀÄUÀ¼À ªÀÄzsÉå EgÀĪÀ ªÉÃvÀ£À vÁgÀvÀªÀÄåªÀ£Éßà PÁgÀtªÀ£ÁßVlÄÖPÉÆAqÀÄ FUÁUÀ¯Éà DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ ªÉÊzÀågÀÄ ªÀÄĵÀÌgÀ ºÀÆqÀĪÀÅzÁV ÉzÀjPÉ ºÁQgÀÄvÁÛgÉ. MAzÀÄ ªÉÃ¼É DaiÀiÁ D¸ÀàvÉæAiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛgÀĪÀ vÀdÕ ªÉÊzÀågÀÄUÀ¼À£ÀÄß ªÉÊzÀåQÃAiÀÄ ²PÀët (DAiÀiÁ ªÉÊzÀåQÃAiÀÄ ªÀĺÁ«zÁå®AiÀÄUÀ¼À°è) «°Ã£ÀUÉƽ¸À ÉÃPÁzÀ°è ºÁ° DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ°è PÉ® À ¤ªÀð»¸ÀÄwÛgÀĪÀ ¸ÉàµÀ°¸ïÖ ªÉöÊzÀågÀÄUÀ¼À eÉõÀ×vÉAiÀÄ£ÀÄß ¥ÀjUÀtô¸ÀĪÀ CªÀ±ÀåPÀvÉ EgÀÄvÀÛzÉ. F jÃw eÉõÀ×vÉAiÀÄ£ÀÄß ¥ÀjUÀtô¸ÀzÉà «°Ã£ÀUÉƽ¹zÀ°è EzÀjAzÀ ªÀåwjPÀÛ ¥ÀjuÁªÀÄ GAmÁUÀĪÀ J¯Áè ¸ÁzÀsåvÉUÀ¼ÀÄ EgÀÄvÀÛªÉ. DzÀÝjAzÀ DyðPÀ E¯ÁSÉAiÀÄ C©ü¥ÁæAiÀÄzÀAvÉ «°Ã£ÀPÁÌV ¤UÀ¢¥Àr¸À§ºÀÄzÁzÀ ¤§AzÀsUÀ¼ÀÄ ºÁUÀÆ µÀgÀvÀÄÛUÀ¼À£ÀÄß CAwªÀÄUÉƽ¸À®Ä ªÀiÁ£Àå ªÉöÊzÀåQÃAiÀÄ ²PÀàt ¸ÀaªÀgÀÄ, DgÀÉÆÃUåÀ ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt ¸ÀaªÀgÀÄ ºÁUÀÆ UÀȺÀ ¸ÀaªÀgÀÄ (UÀʺÀ ÀaªÀgÀÄ ¸ÀévÀB ªÉÊzÀågÁVgÀĪÀÅzÀ®èzÉà F »AzÉ ªÉÊzÀåQÃAiÀÄ ²PÀët ¸ÀaªÀgÁVzÀÝgÀÄ) UÀ¼À£ÉÆß¼ÀUÉÆAqÀ MAzÀÄ aPÀÌ ¸À«ÄwAiÀÄ£ÀÄß gÀa¸ÀĪÀÅzÀÄ ¸ÀÆPÀÛªÁVgÀÄvÀÛzÉ. F ¸À«ÄwAiÀÄÄ MAzÀÄ ªÁgÀ CxÀªÁ ºÀ¢£ÉÊzÀÄ ¢£ÀUÀ¼ÉƼÀUÁV MAzÀÄ ªÀgÀ¢AiÀÄ£ÀÄß ¤ÃqÀĪÀAvÉ
46
PÉÆÃj D ªÀgÀ¢AiÀÄ DzsÁgÀzÀ ªÉÄÃ¯É ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¸ÀaªÀ ¸ÀA¥ÀÅlzÀ ªÀÄÄAzÉ ªÀÄAr¸À§ºÀÄzÁVgÀÄvÉÛzÉ.
¸À»/-
(¸ÀÄzsÁPÀgï gÁªï) ¸ÀPÁðgÀzÀ ªÀÄÄRå PÁAiÀÄðzÀ²ð.
16. When the said note was placed before the Chief
Minister, he directed to place the same before the
Cabinet for discussion. Accordingly, note was prepared
and placed before the cabinet.
17. After considering the said note the Cabinet
approved as under:
“22) ÀaªÀ ¸ÀA¥ÀÅl n¥ÀàtôAiÀÄ PÀArPÉ 8 gÀ°è M¼ÀUÉÆArgÀĪÀ ¥Àæ¸ÁÛªÀ£ÉUÀ¼À£ÀÄß ¸ÀaªÀ ¸ÀA¥ÀÅl C£ÀĪÉÆâ¹vÀÄ. (underline supplied)
23) ªÀÄÄAzÀĪÀjzÀÄ, «°Ã£ÀUÉÆAqÀ ªÉÊzÀågÀÄUÀ¼À ¸ÉêÁ µÀgÀvÀÄÛ ºÁUÀÆ ªÉÃvÀ£À ¤UÀ¢¥Àr¸ÀĪÀ «µÀAiÀÄUÀ¼À°è ¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉ (¸ÉêÁ ¤AiÀĪÀÄUÀ¼ÀÄ) ºÁUÀÆ DyðPÀ E¯ÁSÉUÀ¼ÉÆA¢UÉ ¸ÀªÀiÁ¯ÉÆÃa¹zÀ £ÀAvÀgÀ ¸ÀÆPÀÛ DzÉñÀªÀ£ÀÄß ºÉÆgÀr¸À ÉÃPÉAzÀÄ ¸ÀaªÀ ¸ÀA¥ÀÅlªÀÅ E¯ÁSÉUÉ ¸ÀÆa¹vÀÄ.”
18. Thereafter, DPAR gave their opinion as follows;
30) ¸ÀASÉåà ¹D¸ÀÄE 524 ÉäJ 2008 ¹D¸ÀÄE(¸ÉêÁ ¤AiÀĪÀÄUÀ¼ÀÄ-J)
47
DPÀÄPÀ 395 JAJA¹ 2007( sÁ-1) ¢£ÁAPÀ 22.12.2008.
PÀ£ÁðlPÀ ¹«¯ï ¸ÉêÉUÀ¼ÀÄ (¸ÁªÀiÁ£Àå £ÉêÀÄPÁw)
¤AiÀĪÀÄUÀ¼ÀÄ, 1977gÀ ¤AiÀĪÀÄ 16(J) (2) gÀ°è ¸ÀPÁðgÀ, ¸ÀªÀiÁ£À
zÀeÉðAiÀÄ ºÀÄzÉÝUÀ½UÉ PÁgÀtUÀ¼À£ÀÄß °TvÀ ªÀÄÆ®PÀ zÁR°¹
MAzÀÄ E¯ÁSÉAiÀÄ CxÀªÁ ¸ÉêÉAiÀÄ £ËPÀgÀgÀ£ÀÄß E£ÉÆßAzÀÄ
E¯ÁSÉ CxÀªÁ ¸ÉêÉUÉ ªÀUÁðªÀuÉ ªÀÄÆ®PÀ £ÉëĸÀ®Ä D¸ÀàzÀ
PÀ°à¸À¯ÁVzÉ.
31) ªÉÄîÌAqÀ ¤AiÀĪÀÄzÀ£ÀéAiÀÄ gÁdå ¹«¯ï ¸ÉêÉUÀ¼À°è£À
ºÀÄzÉÝUÀ¼À £ËPÀgÀgÀ£ÀÄß ¸ÁéAiÀÄvÀÛ ¸ÀA¸ÉÜUÀ¼À°è£À ºÀÄzÉÝUÀ½UÉ ªÀUÁðªÀuÉ
ªÀÄÄSÁAvÀgÀ £ÉêÀÄPÁw ªÀiÁqÀ®Ä D¸ÀàzÀ EgÀĪÀÅ¢®è. ¥Àæ¸ÁÛªÀ£ÉUÉ
¸ÀaªÀ ¸ÀA¥ÀÅlªÀÅ ¢£ÁAPÀ 4.12.2008 gÀAzÀÄ C£ÀĪÉÆAzÀ£É
¤ÃrgÀĪÀ »£É߯ÉAiÀÄ°è F PɼÀPÀAqÀ CA±ÀUÀ¼À£ÀÄß
¥Àj²Ã°¹PÉÆAqÀÄ ¸ÀÆPÀÛ PÀæªÀÄ vÉUÉzÀÄPÉƼÀÀÄzÀÄB-
1. DgÉÆÃUÀå ªÀÄvÀÄÛ PÀÄlÄA§ PÀ¯Áåt E¯ÁSÉAiÀÄ 144 ªÀÄA¢
vÀdÕ ªÉÊzÀågÀÄUÀ¼ÀÄ E¯ÁSÉAiÀÄ ªÀÊAzÀ ªÀÄvÀÄÛ £ÉêÀÄPÁw ¤AiÀĪÀÄUÀ¼À
¥ÀæPÁgÀ ¸ÀPÀæªÀĪÁV £ÉêÀÄPÁw ºÉÆA¢gÀ ÉÃPÀÄ.
2. ¸ÀzÀj ªÉÊzÀågÀÄUÀ¼ÀÄ ¥Àj«ÃPÀëuÁ¢ü/¸ÁÜ£À ¥À£Àß CªÀ¢üAiÀÄ£ÀÄß
vÀȦÛPÀgÀªÁV ¥ÀÇgÉʹgÀ ÉÃPÀÄ.
3. ¸ÀzÀj ªÉÊzÀågÀÄUÀ¼À «gÀÄzÀÞ E¯ÁSÁ «ZÁgÀuÉ/Qæ«Ä£À¯ï
ªÉÆPÀzÀݪÉÄ E®è¢gÀĪÀÅzÀ£ÀÄß RavÀ¥Àr¹PÉƼÀî ÉÃPÀÄ.
48
4. ¸ÀzÀj ªÉÊzÀågÀÄUÀ¼ÀÄ ¸ÁéAiÀÄvÀÛ ¸ÀA¸ÉÜUÀ¼À ¸ÉêÉAiÀÄ°è
«°Ã£ÀUÉÆAqÀ°è ªÀÄÄAzÉ CªÀgÀÄ gÁdå ¹«¯ï ¸ÉêÉUÀ¼À°è£À
ºÀÄzÉÝUÀ½UÉ ªÁ¥À¸ÀÄì §gÀ®Ä D¸ÀàzÀ EgÀĪÀÅ¢®è.
5. ¸ÀPÁðj E¯ÁSɬÄAzÀ ¸ÁéAiÀÄvÀÛ ÀA¸ÉÜUÉ «°Ã£ÀUÉƼÀî®Ä
¸ÀA§A¢ü¹zÀ £ËPÀgÀÄUÀ¼À M¦àUÉAiÀÄ£ÀÄß §gÀªÀtôUÉ ªÀÄÆ®PÀ
¥ÀqÉAiÀÄ ÉÃPÀÄ.
6. ¸ÀzÀj £ËPÀgÀgÀÄ ¸ÀPÁðgÀzÀ°è ¸À°è¹zÀ ¸ÉêÉUÉ
¸ÀA§A¢ü¹zÀAvÉ ¸ÀPÁðj DzÉñÀ ÀASÉå J¥sïr 70 J¸ï Dgï
J¸ï 77 ¢£ÁAPÀ 27.10.1977gÀ ¥ÀæPÁgÀ ¥ÉÇæÃgÁl ¦AZÀtô
¸Ë® Àså zÉÆgÉAiÀÄ ÉÃPÁzÀgÉ ¸ÀzÀj öDzÉñÀzÀ°è£À J¯Áè
µÀgÀvÀÄÛUÀ¼À£ÀÄß ¥ÀÇgÉʸÀ ÉÃPÀÄ; F §UÉÎ DyðPÀ E¯ÁSÉAiÉÆA¢UÉ
¸ÀªÀiÁ¯ÉÆÃa¸À ÉÃPÀÄ.
(¸ÀPÁðgÀzÀ PÁAiÀiðzÀ²ðzÀ ¹D¸ÀÄE AiÀĪÀjAzÀ C£ÀĪÉÆâvÀ)
¸À»/-
(zÉêÀgÁdÄ) ¸ÀPÁðgÀzÀ C¢üãÀ PÁAiÀÄðzÀ²ð,
¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉ, (¸ÉêÁ ¤AiÀĪÀÄUÀ¼ÀÄ-1)
19. The Finance Department gave its opinion as
under;
49
“40) The proposal of the administrative department
relates to absorption of the services of the
doctors of the Department of Health and
Family Welfare Services who are working on
OOD basis, as teaching staffs under the
various autonomous Medical institutions
coming under the Department of Medical
Education. In view of the substantial
difference in the scales of pay of
professors/associate professors etc., of
Medical Education and the specialists in the
Health Department, absorption of officers as
proposed is likely to be viewed as a kind of
promotion or appointment to a higher grade.
Since such absorption is made without regard
to seniority, the specialists who remain in the
Health and Family Welfare Department may
demand similar benefits, particularly if some
of them are senior to those now proposed for
absorption.
(Emphasis supplied) 41. The one time absorption just therefore be
offered only to the senior most specialist
qualified for such absorption. Otherwise,
special rules may be framed for “in service”
recruitment of qualified specialists, so that all
the qualified persons in Health and Family
Welfare Department are given an opportunity
50
to offer themselves for selection to the posts in
medical education on the principle of merit
cum reservation. Thus it appears that the
absorption must be based either on the
principle of “Seniority cum Merit” or of “Merit
cum Reservation”.
(Approved by the Principal Secretary
Finance Department)
Sd/- (P.Narayana)
Under Secretary to Government
Finance Department (Services –1) 20. It is clear from the material on record that the
name of 144 Specialists and Senior Specialists, who
were absorbed, was not annexed to the Cabinet note.
The applicants have produced the gradation list, which
is not in dispute. The persons, who are now absorbed,
are very much juniors to the applicants. While
absorbing, seniority has to be taken into consideration
apart from the field in which, they have requisite
qualification/expertisation. They are also expected to
give due weightage to the teaching Doctors, who are
already working in the Institutions. All these three
51
factors are not kept in mind and contrary to these
stipulations, 144 doctors have been absorbed.
Therefore, while absorbing 144 doctors, due weightage
has not been given to the opinion of the Cabinet, DPAR
and also the Finance Department. The State has not
explained the criteria or the basis for selecting these
144 doctors for absorption. All the persons, who are
similarly placed, who possessed the requisite
qualification, who satisfied all other conditions, are
eligible to be considered for absorption. Infact, the
original list contained 190 doctors. The department
wanted to absorb them. Now they have absorbed only
144 persons. Why the remaining persons are not
absorbed, why 144 doctors are preferred against others
is not forthcoming from any other material. It is
unfortunate that inspite of the committee
recommending for framing of rules prescribing criteria
for absorption, no rules are framed. Inspite of the
Finance Department pointing out the difficulty that they
have to face in future, if such an absorption is not
based on a reasonable criteria and the DPAR also set
52
out the conditions based on which the absorption rules
have been done and particularly, when the cabinet
approved Note No.8, which prescribed seniority as a
condition for absorption under the guise of giving effect
to these orders, the list prepared for absorption is
contrary to the aforesaid stipulations. Therefore, it is
patently illegal and arbitrary and offends Articles 14
and 15 of the Constitution of India. It is discriminatory.
When the applicants requested for absorption, the
request was rejected on the ground that service was
required in the public interest. It is thereafter, this
absorption has taken place. Therefore, case of the
applicants have not at all been considered for
absorption. The State is unable to explain the reason for
excluding these applicants and choosing those
privileged 144 doctors. The said list also includes few
candidates, who have not been deputed into Medical
Education Department. One Dr.S.T.Kavya has been
absorbed, though she was not deputed solely on the
ground that the Chief Minister wants her to be
absorbed. In fact, in the cabinet note, it is categorically
53
stated that by absorbing these doctors who are working
in District Hospitals, public interest would not suffer,
because the doctors were giving services in the Health
and Welfare Department. They are rendering services in
the teaching hospitals. Admittedly, all these applicants
are working on deputation in the District hospitals,
which are all teaching hospitals. They are not only
rendering services to the public, but they are also
teaching the students in the Medical Colleges. They are
far far senior to the persons who are absorbed.
Discrimination is patent. In that view of the matter, the
Tribunal on careful consideration of all the material on
record, taking into consideration the opinion expressed
by the Health and Welfare Department, Finance
Department, DPAR and the Cabinet, was of the view
that the denial of absorption to these applicants is
illegal and therefore, the direction issued to the
authorities to consider their case for absorption and
absorb them in services is lawful and do not suffer from
any infirmity.
54
21. Infact, in the connected applications, one of the
prayer was to strike down the order dated 28.2.2009
absorbing these 144 doctors working in six Medical
Colleges. That has also been allowed.
22. From the material on record, we are satisfied that
this absorption has been done in a very casual manner.
After constituting a Committee, Committee’s
recommendations have been ignored. They have also
ignored the recommendations of the Finance
Department, DPAR and the Department of Health and
Family Welfare. In fact, the absorption is also contrary
to the cabinet note. There should be the rules
prescribing the criteria for such absorption, so that all
eligible persons who are considered on merits and are
absorbed. 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 on the
face of it hit by 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 first frame rules
55
prescribing criteria and then call for applications and
then consider their applications for absorption. That
would put an end to all the controversies. It is open to
them, while making such absorption to bifurcate
subject wise. Once the rules are framed, criteria is fixed,
then the Courts have no role to play. But in the absence
of rules, criteria and the power is not exercised properly,
then it becomes the duty of the Court to interfere and
strike down such arbitrary action. In that view of the
matter, we do not see any justification to interfere with
the order passed by the Tribunal.
23. Insofar as the contention of the petitioner in other
cases who have challenged the order of the Tribunal
before this Court that they were not made parties, they
have not been heard is concerned, it is settled law that
in these matters, nobody can approach this Court
directly. If they were really aggrieved by the order of the
Tribunal, if they were not heard in the matter, the
proper course available to them was to approach the
Tribunal and make their grievance. If the Tribunal does
56
not consider their request or pass any order, then they
can come to this Court. They cannot approach this
Court straight away. Therefore, their writ petitions are
not maintainable.
24. Section 19 of the Administrative Tribunal Act,
1995, provides for applications to Tribunal reads as
under;
19. Applications to Tribunals: (1) Subject to
the other provisions of this Act, a person
aggrieved by any order pertaining to any
matter within the jurisdiction of a Tribunal
may make an application to the Tribunal for
the redressal of his grievance.
Explanation.- For the purposes of this sub-
section, “order” means an order made-
a) by the Government or a local or other authority
within the territory of India or under the
control of the Government of India or by any
corporation (or society) owned or controlled by
the Government; or
b) by an officer, committee or other body or
agency of the Government or a local or other
authority or corporation (or society) referred to
in clause(a).
57
(2) Every application under sub-section (1) shall
be in such form and be accompanied by such
documents or other evidence and by such fee
(if any, not exceeding one hundred rupees) (in
respect of the filing of such application and by
such other fees for the service of execution of
processes, as may be prescribed by the
Central Government).
(3) On receipt of an application under sub-section
(1), the Tribunal shall, if satisfied after such
inquiry as it may deem necessary, that the
application is a fit case for adjudication or
trial by it, admit such application; but where
the Tribunal is not so satisfied, it may
summarily reject the application after
recording its reasons.)
(4) Where an application has been admitted by a
Tribunal under sub-section (3), every
proceedings under the relevant service rules
as to redressal of grievances in relation to the
subject-matter of such application pending
immediately before such admission shall
abate and save as otherwise directed by the
Tribunal. no appeal or representation in
relation to such matter shall thereafter be
entertained under such rules.
58
25. The constitution bench of the Apex Court in the
case of L.Chandra Kumar Vs.Union of India reported in
AIR 1997 SC 1125 dealing with the jurisdiction of
administrative tribunal at para 99 held as under;
“99. In view of the reasoning adopted by us,
we hold that Clause 2(d) of Article 323A and
Clause 3(d) of Article 323B, to the extent they
exclude the jurisdiction of the High Courts
and the Supreme Court under Articles
226/227 and 32 of the Constitution, are
unconstitutional. Section 28 of the Act and
the “exclusion of jurisdiction” clauses Article
323A and 323B would, to the same extent, be
unconstitutional. The jurisdiction conferred
upon the High Courts under Articles 226/227
and upon the Supreme Court under Article 32
of the Constitution is part of the inviolable
basic structure of our Constitution. While this
jurisdiction cannot be ousted, other Courts
and Tribunals may perform a supplemental
role in discharging the powers conferred by
Articles 226/227 and 32 of the Constitution.
The Tribunals created under Article 323A and
Article 323B of the Constitution are possessed
of the competence to test the constitutional
validity of statutory provisions and rules. All
59
decisions of these Tribunals will, however, be
subject to scrutiny before a Division Bench of
the High Court within whose jurisdiction the
concerned Tribunal falls. The Tribunals will,
nevertheless, continue to act like Courts of
first instance in respect of the areas of law for
which they have been constituted. It will not,
therefore, be open for litigants to directly
approach the High Courts even in cases
where they question the vires of statutory
legislations (except where the legislation
which creates the particular Tribunal is
challenged) by overlooking the jurisdiction of
the concerned Tribunal. Section 5(6) of the
Act is valid and constitutional and is to be
interpreted in the manner we have indicated”.
26. Therefore, it is not open for the applicants to
directly approach the High Court even in cases where
there is question of ultravirus nature of statutory
legislation is made by overlooking the jurisdiction of the
concerned Tribunal. If the Tribunal passes an order
without hearing the parties, it is always open to the
persons to approach the tribunal and seek review of the
said order. Only when that request is not granted, he
60
can approach this Court. He cannot directly approach
this Court contending that the order passed by the
Tribunal without impleading them as party behind their
back is bad in law. In view of the fact that the
absorption order is challenged, no right of these
petitioners is taken away. All that has been done is that
the applicants’ case also to be considered along with the
persons who are similarly placed and if they are found
eligible, certainly they would be absorbed.
27. It is contended that if these absorptions are set
aside, it will have an adverse effect in running the
Medical College and it may be contrary to the
stipulations in the MCA. If the Government is sincere
and responsible, they could form a Committee to frame
rules within a period of three days from the date of
receipt of a copy of this order with a direction to the
committee to frame rules within a week from its
constitution and thereafter, publish provisional draft
rules giving a direction to file objection and thereafter,
to finalize the rules within a month and thereafter, start
61
the process of absorption, if necessary, by issuing a
notification in the Gazette, in the newspaper and in the
internet and complete the whole exercise within a period
of two months. We do not see any merit in any of these
writ petitions. Hence, we pass the following:
ORDER
(a) All the writ petitions are dismissed.
(b) The authorities shall frame rules
prescribing the criteria for absorption
within a period of two months from
today.
(c) Thereafter, they shall consider the case
of the eligible persons including the
petitioners before this Court as well as
the applicants before the Tribunal for
absorption and pass appropriate orders
on merits and in accordance with law
under the rules framed for such
absorption.
(d) This exercise shall be done within two
months from the date of receipt of copy
of this order.
62
Parties to bear their own costs.
Sd/- JUDGE
Sd/- JUDGE
NG/SA