Karnataka High Court

Dr Ankit Agarwal vs State Of Karnataka on 4 January, 2021

Author: R Devdas

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 04TH DAY OF JANUARY, 2021

                              BEFORE

             THE HON'BLE MR.JUSTICE R DEVDAS

     WRIT PETITION NO.56547 OF 2016 (EDN-AD)
                       C/W
     WRIT PETITION NO.42684 OF 2016 (EDN-RES)

In W.P.No.56547 of 2016

BETWEEN

1.     Dr. Ankit Agarwal
       S/o. Dr. H.K.Goyal
       Aged about 30 years
       R/a H-601
       Purva Panorama Apartments
       Kalena Agrahara
       Bannerghatta Road
       Bangalore - 560 076
       Course: D.M. Medical Oncology
       Batch 2014-15
       Kidwai Memorial Institute of Oncology

2.     Dr. Prabhat
       S/o. Radhakrishna P. Yaji
       Aged about 33 years
       R/a 24/1, 2nd Cross
       ISEC Main Road, Nagarbhavi
       Bangalore - 560 072
       Course: M.Ch Surgical Oncology
       Batch 2014-15
       Kidwai Memorial Institute of Oncology
                                2



3.   Dr. Vikas Sharma
     S/o. Awadhesh Sharma
     Aged about 34 years
     R/a 202, Shantidhama, KMIO
     Dr. M.H.Marigowda Road
     Bangalore - 560 029
     Course: M.Ch Surgical Oncology
     Batch 2014-15
     Kidwai Memorial Institute of Oncology

4.   Dr. Deepak Kopakka
     S/o. Suri Babu K
     Aged about 28 years
     R/a No.24/35, Adarsh Nagar
     Venkatapuram, ALWAL
     Secundrabad, Telangana - 500 015
     Course: D.M.Medical Oncology
     Batch 2015-16
     Kidwai Memorial Institute of Oncology

5.   Dr. Abhishek Anand
     S/o. Prabhu Narayan Pandit
     Aged about 31 years
     R/a Rajiv Nagar, Keshri Nagar
     Patna - 800 011
     Course: D.M.Medical Oncology
     Batch 2015-16
     Kidwai Memorial Institute of Oncology

6.   Dr. Arpitha A
     D/o. V.Anantha Raju
     R/a No.407, 4th Floor
     Anikethana Sankeerna
     KMIO, Dr. M.H.Marigowda Road
     Bangalore - 560 029
     Permanent R/a Door No.51
     2nd Main, Vidyaranya Puram
     Mysore - 570 008
                                  3


      Course: M.Ch Gynaec Oncology
      Batch 2015-16
      Kidwai Memorial Institute of Oncology

7.    Dr. Venkatesh T
      S/o. T. Doraswamy Reddy
      Aged about 30 years
      R/a Room No.311, PG Men's Hostel
      KMIO, Dr. M.H.Marigowda Road
      Bangalore - 560 029
      Course: D.M.Medical Oncology
      Batch 2016-17
      Kidwai Memorial Institute of Oncology
                                                      ....Petitioners

(By Sri. M.R.Naik, Sr. Counsel for Sri Omkar Kambi, Adv.)

AND

1.    State of Karnataka
      Department of Medical Education
      M.S.Building
      Bangalore - 560 001
      Rep. by its Secretary

2.    Rajiv Gandhi University of Health Sciences
      4th T Block Jayanagar
      Bangalore - 560 041
      Represented by its Registrar

3.    Kidwai Memorial Institute of Oncology
      Dr. M.H.Marigowda Road
      Bangalore - 560 029
      Represented by its Director
                                                    ....Respondents
(By Smt. Pramodini Kishan, AGA for R1;
    Sri N.K.Ramesh, Adv. For R2;
    Sri Aravind V. Chawan, Adv. For R3)
                                   4



      This Writ Petition is filed under Articles 226 & 227 of the
Constitution of India praying to call for the records and issue a writ
of certiorari or any other writ order or direction quashing the order
at Annexure-A passed by R-3-Institute dated 23.07.2014 as
arbitrary and illegal and etc.

In W.P.No.42684 of 2016

BETWEEN

1.    Dr. Jitendra Kumar Pehalajani
      S/o. Kishanchand Pehalajani
      Aged about 30 years
      R/a 111/2
      Near Ashok Nagar School
      Street No.2, Nand Nagar
      Beawar, Ajmer
      Rajasthan - 305 901
      Course - D.M.Medical Oncology
      Kidwai Memorial Institute of Oncology

2.    Dr. Khandare Pravin Ashok
      S/o. Ashok
      Aged about 28 years
      R/a 55 A, Sarpanch Nagar
      Taroda (kd)
      Nanded
      Maharashtra - 431 605
      Course - D.M.Medical Oncology
      Kidwai Memorial Institute of Oncology

3.    Dr. Amale Vaibhav Baburao
      S/o. Amale Baburao Eknath
      Aged about 29 years
      R/a 13/667
      Gurukannan Nagar
      Ichalkaranji
      Taluka - Hatkanangale
                                5


     District - Kolhapur
     Maharashtra - 416 115
     Course - D.M.Medical Oncology
     Kidwai Memorial Institute of Oncology

4.   Dr. Sudipta Bandyopadhyay
     S/o. Pijush Kanti Bandyopadhyay
     Aged about 38 years
     R/a 30/D
     New Santoshpur Main Road
     Kolkata
     Course - D.M.Medical Oncology
     Kidwai Memorial Institute of Oncology

5.   Dr.P.Venkata Simha
     S/o. P. Lakshmanna
     Aged about 28 years
     R/a H.No.6/160
     Pln Complex
     Satyadeva Nagar
     Anantapur
     Andhra Pradesh - 515 001
     Course - D.M.Medical Oncology
     Kidwai Memorial Institute of Oncology

6.   Dr.Darshan Patil
     S/o. B.S.Patil
     Aged about 34 years
     R/a #209
     Brigade Park View Apts.
     B.P. Wadia Road
     Basavanagudi
     Bangalore - 560 004
     Course - M.Ch. Surgical Oncology
     Kidwai Memorial Institute of Oncology

7.   Dr. Girish M.S.
     S/o. K.S.Suresh
     Aged about 33 years
                                  6


      R/a 421, 17th Cross
      4th Main
      Vidyaranyapuram
      Mysore - 570 008
      Course - M.Ch. Surgical Oncology
      Kidwai Memorial Institute of Oncology

8.    Dr. Tiwari Ajeet Kumar Ramamani
      S/o. Ramamani Prabhunath Tiwari
      Aged about 30 years
      R/a B/203
      Godavari CHS
      Vokola Bridge
      Dhobighat
      Santacruz east
      Mumbai - 400 055
      Course - M.Ch. Surgical Oncology
      Kidwai Memorial Institute of Oncology

9.    Dr. M.S. Sushruta
      S. A. Shankar
      Aged about 28 years
      R/a No.4372 21/1
      3rd Cross, 13th Main
      A Block
      Subramanyanagar
      Bangalore - 560 021
      Course - M.Ch. Surgical Oncology
      Kidwai Memorial Institute of Oncology
                                                      ....Petitioners
(By Sri. M.R.Naik, Sr. Counsel for Sri Omkar Kambi, Adv.)

AND

1.    State of Karnataka
      Department of Medical Education
      M.S.Building
      Bangalore - 560 001
      Rep. by its Secretary
                                 7



2.   Rajiv Gandhi University of Health Sciences
     4th T Block Jayanagar
     Bangalore - 560 041
     Represented by its Registrar

3.   Kidwai Memorial Institute of Oncology
     Dr. M.H.Marigowda Road
     Bangalore - 560 029
     Represented by its Director
                                                   ....Respondents
(By Smt. Pramodini Kishan, AGA for R1;
    Sri Santhosh S. Nagarale, Adv. For R2;
    Sri Aravind V. Chawan, Adv. For R3)

      This Writ Petition is filed under Articles 226 & 227 of the
Constitution of India praying to quash the order at Annexure-A
passed by the R-3 dated 23.07.2014 as arbitrary and illegal and
etc.

     These Writ Petitions coming on for Orders this day, the court
made the following:

                             ORDER

R. DEVDAS J., (ORAL):

Learned counsel for the petitioners has filed a memo for

disposal dated 20.02.2020 bringing to the notice of this Court the

decision of a Co-ordinate Bench in a batch of writ petitions in

WP.No.40566/2015 and connected matters, including and more

specifically W.P.Nos.39867-39876/2014.

2. Sri. Madhusudhan R.Naik, learned senior counsel

appearing for the petitioners submits that the petitioners herein are

placed on the same footing, as that of the petitioners in batch of

writ petitions as mentioned hereinabove. Therefore, the learned

Senior counsel submits that the relief that was granted to the

petitioners in W.P.Nos.39867-39876/2014 is also required to be

granted to the petitioners herein.

3. Paragraph No.36 of the order dated 30.08.2019 passed

by the Co-ordinate Bench in W.P.No.40566/2015 reads as follows:

"36. Government letter offering some reprieve:

(i) On 28.08.2019, all these matters having been heard and reserved, were posted for pronouncement of judgment this afternoon; the learned Addl. Advocate General Sri Sandesh Chouta on the forenoon of this day sought for further hearing, by placing on record a Government Letter dated 30.08.2019 (approved by the Principal Secretary of the Department): the content portion of the same reads as under:

"The Original Act i.e., " The Karnataka Compulsory Service by Candidates Completed Medical Courses Act, 2012" came into force on 03/06/2015 and the amendment Act i.e. "The Karnataka Compulsory Service by Candidates

Completed Medical Courses (Amendment) Act, 2017"

came into force on 03/06/2017.

The Original Act covered all candidates who were doing their medical course/post graduate medical course/super specialty graduate course as on 03.06.2015.

However in view of the conditional interim order dated 06.10.2015, the candidates have not undergone the mandatory service.

Looking into the workability of the Act and the object which it seeks to achieve, the State proposes (without prejudice to its contention in support of the vires of the Act) that even if the Act is made applicable for candidates who had taken their admission post of the commencement of the Act i.e., 3/06/2015 (i.e. candidates would pass out in the year 2020-21), the object which the Act seeks to achieve will be achieved. This would also satisfy the petitioners before the Court since most of the petitioners (if not all) would have completed their course well before this cut of period of 2020-21.

Proposal/concession given by the State Government would not inure to the benefit to such of the candidates who have already opted and paid penalty/compensation in lieu of not undergoing mandatory service.

However if for any reason the petitioners and similar placed candidates agree to mandatorily serve the State, even for 6 months, the State would endeavour to commence the process of counseling and post the candidates for compulsory service accordingly."

(ii) Apparently, going by its text and context, the above letter not being a 'Government Order' as rightly submitted by learned ASG Mr. Shashikantha may or may not proprio vigor create any right in favour of the candidates. However, the proposal in the letter is only an expression of Government's intent of granting some reprieve to the deserving candidates who may make use of it, in accordance with law. Suffice it to say that, the legality aspects of the said letter have not been gone into by this Court; whether such a letter has legal efficacy and whether it fits into the "REMOVAL OF DIFFICILTY" clause enacted in the impugned Act, are a matter for consideration, but not in this case."

4. Having considered the letter dated 30.08.2019, the Co-

ordinate Bench proceeded to hold that the impugned Act and Rules

being prospective in operation do not apply to the candidates who

had already been admitted to the respective medical courses, i.e.,

Graduation, Post-Graduation or Super Specialty Courses before

24.07.2015 i.e., the date on which the Karnataka Act No.26 of 2015

came into force. Consequently, the Government of Karnataka was

directed to lay down the guidelines within two months as directed

therein.

5. The petitioners are entitled for a similar relief that was

granted by the Co-ordinate Bench in W.P.Nos.39867-39876/2014

where Kidwai Memorial Institute of Oncology is a respondent.