Dr.Patwegar Abdul Kadeer vs Khaja Banda Nawaz Institute Of ...
2021 Latest Caselaw 3346 Kant

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        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

  DATED THIS THE 17TH DAY OF SEPTEMBER, 2021

                     BEFORE

        THE HON'BLE MR.JUSTICE R. NATARAJ

           W. P. No.200107/2017 (S-DIS)
BETWEEN:
Dr. PATWEGAR ABDUL KADEER,
AGE:63 YEARS,
OCC: NIL
R/O 7-771/9, GAFOOR MANSION
MIJGORI, KALABURAGI-585 104.
                          ...PETITIONER
(BY SRI D.P. AMBEKAR, ADVOCATE)

AND :

1. KHAJA BANDA NAWAZ INSTITUTE OF
MEDICAL SCIENCE,
GULBARGA, THROUGH ITS PRESIDENT,
KHUSRO HUSSAININ MOHAMMAD MOHAMMAD
HUSSAIN, AGE:MAJOR, OCC:THE PRESIDENT
KHAJA BANDA NAWAZ INSTITUTE OF MEDICAL
SCIENCE, KALABURAGI, R/O KALABURAGI-585104.

2. KHAJA BANDA NAWAZ INSTITUTE OF MEDICAL
SCIENCE,
GULBARGA, THROUGH ITS SECRETARY,
MR.LATIF SHARIF, AGE:MAJOR,
OCC: THE SECRETARY
KHAJA BANDA NAWAZ INSTITUTE OF MEDICAL
SCIENCE,
KALABURAGI, R/O KALABURAGI-585 104.

3. KHAJA BANDA NAWAZ INSTITUTE OF MEDICAL
SCIENCE,
GULBARGA, THROUGH ITS PRINCIPAL
DR. AKRAM NAYAKWADI-585 104.
                                 2


4. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
KARNATAKA, 4TH 'T' BLOCK, JAYANAGAR,
BANGALORE-41.
                                ....RESPONDENTS
(BY SRI AMRESH ROJA, ADVOCATE FOR RESPONDENT
NOS.1 TO 3
SRI SANDEEP PATIL, ADVOCATE FOR RESPONDENT NO.4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE
OF CERTIORARI, QUASHING THE IMPUGNED JUDGMENT
AND ORDER AT ANNEXURE 'E' VIZ., THE JUDGMENT AND
ORDER DATED 02.11.2016 PASSED BY THE PRL. DISTRICT
JUDGE, KALABURAGI AND EDUCATION APPELLATE
TRIBUNAL, KALABURAGI, DISMISSING EAT No.2/2011
AND FURTHER ALLOW THE SAID APPEAL AS PRAYED
THEREIN, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                           ORDER

In this writ petition, the petitioner has challenged the

judgment and order dated 02.11.2016 passed by the

Principal District Judge, Kalaburagi, and Education

Appellate Tribunal, Kalaburagi, dismissing EAT No.2/2011

on the ground that it does not have jurisdiction to consider

the same.

2. The facts as pleaded in the writ petition, in a

nutshell, are that the petitioner was appointed as an

Assistant Professor in Surgery on 12.03.2009 at the

respondent No.3. It is stated that the respondent Nos.1 to

3 paid the salary to the petitioner for the months of April

2009 to June 2009 but refused to pay the salary for the

subsequent months. The petitioner got a notice issued on

29.11.2010 which however was not replied. Respondent

Nos.1 to 3 thereafter directed the petitioner not to sign the

muster roll. The petitioner complied with the direction of

respondent Nos.1 to 3 but continued in the service of the

respondent No.3. On 01.04.2011, the respondent No.3

informed the petitioner that his services were terminated.

The petitioner, therefore, filed an appeal before the

Education Appellate Tribunal (henceforth referred to as

'the Tribunal') in EAT No.2/2011 under Section 96 of the

Karnataka Education Act, 1983 (for short, the 'Act of

1983').

3. Respondent Nos.1 to 3 appeared and

contended that the petitioner had established a nursing

home and had not given any information about the same

to respondent Nos.1 to 3. They claimed that respondent

No.1 is governed by the Indian Medical Council Act, 1956

and the Rules and Regulations framed therein and

therefore, the provisions of the Act of 1983 are not

applicable.

4. Based on the aforesaid contentions, the

Tribunal passed the impugned order holding that the

provisions of the Act of 1983 are not applicable to

respondent No.1. It is against this order, the present writ

petition is filed.

5. The learned counsel for the petitioner submits

that Section 2(20) of the Act of 1983 defines "Medical

Education" as follows:

"Medical Education" includes education in modern scientific medicine, in all its branches, Ayurvedic system of medicine, Unani system of medicine, integrated system of medicine, Indigenous medicine, Naturopathy, Siddha or Homeopathy."

He also submitted that Section 3 of the Act of 1983

regulates general education, professional education,

medical education, technical Education etc. at all levels in

accordance with the provisions of the Act of 1983.

6. The learned counsel for the petitioner further

submits that the provisions of the Act of 1983 are

applicable in respect of the disputes relating to service

conditions of the employees of the medical college since

the Indian Medical Council Act, 1956 does not deal with

the service conditions of the staff of a medical College.

The learned counsel invited the attention of the Court to

the judgment rendered by a Division Bench of this Court in

W.A. No.30934/2012 (Dakshin Bharath Hindi Prachar

Sabha (Karnataka) vs. Dr. A.S. Gadag - decided on

12.03.2013) where too, the same question was addressed

by this Court and it was held that the provisions of the Act

of 1983 are applicable.

7. The learned counsel for the respondent Nos.1

to 3 on the other hand contended that Section 2(27)(b) of

the Act of 1983 excludes its application to the colleges like

the one run by the respondent No.3 which are affiliated to

the Health University. Hence, he contended that the

Tribunal was justified in not entertaining the appeal.

8. I have considered the submissions made by

the parties.

9. It is not in dispute that the petitioner has filed

the present writ petition claiming to be an employee of the

respondent No.3. The dispute between the petitioner and

the respondent No.1 relates to the appointment and the

consequent termination of the petitioner from service. The

issues affecting the service conditions of the petitioner are

certainly not dealt with under the provisions of the Indian

Medical Council Act. Having regard to the sweep of

Section 1(3)(iv) of the Act of 1983 and in view of the law

laid down by the Division Bench of this Court as referred

above, the Tribunal is vested with the jurisdiction to try

and adjudicate the dispute between the petitioner and

respondent No.1.

Hence, this Writ Petition is allowed and the impugned

order passed by the Tribunal in E.A.T. No.2/2011 is

quashed. The case is referred back to the Tribunal for

reconsideration.

The parties shall appear before the Tribunal on

05.10.2021. All contentions of the parties are left open.

Sd/-

JUDGE

sma