Dr L Umesh vs The State Of Karnataka
2022 Latest Caselaw 2987 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                 W.A.No.78/2021 (S - RES)

BETWEEN :
Dr. L.UMESH
S/O LATE G.S.LINGARAJ
AGED ABOUT 59 YEARS,
OCC: PROFESSOR & HOD,
DEPT. OF NEPHROLOGY
VICTORIA HOSPITAL CAMPUS
BANGALORE-560002

AND ALSO R/AT NO.1604-G,
MANTHRI GREENS, SAMPIGE ROAD,
MALLESWARAM, BANGALORE-560003               ...APPELLANT

            (BY SRI K.B.MOUNESH KUMAR, ADV. FOR
                  SMT.VIJETHA R. NAIK, ADV.)

AND :

1.      THE STATE OF KARNATAKA
        BY PRINCIPAL SECRETARY TO
        GOVERNMENT DEPARTMENT OF
        HEALTH & FAMILY WELFARE
        SERVICES (MEDICAL EDUCATION),
        1ST FLOOR, VIKAS SOUDHA,
        Dr. AMBEDKAR VEEDHI, BENGALURU-560001

2.      STATE OF KARNATAKA
        BY ITS ADDITIONAL CHIEF
                           -2-



     SECRETARY TO GOVT.,
     DEPARTMENT OF HEALTH &
     FAMILY WELFARE SERVICES,
     1ST FLOOR, VIKAS SOUDHA,
     Dr. AMBEDKAR VEEDHI,
     BENGALURU-560001

3.   THE INSTITUTE OF NEPHRO-UROLOGY
     VICTORIA HOSPITAL CAMPUS
     BENGALURU-560002
     REP BY ITS DIRECTOR

4.   Dr. R.KESHAVAMURTHY
     S/O BYARANNA,
     AGED ABOUT 56 YEARS,
     OCC: WORKING AS IN-CHARGE
     DIRECTOR & PROFESSOR &
     HEAD OF DEPT. OF UROLOGY
     INSTITUTE OF NEPHRO-UROLOGY,
     VICTORIA HOSPITAL COMPUS,
     BENGALURU-560002                   ...RESPONDENTS

      (BY SRI G.V.SHASHIKUMAR, AGA FOR R-1 & R-2;
              SRI K.M.PRAKASH, ADV. FOR R-3;
     SRI MADHUSUDAN R. NAIK, SENIOR COUNSEL A/W
          SRI M.VEERABHADRAIAH, ADV. FOR R-4.)

     THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF THE LEARNED SINGLE JUDGE
DATED 02.12.2020 PASSED IN W.P.NO.47256/2015 (S-RES) AND
BE FURTHER PLEASED TO ALLOW THE SAME AND ETC.

     THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:

                   JUDGMENT

This intra-Court appeal is directed against the

order dated 02.12.2020 passed by the learned Single

Judge in W.P.No.47256/2015 whereby the writ petition

filed by the appellant herein has been dismissed.

2. The appellant claiming to be the professor of

Nephrology approached the Writ Court challenging the

order/proceedings dated 29.11.2008 - i) Annexure-AC

insofar as it pertains to accord of sanction for

absorption of the respondent No.4; ii) Annexure-AD

dated 04.12.2008 which notified permanent absorption

of the teaching staff of the Medical Education

Department into the institute; iii) Annexure-E dated

29.07.2015 insofar as it reflects the appellant's name in

seniority list; and iv) Notification of 27.08.2015 whereby

the respondent No.4 was appointed as ad-hoc Director

of the institute.

3. The questions of absorption and seniority of

the respondent No.4 were the contested issues whereas

the appointment of the respondent No.4 as ad-hoc

Director was given up as not pressed in the writ

proceedings as the same was the subject matter of

W.P.No.7141/2020 which has culminated in the order

of the Division Bench dated 07.06.2021 in

W.A.No.6/2021.

4. The learned Single Judge has formulated the

points for consideration as under:

"(1) Whether respondent No.4 was disqualified for future employment in the services of the State in view of his alleged dismissal from service in the Department of Health and Family Welfare?

     (2)    Whether the acceptance of resignation
            of   respondent      No.4   by    the    State

Government with retrospective effect is bad in law?

(3) Whether the absorption of respondent No.4 in the Institute of Nephro-Urology is violative of the bye-laws of the Institute?

(4) Whether the petitioner is entitled for the reliefs claimed in the petition without seeking the relief of quashment of initial appointment of respondent No.4 as Lecturer in 2000 and acceptance of his resignation by the Government in the year 2003?

(5) Whether the petitioner has locus standi to challenge the absorption and the consequent seniority of respondent No.4 under Article 226 of the Constitution?

(6) Whether the Seniority list prepared by the second respondent is in accordance with the rules and regulations governing the second respondent - Institute?

(7) Whether the notification dated 27.08.2015 (Annexure-'F') placing the fourth respondent in additional charge of the Director suffers from any illegality or contravention of the bye-laws of the Institution?"

5. Point Nos.1 to 3 were answered against the

appellant. In view of the said conclusion, it has been

observed that Point Nos.4 and 5 do not survive for

consideration. Point Nos.6 and 7 are also answered

against the appellant. Thus, it has been held that there

is no illegality whatsoever in the absorption of

respondent No.4 and the appellant is not entitled for the

relief claimed in the Writ Petition. As regards the

challenge to the seniority list, the Writ Court has held

that the appellant is precluded from disputing the said

seniority list as he was not even born in the cadre when

respondent No.4 was appointed as Professor.

Resultantly, the Writ Petition has been dismissed.

6. Being aggrieved by the said order of the

learned Single Judge, this Writ Appeal is preferred by

the petitioner/appellant.

7. Learned counsel appearing for the appellant

submitted that the respondent No.4 was appointed in

the State services as a Surgeon in the year 1991. Owing

to acts of misconduct, the department enquiry was

initiated against him and the charges were proved

which has resulted in his dismissal from service. The

order of the dismissal was challenged by the

respondent No.4 before the KAT in Application

No.5799/1996 and by order dated 04.04.1997, the

same was disposed of, with certain observations.

Suppressing the same, the respondent No.4 on

08.06.1999 submitted application for fresh

employment pursuant to the notification issued by the

KPSC and secured entry into State services. The

resignation submitted by the respondent No.4 was

accepted with retrospective effect which is unheard in

the service jurisprudence. Learned counsel argued that

the learned Single Judge failed to appreciate the vital

aspects of the case in the background of the acquisition

of super specialty degree by the appellant in the year

1995 - DNB Nephrology and he joining the services as

Professor in the year 2004 whereas the respondent No.4

acquiring DNB Urology degree in the year 1996, became

Professor in the year 2015. Learned counsel submitted

that the bye-laws of the Institute specifies that the

seniority shall be drawn by the Chief Administrative

Officer [CAO], whereas the seniority list prepared by the

Director has been accepted by the learned Single Judge.

The seniority has to be considered from the date of their

continuous officiation in the cadre to which they were

appointed.

8. Learned Senior counsel Sri.M.R.Nayak

representing the respondent No.4 submitted that the

Writ Appeal is not maintainable since the appellant has

superannuated on 30.04.2021, now has been appointed

on contract basis for two years. Being a retired

employee, he has no subsisting cause of action to

adjudicate the issues and prayers becoming academic,

Writ Appeal is liable to be dismissed.

9. Learned Senior Counsel submitted that the

question relating to the appointment of ad-hoc Director

has been decided in W.P.No.7141/2020 against which

W.A.No.6/2021 was preferred by the appellant, the

same having been withdrawn by the appellant, no

further challenge would be maintainable, even as

regards the absorption of the respondent No.4 and the

seniority list (Annexure-AD). Learned Senior Counsel

submitted that the appellant has no locus to question

the validity and correctness of the absorption of the

respondent No.4/appointment as lecturer, while he was

not at all in service either with the Government or with

respondent No.3 at the time of entry of respondent No.4

into service with the Institute.

10. Learned Senior counsel further argued that

for absorption process of deputed staff/Government

servant of State Government, the Rules only provide for

approval of screening committee constituted by the

Governing Council for that purpose. The same being

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complied with, absorption order passed by the

Government in conformity with the proviso to Rule 12(2)

cannot be held to be illegal, the contention of the

appellant is wholly misconceived. These aspects having

been duly considered by the learned Single Judge, there

is no error in the order impugned.

11. Learned counsel appearing for the Institute

submitted that the order of absorption is made having

regard to the entry of service of the respondent No.4

which is much earlier i.e., 30.08.2000 as on that date

the appellant was not even born into the service of the

Institute. The absorption of respondent No.4 as well as

other similarly placed employees has been done by the

Government following due procedure. For the purpose of

absorption of the staff or the Government servants from

the other departments, the approval of screening

committee is the required criteria and the same has

been duly complied with.

- 11 -

12. Learned counsel further submitted that as

per Chapter-I of Annexure-II of Memorandum of

Association Rules and Regulations and Byelaws -

Conditions of Service Rules, the Director is competent to

prepare and publish a seniority of all the staff of the

institute both intra and inter departmental in

accordance with the provisions of the seniority rules of

the State Government or such rules to be framed by the

Governing Council from time to time. Hence, the

arguments of the learned counsel for the appellant that

CAO is the competent authority to prepare the seniority

list does not hold water and must fail.

13. Learned Additional Government Advocate

appearing for the State Government has submitted that

effective steps are taken to appoint a regular Director in

compliance with the order passed by the Co-ordinate

Bench of this Court in W.A.No.6/2021, photo copy of

the notification dated 05.10.2021 issued by the

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Government of Karnataka inviting applications from

eligible candidates to fill up the vacant post of Director

at the Institute has been placed on record. The letter

dated 05.10.2021 issued by the Secretary, Medical

Education Department to the Director of Medical

Education and Director, Nephro Urology to publish the

said notification in daily newspaper and also in the

website of the Institute and Directorate along with the

letter dated 29.10.2021 issued by the Director of

Medical Education to the Principal Secretary, Medical

Education Department, Government of Karnataka, are

also placed on record. In terms of the letter dated

29.10.2021, five applications are received for the post of

regular Director wherein, both the appellant and the

respondent No.4 are the applicants and the same is

under process. Thus, the learned Additional

Government Advocate submitted that the process would

be completed in an expedite manner.

- 13 -

14. We have heard the learned counsel

appearing for the parties and perused the material on

record.

15. The first argument that the respondent No.4

had been visited with a disciplinary enquiry and had

been dismissed, a dismissed employee suppressing the

material facts has got appointed as a lecturer in the

Department of Health and Family Welfare Services

disentitles him for any future employment is wholly

unsustainable for the reason that the so called

dismissal of respondent No.4 as contended by the

appellant is far away from the factual and legal aspects.

The order of dismissal was challenged by the

respondent No.4 before the KAT in Application

No.5799/1995 on the ground of violation of the

principles of natural justice not being in conformity with

the dictum laid down by the Hon'ble Apex Court in the

case of Union of India V/s. Md.Ramzan Khan [AIR

- 14 -

1991 SC 471] and in the case of Managing Director,

E.C.I.L., V/s. B.Karunakar [AIR 1994 SC 1074], it

was specifically contended that no orders were passed

by the concerted authority on the leave application

submitted by him. The said application has been

disposed of by the KAT, the relevant paragraphs of

which read thus:

"8. the other factuals related to A.No.5799/2016 are considered in the order of reference itself. Since the entire matter is before us, we have heard the counsel on both sides on merits. Subject-matter of main application could be disposed of within a short compass. From the records, we have not been able to find out regarding any attempts having been made to serve copy of the Enquiry Officer's report to the applicant. Following the ratios decided in Union of India V/s. Md.Ramzan Khan, reported in AIR 1991 SC 471 and Managing Director E.C.I.L.., V/s. B.Karunakar, reported in AIR 1994 SC 1074, it is incumbent on the part of the Disciplinary Authority to make endeavour to furnish

- 15 -

Enquiry Officer's report. Relevant observations are reflected at Paras 7 and 9.

9. In the light of the above ratios of the cases decided by the Supreme Court, the authorities are directed to serve the copy of the enquiry officer's report and, thereafter, the applicant is directed to furnish his explanations, if any, within eight weeks from the date of receipt of Enquiry Officer's report. The Disciplinary Authority, after considering the explanation, pass suitable orders in accordance with law."

16. Thus, the enquiry initiated by the

respondent No.2 has remained inconclusive as no final

order was passed in the disciplinary proceedings

initiated against respondent No.4 for the alleged

unauthorized absence. Therefore, there is no scope for

the appellant to dispute the initial appointment and

induction of the respondent No.4 into the services of the

respondent No.2 as rightly observed by the learned

Single Judge. The allegation of fraud, misrepresentation

- 16 -

and gaining the employment in the State Services

against Rule 8(viii) of the KCS(CCA) Rules are baseless

and wholly untenable. The judgment of Employers in

relation to the Management of Bhalgora Area [Now

Kustore Area] of M/s. Bharat Coking Coal Ltd.,] V/s.

Workmen being represented by Janta Mazdoor

Sangh [SLP(C).No.29873/2016] relied upon by the

learned counsel for the appellant is not applicable to the

facts and circumstances of the case.

17. As regards the acceptance of the resignation

by the Government with retrospective effect from

01.11.1994, learned counsel for the appellant has

placed reliance on the judgment of this Court in

Smt.A.R.Vinutha V/S. Director of Collegiate

Education in Mysore, Bangalore and Another [ILR

1973 (23) KAR 951] wherein, it has been held that the

authority accepting the resignation, cannot make it

operative with retrospective effect. There is no cavil on

- 17 -

this legal proposition. It is rightly observed by the

learned Single Judge that the resignation dated

02.05.2003 (Annexure-V) submitted by the appellant

was accepted with retrospective effect from 01.11.1994

but the same was not challenged by the appellant either

before the statutory authorities or before the writ Court

and the same cannot be challenged in a collateral

proceeding. These questions involving questions of

facts cannot be adjudicated by the Writ Court under

Article 226 of the Constitution of India. Thus, the

learned Single Judge has denied to exercise the

discretionary power under Article 226 for not

exhausting the alternative remedy available under the

State Administrative Tribunal's Act. No exception can

be found with the said finding of the learned Single

Judge.

18. The main ground of attack of absorption of

respondent No.4 that no approval was made by the

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Governing Council of INU is wholly misconstrued since

the permanent transfer of absorption of the employees

with posts was sanctioned by the Government, the

approval of the Governing Council was not necessary.

Rule 12 of the Rules and Regulations of the Institute

which deals with appointment of staffs would not be

applicable to the absorption of the post made in terms

of the Government Order dated 27.10.1977. The post

transferred by the Government and the post created by

the Institute stand on a different footing. It is not in

dispute that the Government had accorded sanction in

the public interest for the permanent absorption of

teaching staff of Medical Education Department working

in the Institute of Nephro Urology, Bangalore, into the

Autonomous Institute of Nephro Urology, Bangalore

with retrospective effect, subject to the conditions

prescribed therein as per the Government Order dated

29.11.2008. It is thus clear that as on the date of entry

of the respondent No.4 i.e., 30.08.2000, the appellant

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was not born in the cadre as the appellant was

appointed as Professor of Nephrology on 18.05.2012

pursuant to the notification issued by the Institute

whereas the respondent No.4 was absorbed into service

in the Institute on 25.08.2000 in terms of the order

passed by the Government considering the

recommendation of Screening Committee approved by

the Governing Council. The services rendered by the

appellant in M.S.Ramaiah Medical College much less

his promotion as Professor in the said college with effect

from 01.01.2004 is insignificant. Thus, the challenge

made to the absorption of respondent No.4 must fail.

19. The challenge to the Seniority list also does

not merit consideration as the Director is empowered to

prepare and publish the seniority list as per

Annexure-2, Chapter-I of Conditions of Service Rules of

the Institute. In terms of the clause 20 of bye-laws, the

Chief Administrative Officer shall prepare and maintain

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the Seniority list. Thus, the power of publishing the

Seniority list vests with the Director.

20. Viewed from any angle, no ground is found

to interfere with the well considered order of the learned

Single Judge.

Writ appeal being bereft of merits, stands

dismissed.

It is needless to observe that the State

Government shall expedite the process of appointment

of the regular Director as directed by the Co-ordinate

Bench of this Court in W.A.No.6/2021.

Sd/-

JUDGE

Sd/-

JUDGE

nd