The Principal Secretary To ... vs Dr V P Thanushree
2022 Latest Caselaw 13071 Kant

Citation : 2022 Latest Caselaw 13071 Kant
Judgement Date : 16 November, 2022

Karnataka High Court

The Principal Secretary To ... vs Dr V P Thanushree on 16 November, 2022

Bench: Chief Justice, Ashok S.Kinagi

                             -1-




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16TH DAY OF NOVEMBER, 2022

                       PRESENT

THE HON'BLE MR.PRASANNA B.VARALE, CHIEF JUSTICE

                         AND

       THE HON'BLE MR.JUSTICE ASHOK S.KINAGI

        WRIT APPEAL NO.984 OF 2022 (EDN-RES)

BETWEEN:

1.     THE PRINCIPAL SECRETARY
       TO GOVERNMENT
       DEPARTMETN OF HEALTH AND FAMILY
       WELFARE, VIKASA SOUDHA
       BENGALURU

2.     THE DIRECTOR/COMMISSIONER
       DEPARTMENT OF AYUSH
       DHANVANTHRI ROAD
       BENGALURU - 560 009

3.     THE PRINCIPAL
       GOVERNMENT HOMEOPATHIC MEDICAL
       COLLEGE AND HOSPITAL
       DR. SIDDAIAH PURANIK ROAD
       BASAVESHWARANAGAR
       BENGALURU - 560 079.
                                         ... APPELLANTS

(BY SRI S.RAJASHEKAR, AGA)

AND:

1.     DR.V.P.THANUSHREE
       D/O VASANTH K.R.
       AGED ABOUT 26 YEARS
                               -2-




      No.1820, 4TH CROSS, D BLOCK
      RAJAJINAGAR, 2ND STAGE
      BENGALURU - 560 010

2.    DR.H.P.NAMRATHA
      D/O. M.PRAKASH KUMAR
      AGED ABOUT 26 YEARS
      No.19, 1ST MAIN, 3RD CROSS
      SVG NAGAR, MUDALAPALYA
      NAGARABHAVI POST
      BENGALURU - 560 072.
                                          ... RESPONDENTS

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALOW THE
WRIT APPEAL AND TO SET ASIDE THE IMPUGNED ORDER
DATED 12.11.2020 PASSED BY THE LEARNED SINGLE JUDGE
OF THE HON'BLE HIGH COURT IN WRIT PETITION
NO.2736/2020 (EDN-RES) AND ETC.

     THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:

                         JUDGMENT

Heard the learned Additional Government Advocate for

the appellants who were the respondents before the learned

Single Judge.

2. Being aggrieved by the order dated 12.11.2020

passed by the learned Single Judge in W.P.No.2736/2020, the

appellants are before this Court.

3. The respondents who were the petitioners before

the learned Single Judge challenged the Government order

dated 15.04.2015 issued by the State of Karnataka whereby,

the condition was imposed upon the petitioners that they shall

not be entitled to receive stipend for their internship period.

4. The petitioners after completing their first year

Bachelor of Homeopathic Medicine and Surgey (BHMS) at

Bharathesh Homeopathic Medical College, Belgaum sought for

transfer to another college i.e., Government Homeopathic

Medical College and Hospital, Bangalore. It is not in dispute

that the petitioners were admitted in the said Government

college under the Government quota. The petitioners

successfully completed their course in BHMS, applied for

internship and completed their internship. At the time of

taking up of the internship, a condition was imposed that they

should not seek for stipend on account of their migration from

one college to another college. In spite of such condition, the

petitioners after completion of their internship, applied for

stipend and the same was refused by the aforesaid order

dated 15.04.2015.

5. It is the contention of the learned counsel for the

petitioners before the learned Single Judge that such

condition itself was bad in law and the same has been held

unconstitutional by the Co-ordinate Bench of this Court in its

order dated 18.02.2019 passed in W.P.No.25176/2017. The

copy of the same is placed on record at Annexure-F.

6. In the order dated 18.02.2019, the learned Single

Judge has observed as follows:

"The stipend is statutorily prescribed for the students who gain entry to the internship presumably because it is not only a learning process, but, some amount of public service is put in by such students. Extracting service although in the course of imparting instructions would not be in tune with the spirit of Article 23(1) of the Constitution of India which prohibits 'begar'."

7. Further, the learned Single Judge by referring

certain decisions of the Hon'ble Apex Court has observed as

follows:

"The right to receive stipend during the internship has trappings of the Fundamental Right guaranteed under Article 23(1) of the Constitution of India and that a Fundamental Rights cannot be waived."

8. The learned Single Judge further observed as

follows:

"The authorities had no competence to stipulate the condition that the medical student migrating from one college to another shall not claim the stipend during the internship. Even otherwise also such a condition appears to be unconscionable, keeping in mind the purpose of permitting migration."

9. By relying on the order dated 18.02.2019 passed

in W.P.No.25176/2017, the learned Single Judge allowed

W.P.No.2736/2022.

10. It will not be out of place to state here that the

order of the learned Single Judge passed in

W.P.No.25176/2017 was challenged in the writ appeal and the

Division Bench of this Court, vide its judgment dated

11.10.2022, finding no error in the order passed by the

learned Single Judge with regard to concurring view adopted

in the writ petition, dismissed the appeal.

11. Considering all these facts, we do not find any

reason to take a different view than the view adopted by the