Dr S S Sharath vs Shimoga Institute Of Medical Sciences
2024 Latest Caselaw 839 Kant

Karnataka High Court

Dr S S Sharath vs Shimoga Institute Of Medical Sciences on 10 January, 2024

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                                                     NC: 2024:KHC:1195
                                                 WP No. 23502 of 2012




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 10TH DAY OF JANUARY, 2024

                                      BEFORE
                 THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

                       WRIT PETITION NO.23502 OF 2012 (S-RES)

            BETWEEN:

                  DR.S S SHARATH
                  S/O SHANKAR NAIK
                  AGED ABOUT 29 YEARS
                  RESIDING AT
                  NO.50, RAJAGRUHA
                  1ST CROSS, ASHOKNAGAR
                  SHIVAMOGGA - 577201


                                                        ...PETITIONER
            (BY MS.M.L.SUVARNA, ADVOCATE FOR
            SRI.K.PUTTEGOWDA, ADVOCATE)
Digitally
signed by
ALBHAGYA    AND:
Location:
HIGH
COURT OF    1.    SHIVAMOGGA INSTITUTE OF
KARNATAKA         MEDICAL SCIENCES
                  DISTRICT MC.GANN HOSPITAL
                  SHIVAMOGGA -577201
                  REPRESENTED BY ITS DIRECTOR

            2.    STATE OF KARNATAKA
                  BY ITS PRINCIPAL SECRETARY TO
                  GOVERNMENT
                  DEPARTMENT OF MEDICAL EDUCATION
                  M.S.BUILDINGS
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                                           NC: 2024:KHC:1195
                                      WP No. 23502 of 2012




     DR.AMBEDKAR VEEDHI
     BENGALURU - 560 001


                                           ...RESPONDENTS
(BY SRI. S B TOTAD, ADVOCATE FOR R.1;

SRI.B.RAVINDRANATH, AGA FOR R.2)


      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS LEADING TO THE ENDORSEMENT DATED
16.04.2012 AND ETC.


      THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:


                            ORDER

The captioned writ petition is filed assailing the

endorsement issued by respondent No.1 - Institution in

denying to grant AICTE pay scales in terms of the

appointment order issued by respondent No.1 herein. This

endorsement is issued declining to grant regular pay scale

as prescribed by the AICTE on the ground that the

petitioner has not questioned the denial of AICTE pay scale

by approaching the Court and therefore, the

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representation submitted by the petitioner seeking salary

in terms of AICTE pay scale cannot be considered. Feeling

aggrieved by the said endorsement, the petitioner is

before this Court.

2. The petitioner was appointed as a Tutor in

Forensic Medicine at 1st respondent - Institution and he

was placed in the pay scale of Rs.8000-275-13500 in

terms of the AICTE pay scale. The grievance of the

petitioner is that though under appointment order, the

respondent No.1 - Institution has indicated that the salary

would be paid in terms of AICTE pay scale, however, the

same was denied.

3. The petitioner's claim is that the co-tutors,

who were appointed along with petitioners and were

denied AICTE pay scale, have knocked doors of the Writ

Court in W.P.No.1847/2007. This Court, while not acceding

to the defence of respondent No.1 - Institution, has

allowed writ petition filed by the employees of respondent

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No.1 - Institution and a direction was issued in the writ

petition by recording a finding that respondents are bound

to pay the Tutors in terms of Official Memorandum issued

in respect of each of the petitioners while appointing under

AICTE pay scale. Learned Single Judge of this Court held

that respondent No.1 - Institution is bound by declaration

indicated in the appointment order.

4. Respondent No.1 - Institution aggrieved by

the judgment rendered by the Co-ordinate Bench

preferred an appeal before the Division Bench. The

Division Bench, while concurring with the findings recorded

by the learned Single Judge, proceeded to dismiss the writ

appeal.

5. Heard learned counsel appearing for the

petitioner and learned counsel appearing for respondent

No.1 - Institution.

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6. This petition is resisted by respondent No.1 -

Institution on the ground that petitioner to pursue his

further studies has tendered his resignation and the same

is accepted by the Institution and therefore, he has no

locus to seek AICTE pay scale and he cannot claim to be

an aggrieved party for non-grant of AICTE pay scale. The

benefit extended to the other co-tutors pursuant to the

order passed by this Court and confirmed by the Division

Bench would not enure to the benefit of the petitioner

herein and therefore, learned counsel appearing for the

respondent No.1 - Institution has sought for dismissal of

the captioned writ petition on this sole count.

7. The Division Bench, while examining co-tutors'

claim of non-granting AICTE pay scale, has taken into

consideration rival contentions. Para No.9 would be

relevant which would clinch the entire controversy

between the parties. Therefore, I deem it fit to cull out

para No.9 of the findings recorded by the Division Bench,

which reads as under;

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"9. The material on record would clearly show that in the notification calling for applications for appointment to the post of Tutors, it is clearly stated that AICTE pay scale would be given to the Tutors. Notification has been produced as per Annexure 'B' to the writ petition. Even as per the appointment orders as per Annexures 'C1' to 'C5', it is clear that appointment orders have been issued to each of the writ petitioners (respondents 1 to 5 herein) appointing him/her as Tutor with AICTE Pay Scale with effect from the date of joining the duty at the first respondent - Institute (appellant herein) and wherefore, the fact that a promise was made to the applicants that the applicants, who would get selected to the post of Tutors would be paid AICTE pay scale cannot be disputed. The averments made in the writ petition would clearly show that petitioners 1, 2 and 3 were in Government service and they resigned to their respective posts and they joined the first respondent - Institute since they were offered AICTE pay scale, which was higher than the pay-scale which they were receiving from the Government service and the said fact also cannot be disputed in view of the document

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produced by the petitioners (respondents 1 to 5 herein) Annexed to the writ petition. That having regard to the above said facts, it is clear that when once appointment orders were issued to the writ petitioners (respondents 1 to 5 herein) appointing them as Tutors promising to pay AICTE pay scale, the same could not have been changed to their prejudice by the resolution passed by the first respondent - Institute (appellant herein). Therefore, the impugned order passed by the learned single Judge is justified and does not suffer from any error or illegality as to call for interference in this intra Court appeal. Accordingly, we hold that there is no merit in these appeals and pass the following order;

The writ appeals are dismissed."

8. If the findings recorded by Division Bench, which

are culled out supra, are examined, it is forthcoming that

the Division Bench, while declining to accede to the

arguments addressed by the respondents, has taken

cognizance of the appointment orders issued to the

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co-tutors. Referring to the appointment orders, the

Division Bench was of the view that if respondents, while

appointing Tutors, have assured to the applicants that

if they get selected as Tutors, they would get AICTE pay

scale and once appointment orders are issued with such

assurance, the respondents cannot later change the said

policy, which would prejudice rights of the Tutors, who

opted to take appointments referring to the pay scale

indicated in the Notification while appointing Tutors. Even

if petitioner has resigned, grant of AICTE pay scale till he

was relived from service cannot be denied. If similarly

placed Tutors having knocked doors of this Court and this

Court having directed respondents to pay salary in terms

of AICTE pay scale, petitioner on parity is also entitled for

the same. Merely because petitioner has tendered his

resignation and he is not serving with respondent No.1 -

Institution, cannot be a ground to decline grant of AICTE

pay scale from the date of appointment till he resigned.

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9. For the reasons stated supra, the impugned

endorsement issued by respondent No.1 - Institution is

not sustainable and same is liable to be quashed.

10. Accordingly, I proceed to pass the following;

ORDER

(i) The writ petition is allowed.

(ii) The impugned endorsement dated 16.04.2012 vide Annexure-H issued by respondent No.1 - Institution is hereby quashed.

(iii) Respondent No.1 - Institution shall consider the representation of the petitioner and pass appropriate orders by taking cognizance of the findings recorded by the Co-ordinate Bench of this Court in W.P.No.1847/2007 as well as findings recorded by the Division Bench in W.A.Nos.3767 and 3880 to 83 of 2009 and take appropriate action by granting all applicable allowances from 16.09.2006 till the date he left the Institution i.e., on

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08.07.2011 along with interest at 6% per annum.

(iv) This exercise shall be completed within an outer limit of three months.

Sd/-

JUDGE

NBM