Skip to content


Dr.T. Durganna Vs. The Principal Secretary, to State of Karnataka, Bengaluru and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Appeal No. 2618 of 2015 (S-RES) c/w Writ Petition No. 45163 of 2015 (S-RES)
Judge
AppellantDr.T. Durganna
RespondentThe Principal Secretary, to State of Karnataka, Bengaluru and Others
Excerpt:
.....by r2.) ravi malimath, j. 1. aggrieved by the order dated 31st july, 2015, passed by the learned single judge in writ petition no.18720 of 2015 in allowing the writ petition and quashing the impugned orders, respondent no.3 before the learned single judge, has filed this writ appeal. 2. the case of the writ petitioner is that on 26-2-1985 he was appointed as an assistant surgeon in the department of health and family welfare, government of karnataka. on 2-7-1991 he joined as an assistant professor with the bangalore medical college and research centre. in 1999, he was promoted as an associate professor. in 2003, he was promoted as a professor. in 2007, he was appointed as the head of the department of ent of the bangalore medical college and research institute, victoria hospital. 3......
Judgment:

(Prayer: This Writ Appeal is filed under Section 4 of the Karnataka High Court Act praying to set aside the order passed in Writ Petition No.18720/2015 dated 31.7.2015.

This writ petition is filed under Article 226 of the Constitution of India praying to set aside the C and R Rules of the Teaching Cadre of the R2, in so far as it relates to fixing 2nd years administrative experience as Head of the Department in Clause 3 of the column experience, to the post of Medical Superintendent, vide Annexure-A and set aside the appointment of R3 to the post of Medical Superintendent, vide Official Memorandum dated 9.10.2015 vide Annexure-B issued by R2.)

Ravi Malimath, J.

1. Aggrieved by the order dated 31st July, 2015, passed by the learned Single Judge in Writ Petition No.18720 of 2015 in allowing the writ petition and quashing the impugned orders, respondent No.3 before the learned Single Judge, has filed this Writ Appeal.

2. The case of the writ petitioner is that on 26-2-1985 he was appointed as an Assistant Surgeon in the Department of Health and Family Welfare, Government of Karnataka. On 2-7-1991 he joined as an Assistant Professor with the Bangalore Medical College and Research Centre. In 1999, he was promoted as an Associate Professor. In 2003, he was promoted as a Professor. In 2007, he was appointed as the Head of the Department of ENT of the Bangalore Medical College and Research Institute, Victoria Hospital.

3. The respondent No.2, namely, the Bangalore Medical College and Research Centre invited applications from the eligible candidates for filling up the post of Medical Superintendents in Victoria Hospital. The appellant and respondent No.3 applied for the post. On 13-2-2015, the Selection Committee recommended the appointment of the appellant. On 18-3-2015, the Governing Council approved the recommendation of the Selection Committee. In pursuance whereof, an appointment letter was issued to the appellant on 20-4-2015. Aggrieved by these orders, the writ petitioner filed Writ Petition No.18720 of 2015. The writ petition was opposed by the respondents. On considering the contentions, the learned Single Judge allowed the writ petition and set aside the appointment of the appellant. Respondent No.2, namely, the Bangalore Medical Council and Research Centre, was directed to reconvene the Selection Committee and was directed to make its recommendations considering the record which was available to it on 13-3-2015, within a period of four weeks from the date of receipt of a certified copy of the order. Aggrieved by the same, the 3rd respondent before the learned Single Judge has filed this appeal. By the order dated 18-7-2016, Writ Petition No.45163 of 2015 was directed to be connected along with the Writ Appeal.

4. Sri Udaya Holla, learned Senior Counsel, appearing for the appellant's counsel, contends that the learned Single Judge committed an error in allowing the writ petition. That the learned Single Judge committed an error in interpreting the C and R Rules, even though there was no such prayer to the said effect. That the order passed by the learned Single Judge is contrary to the eligibility criteria as prescribed in the C and R Rules. That the learned Single Judge has committed an error in misreading Clause(iii) of the C and R Rules which would virtually amount to negating the said Clause. Hence, it is prayed, that the Writ Appeal be allowed.

5. On the other hand, Sri H.N.Shashidhara, learned counsel appearing for the respondent No.3 namely, the writ petitioner, defends the impugned order. He contends that the learned Single Judge rightly allowed the petition holding that the appointment of the appellant is erroneous. That the appellant not being qualified, could not have been appointed. As such his appointment was rightly set aside.

6. Smt.Sumana Baliga, learned counsel appearing for the 2nd respondent namely, the Bangalore Medical College and Research Centre, while supporting the contentions of the appellant, contends that the appointment of the appellant is justified. That the appointment has been made after considering the credentials of all the candidates. The appointment was processed by the High Level Selection Committee, headed by the Principal Secretary, Health and Family Welfare (Medical Education) and comprising of the Registrar of RGUHS, Director-cum-Dean of the 2nd respondent and the Chief Administrative Officer of the 2nd respondent. Thereafter, the 10 Member Governing Council, headed by the Hon'ble Minister for Medical Education has approved the recommendation. Pursuant to that, a formal appointment order has been issued. Therefore, she contends that the Rules and Regulations having been complied with, the same were considered by the experts and it is on the basis of their recommendation, that the appointment has been made. No fault could be found in the appointment of the appellant.

7. Heard learned counsels.

8. The learned Single Judge while considering the contentions, went about the interpretation of the C and R Rules. The relevant Rule has been extracted by the learned Single Judge, which reads as follows:-

"Medical1. xxxxx
Superintendent of the affiliated teaching hospital2. xxxxx
3. Candidate should have administrative experience of at least 02 years as Head of the Department.
4. Candidates shall satisfy
Medical Council of India Norms for appointment to the said post.
5. Maximum upper age limit Limit for the said post shall be 02 years earlier to superannuation.
6. Administrative Experience for the said post consists of:
i) Professor and Head of the Departmentii) Associate Professor in-charge of the Unit

iii) Hostel Warden

iv) Resident Medical Officer

v) Administrator of Primary Health Centre

vi) District Medical Officer

vii) District Surgeon

viii) Programme Officer

ix) State Level Officer."

9. The learned Single Judge took great pains in interpreting the word 'as' used in Clause 3. He came to the conclusion that, Item No.3 states that the administrative experience has to be in the capacity of the Head of the Department. That the use of the word 'as' clearly reveals that the administrative experience has to be only in the capacity of Head of the Department and not otherwise. Therefore, the contention of the appellant was negated. The learned Single Judge was of the view that a hostel warden as referred to in sub-Clause(iii) can never be the Head of the Department. Therefore, merely having an experience as a Hostel Warden for two years, cannot be equated with the administrative experience of being the Head of the Department.

10. At the outset it can be seen that the C and R Rules were not under challenge, before the learned Single Judge. Therefore, when the Rules were not under challenge, we are of the considered view, that it was wholly unnecessary for the learned Single Judge to have gone into such an interpretation.

11. The relevant Rule postulates that the candidate should have administrative experience of at least two years as the Head of the Department. What is meant by administrative experience has also been defined in the said Rules. That the administrative experience for the said posts consists of nine qualifications. Clause(iii) therein is a Hostel Warden. Therefore, the Rules would have to be read as they are. The Rules do not call for any interpretation. The Rules are clear, cogent and unambiguous. It does not warrant any interpretation. The Supreme Court have time and again held, in a catena of decisions, that when the concerned Act, Rule or Regulation is clear and unambiguous, the Courts should not venture into trying to redefine, what is uncalled for. It is only when there is ambiguity, that the intervention of the Court is necessary. However, if the concerned Act, Rule or Regulation can be clearly understood without any ambiguity, the same requires to be applied. The Rule would clearly postulate that the administrative experience includes any one of the nine qualifications. That is what the Rule intends and that is how it should be read. Trying to decipher each and every word, is wholly uncalled for. In our considered view, an interpretation is not necessary. The Rule has to be applied as it is. When the Rule postulates that the administrative experience includes any one of the nine categories, the same should be applied. Admittedly, the appellant possesses one of the nine qualifications. There is no dispute about that. Therefore, we are unable to accept the reasoning of the learned Single Judge in attempting to hold to the contrary.

12. Furthermore, we are of the considered view that it was beyond the scope of the Court to venture into a discussion, as to who is a Head of the Department and who is a Hostel Warden. That the meaning of the Head of the Department and the meaning of Hostel Warden has been unnecessarily compared, while trying to justify the interpretation. The Rule is not open for an interpretation. If the Rule postulates a Hostel Warden as also various other qualifications, that is the Rule that requires to be followed. The Court cannot go into the merits and demerits of each one of nine sub-Clauses. Each sub- Clause is separate, distinct and different. Each has been inculcated with a specific reason. Therefore, for the Court to compare the Clauses with one another is wholly unjustified. The reasoning of the learned Single Judge that two years experience as a Hostel warden cannot be treated as having two years as the Head of the Department, is in direct opposition to the Rule. As long as the Rule exists, the same requires to be complied with. There is no ambiguity in the Rules. Therefore, we are of the view that it was incorrect for the learned Single Judge to compare the Clauses.

13. The experience as contemplated, is that the candidate should have an administrative experience of at least two years as the Head of the Department. As a clarification, it has been stated that the administrative experience for the said posts consists of :

i) Professor and Head of the Department

ii) Associate Professor in-charge of the Unit

iii) Hostel Warden

iv) Resident Medical Officer

v) Administrator of Primary Health Centre

vi) District Medical Officer

vii) District Surgeon

viii) Programme Officer

ix) State Level Officer."

The reasoning assigned by the learned Single Judge is that the candidate must have been the Head of the Department for at least two years.

It is relevant to notice that, the category also consists of a Professor and the Head of the Department and 8 other categories. If, being the Head of the Department was mandatory, sub-Clause(i) namely, the Professor and the Head of the Department would not have been included as one of nine categories. Therefore, if the contention of the writ petitioner was to be accepted, it was meaningless to state that the administrative experience should also consist of a Professor and the Head of the Department. Therefore, the reasoning that two years experience as the Head of the Department alone matters, cannot be accepted. The ambiguity has been clarified by holding that the administrative experience means one of the nine categories as narrated therein. Hence, we are of the view that the reasoning assigned by the learned Single Judge, cannot be accepted.

14. The Selection Committee has given various reasons as to why the appellant was selected. Thereafter, the matter was placed before a 10 Member Governing Council which approved the recommendation. The expert body has on considering the qualifications, experience etc., have recommended the appointment of the appellant. The Selection Committee as well as the Governing Council have applied their mind by following the relevant Rules and Regulations. When the experts have opined with regard to the suitability or otherwise of a candidate, we do not find any ground to interfere with the opinion of the experts. Hence, on this ground also we are of the view that the learned Single Judge committed an error in setting aside the impugned orders.

15.(a) One of the contentions urged by the 2nd respondent was that the Principal Secretary to the Government, Department of Health and Family Welfare by his communication dated 20-6-2014 has directed initiation of departmental enquiry against the writ petitioner. Therefore, it is contended that there is a contemplated enquiry against him. This contention was negatived by the learned Single Judge on the reason, that a mere issuance of a show cause notice cannot be relevant to the non- selection of the writ petitioner.

(b) It is relevant to notice that directions have been issued by the Government, to the second respondent, to initiate a departmental enquiry. Therefore, it was a serious matter to be considered. We are of the view that, if a departmental enquiry is contemplated, it would be an additional factor for consideration of appointment. We, therefore do not agree with the view expressed by the learned Single Judge that the issuance of a show cause notice is an irrelevant consideration.

16. Under these circumstances, we have no hesitation to hold that the order of the learned Single Judge requires to be interfered with. The reasonings assigned by the learned Single Judge, while allowing the Writ Petition and setting aside the impugned orders, are not sustainable.

17. For the aforesaid reasons, the writ appeal is allowed. The order dated 31st July, 2015, passed by the learned Single Judge in writ petition No.18720 of 2015 is set aside. The Writ Petition is dismissed. All further proceedings if any, initiated in pursuance to the order of the learned Single Judge, are quashed. The respondents 1 and 2 are directed to give effect to the impugned orders in the writ petition, forthwith.

In view of the Writ Appeal being allowed, Writ Petition No.45163 of 2015 would not arise for consideration and is therefore dismissed as such.

No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //