IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE ON THE 24 TH DAY OF MARCH, 2014 BEFORE THE HON BLE MR JUSTICE K L MANJUNATH AND THE HON BLE MR JUSTICE RAVI MALIMATH Writ Petition No of 2010 (S-KAT) BETWEEN: 1. THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT M S BUILDING, BANGALORE THE DIRECTOR OF HEALTH AND FAMILY WELFARE SERVICES, ANANDARAO CIRCLE BANGALORE THE DISTRICT HEALTH AND FAMILY WELFARE OFFICER, HASSAN DISTRICT HASSAN 4. THE SECRETARY TO GOVERNMENT OF KARNATAKA D.P.A.R., M S BUILDING BANGALORE PETITIONERS [By Smt S Susheela, AGA]

2 2 AND: 1. DR D N NAGALAXMI W/O PROF. P C SRIKANTH AGED ABOUT 35 YEARS MEDICAL OFFICER, PRIMARY HEALTH CENTRE, SALAGAME, HASSAN TALUK AND DISTRICT 2. THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH HASSAN DISTRICT, HASSAN 3. THE REGISTRAR SRI RAJIV GANDHI UNIVERSITY OF HEALTH AND SCIENCE JAYANAGAR BANGALORE RESPONDENTS [By Sri T R Sridhar, Adv. for R1; Sri Ashok N Nayak, Adv. for R3; R2 is served & unrepresented] THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS AND QUASH THE ORDER DATED PASSED BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL IN APPLICATION NO OF 2007 AS PER ANNEXURE A TO THE WRIT PETITION AND ETC., THIS PETITION COMING ON FOR HEARING, THIS DAY, RAVI MALIMATH, J., MADE THE FOLLOWING: O R D E R The case of the respondent is that she was appointed as a Medical Officer on contract basis in the Department of Health and Family Welfare Services by order of the Deputy

3 3 Commissioner, Hassan dt In 1999 she applied to the post of Asst. Surgeon (General Duty Medical Officer). In the select list in the notification dt her name did not find a place. That the selection list has been prepared after giving rural weightage marks to the eligible candidates as per Rule 3B of the KCS (General Recruitment) Rules. The said Rule 3B was the subject matter of Writ Petition No.13157/1998 where Rule 3B has been quashed and upheld by the Division Bench and by the Hon. Supreme Court. That inspite of quashing Rule 3B, the selection list was prepared in terms of Rule 3B itself. While allowing the petitions, the Learned Single Judge directed those appointments which are already been made in accordance with the rule would not be disturbed. In Appeal, the Division Bench granted an Interim order to the effect that the selections/appointments made thereafter would be subject to the decision of the Appeal and other consequential orders. While affirming the view of the Learned Single Judge, the Division Bench directed that

4 4 those persons who had been appointed during the pendency of appeal till the date of the decision of the Division Bench would continue. Thereafter, the Government reviewed its earlier stand and by Circular dt directed that the select lists made subsequent to 1998 based on rural weightage marks be revised by excluding the candidates who had been appointed only on the basis of rural weightage marks and to re-do the list. It further directed that steps should be taken to remove such of the candidates who had been appointed on the basis of rural weightage marks, but who were otherwise not entitled to be selected and to include on the basis of the marks. In furtherance of the said circular, the list of candidate selected for appointment 573 posts were revised and the revised list was published. The name of the respondent was shown at Sl.No.289 On that basis she was appointed by the notification dt as a General Duty Medical officer on probation and accordingly she reported for duty at the Primary Health Centre, Honnavar. By the order

5 5 dt it was declared that she has satisfactorily completed the period of probation w.e.f She made a representation on that she had been unjustifiably deprived in the select list of the year The Director of Health and Family Welfare, Bangalore replied that she is not entitled to the benefit claimed by her. Aggrieved by the same, she filed the instant application to the Karnataka Administrative Tribunal. The Tribunal by the impugned order partly allowed the application. It held that the prayer to quash clause (c) of the Circular dt was rejected. But held that a direction in the said circulars to treat the appointments only prospectively does not apply to the applicant, granting the following reliefs: (i) Prayer to quash clause (c) of Circular dated (Annexure A13) and clause of Circular dated (Annexure R2) is rejected, but we hold that the direction in the said circulars to treat the appointments only prospectively does not apply to the applicant s case;

6 6 (ii) We direct the respondents to prepone the date of appointment of the applicant from to and consequently prepone the date of completion of period of probation. (iii) We direct the respondent to count the service of the applicant on regular basis from ; (iv) Consequently, we direct the respondents to fix the salary of the applicant in the pay scale f Rs.7400/- to 13600/- on par with her junior Dr.Shobha J. (v) Consequent on fixation of pay, the difference of salary shall be calculated and paid to the applicant deducting the salary paid to her as medical officer on contract basis. (vi) As regards the prayer of the applicant to direct the Rajiv Gandi University of Health and Sciences, she is at liberty to move the appropriate authority on the basis of service weightage granted. 2. Aggrieved by the same, the State has filed the present petition.

7 7 3. The learned counsel for the petitioners contends that the relief granted by the Tribunal is beyond what was asked by the respondent. That the relief granted by the Tribunal and holding that the direction in the said Circular to treat the appointment only prospectively is inappropriate. That to prepone the date of appointment of the applicant from to and consequently prepone the date of completion of period of probation is incorrect. That the grant of difference of salary to the respondent is also incorrect. Hence she prays, the petition be allowed. 4. Per contra, learned counsel for the respondent contends that no error is committed by the Tribunal that calls for interference. That the respondent was rightly directed to prepone the date of appointment from to That the direction to count the service of the applicant on regular basis from and to fix the salary in the pay scale of Rs. 7400/- to

8 /- on par with the junior is proper. That the Tribunal has rightly granted the prayer. Hence he pleads the petition be dismissed. 5. Heard learned counsels. 6. The Tribunal while considering the plea of the petitioner and considering the various Judgments of this court and as well as the Hon. Supreme Court was of the view, that subsequent to the order of the Division Bench as well as in the Special Leave Petition by the Hon. Supreme Court, the Government took a policy decision to review the selection list and directed to be appointed prospectively. That where a candidate has been unjustifiably denied appointment, such injustice would be set right by granting him an appointment later, and even though such an appointment would be prospective, she would not lose the seniority in the revised selection list and that list would regulate his seniority. That her pay will have to be fixed at this stage, which cannot be less than that of the junior.

9 9 However, she will not be entitled to arrears of salary, since she has not worked in the post. 7. Under the circumstances, the relief granted by the Tribunal to prepone the date in appointment of the applicant from to and also to prepone the date of completion of period of probation, to count the service on regular basis from and to fix the salary on par with the junior Dr.Shobha J, in our considered view is just and proper. We do not see any ground to interfere with the said direction. 8. However, while granting the said relief, the Tribunal has also granted relief to the extent of directing the respondent to pay the difference of salary to the applicant. The reasonings of the Tribunal was that in view of the fact where the candidates had actually worked in the post from the date his juniors were appointed though not on regular basis till the date of his regular appointment and it is found that regular appointment was denied to him

10 10 unjustifiably from the date of appointment of his juniors in the select list, there is no justification to deny the benefit. The Tribunal was of the view by this methodology the Government amends its mistake and pays the salary for the period. 9. We are of the considered view that the reasonings of the Tribunal in so far as granting of the arrears of pay to the respondent would not arise for consideration. So far as the direction to Health Department that the preponement of the date of appointment from to and to grant all notional benefits there from is justifiable in terms of the Judgment of the Supreme Court referred to herein. However, relief granted to the respondent is a notional relief. That the fixation of pay being a notional fixation, the question of granting the difference in salary is highly unreasonable. Therefore, so far as the direction issued by the Tribunal that as a consequence of fixation of the pay that the difference of salary shall be calculated and

11 11 paid to the applicants after deducting the salary paid to her on contract basis is wholly unjustified. We are of the considered view, while sustaining the rest of the order, this portion of the direction issued to the Tribunal requires to be set aside. 10. For the aforesaid reason, the Writ Petition is partly allowed. The order dt passed by the Karnataka Administrative Tribunal in Application No.3896/2007 is partly allowed. Direction No. (v) issued by the Tribunal to the petitioners to calculate the difference of salary on refixation of pay and to be paid to the respondent is set aside. Rest of the order sustains. Sd/- JUDGE Ak Sd/- JUDGE