Allowed

Dr Varsha D v. State of Karnataka

Karnataka HC13 Sept 2022WP/10671/2022

Case brief

AI extract

What is this about?

Justice S.R. Krishna Kumar allowed a writ petition against an endorsement rejecting a doctor's request for study leave. The court quashed the endorsement, holding that PGET Rules 2006 override Deputation Rules under KCSR regarding in-service PG admissions, and directed the hospital to relieve the petitioner.

What did the court decide?

Quashed the impugned endorsement dated 04.02.2022. Directed the 3rd respondent to relieve the petitioner of duties to prosecute the PG course under in-service quota within three weeks.

Dr Varsha D Vs State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR WRIT PETITION No. 10671 OF 2022 (EDN-RES)

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BETWEEN:

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DR VARSHA D AGED ABOUT 31 YEARS D/O DR DEVADASS WORKING AS INTENSIVE CARE MEDICAL OFFICER DEPARTMENT OF ANESTHESIA BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE , BANGALORE. R/AT NO. 47, 6^TH CROSS, GANESHNAGAR TELECOM LAYOUT MAIN ROAD VIDYARANYAPURA POST, BANGALORE- 560 097

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…PETITIONER

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(BY SMT. AKKAMAHADEVI HIREMATH., ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA DEPARTMENT OF MEDICAL EDUCATION VIKASA SOUDHA, BENGALURU- 560 001 REPRESENTED BY ITS SECRETARY

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2 . THE DIRECTOR DIRECTORATE OF MEDICAL EDUCATION ANAND RAO CIRCLE BENGALURU- 560 009

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3 . BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE. BANGALORE, AUTONOMOUS INSTITUTE COMING UNDER THE GOVT. OF KARNATAKA, K R ROAD, FORT, BANGALORE- 560 002 REPRESENTED BY ITS DIRECTOR CUM DEAN

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4 . NATIONAL MEDICAL COMMISSION ( ERSTWHILE MEDICAL COUNCIL OF INDIA)

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POCKET 14, SECTOR 8, DWARKA NEW DELHI- 110 007 REPRSENTED BY ITS SECRETARY

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…RESPONDENTS

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(BY SMT. A.R.SHARADAMBA., AGA FOR R-1 & R-2 SRI. P.S. MALIPATIL, ADVOCATE FOR R-3 SRI. N.KHETTY, ADVOCATE FOR R-4)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DTD 04.02.2022 ISSUED BY THE R3 PRODUCED AS ANNEXURE-A AS UNREASONABLE, ARBITRARY, ILLEGAL AND WITHOUT JURISDICTION AND ETC.

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THIS W.P. COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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In this petition, petitioner has sought for the following

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reliefs:-

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“ a) Issue a writ of certiorari quashing the Endorsement dated: 04.02.2022 issued by the 3^rd Respondent in BenYVSamSam/C2/37/2016-17, ( produced as Annexure-A) as unreasonable, arbitrary, illegal and without jurisdiction.

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b) Issue a writ of Mandamus, directing the 3^rd Respondent to grant study leave to the Petitioner and relieve the Petitioner of her duties to prosecute PG Course in MD Emergency Medicine under the inservice quota under the PGET Rules with all benefits.

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c) Such other writs or orders as this Hon’ble Court deems fit in the circumstances of the case.”

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Heard learned counsel for the petitioner and

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learned counsel for the respondents and perused the material on record.

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In addition to reiterating the various contentions

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urged in the petition and referring to the material on record, learned counsel for the petitioner invites my attention to the impugned Endorsement at Annexure-A dated 04.02.2022 in order to point out that the request made by the petitioner to the 3^rd respondent to relieve from her duties for the purpose of prosecuting PG course in MD Emergency Medicine under the in-service quota in terms of the Post Graduate Medical and Dental Degree and Diploma Courses Rules, 2006 (for short ‘PGET Rules’) was rejected by the 3^rd respondent by placing reliance upon the Appendix II-A of the KCSR Rules, which is directly contrary to the decision of the Division Bench in the case of Dr.C.M.Hanumantharaju & Others vs. Dr.Siddappa and

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others – ILR 2012 KAR 6267. It is therefore contended that the impugned Endorsement at Annexure-A deserves to be quashed and necessary directions are to be issued to the 3^rd respondent in this regard.

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Per contra, learned counsel for the respondents submit that there is no merit in the petition and the same is liable to be dismissed.

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The issue with regard to whether the PGET Rules, 2006 over-ride the KCSR is no longer res integra in the light of the decision of the Hon’ble Division Bench of this Court in Dr.C.M.Hanumantharaju’s case, wherein this Court is held as under:-

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57. The bone of contention in these cases, however, is with regard to the completion of the requisite number of years of service for being deputed for higher studies. Under the Deputation Rules, it is five years of regular service. However, under the PGET Rules 2006 for the purpose of application for the entrance test, it is only three years of service. Whereas, when it comes to the stage of admission to Post-graduate Courses, it is three years of regular service. In addition, an in-service candidate would have to complete the prescribed period of probation. Such a condition is also necessary at the time of making the application. But under Rule 61 of KCSR all that is stated is five years of regular service, the requirement of completion of probation is not necessary. Similarly, under Rule 10 there are other conditions which have to be fulfilled by an in-service candidate before he/she is admitted to a Post-graduate course, the same are stated supra. Two significant conditions can be mentioned at this stage. One is that, an in-service candidate who is already holding a Postgraduate Diploma in any speciality, through Government deputation, would be eligible for

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admission to Post-graduate degree courses in the same speciality and secondly, any in-service candidate who is already holding a Post-graduate degree in any speciality shall not be eligible for any other Postgraduate degree or Diploma courses. This can only mean that if a candidate has secured a Diploma in any speciality on the basis of the deputation made by the Government, then he shall be eligible for Postgraduate degree course in the same speciality, but would not be eligible for any other Post-graduate degree or Diploma in other speciality. In other words, an in-service candidate can obtain a Diploma or a degree in the same speciality, but not in any other speciality. That apart, a candidate who is above 48 years of age on the last date fixed for receipt of application is ineligible for admission. Therefore, the conditions prescribed under the PGET Rules, 2006 are more rigorous at every stage of selection and admission and have to be satisfied by an in- service candidate before he/she is admitted to a Postgraduate degree/diploma course despite being qualified under the Deputation Rules.

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63. Having regard to the aforesaid Regulations, the State Government has framed the PGET Rules 2006 prescribing not only the mode of selection for admission to Post-graduate courses both medical and dental, but also the eligibility of the candidates for prosecuting such courses. The object of PGET Rules 2006 is to select and admit those candidates who are meritorious having secured 50% atleast in the

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Entrance Test, provided they have the eligibility to apply and take the exam as well as being admitted to the course. The Apex court in several decisions has emphasised on the need to maintain merit in the matter of selection and admission of candidates for professional courses, particularly at the level of Postgraduate and Super Speciality Courses. Therefore, in the instant case, we cannot lost sight of the fact that admissions are being made to Post-graduate Medical Courses, where merit is the overwhelming condition for admission of all the candidates, in-service or nonservice, who have to take a common Entrance Test and but for a separate stream of admission being kept apart, the in-service candidates would have otherwise competed with the non-service candidates. The prescription of the eligibility criteria under the PGET Rules 2006 would therefore, prevail over any other Rules of Deputation made as a condition of service for higher studies. In the instant case what we have discerned is the eligibility for admission to Postgraduate course and not a mere deputation for higher studies. The selection and admission for a Postgraduate course is circumscribed by certain terms and conditions prescribed under the PGET Rules 2006 which are common both with regard to in-service candidates as well as those candidates who are not in service. But as far as in- services candidates are concerned, certain additional prescriptions are made under the PGET Rules 2006 and it has already been observed that these additional prescriptions are absent

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in the KCSR. Therefore, the PGET Rules 2006 being Special Rules for admission to a Post-graduate Course would obviously prevail over the Rule 61 of the KCSR, which is a general rule for deputation. Also, an inservice candidate, merely on the basis of his seniority cannot be sent for deputation and admitted to a Postgraduate course, unless he qualifies under PGET 2006 Rules. Moreover, under the Deputation Rules, it is only upto 5% of the sanctioned permanent strength of the concerned cadre that can be deputed for higher studies. Whereas, under the PGET Rules 2006 within the seat matrix, certain percentage of seats are categorised as Government seats as opposed to Management seats and within the quota of Government seats, certain seats are ear-marked for inservice candidates in which there is reservation of seats for scheduled caste and scheduled tribe as per Rule 12 of the PGET Rules 2006. Therefore, there are numerous conditions which have to be complied with by an in-service candidate before becoming eligible for admission for a Post-graduate course though by way of deputation. It is for all the aforesaid reasons, we hold that the PGET Rules, 2006 would prevail over the Deputation Rules in the matter of admission to Postgraduate courses in Medical. In other words the PGET Rules 2006 have an over-riding effect over the Deputation Rules made under KCSR.

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64. Section 6 of the Act states that the Act and any Rule made or deemed to have been made thereunder would have effect notwithstanding anything

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inconsistent therewith contained in any other law with respect to matters for which provision is made in the Act or for which Rules can be made under the Act. At the same time, Section 12 of the Capitation Fee Act also states that the provisions of the said Act would have effect notwithstanding anything inconsistent therewith contain in any other law for the time being in force.

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65. Learned Senior Counsel for some of the appellants has brought to our notice these two provisions to contend that ultimately, the Rules made under the Act would prevail over the Rules made under the Capitation Fee Act. On a comparative reading of the two provisions, we note that they are made in two different enactments whose objects are totally alien to each other. However, the overlapping aspect is with regard to deputation of in-service doctors for Post- graduate studies. Insofar as this aspect is concerned, under the Act provision is made only for the deputation of in-service doctors for higher studies based on seniority, the number of years of regular service and the age factor. No provision is made with regard to the eligibility for selection and admission on the basis of merit. In fact, Rule 61 of the KCSR read with Appendix-II are silent on this aspect. On the other hand, the PGET rules 2006 made under the provision of Capitation Act deals with not only the number of years of requisite service, the maximum age limit and also eligibility being based on merit. In fact Section 12 of the Capitation Fee Act provides for an

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over-riding effect of the provisions of the Act notwithstanding anything inconsistent contained in any other law for the time being in force. The Deputation Rules made under KCSR were in force prior to the enactment of the Capitation Fee Act. However, it is the provisions of the Capitation Fee Act which would prevail over any other law for the time being in force in view of the non-obstante clause in Section 12.

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As can be seen from the aforesaid judgment, the Hon’ble Division Bench has come to the categorical conclusion that it is only the PEGT Rules 2006 that would apply and the same would over-ride the Deputation Rules under the KCSR. In my considered opinion, the ratio of the judgment of the Division Bench in Dr.C.M.Hanumantharaju’s case, is directly and squarely applicable to the facts of the instant case and consequently, the impugned Endorsement at Annexure-A dated 04.02.2022 being contrary to the material on record and the aforesaid decision, the same deserves to be quashed and necessary directions are to be issued to the 3^rd respondent to relieve the petitioner of her duties to prosecute the PG course in MD Emergency Medicine under the in-service quota in terms of the PGET, Rules 2006.

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In the result, I pass the following:-

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ORDER

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(i) Petition is hereby allowed.

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(ii) The impugned order at Annexure-A dated 04.02.2022 passed by the 3^rd respondent is hereby quashed.

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(iii) The 3^rd respondent is directed to relieve the petitioner of her duties to enable her to prosecute the PG course in MD Emergency Medicine under the in-service quota in terms of the PGET, Rules 2006 as expeditiously as possible and at any rate within a period of three weeks from the date of receipt of a copy of this order.

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(iv) It is further directed that relieving of the petitioner by the 3^rd respondent as stated supra, will be followed by

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all legal consequences as permissible in law.

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Sd/JUDGE

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Srl.

Dr Varsha D v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Dr Varsha D v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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