IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF JUNE, 2017 BEFORE THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY WRIT PETITION NO.52421 OF 2013 (S - RES) BETWEEN:
DR. DEEPAK KUMAR SINHA S/O LATE SRI. SHIV PRATAP NARAYAN SINHA AGED ABOUT 56 YEARS WORKING AS ASSISTANT PROFESSOR CARDIO VASCULAR & THORACIC SURGERY VICTORIAL HOSPITAL CAMPUS BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE BANGALORE – 560 002 R/AT NO.2, EX SERVICEMEN COLONY 5TH CROSS, DINNUR MAIN ROAD, R.T. NAGAR BANGALORE – 560 032 …PETITIONER (BY SRI.B.B. BAJENTRI, ADV.) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY MEDICAL EDUCATION DEPARTMENT VIKASA SOUDHA BANGALORE – 560 001 2. BANGALORE MEDICAL AND RESEARCH INSTITUTE FORT, K.R.ROAD BANGALORE – 560 002 REPRESENTED BY ITS DEAN – CUM – DIRECTOR 3. THE DEAN & DIRECTOR BANGALORE MEDICAL AND RESEARCH INSTITUTE FORT, K.R.ROAD BANGALORE – 560 002 4. MEDICAL COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY POCKET – 14, SECTOR – 8 DWARAKA PHASE – I NEW DELHI – 110 077 R4 IS ADDED VIDE COURT ORDER DATED 08.01.2016 …RESPONDENTS (BY SMT. KAVITHA H.C., HCGP FOR R1;
SMT. SUMANA BALIGA, ADV. FOR R2 AND R3; SRI. N.KHETTY, ADV. FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R2 TO DECLARE THE PROBATIONARY PERIOD AS SATISFACTORY AND CONSIDER HIS CLAIM FOR PROMOTION TO THE POST OF PROFESSOR IN THE CARDIO – VASCULAR SURGERY DEPARTMENT WITH RETROSPECTIVE EFFECT AND GRANT ALL CONSEQUENTIAL BENEFITS THAT HE IS ENTITLE TO.
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner is challenging the official memorandum dated 12.11.2013 passed by the Director and Dean of respondent No.2 and sought for quashing the same and further to direct the respondent NO.2 to declare the probationary period as satisfactory and consider his claim for promotion to the post of Professor in the Cardio-vascular Surgery Departmetn with retrospective effect and grant all consequential benefits.
2. Learned counsel for the petitioner submits that the official memorandum was issued on 12.11.2013 for extending his probation period for one more year is without authority of law. To substantiate the same, he referred to page 61 bylaws of the respondent No.2 in which appointing authority for the post of Associate Professor is Governing Council but not the Director or Dean. It is inferior to the Governing Council and further it is submitted that for the purpose of promotion to the next higher cadre, though this petitioner is qualified, he is not considered. Hence he sought direction to the respondent No.2.
3. Learned counsel for the respondent submitted that though the petitioner may have requisite qualification for the post of Associate Professor, since he has already retired from the service, consideration of his case does not arise.
3. Heard the learned counsel for the parties and perused the papers.
4. As per the byelaws of respondent No.2, “Director and Dean” is not an appointing authority. Accordingly, extension of probationary period for one more year is without authority of Law. Accordingly it does not exist in the eye of Law. Consequently, the same is liable to be set aside. Thereafter, the petitioner’s probationary period was declared successfully w.e.f 12.11.2014 and the same is to be treated for the purpose of probationary period and since petitioner is already retired from service, he is only entitled for monetary benefit, if his case is taken for consideration and he may make a representation in this regard to the Governing Council.
If such representation is made by the petitioner, the Governing Council shall consider the same and pass appropriate orders within a period of three months from the date of receipt of the said representation.
Accordingly, petition stands disposed of.
Sd/-
JUDGE Bsv