IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.20143/2014(S-RES) BETWEEN:
DR. SRINIVAS KULKARNI, S/O SRI SHAMARAO, AGED ABOUT 53 YEARS, WORKING AS ASSISTANT PROFESSOR, DEPARTMENT OF ANESTHESIOLOGY, MYSORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, MYSORE-570001. ... PETITIONER (BY SRI VIJAY V. BAJENTRI, ADVOCATE) AND:
1. THE STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, MEDICAL EDUCATION DEPARTMENT, VIKAS SOUDHA, BENGALURU-560001.
2. THE MYSORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, REPRESENTED BY ITS DEAN AND DIRECTOR, IRWIN ROAD, MYSORE-570001.
3. THE DEAN AND DIRECTOR MYSORE MEDICAL COLLEGE AND RESEARCH INSTITUTE IRWIN ROAD, MYSORE-570001.
4. THE STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, HEALTH & FAMILY WELFARE SERVICES DEPARTMENT, VIKAS SOUDHA, BENGALURU-560001. ... RESPONDENTS (BY SMT. SHWETHA KRISHNAPPA, AGA FOR R1 AND R4; SRI M. SAMPATH KUMAR, ADVOCATE FOR R2;
R3 IS SERVED, BUT UNREPRESENTED) … THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO CONSIDER HIS CLAIM FOR RE-DESIGNATION OF HIS POST AS A ASSISTANT PROFESSOR FROM THAT OF LECTURER FROM THE DATE THE PETITIONER REPORTED FOR DUTY i.e. 6.8.2005 AND GRANT ALL CONSEQUENTIAL BENEFITS FLOWING FROM SUCH RE-DESIGNATION IN TERMS OF THE REPRESENTATION DATED 5.3.2012 AND 6.5.2013 VIDE ANNEXURE-M & P WITHIN A TIME FRAME SPECIFIED BY THIS HON'BLE COURT THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner, who is an Assistant Professor of Anesthesia, is before this Court for a writ of mandamus directing the 2nd respondent to consider his claim for re- designation of his post as Assistant Professor from that of Lecturer from the date the petitioner reported for duty i.e., 6.8.2005 and grant all consequential benefits flowing from such re-designation in terms of the representations dated 5.3.2012 and 6.5.2013 as per Annexures-M and P.
2. It is the case of the petitioner that he is holder of M.B.B.S. and M.D. (Anesthesiology). He was appointed as a Medical Officer of Health in the Department of Health and Family Welfare Services on 1.8.1997 and his probationary period was declared as satisfactory by the Director of Health and Family Welfare Services on 2.1.2001. He was sent on deputation for higher studies to prosecute M.D. (Anesthesiology) which he completed in April, 2005. On completion of his Post Graduate degree in Anesthesiology, his services were placed at the disposal of 1st respondent to be posted in the then Government Mysore Medical College, to work as Lecturer. Accordingly, the petitioner reported to duty on 6.8.2005.
3. It is the further case of the petitioner that respondent No.4 by an order dated 20.10.2005 took a decision to absorb all the Medical Officers, Specialist/Senior Specialist in Government Medical College, Mysore in terms of Rule 16(a)(ii) of the Karnataka Civil Services (General Recruitment) Rules 1977. Since the name of the petitioner was not included in the said Government Order dated 20.10.2005, subsequently by an addendum dated 3.12.2005, the name of the petitioner was included at SL.No.50(A) of the Government Order. On 17.1.2007, the 2nd respondent-Institution became an autonomous body. Consequently, as per the Medical Council of India Regulations, the entry level teaching post is Assistant Professor – Associate Professor and then as Professor replacing the present entry level cadre of Lecturer – Assistant Professor and Professor and the petitioner was continued in the said autonomous institution. By an order dated dated 26.8.2008, the petitioner’s services were absorbed in the 2nd respondent-Institution as a Lecturer, though such a post did not exist in terms of MCI Regulations.
4. It is the further case of the petitioner that by the order dated 26.2.2010, he was promoted as Assistant Professor from the cadre of Lecturer, contrary to the MCI norms and without noticing that, he ought to have been re-designated as Assistant Professor and his promotion ought to have been to the post of Associate Professor. The 4th respondent directed the 2nd respondent to re-designate the post of Lecturers to that of Assistant Professor in terms of the MCI Regulations. Accordingly, on 14.7.2010 the 2nd respondent re- designated the Specialist/Senior Specialist, who have been absorbed in the cadre of Lecturer to that of Assistant Professor. Therefore, the petitioner made a representation on 5.3.2012 requesting that he also be granted the benefit of re-designation of his post as a Lecturer to that of Assistant Professor, in terms of the MCI Regulations, from the date the 2nd respondent became an autonomous institution and in terms of the Government Order dated 14.7.2010 and considering his experience in the cadre of Assistant Professor/Lecturer with effect from 6.8.2005, he be promoted to the post of Associate Professor on completion of five years of teaching experience. He also requested for grant of consequential benefits on such re-designation of the post of Lecturer and review promotions to the post of Associate Professor and Professor. Since there was no response, he made another representation on 6.5.2013. As per the seniority list, the petitioner is being shown as Lecturer and is promoted as Assistant Professor with effect from 1.3.2010. Inspite of repeated representations made by the petitioner, the 2nd respondent has not considered the representation of the petitioner nor has passed any orders. Therefore, the petitioner is before this Court for the relief sought for 5. I have heard the learned Counsel for the parties to the lis.
6. Sri Vijay Kumar V. Bajentri, learned Counsel for the petitioner while reiterating the grounds urged in the writ petition contended that though the petitioner is qualified and eligible to be re-designated to the post of Specialist/Senior Specialist after the institution became the autonomous body and inspite of repeated representations, the 2nd respondent has not considered the same nor has re-designated the post of the petitioner as Assistant Professor from that of Lecturer from the date the petitioner reported to duty with effect from 6.8.2005. Therefore, he sought to allow the writ petition by granting writ of mandamus as prayed for.
7. Learned AGA representing respondent Nos.1 and 4 submitted that whenever representation is made by the aggrieved party, the competent authority shall consider and pass orders within a reasonable period.
8. Having heard the learned Counsel for the parties, it is not in dispute that the petitioner was appointed as Medical Officer of Health in the 4th respondent Department on 1.8.1997. In April, 2005 the petitioner completed his M.D. (Anesthesiology) and was appointed as Lecturer in the then Government Mysore Medical College. He reported to duty for the post of Lecturer in the 2nd respondent-Institution on 6.8.2005 and he was absorbed as Lecturer in the said institution on 20.10.2005. The 2nd respondent-Institution was recognized as autonomous institute on 17.1.2007.
9. According to the petitioner, he was absorbed as Lecturer/Assistant Professor in the 2nd respondent- Institution on 26.8.2008 and he was promoted as Assistant Professor on completion of four years of service contrary to the MCI Regulations on 26.2.2010. The 4th respondent directed the 2nd respondent to re- designate all the absorbed candidates in the teaching cadre as Assistant Professor on 14.07.2010. Therefore, the petitioner was constrained to file representation before the 2nd respondent requesting for promotion to the post of Associate Professor on 5.3.2012 and the last representation is made on 6.5.2013. Inspite of such representations made, the 2nd respondent has not considered the same nor has promoted him as Associate Professor as requested in the representation. Therefore, the petitioner has made out a prima facie case for issue of writ of mandamus directing the 2nd respondent to consider his representation as prayed for.
10. It is well settled principle of law that if any aggrieved party has made any representation to the concerned authority/competent authority, the competent authority shall consider the same and pass orders within a reasonable period. Admittedly, in the present case, the 2nd respondent has not considered the representation within a reasonable period. Therefore, the petitioner has made out prima facie case to issue a writ of mandamus as sought for.
11. For the reasons stated above, writ petition is allowed. A writ of mandamus is issued directing the 2nd respondent to consider the representations of the petitioner dated 5.3.2012 and 6.5.2013 as per Annexures M and P for re-designation of his post as Assistant Professor from that of Lecturer from the date the petitioner reported for duty i.e., 6.8.2005 and grant all consequential benefits and pass orders in accordance with law within a period of three months from the date of receipt of a copy of this order.
Nsu/-
Sd/- Judge