IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NOs.27028-27029 OF 2018(S-RES) BETWEEN 1. LAKSHMIPATHI C N S/O NAGARAJA C AGED 31 YEARS, FIRST DIVISION ASSISTANT SHIMOGA INSTITUTE OF MEDICAL SCIENCES, SHIMOGA R/AT NO.1, STAFF NURSE QUARTERS, E-1, BLOCK, SHARAVATHI NAGAR, SHIMOGA - 577 201.
2. VIJAYAKUMAR B T S/O SRI THIPPAIAH B AGED 36 YEARS, FIRST DIVISION ASSISTANT SHIMOGA INSTITUTE OF MEDICAL SCIENCES, SHIMOGA R/AT NO. 72, STAFF NURSE QUARTERS, F-I, BLOCK, SHARAVATHI NAGAR, SHIMOGA - 577 201.
(BY SRI P M NAYAK, ADVOCATE) ... PETITIONERS AND 1. THE DIRECTOR SHIMOGA INSTITUTE OF MEDICAL SCIENCES, SHIMOGA SAGAR ROAD, SHIMOGA - 577 201.
2. THE ADDITIONAL CHIEF SECRETARY DEPARTMENT OF HEALTH & FAMILY WELFARE SERVICES (MEDICAL EDUCATION) GOVERNMENT OF KARNATAKA M.S.BUILDING, BANGALORE - 560 001.
3. THE DIRECTOR DEPARTMENT OF MEDICAL EDUCATION GOVERNMENT OF KARNATAKA ANANDARAO CIRCLE, BANGALORE - 560 009.
(BY SRI S B TOTAD, ADVOCATE FOR R1 SMT M S PRATHIMA, AGA FOR R2 & R3) ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 18.06.2018 ISSUED BY THE FIRST RESPONDENT TO THE FIRST PETITIONER VIDE ANNEXURE-H TO THE WRIT PETITION.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
Though the matter is coming up for hearing on Interlocutory application, with the consent of the learned counsels the matter is heard and disposed of finally.
2. The petitioners are working as Junior Lab Technician/Lab Technician in the respondent No.1- Institution, which is a autonomous body and a State undertaking. On health grounds, the petitioners made a representations to the respondent No.1 seeking change of cadre from Junior Lab Technician to First Division Assistant. The representations given by the petitioners were forwarded to the respondent No.2 - Department of Health and Family Welfare Services (Medical Education). The respondent No.2 directed the respondent No.1 - Institution to take necessary steps in the matter of change of cadre as per the Bye-laws and C&R Rules of the Institute. Consequently, the respondent No.1 invoked the provisions under Rule 16(a) of the Karnataka Civil Services (General Recruitment) Rules 1977 and issued orders dated 13.12.2017 and 24.03.2018 in respect of the petitioners, respectively, permitting the change of cadre in terms of the request made by the petitioners.
3. The petitioners have been working as First Division Assistant from 14.12.2017 and 28.03.2018, respectively. Thereafter, objections were raised by the auditors from the Accountant General’s Office, who audited the respondent No.1 - Institution. It was opined by the auditors that the consideration of change of cadre of the petitioners is irregular and not in accordance with the Regulations. Consequently, the impugned orders were issued by the respondent No.1 withdrawing the change of cadres that were earlier granted by the Institute. Being aggrieved, the petitioners are before this Court.
4. Learned counsel for the petitioners submits that the impugned orders were passed without hearing the petitioners and therefore there is violation of principles of natural justice. Secondly, it was submitted that the provision i.e., Regulation 16(a)(3) of the Karnataka Civil Services (General Recruitment) Rules provides for change of cadre and therefore the opinion of the auditors could not have been acted upon by the respondent No.1. Moreover, the learned counsel for the petitioners has placed on record an Official Memorandum dated 05.11.1984 issued by the respondent- State, wherein it is clarified that when a Government servant is appointed into a particular cadre, due to his incapacitation involving bodily infirmity or otherwise from which he suffers, change of cadre permanently is permissible, subject to medical certificate issued by the Medical Board which would substantiate the incapacitation or medical condition of the Government servant. The Secretaries to the Government were therefore requested to keep this position in view and see that proposal for appointments by change of cadre/service on health grounds are invariably referred first to a Medical Board in consultation with the Director of Health and Family Welfare Services before change of service/cadre on health grounds is recommended or agreed to.
5. In the light of the above, it is clear that there is a provision in law which would permit change of service/cadre under certain circumstances. What is seen in this case is that the respondent No.1 has proceeded to withdraw the earlier order of change of cadre at the instance of the objections raised by the auditors of the Accountant General Office. The impugned order therefore requires to be interfered with. However, the respondent No.1 may secure medical certificate from the Medial Board to satisfy itself as to whether the medical condition of the petitioners are such that they may be required to be posted in a different cadre which would help the petitioners to continue to work in the same cadre without having to suffer from the medical conditions.
6. In the result, the writ petitions are allowed and the impugned orders at Annexures-H and H1 are hereby quashed and set aside. The respondent No.1 is at liberty to direct the petitioners to furnish fresh medical certificate at the earliest from the Medical Board and thereafter proceed to consider the representations of the petitioners and pass orders in accordance with law.
7. At this juncture, it is submitted that the petitioners continue to work in the laboratories in the original cadre. In that view of the matter, the petitioners may submit the medical certificates from the Medical Board as expeditiously as possible and the respondent No.1 is directed to consider and pass orders on the same within a period of four weeks from the date when such medical certificate is produced by the petitioners.
8. In view of the disposal of the main matter, I.A.No.1/2018 is also disposed of.
KLY/ SD/- JUDGE