DR. S A SOMASHEKAR vs. DR. K HARISH S/O N KARIGOWDA

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 26TH DAY OF SEPTEMBER 2012 P R E S E N T THE HON’BLE MR.JUSTICE N. KUMAR A N D THE HON’BLE MR.JUSTICE H.S. KEMPANNA WRIT PETITION Nos.12029 -12037/2011 C/w WP Nos.27388 – 27402, 17178 – 17194, 16876 – 16903, 20111 – 20115 & 21397 – 406/2011, 19459 – 19464 & 20116 – 20120/2011 (S-KAT)

IN WRIT PETITION Nos.12029 -12037/2011:

BETWEEN:

... PETITIONERS

(BY SRI J PRASHANTH, ADV.)

AND:

R/A NO.24, IST CROSS, IST MAIN, VIVEKANANDA COLLEGE, KANAKAPUR MAIN ROAD, BANGALORE-78

... RESPONDENTS

(BY SRI S.V. NARASIMHAN FOR R-1 & 8, SRI.S.N. ASWATHANARAYANA FOR R-9, SMT. REVATHY ADINATH NARDE HCGP FOR R-2 TO 7)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ANEX-A ORDER DTD 21.2.11 PASSED IN APPLICATION NO. 1964/2009; 2025/2009 AND 55/2010 AND DISMISS THE SAID APPLICATIONS FILED BEFORE KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE. DISMISS THE APPLICTIONS NOS. 1964/09, 2025/09 AND 55/09 FILED BY THE CONTESTING RESPONDENTS.

IN WRIT PETITION Nos.27388 -27402/2011:

BETWEEN:

DEPARTMENT OF SURGERY HIMS, HASSAN

DEPARTMENT OF ORTHOPAEDICS MIMS,MANDYA

... PETITIONERS

(BY SRI VIVEK S REDDY, ADV.)

AND:

SAMEERAPURA, BANGALORE 560 018.

... RESPONDENTS

(BY SRI S V NARASIMHAN FOR R2 TO 5, SRI.S.S. TUTAD FOR R-7, R-6 & 8 SERVED)

THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS RELATING TO THE IMPUGNED ORDER DATED 11.4.2011 VIDE ANNEXURE-B, PASSED BY THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN THE

APPLICATION NO.2659/2009 FROM THE SAID TRIBUNAL, PERUSE THE SAME AND DECLARE THE ENTIRE PROCEEDINGS CULMINATING IN THE SAID ORDER AS A NON-EST.

IN WRIT PETITION Nos.17178 -17194/2011:

BETWEEN:

SERVING AT THE BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, BANGALORE 2

... PETITIONERS

(BY SRI B S VIJAYALAKSHMI & K.C. SHANTHAKUMAR, ADV.)

AND:

... RESPONDENTS

(BY SMT. REVATHY ADINATH NARDE, HCGP FOR R-1, SRI S V NARASIMHAN FOR C/R2)

THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS RELATING TO THE IMPUGNED ORDER DATED 11.4.2011 VIDE ANNEXURE-A PASSED BY THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN APPLICATION NO.2659/2009 FROM THE SAID TRIBUNAL, PERUSE THE SAME AND DECLARE THE ENTIRE PROCEEDINGS CULMINATING IN THE SAID ORDER AS A NON-EST.

IN WRIT PETITION Nos.16876 -16903/2011:

BETWEEN:

577201 S/O P R KEKUDA, AGED 42 YEARS, R/AT NO.1 MEGGAN HOSPITAL DOCTORS QUARTERS KUVEMPU ROAD, SHIVAMOGGA

R/AT H.#.21,"SANTRUPTHI",3RD MN,4THCROSS ASHWATHANAGAR SAVALANGA RD,SHIVAMOGGA

R/AT "KAVI NIVAS", 100 FT ROAD, RAJENDRA NAGAR SHIVAMOGA 577 204

PAEDIATRICS,SHIMOGA INSTITUTE OF MEDICAL SCIENCE(SIMS) SHIMOGA 577 201 S/O A D RANGAPPA,AGED 49 YEARS, R/AT MIG-95, KALLAHALLI STAGE II VINOBHANAGAR, SHIVAMOGA 577 205

AGED 52 YEARS, R/AT SRI GANESH 633 SECTOR 13, T.V.CENTRE, BELGAUM 590 001

... PETITIONERS

(BY SRI ABHISHEK MALI PATIL FOR M/S. NAIK & NAIK LAW FIRM, ADVS.)

AND:

BANGALORE 1

... RESPONDENTS

(BY SRI S V NARASIMHAN FOR R1, SMT. REVATHY ADINATH NARDE, HCGP FOR R-2 TO 6, R-7, R-8 & 9 SERVED)

THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE RESPONDENTS. QUASH THE IMPUGNED ORDER DTD 11.4.11 MADE IN APPLICATION NO. 2659/09 VIDE ANENX-E BY THE KARNATAKA ADMINISTRATIVE TRIBUNAL (KAT) AT BANGALORE.

IN WRIT PETITION Nos.20111 -20115/2011 & 21397 – 21406/2011:

BETWEEN:

2ND STAGE, MYSORE

ASSISTANT PROFESSOR OF ANESTHESIOLOGY NO.85, BENAKA, V L LAYOUT OPP MILK DAIRY MYSORE-570011

... PETITIONERS

(BY SRI B S VIJAYALAKSHMI & K.C. SHANTHA KUMAR, ADV.)

AND:

…RESPONDENTS

(BY SMT. REVATHY ADINATH NARDE, HCGP FOR R-1 SRI S V NARASIMHAN FOR R2)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS RELATING TO THE IMPUGNED ORDER DT 11.4.11 VIDE ANN-A PASSED BY THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN APPLICATON NO.2659/09 FROM THE SAID TRIBUNAL, PERUSE THE SAME & DECLARE THE ENTIRE PROCEEDINGS CULMINATING THE SAID ORDER AS A NON-EST.

IN WRIT PETITION Nos.19459 -19464/2011:

BETWEEN:

... PETITIONERS

(BY SRI J PRASHANTH, ADV.)

AND:

... RESPONDENTS

(BY SRI S V NARASIMHAN, ADV. FOR R1 SMT REVATHY ADINATH NARDE, HCGP FOR R-2)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DT 11.4.11 PASSED IN APPLICATION NO.2659/09 VIDE ANN-A BY THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL.

IN WRIT PETITION Nos.20116 - 20120/2011:

BETWEEN:

... PETITIONERS

(BY SRI K.C. SHANTHAKUMAR, ADV.)

AND:

DEPARTMENT OF PULMONARY MEDICINE MYSORE MEDICAL COLLEGE & RESEARCH CENTRE MYSORE.

... RESPONDENTS

(BY SMT. REVATHY ADINATH NARDE, HCGP FOR R-1 TO 5, R-6 SERVED SRI P RAJASHEKAR, ADV. FOR R7-R11)

THESE WPs ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS RELATING TO THE IMPUGNED ORDER DT.23.2.11 VIDE ANN-A PASSED BY THE HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL, BANGALORE IN APPLICATION NOS.3261-3265/10 FROM THE SAID TRIBUNAL, PERUSE THE SAME & DECLARE THE ENTIRE PROCEEDINGS CULMINATING IN THE SAID ORDER AS A NON-EST.

THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, N. KUMAR, J., MADE THE FOLLOWING: -

COMMON ORDER

Writ Petition Nos.12029-12037/2011 and Writ Petition Nos.20116-20120/2011 are preferred by the parties to the order passed by the Tribunal, whose absorption in the Medical Education Department was set aside by the Tribunal by a common order dated 21.02.2011.

hospitals are attached to the medical college and they possess Post-graduation in the respective subjects. They also brought to the notice of the authorities that in many of the institutions the Doctors working in Medical Education Department were absorbed for teaching cadre wherein no criteria has been fixed, roaster system has not been followed, no opportunity is given to eligible interested Doctors working in Health Department with equal qualification and working in the same hospitals. A committee was constituted by the 1st respondent – State of Karnataka, headed by Additional Chief Secretary and Principal Secretary, Department of Medical Education for the purpose of consideration of absorption of Special Doctors belonging to Health and Family Welfare Department to the Medical Education Department. The Committee in its meeting held on 31.06.2007 formulated certain guidelines in the matter of absorption. The Committee observed that respondent Nos.1, 3 and 5 i.e, the State of Karnataka, Additional Secretary to the Government, Health and Family Welfare Department and the Director of Health and

Family Welfare Services have to prescribe the criteria for selection and absorption of such Medical Officers while deputing / absorbing in the Department of Medical Education. The norms mentioned and stipulated by the committee are to be adhered to before taking any action in the matter of absorption of Doctors. Until a report is submitted under the Chairmanship of Secretary, Medical Education Department and appropriate government orders are issued, the deputation/absorption of Senior Specialists of Health Department were not to be considered. The applicants, who were awaiting for absorption in the Medical Education Department got an endorsement dated 1.10.2008, wherein the 5th respondent rejected their request stating that the services of the applicants is required in public interest as there is shortage of Specialists Doctors in the Department. However, on 28.2.2009, 144 doctors working in 6 medical colleges were absorbed. The grievance of the applicants is that all those persons, who were all, absorbed were all juniors to them as per the seniority list. The norms

prescribed by the committee in its meeting held on 31.10.2007 is not followed. The condition precedent for absorption is that the Doctor to be absorbed should be either a Specialist or a Doctor should be on deputation working in the hospital attached to the medical college. Some of the doctors who are absorbed were at no point of time, much less, on official duty in the Medical College. Though the applicants are also similarly placed more experienced more qualified their request is rejected and persons, who are much juniors to them and did not possess the requisite qualification, have been absorbed. Thus equality clause enshrined under Articles 14 and 16 of the Constitution of India has been violated by the authorities. The applicants obtained the note sheets relating to absorption of Doctors/Specialists in BMCRI and other Medial Colleges of the District through Right to Information Act, 2005. The note sheet dated 13.11.2008 discloses that the 1st respondent had declined to give consent for absorption of 190 Specialists Doctors in Medical Education Department for the reasons stated at paragraphs 53 to

60 of the said note sheets. The Department of health and Family Welfare Services was not in favour of absorbing the Doctors working as teaching Doctors in the Department of Medical Education. The 3rd respondent - Additional Secretary to the Government Health and Family Welfare Department in the draft Cabinet note dated 18.11.2008 had solicited approval of Cabinet to absorb 190 Specialists / Doctors of Health and Family Welfare Department working as teaching staff in the Health and Family Welfare Department in the Medical Colleges under the administrative control of the Medical Education Department in the services of the respective autonomous institutions. This note was nothing but a favour to a class of persons in violation of opinion expressed by the committee, which met on 31.01.2007. Therefore, they contended that it is nothing but a colourable exercise of power to favour a few Doctors ignoring the seniority and other criteria in the matter of absorption adopted by the committee. Thus denying equal opportunity to the applicants.

The Health and Family Welfare Department had already issued endorsement

dated 1.10.2008 rejecting the claims of the applicants for absorption in the respondent Department on the ground that their services are very much required in the 5th respondent Department. Lot of essential expert Doctors are needed in the 5th respondent – Department. The said endorsement dated 1.10.2008 has nothing to do with the order of absorption of 144 doctors which is issued on 28.2.2009. Both the issues are totally different and not connected with each other. When the six institutions referred to above were declared as autonomous body, the district hospitals in the respective places were treated as Teaching Hospitals attached to the institutions, which were declared as autonomous bodies. In these six places the district hospitals had already had the Specialists Doctors. But consequent on conversion of Hospitals as teaching hospitals Doctors/Specialists of Health and Family Welfare Department were shown as teaching faculty depending on the qualification prescribed by the Medical Council of India, at the time of annual inspection to meet the shortage of faculty. It

has become necessary to absorb the Specialists of Health and Family Welfare Department, who were working in the teaching Hospital in the respective Medical Colleges. The list of 190 Specialists / Doctors of Health and Family Welfare Department working in the teaching hospitals in the respective Medical Colleges was submitted for approval of the Cabinet. The Cabinet in its meeting dated 4.12.2008 and 8.12.2009 agreed for absorption of 144 doctors of Health and Family Welfare Department in the respective Medical Colleges, where these specialists were working. Pursuant to this decision of the Cabinet, Government Order dated 28.2.2009 is issued.

Specialists / Senior Specialists working in the teaching hospitals of Medical Colleges to save the colleges from de-recognition from Medical Council of India due to deficiency of required teaching faculty. The order dated 28.2.2009 was issued in the larger interest of Medical Institution of the State which was facing acute shortage of teaching faculty and OOD Lecturers / Specialists. The matter was taken to the Cabinet, especially to turn down the serious objections raised by the Health and Family Welfare Department against the absorption. The health and Family Welfare Department declined to give consent for absorption of 190 specialists in Medical Education Department. This matter was taken up before the Cabinet for taking appropriate decision. The Cabinet after examining the matter in detail has accorded its approval in the meeting held on 18.2.2009 for absorption of 144 Specialists / Sr. Specialists / General Duty Doctors etc., who were working in the teaching hospital attached to medical colleges. This exercise was undertaken to meet the deficiency of teaching staff in the Medical Colleges which were facing

difficulties consequent on Medical Council of India threatening to de-recognize the Medical Colleges. This decision was taken in public interest to protect the hospitals, which were facing the wrath of Medical Council of India due to deficiency in the teaching staff. There were no eligible candidates with required qualification who fulfilled the guidelines prescribed by the Medical Council of India to fill up the posts for conducting walk in interview. 144 specialists with required qualification were absorbed as against vacant posts available in the respective medical colleges and the Doctors working in teaching hospitals were alone considered for this absorption. As far as possible the seniority of the Doctors is taken care of for absorption. There is no patronage and favouritism in the process of absorption, due care is taken in selecting the doctors who possessed the required qualification.

The absorption is made purely on the basis of the Cabinet decision. It is reflected in the order dated 28.2.2009 that when the said absorption was challenged before the Tribunal, the Tribunal directed the State to furnish the following particulars : (a) Under What rules the impugned order is issued; (b) Rules governing the autonomous body BMRC especially C & R Rules; (c) Correspondence of Medical Council of India regarding urgency of absorption.

No.8 of the official records by including the names of the applicants in the absorption order dated 28.2.2009. Aggrieved by the said order, the present writ petitions are filed.

contended that all those persons, who are absorbed had possessed the requisite qualification. They are eligible to be absorbed. Their absorption is made in public interest as otherwise, those medical colleges would lose their recognition.

After absorption, all these respondents are functioning in those respective colleges. Under these circumstances, the Tribunal committed a serious error in setting aside the order of absorption insofar as the respondents are concerned and also issuing a direction to consider the case of the applicants along with the respondents. Petitioners in other writ petitions are challenging the aforesaid order on the ground the said order affects their interests. Admittedly they were not made parties before the Tribunal. Therefore, the said order violates the principles of natural justice. On that short ground according to them the said order requires to be set aside.

they are eligible to be absorbed. All of them are working in teaching hospitals. They are interested in teaching. They made a request and filed their applications for absorption in pursuance of the notification as per annexure A-3. Their request was turned down on the ground of public interest, but thereafter, some of the persons who are juniors to them but did not possess the requisite qualification were absorbed. This action was arbitrary on the face of it and the Tribunal rightly set aside the absorption orders. They were challenging the action of absorption on the ground it is arbitrary. The question of impleading 144 doctors, who were absorbed under the said government order would not arise. At any rate, the persons, who have approached this Court, have no locus standi, as this Court has no jurisdiction to entertain the writ petitions in its original jurisdiction as those petitioners have to approach the very same Tribunal.

a) Whether the order of absorption dated 28.02.2009 is violative of Articles 14 and 16 of the Constitution of India and its striking down by the Tribunal is justified ?

b) In the facts of this case what is the appropriate order to be passed?

the teaching pattern in these Medical Colleges and unless these Medical Colleges satisfy the said requirement the degrees issued by them will not be recognized. There is dearth of duly qualified Doctors in these teaching hospitals. In spite of the government attempting to recruit the doctors by walk-in-interviews suitable candidates were not found. Therefore, the Department Of Health and Family Welfare in order to save the recognition to these Medical Colleges has deputed the duly qualified doctors to the teaching hospitals so that they could do the teaching and they can also serve the public in the hospitals. They prepared the list of 190 Doctors / Specialists working in teaching hospitals in the respective Medical Colleges submitted for approval of the Cabinet, for their absorption in the Medical Colleges. There is stiff opposition to this proposal from the Department of Health and Family Welfare, apart from the Finance Department. A Committee was constituted which was presided over by Additional Chief Secretary to consider such request. The Committee in its meeting held on

31.10.2007 resolved that certain guidelines have to be formulated, in the matter of absorption of Doctors / Specialists certain criteria is to be prescribed for selection and absorption of the Medical Officers while deputing / absorbing in the Department of Medical Education. Once such criteria is fixed, it has to be adhered to, before taking any action in the matter of absorption of Doctors. They made it clear that only after a report is submitted under the chairmanship of Medical Education Department, appropriate Government orders are to be issued. The deputation / absorption of Sr. Specialists of Health and Family Welfare Department was not be considered. In fact initially when the request was made for absorption of 190 doctors, as aforesaid, the State declined to give its consent. As is clear from the Note sheet dated 13.11.2008, the Finance Department was of the view in the absence of clarity on the terms and conditions and the quantum of finance required, the Finance Department cannot really give any opinion. It is therefore, necessary that the Chief Secretary had to

conduct a meeting to sort out these issues after which the Department of Medical Education can formulate its proposals to be placed before the cabinet. Therefore, the medical education department was informed to conduct a meeting to sort out the issues involved. When the said matter was placed before the Chief Secretary, he was of the view that a small committee is to be constituted within a week or 15 days and they can submit a report and the same may be placed before the cabinet for appropriate orders. When the matter was placed before the cabinet, the cabinet approved and directed that they should have consultation with the Finance Department and thereafter, appropriate orders could be passed. Subsequently DPAR gave its opinion stipulating the terms and conditions, which are to be fulfilled before such absorption, is effected. Thereafter, when the matter was placed before the Finance Department a note was prepared. The Note No.40 sets out that the proposal of the Administrative Department relates to absorption of services of doctors of the Department of Health and Family Welfare, who are

working on OOD basis as teaching staff in the various autonomous medical institutions coming under the Department of Medical Education, in view of the substantial difference in the scales of pay of the professionals etc., of Medical Education Department and the specialists in the Health and Family Welfare Department, absorption of officials as proposed is likely to be viewed as an action of promotion or promotion to a higher cadre, since such absorption is made without regarding the seniority. The specialists, who remained in the Health and Family Welfare Department made demand for similar benefits particularly, for absorption. Thereafter, it was decided that for such absorption the rules are to be framed for in service recruitment of qualified specialists and that all the qualified persons in Health and Family Welfare Department are given opportunity to offer themselves for selection to the posts in the Medical Education Department on the principle of merit-cum reservation. Thus, the absorption would be based either on the principles of seniority cum merit or merit cum reservation.

Sub: Absorption of Doctors of HFW into ME Dept. - reg.

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“22) ¸ÀaªÀ ¸ÀA¥ÀÅl n¥ÀàtôAiÀÄ PÀArPÉ 8 gÀ°è M¼ÀUÉÆArgÀĪÀ ¥Àæ¸ÁÛªÀ£ÉUÀ¼À£ÀÄß ¸ÀaªÀ ¸ÀA¥ÀÅl C£ÀĪÉÆâ¹vÀÄ. (underline supplied) 23) ªÀÄÄAzÀĪÀjzÀÄ, «°Ã£ÀUÉÆAqÀ ªÉÊzÀågÀÄUÀ¼À ¸ÉêÁ µÀgÀvÀÄÛ ºÁUÀÆ ªÉÃvÀ£À ¤UÀ¢¥Àr¸ÀĪÀ «µÀAiÀÄUÀ¼À°è ¹§âA¢ ªÀÄvÀÄÛ DqÀ½vÀ ¸ÀÄzsÁgÀuÉ E¯ÁSÉ (¸ÉêÁ ¤AiÀĪÀÄUÀ¼ÀÄ) ºÁUÀÆ DyðPÀ E¯ÁSÉUÀ¼ÉÆA¢UÉ ¸ÀªÀiÁ¯ÉÆÃa¹zÀ £ÀAvÀgÀ ¸ÀÆPÀÛ DzÉñÀªÀ£ÀÄß ºÉÆgÀr¸À¨ÉÃPÉAzÀÄ ¸ÀaªÀ ¸ÀA¥ÀÅlªÀÅ E¯ÁSÉUÉ ¸ÀÆa¹vÀÄ.” 18. Thereafter, DPAR gave their opinion as follows;

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DPÀÄPÀ 395 JAJA¹ 2007(¨sÁ-1) ¢£ÁAPÀ 22.12.2008.

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“40) The proposal of the administrative department relates to absorption of the services of the doctors of the Department of Health and Family Welfare Services who are working on OOD basis, as teaching staffs under the various autonomous Medical institutions coming under the Department of Medical Education. In view of the substantial difference in the scales of pay of professors/associate professors etc., of Medical Education and the specialists in the Health Department, absorption of officers as proposed is likely to be viewed as a kind of promotion or appointment to a higher grade. Since such absorption is made without regard to seniority, the specialists who remain in the Health and Family Welfare Department may demand similar benefits, particularly if some of them are senior to those now proposed for absorption.

(Emphasis supplied) 41. The one time absorption just therefore be offered only to the senior most specialist qualified for such absorption. Otherwise, special rules may be framed for “in service” recruitment of qualified specialists, so that all the qualified persons in Health and Family Welfare Department are given an opportunity

to offer themselves for selection to the posts in medical education on the principle of merit cum reservation. Thus it appears that the absorption must be based either on the principle of “Seniority cum Merit” or of “Merit cum Reservation”. (Approved by the Principal Secretary Finance Department)

Sd/- (P.Narayana) Under Secretary to Government Finance Department (Services –1)

factors are not kept in mind and contrary to these stipulations, 144 doctors have been absorbed. Therefore, while absorbing 144 doctors, due weightage has not been given to the opinion of the Cabinet, DPAR and also the Finance Department. The State has not explained the criteria or the basis for selecting these 144 doctors for absorption. All the persons, who are similarly placed, who possessed the requisite qualification, who satisfied all other conditions, are eligible to be considered for absorption. Infact, the original list contained 190 doctors. The department wanted to absorb them. Now they have absorbed only 144 persons. Why the remaining persons are not absorbed, why 144 doctors are preferred against others is not forthcoming from any other material. It is unfortunate that inspite of the committee recommending for framing of rules prescribing criteria for absorption, no rules are framed. Inspite of the Finance Department pointing out the difficulty that they have to face in future, if such an absorption is not based on a reasonable criteria and the DPAR also set

out the conditions based on which the absorption rules have been done and particularly, when the cabinet approved Note No.8, which prescribed seniority as a condition for absorption under the guise of giving effect to these orders, the list prepared for absorption is contrary to the aforesaid stipulations. Therefore, it is patently illegal and arbitrary and offends Articles 14 and 15 of the Constitution of India. It is discriminatory. When the applicants requested for absorption, the request was rejected on the ground that service was required in the public interest. It is thereafter, this absorption has taken place. Therefore, case of the applicants have not at all been considered for absorption. The State is unable to explain the reason for excluding these applicants and choosing those privileged 144 doctors. The said list also includes few candidates, who have not been deputed into Medical Education Department. One Dr.S.T.Kavya has been absorbed, though she was not deputed solely on the ground that the Chief Minister wants her to be absorbed. In fact, in the cabinet note, it is categorically

stated that by absorbing these doctors who are working in District Hospitals, public interest would not suffer, because the doctors were giving services in the Health and Welfare Department. They are rendering services in the teaching hospitals. Admittedly, all these applicants are working on deputation in the District hospitals, which are all teaching hospitals. They are not only rendering services to the public, but they are also teaching the students in the Medical Colleges. They are far far senior to the persons who are absorbed. Discrimination is patent. In that view of the matter, the Tribunal on careful consideration of all the material on record, taking into consideration the opinion expressed by the Health and Welfare Department, Finance Department, DPAR and the Cabinet, was of the view that the denial of absorption to these applicants is illegal and therefore, the direction issued to the authorities to consider their case for absorption and absorb them in services is lawful and do not suffer from any infirmity.

prescribing criteria and then call for applications and then consider their applications for absorption. That would put an end to all the controversies. It is open to them, while making such absorption to bifurcate subject wise. Once the rules are framed, criteria is fixed, then the Courts have no role to play. But in the absence of rules, criteria and the power is not exercised properly, then it becomes the duty of the Court to interfere and strike down such arbitrary action. In that view of the matter, we do not see any justification to interfere with the order passed by the Tribunal.

not consider their request or pass any order, then they can come to this Court. They cannot approach this Court straight away. Therefore, their writ petitions are not maintainable.

(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) (in respect of the filing of such application and by such other fees for the service of execution of processes, as may be prescribed by the Central Government). (3) On receipt of an application under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.) (4) Where an application has been admitted by a Tribunal under sub-section (3), every proceedings under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal. no appeal or representation in relation to such matter shall thereafter be entertained under such rules.

decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated”.

can approach this Court. He cannot directly approach this Court contending that the order passed by the Tribunal without impleading them as party behind their back is bad in law. In view of the fact that the absorption order is challenged, no right of these petitioners is taken away. All that has been done is that the applicants’ case also to be considered along with the persons who are similarly placed and if they are found eligible, certainly they would be absorbed.

the process of absorption, if necessary, by issuing a notification in the Gazette, in the newspaper and in the internet and complete the whole exercise within a period of two months. We do not see any merit in any of these writ petitions. Hence, we pass the following:

ORDER

(a) All the writ petitions are dismissed.

(b) The authorities shall frame rules prescribing the criteria for absorption within a period of two months from today.

(c) Thereafter, they shall consider the case of the eligible persons including the petitioners before this Court as well as the applicants before the Tribunal for absorption and pass appropriate orders on merits and in accordance with law under the rules framed for such absorption.

(d) This exercise shall be done within two months from the date of receipt of copy of this order.

Parties to bear their own costs.

Sd/- JUDGE

Sd/- JUDGE

NG/SA