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2014 DIGILAW 452 (KAR)

A. Ibrahim Khaleel v. State Of Karnataka

2014-04-07

K.L.MANJUNATH, RAVI MALIMATH

body2014
Judgment :- 1. The petitioners are challenging the legality and correctness of the orders passed by the Karnataka Administrative Tribunal, Bangalore dated 22.10,2013 passed in Application Nos. 7428-7429 of 2012. 2. The facts leading to these writ petitions are as hereunder: The first writ petitioner - Dr. A.Ibrahim Khaleel was appointed as General Duty Medical Officer on contract basis with effect from 25.08.1993. Thereafter, his services were regularized with effect from 05.10.1999. Thereafter, on his request the Government deputed him as an in-service candidate for Post Graduation in Super Specialty Course in the discipline of Medical Oncology between 17.09.2008 and 30.07.2011 at Kidwai Memorial Institute of Oncology, Bangalore. He was given study leave, salary during his education and also the tuition fee was paid by the Government to the same college. As per the Deputation Rules petitioner had to execute bond to pay penalty of Rs.5 lakhs in the event he failed to fulfill the requirement. 3. The 2nd petitioner - Dr.L.K.Rajeev, was also appointed as General Duty Medical Officer on contract basis on 26.09.1994. His services were regularized with effect from 07.08.1997. On his request he was sent for Post Graduation on deputation in the month of September 2000. Again on his further request he was sent for Super Specialty Course on deputation between 11.06.2007 and 31.05.2010, When he was sent for deputation for Post Graduation all facilities including study leave, DA, tuition fee having been paid by the Government. So far as deputation granted to him was to do Super Specialty Course. Salary or allowance was not paid since it was deputation for the second time. However, tuition fee was paid by State on behalf of the 2nd petitioner. 4. The writ petitioners after completion of their Super Specialty Course reported for duty. Petitioner No.2 has also executed a bond in accordance with the Deputation Rules. After completion of the Super Specialty Course the petitioners for their benefit to secure better job and higher salary have filed an application for appointment at respondent No.2 - Kidwai Memorial Institute of Oncology, Bangalore. Their applications were filed pursuant to the notification issued by respondent No.2. Since petitioners were permanent employees' of State of Karnataka they sought NOC from their employers to make the application for appointment at respondent No.2 - Institution. Their applications were filed pursuant to the notification issued by respondent No.2. Since petitioners were permanent employees' of State of Karnataka they sought NOC from their employers to make the application for appointment at respondent No.2 - Institution. On the ground that permission has not been granted and that there is demand to pay a sum of Rs.32,64,971/- from petitioner No.1 and Rs.29,89,437/- from petitioner No.2 the writ petitioners have filed application before the Tribunal contending that the demand made by the State of Karnataka in respect of the petitioners is bad in law and that in view of the bond executed by them they are prepared to pay penalty of Rs.5 lakhs and therefore, the applications were filed requesting the Tribunal to quash the notification issued by the State of Karnataka by issue of writ in the nature of certiorari and direct the State Government to relieve them from its services in order to enable them to joint respondent No.2 on payment of Rs.5 lakhs. 5. The State filed detailed counter before the Tribunal. According to the State of Karnataka the aim and object of sending in-service candidates on deputation for higher studies at the costs of the Government by paying salary, allowances and tuition fee during the period of deputation so as to enable its employees to secure higher qualification and to serve the common man of the State. It was further contended that the execution of the bond in a sum of Rs.5 lakhs is only a penalty if they want to leave the services of the State, but under the guise of penalty of Rs.5 lakhs the petitioners cannot be permitted to contend that they are not liable to pay the same. The Government has spent money on them for acquiring higher qualification. 6. It is further contended by the State Government that so far as petitioner No.1 is concerned while he was in deputation as an in-service candidate to acquire Post Graduate he has received salary of Rs.8,57,012/-. He has also availed a sum of Rs.1,08,211/- as benefits of deputation as an in-service candidate. The State had paid Rs.60,000/- towards tuition fee and that he has to pay penalty of Rs.5 lakhs. In all, Rs. 15,25,223/-. He has also availed a sum of Rs.1,08,211/- as benefits of deputation as an in-service candidate. The State had paid Rs.60,000/- towards tuition fee and that he has to pay penalty of Rs.5 lakhs. In all, Rs. 15,25,223/-. Since the amount has been spent by the Government to enable the first petitioner to acquire higher qualification with sole intention to acquire the same and may be used in the hospitals of State of Karnataka and there is need to send its employees on deputation, Government also demanded interest at the rate of 12% on the amount spent by it. Thus, in all a sum of Rs.29,89,437/- has been demanded from the first petitioner. 7. Similarly, with regard to second petitioner a sum of Rs.7,45,739/- has been spent towards his entire salary and DA during the course of deputation, Rs.6,52,500/- towards tuition fees spent on the second petitioner for a period of three years and Rs.5 lakh penalty in terms of the bond executed by him and adding interest at the rate of 12% per annum, in all, a sum of Rs.32,64,971/- has been demanded from the second petitioner. 8. The State has also contended that the contention of the writ petitioners that considering their higher qualification there is no post in the State hospitals, is incorrect. According to the State in Para-12 of the objections it is clearly contended that Government of India has launched National Program of Control of Non-communicable Diseases and Concerns, under which Oral Cancers, Breast Cancer and Cervix Cancer are being given prime attention, in the first phase at Tumkur, Shimoga, Udupi and Chickmagalur. A Memorandum of Understanding has been signed with KIDWAI to conduct screening camps for the above cancers and the diagnosed cases would be treated at KIDWAI. This being a very important programme of Health and Family Welfare Department which would go a long way in serving the poor patients afflicted with cancer, the Department needs the services of Oncology Specialists. It would be treated later at Kidwai Memorial Cancer Institute. 9. It was contended that scheme being an important program of Health and Family Welfare Department of State would go on in serving poor people, who are suffering from Cancer and such other related diseases. Therefore, State needs services of Oncology Specialists. It would be treated later at Kidwai Memorial Cancer Institute. 9. It was contended that scheme being an important program of Health and Family Welfare Department of State would go on in serving poor people, who are suffering from Cancer and such other related diseases. Therefore, State needs services of Oncology Specialists. Thus, petitioners being the specialists in Oncology having acquired higher qualification of super specialty course in Oncology at the costs of the Government they are bound to work in the Department and for their personal benefits they cannot ask Government to give NOC by only collecting penalty of Rs.5 lakhs. 10. It is also contended by the State that collection of penalty in a sum of Rs.5 lakhs will not be sufficient for the petitioners to demand issue of NOC, when the Government has spent on each of the petitioners more than Rs.10 to 12 lakhs to acquire those higher qualifications. It is also contended that the petitioners instead of serving the State, by using the Government machinery to acquire higher qualification are now by paying peanut of penalty of Rs.5 lakhs are trying to demand the Government to issue NOC. It is further contended that the NOC cannot be issued by collecting penalty when the Government has spent enormous money. In the circumstances, the Government requests the Tribunal to dismiss the applications. 11. The Tribunal having heard the learned counsel for both the parties came to a conclusion that the petitioners were sent on deputation to acquire higher qualification and during their higher studies their posts were kept vacant by paying salary to the petitioners, but the State Government would have in the alternative fill up their posts by making use of other doctors. The Tribunal is also of the opinion that scheme of deputing Medical Officers is to equip them with better knowledge to use their service for a further period of ten years for patients coming to Government hospitals and it is not a scheme like Ashraya scheme or a scheme of providing rice for 1 rupee per kg. to poor people by the Government. Accordingly, the Tribunal came to the conclusion that demand made by the State to recover the amount spent by it in the event the petitioners require NOC and thereby disposed of the applications filed be the petitioners. Aggrieved by the order of the Tribunal the present writ petition is filed. to poor people by the Government. Accordingly, the Tribunal came to the conclusion that demand made by the State to recover the amount spent by it in the event the petitioners require NOC and thereby disposed of the applications filed be the petitioners. Aggrieved by the order of the Tribunal the present writ petition is filed. 12. We have heard Mr. Nishanth, learned counsel appearing for petitioners and Mr. R.Devadas, learned Addl. Government Advocate. 13. According to the learned counsel for petitioners in view of the bond executed by the petitioners the Government has no right to demand the amount spent by it to issue NOC instead called upon the petitioners to pay Rs.5 lakhs each as penalty. Contending that the petitioners are willing to pay a sum of Rs.5 lakhs as penalty in terms of the bond, he requests the court to set aside or modify the order passed by the Tribunal. According to him the deputation rules under KCSR does not empower State to demand the amount spent by it for the education of the petitioners. He also contended that there is no provision under KCSR to enable the Government to demand salary paid to them or allowances paid to the petitioners during the deputation period. He also submits that there are no posts available in State Government to fit in the petitioners who have acquired higher qualification. In the circumstances, he requests court to allow the writ petition 14. The learned Addl. Government Advocate Mr. Devadas, submits that none of the contentions of the learned counsel for petitioners are tenable because as a matter of right the Government servant cannot seek NOC without serving the Government for further period of ten years. The Government has been sending its employees for higher studies only to make use of the higher qualification secured by them for the benefit of common man. Petitioners cannot contend that Government is bound to send its employees on deputation only to acquire high qualification, instead, the Government is making use of such doctors who have acquired higher qualification to serve in the hospitals of the State of Karnataka with respect to the common people who are suffering from Cancer and other such dangerous diseases. Further, he contend that the purpose of sending them on deputation is to acquire higher knowledge and make use of higher qualifications and their expertise while treating common man. Further, he contend that the purpose of sending them on deputation is to acquire higher knowledge and make use of higher qualifications and their expertise while treating common man. This object of the Government to provide medical facilities to people of the State. He further contend that intention of the State is to educate its doctors at the costs of the Government to acquire higher qualifications and thereafter serve poor people. It is also contended by him that petitioners cannot treat the Government as its parents to send their children to acquire higher qualification and thereafter to enable them to switch over for any employment for their personal benefit. He further submits that penalty of Rs.5 lakhs as demanded under bond does not deter the Government to recover the amount spent by it when they were on deputation. Therefore, he requests to dismiss the petitions. 15. The contention of the petitioners that they have no equal posts in the State Government to fit their higher qualification, cannot be a ground for them to leave the services of the State after acquiring super specialty degree at the costs of the Government. Even before the petitioners joined the super specialty course, it was well within their knowledge that considering their higher qualification such posts cannot be available in the State Government, they went on deputation to acquire higher qualification. Having acquired the same it is their duty to work for the Department. Even otherwise if such contention would be acceptable it is very clearly contended by the State in para-12 of its counter before the Tribunal that services of the petitioners are necessitated for it in view of the scheme introduced by the State Government and pursuant to the same an Moll has been entered into between the State and the respondent No.2. Pursuant to the said scheme in five districts the Government has already implemented to identify the persons who are suffering from Cancer and then fit the doctors who have acquired higher qualifications, such as petitioners to those posts. Therefore, the contention of the petitioners that there is no posts equivalent to their higher qualifications holds no water and it is rejected. 16. Therefore, the contention of the petitioners that there is no posts equivalent to their higher qualifications holds no water and it is rejected. 16. The other contention is concerned, the State can only demand for Rs.5 lakhs from each of the petitioners as penalty in terms of the indemnity bond executed by them also has to be rejected because the Government had intended to send these petitioners free of costs to enable them to acquire higher qualification and thereafter to serve poor people who are in need of such facility in the hospitals of the State of Karnataka. But the petitioners have utilized all such facilities for obtaining the higher qualification from the Government and then leave services of the State only with an intention to go to other hospitals or institutions to enable them to acquire higher position or salary or for their personal benefits. The intent and object of the Government of sending the in-service candidates to get higher qualification is not properly understood by the petitioners and then act accordingly by serving the Government and in different hospitals by helping the poor people who are suffering from diseases like Cancer and such other ailments. Besides, the State Government has spent huge sums of money nearly Rs.10 to 12 lakhs on the petitioners only to get their services in various hospitals of the State after they obtaining higher qualifications. 17. The petitioners having acquired higher qualifications are also entitled to make applications seeking voluntary retirement after competition of qualifying service of fifteen years and if such applications are allowed, the petitioners are also entitled to receive pensionary benefits till their death and thereafter their spouses are also entitled for pension. After obtaining voluntary retirement, there would not be any impediment or hurdle for the petitioners to work in any private hospitals or/and opening independent clinics or hospitals of their choice. In the circumstances, we are of the view that after acquiring higher qualifications at the cost of the government the petitioners would be benefited in many ways and instead of they serving the society, there are chances of misusing the government intention to send them on deputation to acquire higher qualifications. 18. In the circumstances, we are of the view that after acquiring higher qualifications at the cost of the government the petitioners would be benefited in many ways and instead of they serving the society, there are chances of misusing the government intention to send them on deputation to acquire higher qualifications. 18. We have also noticed that when the petitioners were sent for acquiring higher qualifications by paying their salaries and other allowances besides the tuition fees, the government was required to post other doctors to serve the people in places of these petitioners. The government had also paid the salaries of those doctors who were posted in places of these petitioners when they were deputed for acquiring higher qualifications. In the strict sense, the government was also required to recover the salary paid to the doctors who were posted in places of these petitioners during their absence. 19. Viewed from any angle, we do not see any reasons to accept the contentions of the petitioners that they have a right to seek a direction to the government to give no-objection to enable them to join elsewhere by collecting the penalty as stipulated in the indemnity bonds. Penalty stipulated in the indemnity bond is penal in nature, which does not disentitle the government to recover all monies spent by it for acquiring further higher qualifications by the petitioners including the salaries paid to the doctors who were posted in places of these petitioners when they were sent for acquiring higher qualifications. 20. Therefore, we do not find any merit in these petitions. Accordingly, these petitions are dismissed.