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2016 DIGILAW 771 (KAR)

Karnataka Institute of Medical Sciences v. Pama M. Adnur

2016-10-19

ASHOK B.HINCHIGERI, P.S.DINESH KUMAR

body2016
JUDGMENT : Ashok B. Hinchigeri, J. These appeals are directed against the learned single Judge's order, dated 7.10.2015 passed in W.P. Nos.1 10638-110640/2015. The facts of the case in brief are that the respondent Nos.1 to 3 are working as Tutors in the Department of Pharmacology, Pathology and Biochemistry respectively in the appellant Institute. The Governing Council of the appellant Institute in its 34th meeting held on 5.12.2011 passed the resolution to absorb the services of all the Senior Residents and Tutors. The Finance Committee of the appellant Institute accepted the extension of the Government approved pay-scales with effect from 1.5.2012. Pursuant thereto, the appellant issued individual orders to the respondent Nos.1 to 3, all dated 22.5.2012 (Annexures - E, E1 and E2). The grievance of the respondent Nos. 1 to 3 is that the said orders were not given effect to, though the services of the similarly placed doctors, namely, Dr. Siddalingesh Salimath and Dr. Bhagya B.S. were regularized. The respondent Nos. 1 to 3 approached this Court seeking mandamus to implement the orders, dated 22.5.2012 to pay the arrears of salary, etc. On hearing the learned advocates, the learned single Judge disposed of the petition directing the appellant to consider the representations of the respondent Nos.1 to 3 (Annexures - J, J1 and J2) in accordance with the order, dated 22.5.2012 (Annexures - E, E1 and E2) within two months and to implement its said order. 2. Sri T.H. Avin, the learned counsel for the appellant submits that the appellant has no difficulty in considering the representations of the respondent Nos.1 to 3. But the consideration cannot be in terms of the order, dated 22.5.2012. He submits that no parallel can be drawn between the cases of Dr. Siddalingesh Salimath and Dr. Bhagya B.S. and the cases of the respondent Nos. 1 to 3. Dr. Siddalingesh Salimath and Dr. Bhagya B.S. fall in a different category, as they are the Senior Resident Doctors, whereas the respondent Nos. 1 to 3 are the Tutors. 3. Sri. Avin submits that the appellant was not given an opportunity to put forth its resistance to the writ petition before the learned single Judge. He submits that there is a specific bar in the Government Order, dated 19.5.2007 against the regularization of the services of the Tutors. 1 to 3 are the Tutors. 3. Sri. Avin submits that the appellant was not given an opportunity to put forth its resistance to the writ petition before the learned single Judge. He submits that there is a specific bar in the Government Order, dated 19.5.2007 against the regularization of the services of the Tutors. He submits that the respondent Nos.1 to 3 came to be appointed on contract basis without calling for the applications. He submits that if the applications were to be called for, many meritorious candidates could also have responded. 4. Sri Ramachandra A. Mali, the learned counsel for the respondent Nos.1 to 3 submits that the writ petition was disposed of after putting the appellant's Standing Counsel on notice. He denies that no publicity was given to the appointment of the Tutors on contract basis. He places on record a copy of the notification issued by the appellant Institute calling for applications for the posts of Tutors. He submits that it was published in 'Samyuktha Karnataka' issue, dated 11.7.2008. 5. He asserts that out of 13 contract Tutors, the services of 10 Tutors are already regularized. He submits that based on the oral direction of the Director of the appellant Institute, the regularization of the services of the 3 Tutors in question is withheld. 6. Smt. K. Vidyavati, the learned Additional Government Advocate appearing for the respondent No.4 submits that the appointment of the respondent Nos.1 to 3 has to be in accordance with the appellant's bye-laws. 7. On being asked as to whether the appointments made by the appellant Institute are subject to the approval from the Government, no provision of the bye-laws prescribing such a requirement is pointed out. 8. We do not see any substance in the argument raised on behalf of the appellant that no wide publicity was given to the appointment of the doctors on contract basis. The notification is issued in a Daily (Samyuktha Karnataka), which is in good circulation in this part of the State. We also find it hard to give acceptability to the submission that there is a specific bar in the Government Order, dated 19.5.2007 (Annexure-R1) against the regularization of the services of the Tutors. Clause 9(A) of the said order only contains the enabling provision for making the appointment on contractual basis. We also find it hard to give acceptability to the submission that there is a specific bar in the Government Order, dated 19.5.2007 (Annexure-R1) against the regularization of the services of the Tutors. Clause 9(A) of the said order only contains the enabling provision for making the appointment on contractual basis. But it cannot be construed as some kind of imposition of prohibition or restriction or embargo on the regularization of the services of the Tutors. 9. Admittedly Dr. Siddalingesh Salimath and Dr. Bhagya B.S. were also appointed on contract basis. Their services were regularized as Senior Residents pursuant to the resolution passed on 5.12.2011. The said resolution is for the extension of pay scale to 10 Senior Residents and 4 Tutors. Pursuant thereto, the individual orders regularizing the services of the Resident Doctors and Tutors were issued. I find the cases of Dr. Siddalingesh Salimath and Dr. Bhagya B.S. to be akin to the cases of the respondent Nos. 1 to 3. On the ground that Dr. Siddalingesh Salimath and Dr. Bhagya B.S. are in the segment of Senior Residents, the benefit of the resolution, dated 5.12.2011 cannot be denied to the tutor-doctors. It is trite that equals are to be treated equally; and the similarly placed persons cannot be treated dissimilarly. 10. It is also not the case of the appellant that the resolution dated 5.12.2011 is modified or rescinded. Further, it is not the case of the appellant that the individual orders issued to the respondent Nos. 1 to 3 based on the said resolution, dated 5.12.2011 are withdrawn. Therefore, the appellant cannot contend with any rate of success that it would not honour its own resolution, dated 5.12.2011 and its orders, dated 22.5.2012. 11. For all the aforesaid reasons, we dismiss these appeals.