Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 260 (KAR)

Divya B. S. v. State of Karnataka

2019-01-25

KRISHNA S.DIXIT

body2019
JUDGMENT : KRISHNA S.DIXIT, J. 1. Petitioners who are the medical practitioners are invoking the writ jurisdiction of this Court seeking a Writ of Certiorari for the quashment of Senior Resident Common Merit-cum-Allotment List issued by the 2nd respondent by way of web hosting on 09.01.2019, a relevant portion enlisting the petitioners whereof, is at Annexure-A to the writ petitions, inter alia on the ground that the same is not in terms of the judgment of this Court rendered on 21.12.2018 in earlier round of writ petition Nos.46917-47025/2018 (Edn-Res) and connected matters, a copy whereof is at Annexure-D. 2. On request learned Addl. Government Advocate Smt. Pramodhini Kishan having appeared for the respondents opposes the writ petitions arguing that the impugned web hosted notification although is not happily worded, the same is issued in substantial compliance with the mandate of this Court in the aforesaid writ petitions. Since common questions of facts and law are involved and also the relief sought for is substantially similar, all these petitions, on the suggestion of the learned counsel appearing on either side, are being heard and disposed off by this common judgment and order. 3. Learned counsel for the petitioners falters the impugned notification on the grounds that: (a) no comparative merit list of all the candidates as has been mandated by this Court is prepared as a pre-condition for counseling and allotment of posts, (b) no allotment could have been made without formulating a comprehensive scheme by laying down the guidelines for the purpose of enforcing Rule 15 of the Karnataka Conduct of Entrance Test for Selection and Admission to Post-Graduate Medical & Dental Degree and Diploma Courses Rules, 2006, (c) the comparative merit list now said to have been prepared does not contain the names of candidates of yester years and of all India quota as mandated by this Court, (d) the so called comparative merit list contains names of certain candidates who have not executed the bond at all. 4. Learned Addl. 4. Learned Addl. Government Advocate fairly submits that petitioners shall not be compelled to undergo stipulated service till after counseling is done and that in all likelihood petitioners would be called for counseling in the last week of this month i.e., immediately after the fresh comparative list now in the updation is issued; such comparative merit list cannot be faltered only on the ground that it contains the names of candidates who have not executed the bond or that those who ought to have been included are left out, which fact can be brought to the notice of the respondent-Director at the time of counseling so that the same shall be looked into; those candidates who have not furnished the undertaking shall not be compelled for counseling or the service. The learned AGA further submits that whatever grievances these petitioners have individually would also be addressed by the respondents forthwith. The fair stand of the respondent- State is placed on record. 5. The learned AGA next contends that the mandate contained in the aforesaid judgment of this Court cannot be construed as Euclid's Theorem and what the Court should see is whether the procedure adopted for taking steps in asking the candidates to go for compulsory service is fair and reasonable; the comparative merit list now in the making will be Norm compliant in terms of the mandamus and that if there are some names wrongly included or wrongly left out, that per se may not be a ground for its quashment; at para 31(b) of the aforesaid judgment, this Court had directed to prepare "a merit list of all the candidates who were called for compulsive counseling" and thus the candidates of the yester years need not be in the merit list now at once; it is always open to the candidates to point out the defects that occasion prejudice to them so that the same would be addressed by the respondent-Director. Even this stand of the State, in my considered view being fair, cannot be found fault with, especially when the defects argued by the petitioners apparently operate on the marginal side. 6. Even this stand of the State, in my considered view being fair, cannot be found fault with, especially when the defects argued by the petitioners apparently operate on the marginal side. 6. The contention of the petitioners that till after a comprehensive scheme is formulated by the State by laying down guidelines for the purpose of enforcing the undertaking given by the candidates in terms of Rule 15 as mandated by this Court, the petitioners cannot be compelled to undergo counseling, appears to be misconceived. The Government should draw a scheme is true and for that purpose, this Court in the aforesaid judgment has granted a period of six months. This cannot be construed as vesting a justiciable right in the candidates to have the counseling deferred till after the scheme is evolved. An argument to the contrary would prejudice the interest of the public which is sought to be served by the imminent counseling and the consequent allotment of letters. A contra contention could have been countenanced if the text of Direction No.(iv) in the operative portion of the aforesaid judgment (internal pages 98 & 99) had approximated with that of Direction No.(i) therein. Therefore, this contention is rejected. 7. The contention of the petitioners that the comparative merit list should necessarily include the names of the candidates of yester years as mandated by this Court does not appear to be correct going by the text of Condition No.3 in the operative portion of the aforesaid judgment. The said direction begins with the terms "the respondents 1 & 2 shall make all endeavours to invoke the bond obligation furnished by all the candidates. under the aforesaid 2006 Rules .." At para 31(b), this Court desired preparation of "a merit list of all the candidates who were called for compulsive counseling". The exercise to trace the whereabouts of candidates of yester years will take its own time, they having scattered away within the State and some of them without. It shall be most ideal if names of all these candidates are included in the list. But, their non-inclusion per se cannot be a ground to defer counseling/compelling the candidates to go for public service that too for a period much shorter than what is stipulated in the Undertaking voluntarily executed by them on Bond Papers. 8. It shall be most ideal if names of all these candidates are included in the list. But, their non-inclusion per se cannot be a ground to defer counseling/compelling the candidates to go for public service that too for a period much shorter than what is stipulated in the Undertaking voluntarily executed by them on Bond Papers. 8. The last contention of the petitioners that pursuant to the mandate of this Court in the aforesaid judgment, the State has to recover the penalty amount from the defaulters of the Undertaking and that the said amount presumably being huge has to be diverted for payment of stipend at enhanced rates and till after this is done, the candidates cannot be compelled to undergo counseling and consequent service, is thoroughly misplaced. The mandate in this connection is at Direction Nos.(iii) and (vi) of the operative portion of the aforesaid judgment. Some observation is also made in the reasoning part thereof. It is specifically stated therein that it is for the State to consider the claim for enhancement of stipend, keeping in view the recovery of penalty amount. No justiciable right again inheres in the petitioners thereby. Therefore this contention too is rejected. 9. There is a lot of force in the submission of the learned AGA that there is a dire and immediate need for the services of the Senior Residents in several Government medical colleges for complying with the MCI Norms and that if immediate steps are not taken, these colleges run the risk of losing recognition/approval. She has placed on record a copy of letter No.DME/PGS/12/2018-19 dated 17.01.2019 issued by the 2nd respondent-Director of Medical Education which reads as under: "In compliance of the Direction of the Hon'ble Court in WP No. 46917/2018, this respondent has already taken steps frame the regulations and the same will be ready for the next batch of students who are passing out and the placement/bond enforcement shall be done strictly in accordance to the said regulations. MCI Inspection for approval of medical colleges is started and it is mandatory on the Government to ensure there are required number of senior residents in all Medical Colleges as per MCI norms. If there is shortage of senior residents in said medical colleges, there is a threat of MCI not approving the admission to the said institutions. MCI Inspection for approval of medical colleges is started and it is mandatory on the Government to ensure there are required number of senior residents in all Medical Colleges as per MCI norms. If there is shortage of senior residents in said medical colleges, there is a threat of MCI not approving the admission to the said institutions. In view of shortage of time, present notice has been issued with a liberty to candidates to approach the DME if they have any difficulties. DME is willing to conduct another counseling to enable the candidates to choose the colleges on or before 25-1-2019 in view of the urgency stated above" 10. It is a matter of common knowledge that the Courts have in a catena of decisions ruled that the MCI Norms are mandatory in character and their noncompliance entails stringent penal consequences. The haste shown by the Government and the DME in initiating steps for counseling and placement of the candidates for compulsory service is understandable. If, relief is granted to the petitioners in the given circumstances, the same would breed enormous public mischief and a great prejudice would be caused to public interest, to which the private interest of the petitioners should yield, especially when the State having stood tall and fair has called them for compulsory service of only one year as against a period of three years stipulated in the undertaking, which aspect of the matter has already been discussed by this Court at para 30 of the aforesaid judgment. Other substantial concessions have also been shown to these candidates who intend to go for higher studies. Thus, overall there is more than a fair and reasonable treatment meted out to these candidates by the State. 11. In these facts and circumstances, the writ petitions are disposed off with the observations made herein above. However, this order shall not come in the way of any of the candidates seeking redressal of individual grievances by making an appropriate representation to the respondents herein, who shall consider the same forthwith in accordance with law. Liberty is reserved to the petitioners to take appropriate proceedings for the redressal of their grievances, if any, against the revised comparative merit list which is stated to be web hosted now. Liberty is reserved to the petitioners to take appropriate proceedings for the redressal of their grievances, if any, against the revised comparative merit list which is stated to be web hosted now. Subject to what is stated above, the petitioners shall forthwith undergo counseling for the compulsive service in terms of the undertaking given by them save by whatever concession the State has graciously shown as discussed in the aforesaid judgment dated 21.12.2018 in earlier W.P.Nos.46917-47025/2018 (Edn-Res) and other connected matters. It is made clear that in respect of all candidates including the petitioners who are not willing to undergo counseling and the consequent public service, the respondent shall withdraw the concessions mentioned in the aforesaid judgments and further shall enforce the undertaking verbatim either by compelling them to serve for the full period of three years, or in the alternative, to resort to coercive recovery of the entire penalty i.e., Rs. 25 lakh/Rs.50 lakh from each of the candidates, as the case may be, in terms of Rule 15 (5) of the Karnataka Conduct of Entrance Test for Selection and Admission to Post19 Graduate Medical & Dental Degree and Diploma Courses Rules, 2006. A copy of operative portion of this judgment shall be made available to the learned counsel for the petitioner and to the learned Addl. Government Advocate. Costs made easy.